Neighbourhood disputes: Fences
Posted on June 20th, 2023
Some of us like chatting to our neighbours over the fence. For others, good fences make good neighbours. But what do you do when the fence dividing your property from your neighbours needs to be replaced? What if there is no fence but you decide one is needed?
As a first step, it is recommended to approach your neighbour and discuss whether a fence is needed or needs to be repaired and what type of fence would be built. Your neighbour may be thinking the same thing as you and an agreement can quickly be reached as to the type of fence and dividing the costs. If you are not comfortable approaching your neighbour in person you can write a letter and leave it in their mailbox. Allow a reasonable time for the neighbour to respond before moving to your next step.
As a rule, there should be an adequate dividing fence between neighbouring properties and the parties should equally share in the cost of the fence. However, there must first be agreement between the neighbours as to what is adequate. You cannot build or replace a fence without agreement from your neighbour and then expect them to pay half.
Disputes often arise because the neighbours have a different view as to what type of fence should be built. If you cannot reach an agreement with your neighbour, the Neighbourhood Disputes (Dividing Fences & Trees) Act 2011 (the Act) provides a mechanism to resolve the dispute.
First you need to serve your neighbour with a Notice to Contribute to Fencing Work. This form is available at www.justice.qld.gov.au. This form sets out what type of fence you suggest should be built, attaches quotes, and gives your neighbour one (1) month to respond. If your neighbour agrees they can sign and return their agreement as a part of the form.
If your neighbour does not respond, or does not agree, either of you can then file an application with QCAT for the Tribunal to decide what type of fence should be built and how the cost should be divided.
It is possible that QCAT will order a mediation prior to a hearing to see if the dispute can be resolved without the need for a formal hearing.
Whilst generally the cost should be divided equally, sometimes it is appropriate for one neighbour to contribute more than the other. For example, one neighbour might want a four-foot timber fence and the other a 6-foot colour bond fence. The Tribunal could decide that based on the existing fence and the other fences in the neighbourhood that the cheaper option is suitable, and each should pay half for the cheaper option. However, if the party wanting the more expensive option is willing to pay the extra, the more expensive fence can be built.
You should also be aware that neither party are supposed to attach anything to a dividing fence without the permission of the other. For example, you cannot attach a clothesline or hang plants on a dividing fence unless your neighbour agrees. If attaching something to the fence damages it, you could be liable to the whole cost of the repair or replacement.
If you are wishing to build or replace an existing fence or have received a Notice to Contribute to Fencing Work and are unsure how to respond, you should seek legal advice.