There is a saying that good fences make good neighbours. However, obtaining a good fence may cause neighbours to fall into dispute.
In Queensland, disputes of this kind are covered by the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (“the Act”). Under the Act, neighbours have a general obligation to contribute equally to maintaining a ‘sufficient dividing fence’.
The Act defines a dividing fence as being a fence which separates the land of adjoining owners, constructed on a common boundary. A fence includes a structure, ditch or embankment, a hedge or similar vegetative barrier, a gate, cattle grid, a water course or a foundation built for the maintenance of a fence. A fence does not include a retaining wall or a part of a house, garage or other building.
Disputes over dividing fences may arise in situations where a new dividing fence is proposed by a neighbour, or an existing dividing fence is damaged and requires repair. These situations involve what is defined as ‘fencing work’ under the Act.
It will likely always be best to resolve potential disputes informally between neighbours, by agreement. However, should this fail, the Act provides a process which must be followed to resolve disputes.
If a neighbour is refusing to contribute to fencing work, you must first give them notice that you intend to have fencing work done and that they will be required to contribute equally to it. Your notice must state:-
- a description of the land on which the fencing work is proposed to be carried out and where on the land the work is going to occur;
- the type of fencing work proposed to be carried out; and
- the estimated cost of the fencing work to be carried out including the cost of labour and materials together with a copy of a quote displaying these costs.
The notice must also be in the approved form, available here.
Generally, until neighbours have agreed on the proposed fencing work to be carried out and their contribution to the costs, neither neighbour can go ahead with the fencing work.
Where building work is urgent, you can go ahead with building work immediately and then ask a neighbour to contribute later on. Asking a neighbour to contribute will also require a notice to be given.
If your neighbour does not agree to the fencing work proposed within one (1) month of giving them the notice, you will then be able to apply to QCAT for an Order allowing you to go ahead with the fencing work. An application to QCAT must be brought within two (2) months from when the notice was first given.
