Are you finding yourself in a dispute with your neighbour? Under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2001 (‘the act’), there a 2 main forms of disputes covered namely, dividing fence disputes which relate to fences and retaining walls, as well as nuisance related disputes including but not limited to trees and encroaching on land boundaries.
Under s7 of the act, it provides that you have the right to a dividing fence and that neighbours must contribute equally to the building and maintaining of a sufficient dividing fence and that they must not attach something to a dividing fence that materially or unreasonably alters or damages it.
To begin the process, you will need to provide your neighbour with a ‘Notice to Contribute to Fencing Work’ which can be found on the Queensland Government Website. It is required to be provided to your neighbour in this format outlining, where, what and how, as a simple letter to the neighbour is no longer sufficient. If you have had to attend to urgent fencing work, you may seek reimbursement by providing your neighbour with a ‘Notice to Contribute to Urgent Fencing Work’. You only be eligible for reimbursement if the Notice is given.
If an agreement cannot be reached within 1 month, you may bring an Application to QCAT to seek orders regarding a dividing fence or if it is an urgent dividing fence work, you can seek orders for contribution after the fact if they have not agreed to pay within 1 month.
Under s40 of the act, it provides that if neighbours are unable to agree on a common boundary for carrying out the fencing work, an owner may give written notice to the adjoining owner to notify them of the owners intention to have the common boundary defined by a cadastral surveyor.
The adjoining owner may give the owner written advice of the common boundary as defined by their own view if they are satisfied with the position of the boundary.
Once the surveyor has been engaged and has determined the position for the common boundary, the costs can be worked out as follows:
- If the position for the common boundary is the same as the position provided by the adjoining owner’s written notice, then they will not be liable for any costs; or
- If the point a, doesn’t apply then each party will be liable for half the reasonable costs of engaging a surveyor. If one party pays the entire costs, they may recover the half payable by the adjoining neighbour as a debt.
Under s52 of the act, it provides that you are responsible in ensuring that you cut and remove and any branches of a tree that may be overhanging into your neighbours land. It is your responsibility to ensure that the tree does not cause:
- Serious injury to a person; or
- Serious damage to a person’s land or any property on a person’s land; or
- Substantial, ongoing and unreasonable interference with a person’s use and enjoyment of the person’s land.
Under the Act, a neighbour has the right to exercise the common law right of abatement by removing part of the tree that is overhanging in the property, you.
To do so, you will need to provide the owner with a notice to cut the branches that are overhanging within a time frame of 30 days from the notice, if it is not completed within time you may have complete it yourself and charge the reasonable expenses. It is noted that the remedy is limited to $300 a year and is only applicable if the branches are overhanging the boundary by 50cm and if the tree is up to 2.5 metres off the ground.
The act encourages neighbours to attempt to resolve a dispute over a dividing fence issue informally prior to making a further claim with QCAT.
If these disputes are not handled carefully and appropriately it may escalate the matter unnecessarily, with matters escalating to involve defamation or harassment.
If you feel you may be in a dispute or need assistance in relation to a neighbourhood dispute please feel free to call our office on 07 5444 4750 or email at [email protected]illersockhillllawyers.com.au