The humble fence can be the source of a lot of neighbourly tension. A shared row of wooden palings or sheet metal can turn a simple backyard disagreement into an ugly Courtroom dispute. But whatever side of the fence you sit—whether it’s advocating for a much needed replacement or resisting unnecessary construction—there are avenues you can take to ensure a fair outcome.
Where you can, you should always try and settle a neighbour dispute the easiest the cheapest way: by meeting with your neighbour and trying to come to a mutual agreement. However, in some cases this is not always possible. In these instances, Rose Lawyers can help you settle the matter—even before it is taken to Court.
What’s in a fence?
A dividing fence will usually act as the boundary between two pieces of land—it’s where your property ends and your neighbours’ start. But a fence is much more than just a marker for your property’s boundary. There are a number of requirements a dividing fence must meet, and these are outlined in Section 6 of the Fences Act 1968, including:
- The fence must meet its purpose. The purpose of a fence is how the owners of the adjoining land use their land, or intend to use their land.
- The fence must provide privacy. The fence must provide a reasonable level of privacy for the owners of the adjoining land.
Different fences will have different purposes and privacy needs. For example, a fence on a cattle farm will need to meet a different set of requirements compared to a fence in a private suburban backyard.
Your fence. Shared responsibilities.
Fences must not only meet the requirements and obligations in the Fences Act 1968, they must also satisfy other legislation requirements outlined in the Buildings Regulations 2006 (Vic), the Property Law Act 1958 (2006) as well as any specific Local Planning Schemes.
It should be clear that, according to law, fences are an important part of defining the boundary of you and your neighbour’s property. A fence is a shared piece of property, so you cannot undertake any fencing work unless you;
- Have an agreement with the adjoining land owner
- Have a Court Order
- The land owner of the adjoining land cannot be located
What is a Fencing Dispute?
As a property owner, you share equal responsibly of your fence with your neighbour. However, your neighbour may have a different view about the purpose and relative condition of the fence. If you and your neighbour are in disagreement over the purpose and condition of your fence, then you have a fencing dispute.
A fencing dispute can sometimes be easily resolved through negotiations with your neighbour—you both may come to an agreement which satisfies both of your concerns and expectations. However, it is possible that you and your neighbour become locked in disagreement, which may require the intervention of the courts to resolve the matter.
Examples of common fencing disputes
A fence in need of replacement
“My fence is at least as old as my house, which was built 30 years ago. The fence is looking pretty decrepit and is falling down in a number of places. It needs to be replaced. I have spoken to my neighbour and he says the fence is fine and there is no need for a new one. He had already said he will not pay to have the fence replaced.”
A fence in need of repair
“Our next door neighbours have three Great Danes that keep digging holes trying to get under the dividing fence. Although this section of the fence is relatively new, they are big dogs and have caused damage to the fence, which means they can now easily get into my backyard. I like dogs, but I do not want three Great Danes roaming unsupervised near my young children. I tried talking to my neighbour, but he says the hole in the fence is not the problem and that the dogs must be escaping on their own. He is refusing to pay to have the fence fixed.”
Personal privacy concerns
“The next door neighbours have renovated their house and it is now double storey. They are a young couple and frequently throw parties at their house. I am concerned because now their lounge room is located on the second storey and they can see directly into my bedroom and bathroom windows, which means I have no privacy. I have spoken to the neighbours and they tell me they’re not looking across to my house, so there is no need to increase the height of the fence to give me more privacy. I still feel very uncomfortable, especially when they have parties.”
Raising a fencing dispute
The first thing to do is to talk to your neighbour. To make the process of negotiating with your neighbour easier, you may want to get a number of quotes and have a discussion about the options.
If your neighbour still refuses to pay any of their mandated contribution then you can issue a Notice to Fence. This is a written document that is made in accordance to the Fences Act, and includes details such as the boundary to be fenced, the proposed fencing and the kind of fence to be constructed.
Once you have issued to Notice to Fence, your neighbour will have 30 days to respond. If they do not respond, or do not respond adequately, you will need to make an Application to the Magistrates Court to resolve the matter.
Dealing with a Notice to Fence
On the other hand, you may have to deal with neighbours looking to replace a fence, which you feel is unnecessary. In cases where the fence is in fine condition and fit for its purpose, you may disagree that the fence needs replacing and that you should share this cost.
In this case, you should refuse to get the fence replaced. This may end up with your neighbours serving you with a Notice to Fence. If this happens, you will have 30 days to respond to the Notice. If you respond, but do not agree to replace the fence, then the matter may proceed further to Court or mediation as a way to come to an agreement.
Avoid the cost of going to Court
It is always best, if you can, to works things out amicably rather than serving a Notice and potentially having to go to Court. A legal dispute with neighbours can be costly, time-consuming, and stressful.
If you cannot come to an appropriate agreement with your neighbour, Rose Lawyers can help negotiate to try and settle the fencing dispute outside the courtroom to minimise the time, cost and stress to you and your family.
To talk to a neighbour dispute lawyer, call Rose Lawyers today on 03 9878 5222 to schedule your phone consultation.
A Solicitor and Barrister with diverse experience in many areas of law including Taxation, Commercial and Family Law. Highly regarded by clients for his attention...
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