A guide to fencing disputes in Victoria

Introduction

People in Australia rather like their fences, and for good reason. They provide certainty as to where the boundary between their property rights start and where they end. In fact, we like our fences so much, we have long had legislation in place, specifically to deal with (and recognise), these commonly occurring types of disputes.

Importance of a boundary fence

Boundary fences are important for a variety of reasons:

• they provide neighbours with a degree of certainty as to where their property (and their associated rights) start and where they end;
• they provide a degree of security for the occupants;
• they provide a degree privacy to the occupants; and
• they provide safety to children and pets.

Common fencing disputes

Boundary fences in Australia are subject to a variety of common disputes, including, but not limited to:

• boundary issues: issues as to where the actual, real, boundary is (historically, where a fence was placed/built was not necessarily where it legally ought to have been). This is still a common dispute and can give rise to issues such as adverse possession claims.
• encroachment: this occurs where the boundary fence has been built into and upon an adjoining neighbour’s land, where it should not have been built.
• cost sharing: an old fence may be in a dilapidated state and require considerable renovation or replacement, this can cause issues between neighbours as to the design and cost of a new fence.
• use of the fence: sometimes a neighbour might use a fence for an unintended person, which the other neighbour may not consent to (for example, affixing things, objects or structures to it). This can cause damage, especially if the fence is not structurally designed for the additional load bearing.
• removal of the fence: sometimes a neighbour simply disregards the law and entirely removes the fence without obtaining appropriate court orders to do so.
• height and design issues: sharing the cost of the fence may not be an issue, rather, it may simply be a difference of opinion in height or design or some other aspect of the proposed fence.

The law governing fencing disputes

Most Australian States and Territories have specific legislation directly dealing with a majority of fencing disputes, and most are concerned with the concept of ‘sufficient fence’. Albeit, some legislation is more extensive than others. In Victoria, this is the Fences Act 1968 (Vic) and its regulations.

An overview of the Fences Act 1968 (Vic)

The operation and purposes of the Fences Act 1968 (Vic) is to provide a legislative framework governing the definition of a sufficient fence, the procedure for fencing works, the determination of common boundaries if they cannot be agreed, and the implementation of processes and procedures from which fencing disputes can efficiently and cheaply be resolved between neighbours of adjoining lands.

When is a fence required?

The Fences Act 1968 (Vic) does not mandate the requirement for a fence to exist between owners of adjoining land. That remains, as it always has, a matter between the owners of the adjoining land, although most owners will invariably seek to have a dividing fence for a variety of reasons, including the reasons discussed above.

There is no type, design or manner in which the fence must comply under the Fences Act 1968 (Vic), other than it must meet the definition of a ‘sufficient dividing fence’.

Where there is a minimum or maximum height, or other requirements within a local area, that is dealt with by the local government’s bylaws. Likewise, the fence cannot be made of materials which are otherwise illegal to use or possess (such as asbestos), and must comply with other laws, such as environmental or building laws.

Definition of ‘sufficient dividing fence’

There is no strict definition of a sufficient dividing fence under the Fences Act 1968 (Vic), other than, when determining whether the fence, or the proposed fence, is sufficient, a number of matters must be taken into account, they include, without limitation, the following:

• • the existing dividing fence (if any);

• • the purpose for which the owners of the adjoining land use or intend the lands to be used;

• • the reasonable privacy concerns of the owners of the adjoining lands;

• • the types of dividing fences used in the locality;

• • any policy or code relating to dividing fences adopted by the municipal council of the area in which the adjoining lands are situated;

• • any relevant planning instruments relating to the adjoining lands or to the locality in which the lands are situated;

• • any relevant building laws relating to the adjoining lands and the carrying out of fencing works and any subsidiary works;

• • the existence of any agreements or covenants that are relevant to the adjoining lands;

• • the duties (if any) of an owner of land under the Catchment and Land Protection Act 1994 (Vic) to control pests;

• • the need for a dividing fence, having regard to any existing waterway or obstruction (whether natural of manmade) that is on, or forms, the common boundary between adjoining lands.

The costs of a dividing fence: who pays?

Where there is no dividing fence, the law imposes an obligation upon the adjoining owner, whether or not they wish for or want a fence, or to contribute to it, to contribute in equal shares.

However, this is only to the extent that the proposed fence is a sufficient dividing fence. If an adjoining owner wishes to erect a fence which is in excess of a sufficient fence, that adjoining owner is responsible for the costs in excess of the costs associated with constructing a sufficient diving fence.

Nevertheless, nothing within the Fences Act 1968 (Vic) prohibits the owners of adjoining land from agreeing to contribute in unequal amounts, whether or not that relates to the construction of a sufficient fence, or a fence which exceeds that of a sufficient fence. All the law imposes is equal contribution in respect of the construction and erection of a sufficient dividing fence.

Additionally, where the dividing fence is damaged or destroyed, deliberately or negligently, the adjoining owner, or the person who entered the land and caused the damage or destruction, is wholly liable for the costs in making good the damage or destruction.

Certain tenants can also be liable to contribute, but only in certain circumstances, usually where the lease is a long-term lease, and the appropriate processes and procedures (such as notice), have been followed. For the avoidance of doubt, this does not include tenants under a retail lease or a residential lease.

Common causes of fencing disputes

We have outlined below a list of common causes of fencing disputes.

1. Cost sharing

A root cause of many legal issues, is to do with money. In the case of dividing fences between adjoining land owners, the cost of erecting a dividing fence, or constructing a new dividing fence, is a frequent issue which arises. One adjoining owner may wish to erect a new fence, so as to increase their property value (for any number of reasons), while the other adjoining owner is not concerned with the value of their property (for example, they do not intend to sell), and thus, does not want the expense associated with the construction of a new fence:

2. Type, height, design, style of fence

Even if the costs of the construction of a dividing fence is not in issue, the adjoining owners may not agree on the type of fence to be constructed, the materials to be used, its height or its colour. Some adjoining owners may want a modern fence made of colour bond at a standard height, whereas the other adjoining owner may want a more rustic look, made of old bricks or some other material.

3. History between neighbours

A history of hostilities between adjoining owners (however those hostilities came about) can cause fencing disputes to arise. Likewise, fencing disputes can and do, cause prolonged hostilities between neighbours.

4. Boundary disagreements

Another type of fencing dispute which does arise is where there is a disagreement as to where the common boundary between the adjoining properties actually is. The original fence which separated the adjoining properties is not necessarily a reliable indicator of where the boundary between the two adjoining properties actually is.

Resolving a fencing dispute quickly and efficiently

The Fences Act 1968 (Vic) provides a procedure for attempting to resolve fencing disputes amicably between two or more adjoining owners of land, and where that is not possible, how more formal legal action be commenced.

The Fences Act 1968 (Vic) provides that fencing work cannot be undertake other than in accordance with:

• • a fencing notice agreement;

• • an order of the Magistrates Court of Victoria;

• • the Fences Act 1968 (Vic); or

• • any other agreement between the adjoining owners of the land.

Notices to fence, what are they?

A notice to fence is a formal notice under the Fences Act 1968 (Vic) given to one or more owners of adjoining land, by an owner of adjoining land, in relation to a proposal to fence the adjoining land. The notice to fence must be in writing, and must contain the matters set out in section 13 of the Fences Act 1968 (Vic).

An issue which can arise before the giving of a notice is determining the appropriate person to give the notice to (in most cases, this is the owner of the adjoining land), and where they are located. For example, they may not occupy or reside on the adjoining land, and it may be unknown to the person who seeks to give a fencing notice, where and how to serve the notice.

If this issue occurs, the law imposes a mandatory obligation upon the person proposing to give the fencing notice to make reasonable inquiries as to the whereabouts of the adjoining owner.

The court process

After giving the fencing notice to the adjoining owner, the adjoining owner can either agree or not agree within 30 days. If the adjoining agrees there is usually no reason for the matter to be subject to formal legal proceedings.

However, if agreement cannot be reached, either adjoining owner can apply to the Magistrates Court of Victoria for an appropriate order in relation to the dispute the subject of the fencing notice.

In circumstances where the adjoining owner cannot be located or does not respond, after the expiration of 30 days from the date of the fencing notice, the adjoining owner who gave the fencing notice can usually commence the proposed fencing works. There are also procedures under the Fences Act 1968 (Vic) to recover the statutory contribution to the works in such circumstances.

Boundary disputes

Where there is a dispute between adjoining owners as to the common boundary between their respective properties, and where a dividing fence is located or ought to be located, the Fences Act 1968 (Vic) provides a process to resolve such a dispute cheaply and efficiently.

Tips to avoid fencing disputes

There are practical tips which can be undertaken to avoid fencing disputes, these include, but are not limited to:

• • communication: In most cases, disputes can be avoided with appropriate communication between people. In the case of dividing fences, an appropriate course of action is to discuss this with your neighbour at first instance about what your proposal is, and why a dividing fence is needed, or a new dividing fence is proposed. For example, they may not have sufficient means to contribute, and where your wish is to increase the property value and thereafter, sell the land, paying the whole cost of the new dividing fence may be reasonable. Likewise, they may have no issue with the proposal, or suggested changes you haven’t thought about.

• • confirm the boundary fence: this can be helpful where you want a new fence but realise that the current dividing fence encroaches upon your neighbour’s land. Your neighbour may be more amenable to a new dividing fence if they are going to gain access to land which may rightfully be theirs at law (subject to adverse possession claims).

• • put any agreement in writing: It is always prudent, even where both parties are friendly and get along, to put any agreement, even a fencing agreement, into writing. This reduces the likelihood of a dispute in the future, should something go wrong.

• • obtain legal advice: if you’re not sure how to approach the subject with your neighbour or if there are difficulties which make such discussions unlikely to prove successful, you should seek appropriate legal advice. This helps explain your rights to your neighbour, as well as both your and their obligations, and the process if no agreement can be reached.

Got a fencing dispute or question? Get legal assistance today!

At Allen Law, we advise neighbours about their rights and obligations, and how to resolve fencing disputes before they get to Court. If you need advice or representation, or are trying to resolve a fencing dispute, contact us today to see how we can help resolve it amicably, cheaply and efficiently.

Phone:         (03) 7020 6563
Email:          enquiries@allenlawyers.com.au
Website:      www.allenlawyers.com.au

Disclaimer: This article is general in nature and is not intended, nor does it constitute, legal advice. Any particular legal situation is unique and requires a unique analysis of the facts and circumstances, along with appropriate advice. Seek assistance from Allen Law.