Know your boundaries (Part 2)
In our last article, we discussed how to discover your boundaries and the rules on give and take fences.
Dividing Fence Contribution Requests for Cane Farms
In this article, we’ll continue on with this topic and confirm the legal position specific for cane farms in our region and what a farmer can do if you are served with a notice to contribute towards boundary fencing work.
While the general rule under the Dividing Fences Act is that each party is to contribute equally to the cost of a dividing fence, most cane farmers don’t want dividing fences constructed at all, as it affects the access they need to their farms for their tractors and harvesters, etc.
Fortunately, to date, the Courts have taken the access needs of farmers into consideration when making decisions when a grazing, commercial or residential neighbour has served a cane farmer with a notice to contribute towards fencing work.
Historically, the Courts have made findings that a cane farmer should not be required to contribute towards the cost of a dividing fence as it is of no benefit to them.
However, each case is dependent on its own facts and there is of course no guarantee that the Court will always find in favour of the cane farmer in these applications.
What Does A Neighbour Need To Do To Request You Contribute Towards A Boundary Fence?
If a landowner wants to construct a dividing fence and wants the neighbour to contribute towards such cost, they first need to serve the neighbour with a specific notice called a Form 2 “Notice to Contribute for Fencing Work”. This notice needs to be served on the neighbour personally or by registered mail for it to be considered validly served and delivered.
The Notice will set out:
the properties it relates to,
what type of fence the person serving the form (“Applicant”) wants to install,
the cost of it, and
each neighbour’s proposed contribution of the cost of the fencing work (typically being 50/50).
Quotes for the fencing work need to be attached to this form.
Are There Specific Time Frames To Respond To A Request?
The neighbour who receives this request from the Applicant, (called the “Respondent”) has one (1) month to confirm agreement to the proposal by signing and returning the ‘Agreement to Contribute Towards Fencing Work’ which is at the back of this Form 2.
If the Respondent does not agree to the proposal to make a contribution towards the fencing work, they should reply and notify the Applicant in writing also within one (1) month.
In order to avoid the cost, time and stress of having to respond to an application in Court, we recommend you respond to an Applicant within the one-month period of receiving the above notice, confirming whether you agree and if you do not agree to the fencing work, you set out clearly in writing the reasons that you do not agree.
If relevant, your response should confirm that a boundary fence is of no benefit to your farm as it restricts the access you need to your paddocks to undertake your usual farming practices such as irrigating, planting, fertilising and harvesting your crop, etc.
If no response is provided to the Applicant within one (1) month of receiving the Form 2 Notice, then the Applicant may lodge an Application with the Court within the next two (2) months.
The Court that hears these types of applications is most often the Queensland Civil and Administrative Tribunal (“QCAT”), which is the small claims court that hears matters in Queensland where a claim involves sums of less than $25,000.
Once an Application has been lodged with QCAT, it must be served on the Respondent (either by personal service or by registered mail) within 7 days in most cases.
QCAT will then organise the parties to attend an oral hearing to each present their case where a final decision is made. QCAT may also require the parties to undertake mediation at the parties cost before hearing the matter in an attempt to have the matter resolved without needing to take up the Court’s time and resources. The costs of a mediator are most often shared equally between the parties.
The costs to attend Court can be expensive, especially if the Court believes you have acted unreasonably and/or not attempted to resolve the matter amicably, in which case they can make a finding that you are to pay the other parties’ costs.
If you are served with a Notice to Contribute Towards Fencing Work from a neighbour and you are unable to resolve the matter directly with them, you should seek immediate legal advice.
The content of this article is intended to provide a general guide to the subject matter. Specific advice should be sought about your particular circumstances.