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.
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.
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.
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 eg. 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.
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 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (the Act) sets out the responsibilities relating to dividing fences between neighbouring 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 neighbourhood relationships. To avoid dividing fence disputes and keep the peace in your neighbourhood 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.
Dividing fence disputes are often about:
- the building or upkeep of a fence, including the cost
- who should pay and how much; and
- the type or height of the fence; particularly when one neighbour wants a fence for a specific purpose such as keeping in a dog.
Taking the following steps can save you time and money when a dispute about these issues arise.
1. Try to resolve a dividing fence dispute informally
Generally, before you make an application to QCAT to resolve a dividing fence dispute, parties should attempt to resolve the dispute informally themselves.
2. Try to resolve the tree dispute through guided mediation
If you cannot resolve your dispute informally, you may wish to contact a Dispute Resolution Centre to discuss free mediation options before you take any legal action. They will guide you through a structured mediation process with the aim for the neighbours to reach agreement.
3. If you cannot resolve the dispute, consider making a formal application
If you cannot resolve a dividing fence dispute, you can make an application in the following ways:
- apply to the Magistrates Court to resolve your dispute; or
- apply to QCAT about a minor civil dispute - about dividing fences; or
- apply to QCAT about a minor civil dispute - about a debt.
See below for further information on making an application for debt or fence dispute to QCAT.
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.
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 authorisation through a QCAT order, you may wish to seek legal advice about your options.
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.
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.
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.
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.
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.
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 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
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.
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?
To make an application, please select your case type from the list below:
Help and FAQs
Queensland legislation related to dividing fence disputes includes the:
- Neighbourhood Disputes (Dividing Fences and Trees) Act 2011
- Queensland Civil and Administrative Tribunal Act 2009
The Act is available on the Office of the Queensland Parliamentary Counsel website.
You can access a range of databases which keep records of previous decisions about dividing fence cases. This includes previous decisions from the following:
- QCAT and QCATA decisions about dividing fence disputes after 1 December 2009, can be found in the other minor civil disputes matters section on the Supreme Court of Queensland Library website
For legal advice:
* Contact the private solicitor of your choice
* Use Queensland Law Society’s Find a Solicitor service.
* Contact Legal Aid Queensland on 1300 65 11 88
* Contact Community Legal Centres Queensland for details on your local community legal centre on 07 3392 0092
For assistance in legal proceedings:
Law Right Court and QCAT Services
LawRight is an independent, non-profit community based legal organisation that coordinates pro bono legal services for individuals and community groups. Parties with proceedings in QCAT may be able to obtain assistance from LawRight’s Court and Tribunal Services to self-represent or in limited circumstances, be given representation.
If you are unsure whether you are eligible for assistance from LawRight or wish to make an enquiry, contact the service via phone on 07 3564 7561, or email at qcat.cts@lawright.org.au, or writing to PO Box 12217, George Street QLD 4003.
To apply for help from LawRight, please complete the application form here. If you are unable to complete the online form, contact LawRight to discuss alternative arrangements
Community legal centres
Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd (ATSILS) is a community-based organisation established to provide professional and culturally proficient legal services for Aboriginal and Torres Strait Islander people across Queensland. You can access website information or contact ATSILS on(07) 3025 3888.
Community Legal Centres Queensland can help you find the nearest community legal service available to you. You can also contact them on (07) 3392 0092.
Caxton Legal Centre is an independent, non-profit community organisation providing free legal and social work advice, assistance and referrals to the general public. Please note that the Caxton Legal Centre does not provide advice about building or other business and commercial disputes.
Women's Legal Service is a community legal centre that provides free legal advice and information to women in Queensland.
Youth Advocacy Centre offers free confidential legal and welfare assistance to young people under 17 years who live in or around Brisbane. Telephone support is also provided to young people outside of Brisbane and throughout Queensland.
The Queensland Civil and Administrative Tribunal (QCAT)’s registry is here to administer your matter and provide general information. Please see below what registry staff can and cannot do to assist with your matter.
Registry staff can:
* answer questions about QCAT processes
* provide information about QCAT’s different types of forms that are available for your consideration
* provide you with information and support about how to lodge an application
* refer and/or process any request to access the QCAT register of proceedings (a publicly available list of QCAT cases) or the record of proceedings (the case files themselves)
* advise on fees and allowances, and how to apply for a waiver of fees
* guide you in checking your forms are complete before lodgement (e.g. signed in the correct places)
* give you information on legal organisations that could help.
Registry staff cannot:
* provide legal advice
* advise on whether you should submit an application and whether you are filing under the correct legal area (eg minor civil dispute – consumer or trader or minor civil dispute – minor debt)
* tell you if you should lodge an appeal or a counter-application
* recommend a specific lawyer to assist you
* instruct you on how to word your application, supporting documents or what to say at a proceeding
* contact a QCAT member or adjudicator directly on your behalf
* predict likely outcomes of a case or appeal
* help you prepare your case
* advise what orders or decisions you should seek
* explain what you should do to follow QCAT directions
* recommend your next steps regarding enforcing an order or tribunal decision
* advise on exact timeframes for resolution of a matter – this depends on your individual matter