Question: Our neighbour in a standard format complex has put up a new fence, taller than the existing ones and without consulting anyone. The committee says it’s allowable. Is that correct?
Our side neighbour in a standard format complex has erected a new fence without consulting any of the adjoining lots. It’s higher than the existing fences and looks out of place compared to the rest of the complex.
The committee advised it’s allowable. Is that correct?
Answer: Whether the body corporate can act depends on where the fence sits and what your by-laws say, though standard format lots may be exempt from the appearance by-law requirements that would otherwise apply.
Generally, if a fence is erected on a boundary line between two properties, it needs to be approved by the parties on both sides.
In a body corporate, usually for fences dividing an owner’s property from the common property, both the owner and the body corporate need to agree to the new construction. If the fence divides one owner’s property from another owner’s, those parties need to agree.
It’s not really clear from the question, but I think you are talking about a fence between two private lots. If this is the case, you would presume that the parties have agreed to put the fence in place. However, if one party didn’t agree, they have a right of complaint about this and should negotiate with their neighbour or take legal action, as necessary.
See the Queensland Government website for details about this here: Your responsibility as a fence owner
In this case, it seems that the fence is not on your boundary, but you are querying the appearance of the fence. It does not match the other fences in the area in terms of height.
This could be a body corporate issue. Most by-laws have regulations regarding the appearance of the lot, requiring owners to be consistent with the rest of the scheme. Check your own by-laws. For reference, the standard Schedule 4 by-laws state:
Appearance of lot
- The occupier of a lot must not, without the body corporate’s written approval, make a change to the external appearance of the lot unless the change is minor and does not detract from the amenity of the lot and its surrounds.
- The occupier of a lot must not, without the body corporate’s written approval—
- hang washing, bedding, or another cloth article if the article is visible from another lot or the common property, or from outside the scheme land; or
- display a sign, advertisement, placard, banner, pamphlet or similar article if the article is visible from another lot or the common property, or from outside the scheme land.
- Subsection (2) (b) does not apply to a real estate advertising sign for the sale or letting of the lot if the sign is of a reasonable size.
- This section does not apply to a lot created under a standard format plan of subdivision.
Note—
Under the Building Act 1975, sections 246R and 246S, a body corporate can not withhold consent for particular activities stated in the sections that might change the external appearance of a lot.
The first clause states that the body corporate must approve non-minor changes that don’t detract from the amenity of the lot and the surrounds. Your by-laws will probably have something similar.
If you feel that the fence unreasonably affects the appearance of the complex, you could make a complaint to the body corporate and ask them to take action. You could issue a Form 1, advising of a breach of by-law if necessary.
Will other owners agree with you or take any action? We can’t see the fence or your complex, and any opinion here may be subjective.
I guess that if challenged about the fence, the owners would cite the desire for greater privacy as the reason for raising the height, and this doesn’t seem unreasonable. You might have a hard time arguing that it is. Things change over time, and that’s not necessarily wrong. Provided the fence met any council height restrictions, my feeling is that many people would understand the desire for greater privacy.
This post appears in Strata News #790.
William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924
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