The Law Handbook 2024

Chapter 6.4: Neighbour disputes 583 owners use the adjoining lands; reasonable privacy concerns; and the types of dividing fences used in the local area. Neighbours should attempt to resolve any issues between themselves rather than having the fence dispute escalate into an expensive and ongoing issue between them (see ‘Resolving problems’, above). The Fences Act provides guidance on initiating fencing works, contributing to fencing works, determining the type and placement of a dividing fence to be built, and provides a clear process for the resolution of fencing disputes. The Fences Act also outlines the Magistrates’ Court’s powers to make orders about fencing works and to determine disputes about common boundaries. How to get a fence built or repaired Astarting point for the construction andmaintenance of suburban fences is that both neighbours are responsible for the fence. If you want to build, replace or repair a fence, the first thing you should do is to discuss it with your neighbour. You should attempt to reach agreement on: • how much each of you will pay; • whether the fence should be repaired or replaced; • the look of the fence: – height, – materials (e.g. timber (pine/hardwood), pre- coloured steel, brick, post and wire), – colours (particularly of surfaces that cannot be painted, such as pre-coloured steel); • timeframes for the fence’s repair or construction; • who will arrange for it to be built or repaired (i.e. getting and selecting quotes from contractors); • other costs (e.g. clearing land to enable access for removal and construction); and • who gets the ‘flat side’ of a timber fence. Note that the Fences Act states that the rails and framing should be placed on the same side as the previous dividing fence (if any). In all other cases, the rails and framing should be placed on the side least subject to weathering. Owners can agree among themselves on which side they should be placed. You should talk to your neighbour about these issues. If it is not urgent, it may be worthwhile giving them some time to think about these issues, especially if there are any points of difference that need to be worked through. If you are not comfortable discussing this with your neighbour, write a letter and place it in their letterbox, or complete a ‘fencing notice’ detailing your proposals for repairing or replacing the fence. If dealing with a neighbour makes you anxious or uncomfortable, the DSCV website has simple and effective strategies to assist you to resolve the issue in a way that is appropriate to your circumstances. Getting a written quote from a fencing contractor at this early stage is worthwhile, as it can assist in identifying issues that may give rise to a dispute. You cannot go ahead and build or repair a dividing fence unless you have reached an agreement with your neighbour or you follow the processes in the Fences Act. The Fences Act provides for a formal process involving a written notice (a ‘fencing notice’) to assist in resolving a fence dispute. The fencing notice forms the basis for the owners to negotiate and agree about fencing works. 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. A fencing notice is a legal document that formally advises your neighbour that you would like to build a new fence or repair an existing fence and that you would like your neighbour to share the cost. The fencing notice should be in writing and state: • where you want the fence to go; • the type of works to be carried out; • the person to be hired to undertake the works; • an estimate of the cost of the works and an explanation of that estimate; and • contribution proportions. The Fences Regulations 2014 (Vic) prescribe the form of a fencing notice. You can draft your own fencing notice , and you do not need a lawyer. An example fencing notice is available on the DSCV website. Fencing contractors are another source of fencing notices. Fencing notices can be given personally to your neighbour or by post. However, sometimes issuing a fencing notice can cause a dispute to escalate. So, depending on the situation, it is advisable to try to talk to your neighbour first. Even when an owner is seeking no contribution from their neighbour for the construction or repair of a fence, they must reach an agreement with their neighbour or follow the fencing notice procedure.