Navigating Fence Disputes: A Straightforward Guide to QCAT Processes

In a previous article, we introduced QCAT and discussed what types of disputes this tribunal can handle. One particular type of civil dispute that’s commonly brought before QCAT involves boundary fences, and so in this article we’ll explain more about Neighbourhood Dividing Fence Disputes and QCAT’s role in resolving them.

As you’d imagine, fence disputes aren’t uncommon, especially in residential areas where properties share boundary lines. These types of disputes can range from minor disagreements over the maintenance or replacement of a shared fence to more complex issues involving encroachments and property boundaries.

Thankfully, if you find yourself in a quarrel with your neighbour over the fence that divides your properties QCAT provides a process for resolving the issue fairly and squarely.

In this article, we’ll look at QCAT’s involvement in neighbourly fence disputes, focusing mainly on the most commonly presented issue of construction or repair of a fence on a boundary line.

Understanding QCAT’s Role in Dividing Fence Disagreements

QCAT steps in when neighbours can’t agree on who pays what cost for building or fixing a boundary fence. Additionally, other further fencing disputes can typically arise including

  • Whether a fence is adequate for the purpose it’s intended.
  • Decisions around the type of fence to be built (ie the height and material such as timber, colourbond or brick etc)
  • Issues involving related works like retaining walls or drainage when they’re part of the fence construction or repair.

Constructing or Repairing a Boundary Fence

At the heart of many disputes is whether to repair or replace a boundary fence and how to handle the costs and construction. When an agreement isn’t forthcoming, one party will usually file with QCAT in an attempt to make their neighbour share the cost of construction or repair to a boundary fence.

Legal Considerations

The rules for resolving these disputes are outlined in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, which can be found here: .

Can You Make Your Neighbour Pay Up for a New Fence?

  • It’s possible, but only if your current fence doesn’t meet the legal standard for what’s considered a ‘sufficient dividing fence’.
  • What makes a ‘sufficient dividing fence’ is outlined in the Act and generally refers to a fence between 0.5m and 1.8m high, built from typical fencing materials like wood, metal, or concrete etc.
  • If there’s a current fence in place that’s considered sufficient by law, but you want to change it for aesthetic reasons, this won’t be grounds to force your neighbour to pay half the cost for a new one.

Choosing Fence Types: Who Gets What They Want?

  • QCAT has the authority to decide the fence type and how the costs are shared.
  • They consider the norms of your local area and the intended use of each neighbour’s property to reach this decision.
  • In a notable case recorded in Georgetown, Queensland, QCAT sided with a homeowner who wanted a specific type of fence, reflecting the needs and usage of their property. The finding went against the wishes of the neighbour who argued that the current fence was sufficient. It was ordered a new fence be built with the proposer to pay 60% and the less willing neighbour 40%. It’s quite an interesting case, and you can read about it here.

What Happens If Your Neighbour Won’t Share the Cost?

If your neighbour refuses to contribute towards the cost of a dividing fence, there are some steps you need to follow.

(1) First step – Provide them with paperwork

Give them a ‘Notice to Contribute for Fencing Work’ along with at least one quote for the proposed work. You can click the link to locate this document which is called a Form 2 – Notice to Contribute for Fencing Work

You will need to include these details on the form

  • a description of the type of fence you want to build
  • the type of material you wish to use in the construction
  • the cost of the project
  • a breakdown of how much each neighbour is to contribute to the cost.

Your neighbour then has one month to agree or respond to the Form 2 notice.

(2) What if there’s no agreement?

File an application with QCAT, outlining the same details as in your notice. This is called a Form 53 – Application for minor civil dispute – dividing fences and you can download it from the link.  Generally, you will need to provide the same information you did with the From 2.

There will be an application fee required to lodge Form 53.

At the time of writing this, it ranges between $24.25 and $326.80 depending on the value of your proposed fence. You can take a look at the latest fees here.

Finally, you will need to give a copy of the filed application to your neighbour.

(3) What happens after the application is lodged?

  • A mediator will try to help you reach a compromise, generally by teleconference. The mediator is not a lawyer and has no interest in your dispute. Their role in the process is to provide you with an opportunity to reach agreement.
  • If that fails, a QCAT hearing is scheduled. Your hearing will usually be held at the local Magistrates Court and will be one of many held on the day.

(4) At the QCAT Hearing:

  • If the other party doesn’t show, you could win by default.
  • The QCAT member (judge) will have made themselves familiar with the arguments submitted by each side, give an initial opinion and encourage settlement before proceeding to a full hearing.
  • If no settlement is reached the matter will progress to a hearing where each party will be asked questions and informed of the relevant law. The process is not like a formal trial and is intended to be as quick and efficient as possible.
  • In our experience, most fence matters are fairly resolved.

When It’s More Than Just a Fence and your Neighbour has Built on your Land

If your dispute involves neighbours building on your land, that’s a more serious issue called ‘encroachment’ and requires dealing with by the Supreme Court, not QCAT.

There is separate legislation to deal with encroachment and you will need to make an application to the Queensland Supreme Court to have the building removed. This is a much more complex process than a QCAT application and you’ll more than likely require the help of a solicitor. We’re experienced in resolving serious encroachment issues and would be pleased to assist you with this.

How About Issues With a Retaining Wall?

Sorry, but QCAT is highly unlikely to assist here as retaining walls don’t generally fall under their jurisdiction. There’s only an exception when retaining walls are affected by work on dividing fences.

The earlier mentioned Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 has determined that a fence is not a retaining wall so if your dispute is solely about a retaining wall matter, this isn’t a dividing fence issue and QCAT can’t consider the dispute.

Are You Needing Help with a Fence Dispute?

We have extensive experience assisting clients with QCAT proceedings, particularly with dividing fence disputes. We can offer competitive, lower, fixed fee prices to assist you throughout the QCAT dividing fence dispute process, and we’d be pleased to have a no-cost chat about your issue to see how we can help. Call us today, and let’s secure a fair and legally compliant solution to your fencing dispute.

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