Learn about Dividing Fence Disputes and the Application Process
A dividing fence dispute is a disagreement between neighbours about:
- a fence, or a proposed fence, on the common boundary of adjoining lands; or
- a dividing fence that forms, or will form in the future, part of a pool barrier.
It does not include a dispute about a retaining wall or a wall that is part of a house or garage.
You can apply to QCAT if you cannot agree on construction or repair of a dividing fence. You can also apply to QCAT about other types of fence disputes including removal of an existing fence or compensation for damage to a fence.
What do you need to know about dividing fences?
Before you begin any type of resolution process relating to dividing fences, it is important to understand what a dividing fence is and the steps you should take if you are considering building, altering or replacing a dividing fence.
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, 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 neighbors.
A dividing fence is owned equally by the adjoining neighbors if it is built on the common boundary line. However, a fence or part of a fence built on one neighbor’s land is owned by that neighbor, even if the other neighbor contributed to the cost of construction of the fence.
A retaining wall or a wall that is part of a house or garage is not a fence.
What is fencing work?
Fencing work for a dividing fence, means:
- the design, construction, modification, replacement, removal, repair or maintenance of the whole or part of the dividing fence; and
- the surveying or preparation of land, including the trimming, lopping or removal of vegetation, along or on either side of the common boundary of adjoining lands for the purpose of those actions mentioned above. This includes:
- the planting, replanting and maintenance of a hedge or similar vegetative barrier as the dividing fence; and
- the cleaning, deepening, enlargement or alteration of a ditch, embankment or watercourse that serves as the dividing fence; and
- obtaining an approval required for fencing work.
What should I do if I want to commence fencing work?
The fence between your property and your neighbour’s property is owned by both of you. If you want to build or replace a dividing fence, or you are planning to do any work that could alter or damage your existing dividing fence, you should consult your neighbour before you start.
Generally, neighbours must contribute equally to building and maintaining a dividing fence. Neither neighbour should attach things to the fence which may damage or alter it, unless agreed to by the adjoining neighbour eg. clotheslines, car ports, shade sails.
Many people enter into informal agreements regarding contributions for dividing fences without the need to make things more formal.
However, if you wish to make your agreement more formal, after you have consulted with your neighbour about it face-to-face, you should give them a letter telling them about the fence, how it will be built and the estimated cost—including their contribution. This is called a notice to contribute for fencing work.
Your notice to contribute for fencing work should include information:
- specifying the common boundary to be fenced;
- specifying the kind of fence you propose building; and
- outlining a proposal for the fence including an estimate of the cost, the neighbour’s proposed contribution and the method of construction. At least one written quotation for the work must be supplied with the notice, however, as a matter of courtesy, supplying two written quotes is desirable.
The following tips may also assist:
- Arrange a convenient time to meet and discuss the dividing fence
- Meet with your neighbour
- Explain the problem
- Let your neighbour tell their side of the story
- Meet again in the future to finalise the agreement
What should I do if a dispute arises about a dividing fence?
Dividing fences are a common cause of disputes between neighbours. The below information will assist you to understand the responsibilities of neighbours relating to dividing fences and steps you can take to avoid a dispute escalating further.
Try to avoid a fence dispute
One of the best ways to avoid problems with neighbours over a dividing fence is to know your responsibilities and how to avoid disputes.
What are the responsibilities of neighbours relating to dividing fences?
The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (the Act) sets out the responsibilities relating to dividing fences between neighbouring properties including giving your neighbour a notice to contribute for fencing work with quotes to avoid a dispute.
To assist, the Queensland Government website has detailed information, tips and guides to help you understand the relevant legislation and responsibilities for dividing fences. The website includes information to help you understand key definitions under the Act and other useful information.
To access information on the responsibilities of a fence owner please follow the link here.
How can neighbours avoid dividing fence disputes?
If a dispute has arisen it is always best to resolve any problems about the dividing fence directly with your neighbour. Resolving disputes with your neighbour will be quicker and cheaper than taking legal action and may avoid damaging neighbourhood relationships. To avoid dividing fence disputes and keep the peace in your neighbourhood you should:
- know your legal responsibilities about a dividing fence (see above); and
- seek help on how to avoid dividing fence disputes via the Queensland Government website
To access information on how to avoid a dividing fence dispute please follow the link here.
Try to resolve the dispute informally
Dividing fence disputes are often about:
- the building or upkeep of a fence, including the cost
- who should pay and how much; and
- the type or height of the fence; particularly when one neighbour wants a fence for a specific purpose such as keeping in a dog.
Taking the following steps can save you time and money when a dispute about these issues arise.
1. Try to resolve a dividing fence dispute informally
Generally, before you make an application to QCAT to resolve a dividing fence dispute, parties should attempt to resolve the dispute informally themselves.
2. Try to resolve the tree dispute through guided mediation
If you cannot resolve your dispute informally, you may wish to contact a Dispute Resolution Centre to discuss free mediation options before you take any legal action. They will guide you through a structured mediation process with the aim for the neighbours to reach agreement.
3. If you cannot resolve the dispute, consider making a formal application
If you cannot resolve a dividing fence dispute, you can make an application in the following ways:
- apply to the Magistrates Court to resolve your dispute; or
- apply to QCAT about a minor civil dispute – about dividing fences; or
- apply to QCAT about a minor civil dispute – about a debt.
***Disclaimer – The above information was taken from the Queensland Civil and Administrative Tribunal website as accurate in October 2024. If any changes are made by the court from that date they may not be reflected in this post