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Good fences make good neighbours

The law in relation to dividing fences is found in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. A dividing fence is a fence on a common boundary of adjoining land. The Act specifically does not affect the common law, which states that a dividing fence on a common boundary is owned equally by the adjoining owners.

The adjoining owners are each liable to contribute equally to carry out fencing work for a sufficient dividing fence. But if one of the owners wants a fence of a greater standard, that owner has to pay the difference between the cost of a sufficient dividing fence and the greater standard fence.

To build a dividing fence and have the adjoining owner contribute to it, it is necessary for the owner who wishes to build the fence to give a notice requiring the adjoining owner to contribute to the cost. That notice must give a description of the land upon the fencing work that is proposed to be carried out, the type of fencing work proposed to be carried out and the estimated costs and must be accompanied by at least one working quotation. The owner requiring the work to be carried out may by notice suggest that the cost can be other than equal proportions. If there is not an agreement within one month, either owners may apply within two months to the Queensland Civil Administrable Tribunal. That tribunal has jurisdiction to adjudicate these matters.

The Act specifically provides that a retaining wall is not a fence, so disputes about retaining walls are dealt with by the common law.

At common law, the lower property owner has an obligation to support the land of the higher property owner. In other words, if the lower property owner cuts the block so as to flatten it leaving a cliff edge for the upper block, the owner of the lower block is required to support that land and that of course is usually done or would almost inevitably be done by a retaining wall. At common law, the land owner in occupation of land has a duty when the land owner is aware or ought to be aware of the hazardous conditions of land, which puts the neighbour’s land at risk to take such steps as that are reasonable in all the circumstances to prevent or minimize the risk of injury or damage to the neighbour’s property. It is not the duty of the land owner to replace the retaining wall or otherwise retain its land at its own expense, but it is a duty to do what is reasonably necessary in all the circumstances. What is reasonable as circumstances is a question of fact and the age of the retaining wall will be one of the relevant facts.

If the retaining wall however is of recent origin and it fails, then it will be the builder of the wall who will ultimately be liable.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 07 February 18

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