Updated: Nov 5, 2021
Photo Courtesy: Sunyu Kim Collected from Unsplash
The dispute between neighbours is a very common scenario in Australia. One of the most common types of such dispute is related to fencing. If you are a homeowner, you must have some experience of fencing issues with the neighbour. Dispute with your neighbour could have a very serious effect on your everyday life. However, going to court to resolve such a problem is often not the best solution to the problem. Legal intervention is often a very expensive as well as time-consuming process. Moreover, it damages your relationship with your neighbour. If you know the laws relating to the fence, it will help you to negotiate and peacefully resolve any disagreement with your neighbour. If you cannot reach an agreement with your neighbour, dispute resolution will be the easiest and cheapest way to resolve it.
1. What are your responsibilities regarding fencing?
A dividing fence usually separates two pieces of adjoining land. Both neighbours are responsible for shared fences. It generally runs along the common boundary of the properties. However, you have the right to agree otherwise. For example, if there is something in the way, you and your neighbour may agree to build the fence around it. When building or repairing fences, both parties should agree on the style, cost and timing of the necessary works.
The Fences Act contains rules about
who pays for a dividing fence,
the type of fence to be built,
notices that neighbours need to give one another and
how to resolve disputes that come up when discussing fencing works with your neighbour.
2. What is a Fencing Notice?
A fencing notice is a formal written proposal that you should send to your neighbour. It contains the proposal for the construction or repair of a dividing fence or other works that need to be done. The fencing notice includes the following proposals:
the line on which the works should be carried out;
the type of works to be carried out;
the person to be engaged to undertake the works;
an estimate of the cost; and contribution proportions.
You can hand the fencing notice to your neighbour personally or send it by post. The regulations under the Fences Act include a pro forma notice which you can use.
However, if you and your neighbour have agreed to the fencing works and any other works that need to be done, then a fencing notice is not required. You might agree about the works by signing a quote provided by a fencing contractor.
Even when you are not seeking any contribution from your neighbour for the construction or repair of a fence, you must reach an agreement with your neighbour or follow the fencing notice procedure before you undertake the construction.
If your neighbour has responded to the fencing notice and agrees to the proposal, you can proceed with the fencing works.
If you have not heard from your neighbour, after 30 days from the date you provided the fencing notice, you can proceed with the fencing works without their agreement. However, a court order will be required if you wish your neighbour to contribute to the costs.
3. Who pays for the fences and how much?
According to the Fences Act, owners must contribute equally to a “sufficient dividing fence”.
If you and your neighbour do not have an adequate fence, both of you must pay for a fence to be built or repaired. Usually, each of you has to pay for half of the cost of the fence. However, the Fences Act makes it clear that if one neighbour wants a much larger or more extravagant fence than the other, the position is different. In that situation, it would be up to the neighbours to reach an agreement about their share of the cost. If they disagree, then a court is empowered to make an order to resolve the deadlock.
For most negotiations, a 50–50 split of fencing costs is the starting point. However, if you anticipate that your neighbour will not agree to such an arrangement, you should consider offering to pay a little more to assist to resolve the dispute. It will ultimately help your cause, particularly if a new or repaired fence is a high priority for you. A dispute with the neighbour could cost a lot more if it goes up to court.
If you live next to land occupied by the government or council (e.g., a public park), the situation is generally different. In that case, you will have to pay the entire cost of building or repairing the fence.
4. What if I cannot find my neighbour?
If you cannot find your neighbour, e.g., the land next to you is vacant and you have made “reasonable inquiries”, including asking anyone who occupies the property and asking the local council, you may undertake the fencing works without any agreement with the neighbour. In such a case, you have to be ready to bear the cost all by yourself.
5. What are the ways to settle a fencing dispute?
If your neighbour does not agree to the proposal in your fencing notice, you cannot proceed. You must negotiate an agreement or wait until the 30 days expires. After 30 days from the fencing notice, you may initiate an action in the Magistrates’ Court of Victoria.
The Magistrates’ Court has the power to determine
whether works are needed;
what sort of fence should be built;
the time within which the works should be carried out;
how much each neighbour should contribute; and
other related matters.
You can still negotiate or mediate the issues with your neighbour at any point after the 30 days has expired. You may consider getting the help of alternative dispute resolution to resolve such a disagreement with your neighbour over the fence. The Dispute Settlement Centre of Victoria may be able to assist with mediation.
If you did not give a fencing notice and reached a verbal agreement with your neighbour, it will not be governed by the Fencing Act. In such cases, enforcement of the agreement between you and your neighbour would be subject to contract law.
To avoid the cost and stress of going to court, the Victorian Government has a free dispute resolution service called the Dispute Settlement Centre of Victoria. The centre offers neighbours who are in dispute an opportunity to meet together in mediation and, with the assistance of mediators, reach an agreement that works for everyone. The service is free, informal and confidential.