Fencing

Last updated: August 2019

My fence was damaged in the bushfires. Who pays for repairing or replacing my fence?

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 you do not know the identity of the person who caused the bushfire, you and your neighbour should consider whether fencing works should be undertaken yourselves.

You should speak with your neighbour and come to an agreement, aiming to agree on:

• the need to repair or replace the fence
• the type of fence you wish to have (including details like height, material and colour)
• the budget for repairing or replacing the fence
• the amount each of you will pay
• the contractor or company you should use to repair or replace the fence
• when the fence should 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).

What to do if you and your neighbour agree

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, after your fence is built or repaired, your neighbour refuses to pay their share of the cost, you can issue a claim in the Magistrates’ Court for breach of contract.

If you and your neighbour cannot agree

Contacting the Dispute Settlement Centre of Victoria

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 Victoria. It provides a number of dispute resolution services for free that may help you and your neighbour reach an agreement.

Serving a fencing notice

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 deliver the notice personally, but if you think it may cause a dispute it may be best to send it by registered mail.

Service of a fencing notice

If your fence needs replacing or repairing, you may serve a fencing notice. For example, you may serve notice if your fence has been completely destroyed by a bushfire, or damaged by a bushfire but still able to be repaired.

Fault of your neighbour

If your fence was destroyed or damaged due to the fault of your neighbour, they may have to pay the entire cost of rebuilding the fence or the cost of repairing the damaged part of it.

If you think your neighbour has been negligent, you should get legal advice.

Form of fencing notice

A fencing notice is a formal document that sets out a proposal for construction or repair of a dividing fence. It 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
• if a dividing fence is not required for part of the common boundary (because a waterway or other obstruction is on, or forms, the common boundary), a statement to that effect
• 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.

You should attach a copy of the quote you have received 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 website.

Timing

If you have served a fencing notice and the neighbour has not responded or cannot be located

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 website.

If you are unable to reach an agreement with your neighbour

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.

The neighbour has breached the fencing notice agreement after service of the fencing notice

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 (and, if no time was specified, within three months after the making of the agreement), 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.

Unable to locate your neighbour

You must make reasonable inquiries to locate the adjoining owner, including asking any tenant of the adjoining property and the local council.

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.

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

For a sample of an urgent fencing notice, see the Disputes Settlement Centre of Victoria website.

General principle – owners are liable to contribute in equal proportions

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 had 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.

If you are a tenant

If you are renting and your neighbour sends you any document relating to the construction of a fence, as soon as possible 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), 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.

My fence shares a boundary with government or council land. Who pays?

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

Municipal councils who 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.

Are fences included under my insurance policy?

This will depend on the terms of your policy.

If you have lost your insurance policy documents, you should contact your insurance company. If you cannot recall the name of your insurer, contact the Insurance Council of Australia on 1300 728 228.

Also see the Disaster Legal Help Insurance page.

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 will help work this out).

My fence and/or fire control lines were damaged or destroyed due to the firefighting effort. Who pays for the repairs?

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.

Contact the Department of Environment, Land, Water and Planning on 136 186.

Can I get financial assistance with repairing or replacing my fence?

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. See Rural Finance’s website for more details.

The Department of Health and Human Services, Victoria (DHHS) currently has a Personal Hardship Assistance Program which can help cover the costs of cleaning up, accommodation and repairs. See the DHHS website for further information.

I am worried about unsafe trees and my fencing. What can I do?

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