Avoiding Neighbourhood Disputes Regarding Dividing Fences

Disputes between neighbours are common and at the root of a neighbourhood dispute will often be a dividing fence. Although an issue regarding a dividing fence may not make air time on an episode of Desperate House Wives, a dispute can cause unease and disharmony within your neighbourhood.

The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (‘the Act’) encourages neighbours to attempt to resolve a dividing fence issue informally by reaching a mutual agreement. However, if neighbours are unable to reach an agreement and resolve a dividing fence issue, the dispute may be taken to the Queensland Civil and Administrative Tribunal (‘QCAT’) for resolution.

The Act requires a sufficient dividing fence be constructed between two parcels of land, if an adjoining owner requests a dividing fence. A dividing fence is normally constructed on the common boundary line between two properties, although it may be built off the boundary line when the physical features of the land prevent it.

Where a fence is built on the common boundary line, a dividing fence is owned equally by the adjoining neighbours. As both neighbours own the fence, both must contribute equally to the building and maintaining of a sufficient dividing fence.

What is a fence?

A fence does not just mean white picket posts. It is anything that encloses an area of land including a ditch, embankment, a hedge or even a creek. It does not have to extend along the whole boundary and also includes gates, cattle grids, or anything else that forms part of
the enclosure.

A fence does not include a retaining wall, or a wall that forms part of a house,garage or other building and those disputes are therefore dealt with differently by QCAT. Owners are able to privately reach an agreement to contribute to the construction of such a wall between two properties.

Is there a process for seeking contribution from your neighbour?

Yes. The Act sets out the requirements to be followed when requesting a neighbour contribute to the construction of a dividing fence. In accordance with the Act, a Form 2 – ‘Notice to Contribute for Fencing Work’(‘the Notice’) must be issued to your neighbour prior to the commencement of the construction of the fence. The Notice must provide information on the proposed area of construction of the dividing fence, the type of fencing work to be carried out, and an estimated cost of the fencing work to be carried out including the cost of labour and materials.

In the event your neighbour agrees to the contribution proportion specified in the Notice, they must complete and return the ‘Agreement to Contribute to Fencing Work’ attached to the Notice and return it to you within one month after the Notice is given. If an agreement as to the contribution proportion is not reached you are able to initiate proceedings in QCAT within two months after the Notice is given for an order about carrying out fencing work and the way in which contributions for the fencing work are to be apportioned.

It is important to remember that a dispute between neighboursis not a glamorous affair, despite the misconception created by popular television ratings. By approaching the situation correctly and following some key steps, you will be able to ensure you and your neighbour are both happy with the construction and maintenance of your dividing fence, work through problems together, and, you may be able to avoid legal disputes which may result in additional costs and time. If you require advice regarding your right to receive contribution from
your neighbour, or if you are liable to contribute to the construction of a dividing fence please contact our office for an appointment.