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Neighbour dispute: replacing wire fence with timber

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  1. #1
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    Default Neighbour dispute: replacing wire fence with timber

    Hi all, hoping I can get some advice regarding my rights on this and any recommendations on courses of action:

    Background:

    We live on a very busy road in Brisbane.

    About 18 months ago, we decided to replace the existing fences with 6 ft timber paling fences. I spoke to my 3 neighbours and 2 of them were happy to share the cost and replace existing wire and rotten timber fences. The 3rd (south side) neighbour refused - but also would not allow me to replace the existing boundary fence with a timber one at my own cost. In the end we erected a small (5 metre) section of the 25 metre boundary in front of the wire fence which was at the back of the yard so we could at least have some privacy there.

    These shots provide some context:

    1) The small section of timber fence in front of wire
    fence_-2.jpg


    2) At the back - the wire fence with neighbour's foliage on display
    fence_-3.jpg

    3) Wire fence towards the front (all foliage belongs to her, but who'd know?)
    fence_-1.jpg

    Current situation

    We now want to complete the fence. We have a new larger car and the drive is pretty narrow which means if we erect a fence in front of the existing it will make getting out of the car impossible for one of the sides. This is besides losing a significant piece of my property in the process.

    Discussions to date

    We have been dealing with the owner via the letting agent (she lets the place out). She is absolutely immovable, and her main points of contention are:

    a) A high fence will result in it being difficult to see pedestrians when reversing out of the drive (we point out that we're about to install a timber gate, so that point is moot besides the fact that almost every house in the street has a high fence due to the busy rd).

    b) That the ground on her side will remain moist as the timber fence will prevent the sun reaching it ()

    Brisbane city council

    My partner has been talking to BCC but can't seem to get any straight guidance. We've given her 30 days notice for a response to our request but she's not responded, despite being advised by the agent that she would return a written response. We're now submitting a mediation request to the council. The council website has a lot of information which covers sharing fence costs and other fence disputes but I can't seem to see anything covering this situation.

    Questions

    Can we just remove her fence and replace with a 'better' fence? Would this be illegal (it's our boundary too, so what if she was 'there first'!)?

    Are we missing a trick in how best to deal with this? Or is going through mediation (we suspect she will not budge anyway) the best course of action.

    Legal action will likely be unaffordable for us, but would we have a decent case (in which case she would need to pick up costs). I really don't want to go that way anyway!!

    What would you do??


    Thanks all, appreciate your thoughts. Cheers, zoutie.
    Attached Thumbnails Attached Thumbnails fence_-4.jpg  

  2. #2
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    You cant just knock her fence down and you cant ask her for half as there is an existing fence already there. What you can do is build your fence hard up on the one that is there - I would do it touching the boundry but all on your side - and she can keep her precious fence while you have your new timber fence. Everyone has a right to fence their property and you have tried to be civil so just do what you gotto do. Not a lot she can do about it. Similarly she could paint the side of her house bright pink and there isnt much you could do about that.

  3. #3
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    p.s. dont waste your time with council they are useless and will just waste your time. If you're still worried and want a professional answer ask a private certifier.

  4. #4
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    Cheers Stevoh, yes that is the last resort though I want it on the boundary line (and happy to pay for removal/erection) due mainly to the narrow driveway. And its also a pita to fix the rails through the wire fence.

    If I have to follow that route then I will be pre-painting it luminous pink with green spots on her side. Or perhaps I'll commission a graffiti artist...

    Ps: how do I become a flaccid member?

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    You get a limp

  6. #6
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    Quote Originally Posted by zoutie View Post
    Ps: how do I become a flaccid member?
    its the one just before Long Member

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    Quote Originally Posted by stevoh741 View Post
    its the one just before Long Member
    I can't re member.
    Posted by John2b, And no, BEVs are not going to save the planet, which doesn't need saving anyway.

  8. #8
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    Have you considered a compromise - build a six foot fence along the full boundary, but slope the last two panels down to 4 foot. This would obviate the issue of visual access and is, in my experience, the preferred approach to these things. As regards the argument of overshadowing, that is a complete nonsense in Brisbane*, particularly when her grounds are clearly heavily vegetated anyway. I would be checking out the boundary fences act (or whatever they call it in Queensland these days). I seem to recall they revised it and made it possible for one neighbour to replace the fence (at their expense) in the face of opposition. I may be wrong, but well worth reading up on it. Council is not a party to boundary disputes and while they offer a service, (be grateful they do - most don't) it will not be a comprehensive service.

    *I had a property in Wooloongabba with six foot fences one all sides - and no problems with lack of sunshine on my 340msquare block

  9. #9
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    Quote Originally Posted by Black Cat View Post
    Have you considered a compromise - build a six foot fence along the full boundary, but slope the last two panels down to 4 foot. This would obviate the issue of visual access and is, in my experience, the preferred approach to these things. As regards the argument of overshadowing, that is a complete nonsense in Brisbane*, particularly when her grounds are clearly heavily vegetated anyway. I would be checking out the boundary fences act (or whatever they call it in Queensland these days). I seem to recall they revised it and made it possible for one neighbour to replace the fence (at their expense) in the face of opposition. I may be wrong, but well worth reading up on it. Council is not a party to boundary disputes and while they offer a service, (be grateful they do - most don't) it will not be a comprehensive service.

    *I had a property in Wooloongabba with six foot fences one all sides - and no problems with lack of sunshine on my 340msquare block
    Thanks for that black cat. The slope idea is a good one, but since the fence will butt up against a 6ft gate it will look odd and also negate her concern (when gate is closed you wouldn't be able to see the road even if no fence)

    I will look into the fences act, thanks for the tip.

  10. #10
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    Default Neighbourhood disputes act 2011

    Cheers Black Cat, I looked into it and found this article from Nov 11 which changed the laws in Qld, but to summarise:

    The new Neighbourhood Disputes Resolution Act replaces the 60-year-old Dividing Fences Act, providing “more effective remedies” to resolve disputes about dividing fences and trees. The Queensland Civil and Administrative Tribunal, rather than the courts, will be responsible for dealing with tree and fence disputes that get out of hand.

    Under the laws, a person can issue a notice to a neighbour whose tree has branches hanging more than 50 centimetres over the boundary and less than 2.5 metres above the ground, with the tree-keeper urged to cut them within 30 days. You can bill up to $300 per year.

    Anyway, where it deals with my issue is is not particularly helpful. The act is attached for future reference or here

    Part 5 - Process for dealing with unauthorised construction or demolition
    38 Application before unauthorised construction or demolition
    1. If an owner believes on reasonable grounds that an adjoining owner intends to construct or demolish a dividing fence without authorisation, the owner may apply to QCAT for an order preventing the adjoining owner from constructing or demolishing the dividing fence.
    2. The owner must give the adjoining owner a copy of the application at least 1 day before the application is heard.
    Note—
    Under the Acts Interpretation Act 1954, section 38(3), if the day before the application is heard falls on a day that is not a business day, the last day for giving a copy of the application is taken to be the next earlier business day.
    3. On application under this section, QCAT may make an order preventing the adjoining owner from constructing or demolishing a dividing fence.

    39 Application after unauthorised construction or demolition
    1. If an owner constructs or demolishes a dividing fence without authorisation, the adjoining owner may apply to QCAT for an order requiring the owner to remove, modify or rectify the fence.
    2. The adjoining owner must give the owner a copy of the application at least 3 days before the application is heard.
    3. On application under this section, QCAT may make an order requiring the owner to—
    (a) remove, modify or rectify the fence; and
    (b) bear the costs of the removal, modification or rectification.



    11AC025.pdf11AC025.pdf

  11. #11
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    Bother, Sorry to hear that - good ole queensland eh? Here any vegetation over the boundary you can cut by right of law. Any roots interfering with your property you can serve notice and make sure you copy your insurance into it, and fences are still by negotiation (which with my psycho neighbour was a rather laborious process. Well, good luck sorting it out. I think I would just opt for a high 'screen' (aka fence) on my side of the boundary in your case then.

  12. #12
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    So that covers dividing fences, but if you contain the fence solely on your side, as suggested above, and leave the dividing fence there, then what can they possibly do about it?

  13. #13
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    Cheers for the replies. Yes there's nothing that they can do if I put a fence on the inside, which is why I did that for part of the way (see first pic posted). But because it is so narrow, and I still need to allow space for future carport posts, I need it ON the boundary line.

    IMO a timber lap and cap fence is a 'better' fence - so if I remove her fence and and replace with timber at my cost - would I really be made to tear it down and replace with wire again?! I wonder, I am tempted to just do it.

    Incidentally she has done a major clear of some of the encroaching trees this week, although that is a side issue for me.

    Cheers
    Zoutie

  14. #14
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    Ps I'll fix those attachments when I can, they're not appearing for me via tapatalk

  15. #15
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    why not make your future carport posts part of the fence? shouldn't be an issue if it is completely constructed on your land?!
    hope this helps!

  16. #16
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    Got there before me Pete - I would do the same if there are no set-back requirements in the local plan (best to check before you build or you will end up making some poor public servant's life hell having to go to a tribunal about it).

  17. #17
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    Thanks guys, yes I have been thinking about posts as part of the fence too, and since I am putting deck plans in anyway (and as part of that a boundary relaxation request) I'm going to see if I can get some economies and add the carport to it as well, despite the construction of that being a long way off.

    I will no doubt receive a lot of pushback on the boundary relaxation too from the neighbour but I have to approach this some time (setback is 900 I believe which i can't give away in the narrow drive)

    Cheers
    Zoutie

  18. #18
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    Fingers crossed they send the letter to the address and the tenant's don't forward it on...

  19. #19
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    If you are thinking of putting it on the boundary, play safe and get a surveyor to accurately establish the boundary - you could even be pleasantly surprised if the current fence is not where it should be (or terribly disappointed).
    DIY electrical wiring to AS/NZS3000 - details here - http://goo.gl/9d33T (PDF file)

  20. #20
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    I was advised by a surveyor (while living in Woollongabba) that it might be a big disappointment - like the boundary might run right through my living room), so I would do that discreetly if I were you - not something to share with the neighbour if they own half the land your house is sitting on.

  21. #21
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    Default The Law

    The current legislation in Queensland is the Neighbourhood Disputes Resolution Act 2011 You should read it - Chapter 2 Dividing Fences -particularly parts 3 and 4 - link provided. http://www.legislation.qld.gov.au/LE...hDisResA11.pdf It's not that hard to read and is pretty much written in plain English (well as plain as the lawyers can make it)

    Queensland Civil and Administrative Tribunal (QCAT) is the applicable tribunal. If you want to fence, have a good reason to fence - go the the local Magistrates Court (Central, Sandgate, Holland Park, Wynnum etc) and apply under the UCPR (Uniform Civil Procedures Rules). Costs are negligible - usually less then $200 and solicitors are usually barred from the proceedings and costs are not usually awarded if you fail. So - give it a go

    This act (Chapter 3) also covers neighbourhood trees overhanging your property. When you start billing her for overhanging tree removal - she may be more amenable to a new fence.

    Hope this helps

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  23. #23
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    Thanks very much guys

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