Disputes can arise over the placement, construction or circumstances of a fence. A dispute over fences can lead to a breakdown in the relationship between neighbours and give rise to claims for costs or compensation. Fox Piper is experienced in fence disputes and our property lawyers help you navigate any such matter.
Dividing fences can be a common source of issues between property owners. Scenarios can vary, but some of the most common types of fence disputes you could face and we can help to resolve include:
A sufficient dividing fence is defined as follows:
A dividing fence between 0.5m and 1.8m high and made substantially from either wood, timber, lattice, chain wire, metal panels, metal rods, bricks, rendered cement, concrete blocks, hedges or other vegetation barriers, or any other material of which a dividing fence is ordinarily constructed.
The dividing fence is sufficient to restrain livestock of the type grazing on each of the parcels of land.
Neighbours can agree between themselves as to what a sufficient dividing fence is, otherwise the Queensland Civil and Administrative Tribunal (QCAT) can make a decision on behalf of the owners.
Appropriate notice procedures must be followed and agreement must be attained from your neighbour. Otherwise a QCAT order is necessary. Building without permission can lead to orders to remove the fence at your cost. Inadequate or damaged fences may require replacement.
In addition, fence disputes that are not handled correctly can lead to breakdown in the relationship with your neighbour, leading to stress and confrontation.
Step 1
Provide us with details about your situation. We will assess to see how best we can help you. All enquiry submissions are confidential.
Step 2
Speak with a solicitor
Step 3
Post-consultation email
Fox Piper can provide advice on your legal rights and obligations, assist in drafting and serving formal notices, draft submissions and gather evidence, and help enforce any orders or agreements reached. We offer guidance to resolve your fencing dispute whilst trying to reduce conflict and animosity between neighbours.
Fox Piper can assist with your fencing dispute by advising you about your rights and obligations, communicate and negotiate with your neighbours, and when all else fails, draft legal documents, submissions and put together evidence to support a favourable outcome.
Fencing disputes are common and in most cases, we can avoid the need for court or other adjudication. Fence disputes can quickly escalate and damage neighbourly relationships. Our lawyers act as intermediaries, facilitating open communication and finding amicable solutions where possible to preserve harmony between neighbours.
Fox Piper has a proven record in effectively managing fence disputes throughout Queensland. Whether you’re responding to a neighbour’s actions or asserting your own property rights, we deliver strategic legal solutions.
We can provide advice on your legal rights and obligations, assist in drafting and serving formal notices, draft submissions and gather evidence, as well as to help enforce any orders or agreements reached. We offer guidance to resolve your fencing dispute whilst trying to reduce conflict and animosity between neighbours.
Tell us about your dispute, and our team will assess your enquiry and guide you on possible next steps. We’re here to help you navigate the process with clarity and confidence.
A single neighbour can request that a sufficient dividing fence be erected between two different adjoining parcels of land, with some exceptions. However, until the owners have agreed, or QCAT have made an order, neither owner may carry out fencing work except for urgent fencing work (which requires an existing fence to be damaged or destroyed, and limitations apply).
Different considerations may apply to:
You may not be able to ask for contributions for a dividing fence in the usual way for the above land. However, it is still often worth obtaining legal advice regarding contributions, and generally opening the lines of communication to see if an agreement can be reached with your neighbour.
Generally, neighbours must contribute equally to the building and maintaining of a sufficient dividing fence. However, a neighbour will only have to contribute to the costs of a sufficient dividing fence.
An adjoining owner who wants to carry out fencing work for a dividing fence to a standard greater than the standard for a sufficient dividing fence may approach their neighbour and agree to be liable for some or all of the additional cost of the improved fencing work. These negotiations must result in both neighbours agreeing, otherwise QCAT will need to be involved in making a decision.
QCAT may consider all the circumstances, including the following:
It is important to retain Fox Piper to ensure that you put on sufficient evidence and submissions to assist QCAT in making a favourable decision.
No, you must follow the notice procedures and get agreement from your neighbour or a QCAT order first. Building without permission can lead to orders to remove the fence at your cost. There may also be other issues such as trespass to property, criminal liability for damaging any existing fence, and other issues. It is critical that you seek legal advice to avoid these issues and ensure the parties have a clear understanding of what will occur and that there is a written agreement.
You can apply to QCAT to order the removal, modification or rectification of any unauthorised dividing fence construction by your neighbour. You may also wish to speak to Fox Piper about other civil remedies you may have, and the Queensland Police Service regarding potential criminal matters.
No. Further, QCAT generally does not handle disputes solely about retaining walls unless they are part of the fence’s construction or repair.
Fox Piper can assist separately regarding retaining walls.
If the fence is built on the boundary line, it is owned equally by both property owners, who must share the costs of repair and maintenance.
Generally, you can agree with your neighbour to build a dividing fence not on the boundary line without impacting the title or possession of land, however, there needs to be a high level of caution.
If there is no agreement, or not the right kind of agreement, there may be an issue of encroachment that could impact the ownership of your land. Unfortunately, QCAT does not have the jurisdiction to deal with encroachment.
Fox Piper can assist you in attempting to determine whether the location of the dividing fence is a problem regarding the potential ownership of land and represent you in the Supreme Court of Queensland should you need to protect your rights.
Pool fences are generally excluded, but you should seek legal advice about your specific circumstances.
Yes, but it is rare. Tenants may be liable for some or all of the cost of a dividing fence under long term leases with not less than 5 years remaining on the lease.
In some cases yes, but it is rare. Contact Fox Piper for advice.
A neighbour can demolish a fence on their land in most circumstances. However, if the fence is on the boundary line, there will need to be an agreement or an order from QCAT. Extreme caution needs to be made to ensure that the dividing fence is not jointly owned, or that it is not partly on the common boundary or the neighbour’s property.
If an owner, or a person that has entered the owner yard with consent of the owner, damages or destroys a dividing fence, the owner must restore the dividing fence to a reasonable standard, having regard to its state before the damage or destruction.
An application can be made to QCAT to require an owner to remove, modify or rectify the fence including the payment of costs to remove, modify or rectify the fence.
If a dividing fence has been damaged or destroyed, it requires urgent fencing work and it is impracticable to give a notice to contribute to fencing work. It is permissible to restore the dividing fence to a reasonable standard, having regard to its state before the damage or destruction.
The owner that restores the fence urgently can seek a contribution of the costs to restore it, however the process is different. It is important to seek legal advice prior to commencing any fencing work, particularly before urgent fencing work or claiming a contribution.
You must not, without the consent of the adjoining owner, attach a thing to a dividing fence that unreasonably and materially alters or damages the dividing fence.
If an owner wants to modify an existing fence that is a sufficient dividing fence (e.g., increase its height or change its materials), they will generally require consent from their neighbour, and will usually be responsible for the additional costs.
Yes.
The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 defines fences quite widely; a fence includes a structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land.
Fences include gates, cattle grids or any other apparatus necessary for the operation of the fence, as well as their foundation or support built solely for the support and maintenance of the fence. A fence can also include a natural or artificial watercourse separating the land of adjoining owners.
A fence does not have to be continuous or extend along the entire boundary separating the land of adjoining owners. However, a fence is not a retaining wall or a wall that is part of a house, garage or other building.
A fence is a dividing fence if it on the common boundary of the two parcels of land, but can still be considered a dividing fence if it cannot be built on the common boundary because of natural physical features, or is required to stop the passage of stock at all times.
There is a process if owners are unable to agree on the position of a common boundary. However, it can be complicated, and legal advice is necessary. The process has certain time limits and the position of the parties is relevant to the determination of surveyor costs, so ensuring that your position is detailed appropriately in writing is important.
An owner may give a written notice to the adjoining owner, or the adjoining owner’s agent, of the owner’s intention to have the common boundary defined by a cadastral surveyor engaged by the owner.
If the parties still cannot agree, a cadastral surveyor can determine the common boundary. Whether the cost of the cadastral surveyor is split between the parties will typically depend on the position each owner took regarding where the common boundary was located, compared to the determination of the cadastral surveyor.
The cadastral surveyor must be a person registered under the Surveyors Act 2003.
A notice to contribute to fencing work is a request from one owner to another to help pay money towards the cost of fencing work. Fencing work includes the design, construction, modification, replacement, removal, repair or maintenance of the whole or part of the dividing fence. It also includes 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 a purpose of constructing, removing or repairing the fence.
Fencing work also includes the planting, replanting and maintenance of a hedge or similar vegetative barrier as the dividing fence. It also includes the cleaning, deepening, enlargement or alteration of a ditch, embankment or watercourse that serves as the dividing fence, as well as obtaining an approval required for fencing work.
We typically recommend sending correspondence to attempt to resolve the matter prior to sending a notice to contribute to fencing work. However, each situation can require a different approach. In some cases, including a covering letter with the notice to contribute to fencing work to explain the notice may be appropriate.
QCAT may decide and order any one or more of the following in relation to fencing work:
That a fence has been used, or could reasonably be used, as a dividing fence;
If an owner believes on reasonable grounds that an adjoining owner intends to construct or demolish a dividing fence without authorisation, the owner may apply to QCAT for an order preventing the adjoining owner from constructing or demolishing the dividing fence.
In some limited circumstances, QCAT may make an order without the knowledge of an adjourning owner if the owner cannot be located by the applicant after making all reasonable enquiries.
