Disputes can often arise between neighbours concerning a dividing fence which under the Dividing Fences Act 1991 is defined to include a structure or barrier along a boundary between adjoining properties. Usually, the dispute is over whether or not to erect something on the boundary or whether to replace an existing dividing fence due to its poor condition. If the parties cannot agree then the matter can be referred to the NSW Civil and Adminstrative Tribunal or the Local Court for a final decision.
However, there are cases where what seems like a dividing fence dispute is not covered by the Act. Examples of exclusions under the Act include a retaining wall (unless it supports a dividing fence) or a wall which is part of a house, garage or other building. In such circumstances, a party will need to rely on other areas of the law to resolve a dispute.
One such example is where the wall of a garage is on the boundary (meaning it is not a dividing fence) and the owner of the garage claims that a tree on the neighbour’s land has damaged the wall whether by pushing against it, through tree root activity or otherwise and claims compensation. Such a situation is governed by the Trees (Disputes Between Neighbours) Act 2006. If the dispute cannot be resoloved, the Land and Environment Court has the power to make various orders including the taking of action to remedy the damage or requiring payment of the costs of repair or compensation.
As with all neighbourhood disputes, legal advice should always be sought to determine the best and most cost effective way forward.
May 2026