Boundary Disputes on Residential Sites: Surveyor Reports and Tribunal Jurisdiction in Australia

What it is

A boundary dispute is a disagreement between adjoining owners about where the legal line between two parcels actually sits on the ground. The dispute usually surfaces during a new build, a fence replacement or a subdivision. The fence the previous owner thought of as the boundary often turns out to be set inside, or outside, the surveyed line by several centimetres or more.

Two evidence sources sit at the centre of every boundary dispute in Australia. The first is the deposited plan or plan of subdivision lodged with the state Land Registry. That plan defines the legal parcel boundaries by reference to permanent survey marks. The second is the field survey carried out by a registered surveyor under the Surveying and Spatial Information Act 2002 (NSW), the Surveying Act 2004 (Vic) or the equivalent state legislation. The NSW surveyor registration framework under the Surveying and Spatial Information Act 2002 (NSW) governs how a surveyor re-establishes the boundary from the deposited plan plus surrounding survey marks [1].

Why the surveyor report matters

A registered surveyor is the only person who can give legal evidence about where the boundary actually sits. A boundary peg placed by a builder or a homeowner has no legal weight. If two surveyors reach different conclusions, the matter can be referred to the Registrar General for determination under the NSW Real Property Act 1900 plus equivalent state Acts; the Registrar General issues a binding determination of the boundary location [1].

For a residential builder, the practical lesson is to get an identification survey before excavation on any site where the existing fence looks suspicious. The cost of a survey is a fraction of the cost of demolishing a footing that turns out to sit on the neighbour's land.

Common law boundary principles

The common law in Australia recognises several presumptions that apply when documentary evidence is unclear. The doctrine of ad medium filum applies to boundaries along a road or waterway; the boundary runs to the centre line unless the title says otherwise. The doctrine of accretion can move a boundary along a watercourse where the change has been gradual plus imperceptible. The High Court in Hazlett v Presnell (1982) 149 CLR 107 set out the modern Australian approach to these doctrines, although the working detail sits inside each state's Torrens system [2].

Adverse possession is a separate question. Most Australian Torrens systems allow possessory title applications after twelve to fifteen years of uninterrupted possession, depending on the state. The Land Title Act 1994 (Qld), the Real Property Act 1900 (NSW) plus the Transfer of Land Act 1958 (Vic) all set out the procedure. The application is decided by the relevant Land Registry, not by a court [2].

Tribunal versus court jurisdiction

Most residential boundary disputes do not go to court. The dividing fence dispute pathway in each state sends the matter to the local civil tribunal. In NSW, NCAT hears dividing fence disputes under the Dividing Fences Act 1991 (NSW), with unlimited jurisdiction for the type of orders it can make about the fence itself [3]. VCAT hears equivalent disputes under the Fences Act 1968 (Vic). QCAT covers Queensland under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).

The tribunal can make orders about who pays for the fence, what type of fence is built plus where the fence sits relative to the surveyed boundary. The tribunal cannot make a binding determination of the legal boundary; that authority sits with the Registrar General or the Supreme Court of the relevant state.

Pre-application steps

Each tribunal has prescribed pre-application steps. In NSW, the applicant must serve a Fencing Notice on the adjoining owner at least one month before filing at NCAT [3]. The notice has to describe the proposed fencing work, the estimated cost plus the proposed share. If the neighbour does not respond within the statutory period, the applicant can proceed to NCAT.

What the tribunal will look for

The tribunal expects the applicant to bring a written quote, the served notice plus any survey evidence. Where the location of the boundary itself is contested, the tribunal will usually adjourn until a registered surveyor's report is filed. The Dividing Fences Act 1991 (NSW) section 7 specifies that reasonable surveyor expenses are shared equally between the adjoining owners [3].

Higher court pathways

A small number of boundary disputes go to the Supreme Court of the relevant state, usually where the dispute is wrapped up in a wider title question or an easement claim. The Court hears the matter under its general equity jurisdiction. The cost of running a Supreme Court boundary dispute typically exceeds the value of the disputed strip of land, which is why most owners use the Registrar General determination pathway instead.

For builders, the takeaway is that an early survey costs hundreds of dollars and a late survey, after a contested tribunal hearing or a Supreme Court filing, costs tens of thousands.