I have a timber sleeper retaining wall 1/2mj high made up of…

Hi, I’m John from Melbourne,

Both owners will be responsible for the fencing work, which includes retaining walls which are used as boundary fences, subject to the party who gets the dominant benefit of the retaining wall.

In Queensland, ss 20 and 21 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) obliges owners of adjoining land to generally contribute equally towards the costs of installing or repairing a dividing fence.

In QLD, the owners of adjoining land not divided by an adequate fence may be liable to contribute to the construction, replacement or maintenance of a such a fence. An owner of land who proposes to erect, replace or repair a fence dividing that land from the land of an adjoining owner may serve a notice of that intention on the adjoining owner specifying a proposal for how the work is to be carried out and seeking contribution to the cost. If the adjoining owner objects to the proposal, he or she may serve a cross-notice setting out counter-proposals. If a dispute arises, either party can seek an order from NCAT prescribing the kind of fence to be constructed and the proportions in which the parties are to contribute to its construction,

A person carrying out authorised fencing work may enter upon land at any reasonable time and do anything that may be reasonably required for the purposes of the fencing work.

If the fence line is not straight you may need to have the land surveyed to avoid any loss of your land.

A fence does not just mean a line of posts, wire or panels; rather, it is anything that encloses an area of land—including a ditch, embankment, a hedge or even a creek—and it does not have to extend along the whole boundary. It also includes gates, cattle grids, or anything else that forms part of the enclosure.A dividing fence is normally constructed on the common boundary line between two properties, although it may be built off the boundary line when the physical features of the land prevent it. This, however, has ownership implications.

If it is built on the common boundary line, a dividing fence is owned equally by the 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. You should be careful to build your fence on the boundary if you are paying half the cost.

QCAT can help resolve neighbourhood fence disputes—valued up to and including $25,000. QCAT can make a legally enforceable decision on the matter.Going to QCAT should be seen as a last resort. It’s much better if you can resolve the problem together and stay on good terms with your neighbour.

Basic rules for dividing fences

1. There should be a ‘sufficient’ dividing fence between properties if an adjoining owner requests one—even if one or both pieces of land are empty.
2. Usually neighbours must contribute equally to the cost of building and maintaining a dividing fence.
3. You should not attach anything to a dividing fence that could damage it.
4. In most cases, issues about dividing fences need to be solved by the owners of the properties. If you are a tenant, unless you have a long-term lease on the land, you should refer queries over a dividing fence to the property owner or agent.

What is a sufficient dividing fence

A dividing fence is considered ‘sufficient’ if the fence:

• is between 0.5 metres and 1.8 metres high
• is constructed mainly of ‘prescribed material’. This can be:
  • wood, including timber palings and lattice panels
  • chain wire
  • metal panels or rods
  • bricks
  • rendered cement
  • concrete blocks
  • hedge or other barrier made from vegetation
  • other material that fences are ordinarily constructed from
• can restrain the type of livestock grazed on either neighbours’ adjoining pastoral land.

It is also ‘sufficient’ if you and your neighbour agree it is, or QCAT decides it is sufficient. (QCAT takes into account specific factors such as the types of fences found in the neighbourhood.)To work out what makes a sufficient fence for your circumstances, start with what you need to divide the properties—for example, a short chain wire fence may be decided to be sufficient, but if one owner wants more, then they pay the difference.

Would you like to consider this option.

You have a legal right to protect your interests in this important situation.

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