As all farmers know, maintaining your fencing is a key part of operating a successful farm. So what happens when a dividing fence (i.e. a fence constructed on a common boundary of adjoining land) needs fixing or replacing? Whilst neighbouring farmers are often able to reach a casual agreement as to fencing work and costs, it is helpful to know what the actual law says in case an agreement cannot be reached.
The general rule – 50/50
In Queensland and NSW, owners of adjoining land are liable in equal shares for a dividing fence on a common boundary of adjoining land.
However, this rule does not apply where the adjoining land is, for example, unallocated Crown land, a stock route, state forest, public park, reserve etc. In those cases, the public authority with control over the adjoining land is not liable to contribute towards dividing fencing costs. However, you may be able to negotiate with the authority for a contribution towards costs.
What is a ‘standard’ fence?
If you want a fence which is to a standard greater than the standard for a sufficient fence, you would be liable for the extra costs. For example, a sufficient fence for pastoral land means a fence sufficient to restrain livestock of the type grazing on each of the parcels of land.
There is no definition of a ‘standard’ fence; however, the Court will consider the type of fence common to the area and the purpose for which the adjoining lands are used. Courts have held that landowners will only be entitled to recover a proportion of the cost of a new fence which is typical of the type of fence found in the locality.
My dividing fence needs repairing. What do I do?
You must give your neighbour one month’s written notice with the appropriate form, which must include:
- a description of the land on which the fencing work is proposed to be carried out;
- the line on which the proposed replacement fence will be;
- the type of fence proposed; and
- the estimated cost of the fencing work (including cost of labour and materials). In Queensland, you must include at least one written quotation with your notice. In NSW, you must include 2 quotations.
In Queensland, the notice to contribute can be found here.
In NSW, the fencing notice can be found here.
Ensure you retain a copy of the notice for your records and note the date it was delivered or posted to your neighbour. There is a section at the end of the notice for your neighbour to complete and sign, stating whether they agree to contribute to the proposed fencing work.
I cannot reach an agreement with my neighbour. What are my options?
You cannot recover the costs of the fence without completing the steps mentioned above. If you follow those steps and are unable to reach an agreement within one month of the notice being given to your neighbour, you can:
- contact us and we will issue a letter to your neighbour advising that you intend to take the matter further;
- contact a Dispute Resolution Centre to provide assistance in resolving the issue through mediation; and/or
- if you are in Queensland, file a claim in the Queensland Civil and Administrative Tribunal (if the fencing costs are less than $25,000) or the Magistrates Court (if the fencing costs exceed $25,000). QCAT/the Magistrates Court will then make an order about the fence and the amount you and your neighbour must pay;
- if you are in NSW, file a claim in the NSW Civil and Administrative Tribunal (if the fencing costs are less than $40,000) or the Local Court (if the fencing costs exceed $40,000). NCAT/the Local Court will then make an order about the fence and the amount you and your neighbour must pay.
Can I go ahead and start the fencing work without my neighbour’s agreement?
Until an agreement is reached between you and your neighbour or a decision is made by a tribunal or Court, do not arrange for the fencing work to be carried out if you want to be able to recover some of the costs from your neighbour, unless it becomes urgent to do so.
If you believe the work is urgent, it is important to obtain legal advice before you proceed further. Whether or not fencing work will be considered “urgent” depends on the individual circumstances of your matter and the applicable state legislation.
For more information, please contact our property team on 07 4671 6000.