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 neighbor’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 neighbor conducts unauthorized construction or demolition 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.
You can apply to QCAT to resolve either dispute type using the application form at the bottom of this page.
What if proposed fencing work relates 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 finalize 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.
How do I make an application about a dividing fence dispute?
1. Before you apply to QCAT
You should try and resolve your dispute directly with the other party by contacting them, holding a face-to-face meeting and issuing a notice to contribute for fencing work. For more information about avoiding and resolving dividing fence dispute, please return to the top of this page.
If you are unable to reach a satisfactory outcome informally you can apply to QCAT as set out below to resolve your dispute.
Before you apply, you must give your neighbour a notice to contribute for fencing work or you cannot begin the QCAT dispute resolution process. Please ensure you have done this following any relevant timeframes as set out in process information above, or your application may be dismissed by QCAT.
2. Correctly name the parties to the dispute
If you proceed with making an application to QCAT, the applicant and respondent must be named correctly. If the party is not an individual then you must use the precise/exact company name, a business name (whether it is registered or not, including real estate agencies), or the name of a State agency or department.
To ensure that you are taking action against the right organisation you MUST include the correct ACN/ABN for the company or business name. If you do not correctly name a party you may not be able to enforce any order made against them if you succeed in your claim. You can find more information on identifying and naming the parties here or contact the Australian Securities and Investment Commission (ASIC) for business name and company information here (a search fee may be charged). (LINK)
If your neighbour is not a company/business and not the owner of the property, in certain circumstances you may obtain the correct property owner’s name by conducting a title search through Titles Queensland at www.titlesqld.com.au or by calling them on (07) 3497 3479.
3. Complete and lodge online
QCAT now offers an online portal for you to securely file applications, referrals or documents electronically, view, manage and respond to your residential tenancy case. This fully-digital case management system makes filing and managing your case easier and more accessible by allowing you to:
- view case information and documents 24 hours a day, 7 days a week; access via desktop, laptop, mobile phone, and tablet
- receive case updates and notifications in real time
- lodge documents any time on any day of the week.
| QCase Online portal | https://case.courts.qld.gov.au/ |
4. Complete and lodge this form manually
If you cannot access the online portal, you can complete the application for dividing fence disputes listed below. Carefully read the form instructions, answer each question and tick an appropriate box when prompted.
When you apply you must ensure:
- You attach a copy of either:
- the notice to contribute for non-urgent fencing work with appropriate quote(s) attached
- the notice to contribute for urgent fencing work with appropriate quote(s) attached; or
- the notice of proposed fencing work for a swimming pool barrier with appropriate quote(s) attached
If the relevant form and quote has not been served, your application may be dismissed and your dispute may not be able to be determined until the form and quote has been given to your neighbour (served).
When you apply you must also ensure:
- The other party’s name, address, email and all other contact information is included. You can name more than one applicant or respondent in an application. If there is more than one, then everyone MUST be named. If there is not enough space to include additional parties, you can attach the contact details (name and address details) on a separate sheet of paper to the application
- The outcomes you are seeking are clearly included
- you include a plan showing the adjoining properties and where the proposed fencing work will be done
- you include photos of fences most commonly found in the neighbourhood
- you include photos of the tree/s that will be affected by the fencing work (if applicable)
- you include copies of all relevant documents, including but not limited to invoices, receipts and colour copies of photographs
When filing an application, you are required to file the application and supporting material along with three copies, plus one extra copy for every additional party named in the dispute, in one of the following ways:
| In person or via mail to your local Magistrates Court | Click here to find a list of Queensland Magistrates Courts. |
|---|---|
| In person at the Brisbane registry | Queensland Civil and Administrative Tribunal Floor 11, 259 Queen Street Brisbane Qld 4000 |
| Mail to the Brisbane registry | Queensland Civil and Administrative Tribunal GPO Box 1639 Brisbane Qld 4001 |
* Please note that if the application is posted to the Brisbane registry, it will be heard and determined in Brisbane.
You are required to pay a fee for this application. Minor civil dispute filing fees are based on a sliding scale of how much is being claimed. You must pay the appropriate fee at the time of lodgement – (Credit card authorisation form for mail payments)
You can apply for a waiver of fees by reason of financial hardship by completing a Form 49 – Application for waiver or reduction of fees by reason of financial hardship. Applicants must meet the relevant eligibility criteria.
| Form 53 – Application for a minor civil dispute – dividing fences | PDF File(833.3 KB) |
5. Giving your application to the other parties to the dispute
In dividing fence disputes, you are required to serve your application on the other parties to the dispute. QCAT will provide a sealed copy of your application and any attachments to you after the application is filed and accepted. You then have 7 days to serve a sealed copy of the application and attachments on the other parties to the dispute.
If your application is to prevent the respondent from doing unauthorised fencing work in the future, you need to give them a copy at least one (1) day before the application is heard.
If your application is about unauthorised fencing work that the respondent has already done, you need to give them a copy at least three (3) days before the application is heard.
You can serve the application personally, by post or use the services of a Magistrates Court bailiff, commercial agent or process server.
Visit this page for further information on service requirements.
Once the respondent has been served, the person who served the applicant (could be you, a bailiff, or another person) must complete an affidavit of service and file this with QCAT. An affidavit is a statement sworn under oath/affirmation in the presence of a commissioner of declarations, justice of the peace or a lawyer. The affidavit is required to prove the application has been given to the respondent. You do not need to give a copy to the respondent.
| Form 9 – Affidavit of service | PDF File(520.4 KB) |
The purpose of this form is to prove your application has been served on all other parties. This form must be witnessed by a Justice of the Peace.
6. If you are having difficulty personally serving the respondent
If you are having difficulty personally serving the respondent and require permission to serve via substituted service or require an extension of the 90 day time limit for service, you will need to complete the application to extend or shorten a time limit or for waiver of compliance with procedural requirement below. This application will then be considered by a QCAT decision-maker, and you will be advised of the outcome.
| Form 42 – Application to extend or shorten a time limit or for waiver of compliance with procedural requirement | PDF File(738.1 KB) Apply Online |
The purpose of this form is to ask QCAT for permission to make your application outside the 28 day or other statutory review timeframe.
7. What happens next?
Once QCAT has accepted your application, you will be provided with a case number to keep track of your case.
You can find out what happens after you apply.
***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
