Last updated 16 August 2016
A fence on your own property
People may erect fences on their own land without the consent of their neighbours and they cannot normally require the neighbours to contribute to the cost of such a fence. Such a fence may, however, act as a dividing fence, whether or not it is on the boundary line and therefore be subject to some of the laws relating to dividing fences. Careful regard should be had to a property’s boundary line when building such a fence to avoid unintentionally allowing the neighbour to come into possession of part of the land.
No formal approvals are required for fences up to two metres in height that are associated with an existing house, are not associated with a swimming pool, not part of a retaining wall and would not restrict water run-off from adjoining properties.
A fence between properties
Fences built on a common boundary between properties are dividing fences. The construction, repair and removal of these fences are covered by the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (Neighbourhood Disputes Act). Generally, dividing fences involve joint responsibility for construction, maintenance and repair.
If agreement cannot be reached between neighbours as to the construction, repair or removal of a dividing fence, legal advice should be sought. Caxton Legal Centre maintains a free up-to-date self-help kit on dividing fences.
The Neighbourhood Disputes Act defines a fence as a structure, ditch or embankment, or a hedge or similar vegetation barrier, enclosing any land, whether or not it extends along the whole boundary of the land separating the neighbours. It includes any gate, cattle grid or apparatus necessary for the operation of a fence (s 11 Neighbourhood Disputes Act). A dividing fence is constructed on the common boundary line of adjoining land. Sometimes, a dividing fence can be built off the common boundary line when it is impractical due to the physical features of the land (s 12 Neighbourhood Disputes Act).
A dividing fence is owned equally by the adjoining neighbours if it is built on the common boundary line (s 19 Neighbourhood Disputes Act). However, a fence or part of a fence built on the neighbour’s land is owned by that neighbour, even if the other neighbour contributed to the construction of the fence.
There should be a sufficient dividing fence between two parcels of land if an adjoining owner requests one, even if one or both parcels of land are vacant (s 20 Neighbourhood Disputes Act). Generally, neighbours must contribute equally to the cost of building and maintaining a sufficient dividing fence and not attach something to a dividing fence that unreasonably and materially alters or damages it (ss 7, 21, 27 Neighbourhood Disputes Act).
Under the Neighbourhood Disputes Act, there are some circumstances where a dividing fence is not required:
- if both neighbours of adjoining land do not want a dividing fence
- where either parcel of land is outside the scope of the bill (e.g. public land or a stock route)
- where both parcels of land are agricultural land.
In such cases, neighbours will need to rely on any agreement reached with the neighbour or the common law. It would be worthwhile recording the terms of any such agreement. However, those agreements generally would not bind subsequent purchasers of either property.
The Neighbourhood Disputes Act distinguishes between fences and retaining walls. 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. However, the Queensland Civil and Administrative Tribunal (QCAT) has limited power to make orders about a retaining wall if the dividing fence cannot otherwise be repaired.
A dividing fence is considered a sufficient dividing fence in the following circumstances where:
- two parcels of residential land are adjoined, the fence must be between 0.5 m and 1.8 m in height and constructed substantially of prescribed material (see s 13(3) of the Neighbourhood Disputes Act for a list of prescribed materials)
- two parcels of pastoral land are adjoined, the fence must be able to restrain livestock of the type grazing on each of the parcels of land
- the owners agree a particular fence is a sufficient dividing fence
- QCAT decides that a particular fence is sufficient. There are specific factors that QCAT must take into account (e.g. types of fences in the neighbourhood) (s 13, 36 Neighbourhood Disputes Act).
Adjoining neighbours are each liable for half the cost of fencing work required to have a sufficient dividing fence. However, where one neighbour wants to have more work done than is necessary for a sufficient dividing fence, then they will be liable to pay the extra expenses. For example, if a neighbour wants a higher fence for privacy or security, they should meet this extra cost. This does not mean that QCAT will order that the fence will be built according to their wishes. In those circumstances, QCAT would consider the wishes of each neighbour and the other factors that QCAT is required to take into account.
There is a single standard that applies to regulated pools.
Generally, pool barriers located on the boundary of a property will need to be at least 1.2 m high if the non-climbable area is on the outside of the fence (otherwise they need to be 1.8m high), and the responsibility for the construction, maintenance and repair will be solely borne by the pool owner. Heavy penalties apply in cases in which the pool safety barrier does not meet the applicable standard.
Land bordering Crown land or a local park
If the land borders Crown land (which is not leased to another person or held in freehold by the Crown), the Crown is not liable to contribute towards the cost of a dividing fence. The same applies if the land is owned by the local government or is a designated reserve or public park. It may be necessary to ascertain how the Crown owns the land, for example, state schools are generally situated on freehold land and the state is subject to the obligation to contribute to a dividing fence.