Fencing BrisbanePaling 5 of 5: where the line is
When the boundary is not agreed: sections 12 and 40
When Queensland neighbours do not agree where their common boundary is for fencing work, section 40 lets an owner give written notice that they intend to have it defined by a cadastral surveyor they engage, and the neighbour may, within 1 month, answer with a survey of their own or, if satisfied of the accurate position, their own written advice of where it is. Who pays for the owner’s survey then depends on whether it lands in about the same place as the neighbour said.
General information, not legal or surveying advice. The official place to check is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, listed at the foot of this page with the Queensland Government’s fence owner page.
Which fence is the dividing fence
The Act starts from the line. “A dividing fence means a fence on the common boundary of adjoining lands.” A fence off that line counts only in two cases:
“(2) A fence separating the land of adjoining owners constructed on a line other than the common boundary is also a dividing fence if”
- “(a) it is impracticable to construct a fence entirely on the common boundary of the adjoining lands because of natural physical features; or”
- “(b) the adjoining land includes 1 or more parcels of pastoral land separated by a watercourse, lake, or other natural or artificial feature insufficient to stop the passage of stock at all times.”
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), section 12(2)
The same rule governs building one. When fencing work includes building or replacing a sufficient dividing fence, section 20(2) says it “must be constructed or replaced on the common boundary other than to the extent it is impracticable to do so because of natural physical features.” The Queensland Government puts it plainly: a dividing fence “may be built off the boundary line when the physical features of the land prevent it. This, however, has ownership implications.”
Why the line matters: who owns the fence
Section 19 keeps the common law: “a dividing fence separating adjoining land is, to the extent the dividing fence is on the common boundary, owned equally by the adjoining owners.” Off the line, the government’s page says, the answer changes: “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.” Its advice follows from that: “You should be careful to build your fence on the boundary if you are paying half the cost.”
Section 40, step by step
Section 40 applies “if adjoining owners do not agree on the position of the common boundary for the purposes of carrying out fencing work for a dividing fence.” It runs in this order.
- The notice“An owner may give a written notice to the adjoining owner, or the adjoining owner’s agent, of the owner’s intention to have the common boundary defined by a cadastral surveyor engaged by the owner.”
- Within 1 month“(3) If an adjoining owner is given a notice under subsection (2), the adjoining owner may, within 1 month after the notice is given”, either of these:
- “(a) have the common boundary defined by a cadastral surveyor engaged by the adjoining owner and give the owner written advice of the common boundary as defined by the cadastral surveyor; or”
- “(b) give the owner written advice of the common boundary as defined by the adjoining owner if the adjoining owner is satisfied of the accurate position of the common boundary.”
- The owner’s survey“(4) Unless an owner who has given notice under subsection (2) receives advice under subsection (3)(a), the owner may have the common boundary defined by a cadastral surveyor engaged by the owner.”
- The costSubsections (5) and (6) decide who pays for the owner’s surveyor, as the table below sets out.
The 1 month in subsection (3) is section 40’s own, counted from the boundary notice. It is not the month that follows a notice to contribute to fencing work, which QCAT’s dividing fence disputes page describes.
| What the survey shows | Who pays |
|---|---|
| The owner’s surveyor puts the boundary in about the same position as the neighbour’s own written advice under subsection (3)(b) | “the adjoining owner is not liable for any of the reasonable cost of engaging the cadastral surveyor.” |
| Any other case | “adjoining owners are each liable for half the reasonable cost of engaging a cadastral surveyor under this section to define the position of the common boundary”, and if one pays it all, the other’s half “is recoverable as a debt by the first adjoining owner.” |
The first row is for a neighbour who answered with their own written advice under subsection (3)(b), when the owner’s survey then puts the boundary in about the same place.
When QCAT draws the line
If neighbours still cannot settle it, QCAT’s powers reach the line itself. Under section 35(1), “QCAT may, for an application in relation to fencing work for a dividing fence, decide and order any 1 or more of the following”, and the first item is “(a) the line on which the fencing work is to be carried out, whether or not that line is on the common boundary of the adjoining land;”. And where there is more than one fence on the boundary of adjoining land, section 33(2) says “QCAT may decide which of the fences is the dividing fence for the purpose of this chapter and order the removal of the other fence or fences.”
A fence on an agreed or ordered line leaves the title to the land alone. Section 29 says that when neighbours agree under the chapter to fence on a line other than the common boundary, occupying the land on each side of that fence “does not affect the title to, or possession of, the land.” Section 35(2) says the same of an order.
The fence on the line has its own rules too: what happens when it is damaged and needs urgent repair, what may be attached to it, and how its height is measured in fence heights in Brisbane.