Neighbourhood Disputes - who pays for the removal & construction of a boundary fence?

Liability for the costs of constructing a boundary fence is governed by the Fences Act 1968 (Vic) (‘the Act’).

The general principle under the Act is that adjacent property owners are liable to contribute in equal proportions to a ‘sufficient dividing fence’. Where there is no dividing fence between the adjoining land, owners are liable to contribute equally to the cost of construction of a sufficient dividing fence.

Owners may otherwise agree to contribute in other proportions. This is often the case where one owner wants to construct a fence that is greater than the standard for a sufficient dividing fence and becomes liable for the cost of the fencing works and any subsidiary works so far as they exceed the standard for a sufficient dividing fence.

Sufficient Dividing Fence

What is considered ‘sufficient’ will depend on a number of factors including the use of each of the properties, the purpose of the fence, any existing covenants and the type of fences used in the locality. Enquiries should be made to your relevant Council and a search for any covenants on the property’s Certificate of Title (it’s record of registration of title on the Land Data Register of real property interests) which may restrict the type and material of fence permitted to be constructed.

It is also important to check whether any easements affect the land (for example, by allowing a right of way) upon which the proposed fence is to be constructed   .

There are two options available to a property owner wishing to undertake fencing works:

1.     reach an agreement with the adjoining property owner; or

2.     issue a fencing notice in accordance with the provisions of the Act.

Commencing works without agreement

Works should not be undertaken until compliance of the requisite fencing notice procedure provided for under the Act has been met or you have otherwise reached an agreement with your neighbour and sufficiently documented the terms of the agreement in writing.

If works are commenced without reaching an agreement or satisfying the fencing notice procedure, the aggrieved neighbour may bring Magistrate Court proceedings against the uncooperative neighbour and ultimately render them solely liable for payment of the fencing works.

Fencing Notice

A Fencing Notice must be prepared in the appropriate form sufficiently detailing the proposed works and served on the adjoining neighbour. The Notice must adhere to strict formality requirements to constitute a Notice under the Act including the proposed boundary fence location, the type of fence proposed, the contact details of any person who may be engaged to carry out the works and the estimated costs including an explanation of these costs as well as the division of costs.

Following service of the Notice, the adjoining neighbour fails to respond within 30 days, the works detailed in the notice may be carried out and the issuing neighbour would then be able to recover the amount specified in that notice from the adjoining neighbour.

If the adjoining neighbour responds to the Notice within the time provided but does not agree to the works, the fencing works cannot be commenced. In this case, you will need to wait a further 30 days, before filing a complaint with the Magistrates’ Court to seek an order in respect of the works.

Urgent Fencing Works

In circumstances where a matter is considered urgent, construction can commence without the adjoining neighbour’s agreement and without a Notice being provided.

Circumstances considered urgent for the purposes of the Act include where a fence has been damaged or destroyed (for example by a falling tree, fire or flood) or where it is impracticable to give a fencing notice to the adjoining owner.

Contact our office today if you require assistance issuing or responding to a Fencing Notice or would like advice in respect of a fencing dispute.