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 diving 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 Neighbours.
A dividing fence is owned equally by the adjoining Neighbours if it is built on the common boundary line. However, a fence or part of a fence built on one Neighbour’s land is owned by that Neighbour, even if the other Neighbour 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 wish 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 e.g. 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 Neighborhood Disputes (Dividing Fences and Trees) Act 2011 (the Act) sets out the responsibilities relating to dividing fences between neighboring 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 neighborhood relationships. To avoid dividing fence disputes and keep the peace in your neighborhood 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
Try to resolve the dispute informally
What is the QCAT dividing fence dispute process?
It is always best to work through any problems about your fence directly with your neighbour. This will be quicker, cheaper and less stressful than taking legal action.
When a dividing fence dispute arises, you can:
- apply to QCAT about a minor civil dispute – about dividing fences (QCAT hears dividing fence disputes which are valued up to and including $25,000 (excluding interest). If your dispute is about a dividing fence that is part of a pool barrier, the amount in dispute is unlimited)
- apply to QCAT about a minor civil dispute – about a debt (If your dispute relates to recovering a debt for fencing work based on an agreed amount (up to $25,000), your dispute may be a minor debt. Visit minor debt disputes for more information on the minor debt application process)
Below you can learn about the QCAT dividing fence dispute process and key information you need to know when you apply.
What do I need to do before making an application to QCAT about a dividing fence dispute?
If you have decided to make an application to QCAT to resolve your fence dispute you need to do the following before making an application. You need to:
- give your neighbour a notice to contribute for fencing work (please note you cannot apply to QCAT or the Magistrates Court to resolve your dividing fence dispute unless you have delivered (served) a notice to contribute to your neighbour)
If your Neighbour then refuses to contribute for fencing work, challenges the cost or disagrees with the type of fence or repairs, you must not go ahead and build or repair the fence.
If, within 1 month after the notice is given, the adjoining owners have not agreed about the proposed fencing work to be carried out and their contributions to the proposed fencing work, either adjoining owner may, within 2 months after the notice is given, apply to QCAT to resolve a dispute using the application form at the bottom of this page.
If you have started to construct or repair your fence without your Neighbour’s agreement or authorization through a QCAT order, you may wish to seek legal advice about your options.
What if I need urgent work done to a dividing fence?
If circumstances arise where urgent fencing work is required due to all or part of a dividing fence being damaged or destroyed, you can carry out the urgent works and give your neighbour a notice to contribute for urgent fencing work as soon as possible after that. You must give your neighbour a copy of this notice before making an application to QCAT.
If, within 1 month after the notice is given, the adjoining owners have not agreed about their contributions to carrying out the fencing work, either adjoining owner may, within 2 months after the notice is given, apply to QCAT to resolve a dispute using the application form at the bottom of this page.
What if my Neighbour conducts unauthorised construction or demolition work to a dividing fence?
If you believe that an adjoining owner is about to commence or has commenced fencing work to a dividing fence that you have not authorised, you can apply to QCAT for orders about the works.
Making an application to QCAT before unauthorised construction or demolition
If an owner believes on reasonable grounds that an adjoining owner intends to construct or demolish a dividing fence without authorisation in the future, the owner may apply to QCAT for an order preventing the adjoining owner from constructing or demolishing the dividing fence.
The owner must give the adjoining owner a copy of the application at least 1 day before the application is heard by QCAT (if the day before falls on a day that is not a business day, the earliest next business day prior to the hearing day).
QCAT may make an order preventing the adjoining owner from constructing or demolishing a dividing fence.
Making an application to QCAT after unauthorised construction or demolition
If an owner has already constructed or demolished a dividing fence without authorisation, the adjoining owner may apply to QCAT for an order requiring the owner to remove, modify or rectify the fence.
The adjoining owner must give the owner a copy of the application at least 3 days before the application is heard by QCAT.
QCAT may make an order requiring the owner to:
- remove, modify or rectify the fence; and
- bear the costs of the removal, modification or rectification.
What if proposed fencing work related to a swimming pool barrier?
If a person is seeking to commence fencing work relating to any part of a dividing fence that involves a swimming pool, a notice of proposed fencing work for a swimming pool barrier can be used. There are strict timeframes that a person must follow as set out in the notice form that must be complied with. You must give your neighbour a copy of this before making an application to QCAT.
If a dispute arises about fencing work relating to a dividing fence where it involves a pool barrier, once notice is given, either party can apply to QCAT to resolve a dispute using the application form at the bottom of this page.
Can QCAT assist with retaining wall disputes?
No. Retaining walls serve a different purpose than fences. They are engineered to support built up or excavated earth. Retaining walls are not normally a matter of joint responsibility for neighbours because a retaining wall is usually of more benefit to one neighbour, therefore equal contribution is unsuitable.
However, QCAT can make orders about carrying out fencing work that includes work on a retaining wall only if the repair of the fence is dependent on the work for the retaining wall. You can make an application about this at the bottom of the page.
In the event that your matter is not primarily a fencing dispute, you may wish to seek legal advice about your options.
How will your dispute be resolved at QCAT?
QCAT considers dividing fence dispute applications in two ways:
- if your claim amount is less than $1,500, your matter will be listed for a hearing, without the need for mediation
- if your claim amount is greater than $1,500, your matter will be listed for a mediation, and if not resolved, listed for a hearing after
Mediation is a timely dispute resolution service in which a mediator assists parties to discuss their differences and find a solution that suits all parties to the dispute.
The mediator acts as an independent third party and guides the participants through a structured mediation process. The mediator is not there to make a decision about who is right or wrong, but rather, assists both parties in reaching an agreement.
If the parties do reach an agreement, the mediator may record the terms of the agreement in writing and each party will then sign the mediation agreement and receive a copy.
The parties may request that the agreement be made an order of QCAT.
If no agreement is reached at mediation, the matter will be set down for hearing on a different day.
What orders can QCAT make about dividing fences?
QCAT can decide on issues and make orders regarding cost contributions, fence alignment and type, work timing and stopping or starting construction or demolition.
QCAT can decide:
- which of two or more fences on a boundary is the dividing fence
- whether a fence is a sufficient dividing fence
- the line on which fence work will be carried out (if not the common boundary)
- the kind of fencing work to be undertaken and who pays what share
- timing of work
- any other related work eg retaining wall works or drainage works which are necessary for the dividing fence repairs or construction
QCAT may consider several factors in determining fence orders including:
- existing or previously existing dividing fences
- what the lands are used for
- types of dividing fences used in the neighbourhood
- whether the fence can be maintained (physically and financially)
- any obligations from development approvals
- any written agreements between the owners.
If you are the respondent in a dividing fence dispute
If you have received an application about a dividing fence dispute and you are named as the respondent, it is important to understand the process you need to follow. You must:
- read the above information about resolving dividing fence disputes informally
- file your written submissions and any supporting documents in response to the application or, file a counter application if required
- follow the link below to understand the QCAT process and how the case will be progressed to a final hearing
Frequently asked questions about dividing fences
General
What if my neighbour has damaged the dividing fence?
If a neighbour attaches things like carports, clotheslines or a shade sail without your permission, you can apply to QCAT for an order to restore the fence.
What if my neighbour wants a dividing fence that exceeds requirements? Do I have to pay more?
No. If your neighbour wants a more expensive fence than one which would meet requirements to be a sufficient dividing fence, they are liable for the extra costs and maintenance.
Fences and the law
What is the Neighbourhood Dispute (Dividing Fences and Trees) Act 2011?
The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 provides rules about each neighbour’s responsibility for dividing fences and for trees so they can resolve issues early without a dispute arising. Should this be unsuccessful, the legislation aims to facilitate dispute resolution.
Does the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 apply to all fence disputes?
No. The laws do not apply to pool fencing, state plantation forests, cropping land greater than 0.5 hectare or unallocated state lands. The laws do not override covenants, non-QCAT agreements, body corporate by-laws, easement rights or retaining wall laws.
Who owns a dividing fence?
A dividing fence is owned equally by the adjoining neighbours if it is built on the common boundary line. However, a fence or part of a fence built on one neighbour’s land is owned by that neighbour, even if the other neighbour contributed to the cost of construction of the fence.
Who is responsible for a dividing fence?
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.
Are retaining walls covered by the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011?
No. Retaining walls are not defined as part of fences because they usually benefit one neighbour more than another, therefore equal contribution is unsuitable. However, QCAT can make orders about carrying out fencing work that includes work on a retaining wall only if the repair of the fence is dependent on the work for the retaining wall.
In the event that your matter is not primarily a fencing dispute, you may wish to seek legal advice about your options.
Do neighbouring properties have to have a dividing fence?
There should be a dividing fence if one of the neighbours requests one, but some adjoining land owners are excluded eg parks, plantations and cropping land.
Does the law only apply to residential areas?
No, it also applies to urban and rural lands with some differences regarding definitions and the application of certain sections of the law.
The law does not apply to agricultural lands greater than 0.5 hectare in area, parks, stock routes, plantation licensees and unallocated state land.
Notices to contribute to fencing
What is in a Notice to contribute?
A Notice to contribute is a form you can complete and give to your neighbour to request their contribution to repairing or constructing a dividing fence. The form contains specific information and must include at least one written quote. See the Queensland Government’s website for more information.
What can fencing work contributions include?
You can seek a contribution for any fencing work including surveying, construction, demolition associated with replacement fencing, repair or maintenance.
What if I have used a Notice to contribute and there is no agreement?
If there is no agreement on the Notice to contribute within one month after it has been given, you can contact a Dispute Resolution Centre to receive free assistance in resolving the issue through mediation. You must note however that any application to QCAT must be made within two (2) months after the notice is given.
How long may QCAT take to finalise your matter?
The time for QCAT to finalise a case may vary depending on QCAT’s workload and the number of steps to be completed by parties as required by QCAT to resolve the dispute. The current average time to consider a minor debt dispute and finalise your case can be found on our expected timeframes page.
***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
