In a previous article, we walked through how to navigate fence disputes using QCAT processes. But what happens when your neighbour simply won’t come to the table, or there’s no dividing fence at all? That’s where building a fence entirely on your own land becomes a practical alternative.

This article covers what you need to know before you start: where the fence can go, what rules apply, what it means for your existing dividing fence obligations. You’ll also read about avoiding common pitfalls.

What Is a Dividing Fence?

A dividing fence is any structure that separates two adjoining properties. It could be a timber paling fence, a wire fence, a hedge, a ditch, or even an embankment; it doesn’t have to be what most people picture when they hear the word “fence.”

Under Queensland law, a dividing fence must be “sufficient”, meaning it’s adequate for its purpose, taking into account the location, how the land is used, and the types of fences common in the area. A retaining wall does not count as a dividing fence.

Both neighbours share responsibility for maintaining a dividing fence. This shared obligation is a key reason some homeowners choose to build a separate fence within their own property boundary instead in order to gain full control over the type, height, and appearance of the structure.

Confirm Your Property Boundary Before You Build

Before any construction begins, you need to know exactly where your property boundary sits. Getting this wrong can turn a straightforward project into an expensive dispute.

If there’s any uncertainty, engage a licensed surveyor to define the boundary. Under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), you can notify your neighbour of your intention to have the boundary surveyed. If they don’t respond within one month, you can proceed at your own cost.^¹

This step shouldn’t be considered optional. A fence built even slightly over the boundary line changes the legal picture entirely.

Building a Fence Within Your Property

There’s a key rule at play here: if your fence is built entirely within your property – at least 300 to 400 millimetres from the existing dividing fence – it falls outside the scope of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).^² That means your neighbour has no legal say over it.

If there’s no existing dividing fence between your properties and you build a fence within your boundary, it does not become the dividing fence by default.^³⁴ Your neighbour cannot demand changes to it or claim any rights over it.

The trade-off? A fence built entirely on your land is entirely your responsibility. You bear the full cost of construction and maintenance. No splitting the bill with the neighbours on this one.

You don’t need your neighbour’s consent to build it. That said, letting them know your plans ahead of time is good practice, and a quick conversation can prevent misunderstandings and help maintain a workable relationship.

Don’t Interfere With the Existing Dividing Fence

This is where homeowners sometimes get caught out. Your new fence cannot cause damage or considerable disrepair to any existing dividing fence.^⁵

The existing dividing fence is jointly owned by you and your neighbour. If you want to attach any part of your new fence to it – brackets, rails, anything – you must get your neighbour’s permission first.

Without that permission, your neighbour can apply to QCAT to resolve the dispute and have the modifications removed and the dividing fence restored to its original condition, at your cost.

Check the Height Restrictions

Your local council sets the rules on maximum fence height. In most Queensland council areas, there’s a height you can build to without needing a permit, but do your research as the specifics vary from council to council.

Check your local council’s website before you start construction. Building a fence that exceeds the permitted height without approval can result in an order to modify or remove it, making it an expensive lesson nobody wants to learn the hard way.

Does Building a New Fence Change Your Dividing Fence Obligations?

No. This catches people off guard.

Even after you build a brand-new fence within your property, you still share the obligation to maintain the existing dividing fence with your neighbour.^⁶ Building your own fence doesn’t let you off the hook for the shared one.

Practically speaking, leave enough space between your new fence and the dividing fence so both can be maintained. Squeezing them too close together creates access problems down the track, and access problems have a habit of turning into neighbour disputes and litigation.

Accessing Your Neighbour’s Property During Construction

If you need to access your neighbour’s land to build the fence, for example, to work on sections near the boundary, you must get their permission first.

If they refuse, you’ll need to adjust your construction plans so all work happens within your own property. It’s another reason why choosing an experienced fencer who understands boundary-adjacent work matters.

The Bottom Line

Building a fence within your property boundary in Queensland is a legitimate option, especially when neighbour negotiations have stalled or you simply want full control over your fencing. The process is generally straightforward, provided you:

•  Confirm your exact property boundary (get a surveyor to be sure)

•  Keep the fence at least 300 – 400mm from the existing dividing fence

•  Check your local council’s height restrictions

•  Don’t touch or attach anything to the existing dividing fence without permission

•  Remember you’re still responsible for maintaining the dividing fence

If you’re unsure about where you stand, or if a fence situation has already turned into a dispute, it’s worth getting legal advice early, before positions harden and costs escalate. Contact our team for advice .

Simpson Quinn Lawyers has been advising Sunshine Coast property owners for over 28 years. If you need help with a fencing matter, boundary issue, or neighbour dispute, we’re here to help with your property law needs.

References

^1. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 40.

^2. Marshall v Twidale [2021] QCAT 414 (‘Twidale’), decision upheld in Twidale & Anor v Marshall [2022] QCATA 164 (‘Twidale Appeal’); Mardon v Holmkvist [2020] QCATA 108 [4].

^3. Twidale [18]–[22].

^4. Twidale Appeal.

^5. Trimble and Anor v Hibbett [2012] QCAT 463.

^6. Ibid.

At Simpson Quinn, we regularly assist clients with these issues and understand just how complex and personal they can feel. Disputes over pets, parking, noise or common property can quickly escalate, and many people aren’t sure about where they stand or what they should do. This article will walk you through what body corporate by-laws are, how they’re enforced, and the correct way to resolve disputes.
While it doesn’t replace tailored legal advice, it will help you make sense of your obligations and options under the law so you can feel confident about your rights and what processes to follow.

What Are Body Corporate By-Laws?

Body corporate by-laws are the rules that govern how shared areas and individual lots are used in a strata scheme. These might include matters such as:

• Restrictions on noise
• Where residents and guests can park
• Rules around owning or keeping pets
• Maintenance responsibilities for shared spaces like gardens or stairwell

Everyone who owns or occupies a lot in the scheme must comply with these by-laws. The body corporate is responsible for enforcing them in a way that’s consistent and fair. But if you’re affected by someone else’s breach, you also have the right to raise the issue and seek enforcement. And, yes you have this right whether you are an owner or an occupier (tennant).

But before anyone can lodge a formal dispute with the Commissioner for Body Corporate and Community Management (BCCM), they need to follow the steps required under the Body Corporate and Community Management Act 1997 (Qld) (the Act).

These steps are mandatory and apply whether you’re an individual complainant or the body corporate itself.

When the Body Corporate Brings a Dispute

Step 1: Issue a Contravention Notice

Under section 184(2) of the Act, the body corporate must issue a contravention notice before taking formal action against an owner or occupier. A dispute can not be lodged by the body corporate until this is done and the notice needs to explain the alleged breach and gives the person a chance to fix it.

A valid contravention notice must:

• Say that the body corporate reasonably believes a by-law has been breached
• Clearly identify which by-law is involved
• Explain how the person has breached it
• Warn that failure to comply could result in either:
  • A conciliation application being lodged with the BCCM Office, or
  • Legal proceedings in the Magistrates Court

Types of Contravention Notices

There are two types:

1. Continuing Contravention Notice

• Used when a breach is ongoing
• Example: A resident builds a deck without approval, or has a pet when the by-laws don’t allow for one
• Must give a clear deadline to stop or fix the issue

2. Future Contravention Notice

• Used to prevent a repeated breach
• Example: Loud parties or misuse of common property
• Directs the person not to repeat the behaviour within a set timeframe (up to a maximum of three months)

Contravention notices must always include the essential details about the by-law, the breach and the consequences of not complying.

What Forms Can Be Used?

The body corporate can use BCCM Form 10 (for continuing contraventions) or Form 11 (for future contraventions). These forms are optional. If the body corporate chooses to write its own notice that’s fine, but it still has to include all the same required information.

When an Owner or Occupier Brings a Dispute

Step 1: Submit a BCCM Form 1

If you’re an owner or occupier and you believe someone else has breached a by-law, you must follow section 185(2) of the Act. This involves:

• Submitting a BCCM Form 1 to the body corporate asking them to issue a contravention notice to the alleged offender
• Waiting 14 days for a response before lodging a dispute application

If the body corporate hasn’t confirmed within 14 days that it has issued the notice, you can then take further action yourself.

Accuracy Is Critical

The details you include in your BCCM Form 1 matter. If they don’t match the actual dispute, your application may be rejected.

In Horizons [2023] QBCCMCmr 204, an owner complained about noise caused by poor flooring insulation. Although two forms were submitted, neither named the person involved, referring only to “Unit 31.” The complaints also seemed to relate to a former tenant and their noisy guests, not the current occupiers or the issue of the flooring. The adjudicator ruled that the forms didn’t meet the requirements of section 185(2), and the application failed.

Key takeaway: Make sure your Form 1 directly reflects the issue you’re asking to be addressed. Include accurate details of the breach and the person involved or specific issue.

What If the Body Corporate Takes Over?

Once the body corporate issues a contravention notice in response to your Form 1, they take charge of the enforcement process. That means you cannot lodge a separate application against the same person for the same issue.

This was confirmed in Horizons [2023], where an owner tried to make a new application after the body corporate had already issued a notice and attempted conciliation. The adjudicator made it clear that the body corporate had assumed responsibility and the owner couldn’t start parallel action.

Your only option in that situation is to bring a dispute against the body corporate for failing to enforce the by-laws properly.

Is There a Way Around That?

Yes. If the body corporate decides not to pursue the matter further, you can request that they withdraw the contravention notice. This clears the way for you to take the next step yourself.

The body corporate must consider this request reasonably, as required by the Act. If the notice is withdrawn, you can then lodge your own dispute application against the original offender.

What If the Body Corporate Refuses to Issue a Notice?

Many people think the body corporate must issue a contravention notice after receiving a Form 1. That’s not the case.

Sections 182 and 183 of the Act say a contravention notice should only be issued if the body corporate reasonably believes a by-law has been or is likely to be breached.

If they don’t genuinely hold that belief, they’re not required to act, and, in fact, shouldn’t.

In Marlin Cove [2008] QBCCMCmr 121, the body corporate mistakenly believed it had to issue a notice after receiving a Form 1. The adjudicator found this was incorrect and voided the notice, allowing the applicant to bring a direct dispute.

“I find nothing in section 185 that requires the Body Corporate to issue a contravention notice just because a complainant asks them to. In fact, I consider it inappropriate… if they did not believe a breach had occurred or was likely to occur.”

This ruling shows how important it is for both sides to understand the process. If the body corporate issues a notice without genuine belief, it can actually weaken the case.

Process Matters

Dealing with body corporate by-laws isn’t just about being in the right. If you skip a step or use the wrong form, your application may be dismissed, even if the issue is genuine.

Whether you’re trying to raise a concern or responding to a complaint, getting legal advice early helps protect your position and avoid procedural missteps.

We’re Here to Help

At Simpson Quinn, we understand the complexities of body corporate compliance and the disputes that can arise. We regularly advise owners and occupiers on how to deal with breaches, enforce by-laws or defend themselves against unfair claims.

Every situation is different, which is why seeking personalised advice is important. So,if you’re facing a by-law dispute, contact us for a free consultation. We’ll help you understand the process and your options under the Act, and then be on hand to guide you every step of the way.

If you missed the introductory article on Payment Claims, it’s worth reading now to get up to speed  before continuing with this one.

Understanding Payment Schedules

Under the Building Industry Fairness Act of 2017, both parties involved in a construction contract have certain payment obligations. The party who is performing the work must submit a Payment Claim to request payment for the work they have completed or costs incurred during each billing period.

The other party, known as the respondent, must respond to this Payment Claim by providing a Payment Schedule within, at most, 15 business days.

What actually is a Payment Schedule?

A Payment Schedule is a legally required document that must be sent in response to an issued Payment Claim in the construction industry. The Payment Schedule must be provided, at most, within 15 business days of receiving a Payment Claim.

Let’s break down what a Payment Schedule includes and why it’s so important:

Definition and Purpose:
A Payment Schedule is the response to a Payment Claim. It performs two main functions:

• It details the amount that’s going to be paid to the claimant, acting as a formal acknowledgment of the claimed payment amount.
• In cases where the full payment is not agreed upon, the Payment Schedule explains why certain amounts have been withheld or reduced.

Legal Requirements:
Under the Building Industry Fairness Act, responding to a Payment Claim with a Payment Schedule isn’t just good practice — it’s a legal requirement. The Act stipulates that the Payment Schedule must not only specify the amounts being paid but also respond to each line item in the Payment Claim.

Here’s what the BIF Act says about preparing a Payment Schedule:

• It must clearly identify the Payment Claim it’s responding to (generally by stating the reference number of the Payment Claim, the date of issue noted on the Payment Claim, or the Payment Claim number.)
• The Schedule must clearly state the amount the payer intends to pay and when.
• If this figure differs from the Claim, the Schedule must list a clear explanation for each deduction or rejection by way of specific legal or contractual reasons for payment adjustments or disputes
• The payer must issue the Payment Schedule within, at most, 15 days of receiving a Payment Claim. This period can be shorter if provided for in the contract.

Do I need to issue a Payment Schedule each time I receive a Payment Claim?

Yes, under the Building Industry Fairness Act, a Payment Schedule must be issued for every Payment Claim received. Failure to do so can result in penalties and legal consequences. The only exception to this is if the Respondent pays the amount of the Payment Claim in full.

What happens if I don’t issue a Payment Schedule?

If you fail to provide a Payment Schedule within 15 business days of receiving a Payment Claim, the BIF creates “sudden death” consequences for you. You will be legally required to pay the full payment amount requested in the Claim, and you are obligated to pay this even amount if you dispute it.

Sections 77 and 78 of the BIF explain how the contractor would be entitled to recover the full value of the claim as a liquidated debt, and that your ability to dispute the claim is very limited.

Specifically, you will be limited to only raising ‘jurisdictional issues’ with the validity of the claim. For example, asserting that it was not provided to you properly, or that it did not contain sufficient detail, etc. You will not be able to contest the substance of the claim, including by saying that the works were defective or incomplete.

This is why it’s crucial to understand the importance of issuing a Payment Schedule in response to every Payment Claim received.

Can the amount in my Payment Schedule be disputed?

Yes, if the claimant doesn’t agree with the amount stated in your Payment Schedule, they can take further action to resolve the dispute. This can include initiating adjudication proceedings or seeking assistance from the QBCC.

How much detail does my Payment Schedule require?

Your Payment Schedule must be detailed enough to provide a clear explanation for any adjustments or rejections of the Payment Claim, but it doesn’t need to be overly complicated.

Clearly stating the specific legal or contractual reasons for any deductions or rejections should be done carefully and thoroughly as, should you need to respond to an adjudication claim, you will be limited to rely only on only the reasons you gave for non-payment in your Payment Schedule and won’t be able to introduce new reasons.

Importantly, you must ensure that you respond to every single line item of the Payment Claim individually in your payment schedule. Global or generic responses to numerous line items may prejudice your ability to contest those claims in subsequent legal proceedings.

Responses in Payment Schedules which are non-final, or say words to the effect of “this claim will be considered once something else happens” are unacceptable as they do not provide a response to the substance of the claim item. The Respondent to a payment claim must make a decision on each claim item in the Payment Schedule and are not permitted to ‘hedge their bets’ by stating that a decision on the claim item will be made in future.

There are many examples adjudication outcomes where the consequences of failing to include all the reasons for non-payment have resulted in severe financial consequences. On such disastrous outcome occurred in the following decision – Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd [2020] QSC 133.

When will a poorly prepared Payment Schedule start to Affect me?

A poorly prepared Payment Schedule will most likely harm you if the claimant commences an adjudication claim under the BIF Act. We have a detailed article about Adjudication claims here.

In short, an adjudicator considering the adjudication claim is far more likely to find against you if your Payment Schedule is poorly prepared, and you won’t significantly restricted in defending the adjudication claim if you haven’t given a proper Payment Schedule.

Conclusion

If you’re party to a construction contract in Queensland, it’s essential to understand the importance of issuing a Payment Schedule within 15 business days of receiving a Payment Claim. Failing to do this can leave you dealing with significant legal and financial consequences.

Simpson Quinn lawyers have extensive experience in providing advice and assistance on all matters related to the Building Industry Fairness Act. Contact us today for any legal guidance or representation you may need regarding Payment Schedules, Payment Claims, or any other aspects of construction contracts.

This article will provide you with a clear breakdown of what you need to know about Payment Claims under the Building Industry Fairness Act 2017 (Qld) (the BIF Act) and how they operate within the Queensland Building and Construction Commission Act 1991 (Qld), which is commonly known as the QBBC Act.

While the QBCC Act has been around now for sometime, the BIF is more recent and replaces a number of older pieces of legislation including the Building and Construction Industry Payments Act 2004 (BCIPA) and the Subcontractor’s Charges Act 1974.

In short, Payment Claims are requests for payment by a person or company who has carried out work or provided goods and services under a contract. They are typically made by contractors, subcontractors, suppliers, and consultants in the building and construction industry and are a prerequisite for invoking the powerful payment remedies under the BIF if you aren’t paid in full.

Please note this article should be read in conjunction with our article on Payment Schedules, as it explains the legally required response someone must give when issued with a Payment Claim, particularly if they are not intending to pay the amount in full.

How are Payment Claims presented?

There’s a standard form for a Payment Claim found on the QBCC website. It’s intended for general use and can be found here: https://www.qbcc.qld.gov.au/resources/template/payment-claim-template.

While this template is fine for basic claims, it’s not well suited to larger or more complex claims, including where some of the work is pursuant to variations or is out of scope.

How often can I make a Payment Claim?

Contractors can only submit one payment claim per “reference date” outlined in their contract or the BIF Act. If no date is stated, it defaults to the last day of each month.

This means you generally can’t submit more than one claim per calendar month, unless your contract allows additional reference dates. If you invoice early, you’ll have to wait until the next reference date to claim remaining works.

Here’s an example to further explain the concept:

Alex has staff to pay and decides to claim for his business’ carpentry works on 21 January. The upcoming reference date is 31 January and the previous reference date was 31 December. His previous payment claim was dated 30 December. By claiming on 21 January, he is essentially claiming early.

This payment claim can therefore seek payment for works done from 31 December to 21 January.

It cannot claim for work completed from 22 January to 31 January (the next reference date) as that work has not been done yet.

Because only one payment claim can be made per ‘reference date’, Alex won’t be able to claim for work done between 22 January to 31 January until the period relating to the next reference date, which will be 28 February 2021. This will probably impact Alex’s cash flow for the work he’ll be doing in that last week of January.

Importantly, it is one claim per reference date, not by the reference date. You can make a payment claim after a reference date if you haven’t already submitted a claim for that reference date. Contract provisions which say words to the effect of “if you miss this reference date, you must wait till the next” are unlawful and should be ignored.

Can I reclaim for previously claimed work?

Absolutely, the BIF Act allows for inclusion of amounts previously claimed. This flexibility aids contractors in persisting with payment requests and accessing ‘rapid adjudication’ for missed deadlines on prior claims.

You can read more about that here, in Section 75(5) of the BIF.

What happens if I don’t receive a Payment Schedule or get paid?

The good news is – you’re covered. The BIF and QBCC Acts ensure your right to ‘progress payments’ for work completed to date. The law states you are entitled to receive a Payment Schedule and be paid (or provided with an explanation of why not) within 15 days from the delivery of your Payment Claim. This legal requirement holds and can’t be overwritten by your contract terms.

If you are not provided with a Payment Schedule you’re legally entitled to the entire claim value as a payable debt, with the client having minimal grounds for dispute (with the exception of very limited ‘jurisdictional’ circumstances, see sections 77 and 78 of the BIF).

What if the Payment Schedule isn’t paid in full?

If the actual payment you receive falls short of the scheduled amount, the specified amount becomes due immediately, and it would be extremely difficult for your client or higher tier contractor to challenge this.

At Simpson Quinn, we specialise in dealing with the complexities of these matters and would be pleased to help you navigate them. Reach out to us today for a free consultation to see how we can safeguard your financial interests and ensure smoother payment for work done in the Queensland construction industry.