By Belinda Pinnow, Solicitor
Neighbourhood disputes typically result from arise over the ongoing maintenance and financial expenses required for the upkeep of a dividing fence. Fencing disputes are covered by the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the Act).
What is a fence?
Generally speaking, a ‘dividing fence’ is a ‘fence’ (as defined above) which separates two adjoining parcels of land (called ‘lots’).
For the purposes of the Act, a ‘fence’ is a structure, ditch, embankment, hedge or similar vegetative barrier enclosing the land, whether or not it is continuous and extends the entire boundary separating the land of adjoining lot owners. The definition is wide and includes: a gate, cattle grid or apparatus necessary for the operation of the fence; a natural or artificial watercourse separating the land of the adjoining lot owners; and a foundation or support built solely for the support and maintenance of the fence.
A retaining wall is not a fence for the purposes of the Act as it serves a different purpose and is usually of more benefit to one adjoining lot owner.
Adjoining lot owners (i.e. neighbours) responsibilities
The primary position is, that adjoining lot owners are each liable to contribute equally to the carrying out of fencing work for a sufficient dividing fence. Where one lot owner seeks to build a dividing fence to a standard greater than that contemplated by the Act that lot owner is liable for any additional costs over and above what a standard fence would cost to build. A similar position applies to ongoing maintenance.
The main exception to this is where the dividing fence is damaged or destroyed by a negligent or deliberate act or omission of either a lot owner or a person who has entered the lot owner’s land with the lot owner’s consent; the responsibility rests solely with that lot owner.
Dispute resolution process
The Act requires that adjoining lot owners attempt to resolve disputes themselves. If this is not possible, the Act prescribes a process for applying to the Queensland Civil and Administrative Tribunal (QCAT) for resolution of a dispute. The first step is to serve a notice on the other adjoining lot owner outlining the work to be completed, the proportions, and providing a written quote for the work. If no agreement is reached within one (1) month of the notice being given, either lot owner may apply to QCAT for an order within two (2) months of the notice being given.
A similar process applies in the event that a lot owner has carried out urgent fencing work i.e. where all or part of a dividing fence is damaged or destroyed and it is not feasible to comply with the above notice requirements. Where one adjoining lot owner has made payment for the urgent fencing work, that lot owner may serve on the other lot owner a notice stating: a description of the land on which the fencing work was carried out; the reason urgent fencing work was required; the type of fencing work carried out; and cost incurred for the fencing work and a receipt for the cost. If the adjoining lot owners are unable to reach an agreement within one (1) month of the notice being given either adjoining owner may, within two (2) months of the notice being given, apply to QCAT for an order.
QCAT will then hear and make an appropriate order based on the legislation, which is then binding on both adjoining lot owners.
The required notices can be found here, along with information about QCAT in general: http://www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings/
If you have any questions about this article or any other legal matters, please contact McNamara and Associates on 1300 574 974.