QLD Asbestos Boundary Fence between Business and Residence

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

mmo

Member
27 March 2020
2
0
1
A boundary fence at the back of the neighbour's property turns out to be asbestos. They are a business and they were served with a WHS infringement for no Asbestos Management Plan. They approached us to share in the cost of tearing down the fence and erecting a new one. We aren't sure that we are obligated for half of their tear-down -- we're told by a friend that a business in their position should be responsible for the entire removal of the asbestos, and then maybe we're in it for half of the new fence? Can anyone offer a comment on this situation?
 

Rob Legat - SBPL

Lawyer
LawTap Verified
16 February 2017
2,359
498
2,394
Gold Coast, Queensland
lawtap.com
Dividing fence matters are regulated by the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. Under the Act:
- Adjoining owners are liable for contribution to fencing work to create a sufficient dividing fence; and
- Fencing work includes replacement, removal, repair and maintenance of the whole or part of the dividing fence.

I can't see anything in the Act that makes the issue different for particular types of fences, such as asbestos.

The Act sets out what a sufficient dividing fence is. In most cases it is:
(a) Between 0.5m and 1.8m high (but it can be higher, really);
(b) Substantially made of a prescribed material, being: wood, chain wire, metal panels/rods, bricks, rendered cement, concrete blocks, hedge/vegetative barrier, or "other material of which a dividing fence is ordinarily constructed".

The thing with asbestos, at least in Queensland, is that it doesn't have to be removed unless it becomes damaged - it is considered not to be a risk to health while it is in a 'bonded' state. Removal of asbestos is regulated and must be done in the approved manner, and liability for the removal of asbestos rests with the owner of the property.

So, providing the fence is in good, undamaged condition, and given that asbestos bonded material were commonly used in construction at the time the fence was constructed, it is likely that the fence will be considered a 'sufficient dividing fence' in its current state.

If that is the case, then then neighbour has to bear the whole cost of removal and replacement because the fencing work isn't necessary.