Fencing BrisbanePaling 3 of 5: what hangs on it
Attaching things to a dividing fence: section 27
In Queensland, an owner, or a person on the owner’s land with the owner’s express consent, must not, without the neighbour’s consent, fix something to a dividing fence that “unreasonably and materially alters or damages” it (section 27(1)). If an owner does, the neighbour can apply to QCAT for an order to remove the thing and restore the fence (section 27(2)).
General information, not legal advice. The official places to check are the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 and the Queensland Government’s fence pages, all listed at the foot of this page.
The section, in its own words
“(1) An owner, or a person who has entered the owner’s land with the owner’s express consent, must not, without the consent of the adjoining owner, attach a thing to a dividing fence that unreasonably and materially alters or damages the dividing fence.”
Examples of an attachment: “carport, shade sails, lattice work, canvas, signs”
“(2) If an owner does not comply with subsection (1), the adjoining owner may apply to QCAT for an order requiring the owner to remove the thing attached and restore the dividing fence to a reasonable standard, having regard to its state before the thing was attached.”
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), section 27
Reading the test, part by part
Subsection (1) is built from four parts, and all of them are in the one sentence.
- WhoAn owner, or anyone who entered the owner’s land with the owner’s express consent.
- WhatAttaching a thing to a dividing fence. The Act’s own examples are a carport, shade sails, lattice work, canvas and signs.
- The effectThe thing “unreasonably and materially alters or damages the dividing fence”. Both words are there: unreasonably, and materially.
- The way outThe consent of the adjoining owner.
Subsection (2) then gives the neighbour a remedy against the owner: an application to QCAT for an order to remove the thing and restore the fence, measured against its state before the thing was attached. The same power appears in QCAT’s list of orders. Section 35(1) says “QCAT may, for an application in relation to fencing work for a dividing fence, decide and order any 1 or more of the following”, including “(j) that an adjoining owner remove a thing attached to a dividing fence and restore the dividing fence;”.
The law, and the advice beside it
The Queensland Government’s advice to neighbours goes further than the Act’s test. The Act forbids an attachment that unreasonably and materially alters or damages the fence without consent; the advice is to ask before attaching anything at all. The two are set side by side here so a “should” is never read as a “must”.
| Source | What it says | Kind of rule |
|---|---|---|
| The Act, section 27(1) | An owner, or a person on the owner’s land with the owner’s express consent, must not attach a thing that unreasonably and materially alters or damages the dividing fence, without the adjoining owner’s consent. | Law: “must not” |
| Avoiding disputes about fences | Among its ways “To avoid fence disputes:”, “consult your neighbour before you do any work that could alter or damage a dividing fence”, which, it adds, “includes attaching anything to it”. | Advice |
| Avoiding disputes about fences | “You should get your neighbour’s written consent if you are going to attach anything to the fence, for example: shade sails, lattice work, canvas, signs.” | Advice: “should” |
| Your responsibility as a fence owner | “You should not attach anything to a dividing fence that could damage it.” | Advice: “should not” |
Written consent is the advice’s word, not the Act’s: section 27 speaks of “the consent of the adjoining owner”.
The government also lists attachments among the common ways fence disputes start. A dispute can arise, it says, if you or your neighbour “damages the dividing fence with attachments such as carports, washing lines and shade sails.”
A carport or screen is building work too
Section 27 settles things between neighbours. It does not settle whether Brisbane City Council needs to approve the structure. Council’s page on building near a boundary says the Queensland Development Code sets how far a house or other structure, a carport or a shed for instance, can sit from the front, side and rear boundaries. It adds that even with a neighbour’s permission, Council’s approval may still be needed.
A screen fixed along the top of a fence changes its height as Council measures it, because screens, fences and retaining walls count together; fence heights in Brisbane sets out where the 2 metres is measured from.
When the attachment has already done the damage
If a thing attached to the fence has damaged it, two routes in the Act can meet. Section 27(2) is the order to remove the thing and restore the fence. Damage from a negligent or deliberate act or omission of an owner, or of someone on their land with their express consent, is also within section 26, and if urgent repair is needed, section 28 applies whatever the cause. Both are in damage and urgent repair. How to apply to QCAT is on QCAT’s dividing fence disputes page.