Victorian Bills Explanatory Memoranda Victorian Bills Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
Fences Amendment Bill 2014
Introduction Print
EXPLANATORY MEMORANDUM
General
The Fences Amendment Bill 2014 amends the Fences Act 1968. The Bill
also includes consequential amendments to the Crown Land (Reserves) Act
1978, the Emerald Tourist Railway Act 1977, the Land Act 1958 and the
Zoological Parks and Gardens Act 1995.
The aim of the Bill is to facilitate fairer dealings between neighbours over
shared dividing fences and encourage resolution of fencing disputes.
The Bill provides greater guidance on initiating fencing works, contributing
to fencing works, the type of dividing fence to be built and the placement of
dividing fences. It also sets out the powers of the Magistrates' Court to make
orders in respect of fencing works and to determine disputes about the
common boundary of adjoining lands.
Background
The Victorian Parliamentary Law Reform Committee (the Committee)
reviewed the Fences Act 1968 in 1998 and made a number of
recommendations to make fencing processes more comprehensive and
transparent, and to give parties clearer guidance about their obligations.
The Government undertook a further review of the Fences Act 1968 in 2011
and there was public consultation on a discussion paper in late 2012.
The Bill draws upon the Committee's recommendations and the outcomes of
the further review of the Fences Act 1968.
571136 1 BILL LC INTRODUCTION 19/2/2014
Clause Notes
PART 1--PRELIMINARY
Clause 1 provides that the main purposes of the Bill are to amend the
Fences Act 1968 to--
· provide a procedure for the sharing of costs between
neighbours for the construction and repair of dividing
fences;
· provide a mechanism for the resolution of disputes
about dividing fences;
· provide for other matters relating to dividing fences; and
· make consequential amendments to the Crown Land
(Reserves) Act 1978, the Emerald Tourist Railway
Act 1978, the Land Act 1958 and the Zoological Parks
And Gardens Act 1995.
Clause 2 provides that the Fences Amendment Act 2014 will come into
operation on a day or days to be proclaimed, or on 1 December
2014 if not proclaimed before that date.
PART 2--AMENDMENTS TO THE FENCES ACT 1968
Clause 3 inserts a new heading of "PART 1--PRELIMINARY" before
section 1 of the Fences Act 1968.
Clause 4 repeals section 2 of the Fences Act 1968. Section 2(1) is
redundant. Section 2(2) contains transitional provisions and any
residual effect will be preserved on its repeal by the
Interpretation of Legislation Act 1984.
Clause 5 substitutes a new section 3 for section 3 of the existing Fences
Act 1968 and inserts new sections 4, 5 and 6.
Substituted section 3 sets out new definitions that apply
throughout the amended Fences Act 1968. Key definitions are
set out below.
The term adjoining land is used throughout the Fences Act 1968
and, in relation to an area of land, means land that shares a
common boundary with the area of land.
2
The term authorised fencing works means fencing works and
any subsidiary works carried out as provided for under new
section 12(1)(a), (b), (c) or (d). These sections refer to fencing
works and any subsidiary works carried out in accordance with a
fencing notice agreement, in accordance with an order of the
Magistrates' Court, otherwise in accordance with the Fences Act
1968, or in accordance with another agreement between the
owners of adjoining lands.
A boundary survey notice is notice of an owner's intention to
have a common boundary defined by a licensed surveyor, given
under new section 28.
The term common property is defined as having the same
meaning as in the Owners Corporations Act 2006. It is land
shown as common property on a plan of subdivision, a plan of
strata or cluster subdivision. Examples of common property may
be gardens, passages or driveways. The definition is relevant to
new section 4 of the Fences Act 1968, which makes owners
corporations owners in respect of common property for which
they are responsible. It is also relevant to new section 36, which
sets out situations in which the Fences Act 1968 does not apply
to owners corporation subdivisions.
The definition of dividing fence is central to the operation of the
Fences Act 1968. It is a fence that is either located on the
common boundary of adjoining lands (whether or not it is
continuous or extends along the entire length of the adjoining
lands), or a fence that is not located on the common boundary of
adjoining lands, but the purpose of which is to separate adjoining
lands (whether or not it is continuous or extends along the entire
length of the adjoining lands). The Fences Act 1968 relates only
to fencing works and subsidiary works in respect of a dividing
fence. The definition of dividing fence should be read with the
definition of fence.
The term fence is given a broad definition. It is a structure, ditch
or embankment, or hedge or similar vegetative barrier that
encloses or bounds land, and includes any gate, cattle grid or
apparatus necessary for the operation of the fence. It also
includes a foundation or support built solely for the support and
maintenance of the fence. Excluded from the definition of fence
are retaining walls or walls that are part of a house, garage or
other building.
3
A fencing notice is a notice of proposed fencing work given
under new section 13. Giving a fencing notice is one way in
which adjoining owners may initiate negotiations about fencing
works and any subsidiary works, agree about the works and
ensure that the works are authorised fencing works.
A fencing notice agreement is an agreement between owners
of adjoining lands, or between owners of adjoining lands and
long-term tenants in some circumstances, about fencing works
and any subsidiary works reached after a fencing notice is given.
While the fencing notice agreement is an agreement under the
Fences Act 1968, owners may otherwise agree about fencing
works and any subsidiary works without giving a fencing notice
(see new section 12).
The term fencing works means the construction, replacement,
repair, demolition, removal or maintenance of the whole or part
of a dividing fence. Fencing works also includes the planting,
replanting or maintenance of a hedge or similar vegetative
barrier that is a dividing fence and the cleaning, deepening,
repair, enlargement or alteration of a ditch or embankment that
is a dividing fence. This definition means that construction
of dividing fences and repair of dividing fences are dealt
with together throughout the amended Fences Act 1968.
These concepts were dealt with separately under the existing
Fences Act 1968. The definition of fencing works should be
read together with the definition of subsidiary works.
The term long-term tenant means a tenant under a lease with
an unexpired term referred to in new section 10(2)(a) or (b).
Long-term tenants may be liable to contribute to fencing works
and any subsidiary works in certain circumstances.
The term lot affected by an owners corporation is defined as
having the same meaning as in the Owners Corporations Act
2006. It is a lot, the owner of which is a member of the owners
corporation. Generally, all lot owners are members of the owners
corporation.
The term owner has the meaning set out in new section 4.
The term reasonable inquiries has the meaning given in new
section 5.
4
The term subsidiary works means the following works: the
design of a dividing fence; the preparation or clearing of land for
the purposes of fencing works; the surveying and marking of the
common boundary of adjoining lands or other proposed line of
fence for the purpose of fencing works; obtaining approval
required for the purpose of fencing works; and using temporary
barriers as a dividing fence. The definition of subsidiary works
should be read together with the definition of fencing works.
An urgent fencing notice is a notice given by an owner under
new section 24 to an adjoining owner, requiring them to
contribute to fencing works and any subsidiary works that were
carried out urgently.
New section 4 defines owner. The Fences Act 1968 will now
define owner rather than occupier, reflecting the shift of liability
to contribute to dividing fences from occupiers to owners.
Owner generally means a person with an estate in fee simple in
the land, or who is entitled to execute a transfer of the land or
convey an estate in fee simple in the land. Most owners will be
registered proprietors within the meaning of new section 4(1)(a)
or holders of an estate in fee simple under new section 4(1)(b).
However, the definition also deems certain categories of
occupiers to be owners, including some holders of leases and
licenses of Crown land. The definition of owner excludes
particular people and bodies, including those who own or have
the care, control or management of land for the purposes of a
public park or public reserve. Holders of aboriginal title under
section 19 of the Traditional Owner Settlement Act 2010 are
also exempted from the definition of owner. New section 4(3)
makes an owners corporation the owner of land that is common
property for which the owners corporation is responsible.
An owner may need to make reasonable inquiries to locate an
adjoining owner. New section 5 defines reasonable inquiries as
including, but not being limited to, asking persons who occupy
the land or land nearby about the whereabouts of the owner, or
asking the municipal council about the whereabouts of the owner.
Under new section 14(2), a municipal council may disclose to an
owner the name and address of an adjoining owner if it is
satisfied that the owner will use the name and address for the
purpose of giving a fencing notice.
5
New section 6(1) sets out factors for determining when a fence is
a sufficient dividing fence. New section 6 provides that when
determining if a fence is a sufficient dividing fence, regard must
be had to the following matters: the existing dividing fence
(if any); the purposes for which the adjoining lands are used or
intended be used; reasonable privacy concerns of the owners of
the adjoining land; the types of dividing fence used in the
locality; any policy or code adopted by the municipal council;
any relevant planning instruments; any relevant building laws;
the existence of any agreements or covenants that are relevant to
the adjoining lands; any duties of an owner under the Catchment
and Land Protection Act 1994 to control pest animals; and the
need for a dividing fence, having regard to any existing waterway
or obstruction that is on, or forms, the common boundary
between the adjoining lands. It is necessary to determine what a
sufficient dividing fence is for the purposes of determining how
contributions to fencing works and any subsidiary works should
be apportioned (see new sections 7 and 8).
New section 6(2) provides that, despite section 6(1), if different
standards of fence are required for different purposes, a sufficient
dividing fence for those lands is the lesser standard of fence.
New section 6(3) provides that if agricultural land shares a
boundary with residential land and there is no dividing fence
between those lands, a sufficient dividing fence is one that would
be sufficient for the agricultural land. New section 6(3) replaces
section 4(1)(a) of the existing Fences Act 1968 but has a similar
effect.
Clause 6 substitutes new Parts 2, 3 and 4 for Parts I, II, III and IV of the
existing Fences Act 1968.
New Part 2 replaces Part I of the existing Fences Act 1968,
which sets out processes for initiating and contributing to
construction of dividing fences, and Part II of the existing Fences
Act 1968, which deals with initiating and contributing to repair
of dividing fences. New Part 2 contains provisions in relation to
initiating and contributing to fencing works and any subsidiary
works. This includes both the construction and repair of dividing
fences. Provisions in relation to orders that the Magistrates'
Court may make, previously in Parts I and II of the existing
Fences Act 1968, have been replaced by provisions in new
Part 4.
6
Part III of the existing Fences Act 1968 is repealed and is not
replaced. It contains historical provisions in relation to vermin-
proof fencing that are redundant.
Part IV of the existing Fences Act 1968 deals with Court
proceedings for recovery of money. It is replaced by new Part 4,
which sets out provisions in relation to orders that the
Magistrates' Court may make and recovery of money under
the Act.
New Part 2 is entitled "Contributing to fences" and contains new
sections 7 to 10.
New section 7 makes owners of adjoining lands liable to
contribute in equal proportions to fencing works and any
subsidiary works to construct a sufficient dividing fence or,
where a dividing fence already exists, to fencing works and any
subsidiary works necessary so that the dividing fence would be a
sufficient dividing fence. However, new section 7(3) provides
that this general principle does not prevent owners of adjoining
lands agreeing to contribute in other proportions to fencing works
and any subsidiary works.
New section 8(1) provides that if an owner of land wants to carry
out fencing works and any subsidiary works in respect of a
dividing fence that is of a standard greater than a sufficient
dividing fence, that owner is liable for the cost of the works so
far as they exceed the standard for a sufficient dividing fence.
New section 8(2) provides that, once a fence that is of a standard
greater than a sufficient dividing fence has been constructed, the
owner of the land for which the greater standard of fence was
required is liable for the entire cost of fencing works and an
subsidiary works for that fence, so far as they exceed the standard
for a sufficient dividing fence. This principle applies to any
repairs of the greater standard of fence, for example, and applies
even if the owner who owns the land that had the need for the
greater standard of dividing fence is not the same owner who
originally had the requirement for a greater standard of dividing
fence at the time the fence was constructed. New section 8(3)
provides that these principles do not prevent owners of adjoining
lands agreeing to contribute in other proportions to fencing works
and any subsidiary works.
7
New section 9 makes an owner of land liable for the entire cost
of fencing works and any subsidiary works necessary to repair
or replace a dividing fence that is damaged by a negligent or
deliberate act by that owner, or by a person who has entered the
land with their express or implied consent, unless the damage or
destruction occurred in the course of authorised fencing works.
This is similar to section 14(a) of the existing Fences Act 1968,
which is replaced by new section 9. New section 9 does not
affect any rights that the owner of land who is liable for the
damage or destruction under that subsection has against the
person who caused the damage or destruction.
New section 10 provides that, in certain circumstances, a tenant
of land may be liable to contribute to the owner of the land they
lease for fencing works and any subsidiary works for a sufficient
dividing fence. Under new section 10, a tenant is only liable to
contribute to a sufficient dividing fence if--
· the tenant's lease has an unexpired term of more than
5 years; and
· the tenant has been given notice under the Act; and
· the tenant is not a tenant under a tenancy agreement to
which the Residential Tenancies Act 1997, a retail
premises lease to which the Retail Leases Act 2003
applies, or a lease agreement that provides for
contributions to fencing works and any subsidiary
works;
· the owner who gives the fencing notice is seeking a
contribution from the adjoining owner.
The proportion of contributions that a long-term tenant may be
liable to make (50 per cent or 100 percent of the owner's
contribution) depends upon the length of the unexpired term of
the long-term tenant's lease. New section 10 replaces section 10
of the existing Fences Act 1968, but simplifies the sliding scale
of apportionment of contributions between tenant and owner
and creates exemptions from the operation of the section.
New section 30G provides for an owner to recover contributions
from a long-term tenant who is liable to contribute.
New Part 3 is entitled "Procedures".
8
Division 1 of new Part 3 is entitled "Procedure for fencing
works" and contains new sections 11 to 22. This Division
provides for owners of land to give notices about proposed
fencing works and any subsidiary works to adjoining owners
and long-term tenants, seeking agreement to the proposal and,
in some circumstances, seeking contributions to the works.
The Division sets out processes that may follow if owners and
tenants do not agree about the works or do not respond to notices
given to them, and what may occur if an adjoining owner cannot
be located to be given a fencing notice.
New section 11 defines notifying owner for the purposes of
Division 1 as an owner who gives a fencing notice under new
section 13 and an adjoining owner as an owner of land adjoining
the land of the notifying owner.
New section 12(1) prohibits an owner of land from undertaking
fencing works or any subsidiary works unless they are carried out
in accordance with a fencing notice agreement, an order of the
Magistrates' Court, otherwise in accordance with the Fences Act
1968, or in accordance with another agreement between the
owners of adjoining lands. If an owner of land carries out
fencing works and any subsidiary works except as provided for
in this section, new subsection (2) permits the owner of adjoining
land to file complaint and seek an order in the Magistrates' Court.
New section 13(1) provides for an owner of land who proposes to
undertake fencing works and any subsidiary works to give notice
to the owner of the adjoining land seeking their agreement to the
proposal. Giving notice under new section 13 is one way in
which fencing works and any subsidiary works can become
authorised fencing works (see new section 3 definitions of
authorised fencing works and fencing notice agreement). In the
absence of agreement from the adjoining owner, the owner
seeking to undertake fencing works and any subsidiary works
must generally give notice, even if not seeking a contribution
from the adjoining owner. New section 13(2) provides that the
notice may require the adjoining owner to contribute to fencing
works and any subsidiary works.
New section 13(3) requires the fencing notice to be in writing
and sets out the information that the notice must include.
These are matters currently dealt with by section 6 of the existing
Fences Act 1968. New section 13(4) provides that the fencing
notice is not invalidated by failure to include the following
9
information: the date; the notifying owner's own name and
contact details; the name and contact details of any person who
may be engaged to undertake the fencing works and any
subsidiary works; and a statement that assistance may be sought
from the Dispute Settlement Centre of Victoria. This means that
a notice may not be a valid fencing notice if it fails to include
other information, such as the type of fencing works and any
subsidiary works proposed to be carried out and, where seeking
contribution from the adjoining owner, an estimate of the cost of
the works.
New section 13(5) provides that the notice may be in the
prescribed form and 13(6) specifies that, for the avoidance of
doubt, notice is to be given to an adjoining owner even if they are
not occupying the land. Other sections provide that
consequences may follow depending on the adjoining owner's
response (or lack of response) to the fencing notice: see new
sections 17 and 19, for example. Note 2 to new section 13
specifies that a notice given to an owner under the section does
not apply to another person who subsequently acquires the land.
It is intended that a new fencing notice would be given to a new
adjoining owner.
New section 14(1) requires an owner to make reasonable
inquiries if they are not able to find an adjoining owner for the
purposes of giving them a fencing notice. The term reasonable
inquiries is defined in new section 5. New section 14(2) permits
a municipal council to disclose to an owner the name and address
of an adjoining owner if it is satisfied that the owner will use the
name and address for the purpose of giving a fencing notice.
New section 14 replaces section 9(1) of the existing Fences Act
1968, but applies to owners rather than occupiers and uses the
new concepts of fencing works and any subsidiary works.
New section 15 provides that if an owner of leased land seeks
a contribution from a long-term tenant, they must provide the
tenant with a copy of the fencing notice given or received by
them, as well as an additional notice seeking the tenant's
agreement to the proposal (except for any matters relating to
the common boundary or the proposed line of fence), seeking
contribution from the tenant and estimating the amount that the
tenant will be required to contribute. Where notice is given to
a long-term tenant, new section 15 also requires the owner of
leased land to give notice to an adjoining owner that there is a
10
long-term tenant who is liable to contribute to the works.
New section 15(3) provides that notice given under new
section 15 may be in the prescribed form.
New section 16 permits owners of adjoining lands to agree to
carry out fencing works and any subsidiary works on a line that is
not the common boundary if it is impracticable to carry out the
work on the common boundary because a waterway or
obstruction (whether natural or manmade) is on, or forms, the
common boundary. This section replaces section 5 of the
existing Fences Act 1968, but it applies to owners rather than
occupiers and includes other types of obstructions as well as
waterways. Although generally excluded from the definition of
owner in new section 4, municipal councils, trustees or other
persons or bodies in respect of land owned by or vested in them,
or under their care, control or management, for the purposes of a
public park or public reserve are owners for the purposes of
deciding the line of fence under new section 16.
New section 17 permits either owner to file complaint and seek
an order in the Magistrates' Court if, after 30 days from the day
on which the fencing notice was given, the adjoining owner has
responded to the fencing notice but the owners have not agreed
about one or more of the matters specified in the notice.
New section 18 permits either owner or a long-term tenant who is
liable to contribute to fencing works and any subsidiary works to
file complaint and seek an order in the Magistrates' Court if, after
30 days from the day on which the fencing notice was given, the
tenant has responded to the notice they received but the tenant
and owners have not agreed. Under new section 18, a long-term
tenant may agree or not agree to any aspect of the proposed
fencing works and any subsidiary works except for the boundary
line or other proposed line of fence. The orders that a long-term
tenant may seek in the Magistrates' Court are set out in new
section 30D.
New section 19 permits an owner to commence fencing works
and any subsidiary works without the agreement of an adjoining
owner if the adjoining owner has not responded to a fencing
notice within 30 days from the day the fencing notice was given
or, after making reasonable inquiries, the adjoining owner cannot
be located.
11
New section 20 permits an owner to commence fencing works
and any subsidiary works without the agreement of a long-term
tenant who has been given notice and is liable to contribute if the
tenant has not responded to the notice within 30 days from the
date on which the fencing notice was given to the adjoining
owner.
New section 21 provides for an owner who, under new
section 19, commences fencing works and any subsidiary works
without the agreement of an adjoining owner and seeks to
recover a contribution, to file complaint and seek an order in the
Magistrates' Court. If the adjoining owner cannot be located, the
owner seeking an order may file the complaint without having
located the adjoining owner. This process replaces section 9(2)
of the existing Fences Act 1968.
If an owner is liable to contribute to fencing works and any
subsidiary works under an order made in their absence and
considers the order to be inequitable, new section 21(3) permits
them to file complaint and seek an order in the Magistrates' Court
within 30 days of service of the order made in their absence.
New section 21(3) replaces sections 9(7) and (8) of the existing
Fences Act 1968.
New section 22 permits the owner of leased land to seek
contributions from their long-term tenant by filing complaint in
the Magistrates' Court and seeking an order if fencing works and
any subsidiary works are commenced under new section 20
without agreement of the long-term tenant who was given notice
but did not respond to that notice.
Division 2 of new Part 3 is entitled "Procedure for urgent fencing
works" and contains new sections 23 to 26.
New section 23 permits an owner to undertake fencing works and
any subsidiary works without giving a fencing notice if a
dividing fence on the land has been damaged or destroyed, the
fencing works and any subsidiary works need to be carried out
urgently, and it is impracticable to give a fencing notice to the
owner of the adjoining land. The note to new section 23 refers
to destruction of a fence by a falling tree or by fire or flood as
examples of situations that may necessitate urgent fencing works
and subsidiary works. New section 23 has effect subject to the
operation of the Residential Tenancies Act 1997, the Retail
Leases Act 2003 or a lease agreement in relation to urgent
12
repairs. New section 23 replaces section 15(3) of the existing
Fences Act 1968.
New section 24(1) permits an owner to require an adjoining
owner to contribute to urgent fencing works and any subsidiary
works by giving an urgent fencing notice. New section 24(2)
provides that an urgent fencing notice must be in writing and sets
out the information that it must include. New section 24(3)
provides that the urgent fencing notice may be in the prescribed
form.
New section 25 provides that if, after 30 days from the day on
which an owner gave an urgent fencing notice, the owners have
not agreed about one or more of the matters specified in the
notice, either owner may file complaint and seek an order in the
Magistrates' Court.
New section 26 provides that if an owner gives an urgent fencing
notice under new section 24, and the adjoining owner has not
responded within 30 days from the day the notice was given, the
owner of land who gave the notice may file complaint and seek
an order in the Magistrates' Court.
Division 3 of new Part 3 is entitled "Process if common boundary
not agreed" and contains new sections 27 to 30B.
For the purposes of Division 3, new section 27 defines notifying
owner as the owner who gives a boundary survey notice under
new section 28(1) and adjoining owner as the owner of the
adjoining land to the land of the notifying owner for which the
notice is given.
New section 28 provides for an owner (notifying owner) to
give notice, in writing, to an adjoining owner of their intention
to have the common boundary defined by a licensed surveyor.
A boundary survey notice must, unless otherwise specified in a
fencing notice given by that owner, specify the position that the
notifying owner thinks is the position of the common boundary.
A boundary survey notice may be given at the same time as a
fencing notice or after a fencing notice if the owners do not agree
about the location of the common boundary.
New section 29 provides that an owner who receives a boundary
survey notice may, within 30 days from the day on which the
notice was given, do any of the following: agree in writing to the
position of the common boundary specified in the boundary
13
survey notice; specify the position that they think is the position
of the common boundary, either in writing or by marking it on
the ground; or have the common boundary defined by a licensed
surveyor.
New section 30 provides that if, after 30 days from the day on
which the notifying owner gave a boundary survey notice, the
adjoining owner has not agreed to the position of the common
boundary or had the common boundary defined by a licensed
surveyor, the notifying owner may have the common boundary
defined by a licensed surveyor. If the notifying owner intends to
do this, they must engage a licensed surveyor within 21 days
from the day on which the 30 day period expires. The notifying
owner must then advise the adjoining owner, in writing, of the
common boundary as defined by the licensed surveyor.
New section 30A provides that owners are generally liable to
contribute in equal proportions to any reasonable cost of
engaging a licensed surveyor. However, if the notifying owner
has the boundary defined by a licensed surveyor under new
section 30 and it is in the same position as the adjoining owner
considered it to be under new section 29, the adjoining owner is
not liable to contribute to the cost of engaging the licensed
surveyor.
New section 30B provides that, when a boundary survey notice is
given, the 30 day period from the day on which a fencing notice
was given, after which time a complaint may be filed in the
Magistrates' Court under new sections 17 or 18 or fencing works
and any subsidiary works may be commenced under new
sections 19 or 20, is suspended until the owners agree about the
location of the common boundary or the common boundary is
defined by a licensed surveyor.
New Part 4 is entitled "Resolving fencing disputes" and contains
new sections 30C to 30I.
New section 30C sets out the matters about which the
Magistrates' Court may make an order in respect of a complaint
filed by an owner. These matters include the following: 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, if any fencing works or
subsidiary works should be carried out, the nature of those works;
that a person is liable to contribute to fencing works and any
14
subsidiary works and the way in which contributions should be
apportioned; any other work to be carried out that is necessary so
that the fencing works and any subsidiary works can be carried
out; and that a party cease an activity or conduct that is
unreasonably damaging a dividing fence. As well as these and
other matters listed at new section 30C, the Court may make any
order that it considers appropriate.
New section 30C(2) provides that, for the purposes of making an
order about the line of fence or common boundary, the Court
may order that the common boundary be defined by a licensed
surveyor. New section 30C(3) provides that, in making an order
about contributions, the Court may have regard to any negligent
or deliberate acts that have shortened the life of a dividing fence.
New section 30C(4) provides that, if there is more than one
owner of an area of land, then for the purposes of an order about
contributions under section 30C(1), those owners are jointly and
severally liable to contribute to fencing works and any subsidiary
works for that area of land unless the Court determines otherwise.
New section 30C(5) provides that the Magistrates' Court may
make an order in the absence of an owner of adjoining land who
has not been served with the complaint if they cannot be located
after making reasonable inquiries. This follows the process in
new section 21, which permits an owner of land to file a
complaint without having located the adjoining owner where the
adjoining owner could not be located after making reasonable
inquiries.
New section 30D(1) sets out the matters about which the
Magistrates' Court may make an order in respect of a complaint
filed by a long-term tenant who is liable to contribute.
The orders that may be sought when a long-term tenant does not
agree to the fencing works and subsidiary works are more limited
than the orders that may be sought in a dispute between adjoining
owners, as not all aspects of fencing works affect or are relevant
to tenants. In making an order about contributions under new
section 30D, the Court may have regard to any negligent or
deliberate acts that have shortened the life of a dividing fence.
New section 30E sets out the Magistrates' Court's jurisdiction to
hear and determine adverse possession claims that arise in the
context of fencing disputes. If an owner of land is a party to
proceedings under the Fences Act 1968 and they claim title by
possession to the part of the adjoining lands on which the fencing
15
works and any subsidiary works are to be carried out, the
Magistrates' Court may determine who is entitled to title by
possession of the land. Adverse possession may arise in a
fencing dispute where, for example, a fence has been located on a
line that is not the common boundary for a continuous period of
15 years or more. The owner who has gained the strip of land in
this way may have a claim to the title of the strip of land.
New section 30E does not affect the operation of the Limitation
of Actions Act 1958, the Transfer of Land Act 1958, the
common law or any other law in relation to adverse possession.
New section 30E differs from new section 35, which provides
that where the owners of adjoining lands agree to locate the
dividing fence on a line other than the common boundary, or
where the Court orders, because a waterway or obstruction is on,
or forms, the common boundary, the placement of the fence does
not give rise to adverse possession and does not affect title to or
possession of the lands. Unlike new section 35, a determination
under new section 30E may affect title to or possession of land.
New section 30F provides that if an owner of land fails to comply
with a fencing notice agreement or order made by the
Magistrates' Court, an adjoining owner may undertake the
fencing works and any subsidiary works or recover from the
other owner the amount that the other owner was liable to pay
under the agreement or order.
New section 30G provides for an owner of land to recover
contributions from a long-term tenant who leases their land and is
liable to contribute to fencing works and any subsidiary works.
New section 30H allows an owner who undertakes fencing works
and any subsidiary works in respect of a dividing fence when the
land adjoining their land was Crown land to recover half of the
value of the dividing fence from an owner who later acquires the
Crown land. The owner seeking to recover does so by giving
notice to the new adjoining owner within six months of the new
adjoining owner acquiring the land. If the owners do not agree
about contributions, either of them may file complaint in the
Magistrates' Court seeking an order. New section 30H replaces
section 12 of the existing Fences Act 1968. This section limits
recovery to circumstances in which the dividing fence that was
the subject of the works is still in existence and the owner
seeking contributions has not already received contributions in
respect of the works.
16
New section 30I provides that proceedings for recovery of an
amount cannot be brought on the basis that fencing works and
any subsidiary works were not carried out in accordance with a
fencing notice agreement or order unless there was a substantial
failure to comply with the agreement or order.
Clause 7 substitutes "PART 5" for "PART V" in the heading to that Part of
the Fences Act 1968.
Clause 8 repeals section 30 of the existing Fences Act 1968. The matters
dealt with in section 30 are now dealt with in new section 34.
Clause 9 amends section 31 of the Fences Act 1968, which provides that
the Fences Act 1968 does not apply to unalienated Crown land
and provides that certain persons who have the administration,
management or control of Crown lands or public works are not
liable under that Act to make contributions. The amendments to
section 31 are consequential and introduce the new terminology
of fencing works, subsidiary works and owner. Section 31 is also
amended to substitute "his or her office" for "his office", update
cross-references to other sections of the Fences Act 1968 and
remove the reference to "the Minister administering section 19",
as section 19 is repealed.
Clause 10 substitutes new sections 32 and 33 of the Fences Act 1968 and
inserts new sections 34 to 39.
New section 32 sets out requirements for the placement of rails
and framing for a dividing fence. If there is any agreement or
fencing notice agreement between the adjoining owners, or Court
order, that specifies the side on which rails and framing are to be
placed, new section 32 does not apply. If the agreement, fencing
notice agreement or order does not specify the side on which rails
and framing are to be placed, new section 32 provides that where
residential land or commercial land shares a common boundary
with land over which the public has a right of way, the rails or
framing must face into the residential land or commercial land.
Where residential land adjoins commercial land, the rails and
framing must face into the residential land. In all other cases,
rails and framing are to be placed on the same side as a similar
fence that is being replaced or, if there is no existing fence or a
different type of fence is being built, on the side least subject to
weathering.
17
New section 33 re-enacts and modernises section 32 of the
existing Fences Act 1968, which permits an owner to enter
adjoining land for the purposes of carrying out fencing works and
any subsidiary works, with amendments to modernise the
language.
New section 34 provides that the Fences Act 1968 does not
affect a contract or agreement, a covenant that affects the
adjoining lands, a law about retaining walls or rights of support
for land, or any other Act.
New section 35 specifies that, where owners agree or the
Magistrates' Court orders that fencing works and any subsidiary
works are to be carried out on a line that is not the common
boundary because of a waterway or obstruction, this does not
give rise to adverse possession merely because of placement of
the fence and does not affect title to, or possession of, the
adjoining lands. Placement of a dividing fence in circumstances
other than those where a waterway or obstruction is on, or forms,
the common boundary may give rise to adverse possession
(see new section 30E).
New section 36 provides that if owners corporation rules apply to
dividing fences between lots affected by the same owners
corporation, or between common property for which an owners
corporation is responsible and a lot affected by the same owners
corporation, the Fences Act 1968 does not apply. An owners
corporation is an owner for the purposes of dividing fences
between common property and external land, and a lot owner is
an owner for the purposes of the dividing fence between their lot
and external land.
New section 37 provides that a notice may be given to a person
by delivering it personally to them or by post. Notice may be
delivered personally to an individual by the following actions:
leaving a copy of it with them or putting it down in their
presence; delivering a copy of the notice to their place of
residence; or delivering a copy to their place of business. If a
notice is to be given to an owners corporation, the proper address
for giving notice is the address shown on the records of the
Registrar of Titles. If a notice is to be given to a corporation, the
proper address for giving notice is the registered or principal
office of the corporation. If a notice is to be given to an
incorporated association, the proper address for giving notice is
the registered address of the incorporated association.
18
New section 38 enables the Governor in Council to make
regulations for or with respect to prescribing forms for the
purposes of the Fences Act 1968 and any other matter or thing
that is required, permitted or necessary to be prescribed to give
effect to the Act. Regulations made by the Governor in Council
under this section may be general or limited in application and
may differ according to differences in time, place and
circumstances.
New section 39 contains transitional provisions and provides that
the Fences Act 1968 as in force immediately before the day on
which the Fences Amendment Act 2014 comes into operation
continues to apply to the construction and repair of a dividing
fence commenced before that day, or any notices given,
proceedings initiated or orders made under that Act. It also
provides that a contract or agreement (other than an agreement
under the Fences Act 1968) made between owners or between an
owner and a tenant, is not affected by that Act as amended by the
Fences Amendment Act 2014. The Fences Amendment Act
2014 applies to fencing works and any subsidiary works
commenced on or after the day on which it comes into operation.
Clause 11 repeals the Schedule to the existing Fences Act 1968. The repeal
is a consequential amendment related to the repeal of section 2 of
the Fences Act 1968.
PART 3--AMENDMENTS TO OTHER ACTS
Clause 12 substitutes "owners in section 16" for "occupiers in section 5"
in the Crown Land (Reserves) Act 1978, reflecting the shift in
liability from occupier to owner under the Fences Act 1968.
Clause 13 substitutes "fencing works and any subsidiary works in
respect of a dividing fence between the land of any owner" for
"the construction or repairing of any dividing fence between the
land of any occupier" in section 48(1) of the Emerald Tourist
Railway Act 1977. This reflects the shift in liability from
occupier to owner under the Fences Act 1968 and the concepts
of fencing works and any subsidiary works.
19
Clause 14 omits "and in the term occupier in the Fences Act 1968" from
the definition of perpetual lessee in section 3(1) of the Land Act
1958 and substitutes "as if he were an owner" for "as if he were
an occupier" in section 402(1) of that Act. This reflects the shift
in liability from occupier to owner under the Fences Act 1968.
Clause 15 substitutes "owner" for "occupier" in section 15(1) of the
Zoological Parks and Gardens Act 1995. This reflects the shift
in liability from occupier to owner under the Fences Act 1968.
PART 4--REPEAL OF AMENDING ACT
Clause 16 provides for the automatic repeal of the Fences Amendment
Act 2014 on 1 December 2015. The repeal of this Act does not
affect the continuing operation of amendments made by it
(see section 15(1) of the Interpretation of Legislation Act
1984).
20