Australia: New law to streamline the settlement of disputes with your neighbour.

Last Updated: 11 August 2011
Article by Cameron Graham

On 2 August 2011, the Queensland Parliament passed the Neighbourhood Disputes Resolution Act 2011 (Act). Whilst the Act has been passed, it will not commence until the Queensland Government has the opportunity to alert all Queenslanders of the important changes brought about by the Act.

Purpose of the Act

The Act will repeal and replace The Dividing Fences Act 1953 (Qld), which has governed fence disputes for nearly 60 years. However, The Dividing Fences Act still applies to any existing notices, proceedings or orders affecting fences.

The object of the new Act is to establish rules governing the responsibility of neighbours for dividing fences and trees to prevent disputes from arising.

The Act will encourage informal resolution of disputes, but allow neighbours to apply to the Queensland Civil and Administrative Tribunal (QCAT) if a dispute cannot be resolved between themselves. QCAT offers land owners an informal setting to facilitate the resolution of any disputes involving dividing fences and trees. In the past, only the court system had the power to hear these disputes, with neighbours having to face each other as adversaries in a formal win/lose environment.

The new legislation will provide practical ways to resolve neighbourhood disputes in relation to dividing fences and trees and provide land owners with greater certainty in relation to their rights and responsibilities.

Changes in the law

1.  Dividing Fences

The Act expands the definition of what constitutes a 'fence' by including, for example, vegetation barriers such as hedges.

'Fence' is defined in the Act to mean a structure, ditch or embankment, hedge or similar vegetation barrier enclosing land, regardless of whether it is continuous or extends along the entire boundary of land. Gates, cattle grids, watercourses and foundations built solely to support a fence are included within the definition of 'fence'.

A retaining wall and walls that form part of a house, garage or other building are not considered a 'fence' under the Act.

The Act also defines what constitutes a 'sufficient dividing fence' (including height and material specifications).

Whether a fence is considered 'sufficient' will depend upon the type of land involved. For residential land, a dividing fence is sufficient if it is between 1.5 metres and 1.8 metres high and consists substantially of prescribed material. 'Prescribed material' means any of the following materials (unless the material does not comply with a relevant local law):

  • Wood, including timber palings and lattice;
  • Chain wire;
  • Metal panels or rods;
  • Bricks
  • Rendered cement;
  • Concrete blocks;
  • Hedge or other vegetation barrier;
  • Other material of which a dividing fence is ordinarily constructed.

For pastoral land, a sufficient dividing fence is one that is sufficient to restrain the type of livestock grazing on the land in question.

However, adjoining land owners are able to simply agree that a dividing fence is sufficient without following these definitions. QCAT has authority to determine whether a dividing fence is sufficient.

2.  Trees

The Act clearly sets out who is responsible for the care and maintenance of trees. Land owners have previously had to rely solely upon the common law concept of nuisance to resolve tree disputes.

The Act will govern the responsibility of land owners for trees overhanging the boundary of an adjoining land owner's property, or trees that have caused, are causing or are likely to cause serious injury to a person or serious damage to land, or cause substantial ongoing and unreasonable interference with the use and enjoyment of the land.

What is the law?

1. Dividing fences

  • A 'sufficient dividing fence' is required between 2 parcels of land if an adjoining owner requests a dividing fence.
  • A dividing fence is generally built on the common boundary of adjoining properties, unless construction on the common boundary is impossible.
  • If a dividing fence is constructed on the common boundary of land, its ownership is shared equally between neighbours.
  • Neighbours must not attach anything to a fence that materially and unreasonably alters or damages it.
  • Generally, neighbours must equally contribute to the construction and maintenance of a dividing fence.
  • If a land owner wants an adjoining land owner to contribute to the cost of fencing work they must provide them with a formal notice to contribute and agreement must be reached before any fencing work commences (other than urgent fencing work or fencing work approved by QCAT).
  • Either land owner will be able to apply to QCAT for a decision about the fencing work if they have not reached an agreement within 2 months of serving a notice to contribute.
  • The notice to contribute must be in an approved form, set out a description of the land where the fencing work is proposed to be carried out, the type of fencing work and its estimated cost (including labour and materials).
  • The notice will need to be accompanied by a copy of at least 1 written quotation for the proposed fencing work.
  • The Act will govern the responsibility of lessees to contribute to fencing work for a 'sufficient dividing fence', but will not govern lessees of shops under the Retail Shop Leases Act 1994 (Qld).
  • An owner's and lessee's level of contribution towards a dividing fence is determined by the number of years remaining under a lease.

2. Trees

  • The Act creates the term 'tree-keeper', who is generally the owner, lessee or body corporate of land where a tree is located.
  • A tree-keeper is responsible for removing any branches that overhang a neighbour's land, and must ensure that their trees do not cause serious injury to a person or damage to land.
  • Land owners will be able to remove tree branches that overhang their property from an adjoining property and can decide whether or not to return the branches to the adjoining land owner.
  • However, any State or Local Government tree and vegetation protection orders will need to be complied with.
  • A land owner will be able to serve a notice on a tree-keeper that requires the removal of overhanging branches.
  • If a tree-keeper fails to act then the land owner may remove the offending branches and recover from the tree-keeper the reasonable costs incurred in doing so, to a maximum of $300.
  • QCAT will have the power to make orders in relation to the removal or pruning of a tree.
  • QCAT will be required to keep a public register of any tree orders affecting properties, which can be searched by property buyers.

Seller's obligations in relation to tree orders

  • Sellers will be required to disclose the existence of any applications or orders affecting trees on their land to potential buyers.
  • If a seller fails to disclose any relevant applications or orders, a buyer may terminate the contract at any time before settlement and claim a refund of any deposit paid.
  • The seller and their agent will also be responsible for the buyer's reasonable legal and other expenses incurred in relation to the contract.

It is hoped that the Act will provide certainty to Queenslanders regarding their rights and responsibilities for dividing fences and trees and encourage neighbours to resolve any issues between themselves before proceeding to court for resolution of a dispute.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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