Dividing fence disputes questions and answers
The Neighbourhood Disputes Resolution Act 2011 (the Act) commenced on 1 November 2011.
The Act contains the new laws on fences. There is now a wider definition of the term fence (including hedges) and a clearer definition of the term ‘sufficient dividing fence’. Other general changes from the repealed Dividing Fences Act 1953 include a single Notice for contribution to fencing work form and Notice for contribution to urgent fencing work form, clarification that the ownership of the dividing fence on a common boundary is shared equally, distinction between a retaining wall and a fence, and clearer rules for pastoral and agricultural fences.
What is a dividing fence?
A fence is a structure, ditch or embankment, or a hedge or similar vegetation barrier, enclosing any land, whether or not it extends along the whole boundary of the land separating the neighbours. It includes any gate, cattle grid, or apparatus necessary for the operation of a fence.
A dividing fence is constructed on the common boundary line of adjoining land. Sometimes a dividing fence can be built off the common boundary line when it is impractical due to the physical features of the land.
Who owns a fence?
The Act does not affect the common law position. 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 construction of the fence.
Basic rules for dividing fences
There should be a sufficient dividing fence between two parcels of land if an adjoining owner requests one – even if one or both parcels of land are vacant.
Generally neighbours must contribute equally to the cost of building and maintaining a sufficient dividing fence and should not attach something to a dividing fence that unreasonably and materially alters or damages it.
In most cases, issues about dividing fences need to be solved by the owner of the property. Except in very long-term leases, lessees of properties need not be involved in the issues about dividing fences. If a tenant is asked by their neighbour about a dividing fence issue, this should be referred to the property owner or the agent.
Are there any circumstances where a dividing fence is not required?
Yes, there some circumstances where a dividing fence is not required:
- if both neighbours of adjoining land do not want a dividing fence
- where either parcel of land is outside the scope of the Act e.g. public land or a stock route
- where both parcels of land are agricultural land
- where there is no owner of the land e.g land under the Nature Conservation Act 1992 is not subject to a lease or stock grazing permit.
What happens if a fence is built without complying with the Act?
In such cases, generally neighbours will need to rely on any agreement reached with the neighbour about contribution or the common law as to ownership. It would be worthwhile recording the terms of any such agreement. However, those agreements generally would not bind subsequent purchasers of either property.
The Act and retaining walls
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.
However, the Queensland Civil and Administrative Tribunal (QCAT) has limited power under the Act to make orders about a retaining wall if the dividing fence cannot otherwise be repaired.
When a dividing fence is sufficient
A dividing fence is considered a ‘sufficient dividing fence’ in the following circumstances:
- where two parcels of residential land are adjoined, the fence must be between 0.5 metres and 1.8 metres in height and constructed substantially of prescribed material
- where two parcels of pastoral land are adjoined, the fence must be able to restrain livestock of the type grazing on each of the parcels of land.
- where the owners agree a particular fence is a sufficient dividing fence
- where QCAT decides that a particular fence is sufficient. There are specific factors which QCAT must take into account (e.g. types of fences in the neighbourhood).
In working out what kind of fence is sufficient in the circumstances, the starting point is what will be sufficient to divide the properties, for example, a short chain wire fence. If either owner wants more, then they will have to pay the difference.
When one owner approaches their neighbour about a dividing fence, they should provide at least one quote. If the other neighbour thinks this is too high, they can obtain their own quote.
QCAT
QCAT stands for the Queensland Civil and Administrative Tribunal. QCAT provides a single tribunal through which the community can access justice. QCAT provides the community with a more accessible, informal and responsive means of resolving neighbourhood disputes involving trees and dividing fences. Visit Queensland Civil and Administrative Tribunal (QCAT) for more information about how to make an application involving a tree or dividing fence matter.
Who pays for what?
Adjoining neighbours are each liable for half the cost of fencing work required to have a sufficient dividing fence. However, where one neighbour wants to have more work done than is necessary for a sufficient dividing fence then they will be liable to pay the extra expenses.
For example, if a neighbour wants a higher fence for privacy or security they should meet this extra cost. This does not mean that QCAT will order that the fence will be built according to their wishes. In those circumstances, QCAT would consider the wishes of each neighbour and the other factors which QCAT is required to take into account. A neighbour's contribution might be made of materials or labour.
Swimming pool fences
The Act does not apply in relation to a fence or part of a fence that is a barrier of a regulated pool under the Building Act 1975.This is because under recent amendments to the Building Act 1975very specific obligations are imposed upon the owner of land upon which a regulated pool is situated. These obligations differ greatly from the obligations of an owner under the Act. As a result, it is not practicable to apply the Act to barriers for a regulated pool.
For more information about regulated pool barriers visit the Department of Local Government and Planning - Local Government .
If a fence is destroyed by a negligent or deliberate act
Where an owner of land or a person they have allowed on their property damages a fence, the owner must restore the dividing fence to a reasonable standard. They must take into consideration the state of the fence before the damage occurred. If the owner does not restore the fence, then the adjoining owner can serve a notice to contribute for fencing work to ensure their contribution or, if appropriate, carry out urgent fencing work.
Please note: The information provided is a general guide to the key changes in the Act. The resolution of each neighbourhood situation depends on its own unique circumstances. This information provides a general guide only. Legal advice should be sought if in doubt about legal rights, visit the Queensland Law Society to find a solicitor in your local community. The best policy is to try to seek an amicable agreement with a neighbour so as to avoid any possibility of a legal dispute and keep your neighbourly relations intact.