This article is about how to get body corporate approval for an existing fence in Qld.
Question: Can the committee retrospectively approve a fence that was built on common property without approval before I purchased my unit?
The previous owner built a fence on common property before I bought my villa unit, and never told me about it. Most residents don’t mind, as it’s behind a garden and sits directly in front of my unit. There’s still access to services. My unit faces the street, bins, and car park, so no one would use the area if there were no fence.
The treasurer wants the fence taken down because it breaches the bylaws. I’m worried about safety if the fence is removed. In Qld, how do I get body corporate approval for an existing fence? Can the committee approve it retrospectively? The complex is a small 1998 scheme.
Answer: Is it reasonable for other owners at the site to carry the risk and responsibility for you to have a facility they do not benefit from?
The question suggests that a previous owner installed the fence to create a private use area for your lot – an area only you access and have responsibility for maintaining.
At the time, owners may have agreed to this on an informal basis. Still, the installation of the fence has effectively created an exclusive use area, and the creation of a by-law should have confirmed this to establish your right of use and responsibility to maintain the area.
Just because this wasn’t done in the past, there is no reason why it can’t be done now. There would be some cost – a lawyer and probably a surveyor would need to be engaged, and a new CMS would need to be filed. As you benefit from the change, you would most likely be expected to pay for this. Approval would also need to be obtained through a meeting, likely via a motion without dissent, meaning that all individuals who vote at the meeting would have to agree to the proposal.
Does this sound like a lot of fuss and unnecessary expense for a small scheme and to approve a fence that doesn’t seem to be causing any bother? Maybe, but it’s the technically correct solution.
What you need to consider is that the land behind the fence, which you probably consider your garden, belongs to the body corporate. That means the body corporate continues to carry the liability for this area, as well as the right to use the land in an alternative fashion that may not suit you. What would happen if an accident or injury occurred on this land, or if the body corporate needed to excavate it to install new utility infrastructure? If the responsibility for the land is unclear, a potentially complex situation can arise.
These events may seem unlikely, but body corporates need to consider these possibilities and take reasonable action to mitigate their risks. Ask yourself whether it is reasonable for other owners at the site to carry the risk and responsibility for you to have a facility they do not benefit from?
I don’t think this means that you have to take your fence down immediately just because it hasn’t been correctly improved, but now that another owner has raised the situation, you should see it as incumbent upon yourself to try and bring the matter to a more formal, permanent conclusion. A previous owner may have installed the fence, but now that it is your property, you are responsible for addressing the situation. Discuss the options with the other owners and seek legal help if required.
William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924
This post appears in the November 2025 edition of The QLD Strata Magazine.
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