Many neighbourhood disputes arise from the inability for the occupiers to arrive at a decision when it comes to fences; this may be due to the cost of the fencing, the location of the fencing, the requirement of fencing or the style of fencing. In Victoria the obligations between neighbours in regards to fencing is governed by the Fences Act 1968 (Vic).

For general information and guidance on neighbourhood disputes see Reaching Agreement - practical advice for commuicating with your neighbour

The general rule in regards to fencing issues whether or not it is the construction of a fence or the repair / maintenance of a fence is divided equally. This is not always the case though as ideally the adjoining land owners would come to an agreement as to exactly what is required of each. If no agreement is made between the parties or one party refuses to comply with what they have already agreed upon the Magistrates' Court can intervene and decide the split of the costing between the parties.

If the occupier of land wishes for the adjacent land occupier to contribute to the cost of fencing between the properties may issue a 'notice to fence'. The notice to fence is set out in section 6 of the Act, it is a notice which includes:

• the specific boundary to be fenced
• a proposal for fencing the boundary, and
• the specific kind of fence proposed to be constructed.

If, as a tenant, you receive a notice to fence what options are there? As a tenant if you receive a notice then you have 14 days to serve that notice to the landlord, the person to whom you pay your rent or to somebody that you have reason to believe is authorised to accept the service of such a notice on behalf of the landlord. (section 10 (3))

If you do not serve the notice upon the landlord within the given 14 days then as the tenant you will then be responsible for the whole cost of construction. (Section 10 (4))

If you are a neighbour of Crown land, you will have to pay the entire cost of constructing or repairing a dividing fence. However, should the Crown sell or lease Crown land to another person, you will be entitled to recover half the value of the dividing fence from that person (Section 12).

Occupiers of adjoining lands not divided by a fence, are liable to construct or contribute to the construction of a dividing fence (section 4). If, as a occupier, you wish the occupier of adjacent land to contribute to the construction of a dividing fence, you must serve a notice to fence (see above).

If you are unable to reach an agreement within one month of serving the notice, the Magistrates' Court may make orders prescribing:

• the kind of fence to be constructed;
• the portion of the fence to the constructed, or the proportion of cost to be contributed by each person; and
• the position of the fence (section 7).

Occupiers are liable for the repair of dividing fences (section 14). If the dividing fence has been destroyed or damaged by fire or falling tree by the neglect of your neighbour, he or she will be liable to pay for the repair of the entire fence or damaged proportion of it (section 14(a)). For every other case, you will need to discuss with your neighbour what should be done with the dividing fence and how much each party will need to pay to repair it.

If, as an occupier, you wish the occupier of adjoining land to repair, or contribute to the repair of a dividing fence, you will need to serve a notice on the occupier of adjoining land (section 15(1)). After one week of serving the notice, should the occupier of adjoining land refuse to contribute the cost of repairing the fence, you may repair the dividing fence and then demand to recover the cost of repairing the fence.

If you are unable to reach agreement with your neighbour as to how much each will have to pay to repair the dividing fence, the Magistrates' Court will determine how much each party will be liable to contribute to the cost repairs (section 16).

If your neighbour is absent from Victoria, cannot be found, or the neighbouring land is unoccupied, as an occupier of adjoining land, you may:

• send a notice to your neighbour via circulating newspaper or registered post, requiring him or her to contribute to the construction of the dividing fence (section 9(1)); then
• proceed, without the other party, to obtain an order or award from the Magistrates' Court or arbitrator authorising the construction, kind and position of the fence as well as the proportion of construction cost to be borne by each occupier (section 9(2)).

If, after this time any person occupies the land, you may, within one month of occupation, serve on this person a copy of the order or award (section 9(4)).

Where a waterway forms a boundary between adjoining lands (but not able to resist trespass of cattle), the occupiers of adjoining lands may agree upon a fence on either side of the waterway (section 5).

As an occupier of land bounded by a road within the municipal district, you may construct a temporary fence upon such road. First, you will have to serve a notice to the relevant municipal council describing the proposed fence and its location. If, within one month of serving the notice, the council objects to the construction of such fence, the Magistrates' Court may make an order prohibiting the construction of the fence.

However, if within one month of serving the notice, the council does not object to the construction of the temporary fence, you may within six months of serving the notice proceed in constructing the fence. Such construction must comply with the following conditions:

• the fence shall be no more than 1 × 83 metres distant from the nearest point on the boundary of your land; and
• where the road is reduced by the construction of the fence, the width of the road must not be less than 9 × 15 metres (section 13).

• View the whole Act online via Austlii
• The Parliament of Victoria Victoria Law Reform Committee - 'fencing quick guide'
• The law handbook online - Fences fact sheet
• Rural law online - fences

• Urban trees and the law