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LawAccess NSW > Representing Yourself - LawAssist

Preparing fo​​​r the Local Court hearing - Step by step guide​​​

The following steps will help you prepare for the hearing of your case at the Local Court. 

Step-by-step guide icon Preparing for the Local Court hearing - Step by step guide​​

Step 1: Gath​​​​er your ​​​evidence

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

The person from the Local Court who will look at the evidence and decide the case is called the 'magistrate.' The magistrate will need to decide a number of issues, such as:

  1. Was a Fencing Notice served?
  2. Is the existing dividing fence sufficient?
  3. If there is no fence or you or your neighbour want a new fence, what sort of fence should be built?
  4. Where should the fence be built?
  5. How much should each neighbour pay?
  6. In the case of urgent repairs - were the repairs urgent?

Your evidence should address the questions that apply to your case.

1. Was a Fencing Notic​e served?

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, the Local Court 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 the Local Court, 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 the Local Court.

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).

If you made the application and you think your neighbour may not show up to the hearing or that they may argue they are not the owner of the property, you will need to provide evidence to show that you have served a Fencing Notice on the right person. To get this evidence you could:

  • subpoena the local council to get a copy of the rates statement for the adjoining property which will show the owner's details
  • do a title search to show who owns the property.

For more information on subpoenas see Subpoenas - Step by step guide.

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

2. Is the existing dividi​ng fence sufficient?

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

3. If there is no fence or y​ou or your neighbour want a new fence, what sort of fence should be built?

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.

Hint icon  Make sure you take quotes for building or repairing the fence with you to the hearing. If you do not take quotes, the case may be adjourned (postponed) and you may have to come back to finish the hearing on another date.

4. Where should the fence ​be built?

A dividing fence will usually go on the common boundary line between two neighbouring properties. If a fence cannot 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).

5. How much should each ​neighbour pay?

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 Who should pay?

6. In the case of urgent repairs - ​were the repairs urgent?

If the application to the Local Court 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.

Hint icon  Make sure you take quotes for building or repairing the fence. If you do not take quotes the case may be adjourned and you will have to go back to court again.

Alert Icon  If the magistrate gave you directions at the mention about when your evidence should be served on (given to) your neighbour, you should follow these. If you bring evidence to a hearing that you have not given to your neighbour according to directions made by the court, your neighbour may object to this evidence being used by the court, and in some cases you may not be able to rely on this evidence.

Step 2: Plan what t​o take to the hearing

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 magistrate, one for your neighbour and a spare
  2. your notes for speaking to the magistrate (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. your witnesses (if any).

Hint icon  If you want to make sure a witness comes to the hearing to give evidence, you can serve them with a Subpoena to Give Evidence. For more information on subpoenas see Subpoenas - Step by step guide.

Step 3: Plan what you are going to say at the hearing

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

  • what happened before the application was made
  • information about any discussions you have had with your neighbour about fencing work
  • whether or not you and your neighbour have attended mediation.
  • 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 Presenting your case at the Local Court hearing - Step by step guide.

For answers to commonly asked questions, see Frequently Asked Questions​​.