Disaster Legal Help Victoria

Fencing

Information about what to do if your fence was damaged in a disaster.

Destroyed or damaged fencing

If your fence was damaged or destroyed in a disaster, you should speak with your neighbour and come to an agreement on:

  • the need to repair or replace the fence
  • the type of fence you want (including height, material and colour)
  • the budget for repairing or replacing the fence
  • the amount each of you will pay
  • the contractor or company you will use to repair or replace the fence
  • when the fence will be repaired or replaced
  • who will be responsible for organising the replacement or repairs
  • the placement of the rails and framing
  • where the fence is to be located (this will usually be the same place the old fence was located).

Record your agreement about each of the above points in writing. This document should be signed and dated by you and your neighbour. You should also obtain quotes for replacing or repairing the fence from a number of contractors and discuss them with your neighbour. The agreement should state which quote you both agree to accept. If your neighbour refuses to pay their agreed share of the cost after your fence is built or repaired, you can issue a claim in the Magistrates’ Court for a breach of contract.

Fencing repairs or replacement may be covered by your insurance. For more information, see our page on Insurance.

If you have experienced bushfire-related fencing damage you should contact Bushfire Recovery Victoria (BRV)External Link on 1800 560 760. This is a permanent government agency established in response to the 2019/20 bushfires that is focused on coordinating bushfire recovery efforts in conjunction with local authorities and departments. BRV has previously collaborated with volunteer organisation BlazeAid to provide assistance in rebuilding fences for those who are either not insured or are under-insured for the cost of rebuilding.

If your fence was damaged or destroyed because of a bushfire, you and your neighbour may be able to make a claim against the person who caused the bushfire. If your fence was destroyed or damaged due to your neighbour, they may have to pay the entire cost of rebuilding the fence or the cost of repairing the damage. This may include a situation where the fire originated on your neighbour's property. If you think your neighbour has been negligent, you should get legal advice.

In the case of bushfire damage, it is likely that the fencing work required will be considered urgent. Refer to the Urgency section below for more information on the process of undertaking urgent fencing works.

Serving a fencing notice

If you and your neighbour cannot agree on an issue relating to the repair or replacement of your fence, you can contact the Dispute Settlement Centre of VictoriaExternal Link . It provides a number of dispute resolution services for free that may help you and your neighbour reach an agreement.

A fencing notice is a formal document that sets out a proposal for the construction or repair of a dividing fence. If you do not feel comfortable approaching your neighbour, or if you cannot agree on any issue relating to the repair or replacement of your fence, you may serve your neighbour with a notice regarding the proposed fence. You can give the notice to your neighbour directly or send it by registered mail if you want to avoid face to face contact. You must make reasonable inquiries to locate the adjoining owner, including asking any tenant of the adjoining property and the local council.

A fencing notice must include:

  • the date of the notice
  • the name and contact details of the notifying owner
  • a statement that the notice is a notice under section 13 of the Fences Act 1968
  • the boundary line on which the fencing works are proposed to be carried out
  • a statement detailing any parts of the common boundary where a dividing fence is not required because a waterway or other obstruction is on, or forms, the common boundary
  • 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
  • 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
  • if the notifying owner requires the adjoining owner to contribute:
    • 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
    • the proposed proportion of the estimated costs that each owner is to contribute
    • the estimated amount that the adjoining owner will be required to contribute.
    • a copy of the quote from the fencing contractor.

The regulations to the Fences Act 1968 include a pro forma notice that has all the necessary details. For a sample of a notice, see the Disputes Settlement Centre of Victoria websiteExternal Link .

If the neighbour ignores the fencing notice and 30 days have passed since the notice was given, or the neighbour cannot be located after making reasonable enquiries, you can proceed with fencing works without the neighbour’s agreement and later recover your contribution by filing a form 5A complaint (Fencing Dispute) in the Magistrates’ Court. The form 5A complaint is available on the Magistrates’ Court websiteExternal Link .

If the neighbour does not agree to the fencing works and 30 days have passed since the notice was given, then either owner can initiate proceedings in the Magistrates’ Court.

If an agreement is reached after a fencing notice was served and your neighbour fails to comply with a fencing notice agreement within the time specified (or within three months after the making of the agreement if no time was specified) you may carry out the fencing works and seek a contribution later, and/or recover from your neighbour the amount that is liable to be paid by initiating proceedings in the Magistrates’ Court.

Usually, a magistrate will order neighbours to pay equal amounts to repair or construct a dividing fence. If an owner wants a higher standard, like a more expensive fence, the person who wants this will usually pay the difference in costs between a “sufficient dividing fence” and the higher standard.

A number of factors are taken into consideration when determining what a sufficient dividing fence is for the properties. In determining whether a dividing fence is a sufficient dividing fence, regard must be given to a number of factors, including but not limited to:

  • the existing dividing fence (if any)
  • the purposes for which the neighbours use or intend the lands to be used
  • the reasonable privacy concerns
  • the types of dividing fences used in the locality
  • any policy or code relating to dividing fences adopted by the council
  • the nature of the surroundings (for example, whether the area is prone to certain weather conditions or natural disasters such as fires or flooding).

Urgency

Fencing works can be carried out without providing a fencing notice if:

  • the fencing works and any subsidiary works need to be carried out urgently
  • a dividing fence on the land has been damaged
  • it is impracticable to give a fencing notice to the neighbour.

Whether a situation is urgent will depend on its particular facts. Examples of where a fencing situation might be considered urgent include where the dividing fence has been damaged or destroyed and animals might be escaping, or a pool that is not fenced.

If you would like your neighbour to contribute to fencing works after undertaking urgent fencing works, you need to serve an urgent fencing notice.

As a tenant

If you are renting and your neighbour sends you any document relating to the construction of a fence, you should send the document by registered post to your landlord, their agent, or anyone you think is authorised to accept documents on their behalf as soon as possible so your landlord can respond within the required time limit.

Most residential or retail tenants do not have to contribute to fencing works, but some other types of tenants (like commercial tenants) may be required to contribute.

Fencing that adjoins government/council land

Particular types of Crown land are exempted from contributions under the Fences Act. You may need to get further legal advice or information about whether the Crown is required to make a contribution. For example, following the 2019/20 Victorian bushfires, the Victorian Government agreed to contribute 50% of the costs to restore fire-damaged fences that were located between private land and National Parks, State Parks or State Forests. The Government also agreed to pay half the cost at up to $5 per metre for certain upgrades requested by the landholder.

The Law Institute of Victoria provides referrals to law firms across Victoria. Law firms included in the Find Your Lawyer Referral ServiceExternal Link provide a free 30-minute inquiry interview. Call (03) 9607 9550 for more information.

Municipal councils which manage land for the purposes of a public park or public reserve do not have to contribute to fencing works between that land and privately owned land.

Placement of rails and framing

You and your neighbour should try and come to an agreement on where the rails and framing will be placed. If you are unable to reach an agreement, the Act provides a formula to determine the placement of rails and framing:

  • if residential land or commercial land shares a common boundary with land to which the public has general access, the rails and framing must be placed on the side of the dividing fence facing the residential or commercial land (as the case requires)
  • if residential land shares a common boundary with commercial land, the rails and framing must be placed on the side of the dividing fence facing the residential land.

In all other cases:

  • if a dividing fence is being replaced by a similar dividing fence, the rails and framing should be placed on the same side that they were located on the previous dividing fence
  • if the dividing fence is being replaced by a different type of dividing fence or if there was no previous dividing fence, the rails and framing should be placed on the side least subject to weathering (the fencing contractor can help determine this).

Fencing damage caused by firefighting efforts

If the fire started on public or Crown land, the Victorian Government will assist you with:

  • the rehabilitation of fire control lines
  • the cost of restoring fences on private land which were damaged by machinery or cut to allow access.

If the fire started on private land and was under the control of the Country Fire Authority, the Victorian Government will provide some limited assistance:

  • for the rehabilitation of the fire control lines
  • with repairing fences damaged by machinery.

For example, following the 2019/20 Victorian bushfires, the Victorian Government agreed to pay 100% of the costs for repairing farm fencing on private land that was damaged as a result of firefighting efforts.

For more information, contact the Department of Environment, Land, Water and Planning on 136 186.

Financial assistance for replacing fences

Rural Finance typically offers low-interest loans to primary producers, small businesses and not-for-profit organisations affected by bushfires. They are currently offering such loans to those eligible and located in specific Local Government Areas. For example, following the 2019/20 Victorian bushfires, grants of up to $75,000 per business were made available to support primary producers directly affected by the bushfires with the costs relating to recovery activities, including repairing and replacing damaged fencing. See Rural Finance’s websiteExternal Link for more details.

The Department of Families, Fairness and Housing (DFFH) has a Personal Hardship Assistance Program which can help cover the costs of cleaning up, accommodation and repairs. See the DFFH websiteExternal Link for further information.

Removing trees

Before removing any part of a tree you should call your local council to check that you do not require special permission. You can find your local council on the Know Your Council websiteExternal Link .

The Department of Environment, Land, Water and Planning may have an officer working in your area who can tell you whether the trees are considered native vegetation. Contact the Department on 136 186.

If the tree is located on your neighbour’s property, you should raise your concerns with your neighbour. If you are unable to reach a resolution with your neighbour, you can cut branches and tree roots which cross the fence line onto your property. To do so, you cannot enter your neighbour’s property without their permission. You should carefully return to your neighbour any branches or roots removed from their tree.

If you require professional assistance to remove the branches or roots, you should try to reach agreement with your neighbour about sharing the cost before the work is undertaken. If you do not, you may be unable to recover those costs later.

Where to get help

Call Disaster Legal Help Victoria on 1800 113 432 (weekdays 8am to 6pm) for legal information and referrals or contact your closest community legal centreExternal Link to get advice from a local lawyer. For alternative contact options, visit our homepage.

For additional support options and a directory of other services, visit Other organisations that can help.

Reviewed 24 October 2022