Disputes between neighbours are commonplace and will often arise out of a disagreement regarding a dividing fence along an adjoining boundary. Although it is not a glamorous area of law, the legislation is critical in creating and maintaining a framework for neighbours to reach mutually beneficial agreements.
The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (the “Act”) sets out the steps neighbours may take to reach an agreement regarding a dividing fence or the location of a boundary. Neighbours are encouraged to communicate with each other and are provided with options for the dividing of funds should fencing work be required between their respective properties.
If a discussion with your neighbour regarding the need for a new or replacement fence does not reach a resolution, there are processes that allow notice to be given to your neighbour requesting that they contribute to fencing work.
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 ordinarily constructed on the adjoining boundary between two properties. In some cases, a dividing fence may be built off the boundary line when physical features of the land are obstructions.
Where a fence is built on the adjoining boundary, a dividing fence is owned equally by the adjoining neighbours. As both neighbours own the fence, both parties must make equal contributions to the construction and maintenance of a sufficient dividing fence.
What constitutes a “fence” and “fencing work”?
According to the Act, a fence does not strictly have to be posts and palings. It can be any structure, ditch, embankment, or hedge that encloses or borders on land. A fence also includes a gate or cattle grid, and natural or artificial watercourses separating adjoining parcels of land.
A retaining wall or a wall that makes up part of a house, garage, or other building fall outside the fence definition.
To parallel the broad definition of fence, fencing work does not simply mean the construction of a fence. It encompasses the design, construction, modification, replacement, removal, repair of maintenance of the whole or part of the dividing fence. Additionally, fencing work means the surveying or preparation of land, including the trimming lopping or removal of vegetation, along or on either side of an adjoining boundary in advance of the fence being established.
Maintaining a hedge or other vegetative barrier also falls within the scope for fencing work.
How do I get my neighbour to contribute?
If a conversation between neighbours does not result in an agreement being reached, the Act sets out the process for requesting a contribution from a neighbour. Form 2 “Notice to Contribute for Fencing Work” (the “Form”) is the relevant starting point. Details including the boundary to be fenced, the type of fencing work being proposed, and quote for the fencing work must be included with the Form. After it is filled out and signed, the Form needs to be served on the neighbour prior to any work being commenced.
The neighbour can accept the proposed fencing work and costs by completing the section of the Form entitled “Agreement to Contribute to Fencing Work” and returning it to the neighbour or the neighbour’s representative within one month after it is served.
If the neighbour disputes the location of the common boundary, s 40 of the Act has a prescribed process neighbours can follow to establish the correct location of the boundary and the costs distribution of employing a cadastral surveyor.
An agreement to contribute may not be reached by neighbour, so initiating proceedings in QCAT within two months of the Form being served can be pursued. The QCAT adjudicator can make an order in relation to how the costs for fencing work are to be apportioned.
Above all, it is to approach the situation with an open mind and be willing to negotiate with each other. If your differences of opinion are worked through together, unnecessary legal costs can be avoided, and a resolution will be achieved in an accelerated timeframe.
In the event that you require advice regarding your right to receive a contribution from your neighbour, or if you are liable to contribute to the construction of a dividing fence, please contract our offices for an appointment.