Dividing Fences Review: Proposals to Reform the Fences Act 1968 (Vic)

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1 22 February 2013 The Fences Act Review c/- Department of Justice Level 24, 121 Exhibition Street Melbourne VIC 3000 Also by Dear Sir/Madam Dividing Fences Review: Proposals to Reform the Fences Act 1968 (Vic) The Law Institute of Victoria (LIV) welcomes the opportunity to provide feedback on the issues canvassed in the discussion paper, Dividing Fences Review: Proposals to Reform the Fences Act 1968 (Discussion Paper). The LIV s responses to the consultation questions and various proposals contained in the Discussion Paper are set out below. The LIV has adopted the same headings as in the Discussion Paper. 1. Clarifying neighbours obligations to contribute to fencing work a. Shifting liability from occupiers to owners Q1: Are these liability proposals sufficient to clarify contribution obligations of owners and occupiers? The LIV supports the proposal in paragraph 10 of the Discussion Paper that owners, rather than occupiers, of adjoining land be liable to contribute to fencing costs. The Discussion Paper provides at paragraph 12 that councils are not currently liable to contribute towards the repair and maintenance of boundary fences for public parks that they own and manage, as they are not considered occupiers of the land. Paragraph 13 then states that it is proposed that where land is managed by a local government authority for a public park, the authority is not the owner for the purposes of the Fences Act 1968 (Vic) (the Act). The LIV submits that councils / local government authorities should be required to contribute to fencing costs for public parks. The LIV queries whether it is proposed that where land is managed by a local government authority for purposes other than a public park, the authority will be an owner for the purposes of the revised Act, and therefore liable to contribute to fencing costs. The LIV notes that this is a contentious issue that requires policy consideration. In any event, the LIV is concerned about the range of opinion regarding the responsibility of councils and local government authorities to contribute to fencing costs under the provisions of the Act, the Crown Land (Reserves) Act 1978 (Vic) and the Road Management Act 2004 (Vic). The LIV therefore submits that if councils / local government authorities are to be required to contribute to fencing costs, the legislation must clearly specify the circumstances in which the liability will arise and also the apportionment of the local government authority s contribution.

2 b. Entitlement to require a sufficient fence Q2: Will the preferred approach to defining sufficient fence assist landowners to understand what type of fence neighbours are entitled to require as a minimum? It is proposed in paragraph 16 of the Discussion Paper that owners be required to contribute to a sufficient fence. The LIV supports this proposal in principle. Various factors for considering what would be a sufficient fence have been identified. Dot point 3 of paragraph 16 specifies that the privacy or other concerns of the adjoining owners must be considered. The LIV submits that this factor should be specifically limited to the boundary fence parties so as to exclude consideration of the concerns of neighbours further afield. Dot points 4 and 6 of paragraph 16 require consideration of the kind of dividing fence usual in the locality and any relevant planning and building laws, and it is stated in paragraph 18 that it is not proposed to prescribe detailed fencing specifications. However, the LIV considers that it would be beneficial for the State Government to provide guidance to councils regarding the type of fencing required. This may reduce the number of fencing disputes that reach litigation. The LIV suggests that this could be achieved by simultaneous amendment to Victoria s planning schemes and the Act to enable councils to provide the guidelines and also avoid delays regarding such provision. Whilst the LIV endorses the proposal in paragraph 17 of the Discussion Paper to encourage neighbours to reach agreement and facilitate fairness in determining the kind of dividing fence to be constructed and maintained between their properties, it is unclear how this objective will be achieved. The LIV seeks clarification regarding this. The Discussion Paper, in paragraph 18, proposes that the Magistrates Court have jurisdiction to determine what will amount to a sufficient fence. The LIV considers that the Victorian Civil and Administrative Tribunal (VCAT) instead could be vested with jurisdiction to hear fencing disputes and determine matters such as what constitutes a sufficient fence. The LIV submits that VCAT is an appropriate forum for matters that do not warrant incurring legal costs, and suggests that fencing disputes could be heard under a list which requires leave for legal practitioners to represent the parties. The LIV also submits that the fees for having such matters heard in VCAT must not be prohibitive. The LIV is concerned about the proposed increase in VCAT fees canvassed in the Government s Regulatory Impact Statement for proposed Victorian Civil and Administrative Tribunal (Fees) Regulations 2013, and has made a submission to the Attorney-General expressing its concerns. c. Fairer rules for apportioning contribution Q3: Is the proposal to include cost apportionment scenarios sufficient? Are there any gaps in the preferred approach? The LIV notes the proposal in paragraph 20 of the Discussion Paper to expressly provide that adjoining owners be liable in equal proportions for the cost of constructing, maintaining and repairing a dividing fence of a standard not greater than a sufficient fence. The LIV is concerned about the adverse impact that such a provision could have on developers of broad acre subdivisions. Since sales of lots (and construction of improvements on the settled lots) would be staggered, it is likely that a developer would end up having to pay half the cost of hundreds (or even thousands) of fences under the proposed provision. The LIV favours current practice, whereby the parties agree in the land contract that if the developer still owns land adjoining the settled lot, the developer s contribution towards the cost of constructing the fence will be limited to a nominal amount. Page 2

3 The LIV refers to the various scenarios listed in paragraph 21 of the Discussion Paper which could permit a departure from the primary principle of equal contribution. Dot point 5 provides that where agricultural or pastoral land abounds residential land, the rural landholder will only be liable to contribute to half the cost of a fence sufficient for their rural needs. The LIV queries who will determine whether the fence is sufficient for such needs. Dot point 6 states that where there is land affected by an owners corporation subdivision, there will be specific rules governing contribution between external land and the common property and individual lots managed by an owners corporation. The LIV suggests that these specific rules would need to be included in the model rules in the Owners Corporations Regulations The LIV submits that further scenarios which could permit a departure from the primary principle of contribution should be identified and explored. For example, it is common for developers to seek to recover half of the cost of fencing from an adjoining owner when undertaking a development such as one comprising three to five townhouses. Often, the existing fence is in reasonable condition but the developer simply wishes to erect a new fence for aesthetic purposes. The LIV suggests that in such circumstances, the legislation should expressly require developers (who are neither owners nor occupiers) to pay for the costs of such replacement fence. Alternatively, councils could include this requirement as a standard permit condition in respect of the development. d. Providing guidance on the location of a dividing fence Q4: Do you agree with the preferred approach to the provision of guidance on the location of the fence? Paragraph 22 of the Discussion Paper proposes that the Act expressly state that a dividing fence is to be positioned on the common boundary between parcels of land unless impracticable to do so. Paragraph 22 also identifies a range of situations which may affect the location of a dividing fence. The LIV agrees with this approach in principle. However, the LIV seeks clarification regarding dot point 5, which provides that the occupation of land either side of the line of the fence shall not be deemed to be adverse possession, and shall not affect the title of or possession of any of the adjoining lands. Also, paragraph 24 refers to the appointment of a surveyor to carry out a survey with a view to defining the common boundary between parcels of land. The LIV requests details of how surveyors would be appointed. Q5: Do you agree that the Act should clarify that the Magistrates Court can determine boundary disputes (including claims for adverse possession) that arise in the context of fencing disputes and are within its jurisdictional limit? These paragraphs contemplate that the Magistrates Court will have jurisdiction to determine disputes about the boundary between parcels of land for the purposes of location of a fence, and claims for adverse possession. The LIV does not consider that adverse possession rights should be dealt with under the Act or by the Magistrates Court. They are proprietary rights that are one of the few exceptions to indefeasibility of title, and the LIV considers that disputes regarding such rights are best heard in the superior Courts. Page 3

4 e. Positioning the rails and framing Q6: Is the proposed guidance sufficient to assist landowners in negotiating the positioning of the rails and framing? The LIV has no comments regarding question Ensuring neighbours have a say about fencing works Q7: Is the proposed approach sufficient to safeguard the interests of both parties equally? Paragraphs 32 and 33 of the Discussion Paper state that an owner who is proposing to undertake fencing works will be required to serve a notice on the relevant affected neighbour advising them of the details of the proposed works, regardless of whether contribution is sought. If the affected neighbour does not respond to the notice within 30 days, the fencing works may be undertaken. The LIV supports this proposal in principle. However, the LIV notes that the proposed safeguard can be circumvented by building a fence just inside the boundary. Paragraph 34 of the Discussion Paper proposes that where an owner undertakes fencing works without notifying the adjoining owner, the adjoining owner should be able to apply to the Magistrates Court for an order requiring that the works be stopped. The LIV assumes that this would not apply if urgent works are required, as discussed in paragraphs 44 to 47 of the Discussion Paper. The LIV also queries whether this proposal extends to the removal of fences, and submits that this should be the case. Further, the LIV reiterates its earlier comments about VCAT as an appropriate forum to hearing fencing disputes. 3. Simpler and fairer procedures a. Single procedure for fencing works Q8: Is the proposal for a single process appropriate? In principle, the LIV supports the proposals outlined in paragraphs in paragraphs 35 to 40 regarding a single procedure for undertaking fencing works. Paragraph 40 proposes that the Act expressly provide that an owner be personally served with a notice to fence, or alternatively, that the notice be sent to their address via registered mail. The LIV is concerned that it will not be clear to which address a notice to fence should be sent. The LIV therefore considers that the proposal in paragraph 41 of the Discussion Paper, whereby councils are expressly permitted to disclose addresses of adjoining owners from the rate records for the purposes of serving fencing works notices, should always apply. Q9: Are there other circumstances/situations that need to be included in these provisions? Paragraph 39 of the Discussion Paper indicates that it is intended that the Act provide greater guidance regarding various issues such as what information a notice to fence should contain and upon whom and how it should be served. The LIV agrees with this proposal, and suggests that inclusion of a template notice to fence would also be useful. Page 4

5 Further, the LIV suggests that the scope for notices to fence to form part of the disclosure requirements under s32 of the Sale of Land Act 1962 (Vic) could be explored. However, the LIV acknowledges that this may be beyond the scope of this review. b. Fencing where the neighbouring owner is absent Q10: Is this process sufficient to address concerns regarding absentee owners? Paragraphs 41, 42 and 43 set out a proposed process regarding fencing if the owner of adjoining land cannot be located, including making reasonable enquiries to find the owner. The LIV supports the proposed process detailed in those paragraphs and considers that it adequately addresses concerns regarding absentee owners. c. Urgent works Q11: Is this process reasonable to achieve expedited resolution of the repairs/upgrade or replacement? Paragraphs 44 to 47 acknowledge that urgent works may be required regarding fences where it is not necessary for an owner to contact their neighbour regarding the works. Paragraph 46 identifies various incidents which may necessitate urgent works. The LIV suggests that fences may also need to be constructed or repaired urgently if there is a threat of a dangerous animal. Overall, the LIV considers that the proposals contained in the Discussion Paper represent a positive step towards providing greater certainty around neighbours respective fencing obligations. If you would like to discuss any of the matters raised in this submission, please do not hesitate to contact me or Karen Cheng, LIV Property and Environmental Law Section Lawyer, on ph Yours faithfully Reynah Tang President Law Institute of Victoria Page 5

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