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Neighbourly divides

Feature Articles

Cite as: April 2015 89 (4) LIJ, p.40

The Fences Amendment Act 2014 comprehensively amends the law to make processes in the Fences Act 1968 clearer and provide parties with greater guidance about their obligations. 

By Mia Hollick

Fencing disputes often involve relatively small monetary amounts, but they affect thousands of Victorians every year and can be serious for the people involved. Practitioners are only likely to become involved once negotiations between neighbours have deteriorated. Recent amendments to the Fences Act 1968 (Vic) (the pre-amendment Act) provide clarity about the rights and obligations for dividing fences, with the aim of reducing neighbourhood disputes and providing accessible, streamlined processes for early resolution when disputes arise.

The pre-amendment Act was the subject of a Victorian Parliamentary Law Reform Committee report in 1998 and a further review by the Victorian Government in 2011-12. Following this, the Fences Amendment Bill was passed in Parliament in April 2014 and the Fences Amendment Act 2014 (Vic) (the amended Act)1 commenced operation on 22 September 2014.

This article outlines some of the main changes for practitioners to note.

Shift in liability from occupiers to owners

Under the pre-amendment Act, occupiers of land were liable for dividing fences. In many cases, but not all, the occupier of the property was also the owner. Occupiers’ liability created uncertainty in some circumstances. For example, a tenant could be an occupier but was then subject to specific provisions about how fencing costs should be apportioned between them and a landlord.

The amended Act clarifies liability for dividing fences by making the owners of the land responsible. In most instances, the owner is the registered proprietor of the land or the holder of an estate in fee simple. For practical reasons, some other categories of interest-holder are deemed owners for fencing responsibilities, such as an owners’ corporation for a dividing fence between common property and land external to the owners’ corporation subdivision.

There are particular exemptions from the definition of “owner”, including municipal councils, trustees and other persons and bodies that own or manage land for the purposes of a public park or public reserve. The Crown exemption from making contributions to dividing fences remains unchanged, except for consequential amendments, so that it remains effective in the amended Act.

Precedence of agreements

The pre-amendment Act provided that generally nothing in the Act affected any covenant, contract or agreement between occupiers of adjoining lands, or between landlord and tenant, about fencing (pre-amendment Act s30).

However, the priority given to agreements was not absolute – no contract or agreement could annul, vary or exclude any of the provisions of Part I of the pre-amendment Act, which dealt with construction of dividing fences (pre-amendment Act s4(2)). This meant, for example, that the rules relating to apportionment of costs between a landlord and a long-term tenant (which appeared in Part I of the pre-amendment Act) applied rigidly and could not be derogated from, even where a lease agreement specifically addressed who was to pay for fencing works.

This position is changed by the amended Act. Generally, the rules in the amended Act only apply insofar as they are not displaced by a contrary agreement between the parties. For example, an agreement takes precedence where:

  • adjoining owners are able to agree about fencing works without following the processes in the amended Act (s12);
  • adjoining owners agree that they will not contribute to a sufficient dividing fence in equal proportions (s7); and
  • adjoining owners agree about the side of the fence on which rails and framing should be placed (s32).

Sufficient dividing fence

The pre-amendment Act required occupiers to contribute in equal proportions to “a fence sufficient for the purposes of both occupiers” but it provided no guidance about what was meant by “sufficient” and (except in the case of agricultural land) did not specify what should happen when occupiers differed about what was a sufficient fence for each of their purposes.

The amended Act makes owners liable to contribute in equal proportions to a “sufficient dividing fence” and sets out a range of factors that are to be taken into account when determining what is a “sufficient dividing fence” for the particular properties. Considerations include:

  • any existing dividing fence;
  • reasonable privacy concerns;
  • the purposes for which the properties are used or intended to be used; and
  • any relevant policy or code of the local council.

Where a sufficient dividing fence is different for owners on either side, the lesser standard of fence (usually the less expensive fence) is the sufficient dividing fence. If one owner requires a dividing fence that is of a greater standard – for example, a dividing fence that is higher or made of more expensive materials – then they are required to pay the difference in cost between a sufficient dividing fence and the higher standard.

Given the range of different purposes for which properties may be used, and the various planning and local laws that might apply, it is not possible to exhaustively define “sufficient dividing fence”. It is context-dependent and may be one area about which owners considering fencing works seek legal advice.

Notice requirement

Under the pre-amendment Act, an occupier was only required to give a fencing notice if they wanted:

  • “to compel any other person to construct or join in or contribute to the construction of a dividing fence” (pre-amendment Act s6); or
  • “the occupier of adjoining lands to repair, or join in or contribute to the repairing of, a dividing fence” (pre-amendment Act s15).

This meant that an occupier who was willing to pay for the fencing works and not seek a contribution from the adjoining occupier could act unilaterally and undertake fencing works without seeking the adjoining occupier’s agreement.

Unless adjoining owners have already agreed about fencing works, the amended Act requires a fencing notice to be given before fencing works (or any subsidiary works to allow fencing works to take place) can be undertaken, regardless of whether a contribution is being sought from the neighbouring owner. The fencing notice must contain particular information and may be in the prescribed form. The notice forms the basis for adjoining owners to negotiate and agree about fencing works and an agreement that follows a fencing notice is subject to the timeframes and recovery provisions in the amended Act.

If an owner undertakes fencing works that are not in accordance with an agreement, an order of the Magistrates’ Court, or otherwise in accordance with the Act, the adjoining owner may commence Magistrates’ Court proceedings against the owner who undertook the works. The adjoining owner may claim, for example, that the dividing fence that was there was already a sufficient dividing fence and no works were required, or that the new dividing fence that has been built is of a standard greater than a sufficient dividing fence and the other owner should bear the majority of the cost.

Further, if an owner of land damages or destroys a dividing fence and the damage or destruction did not occur in the course of “authorised fencing works” (that is, works authorised by an agreement, a Magistrates’ Court order or otherwise by the Act), the owner who damaged or destroyed the fence is solely liable for the cost of repairing or replacing it. For example, an owner of land who demolishes a dividing fence for the purpose of developing land, without the agreement of the adjoining owner, must pay the entire cost of replacing it.

Exceptions to the notice requirement

There are some circumstances that are necessarily exempted from the notice requirement, including when:

  • adjoining owners have already agreed about fencing works;
  • fencing works need to be undertaken urgently; and
  • the adjoining owner cannot be located.

These provisions seek to balance the desirability of owners being given notice and participating in negotiations that affect them, with allowing fencing works, which are usually relatively minor works, to go ahead without undue delay.

If adjoining owners have already agreed about the works that they think are necessary, they do not then need to give a fencing notice and follow the processes in the amended Act. This gives primacy to contracts made between the parties, consistent with the overall approach of the amended Act. The amended Act provides that if a dividing fence is damaged or destroyed and urgent fencing works need to be undertaken, and it is impracticable to give a fencing notice, the owner seeking to undertake the works may do so.

If the owner who undertook the urgent fencing works then wishes to recover from the adjoining owner, they must give an urgent fencing works notice, setting out the nature of the works undertaken, the cost, the amount being sought, and the reason for the urgency. If there is a disagreement about the urgency of the works or other matters, it can be resolved in the Magistrates’ Court.

Further, if an owner makes reasonable inquiries into the whereabouts of the adjoining owner – including asking any tenant of the property and asking the local council – and is still unable to find the adjoining owner, they may undertake the fencing works. The adjoining owner is not required to contribute to works done in their absence unless the Magistrates’ Court orders them to. Similarly, fencing works can be undertaken if a fencing notice is given but there is no response after 30 days.

Boundary disputes

The amended Act contains a new process for resolving boundary disputes that come up during fencing disputes.

It is a requirement of the fencing notice that the owner giving the notice states the boundary line on which the fencing works should be carried out. The owner giving the fencing notice may be uncertain about the location of the common boundary, and may decide to give a boundary survey notice at the same time. This is a notice to the effect that, unless the common boundary is agreed, the owner intends to engage a licensed surveyor to define the common boundary.

Alternatively, on receiving a fencing notice, the adjoining owner might disagree with the notifying owner’s statement of where the boundary line is and give a boundary survey notice in response. In most circumstances, the costs of any survey that is undertaken will be shared equally between the owners.

The amended Act does not deal with differences between the boundary as surveyed and the title boundary. Section 272 of the Property Law Act 1958 (Vic) allows for a small margin of error between the title boundary and the boundary as measured on the ground by providing that the dimensions of a parcel of land in a document of title or a plan are to be read with the phrase “a little more or less”. Any larger discrepancy may necessitate an application under the Transfer of Land Act 1958 (Vic) for the Registrar to amend the title boundary.

Adverse possession

The amended Act clarifies that, subject to its jurisdictional limit, the Magistrates’ Court has jurisdiction to hear and determine adverse possession claims that arise in the context of a fencing dispute. Before this, there was some uncertainty about the extent of the Magistrates’ Court’s jurisdiction and an adverse possession claim made in the context of a fencing matter may have had to be referred to a higher court.2

A person can claim title by possession to a piece of land owned by another person if they have continuously occupied it for more than 15 years without the owner’s permission. Under the Limitation of Actions Act 1958 (Vic) after 15 years the original owner loses their right to bring an action to recover their land (s8) and their title to the land is extinguished (s18).

A part-parcel adverse possession claim – most likely a claim to a small strip of land – may arise if a fence is mistakenly placed off the common boundary for 15 years or more. The mistake may only be discovered later, when a fencing dispute arises and the land is surveyed. It makes sense, therefore, for the Magistrates’ Court to be able to hear and determine adverse possession claims that arise in these circumstances.

The Limitation of Actions Act, Transfer of Land Act and the common law apply to adverse possession claims that arise in the context of fencing disputes (s30E). If the Magistrates’ Court determines that a person has acquired title by possession, the title boundary can be amended under the Transfer of Land Act.

Give and take fences

As under the pre-amendment Act, owners could agree to locate their dividing fence off the common boundary where a waterway formed the boundary between adjoining lands but was not capable of restraining cattle. This type of fence is known as a “give and take fence”.

The amended Act extends this, allowing owners to agree to a “give and take fence” where it is impracticable to carry out fencing works on the common boundary because a waterway or other obstruction (whether natural or man made) is on, or forms, the common boundary (s16). The amended Act specifies that locating a dividing fence off the common boundary in this way does not, of itself, give rise to adverse possession (s35).

Expanded powers for the Magistrates’ Court

The pre-amendment Act only allowed the Magistrates’ Court to make a limited range of orders in fencing matters. In respect of construction of a dividing fence, the Court (or arbitrator) could make an order prescribing:

  • the kind of fence to be constructed;
  • the portion of the fence to be constructed by each person or the proportion of the cost to be contributed by each; and
  • where such further order was necessary, the position of the fence (pre-amendment Act s6).

For repair or maintenance of an existing dividing fence, the Court could make an order about the proportion of the cost to be paid by each party (pre-amendment Act s16).

Under the amended Act, the Magistrates’ Court can make a wider range of orders, including orders determining:

  • the time within which the fencing works should be carried out;
  • the person to carry out the works; the location of the common boundary;
  • whether a dividing fence or any fencing works are required;
  • that any party cease or discontinue conduct that is unreasonably damaging or may unreasonably damage a dividing fence;
  • that an owner may carry out fencing works without the agreement of an adjoining owner or a long-term tenant; and
  • any other matter that the Court considers appropriate.

Conclusion

The amended Act modernises the law and takes a clearer, more comprehensive approach to fencing obligations in Victoria, removing many of the areas of uncertainty that can lead to disputes. Where disputes do occur, the amended Act puts processes in place to allow for the earliest resolution possible.


MIA HOLLICK is a legal policy officer at the Department of Justice & Regulation.

  1. The Fences Act 1968 (Vic) as amended by the Fences Amendment Act 2014 (Vic) is referred to as the “amended Act” and, unless otherwise specified, section numbers refer to the amended Act.
  2. For further discussion, see Victorian Law Reform Commission, Review of the Property Law Act 1958, Report No 20 (2010) 120.

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