If you have a good relationship with your neighbour, you may find yourself deciding that it’s time to build a dividing fence between your properties, perhaps for a little extra privacy, or to keep your wily pooches contained.
But what exactly is a dividing fence? And who exactly owns and pays for it? In this guide, we’ll explore the most common and important questions on fencing laws, including a clear explanation of fence height regulations in Queensland.
What is a dividing fence?
In terms of fencing and neighbouring properties, there are two basic types — a dividing fence and a boundary fence. A dividing fence is typically a fence that separates two privately owned properties, and is constructed along the common boundary line between the two. However, it can also be built off the boundary line when the land’s physical features prevent it (which makes the fence owned by whoever’s land it’s built in). The term doesn’t include a fence running along the boundary of a road — this is known as a boundary fence.
Retaining walls are also not classed as fences under the Neighbourhood Disputes Resolution Act 2011. Retaining walls are built to support excavated or built-up earth. They are normally not a matter of joint responsibility for neighbours as they usually benefit one neighbour more than the other. The Queensland Civil and Administrative Tribunal (QCAT) can make orders if fencing disputes result from work on a retaining wall if the fence’s repair also requires work on the retaining wall or walls.
A dividing fence isn’t just a line of wire, panels or posts either – it is anything that encloses an area of land, including a hedge, ditch, an embankment and even a creek, and it doesn’t have to extend along the entire boundary. It also includes cattle grids, gates or anything else that forms part of the enclosure.
Who owns a dividing fence?
If a dividing fence is built on the common boundary line, it is equally owned by both adjoining neighbours. However, a fence or part of a fence built on one neighbour’s land is owned by that neighbour, even if the other neighbour helped pay for the fence. So if you are paying for half the cost of a fence, you should ensure it is built on the actual boundary line
What is a sufficient dividing fence?
There should be a “sufficient” dividing fence between properties if an adjoining owner requests one, regardless of whether one or both pieces of land are empty. In terms of fencing regulations in Queensland, a “sufficient” dividing fence is between 0.5 and 1.8 metres high and is constructed of a “prescribed material,” including:
- Wood, including timber palings and lattice panels
- Chain wire
- Metal panels or rods
- Bricks
- Rendered cement
- Concrete blocks
- A hedge or other barrier made from vegetation
- Other material that fences are ordinarily constructed from.
It is also deemed “sufficient” if it can restrain the type of livestock grazed on either neighbours’ adjoining pastoral land. And of course, it’s also “sufficient” if you and your neighbour agree that it is! If you’re still not sure, QCAT can help you determine this. They will take into account specific factors such as the types of fences found in the surrounding neighbourhood.
Do we need building and planning approvals?
In Queensland, building and planning approvals are generally not required for a proposed side, front or rear boundary fence if the fence is:
Associated with a dwelling house (or other residential use)
- Less than two metres high
- Not a swimming pool fence (more on these below)
- Not part of a retaining wall
- Not restricting water run-off from adjoining properties.
Checking the key facts about your property will help you understand any constraints. As a guideline, you will need to contact your local council for advice if your fence is part of a proposal to:
- Build a new dwelling house on a small lot
- Build a multiple dwelling (units or apartments) or dual occupancy
- Build a new dwelling house
- Renovate an existing dwelling house, multiple dwelling or dual occupancy on a site within a neighbourhood plan area or overlay area.
If this is the case, you are also responsible for ensuring the building work complies with applicable standards. This includes size limits, structural sufficiency, boundary setbacks, and fire separation. These are outlined in the following laws (building assessment provisions):
- The Building Act 1975
- Any local law or local planning instrument the Building Act 1975 allows to apply to the assessment
- The Queensland Development Code
- The Building Code of Australia.
The Council recommends you obtain advice from a licensed private building certifier or contractor to check if your project complies with building assessment provisions. You will also need to have your project assessed and approved by a licensed private building certifier if it does not meet all of the above requirements.
Who pays for the dividing fence?
In terms of fencing laws in Queensland, if you are looking to build a dividing fence between your property and your neighbour’s, you need to give them what is called a “notice to fence.” This is a letter that should include details about the fence, how it will be built, and how much it will cost (including their half-contribution). You are required to obtain at least one quote (out of courtesy, apply for two), and if your neighbour believes the quotes are too expensive, they have the right to obtain their own quotes.
Neighbours usually contribute equally to the cost of building and maintaining a dividing fence. If issues arise, they usually need to be solved by the owners of both properties themselves. Rental tenants who have queries over dividing fences should contact their agent or property owner.
If one neighbour wants more work done than is necessary in terms of the fence being “sufficient”, they must pay the additional cost. For example, if your neighbour needs a higher fence to keep their dog safely housed on their property, they should pay the additional cost of labour and materials to build the fence to a height that is outside of your own “sufficient” needs.
Additionally, if an owner or someone they have allowed onto their property damages a fence (for example, people working on their property), they must restore the dividing fence to a reasonable standard. This includes taking into account the state of the fence before it was damaged. If they do not restore the fence, you can send them a notice to contribute for fencing work or get them to pay for urgent fencing work if necessary.
When is a dividing fence not needed?
You don’t need a dividing fence if:
- Either property is outside the scope of the Act, for example, it is public land or a stock route
- Both properties are classed as agricultural land
- There is no land owner, for example, land under the Nature Conservation Act 1992 is not subject to a lease or stock grazing permit.
- You and your neighbour agree you don’t want one!
What happens if there is a dispute over a dividing fence?
Dividing fences are a common cause of disputes between neighbours. People often disagree over who pays for the building and upkeep of the fence or the type of fence needed, particularly when one neighbour wants a fence for a specific purpose, such as to keep a dog safely housed on their property. The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 covers your legal rights concerning a fence between you and your neighbour’s land.
However, wherever possible, you should try and resolve any disputes directly with your neighbour. Mediation is another way of settling disputes without legal action, as it is easier, cheaper and quicker than going to a court or tribunal. Assistance is available through a number of dispute resolution centres throughout Queensland. QCAT can also help resolve disputes up to the value of $25,000, and they can make legally enforceable decisions on the matter. However, this should be considered as a last resort, as it is always beneficial to stay on good terms with your neighbour!
If you can’t resolve the issue, you can also seek legal advice through the Queensland Law Society, which can refer you to a private lawyer. It’s worth noting that Legal Aid Queensland doesn’t provide legal advice about fencing disputes. However, they can give you contact details for your local community legal centre, including the Queensland Association of Independent Legal Services (QAILS).
Swimming pool fences
In Australia, pool safety laws apply to all pools associated with residential buildings, including motels, hotels, resorts and other short-term accommodation buildings (known as Class 3 properties). Class 3 properties must have either a:
- Compliant pool barrier
- Pool safety management plan that has been approved by the Queensland Building and Construction Commission.
In terms of residential properties, the responsibility to build and maintain a pool fence lies with the pool owner. However, the laws and regulations for dividing fences typically don’t apply to pool fencing because specific regulations exist across different states in Australia.
Queensland’s pool safety laws apply to all new and existing pools, and dividing fences can serve as pool “barriers” because they are often the most efficient way to comply with the state’s pool safety laws. Different rules also apply depending on whether you’re buying, selling or renting a property with a pool.
You and your neighbour have agreed you need a dividing fence, so what now? Contact the professionals at FenceCorp today on (07) 3715 5055.
References
- 2018, Avoiding fence, tree and building disputes, Queensland Government
- 2019, Pool safety laws, Queensland Government
- 2020, Fences, Brisbane City Council