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Disputes about fences

What happens if there is a dispute about fences.

If adjoining owners cannot agree about replacing an old fence or getting a new one they can try to resolve their dispute using the Dispute Settlement Centre.

Dispute settlement centre

One of the owners can contact the centre and the Dispute Settlement Centre will contact the other party in writing to invite them to a mediation session where both parties will try to reach an agreement. The service is free and participation is voluntary. The owners can apply to the dispute settlement centre at any time. They do not need to send a fencing notice first.

See Dispute settlement centre—Fencing disputes.

Common disagreements about fences

Neighbours may have a dispute about:

  • whether or not the fence needs to be replaced
  • if the whole fence needs replacing or just a small section
  • whether one owner caused the damage to the fence
  • if a verbal or written agreement about the fence has not been honoured
  • what type of fence is to be constructed
  • whether the fence is in the wrong place
  • who is going to pay.

If negotiation doesn’t work the person will have to apply to court.

If adjoining owner does not respond or cannot be found

If adjoining owner:

  • does not respond within 30 days from the date a fencing notice is given, or
  • cannot be found after making reasonable inquires

the applicant owner can go ahead and repair or replace the fence.

See s. 19—Fences Act 1968 (Vic) and The law on building or repairing a fence.

Before going to court

If the owners can't agree and they have not issued a fencing notice to the other party, they will have to give the other party a fencing notice and then wait 30 days before they can file a complaint in the Magistrates' Court.

See Fencing notice.

Applying to the Magistrates’ Court

To file a complaint in the general section of the Civil Jurisdiction of the Magistrates' Court, the applicant must complete a 'Complaint (Fencing dispute) Form 5A' and lodge it at the Court Registry. The applicant will have to pay a fee for filing the application.

The application must include:

  • reasons that the fence needed to be constructed or repaired
  • an explanation about where they disagree
  • a copy of any agreement in writing.

The applicant must then wait 30 days after they have served their neighbour before they can apply for an order (file forms 46A (Summons) and 6A (Affidavit/Declaration of service)).

Note: The applicant will also have to file the certification forms (4A and 4B) required under the Civil Procedure Act 2010.

See Procedure—What parties have to do.

Neighbour’s response

The adjoining owner has 21 days respond. They must file a defence Form 8A (Notice of defence).

If they do not respond, the applicant can ask the court to make an order without the neighbour being present.

See 'Forms' and rr. 5.02, 13.02, 21.01—Magistrates' Court General Civil Procedure Rules 2010 (Vic).

Getting an order

A court order may decide:

  • the kind of fence that is sufficient for the purposes of both owners
  • the kind of fence to be constructed
  • how the cost of the fence is to be divided between the owners
  • whether a fence is needed or not
  • whether one party is liable to contribute to the cost of a fence
  • where the fence is to be placed
  • how the cost of the fence is to be apportioned between the parties
  • who should be contracted to carry out the fence work
  • if any additional work needs to be carried out
  • whether one owner needs to compensate the other (for loss of use of the property arising from placing a fence)
  • that a party must stop an activity that is damaging or may damage a fence
  • that an owner can carry out fence-work without agreement from the other owner
  • any other matter, direction or relief it considers appropriate.

Once the order or award has been received, the applicant may then lawfully construct a dividing fence in accordance with the specifications of the order.

Costs of the complaint shall be awarded at the discretion of the court.

See s. 30C—Fences Act 1968 (Vic).

The court can also make decisions about contributions from long term tenants, and adverse possession claims.

See s. 30D, 30E—Fences Act 1968 (Vic).

More information

Legislation

Fences Act 1968 (Vic)

  • s. 3—definition of owner
  • s. 29—proceedings to be before a magistrate
  • s. 30C—orders about fencing works
  • s. 30D—orders about fencing works in relation to long term tenants
  • s. 30E—orders in relation to adverse possession claims
  • s. 30F—if adjoining owner defaults on agreement or order

See Fences Act 1968 (Vic).

Magistrates' Court General Civil Procedure Rules 2010 (Vic)

  • r. 5.02—Form of complaint
  • r. 13.02—defence
  • r. 21.01—plaintiff may apply for order if defendant does not give a notice of defence within 21 days

See Magistrates' Court General Civil Procedure Rules 2010 (Vic).

Reference

Dispute Settlement Centre

The 'Fences' section of this site has an example of a fencing notice and other notifications.

See Dispute Settlement Centre—Fencing disputes.

Updated