The Law Handbook 2024

Chapter 6.4: Neighbour disputes 585 the fence, legal proceedings can be initiated in the Magistrates’ Court to resolve the deadlock. Taking the matter before the court should be a last resort. At all stages in a fencing matter, negotiation and mediation between the parties (without resorting to lawyers and the court system) is preferable. The DSCV (see ‘Dispute Settlement Centre of Victoria’, above) regularly assists neighbours in fencing disputes. However, if agreement cannot be reached, the final step is to take the dispute to court. If no agreement is reached after a fencing notice has been given to your neighbour, the Fences Act sets out the procedure for taking the matter to court. An owner may commence proceedings in the Magistrates’ Court for orders about: • the line on which fencing works and any subsidiary works are to be carried out; • the line that is the common boundary; • whether or not a dividing fence is required and whether or not fencing works and any subsidiary works should be carried out; • the nature of any fencing works and subsidiary works to be carried out; • the nature of a sufficient dividing fence; • the way inwhich contributions for the fencing works and any subsidiary works should be apportioned; • the time within which the fencing works should be carried out; • the person to carry out the works; • the line that is the common boundary; • that any party cease or discontinue conduct that is unreasonably damaging (or may unreasonably damage) a dividing fence; and • any other matter the court considers appropriate. The Magistrates’ Court has published a fact sheet that summarises the procedures to be followed to initiate proceedings in a fencing dispute and how to prepare and serve the relevant complaint. The ‘Fencing Disputes Information Guide’ fact sheet is available from the Magistrates’ Court’s website (www. mcv.vic.gov.au) . If, after a complaint has been issued, the other neighbour files a defence, the matter is normally referred to mediation or a pre-hearing conference with a court registrar. Disputes are often resolved before the hearing. If the mediation is unsuccessful then the matter will be listed for a court hearing. At the hearing both parties will have an opportunity to put their case. Evidence in the form of photographs, reports, quotations from fencing contractors and other documents can assist the magistrate. In making a decision, the court is likely to look to section 6 of the Fences Act and the factors that determine what is a sufficient dividing fence. These factors include the existing dividing fence; the purposes for which the lands are to be used; reasonable privacy concerns; and any policy or code adopted by the local council. Be aware that if you involve lawyers in your dispute, the legal fees will probably exceed the amount you are trying to get from your neighbour. It is best to reach an agreement with your neighbour. Resolving problems: Enforcing the agreement If you reach an agreement with your neighbour using the processes in the Fences Act and a fencing notice, but your neighbour doesn’t do as agreed, or if your neighbour doesn’t do what the court ordered, there are provisions in the Fences Act that can be used to enforce the agreement. If your neighbour does not do what they said they would do, either within the time specified in the agreement, or within three months of making the agreement, you can carry out the fencing works that are the subject of the agreement and/or recover the money from your neighbour that they agreed to pay. If the Magistrates’ Court has made an order about your fencing works and your neighbour does not do what they were ordered to do, either within the time specified in the order or within three months of the order being made, you can carry out the fencing works that were the subject of the order or recover money that your neighbour was ordered to pay. Adverse possession Adverse possession allows a person to claim ownership of someone else’s land if they have continuously occupied that land for more than 15 years without the owner’s permission. If an adverse possession claim comes up in the context of a fencing dispute (i.e. if a dividing fence has been in the wrong place for more than 15 years), the owner who has gained a strip of land because of the misplaced fence can bring a claim to that land in adverse possession. The Fences Act makes it clear that the Magistrates’ Court has the power to hear and determine adverse possession claims that arise from fencing disputes.