Laws affecting this topic have changed
From 1 November 2011, the Neighbourhood Disputes Resolution Act 2011 deals with laws about trees and dividing fences in Queensland. This replaces the Dividing Fences Act.
More information regarding the new laws is available from the Department of Justice and Attorney-General website. Please refer to their website if you need further assistance.
The law that deals with the building or the repairing of dividing fences in Queensland is the Neighbourhood Disputes Resolution Act 2011. The law applies to city and rural land, although there are some exceptions in relation to agricultural land of more than half a hectare. Local council laws and building codes may also apply in your area.
Fences
What things must I consider before building or replacing a fence?
Local councils have local laws that you may need to stick to. These include how high the fence may be built, does it go along with the conditions of the environment, is the fence part of a retaining wall or does the fence have water run off issues. If you have a swimming pool you will also need to stick to local laws and safety standards. Speak to your local council about these requirements.
Can I build a new fence on my land, away from the boundary?
Yes, you can build the new fence inside your boundary (eg a couple of centimetres on your land) and at your expense and you will not need the agreement of the owner of adjoining land to do so.
In some circumstances, it may still be considered a dividing fence if the fence could not be built on the actual boundary because of some feature of the land, and the fence is as near as possible to the boundary. In these circumstances, you will need to get the consent of the owner of adjoining land, or follow the process described below, otherwise the owner of adjoining land may be able to get an order from the Queensland Civil and Administrative Tribunal (QCAT) to have the fence demolished.
If you do build the fence on your land (away from the boundary), the law may allow the owner of adjoining land to make a claim for ownership of the land on their side of the fence, if they have occupied that land for a length of time. This law is known as 'adverse possession', and you should get legal advice from a private solicitor. This law does not apply if you and the owner of adjoining land agreed to build the fence away from the boundary, or if you have an order from QCAT that says the fence should be built away from the boundary.
What should I do if I want to build a new fence on the boundary?
Before the fence is built:
- you should discuss your plans with the owner of adjoining land. If you don't know who the owner of the property is, you may be able to get this information from your local council or, for a fee, from the Department of Environment and Resource Management (Titles Registry).
- you should reach an agreement about the type of fence, the cost of the fence and the boundary to be fenced before you start work.
- you can make a private agreement, but it is best to get any agreement in writing because you can then enforce the agreement.
How can I make the owner of adjoining land share the cost of building the fence?
Before you begin building the fence, you should give the owner of adjoining land a written notice to fence.
The notice to fence must be on the approved form. It must have information about where the fence will be built (the boundary), the kind of fence you want to build, a plan for the fence, including the cost of the fence, how the cost will be paid, and how the work on the fence will be done. It is best to get two quotes about the costs.
You must give the owner of adjoining land (or an adult at the owner of adjoining land's residence) a copy of the notice to fence. You can do this by:
- sending a copy of the notice by post to the place of work or residence of the owner of adjoining land, or
- leaving the notice at the residence or workplace of the owner of adjoining land in a position where it is reasonably likely to come to the person's notice.
You should keep a copy of the notice for your records.
The owner of adjoining land then has one month to agree. If there is an agreement it becomes a binding agreement (contract).
What happens if I do not give the owner of adjoining land a notice to fence?
If you build a fence without giving the owner of adjoining land a notice to fence, you cannot force the owner of adjoining land to make a payment to the cost of the fence unless they had previously agreed to do so. You may not need to give a notice for urgent fencing work. Get legal advice if you believe the work is urgent.
Also, the owner of adjoining land may be able to get an order to have the fence demolished. See If I pay for all of the fence, do I need the permission of the owner of the adjoining land?
If I pay for all of the fence, do I need the permission of the owner of adjoining land?
Yes, you do need the permission of the owner of adjoining land, or an order from QCAT (see below), unless it is for urgent fencing work. If you do construct a fence on the boundary without the permission of the owner of adjoining land and the owner of adjoining land objects, the owner of adjoining land may serve a notice requiring you to not proceed with construction of the fence, or demolish the fence if it has already been built. If you don't comply with this notice, the owner of adjoining land may apply to QCAT for an order that stops you from building the fence, or that you demolish the fence if it has already been built.
What if there is no agreement about the fence to be built? What is a standard fence?
If there is no agreement you should try and reach agreement by attending mediation through the Dispute Resolution Centres. If mediation fails you can go to QCAT.
QCAT can make orders about the type of fence to be built (usually the type of fence which is standard for the area), who should construct it, the amount to be paid by each neighbour (usually shared equally for a standard fence), and where and when the fence is to be built.
A standard fence is a fence which is usual for your local area. If you have a dispute about what is a standard fence in your area, it would be useful for you to bring in photos to your hearing.
If there is still no agreement between you and the owner of adjoining land, then the final decision about what a standard fence is will be made by QCAT.
QCAT decisions may be appealed in limited circumstances.
You cannot apply to QCAT to resolve your dividing fence dispute unless you served a written notice to fence on the owner of adjoining land, except in the case of urgent fencing work.
If the QCAT order is not followed, the person wanting the fence built can build it and then take court action to recover the cost from the owner of adjoining land.
The fence has been built, now the owner of adjoining land won't pay. How can I get them to pay the costs as agreed?
If there is a dispute between you and the owner of adjoining land about payment, you should try to come to an agreement first by mediation. The Queensland government's Dispute Resolution Centres may assist you with this process.
If you cannot agree at mediation and the owner of adjoining land does not pay towards the cost of the fence, you can claim in QCAT.
How can I make the owner of adjoining land share the cost of repairing an existing fence?
The process is the same whether you want to have a fence built where no fence existed before, to replace an existing fence, or to repair a fence.
If your fence cannot be repaired or the cost would be more than the cost of a new fence, then the rules are the same as building a new fence. The cost of demolishing the old fence should also be included in the quotes.
You should try mediation first to settle the dispute, or if there is no agreement you may apply to QCAT. You cannot apply to QCAT to resolve your dividing fence dispute unless you served a written notice to fence on the owner of adjoining land, except in the case of urgent fencing work.
Who has to pay for the cost of repairing a fence damaged by accident or by negligence?
If you were responsible for the damage to the fence by your negligence then you will have to pay for the cost of repairing the fence. You should get legal advice about your options.
If the fence is damaged by accident or by negligence of a person other than an owner (or a person on the land with the owner's consent), the same process applies as in the case of repair for any other reason. See How can I make the owner of adjoining land share the cost of repairing an existing fence?
What do I do if I don’t think the fence needs to be replaced and I am served with a notice to fence?
If you don’t agree, you need to tell the owner of adjoining land in writing. If you and the owner of adjoining land are still in dispute, you can try mediation to resolve it. If you still cannot agree, you may need to go to the QCAT and have the tribunal decide the matter.
Who can come on my property when building or repairing a fence?
If you or the owner of adjoining land are building or repairing a fence according to the rules in the Neighbourhood Disputes Resolution Act 2011, then the person building or repairing the fence can enter your property or the property of the owner of adjoining land and do the work. If you are arranging the fencing work based on an agreement or by an order from QCAT, then you must give the owner of adjoining land a notice advising who will be entering the property of the owner of adjoining land to do the work, and when this will happen. You must give the owner of adjoining land this notice at least seven days before the work is to start.
The bordering property is owned by the government or a property developer. Do they have to pay towards the cost of the fence?
State and local Governments are bound by the Neighbourhood Disputes Resolution Act 2011. The commonwealth may be bound in some circumstances where the law allows for state laws to bind the government. Some types of land owned by government are not covered by the Act, such as public parks and state forest plantations. In some cases, you may be able to get a contribution. In other cases, such as public parks and state forests, you may have to pay the whole cost of the fence yourself. It's best to get information from the government who owns the land. For more information, see the Department of Justice and Attorney-General website.
Developers of land are bound by the law if they are the owners of the land being developed.
What are my responsibilities for building or repairing pool fences?
Local councils require pools to be fenced. If you own a pool, the cost of building a pool fence is usually paid by you.
If the pool fence is a dividing fence or will be part of the dividing fence, get legal advice. The Neighbourhood Disputes Resolution Act 2011 does not apply to regulated pool fences as defined by the Building Act 1975.
Retaining walls
I need to get some help with my rights concerning retaining walls, what should I do?
The law about retaining walls is complex. You should get private legal advice.