Neighbour disputes QLD: fences, trees and the sale trap

TLDR: Queensland has one Act covering fences and trees between neighbours – the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. Fences are usually a 50/50 job and start with a Notice to Contribute. Overhanging branches have a strict three-part test before you can send a notice. And if there is a QCAT tree order on a property you are selling, failing to hand it over can let your buyer walk away right up to settlement. Call 07 3088 7675 or get the contract checked before you sign.

Neighbour disputes are the legal problem people put off longest. A fence falls over, a branch drops on the shed, nobody wants the awkward conversation, and two years later it is a QCAT application.

The rules are actually clearer than most people think. Here is how fences, trees and the sale trap work in Queensland.

Dividing fences: who pays what

The starting position is simple. Neighbours contribute equally to building and maintaining a sufficient dividing fence. Not the person who wants it. Not the person whose dog keeps getting out. Both of you, half each.

“Sufficient” is doing a lot of work in that sentence. It means a fence that is reasonable for the type of properties involved – it does not mean the fence your neighbour saw on Instagram. If one of you wants something fancier than sufficient, that person pays the difference.

The Notice to Contribute

You cannot just build a fence, send an invoice and expect to be paid. The process is:

• Give your neighbour a Notice to Contribute for Fencing Work. It has to set out the boundary, the fence type, how it will be built, the estimated cost and what you say their share is.
• Attach at least one written quote. Two is better – it makes you look reasonable, which matters if this ends up in front of a tribunal.
• Your neighbour then has one month to reach agreement with you.
• If you cannot agree, either of you can apply to QCAT – but you must do it within two months of the notice being given.

Miss that two-month window and you are starting the whole process again.

The limit most people do not know about

QCAT hears dividing fence disputes up to $25,000, excluding interest. But there is an exception worth knowing: if the dividing fence forms part of a pool barrier, the amount in dispute is unlimited.

That is not a technicality. Pool fencing is the one area where a neighbour dispute can get genuinely expensive, and it sits alongside your pool safety certificate obligations when you sell.

The two deadlines people miss

You cannot apply to QCAT about a dividing fence at all unless you have served a Notice to Contribute first. That is a gate, not a formality.

After the notice is given the clock runs twice. Your neighbour has one month to reach agreement with you about the work and the contributions. If that month passes without agreement, either of you may apply to QCAT, but only within two months of the notice being given. Miss that window and you are back to serving a fresh notice and starting again.

If they object, do not build it anyway

This is where otherwise reasonable people lose money. If your neighbour refuses to contribute, challenges the cost, or disagrees with the type of fence or repair, you must not go ahead, build it, and send them the bill. Serving the notice is what buys you the right to have QCAT decide. Building over the top of an objection does the opposite.

What is not a dividing fence

Plenty of expensive arguments start here. A retaining wall is not a dividing fence, and neither is a wall that forms part of a house or a garage. The dividing fence rules, equal contribution, the Notice to Contribute and the QCAT process, simply do not apply to them.

That matters because a retaining wall is usually the more expensive structure of the two. Who is responsible for one is answered by the title, the original development approval and sometimes an easement, not by the fencing legislation. If your neighbour is talking about “the fence” while pointing at a retaining wall, you are in a different conversation than you think.

What actually happens at QCAT

It depends on the number. If the amount claimed is under $1,500, the matter is listed straight for a hearing with no mediation. Above $1,500 it goes to mediation first, and is only listed for a hearing if mediation does not resolve it.

QCAT can also deal with more than construction and repair. Removing an existing fence, and compensation for damage to a fence, both sit inside the same jurisdiction.

Overhanging branches: the three-part test

You have always been allowed to cut branches back to the boundary at your own cost. What the Act added was a way to make the tree owner pay.

Before you can send a notice, all three of these have to be true:

• The branches overhang more than 50cm over your boundary
• They are less than 2.5m above the ground
• The tree is not covered by a vegetation protection order

Fail any one of those and the notice route is closed to you.

If all three are met, you serve a Form 3 – Notice for removal of particular overhanging branches. Your neighbour has 30 days to deal with it. If they do not, you can arrange the work yourself and recover up to $300 toward cutting and removal. If they refuse to pay, that becomes a minor debt claim in QCAT.

$300 is not much. That is deliberate – the notice is designed for a bloke with a ladder, not a crane and a traffic management plan.

When the notice route is not available

High branches, roots lifting your driveway, a tree dropping limbs on your roof, a protected tree – none of those fit the Form 3 test. For those you make a tree dispute application to QCAT, which can order the tree-keeper to prune, remove or maintain the tree.

QCAT will want to see you tried to sort it out first. Talk to your neighbour, then a Dispute Resolution Centre, then the tribunal. Turning up having done neither does not go well.

The expensive one: selling with a tree order

This is the part that turns a neighbour dispute into a conveyancing problem, and most sellers have never heard of it.

Under section 83 of the Act, if there is a QCAT application or order about a tree on your land, you must give the buyer a copy before they enter into the contract.

Get it wrong and the consequences are not small:

• Section 83 carries a maximum penalty of 500 penalty units – a fine running into tens of thousands of dollars.
• Under section 86(2), the buyer can terminate the contract at any time before it settles, by giving a signed, dated notice of termination to the seller or the seller’s agent. Not within five days. Any time before settlement.
• Under section 86(6), the seller and the person acting for the seller who prepared the contract are liable to the buyer for the reasonable legal and other expenses the buyer incurred after signing.
• Under section 87, if the seller failed to hand over the order and has not done the work by the transfer day, the seller remains liable to carry out the work – even though the land now belongs to the buyer.

Read that last one again. You can sell the house and still be on the hook for the tree.

For agents, the exposure sitting in that third bullet is the reason this is worth knowing before you list, not after. It is the same category of risk as the rest of the seller disclosure regime.

A live fence dispute when you are selling

The tree order rule above is statutory and severe. A fence dispute is a different animal, and the risk is practical rather than prescribed.

An unresolved contribution is a debt argument between two owners. An application already on foot at QCAT is something a buyer’s solicitor may well ask about. And a half finished or damaged boundary fence is the first thing a buyer notices at the pre-settlement inspection. None of that stops a sale on its own, but all of it is far cheaper to deal with before you list than in the week before settlement.

If there is anything live on your boundary, tell your solicitor when you instruct them, not when the buyer raises it.

Before you buy

If the property has a mature tree near a boundary, or a fence that looks like it has been argued about, ask the questions before you sign:

• Is there any QCAT application or order about a tree on the land?
• Has a Notice to Contribute been given or received in the last two months?
• Does any dividing fence form part of the pool barrier?
• Is any tree on the property subject to a vegetation protection order?

None of these show up in a standard title search. They come out of asking, and out of proper pre-contract due diligence.

Frequently asked questions

Can I cut my neighbour’s branches myself in QLD?
Yes, you can always cut back to the boundary line at your own cost. The Form 3 notice process only matters when you want the tree owner to pay, and that requires branches more than 50cm over the boundary and less than 2.5m off the ground.

Who pays for a dividing fence in Queensland?
Both neighbours, equally, for a sufficient fence. If one owner wants something better than sufficient, they pay the difference.

What happens if my neighbour ignores the Notice to Contribute?
They have one month to agree. After that either owner can apply to QCAT, but the application must be made within two months of the notice being given.

Do I have to tell a buyer about a tree dispute?
Yes. Section 83 requires you to give the buyer a copy of any QCAT tree application or order before the contract is entered into, with a maximum penalty of 500 penalty units. If you do not, section 86 lets the buyer terminate at any time before settlement and makes both you and whoever prepared the contract liable for the buyer’s reasonable costs.

Is there a limit on what QCAT can order for a fence?
$25,000 excluding interest for a normal dividing fence. If the fence forms part of a pool barrier, there is no limit.

What counts as a sufficient dividing fence in Queensland?
Between 0.5 and 1.8 metres high, and built mainly from prescribed material: timber palings, chain wire, metal panels or rods, brick, rendered cement, concrete blocks, or a hedge. Anything you and your neighbour agree on also counts as sufficient, and so does whatever QCAT decides is sufficient for your street.

Is a hedge a dividing fence in Queensland?
It can be. A dividing fence is anything that encloses land, so a ditch, an embankment, a hedge or even a creek can qualify, along with gates and cattle grids. It does not have to run the full length of the boundary either.

Who owns a fence that is not on the boundary line?
Whoever owns the land it stands on, even if the neighbour paid half towards it. If you are splitting the cost, make sure the fence goes on the common boundary. A fence built a metre inside one property is that owner’s fence, and the person who chipped in owns nothing.

Is a retaining wall a dividing fence in Queensland?
No. Retaining walls hold back earth rather than divide land, and they are not fences under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. They usually benefit one side more than the other, so the halves rule does not apply. QCAT can still make orders about a retaining wall where fixing the fence requires work on it.

Who pays when a tradesperson damages a dividing fence?
The owner who let them onto the property. If an owner, or anyone they have allowed on, damages a dividing fence they have to restore it to a reasonable standard given its condition beforehand. If they will not, you are back to a Notice to Contribute, or to the urgent fencing work route where the damage cannot wait.

How many quotes do I need before sending a Notice to Contribute?
One is the legal minimum. Two is better and is what most neighbours expect to see. If yours thinks the quotes are high, they are entitled to obtain their own, which is usually cheaper than arguing about it.

Getting it sorted

Most neighbour disputes are cheap to prevent and expensive to litigate. If you are buying, we check for this as part of your contract review. If you are selling with a tree order in the background, tell us before the contract goes out – not after your buyer’s solicitor finds it.

Call 07 3088 7675 or get a fixed-fee quote.