Review of the Fences Act 1968

FENCING QUICK GUIDE

PLEASE NOTE: The Committee is not able to provide advice about fences. If you are unable to find an answer to your question in the Fencing QuickGuide, please do not contact the Committee as we will be unable to assist you. We suggest that you contact the Dispute Settlement Centre of Victoria, a community legal centre or a solicitor instead.

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fence  Fencing Quickguide  fence

Fencing Quickguide: The Layperson's Guide to Fencing Law

This Quickguide provides access to the law contained in the Fences Act 1968 (Victoria).

Other Victorian laws which may apply to fences are to be found in –

  • Building Regulations 2006 (building permit may be required)
  • Local Planning Scheme (planning permit may be required)
  • The Property Law Act. The position of the fence may be affected by discrepancies between survey and title description or by possessory rights you or your neighbour may have acquired by occupying part of the other person's land continuously for more than 15 years. Some discussion of these matters is to be found in the Quickguide at the section entitled “wrong place”.

Before proceeding to fence, you should check Building and Planning Permit requirements with your local Council.

DISCLAIMER

This Quickguide provides a guide to the Fences Act, but does not constitute legal advice. No responsibility is accepted for the accuracy of the information provided, and no liability shall accrue in respect of any act taken in alleged reliance on the materials provided.

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Contents

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I want a contribution from my neighbour to the cost of fencing work

The Fences Act 1968 (Vic) regulates contribution to the cost of fences. The Act applies to "occupiers" of adjoining land. The term "occupier" refers to those actually occupying properties and those entitled to occupy them (as owners) (S.4).

Different liabilities apply to different occupiers.

Is the land adjoining you occupied by:

If you are a tenant or you let your property to a tenant, your share of fencing costs may in turn be divided between you and your landlord or you and your tenant (see Contribution to fencing costs as between tenant and landlord).

The proportion each occupier has to pay can also be affected by the use to which each puts their land. Special provisions apply where residential premises adjoin land used for agricultural or pastoral purposes (see Proportion).

There are slightly different procedures for obtaining contribution to fence repairs, as distinct from construction (see Fence repairs).

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Your neighbour is a private owner

Liability

A private owner of land adjoining yours is obliged to contribute to the cost of the fence dividing your properties.

Proportion

Generally your neighbour would be expected to share the cost equally with you. However, the Act provides for occupiers to contribute in different proportion in different circumstances (see Proportion).

Procedure

To set this process in train, you should obtain a written quotation from a fencing contractor (or preferably two) and approach your neighbour to see if you can reach agreement.

To avoid later argument, any agreement reached with your neighbour should be put in writing. The simplest way to do this is for each party to sign a copy of the quotation to be proceeded with and to write on it the proportion each agrees to pay. Make sure the quotation is appropriately detailed.

If you cannot reach agreement, serve your neighbour with a Notice to Fence.

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Your neighbour is a tenant

Liability

A tenant is an "occupier" for the purposes of the Act and therefore liable to contribute towards fencing costs.

As in the case of an adjoining owner, an adjoining tenant occupier should be supplied with a written quotation, together with a letter indicating the proportion of the costs you wish him or her to contribute. The letter should invite the tenant to discuss the matter with his or her landlord. You could ask for a response from the tenant and landlord jointly.

If agreement is not reached within a reasonable time, you can proceed to serve the tenant with a Notice to Fence.

Tenant receiving a Notice to Fence

A tenant who receives a Notice to Fence must forward it on within fourteen days to

  • the landlord at his last known address; or
  • the person to whom the tenant pays the rent; or
  • any person whom the tenant believes is authorised to accept notices on the landlord's behalf.

Failure to do this exposes the tenant to liability for the whole of the contribution being sought by the neighbour (S.10(4)).

Apportionment between landlord and tenant

For details of how fencing costs are apportioned between landlord and tenant, see Contribution to fencing costs as between tenant and landlord.

Any legal action should be taken against the tenant, who will generally be able to join the landlord as a third party. Even where the landlord is wholly liable, the action should be directed at the tenant as the landlord is not the "occupier" for purposes of the Act.

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Contribution to fencing costs as between tenant and landlord

A tenant who does not forward a Notice to Fence to his or her landlord within fourteen days of receipt is exposed to full liability for the fencing contribution being sought by an adjoining occupier: see Your neighbour is a tenant for further details.

In other cases, the tenant's contribution is as follows:

Contribution to fence repairs

If a tenant's negligence causes loss of or damage to a fence from fire or a falling tree, the tenant is liable for 100% of the replacement cost (S.14(a)).

In all other cases, a tenant is liable to contribute to repairs in a proportion to be agreed on, or as determined by the Magistrates' Court (S.14(b)). Often, however, the cost of fencing repairs (to be shared with an adjoining occupier) falls to a tenant under the terms of the lease.

Contribution to fence construction

A tenant is liable to contribute to the cost of constructing a fence if the unexpired term of the tenant's interest in the property is three years or more. If the unexpired term of the lease is less than three years, and there is no other basis upon which the tenant is liable - such as negligence or failure to forward the fencing notice to the landlord - the landlord pays the whole (S.10).

The proportion of the cost payable by the tenant varies with the length of the unexpired term of the tenancy in accordance with the following formula:

  • where the period of the remaining tenancy is at least 3 years but less than 6, the tenant pays one-quarter of the cost otherwise payable by the landlord;
  • where the period of the remaining tenancy is at least 6 years but less than 12, the tenant pays one-half of the cost otherwise payable by the landlord;
  • where the period of the remaining tenancy is 12 years or more, the tenant pays the whole cost otherwise payable by the landlord.

Tenant with a right to purchase

If the tenant has a right to purchase the land at a fixed rate, the tenant in completing the purchase must pay the landlord, on top of the agreed purchase price and as part of the purchase money, any sum paid by the landlord in accordance with the above formula, together with interest on the amount, calculated at 8% per annum (S.11).

Recovery of monies as between landlord and tenant

If either the landlord or the tenant pays more than his/her proper proportion of the cost, s/he is entitled to recover the excess from the other party.

A tenant may deduct any sum recoverable from any rent payable to the landlord (S.10(2))

Otherwise, action by either party to recover the debt can be taken in the Magistrates' Court (S.10(2)). See also Enforcement.

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Your neighbour is a council

The law is uncertain as to whether Councils are obliged to contribute to fencing costs.

If the land adjoining you houses a Council building or is a Council-run premises such as a kindergarten, it is likely that a Court would consider Council to be the "occupier", in which case it would be liable like any other occupier to contribute to fencing costs. In this situation many Councils will agree to pay their share of the costs, rather than risk a test-case in Court. You should therefore submit a quotation as a basis for negotiating the proportion to be paid by Council and, if no agreement is reached, serve a Notice to Fence.

Conversely, it is likely that a Court would not consider Council to be the "occupier" of reserves owned or managed by Council, such as road and drainage reserves, public reserves and reserves forming the balance of subdivisions. It may take the view that in these circumstances Council is acting as a trustee for the public, which may have the effect of exempting it from the operation of the Act.

Again, because there is some degree of uncertainty, Councils sometimes make voluntary (ex-gratia) payments to assist with fencing, based on the merits of individual cases. However, because there is no clear entitlement to contribution, applications for such payments in respect of fences bordering reserves are best made by letter to the Council rather than in the form of a Notice to Fence.

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Your neighbour is a state or federal government agency

The Act does not apply to unoccupied Crown land or land occupied by the Crown. This applies to both State and Federal governments and their agents (s.31).

This means that farmers with land bordering state forests or reserves have to meet the full cost of constructing and repairing fences.

There are some programs within the Department of Natural Resources and Environment which provide assistance with fencing costs in targeted areas of pest-control (e.g wild dog control in Gippsland and the North-West), but these are unrelated to the Fences Act.

Fencing costs can, however, be recovered if the Crown leases the land to someone else, whether at present or in the future.

If Crown land is currently occupied by some other person

If Crown land has been granted, sold, licensed or leased to a private person or company (except in the case of a yearly licence) - that occupier, purchaser, lessee or licensee is liable under the Act to contribute to the cost of fencing works in a proportion to be agreed on or as determined by the Magistrates' Court.

If Crown land is later occupied by some other person

You can recover from the first private owner or occupier (other than a yearly licensee) one-half of the actual value of the fence at the time that person assumes ownership or occupation (S.12). The value of the fence should be ascertained as soon as practicable after the adjoining land becomes so occupied. This procedure also applies to vermin proof fences (s.23). If there is a dispute about the value of the fence, or the person refuses to pay, the matter can be determined by the Magistrates' Court.

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The property beside you is for sale

There is no general provision in the Fences Act assigning liability where a property is in the process of being sold.

There is, however, a provision requiring tenants with rights of purchase, upon completion of and as part of that purchase, to reimburse the landlord the portion of fencing costs the landlord has paid (see Contribution to fencing costs as between tenant and landlord).

People who are trying to sell a property are naturally reluctant to bear either the cost or inconvenience of fencing works. Most will "play for time". If you proceed to serve a Notice to Fence, that notice, once received, must be disclosed as a notice received by the vendor in the vendor's Section 32 Statement, which puts the purchaser on notice of an impending liability. Sometimes a vendor will prefer to have the works done, to avoid discouraging buyers but, if not, the purchaser inherits the liability through the Section 32 notice and generally adjusts the cost of fencing against the purchase price.

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The property beside you is vacant and you cannot find out who the owner is

If the identity or whereabouts of the adjoining owner is unknown, the Act allows you, after making reasonable inquiries, to place an advertisement in a local newspaper addressed to the occupant of the land requiring him/her to contribute to constructing the fence, or to send such a notice by registered post to the address shown on the rates notices for the property.

You can then apply to the Magistrates' Court without the other party present for an Order authorising the construction of the fence, the kind and position of the fence, and the proportion of the cost to be met by each party.

If at any time during the life of the fence the owner is found or any other person occupies the adjoining land, you may serve a copy of the Magistrates' Court Order upon that person, with a demand for payment, within one month of the date of service, of a sum representing the same proportion of the present actual value of the fence as provided in the original Order. You are entitled to payment at the end of that month, unless within that time the other person issues a Magistrates' Court Complaint complaining that the Order is unjust.

There is no similar provision in the Act with respect to fence repairs.

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Your neighbour fits none of the listed categories

The only other categories of persons for whom the Act makes special provision are persons occupying Crown Land under yearly licence, who are exempt from liability under the Act, and persons occupying or entitled to occupy land under the Mineral Resources Development Act, who are exempt, except where the land is a residence area.

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Proportion

No fixed entitlement to 50%

Until 1968, fencing statutes in Victoria made adjoining occupiers liable for 50% of the cost of constructing or repairing the fence between them. While this continues to be a "rule of thumb" the present Act does not specifically provide for adjoining occupiers to contribute equally, leaving the proportionate contribution of each party to private agreement or, in the absence of agreement, to determination by the Magistrates' Court.

There are, however, one or two cases in which the Act is specific about the proportionate costs to be borne. These cases are:

Agricultural land adjoining residential development

Where agricultural or pastoral land adjoins land used for residential purposes, the Act obliges the occupier of the agricultural or pastoral land to contribute only to the extent of a half-share of the cost of a fence suitable for his own purposes.

If, therefore, there is a dividing agricultural fence in good repair, the cost of any new fence required by the residential owner is borne wholly by him. If an existing agricultural fence is in poor repair, the agricultural owner is obliged to contribute only a sum equivalent to the cost of making the agricultural fence serviceable (s.4).

Recovery from first occupier of previously unalienated Crown land

A person who has met the full cost of fencing land adjoining unalienated Crown land is entitled to recover contribution from the person who afterwards becomes the first occupier of that land. In such a case, the amount of the contribution is set at one-half of the actual value of the fence, assessed as soon as practicable after the land becomes so occupied. (s.12 & s.23)

Vermin-proof fence required by Department of Natural Resources and Environment

Where the Minister issues a certificate to the effect that vermin-proof fencing is required on a given boundary, the occupiers of the adjoining lands (other than the Crown: see Government) are liable to contribute to the cost in equal proportions (s.18).

Landlord and tenant

For apportionment of costs as between landlord and tenant, see Contribution to fencing costs as between tenant and landlord.

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Notice to Fence

What is it?

A Notice to Fence is a formal notice served under s.6 of the Act, which requires you or your neighbour to contribute to the cost of fencing the boundary of your adjoining lots.

If you are a tenant and have received a Notice to Fence, see Your neighbour is a tenant.

What must it contain?

The notice must be in writing and must specify the boundary to be fenced, contain a proposal for fencing the boundary and specify the kind of fence to be constructed (length, height, materials, colour if applicable).

It should also specify the proportion of the cost which it is proposed that each party contribute and be accompanied by a fencing quotation. (If there are two quotations, indicate which one you propose be accepted). It is not compulsory to include these, but they are necessary if the agreement between you and your neighbour is to be clear.

Is there a special form?

There is no prescribed form of notice, so a letter containing the above details will suffice. Usually, the other party will already know the details, because an informal approach will have been made prior to serving the notice. However, since a Notice to Fence is a preliminary to legal proceedings it is a good idea to draw attention to this fact by indicating on the notice that it is a Notice under the Fences Act and that failure to agree to the proposal (or some acceptable alternative) within one month may result in proceedings issuing in the Magistrates' Court to have the matter determined.

Service

A Notice to Fence should be served personally upon the other person. It can either be handed to the person or handed to a person apparently over the age of 16 at your neighbour's residential address or place of business. You must be able to prove or declare on oath that the notice was served.

What then?

If your neighbour agrees with the proposal in the notice, you can proceed to make arrangements for fencing in accordance with the notice. You have a right of entry to your neighbour's property to effect the works.

If your neighbour agrees but does not perform his or her part of the agreement, the Act still gives you rights to proceed: see Your neighbour has not honoured an agreement with you. If your neighbour does not agree, see You and your neighbour cannot agree.

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Quotation

Ideally a quotation should specify the following:

  • the location of the fence to be erected (e.g. 'on the title boundary between No. X and No Y....'; or if the fence is to be erected elsewhere than on the title boundary, 'in accordance with the attached sketch-map')
  • the length and height of the fence
  • the type of fence (i.e. materials, colour [if applicable], number of railings, space between posts and approximate gap between soil level and bottom of palings or bottom rail).
  • any extra costs for rubbish removal, removal of vegetation, roots or concrete etc.

A detailed quotation will lessen the chance of a dispute arising later between yourself and the contractor or yourself and your neighbour.

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Your neighbour has not honoured an agreement made with you

Agreements following service of a Notice to Fence

If an agreement is reached between a person serving a Notice to Fence and the person served, and either person fails to perform their part of the agreement within the time named or, where no time is named, within three months of the agreement being made, the other person may construct the whole fence in accordance with the agreement and recover contribution from the other party through the Magistrates' Court (S.8(1)). (Also see Enforcement).

Note, however, that you will need to prove what was agreed, which makes it important to get the agreement in writing (see Quotation).

You have a right of entry to the other person's land to enable you to construct the fence in accordance with the agreement (S.32).

Agreements reached by mediation

Agreements made at voluntary mediation conferences are not enforceable, and nothing that is said and done at mediation can be put into evidence in Court. In such a case, you must have the matter determined in the Magistrates' Court before proceeding to construct the fence.

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You and your neighbour cannot agree

If within one month after service of a Notice to Fence the parties cannot agree on the construction of a fence, the kind of fence to be constructed and/or the proportions in which each is to contribute, either party may take action in the Magistrates' Court.

Before taking that step, you may wish to try the free mediation service offered by the Dispute Settlement Centre of Victoria.

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Consider mediation to resolve your differences

The Dispute Settlement Centre of Victoria offers a free mediation service. The Centre is part of the Victorian Department of Justice and is located on the 4th floor, 456 Lonsdale Street, Melbourne (telephone 03 9603 8370; Freecall 1800 658 528). In 1996/7 it provided telephone advice on 3,105 fencing matters, 75 of which resulted in formal mediations. Of those, 71 disputes settled at mediation (a 95% success rate).

At your request the Centre will write to the other party, free of charge, to seek their consent to attending to mediate the dispute. The Centre does not take sides, but seeks to bring people together and to facilitate an agreement which minimises the damage to the relationship between neighbours.

If the other party declines the invitation, the Centre cannot compel them to attend. Likewise, no-one can compel a party to adhere to an agreement reached at mediation. In both cases your only redress is through the Magistrates' Court. But it is worth trying the Centre, not only because it is a free alternative to a potentially costly Court process, but because when parties do attend there is a high success rate, and parties are on the whole inclined to honour agreements when they have had a role in negotiating them.

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Magistrates Court Complaint

Proceedings in the Magistrates' Court begin with a document known as a "Complaint".

Issuing a complaint

You can obtain a Complaint form over the counter at the Registry of your local Magistrates' Court, from a legal stationer, or from a solicitor.

If you are taking action without assistance from a solicitor, you should fill in the Complaint form as follows:

In the space for "cause of action" insert:

Application under s.7 of the Fences Act 1968

In the space for "particulars of claim" insert:

  1. A Notice to Fence (or notice seeking contribution to repairs) was served on the Defendant on [date] by [give details of service]
  2. More than one month has elapsed since service of the notice and the Defendant [choose one or more of the following]:
    • has failed to respond to the Notice
    • has not agreed to a fence being constructed
    • disagrees about the kind of fence to be constructed
    • refuses to make contribution to the cost of the fence
    • disagrees as to the proportion of the cost of the fence that each occupier should bear.

In the space at the end of the Complaint for "orders sought" insert (as appropriate):

  1. Order that a fence be constructed in accordance with the Notice to Fence.
  2. Order that the Defendant pay $......... of the cost of the fence.
  3. Order for Costs

(If you need any other order made - for example, an Order that the fence be located in a particular place, if the proper place for the fence is an issue - insert it before item 3.)

Defending an action, when you are the person receiving a complaint

A person receiving a Magistrates' Court Complaint should file a defence within 21 days of the date when the Complaint was received. Technically, a defence can be filed after this time, if the Plaintiff (the person who issued the complaint) has not sought to enter judgment. But as the Plaintiff can obtain a judgment automatically in his/her favour after 21 days if no defence has been filed, there is an obvious risk in delaying filing a defence beyond 21 days.

No stamp duty is payable on a defence.

A person who has delayed putting in a defence, and is faced with judgment entered, may be able to have the judgment "set aside" to put them back in a position to file a defence. But unless the Plaintiff consents to it being set aside, such a person will need to file an application (called an "application to set aside") and they or their solicitor must appear before a Magistrate to persuade him or her that there is a good reason why a defence was not filed within the 21 days allowed. There is a financial aspect too, as the Court charges a filing fee for such an application.

What next?

Once a defence is filed the Magistrates' Court sends the parties a notice to see whether they are interested in a "portals" mediation. This is the same as non-Court sponsored mediation and is often conducted by mediators associated with the Dispute Settlement Centre of Victoria. If the parties do not take up the option of a portals mediation, the Court sets a time for a Pre-Hearing Conference, when the parties meet before a Court Registrar, firstly, to see whether a compromise can be negotiated and, if not, to obtain estimates of how long the case will take. In some cases, compromises are reached and the action "settles". If not, the parties leave, and within about a week the Court advises them in writing of the date of the hearing and the number of days allocated for it.

Usually the hearing date is more than three months from the date of issue of the Complaint. Don’t under-estimate the psychological wear-and-tear of litigation: it is very stressful, even when there are not enormous costs involved. It is better to reach agreement early than at the door of the Court, because by then your relationship with your neighbour is damaged beyond repair and substantial costs may have been incurred.

If you do not settle, a Magistrate will hear and determine the matter, and his/her decision will take the form of a Magistrates' Court Order.

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Magistrates' Court Order

A Magistrates' Court Order is an enforceable order made by the Court.

Ex Parte Orders

Usually, the parties to an action will be present when the orders are made. However, in some circumstances, the orders may be made ex parte - that is, without one party being present.

Under the Fences Act, the occasions when this might occur are -

  • when a Complaint has gone undefended and the Court has entered judgment for the person who issued the Complaint; or
  • when a landholder has been unable to locate the adjoining occupier and has obtained orders on the basis that the adjoining occupier is unknown.

In either case, the Court is likely to make orders permitting the construction of the fence, ordering the absent party to pay a certain proportion of the fencing costs, and ordering the absent party to pay the complainant's legal costs.

Getting an order set aside

Where judgment has been entered because a Complaint was undefended, an application may be made to the Magistrates' Court to have the judgment set aside. There is, however, a cost for such application and the Court will need to be satisfied that the defendant had a reasonable excuse for failing to file a defence.

Where orders have been obtained and fencing done on the basis that the adjoining occupier was unknown (S.9(2)), and the order is served on the first subsequent occupier in accordance with S.9(4), that occupier may - if he or she wishes to challenge the justice of the order - issue a Magistrates' Court Complaint within one month of receiving the order, seeking relief from the whole or any part of the monies said to be owed (S.9(7)).

Power of order or arbitrator's award

Where a Magistrates' Court Order or arbitrator's award is made and either person fails to comply with the order or award within the time named, or where no time is named, within three months of the order or award, the other person may construct the fence in accordance with the order and recover the cost through the Court (see Enforcement).

You have a right of entry to your neighbour's land if necessary to construct the fence.

Note that the power to recover the cost is tied to the fence being constructed in accordance with the order. While a minor variation will not prevent the costs being recovered, a substantial difference may result in the loss of that right.

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The Magistrates' Court

The Court's powers

Under the Fences Act, the Magistrates' Court may order the following:

  • the kind of fence to be constructed (S.7(1)(a)), having regard to the kind of fence usually constructed in such a location (S.7(6)). In the case of vermin-proof fencing, this power is limited to prescribing the kind of vermin-proof fence to be constructed (S.20(2))
  • the portion of the fence to be constructed by each occupier or the proportion of the total cost each is to bear (S.7(1)(b))
  • where necessary and only in addition to other Orders, the position of the fence (S.7(1)(c))
  • where an occupier cannot be found, all of the above, together with an order authorising fencing to proceed (S.9(2))
  • where an order made under S.9(2) is later served upon an occupier and that occupier complains that the order iS inequitable, relief from all or part of that order (S.9(8))
  • on application by a Council, refusal of permission to erect a temporary fence on a council-owned road reserve (S.13(2))
  • the proportion of the total cost of fence repairs to be borne by each occupier (S.15(2) and S.15(3))
  • where the occupier of one lot satisfies the Court that s/he is unable to pay her/his share of the cost of vermin-proof fencing, an order that fencing proceed, subject to an interest-bearing charge being imposed on the occupier’s land (SS.24(1) & (2))
  • convictions for offences under the Act (S.26 and s.27)
  • orders for recovery of contributions (S.28) 

Deciding whether to take the matter to court

A Court action will inevitably worsen your relationship with your neighbours, and should be avoided if possible. Court actions can also be costly and in simple fencing matters may cost more than the amount the person taking action is trying to recover.

The Magistrates' Court, if contacted, advises people to take the matter first to the Dispute Settlement Centre of Victoria, which will mediate rather than determine the dispute. You should certainly consider proposing this to the other party, before proceeding to the Magistrates' Court. Even if Magistrates' Court proceedings have been issued, you can have the Magistrate’s Court action delayed ("stayed") while you see if you can reach a mediated outcome.

Costs

If you end up having to go to the Magistrates' Court, you could consider representing yourself. Most fencing matters involve disputes of fact and differences of aesthetic taste, rather than points of law, and you may be able to save the considerable cost of employing a solicitor.

Court issuing fees on a Magistrates' Court Complaint vary with the amount of the claim, but in most fencing cases (that is, claims up to $1000) the fee is $58. For claims between $1000 and $10,000 the fee is $116 and, for claims between $10,000 and $40,000, $204. (Fees as at June 1998. Check the Magistrates' Court of Victoria website to see if the fee structure has been changed).

Section 7(2) allows the Court to appoint an arbitrator to determine the matter. In practice, a Magistrate will hear the case. If the amount being sought is less than $500, the Court will regard the Magistrate as acting in the role of arbitrator, and apply a cap to costs.

If you win your case, the other party will be ordered to repay you the Stamp Duty and, if you have engaged a solicitor, his/her costs according to the Court scale. You should be aware, however, that - as with many doctors' fees - solicitors fees generally exceed scale, and not all of the solicitor's work is covered by the scale, so there will be a "gap" you have to pay. If the amount you are going to Court for is small, it can be swallowed up by this "gap" fee, leaving you little satisfaction from your win!
Remember, too, that if the other side does not pay, you may have to take action to enforce the order, at additional cost (see Enforcement). If the other person has no money you may still be frustrated, unless you are prepared to take the very drastic step of seeking to obtain possession of their house to satisfy the order.

If you lose, you will be ordered to pay the other side's costs. If they have engaged a solicitor or barrister, these are likely to be in the region of $300-$400 (and could be more), and will have to be paid in addition to your own costs.

How to commence an action

For details on how to commence a Magistrates' Court action see Magistrates' Court Complaint.

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Enforcement

Sections 28 and 29 of the Act enable proceedings to be taken in the Magistrates' Court to recover money owing under agreements, orders or awards in respect of fencing made under the Act.

Where there are existing orders, this can be done administratively and will usually require the issuing of a Sheriff's warrant to enable goods to be seized to satisfy the debt. The cost of a warrant is approximately $144.

Remember, however, that warrants for seizure and sale do not always succeed. A genuinely poor person may have nothing that can be seized. This is one of the risk factors to be taken into account when deciding whether or not to take the matter to Court.

Where recovery is sought in relation to an agreement entered into after service of a Notice to Fence, fencing can proceed and the money owing can be recovered by way of a Magistrates' Court Complaint pleading the agreement.

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Right of entry to your neighbour's property

Section 32 provides a statutory right to access to a neighbour's property to enable you to do whatever is necessary or reasonably required for the purpose of constructing or repairing a fence in accordance with the Act. You can exercise such rights where:

  • agreement has been reached after service of a Notice to Fence and after three months your neighbour has not performed the agreement; or
  • you have notified your neighbour of the need for fence repairs, and after one week there is no response; or
  • the fence has been damaged by accident and is in need of immediate repair (in which case no notice has to be given to the adjoining owner); or
  • you have obtained a Magistrates' Court Order or Arbitrator's Order for the construction of the fence.

Note: this right is limited to the repair and construction of fences

Buildings on boundaries, the walls of which may act as a fence, are not considered to be "fences". Unless you have a recognised easement over your neighbour's land, you have no statutory or common law right to enter your neighbour's property without permission to assess the state of your building or to maintain or repair it.

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Your neighbour has not consulted you

No consultation - no cost can be recovered

If your neighbour has gone ahead and constructed a fence without consulting you, and without serving you with a Notice to Fence, he or she cannot recover any of the cost of the fence from you.

But you have no say in the fence that results

The bad news is that, if you do not like the fence and you haven't been consulted or asked to contribute, there is little you can do to have it altered or pulled down, unless the fence does not conform with the Building Regulations or requires a planning permit that has not been obtained.

You can check the Building Regulations and the applicable planning controls with your local council. For a small fee, a private or Council building surveyor in your area may be able to give you technical advice as to whether the fence conforms with the Building Regulations. You should be aware that the lack of a planning permit may not be fatal: permits can be granted retrospectively, so you may still be left with the offending fence .

If the fence has been erected in the wrong place

For information on what to do if your fence was erected in the wrong place, see Your fence is in the wrong place.

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Fence repairs

Liability

Each occupier who is liable under the Act is liable to contribute to the cost of fencing repairs in a proportion to be agreed on, or as determined by the Magistrates' Court (S.14(b)).

Proportion

In most cases it will be reasonable for each occupier to contribute 50% of the cost, but there may be special circumstances to justify a different proportion.

If a dividing fence is destroyed or damaged by fire or a falling tree as a result of neglect by one occupier, that occupier is liable to replace the entire fence or repair it completely at his or her own cost (S.14).

If one occupier causes damage to a fence or shortens its life through some other activity - for example, piling soil against the fence and causing it to rot - a Magistrate can take that into account when determining the proportion each occupier is to pay. Whether and how much the Magistrate will take it into account is not possible to say.

Procedure

A person who wishes the occupier of adjoining land to repair or contribute to the cost of repairing a dividing fence should serve a notice to that effect on the adjoining occupier (S.15(1)). The notice should specify the section(s) of the fence to be repaired, the nature of the proposed repairs and the estimated cost.

If the adjoining occupier does not repair the fence or contribute to its repair as requested within one week of receiving the notice, the person serving the notice may repair the fence and then demand and recover from the adjoining owner such proportion of the cost of repairs as is agreed or as determined by the Magistrates' Court.

Urgent repairs following accident

If any part of a dividing fence is destroyed by accident, either occupier may immediately repair it without any notice to the adjoining occupier and then demand and recover from the adjoining owner such proportion of the costs of repairs as is agreed or as determined by the Magistrates' Court (S.15(3)).

If you know who caused the accident, you may be able to recover damages from that person to meet the cost of repairs, which you are entitled to do at common law. This also applies if an accident by your neighbour caused the damage. You would then expect him or her to pay wholly for the repairs.

Right of entry to undertake repairs

You have a right of entry to your neighbour's property if necessary to effect repairs, provided you are acting in accordance with the above procedures.

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Someone has damaged my fence

Damage as a result of an accident

If a part or the whole of a dividing fence is damaged by an accident, either occupier can immediately repair it without notice to the other and later recover a share of the costs from his or her neighbour, either as agreed or as determined by the Magistrates' Court.

Meaning of "accident"

You should be aware, however, that the Act does not define "accident", so unless the circumstances clearly fit that description, you may have trouble recovering contribution to the cost if you repair without giving your neighbour notice. A football kicked hard into a structurally weak fence, causing a section to collapse, may not be an "accident". Falling limbs of trees may be another ambiguous case. If you are able to notify your neighbour and if necessary wait 7 days before undertaking repairs (see Fence Repairs), it may be best to do so.

Where someone else is at fault

If you can identify who caused the accident that has damaged your fence (whether or not that person is your neighbour), you can seek to recover monetary damages from him or her to meet the cost of repair or replacement. You are entitled to do this at common law (see "damage through negligence" below).

Liability in other cases

Where no party is at fault, or the person who caused the accident cannot be identified, the cost of repairs is likely to be apportioned equally between the occupiers.

Damage through negligence

Negligence involving fire or falling trees

If a dividing fence is destroyed or damaged by fire or a falling tree as a result of neglect by one occupier, that occupier is liable to replace or repair the fence wholly at his or her cost (s.14).

Other kinds of negligence

Damages for loss can be recovered at common law where negligence of any other kind results in damage to, or destruction of, a fence.

However, bear in mind the costs of the court process and the difficulties of proving negligence. If you cannot obtain payment by negotiating with the person or his or her insurance company, you will have to consider whether suing the person is financially worthwhile.

Generally, it should not be necessary to take action at common law against a neighbouring occupier, because a Magistrate in determining the proportion of costs to be borne by each occupier under the Fences Act would take any negligent conduct into account and could order the negligent person to meet the full cost.

Where there is gradual damage - from tree roots, soil etc

If the damage you are concerned with is damage caused by tree roots, soil piled up against the fence or something of that kind where the damage may be to shorten the life of the fence over time, see Other.

Damage to a vermin-proof fence

If your vermin-proof fence has been damaged, see Your problem concerns vermin-proof fencing.

Obtaining or recovering contribution

Details of how to get your neighbour to contribute can be found at Fence repairs or, for a whole fence requiring replacement, at Contribution.

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Your fence is in the wrong place

If your fence encloses some of your neighbour's land

By being in occupation of someone else's land, you acquire rights of possession in the land. After 15 years, the owner's title is barred and after 30 years you may claim full title if you are able to satisfy the Titles Office with proofs of your occupancy over that period. This is called "adverse possession".

As there is no disadvantage flowing from such occupancy, you may decide to leave the fence where it is. Any subsequent owner will inherit your possessory rights towards an ultimate claim to title.

If your neighbour demands that the fence be moved and you have been in occupation less than 15 years, you are legally obliged to yield possession to your neighbour and time will cease to "run" in favour of a claim.

Even after 15 years, you can agree to the land reverting to occupation by your neighbour. Pursuing rights in adverse possession involves some costs (particularly if your neighbour challenges your rights), so you should consider whether the land to be acquired is worth the potential costs both monetarily and to your neighbourhood relations.

If your neighbour has enclosed some of your land

You should immediately serve notice on your neighbour that he or she is wrongfully making use of your land, and demand removal of the fence. This is to assert your title to the land, so that your neighbour does not begin to accrue rights of possession through occupancy (see above).

Sometimes "self-help" removal of the fence is permitted, but you should first be sure that your neighbour has not already accrued rights of adverse possession against your title.

Where there has been a mistake but no-one wants the cost of relocating the fence

If the fence has been wrongly located, you can if you wish decide to leave it in position, but you and your neighbour should sign an agreement to the effect that the location of the fence is without prejudice to the property rights of either party. The party who has the other party's land enclosed should acknowledge that he or she is occupying it under licence and disclaim any rights of possession that might otherwise arise from occupancy.

If your neighbour claims a right of possession

If your neighbour claims to enjoy possessory rights over part of your title and you accept that he or she has enjoyed the use of the land for 15 years or more, you can consent to the land being transferred to your neighbour and your own title being amended. This process, known as title rectification, takes place administratively through the Titles Office. However, in exchange for your consent, you should try to persuade your neighbour - who is getting the benefit of the land - to bear the costs of the process, which can be quite substantial ($1200 or more).

If you do not accept your neighbour's claim to possessory title, and you cannot reach a compromise, your respective property rights will ultimately have to be determined by a Court (usually the Supreme Court). You cannot use the Magistrates' Court to determine the position of a fence when no other aspect of the fence is in dispute and the dispute about the location of the fence involves a claim in adverse possession. The matter is then a property dispute rather than a fencing dispute.

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Your problem concerns vermin-proof fencing

The provisions relating to vermin-proof fencing are found in the Fences Act 1968 Part III.

The procedures for getting your neighbour to pay are similar to those in other parts of the Act, but the Notice to Fence must specify the kind of vermin-proof fence to be constructed and, if the matter goes to the Magistrates' Court, the Magistrate cannot order the construction of a different kind of vermin-proof fence.

Liability for costs of construction

The principles which apply in determining liability to contribute to fencing costs are similar to those for other fences (see Contribution), except where a certificate is issued by the Minister for Conservation and Land Management requiring a vermin-proof fence to be constructed (see Proportion). Where a certificate is issued, you have fourteen days in which to lodge any objections with the Minister, who after considering them may cancel or confirm the certificate (S.19(3)).

Where your land borders Crown land

As in the case of other fences, the Crown is exempted from having to contribute to fencing costs (see Government), but a person who constructs a vermin-proof fence along a boundary with Crown land may afterwards recover half the then actual value of the fence from the person who becomes the first occupier (S.23).

Liability for costs of maintenance and repair

Section 25 of the Act provides that the general "Maintenance and Repairs" part of the Act (Part II) applies to vermin-proof fences (see Fence repairs).

Where a vermin-proof fence is damaged by accident

The person who has caused the damage may have to meet the full cost of repair or replacement. If the person is unknown or the accident is an "act of God", the costs are likely to be borne equally by the two occupiers. See Someone has damaged my fence.

Where a vermin-proof fence is damaged wilfully

Anyone who wilfully damages a vermin-proof fence is liable the pay the full cost of repair or replacement. In addition, under Section 26 of the Act it is a criminal offence to damage any vermin-proof fence belonging to another person or to interfere with the netting. For a first offence the penalty (in addition to meeting the cost of repairs) is $500 and for a second or subsequent offence imprisonment for a period of between three and twelve months.

If your neighbour is unable to pay

Section 24 of the Act is a special provision applying only to vermin-proof fencing. It permits a Magistrate, if satisfied that a person who has received a Notice to Fence is unable to pay his or her share of the cost, to permit the person who has served the notice to build the fence and to order that the neighbour's unpaid share become a charge upon the neighbour's land, with 6% interest per annum to be paid to the person constructing the fence for as long as the debt remains.

Offences

Sections 26 and 27 of the Act contain penalties for two offences: the first (S.26) for wilfully damaging another person's vermin-proof fence; and the second (S.27) for setting traps, snares etc for hares or rabbits within 11 metres of a vermin-proof fence without permission from the owner or occupier of the land. For details see Fences Act 1968 Part III.

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Other

Matters which the Act addresses

The following matters which the Act addresses have not been included in this Quickguide. If your problem concerns these, open the pdf Fences Act 1968 (PDF, 675kb download from the Victorian Legislation website) and view the relevant section:

  • Waterway forming boundary: provisions allowing "give and take" fencing to be erected elsewhere than on the title boundary, without prejudice to title: Fences Act S.5
  • Permission sought to erect a temporary fence on a municipal road reserve while a live fence is being grown on the title boundary: Fences Act S.13

Matters which the Act does not address

The Fences Act is primarily about recovering contribution to fencing costs.

There are many aspects of fencing disputes which the Act does not address except that, when a matter is before the Court, the Magistrates' Court may make such orders as it sees fit.

Some of the most commonly raised issues to which the Act provides no explicit answer are:

Trees, roots, creepers, soil accumulation, etc, causing damage

You are entitled at common law to remove roots and branches which intrude into your property (provided you 'return' the roots & branches to your neighbour by returning them to his/her side of the fence).

If tree roots or accumulated soil or creeper growing on the fence has significantly shortened the life of the fence, a Magistrate can take that into account in determining the proportion of the costs of fence repair or replacement to be borne by each party. (But remember to weigh your potential saving against the costs of going to court).

There is no power under the Fences Act 1968 to compel your neighbour to stop behaviour which you believe may be damaging the fence.

Additions to fences

There are no provisions within the Fences Act concerning additions to the tops of fences (such as the currently very popular lattice additions). It is unclear whether these additions are part of the fence for the purposes of the Building Regulations, and it is likewise unclear whether a dispute about a lattice addition could be heard by a Magistrate under the Act.

Fencing standards

The Act is silent about both 'standard' fences and fencing standards. A dispute with a fencing contractor about the quality of a fence does not come under the Fences Act, but is a matter falling within contract and consumer law and should be taken to VCAT.

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PLEASE NOTE: The Committee is not able to provide advice about fences. If you are unable to find an answer to your question in the Fencing QuickGuide, please do not contact the Committee as we will be unable to assist you. We suggest that you contact the Dispute Settlement Centre of Victoria, a community legal centre or a solicitor instead.

Last Updated on Thursday, 19 July 2012