Fences, Boundaries & Trees

The trend of building to the boundary in suburban construction means that issues relating to Fences, Boundaries and Trees commonly arise. However, the removal and replacement of a boundary fence is not Protection Work¹, and is subject to the procedures set out in the Fences Act 1968.

Fence DISPUTES

The work required to replace an existing boundary fence (or install a new fence) between two properties is regulated by the Fences Act 1968 (Vic). The procedure to be followed when replacing a fence is set out in Part 3 of the Act, and involves serving a fencing notice, awaiting agreement, and if there is no agreement – suing in the Magistrates’ Court to have the matter determined.

BUILDING OR PLANNING PERMIT

In some cases, fences may require a building permit or a planning permit. Read more here.

Boundary disputes

Determining the correct boundary between two properties is not always straightforward, as title plans are not always correct. Legal and surveying advice can be required before the correct boundary position can be appreciated.

A failure to get advice before completing fencing works, or worse, constructing a part of a building on the “boundary” can lead to claims in adverse possession, trespass and encroachment (e.g. encroaching building, crane or ground anchor).

Tree related disputes

Despite commendable efforts by the VLRC to simplify the law, trees remain an unusually complex legal area for owners, builders and developers to grapple with.

Determining whether a particular tree can be trimmed or removed often involves having an understanding of:

• property law rights;
• the common law torts of negligence and nuisance;
• local laws (which can differ between Councils);
• other planning controls which may apply to the particular tree.

Francke Lawyers are experienced advisers and are able to assist you with your queries. Contact us to find out how we can help.

FOOTNOTES

1. VBA Practice Note PW-02, Protection Work Process, State of Victoria, Victorian Building Authority 2021, p 3 ↩︎

Articles

Further reading AND RESOURCES

(External links)

• Fencing in Victoria (disputes.vic.gov.au)
• Notice to Fence Form (disputes.vic.gov.au)
• Summary of Fencing Law in Victoria (justice.vic.gov.au)
• VLRC Neighbourhood Tree Dispute Report (lawreform.vic.gov.au)
• Magistrates Court Information Guide for Fencing Act claims (mcv.vic.gov.au)
• Sample “Complaint” in the Magistrates Court (mcv.vic.gov.au)