Q Solicitors

Can't read this Q Solicitor's Newsletter? View it online

Sunday, 20 May 2012

Dear Visitor,

THINGS PEOPLE SAID - Courtroom Quotations:

Lawyer: 'What gear were you in at the moment of impact?'

Witness: 'Gucci sweats and Reeboks'

Thank you for subscribing to Q Solicitors' e-newsletter.

This month we discuss  the new 'Neighbourhood Dispute Resolution Act' which will provide a modernised framework for dealing with disputes over trees and dividing fences.

We will also provide updates on the status of the commencement date for the PPS Act reforms and Pool Law Enforcement post settlement.

'Harmonious Habitation' - Modernising the Dividing Fences Act 1953

Michael Robotham in his book ‘Neighbours in Dispute – How to Avoid Turning Your Property into a Battlefield’ writes of two neighbouring families in Sydney’s western suburbs who fought for 30 years over who should fix a loose paling on the backyard fence.

Photo courtesy: www.photos-public-domain.com

The feud slowly escalated until it became a way of life for those involved. Young children grew up being force-fed their parents’ bellicose zeal over the dinner table. Trees and flower beds were poisoned, tyres were deflated, lawns were sown with weeds and garbage was dumped over fences.

A “fictitious” advertisement placed in a local newspaper offered the entire contents of one household at a weekend garage sale. The unfortunate family was besieged by 200 bargain hunters.

The dispute could have ended tragically when someone drained the brake fluid from a car.

We all know of someone who has a story to tell of an unsavoury experience with a dispute over a dividing fence or an overhanging tree.

Currently, the existing Dividing Fences Act 1953 applies to dividing fence matters and the common law applies to trees.

However, while not yet passed as Law, this almost 60-year old legislation is to be replaced with the ‘Neighbourhood Disputes Resolution Act 2011’ - a modernised framework which adopts a more contemporary view of neighbour’s responsibilities in dealing with both of these matters under the one legislation.

The updated legislation was passed by Parliament in August 2011 and provides wider definitions to terms such as ‘fence’ and ‘sufficient dividing fence’ to better align with modern structures and clarify positions more clearly for landowners.

A commencement date has not yet been confirmed for the implementation of the new Act, however disputes about dividing fences and trees are to be resolved in the Queensland Civil and Administrative Tribunal (“QCAT”).

When it comes to fences, there are likely to be three disagreements that arise between neighbours sharing a boundary. Under the new legislation administered by QCAT, the following applies:

‘My neighbour wants to erect a fence that is too expensive for me’

Adjoining neighbours are each liable for half the cost of fencing work required to have a sufficient dividing fence. However, where one neighbour wants to have more work done than is necessary for a sufficient dividing fence then they will be liable to pay the extra expenses. For example, if a neighbour wants a higher fence for privacy or security they should meet this extra cost. This does not mean that QCAT will order that the fence will be built according to their wishes. In those circumstances, QCAT would consider the wishes of each neighbour and the other factors which QCAT is required to take into account.

A neighbour's contribution might be made of materials or labour.

‘My neighbour wants to build a fence outside the boundary between our land’

Fences should be built on the common boundary. If you and your neighbour disagree on where the dividing fence should go, there is a special procedure to follow as specified by QCAT. If after following all of the prescribed steps, resolution is still not achieved, QCAT will need to become involved adjudicate.

‘My neighbour wants to build an ugly fence’

According to the new legislation, A dividing fence is considered a ‘sufficient dividing fence’ in the following circumstances:

• where two parcels of residential land are adjoined, the fence must be between 0.5 metres and 1.8 metres in height and constructed substantially of prescribed material
• where two parcels of pastoral land are adjoined, the fence must be able to restrain livestock of the type grazing on each of the parcels of land
• in any case:
  • the owners agree a particular fence is a sufficient dividing fence
  • QCAT decides that a particular fence is sufficient. There are specific factors which QCAT must take into account (e.g. types of fences in the neighbourhood).

In working out what kind of fence is sufficient in the circumstances, the starting point is what will be sufficient to divide the properties, for example, a short chian wire fence. If either owner wants more, then they will have to pay the difference.

When one owner approaches their neighbour about a dividing fence, they should provide at least one quote. If the other neighbour thinks this is too high, they can obtain their own quote.

'Q' is for 'Quick Updates'

Update on Pool Fence Enforcement - Post Settlement

In the August edition of 'Q Newsletter' we welcomed guest writer and Pool Safety Inspector Shayne Wood of 3r Environmental who discussed Pool Safety Laws.

The below extract from a Pool Safety Council (PSC) Newsletter provides an update on the requirements for Pool Safety Compliance after the settlement of a recently sold property:

“Notice of no pool safety certificate (form 36)

The Department of Local Government and Planning has commenced issuing infringement notices to pool owners who have failed to obtain a pool safety certificate within 90 days of settlement, after the sale of a property. PSC staff have received a number of calls where the pool owner alleges their PSI has advised them they have 90 days from the issue of a nonconformity notice (form 26), to obtain a pool safety certificate.

There are two separate issues in this situation that PSI’s should communicate to the pool owner. If the property has recently been sold and the pool does not have a pool safety certificate by date of settlement, the purchaser has 90 days to ensure a pool safety certificate is obtained. There is no flexibility with this 90 days and the issue of a form 26 will not extend this time frame.

Issuing a form 26 will give the pool owner three months (reinspection period) to ask the PSI to reinspect the pool. This is a separate matter to the purchaser who had the 90 days from date of settlement.”

Update on Personal Property Securities (PPS) Act  - Commencement date postponed

'Q' is for 'Quick Quizz'

Very Tricky Maths

'Q' is for Questions

Do you have any legal questions you would like to ask?  Perhaps you would like us to discuss a particular topic in our next newsletter.  Let us know how we can help by sending an email to: enquiries@qsolicitors.com.au