Imagine a crisp night around the middle of July. A storm is brewing and the phone does not stop buzzing with ‘damaging wind’ notifications from the Bureau of Meteorology. Usually, it would be nothing, but this time, you awaken to see a fallen fence.
Fencing disputes are a common occurrence and can cause great stress and tension between neighbours. Issues generally arise when one property owner looks to erect a fence between their property and their neighbour’s property, or when there is a disagreement over the repair or replacement of an existing fence.
The Fences Act 1968 (Vic) sets out provisions relating to fences, fencing works, and fencing disputes. The general principle is such that each property owner is responsible for maintaining the fence that separates their property from that of their neighbour. Hence, each owner is responsible for an equal share of the cost of repair and maintenance of the fence.
Section 9 of the Act relates to owners who damage or destroy a dividing fence. It legislates that an owner is liable for the entire cost of the works if a fence is damaged or destroyed by a negligent or deliberate act by said owner, or by a person on the owner’s land (who has entered the land with the consent of the owner).
A question which may arise when considering fencing works is the standard of fence that you must contribute towards. The Act states that for fences of a greater standard than sufficient dividing fences, the owner requiring the fence of greater standard is liable for the entire cost of the works. When considering what constitutes a ‘sufficient dividing fence’, the primary factors taken into account are:
- the existing fence;
- the purposes for which the land is to be used;
- reasonable privacy concerns;
- types of dividing fences in the locality;
- any policy or code relating to fences in the municipality; and
- relevant planning instruments and building laws.
For suburban residential properties for example, a sufficient dividing fence may be a two metre picket fence, whereas for some rural properties, a wire fence may be sufficient.
If you would like to learn more about you rights and obligations or have an ongoing fencing dispute, please contact Warlows Legal for a free consultation.
