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Step by step guide - Preparing for the NCAT hearing

The following steps will help you prepare for a conciliation and hearing at the NSW Civil and Administrative Tribunal (NCAT).

You will need to gather the evidence that you are going to take with you to the hearing.

The person from NCAT who will look at the evidence and decide the case is a tribunal member. The tribunal member will need to decide a number of issues, such as:

If a Fencing Notice has not been served by you or your neighbour, or it is less than one month since the Fencing Notice was served, NCAT cannot hear the case (unless you have not been able to find your neighbour or your case relates to urgent fencing work).

If you made the application to NCAT, you will need to show that a Fencing Notice was served. You could do this by providing:

  • copies of the Fencing Notice served on your neighbour
  • proof of when the Notice was posted or received
  • copies of any correspondence between you and your neighbour, for example, letters, emails, text messages and faxes
  • a copy of the application to NCAT.

If you were not able to serve a Fencing Notice because you could not find your neighbour, you will need to provide evidence of:

  • any title search of the neighbouring land 
  • any other enquiries you made to find the identity or contact details of the owner
  • any conversations you have had with tenants or real estate agents (for example, where the tenants or real estate agent managing the property would not give you the details of the owner).

For more information on how to find the owner of a property if they do not live next door, see Talk to your neighbour.

If you want a new fence, you will need to show the tribunal member that the existing fence is not sufficient. If you do not want a new fence, you will need to show the tribunal member that the existing fence is sufficient.

Evidence about whether the existing dividing fence is sufficient or insufficient could include:

  • photos of any existing fence

  • photos, videos, maps or other documents showing the type of fences in your area  

  • photos or information showing damage to the fence and any repairs that are needed
  • police reports (for example, records of a burglary or trespassing may be relevant if you are saying the fence does not provide security)
  • local council notices and evidence of land zoning  (if you are saying that the fence is not appropriate to the use of the land).

You or your neighbour need to show what sort of fence should be built. You should also bring evidence of how much the work will cost.

You could bring along:

  • quotes for building the fence (which are valid and have not expired)
  • copies of any local council rules about the height of fences or materials that cannot be used (you should contact your local council or look at its website for this information)
  • copies of any covenants, easements or restrictions on user that may affect where you can build a fence. You will need to look at the Certificate of Title for your property. If you are unsure about the meaning of anything listed on your Certificate of Title you should get  legal advice
  • photos or information about the types of fences in your area
  • any witnesses who can give evidence to support your case.

Make sure you take quotes for building or repairing the fence with you to the hearing. If you do not take quotes it may delay your case. 

A dividing fence will usually go on the common boundary line between two neighbouring properties. If a fence can't be built on the boundary line because of the nature of the land, it will usually be built as close as possible to the boundary. If you and your neighbour disagree on where the fence should be built, relevant evidence could be:

  • photos or information about the fence-lines or fences in your area
  • surveys
  • professional reports (for example engineers reports).  

You and your neighbour will need to tell the magistrate how you think the costs of any fencing work should be split. Relevant evidence could be:

  • photos, police reports or witness evidence that provides information about any deliberate damage to the fence that has been caused by your neighbour or their tenants
  • photos or information showing that the fence your neighbour wants is more than what is sufficient. Neighbours must usually only share the cost of a sufficient dividing fence. If your neighbour wants a fence of a higher standard they will usually have to pay any additional costs. For more information about evidence relating to whether a fence is sufficient, see question 2.
  • photos or development plans relating to any swimming pool that has been or will be built on the land.

For more information about who should pay for fencing work, see Your rights and obligations.

If the application relates to urgent fencing work, relevant evidence might include:

  • police reports of any security issues (for example a report about a burglary)
  • a report of any damage caused to the original fence
  • information about potential stock loss (this might be any records you have of your stock or a statement by you or a person occupying your property)
  • information explaining why it was not practical for a Fencing Notice to be served on your neighbour
  • information about other steps that could have been taken. For example, information about the availability and cost of temporary fencing.

You will need to take these things with you to the hearing:

  1. All your evidence. Take at least four copies of each of your documents: one for you, one for the tribunal member, one for your neighbour and a spare
  2. Your notes for speaking to the tribunal member (see Step 3).
  3. A notebook and pen to make notes during the hearing.
  4. Highlighters and post it notes to mark important information.
  5. You will not need any witnesses on the first listed day at NCAT. If you have witnesses you should be prepared to talk to the tribunal member about what witnesses you want to bring to the hearing.

If you want a witness to come to the hearing but you are worried they will not attend, or someone to give documents to NCAT for you to use in the hearing, you can ask NCAT to issue a summons.  A summons requires a person to come to NCAT and give evidence or hand over documents named in the summons.

To apply for a summons, you must:

  • complete an Application for Summons form. You can get this form from the NCAT website.
  • file the form with any necessary documents
  • pay a fee.

If NCAT agrees to issue the summons, you will need to:

  • prepare a summons
  • give four copies to NCAT. NCAT will add in details like the dates for service and then sign and seal the summons and copies. One copy is kept on NCAT's file and one copy is for you
  • serve (give) one summons on the person it is addressed to. You will also need to serve a copy on any other party.

For more information:

Before the hearing, the tribunal member will give you and your neighbour time to try to come to an agreement.  This is called conciliation.

If you can come to an agreement, NCAT can make orders in the same terms as your agreement. This is quicker than having a hearing and you get a result that you have agreed to.

It is a good idea to prepare for conciliation by thinking about:

  • what you want
  • options for settling the dispute (what you would agree to)
  • your emotions and how you can keep calm
  • what you would like to say

For more information on conciliation, go to the NCAT website.

Write down the main points you want to say to the tribunal member. This may include:

  • what happened before the application was made
  • information about any discussions you have had with your neighbour about fencing work
  • why you want to do fencing work (or do not want to do fencing work)
  • mentioning the evidence that supports your case

Now you have prepared for the hearing, the next step is to present your case on the day of the hearing.

For more information see Step by step guide - Presenting your case at the NCAT hearing