Natural disasters, such as storm, fire and flood, and other unpredictable emergencies, can trigger the need to urgently repair or reconstruct fences. Fencing works might need to be carried out urgently, for example, where the dividing fence has been damaged or destroyed by a falling tree or branch.
Where such fences are located on the boundary, or serve to separate adjoining land, any fencing works that occur to repair or maintain the dividing fence may be subject to the procedures set out under the Fences Act 1968 (Vic) (Act).
As then Attorney-General Robert Clark stated in 2013, when introducing the new provisions, the process for urgent fencing was intended:
‘to strike a balance between notifying interested parties of proposed fencing works and permitting them to negotiate about the works and ensuring that fencing works are not unduly delayed where they need to be undertaken urgently.’[1]
General fencing requirements
While the right to have a fence or wall kept in repair has been recognised by the courts as an easement, it is ‘not an easement strictly so called because it involves the servient owner in the expenditure of money’;[2] and, in Victoria, the law regarding the allocation of liability for the cost of maintaining and repairing fences is regulated by the Act.
While the enjoyment of land by an owner may depend on their ability to prevent others from interfering with its use, the requirements of the Act subject an owner of land, who proposes to undertake fencing work, to statutory restrictions on their enjoyment that include restrictions on the right to construct a dividing fence without first satisfying the requirements of section 12 of the Act, even if:
- the proposed fence is located within the title boundary; and
- no contribution towards the fencing works is sought.
| Statutory requirements Section 12(1) of the Act provides that: An owner of land must not undertake fencing works or any subsidiary works unless the works are carried out— (a) in accordance with a fencing notice agreement; or (b) in accordance with an order of the Magistrates’ Court; or (c) otherwise in accordance with [the] Act; or (d) in accordance with another agreement between the owners of adjoining lands. Section 12(2) of the Act provides that: If an owner of land carries out fencing works and any subsidiary works that are not works carried out as provided for in subsection (1)(a), (b), (c) or (d), the owner of the adjoining land may file a complaint in the Magistrates’ Court seeking an order under section 30C [of the Act]. |
While a “dividing fence” is often located on the boundary of adjoining lands, there are circumstances where a fence may not be located on the common boundary. If the purpose of such a fence is ‘to separate adjoining lands,’ the fence may still be considered a “dividing fence” under the Act and be subject to the general principle that adjoining owners are liable to contribute in equal proportions to ensure it is “sufficient”.[3]
Even if no contribution is sought, the Act requires the owner to reach agreement with the adjoining owner about the proposed fencing works, or to give a fencing notice in writing (containing information about the works) to the adjoining owner.
Urgent fencing works
In circumstances where the need for urgent fencing works arises, however, the Act appears to exempt an owner of land from the requirements of section 12(1)(a), (b) and (d) of the Act.
| Urgent fencing requirements Section 23(1) of the Act provides that: Without giving a fencing notice and without the agreement of the owner of the adjoining land (adjoining owner), an owner of land may carry out fencing works and any subsidiary works if— (a) the fencing works and any subsidiary works need to be carried out urgently; and (b) a dividing fence on the land has been damaged or destroyed; and (c) it is impracticable to give a fencing notice to the adjoining owner. (emphasis added) |
Our research uncovered no cases that consider the statutory process for urgent fencing works in Division 2 of Part 3 of the Act, which would define the circumstances where the need to carry out works will be considered “urgent,” and where it will be considered “impracticable” to give a fencing notice.
The types of circumstances in which fencing works and any subsidiary works may need to be carried out urgently include where the dividing fence has been damaged or destroyed by a falling tree or branch or by fire or flood.[4]
Urgent fencing and leases
Obligations under the Act to repair and maintain expressly apply to “owners” of land; for example, the Department of Justice and Community Safety notes that ‘most residential and retail tenants do not have to contribute’ to fencing works.[5]
Section 10(2) of the Act stipulates circumstances where tenants, including long-term commercial tenants, may be required to contribute to the costs of a dividing fence, including if a tenant has a term:
- greater than five years still remaining on the lease;
- between five and ten years;
- greater than 10 years remaining.[6]
In context, however, the Act also anticipates that there may also be circumstances, outside those described in section 10(2) of the Act, where the terms of a residential, retail, or other tenancy agreement may impose liability on a tenant to contribute to the cost of urgent fencing works under a lease, including:
- a residential tenant with a residential tenancy agreement under the Residential Tenancies Act 1997 (Vic); and
- a retail tenant with a lease agreement under the Retail Leases Act 2003 (Vic).
| Contribution from tenants Section 23(2) of the Act provides that the Urgent fencing requirements of section 23(2) are subject to: (a) the operation of— (i) the Residential Tenancies Act 1997 in relation to urgent repairs; or (ii) the Retail Leases Act 2003 in relation to urgent repairs; or (b) a lease agreement that makes provision for urgent repairs. |
The form of condition report for ordinary residential premises anticipates that the condition of fences on the outside of the rented premises will be listed.[7] In addition, practice guidelines for homelessness service providers suggests that damage to fences caused by pets must be rectified by tenants to properties leased by the Department of Housing.[8]
However, a tenant may only be liable to contribute if the procedures under the Act are followed.
Contributions to urgent fencing
In context, the right to fence urgently established by section 23 of the Act suggests that actual fencing works will ordinarily be undertaken by the owner who requires the urgent fencing work at that owner’s own expense. However, the Act also provides that the owner who undertakes urgent fencing works may subsequently (or at the same as undertaking the works) seek contribution from the adjoining owner.
| Recovering contribution – Urgent Fencing Notices Section 24(1) of the Act provides that: An owner of land who carries out fencing works and any subsidiary works under section 23, may give a notice to the adjoining owner requiring the adjoining owner to contribute under this Act to the fencing works and any subsidiary works for a sufficient dividing fence for the adjoining lands. |
The notice that section 24(1) provides for is called an “Urgent Fencing Notice” in the prescribed form:[9] Form 6 of the Fences Regulations 2014 (Vic).
If an Urgent Fencing Notice has been served on the adjoining owner and there is no agreement, after 30 days, either owner file a Magistrates’ Court complaint seeking appropriate orders (s30C) by filing a complaint in the Magistrates’ Court.
Cameron Algie
KELLEHERS AUSTRALIA PTY LTD
Copyright © Kellehers Australia 2023.
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This fact sheet is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances.
[1] Victorian Legislative Assembly, Parliamentary Debates, Fences Amendment Bill 2013 – Second Reading (Robert Clark, 12 December 2013), 4685.
[2] Crow v Wood [1970] EWCA Civ 5.
[3] Fences Act 1962 (Vic), s 6.
[4] Fences Act 1962 (Vic), s 23.
[5] Department of Justice and Community Safety Victoria, ‘Fencing law in Victoria’ justice.vic.gov.au (online, 6 May 2022) <https://www.justice.vic.gov.au/fencing-law-in-victoria>.
[6] Fences Act 1962 (Vic), s 10(2).
[7] Residential Tenancies Regulations 2021 (Vic), Form 4, Schedule 1.
[8] Department of Health and Human Services, Homelessness Services Guidelines and Conditions of Funding May 2014 (Minor technical updates made in May 2015 – Version 2.1) (May 2015), 17.
[9] Fences Act 1962 (Vic), s 24(3).