Victorian Numbered Acts Victorian Numbered ActsFor Parts I, II, III and IV of the Fences Act 1968 substitute —
(1) If there is no dividing fence between adjoining lands, the owners of the adjoining lands are liable to contribute in equal proportions to fencing works and any subsidiary works for the construction of a sufficient dividing fence for the adjoining lands.
(2) If there is a dividing fence between adjoining lands for which fencing works and any subsidiary works are required so that the dividing fence would be a sufficient dividing fence, the owners of the adjoining lands are liable to contribute in equal proportions to the fencing works and any subsidiary works for a sufficient dividing fence.
(3) Nothing in this section prevents owners agreeing to contribute in other proportions to the fencing works and any subsidiary works for a sufficient dividing fence.
(1) If fencing works and any subsidiary works are required for a dividing fence between adjoining lands (including the construction of the fence) and an owner of one of the adjoining lands requires a fence that is greater than the standard for a sufficient dividing fence, that owner is liable for the entire cost of the fencing works and any subsidiary works so far as they exceed the standard for a sufficient dividing fence.
(2) If fencing works and any subsidiary works are required for a dividing fence between adjoining lands and there is a dividing fence between the adjoining lands that was constructed to a standard that is greater than that for a sufficient dividing fence, the owner of the land for which the greater standard of dividing fence was required is liable for the entire cost of the fencing works and any subsidiary works so far as they exceed the standard for a sufficient dividing fence.
(3) Nothing in this section prevents owners agreeing to contribute in other proportions to the fencing works and any subsidiary works for a dividing fence that is of a standard greater than the standard for a sufficient dividing fence.
(1) An owner of land is liable for the entire cost of fencing works and any subsidiary works to repair or replace a dividing fence that separates the land and the adjoining land if the dividing fence is damaged or destroyed by a negligent or deliberate act by—
(a) the owner; or
(b) a person who has entered the land with the express or implied consent of the owner.
Note
Causes of damage or destruction of dividing fences may include creepers, the piling of soil against fences or the attachment of objects such as clotheslines to dividing fences.
(2) Subsection (1) does not apply to the damage or destruction caused in the course of authorised fencing works.
(3) To avoid doubt, the damage or destruction of a fence by a negligent or deliberate act includes the damage or destruction of a dividing fence that occurs in the course of developing land.
(4) To avoid doubt, subsection (1) does not affect any rights of an owner of land who is liable under that subsection against the person who caused the damage or destruction of the dividing fence.
(1) Despite section 7 and subject to subsection (3), a tenant of land is liable to the owner of land the tenant leases to contribute to fencing works and any subsidiary works for a sufficient dividing fence for the land as set out in subsection (2).
(2) If the owner gives or receives a fencing notice in respect of the land the tenant leases and, if on the day the owner gives or receives the fencing notice—
(a) the tenant's lease has an unexpired term of 5 years or more, but not more than 10 years—the tenant is liable for 50% of the amount that the owner of the land the tenant leases is liable to contribute to the fencing works and any subsidiary works; or
(b) the tenant's lease has an unexpired term of more than 10 years—the tenant is liable for the entire amount that the owner of the land the tenant leases is liable to contribute to the fencing works and any subsidiary works.
(3) A tenant is not liable to contribute to fencing works and any subsidiary works unless—
(a) the tenant is notified under section 15; and
(b) the owner who gives a fencing notice is seeking a contribution from the owner of the adjoining land.
(4) This section does not apply to any of the
following—
s. 6
(a) a tenant under a tenancy agreement to which the Residential Tenancies Act 1997 applies;
(b) a tenant under a retail premises lease to which the Retail Leases Act 2003 applies;
(c) a tenant under a lease agreement that provides for contributions to fencing works and any subsidiary works (whether or not the tenant is liable to contribute under the lease).
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In this Division—
"adjoining owner" means the owner of the adjoining land to the land of the notifying owner, being the adjoining land for which the fencing notice is given;
"notifying owner" means an owner of land who gives a fencing notice to the owner of the adjoining land under section 13.
(1) An owner of land must not undertake fencing works or any subsidiary works unless the works are carried out—
(a) in accordance with a fencing notice agreement; or
Note
Section 3 defines a fencing notice agreement as an agreement between owners of adjoining lands, or owners of adjoining lands and long-term tenants, about proposed fencing works and any subsidiary works to be undertaken, that is reached after a fencing notice has been given to one of the owners.
(b) in accordance with an order of the Magistrates' Court; or
(c) otherwise in accordance with this Act; or
(d) in accordance with another agreement between the owners of adjoining lands.
(2) If an owner of land carries out fencing works and any subsidiary works that are not works carried out as provided for in subsection (1)(a), (b), (c) or (d), the owner of the adjoining land may file a complaint in the Magistrates' Court seeking an order under section 30C.
(1) If an owner of land proposes to undertake
fencing works and any subsidiary works for a dividing fence for the land and
any adjoining land, the owner may give a notice under this section to the
owner of the adjoining land seeking the agreement of the owner of the
adjoining land to the proposal to carry out the fencing works and any
subsidiary works.
s. 6
Note
Section 14 makes provision for locating an owner of adjoining land. Sections 19 and 21 make provision for when an owner of adjoining land cannot be located.
(2) In a notice given under subsection (1), the notifying owner may require the adjoining owner to contribute, under this Act, to the fencing works and any subsidiary works.
(3) A notice given under subsection (1) must be in writing and contain the following information—
(a) the date of the notice;
(b) the name and contact details of the notifying owner;
(c) a statement that the notice is a notice under section 13 of this Act;
(d) the boundary line on which the fencing works and any subsidiary works are proposed to be carried out or, if it is impracticable to carry out the works on the common boundary because a waterway or other obstruction (whether natural or manmade) is on, or forms, the common boundary, the line on which it is proposed to carry out the works;
(e) if a dividing fence is not
required for part of the common boundary because a waterway or other
obstruction (whether natural or manmade) is on, or forms, the common boundary,
a statement to that effect;
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(f) the type of fencing works and any subsidiary works proposed to be carried out, including the type of fence to be constructed or the nature of the repairs or maintenance;
(g) the name and contact details of any person who may be engaged to undertake the fencing works and any subsidiary works proposed to be carried out;
(h) if the notifying owner requires the adjoining owner to contribute under this Act—
(i) an estimate of the cost of the fencing works and any subsidiary works proposed to be carried out and an explanation of the basis of that estimate; and
(ii) the proportion of the estimated cost that each owner is proposed to contribute; and
(iii) the estimated amount that the adjoining owner will be required to contribute;
(i) a statement that either owner may seek assistance from the Dispute Settlement Centre of Victoria to resolve any disputes about the proposed fencing works and any subsidiary works.
(4) Failure to include the information referred to in subsection (3)(a), (b), (g) or (i) in a notice given under subsection (1) does not invalidate the notice.
(5) A notice under this section may be in the prescribed form.
(6) For the avoidance of doubt, this section applies whether or not an adjoining owner is in occupation of the land.
Notes
1 Any form in or to the like effect of the prescribed form is sufficient in law: see section 53 of the Interpretation of Legislation Act 1984 .
2 The giving of a fencing notice to an owner does not apply to another person who subsequently acquires the land. A new fencing notice will need to be given.
(1) An owner of land who proposes to undertake fencing works and any subsidiary works who does not know the whereabouts of the owner of the adjoining land must make reasonable inquiries to locate that owner for the purpose of giving a fencing notice.
(2) A municipal council may disclose the name and address of an owner of land if the municipal council is satisfied the person to whom the name and address is given will use the name and address for the purpose of giving a fencing notice.
(1) If a notifying owner requires a long-term tenant of the notifying owner's land for which the fencing notice is given to contribute under this Act to the fencing works and any subsidiary works referred to in the fencing notice, the notifying owner must, on the same day the fencing notice is given to the adjoining owner—
(a) give a copy of the fencing notice to the long-term tenant; and
(b) give the long-term tenant a notice, in writing—
(i) seeking the long-term tenant's agreement to the proposed fencing works and any subsidiary works referred to in the fencing notice (but not to any matters set out in the fencing notice under section 13(3)(d)) and requiring the long-term tenant to contribute; and
(ii) estimating the amount that the long-term tenant will be required to contribute; and
(c) give the adjoining owner a notice, in writing, stating that there is a long-term tenant who is liable to contribute to fencing works and any subsidiary works under this Act.
(2) If an adjoining owner receives a fencing notice for the adjoining owner's land and the adjoining owner requires a long-term tenant of the adjoining owner's land to contribute under this Act to the fencing works and any subsidiary works referred to in the fencing notice, the adjoining owner must, as soon as practicable after receiving the notice—
(a) give a copy of the fencing notice to the long-term tenant; and
(b) give the long-term tenant a
notice, in writing—
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(i) seeking the long-term tenant's agreement to the proposed fencing works and any subsidiary works referred to in the fencing notice (but not to any matters set out in the fencing notice under section 13(3)(d)) and requiring the long-term tenant to contribute; and
(ii) estimating the amount that the long-term tenant will be required to contribute; and
(c) give the notifying owner a notice, in writing, stating that there is a long-term tenant who is liable to contribute to fencing works and any subsidiary works under this Act.
(3) Any notice under this section may be in the prescribed form.
Note
Section 10 sets out the circumstances in which long-term tenants may be liable to contribute to fencing works and any subsidiary works.
(1) To avoid doubt, the owners of adjoining lands may agree to carry out fencing works and any subsidiary works on a line that is not the common boundary if it is impracticable to carry out the works on the common boundary because a waterway or other obstruction (whether natural or manmade) is on, or forms, the common boundary.
(2) Despite section 4(2)(c), for the purposes of determining, under subsection (1), a line for carrying out fencing works and any subsidiary works that is not the common boundary of adjoining lands, "owner" includes a municipal council, trustee or other person or body in respect of land owned by or vested in, or under the care, control or management of, the municipal council, trustee, person or body for the purposes of a public park or public reserve.
If an adjoining owner responds to a notifying owner within 30 days of a fencing notice being given, but, after that 30 days, the owners have not agreed about any one or more of the matters specified in the notice, either owner may seek an order under section 30C by filing a complaint in the Magistrates' Court.
If a long-term tenant responds to an owner within 30 days from the day the notifying owner gave a fencing notice to the adjoining owner, but, after that 30 days, the long-term tenant and the owners have not agreed about any one or more of the matters specified in that notice—
(a) the long-term tenant may seek an order under section 30D by filing a complaint in the Magistrates' Court; or
(b) either owner may seek an order under section 30C by filing a complaint in the Magistrates' Court.
An owner of land may commence fencing works and any subsidiary works without agreement from the owner of the adjoining land if—
(a) the owner gives the owner of the adjoining land a fencing notice and the owner of the adjoining land has not responded within 30 days from the day the fencing notice was given; or
(b) after making reasonable inquiries, the owner of the adjoining land is unable to be located.
(1) A notifying owner may commence fencing works and any subsidiary works for which a long-term tenant of the notifying owner's land is liable to contribute under this Act, without agreement from the long-term tenant, if the long-term tenant has not responded to the notice given by the notifying owner under section 15(1) within 30 days from the day the notifying owner gave the fencing notice to the adjoining owner.
(2) A notifying owner may commence fencing works and any subsidiary works for which a long-term tenant of the adjoining owner's land is liable to contribute under this Act, without agreement from the long-term tenant, if the long-term tenant has not responded to the notice given by the adjoining owner under section 15(2) within 30 days from the day the notifying owner gave the fencing notice to the adjoining owner.
(1) If an owner of land who commences fencing works and any subsidiary works under section 19 seeks to recover a contribution from the owner of the adjoining land, the owner may do so by filing a complaint in the Magistrates' Court seeking an order under section 30C.
(2) An owner of land who is unable to locate the owner of the adjoining land after making reasonable inquiries may file the complaint in the Magistrates' Court without having located the owner of the adjoining land.
(3) If the owner of the adjoining land is liable to contribute to fencing works and any subsidiary works under an order made by the Magistrates' Court in that owner's absence ( first order ), and that owner considers that the first order is inequitable, that owner may seek a further order under section 30C by filing a complaint in the Magistrates' Court within 30 days after the service of the first order.
(1) If a notifying owner who commences fencing works and any subsidiary works under section 20(1) seeks to recover a contribution from a long-term tenant of the notifying owner's land, the notifying owner may do so by filing a complaint in the Magistrates' Court seeking an order under section 30C.
(2) If a notifying owner commences fencing works and any subsidiary works under section 20(2) and the adjoining owner seeks to recover a contribution from a long-term tenant of the adjoining owner's land, the adjoining owner may do so by filing a complaint in the Magistrates' Court seeking an order under section 30C.
(1) Without giving a fencing notice and without the agreement of the owner of the adjoining land ( adjoining owner ), an owner of land may carry out fencing works and any subsidiary works if—
(a) the fencing works and any subsidiary works need to be carried out urgently; and
(b) a dividing fence on the land has been damaged or destroyed; and
(c) it is impracticable to give a fencing notice to the adjoining owner.
Note
The types of circumstances in which fencing works and any subsidiary works may need to be carried out urgently include where the dividing fence has been damaged or destroyed by a falling tree or branch or by fire or flood.
(2) This section has effect subject to—
(a) the operation of—
(i) the Residential Tenancies Act 1997 in relation to urgent repairs; or
(ii) the Retail Leases Act 2003 in relation to urgent repairs; or
(b) a lease agreement that makes provision for urgent repairs.
(1) An owner of land who carries out fencing works and any subsidiary works under section 23, may give a notice to the adjoining owner requiring the adjoining owner to contribute under this Act to the fencing works and any subsidiary works for a sufficient dividing fence for the adjoining lands.
(2) A notice under subsection (1) must be in writing and contain the following information—
(a) a description of the land on which the fencing works and any subsidiary works were carried out;
(b) the boundary line on which the fencing works and any subsidiary works were carried out or, if it was impracticable to carry out the works on the common boundary because of a waterway or other obstruction (whether natural or manmade) is on, or forms, the common boundary, the line on which the works were carried out;
(c) the type of fencing works and any subsidiary works that were carried out, including the type of fence constructed or the nature of the repairs or maintenance;
(d) the reason the fencing works and any subsidiary works were required to be carried out urgently;
(e) the cost of the fencing works and any subsidiary works and a copy of the receipt for the works;
(f) the proportion of the cost that each owner is proposed to contribute to the fencing works and any subsidiary works;
(g) the amount that the owner to whom the notice is addressed is required to contribute.
(3) A notice under this section may be in the prescribed form.
If, after 30 days from the day that an owner gave an urgent fencing notice to the adjoining owner, the adjoining owner has responded but the owners have not agreed about any one or more of the matters specified in the urgent fencing notice, either owner may seek an order under section 30C by filing a complaint in the Magistrates' Court.
If, after 30 days from the day that an owner gave an urgent fencing notice to the adjoining owner, the adjoining owner has not responded, the owner who gave the notice may seek an order under section 30C by filing a complaint in the Magistrates' Court.
In this Division—
"adjoining owner" means the owner of the adjoining land to the land of the notifying owner, being the adjoining land for which the boundary survey notice is given;
"notifying owner" means an owner of land who gives a boundary survey notice to the owner of the adjoining land under section 28(1).
(1) An owner of land may give notice under this section to the owner of the adjoining land of the owner's intention to engage a licensed surveyor to have the common boundary defined.
(2) A notice under this section must be in writing and specify the position that the notifying owner thinks is the position of the common boundary unless the notifying owner has specified that position in a fencing notice given to the adjoining owner.
(3) A notifying owner must not give a notice under this section unless—
(a) the notifying owner has given or received a fencing notice in respect of the adjoining lands and the owners do not agree on the position of a common boundary; or
(b) the notifying owner gives a fencing notice in respect of the adjoining lands to the adjoining owner at the same time as giving a notice under this section.
(1) If an adjoining owner is given a boundary survey notice, the adjoining owner may, within 30 days from the day on which the adjoining owner was given the notice—
(a) give the notifying owner a notice, in writing, that the adjoining owner agrees to the position of the common boundary specified in the boundary survey notice or the fencing notice; or
(b) specify the position that the adjoining owner thinks is the position of the common boundary in writing or by defining the position of the boundary line by marking it on the ground; or
(c) engage a licensed surveyor to have the common boundary defined.
(2) If an adjoining owner has the common boundary defined under subsection (1)(c), the adjoining owner must give the notifying owner notice, in writing, of the common boundary as defined by the licensed surveyor.
(1) The notifying owner may have the common boundary defined by a licensed surveyor engaged by the notifying owner if, after 30 days from the day on which the notifying owner gave the boundary survey notice—
(a) the adjoining owner has not agreed to the position of the common boundary; and
(b) the adjoining owner has not had the common boundary defined under section 29(1)(c).
(2) A notifying owner who intends to have the common boundary defined under subsection (1) must, within 21 days after the day on which the 30 day period expires, engage a licensed surveyor to define the common boundary.
(3) The notifying owner must give the adjoining owner notice, in writing, of the common boundary as defined by the licensed surveyor.
(1) Subject to subsection (2), the notifying owner and the adjoining owner are liable to contribute in equal proportions to any reasonable cost of engaging the licensed surveyor under section 29(1)(c) or 30(1).
(2) An adjoining owner is not liable to contribute to the reasonable cost of engaging a licensed surveyor under section 30(1) if the common boundary defined by the licensed surveyor is in the same position as the position specified by the adjoining owner under section 29(1)(b).
On the giving of a boundary survey notice, the period of 30 days set out in section 17, 18, 19(a) or 20 is suspended until either of the following occurs—
(a) the owners agree, in writing, to the position of the common boundary specified in the fencing notice or the boundary survey notice or to another position; or
(b) a licensed surveyor, in accordance with section 29 or 30, defines the common boundary of the adjoining lands.
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(1) The Magistrates' Court may make an order in relation to any one or more of the following matters in respect of a complaint filed under this Act, if the case so requires—
(a) the line on which the fencing works and any subsidiary works are to be carried out, whether or not that line is on the common boundary of the adjoining lands;
(b) the line that is the common boundary of the adjoining lands;
(c) whether or not a dividing fence is required and whether or not fencing works and any subsidiary works should be carried out, and if any works should be carried out, the nature of the works to be carried out;
(d) the nature of the fence that constitutes a sufficient dividing fence for the adjoining lands;
(e) the person by whom fencing works and any subsidiary works should be carried out and, if the works are to be performed by different persons, the work to be performed by each person;
(f) whether a person is liable under this Act to contribute to fencing works and any subsidiary works;
(g) the way in which contributions for the fencing works and any subsidiary works are to be apportioned or reapportioned or the amount that each owner or long-term tenant is liable to pay for the works;
(h) any other work to be carried out (including work for a retaining wall) that is necessary so that the fencing works and any subsidiary works agreed on by the parties or specified in the order can be carried out;
(i) the time within which the fencing works and any subsidiary works are to be carried out (including any specific dates and times at which a person who carries out the works may enter land for the purpose of carrying out the works) and the manner in which those works are to be performed;
(j) whether an owner is to pay compensation to the owner of the adjoining land for loss of occupation of land arising from the placement of a dividing fence (including because of loss of an unrealised possessory right) and, if so, the amount of any compensation to be paid;
(k) that a party to the proceeding cease an activity or discontinue conduct that, in the opinion of the Court, is unreasonably damaging or may unreasonably damage a dividing fence;
(l) that an owner is authorised to carry out fencing works and any subsidiary works without the agreement or knowledge of an owner of adjoining land or a long-term tenant;
(m) any other matter, or any direction or relief that the Court considers appropriate.
(2) In making an order under subsection (1) about the line on which the fencing works and any subsidiary works are to be carried out or the line that is the common boundary of adjoining lands, the Court may require that the common boundary be defined by a licensed surveyor.
(3) In making an order under subsection (1) about contributions, the Court may have regard to any negligent or deliberate acts that have shortened the life of a dividing fence.
(4) For the purpose of an order under subsection (1), if there is more than one owner of an area of land, the owners are jointly and severally liable to contribute to fencing works and any subsidiary works for that area of land unless the Court determines otherwise.
(5) The Magistrates' Court may make an order under subsection (1) in the absence of an owner of the adjoining land if that owner has not been served with the complaint and cannot be located after reasonable inquiries have been made.
(1) The Magistrates' Court, in respect of a complaint filed by a long-term tenant under section 18(a) of this Act, may make an order in relation to any one or more of the matters referred to in section 30C(1)(c), (d), (e), (f), (g), (h), (i) or (k).
(2) In making an order under subsection (1) about contributions, the Court may have regard to any negligent or deliberate acts that have shortened the life of a dividing fence.
(1) A person may file a complaint in the Magistrates' Court under this section claiming title by possession to a part of adjoining land to the land that person owns if—
(a) the land that person owns is land in respect of which a complaint is filed under another provision of this Act; and
(b) the land that the person is claiming title by possession to is land on which fencing works and any subsidiary works that are the subject of that complaint are to be carried out.
(2) The Magistrates' Court may make an order in relation to who is entitled to title by possession of that part of the adjoining lands on which the fencing works and any subsidiary works are to be carried out.
(3) Nothing in this section affects the operation of the Limitation of Actions Act 1958 , the Transfer of Land Act 1958 or any other law in relation to adverse possession.
Note
A person who claims title by possession to land may apply to the Registrar under the Transfer of Land Act 1958 for an order vesting the land in that person.
(1) If an owner of land ( first owner ) fails to comply with a fencing notice agreement or an order made under this Act about fencing works and any subsidiary works within the time specified in the agreement or order, or, if there is no specified time, within 3 months after the making of the agreement or order, the owner of the adjoining land ("adjoining owner") may—
(a) carry out the fencing works and any subsidiary works; or
(b) recover from the first owner the amount that the first owner was liable to pay the adjoining owner under the fencing notice agreement or order.
(2) An adjoining owner who carries out fencing works and any subsidiary works under subsection (1)(a) may recover from the first owner the amount that the adjoining owner was liable to pay the first owner under the fencing notice agreement or order or otherwise under this Act.
The owner of land that is leased by a long-term tenant who is liable to contribute to fencing works and any subsidiary works under this Act may recover from the long-term tenant the amount that the long-term tenant is liable to contribute if the long-term tenant fails to comply with—
(a) a fencing notice agreement made with the owners within the time specified in the agreement or, if there is no specified time, within 3 months after the making of the agreement; or
(b) an order made under this Act about fencing works and any subsidiary works within the time specified in the order or, if there is no specified time, within 3 months of the making of the order.
(1) If an owner carries out fencing works and any subsidiary works for a dividing fence and the adjoining land is unalienated Crown land, the owner may recover half of the value of the existing dividing fence from any person who later becomes the owner of the adjoining land by giving that person notice under this section.
(2) A notice under this section must be in writing and contain the following information—
(a) a statement of the value of the dividing fence; and
(b) the amount that the owner to whom the notice is addressed is required to contribute.
(3) An owner who gives notice under this section must do so within 6 months after the day on which the owner to whom the notice is given acquired the land.
(4) Either owner may seek an order under section 30C by filing a complaint in the Magistrates' Court if, after 30 days from the day that an owner gave a notice under this section, the owners have not agreed about either of the following—
(a) whether an owner is liable, under this Act, to contribute to fencing works and any subsidiary works;
(b) the way in which contributions for the fencing works and any subsidiary works are to be apportioned or reapportioned or the amount that each owner is liable to pay for the works.
(5) An owner must not give notice under this section unless—
(a) at the time the notice is given, the dividing fence in respect of which the fencing works and any subsidiary works were carried out is in existence; and
(b) at or before the time the notice is given, the owner who gives the notice has not received contributions for the fencing works and any subsidiary works.
Proceedings cannot be brought for the recovery of a proportion of the cost of fencing works and any subsidiary works on the grounds that the works were not carried out in compliance with a fencing notice agreement or an order made under this Act unless there was a substantial failure to comply with the conditions of the agreement or order.
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