Property 101: Dividing fence disputes in QLD

Fences and the law

What is the Neighbourhood Dispute (Dividing Fences and Trees) Act 2011?

The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 provides new options for resolving tree and dividing fence disputes between neighbours on adjoining properties.

Does the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 apply to all fence disputes?

No. The laws do not apply to pool fencing, State plantation forests, cropping land greater than 0.5 hectare or unallocated State Lands. The laws do not override covenants, non- QCAT agreements, body corporate by-laws, easement rights or retaining wall laws.

What is a dividing fence?

A dividing fence is generally constructed on the common boundary line of adjoining land. A fence is a structure, ditch or embankment, or a hedge or similar vegetation barrier, natural or artificial watercourse, enclosing any land, whether or not it extends along the whole boundary of land separating the neighbours. A retaining wall is NOT a fence.

Who owns a dividing fence?

A dividing fence is owned equally by the adjoining neighbours if it is built on the common boundary line. However, a fence or part of a fence built on one neighbour’s land is owned by that neighbour, even if the other neighbour contributed to the cost of construction of the fence.

Who is responsible for a dividing fence?

Generally neighbours must contribute equally to building and maintaining a dividing fence. Either neighbour should not attach things to the fence which may damage or alter it unless agreed e.g. clotheslines, car ports, shade sails.

Why is a retaining wall not considered a fence?

Retaining walls serve a different purpose than fences. They are engineered to support built up or excavated earth. Retaining walls are not normally a matter of joint responsibility for neighbours because a retaining wall is usually of more benefit to one neighbour.

Are retaining walls covered by the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011?

No. Retaining walls are not defined as part of fences because they usually benefit one neighbour more than another, therefore equal contribution is unsuitable.However, QCAT can make orders about carrying out fencing work that includes work on a retaining wall if the repair of the fence is dependent on the work for the retaining wall.

What sort of dividing fence disputes will QCAT help resolve?

If you have given your neighbour a Notice to contribute to proposed or urgent fencing works, you can apply to QCAT if you are unable to agree on construction or repair of a dividing fence. Applications can also be made to QCAT about other types of fence disputes including removal of an existing fence or compensation for damage to a fence.

Do neighbouring properties have to have a dividing fence?

There should be a dividing fence if one of the neighbours requests one but some adjoining land owners are excluded e.g. parks, plantations and crops.

Do the new laws only apply to residential areas?

No. The laws apply to urban and rural lands slightly differently, but not to agricultural lands greater than 0.5 hectare in area, nor parks, stock routes, nor plantation licensees, nor unallocated state land.

Notices to contribute to fencing

How do I get my neighbour to contribute to building a new or maintaining an existing fence?

You can ask your neighbour to contribute to the cost of fence construction and maintenance by giving them a notice to contribute.

What is in a Notice to contribute?

A notice to contribute is a form you can complete and give to your neighbour to request their contribution to repairing or constructing a dividing fence. The form contains specific information and must include at least one written quote. 

What can I ask for a contribution for?

You can seek a contribution for any fencing work including surveying, construction, demolition associated with replacement fencing, repair or maintenance.

What if I have used a Notice to contribute and there is no agreement?

If there is no agreement on the notice to contribute within one month after it has been given, you can contact a Dispute Resolution Centre to provide free assistance in resolving the issue through mediation.

QCAT decisions and orders

What types of dividing fence issues can QCAT make an order on?

QCAT can decide on issues including cost contributions, alignment, type, timing and stop or order construction or demolition.

What sort of orders can QCAT make about dividing fences?

QCAT can decide matters including:

• which of two or more fences on a boundary is the dividing fence 
• whether a fence is a sufficient dividing fence 
• the line on which fence work will be carried out (if not the common boundary) 
• the kind of fencing work to be undertaken and who pays what share 
• timing of work 
• any other related work e.g. retaining wall works or drainage works which are necessary for the dividing fence repairs or construction.

How does QCAT make decisions on orders regarding fences?

QCAT may consider several factors in determining fence orders including:

• existing or previously existing dividing fences 
• what the lands are used for 
• types of dividing fences used in the neighbourhood 
• whether the fence can be maintained (physically and financially) 
• any obligations from development approvals 
• any written agreements between the owners.

Can I have legal representation or have someone else represent me?

Generally in QCAT people are expected to represent themselves. A real estate agent may represent an owner if QCAT has given permission. To seek permission to be represented by a real estate agent, a solicitor or any other person, you should lodge an Application for Leave to be Represented.

General

What options do I have to deal with my problem with my neighbour about a dividing fence?

Try to talk to your neighbour about the issue and suggest a solution. If you cannot come to an agreement:

• contact the Dispute Resolution Centre for free assistance on resolving your dispute including mediation sessions 
• if your issue concerns fence construction, maintenance, or fence damage repairs, use a Notice to Contribute for a no-cost resolution 
• apply to QCAT to make an order in your dispute.

What happens when a neighbour decides to use a swimming pool fence as a dividing fence?

The owner of a swimming pool fence must ensure that the fence complies with the Building Act 1975. Under that Act if a swimming pool fence is also a dividing fence, the owner of the pool will be liable to pay the costs of any changes to the fence that maybe required over and above a ‘sufficient dividing fence’. For more information visit the Department of Infrastructure and Planning.

What if I need urgent work done to a dividing fence?

If urgent work is required, you can carry out the work and give your neighbour a Notice to contribute as soon as possible after that.

What if my neighbour has damaged the dividing fence?

If a neighbour attaches things like carports, clotheslines or a shade sails without your permission, you can apply to QCAT for an order to restore the fence.

What if my neighbour wants a dividing fence that exceeds requirements? Do I have to pay more?

No. If your neighbour wants a more expensive fence than one which would meet requirements to be a sufficient dividing fence, they are liable for the extra costs and maintenance.

My neighbour is constructing fence without my permission. What can I do?

Try talking to your neighbour – you may be able to resolve the issue. If you cannot reach an agreement, you can apply to QCAT for an order preventing the construction of the fence. After you have applied to QCAT you will need to give a stamped copy of your QCAT application to your neighbour as soon as possible and at least three days before the application is heard by QCAT. QCAT will also send to you and your neighbour a notice with the details of the hearing.

My neighbour is demolishing a fence without my permission. What can I do?

Try talking to your neighbour – you may be able to resolve the issue. If you cannot reach an agreement, you can apply to QCAT for an order preventing the demolition of the fence. After you have applied to QCAT you will need to give a stamped copy of your QCAT application to your neighbour as soon as possible and at least one day before the application is heard by QCAT. QCAT will also send to you and your neighbour a notice with the details of the hearing.

What can I expect when I lodge a dividing fence dispute application with QCAT?

If you are unable to reach and agreement with your neighbour regarding your dividing fence through a Notice to contribute, you may wish to make an application to QCAT. After your application is processed, including advice to your neighbour about the application, a mediation session will be scheduled to help both parties come to an agreement.

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