Fences Act 1968 - Eastside Fencing

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Version No. 065

Fences Act 1968

No. 7733 of 1968

Version incorporating amendments as at 1 July 2010

TABLE OF PROVISIONS

Section Page1 Short title and commencement 12 Schedule of repeals 13 Definitions 2

PART I—CONSTRUCTION OF DIVIDING FENCES 4

4 Liability of occupiers of adjoining lands to fence despiteagreements 4

5 Where watercourse is natural boundary, occupiers may agree online of fence 5

6 Service of notice to fence 67 In default of agreement, Court or arbitrator may decide 68 Person may construct fence and recover contribution 89 Notice to fence when occupier unavailable 910 Apportionment of cost of fencing between landlord and tenant 1011 Tenant to pay certain sums to landlord 1212 Recovery of one-half of value of fence dividing unalienated

land 1213 Occupier may construct fence on boundary with road 13

PART II—MAINTENANCE AND REPAIRS OF FENCES 15

14 Occupiers to repair dividing fence 1515 Procedure for compelling repairs, or contribution to repairs 1516 In default of agreement, Court may determine contributions 16

PART III—SPECIAL PROVISIONS RELATING TO VERMINPROOF FENCES 17

17 Definition of vermin-proof fence 1718 Power to Governor in Council to proclaim vermin-proof fence 2019 Liability for contribution respecting vermin-proof dividing

fence 2020 Notice to fence to specify proposed kind of vermin-proof fence 21

Section Page

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21 Making a fence vermin-proof to be deemed constructing avermin-proof fence 22

22 No contribution in case of certain kinds of fence 2223 Recovery of one-half of value of vermin-proof fence dividing

unalienated land 2324 Proportion of contribution to vermin-proof fence a charge on

land until paid 2325 Part II to apply to vermin-proof fences 2526 Penalty for destroying etc. another person's vermin-proof fence 2527 Penalty for setting traps etc. for hares or rabbits within

11 metres of vermin-proof fence 26

PART IV—PROCEEDINGS FOR THE RECOVERY OFCONTRIBUTIONS 27

28 From whom moneys recoverable under this Act 2729 Proceedings to be before Magistrates' Court 27

PART V—GENERAL PROVISIONS 29

30 Act not to interfere with agreements etc. 2931 Act not to apply to unalienated Crown lands 2932 Persons constructing or repairing fences can enter upon adjoining

lands 2933 Landlord may defend proceeding against tenant 30

PART VI—Repealed 30

34–37 Repealed 30__________________

SCHEDULE—Repeals 31

═══════════════

ENDNOTES 32

1. General Information 32

2. Table of Amendments 33

3. Explanatory Details 36

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Version No. 065

Fences Act 1968

No. 7733 of 1968

Version incorporating amendments as at 1 July 2010

An Act to consolidate and amend the Law relating to Dividingand Vermin-proof Fences, and for other purposes.

BE IT ENACTED by the Queen's Most Excellent Majesty byand with the advice and consent of the Legislative Counciland the Legislative Assembly of Victoria in this presentParliament assembled and by the authority of the same asfollows (that is to say):

1 Short title and commencement

This Act may be cited as the Fences Act 1968 andshall come into operation on a day to be fixed byproclamation of the Governor in Councilpublished in the Government Gazette.

2 Schedule of repeals

(1) The Acts mentioned in the Schedule to the extentthereby expressed to be repealed are herebyrepealed accordingly.

(2) Except as in this Act expressly or by necessaryimplication provided—

(a) all persons things and circumstancesappointed or created by or under the repealedActs or existing or continuing under therepealed Acts immediately before thecommencement of this Act shall under andsubject to this Act continue to have the samestatus operation and effect as theyrespectively would have had if the repealedActs had not been so repealed;

S. 1amendedbyNos 9863 s. 2,41/1987s. 103(Sch. 4item 20.1).

Fences Act 1968No. 7733 of 1968

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(b) in particular and without affecting thegenerality of the foregoing paragraph suchrepeal shall not disturb the continuity ofstatus operation or effect of anyproclamation order decision powerdetermination agreement award referencecertificate proceeding charge notice liabilityor right made effected issued granted givenpresented passed fixed accrued incurred oracquired or existing or continuing by orunder the repealed Acts before thecommencement of this Act.

3 Definitions

In this Act, unless inconsistent with the context orsubject-matter—

* * * * *

dividing fence means a fence separating the landsof different occupiers;

* * * * *

Nos 6249 s. 3,6432 s. 2.

s. 3

S. 3 def. ofCourt of pettysessionsamended toreadMagistrates'CourtbyNos 9019s. 2(1)(Sch.item 67),16/1986 s. 30,repealed byNo. 57/1989s. 3(Sch.item 70.1).

S. 3 def. ofmunicipalityrepealed byNo. 12/1989s. 4(1)(Sch. 2item 43.1).


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occupier includes any person who is—

in the actual occupation of or entitled asowner to occupy any land purchased fromthe Crown under contract of sale or alienatedfrom the Crown by grant lease or licence;and

the holder of a right to occupy a residencearea in respect of land under the Land Act1958 whether covered by a mining licenceunder the Mineral Resources (SustainableDevelopment) Act 1990 or not—

but does not include—

(a) any person in the occupation of orentitled to occupy land under a licenceunder the Mineral Resources(Sustainable Development) Act 1990;or

(b) any person in the occupation of landheld by yearly licence under any Actrelating to the sale and occupation ofCrown lands which has been in force orcomes into force;

to repair includes to trim keep and maintain a livefence.

_______________

S. 3 def. ofoccupieramendedbyNos 92/1990s. 128(Sch. 1item 10(a)(b)),63/2006s. 61(Sch.item 14).

s. 3

Part I—Construction of Dividing Fences


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PART I—CONSTRUCTION OF DIVIDING FENCES

4 Liability of occupiers of adjoining lands to fencedespite agreements

(1) The occupiers of adjoining lands not divided by afence sufficient for the purposes of both occupiersshall be liable to construct, or join in or contributeto the construction of, a dividing fence sufficientfor the purposes of both occupiers between theadjoining lands in accordance with the followingprovisions—

(a) in cases where land is occupied foragricultural or pastoral purposes, and theadjoining land is occupied for residentialpurposes—

(i) where the adjoining lands are notdivided by any dividing fence, or aredivided by a dividing fence which is ofa kind sufficient only for the purposesof the occupier of the land occupied foragricultural or pastoral purposes andwhich is out of repair—the occupier ofthe land occupied for agricultural orpastoral purposes shall be liable to joinin or contribute only to the extent ofone-half of the cost of a dividing fencesufficient for the purposes for which heoccupies the land, and the occupier ofthe adjoining land shall be liable to joinin or contribute to the extent of thebalance;

(ii) where the adjoining lands are dividedby a dividing fence which is sufficientonly for the purposes of the occupier ofthe land occupied for agricultural orpastoral purposes and which is inrepair—the occupier of the land

No. 6249 s. 5.

s. 4



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adjoining the land used for agriculturalor pastoral purposes shall be liable toconstruct the whole of the new dividingfence;

(b) in other cases—the occupiers of theadjoining lands shall be liable to join in orcontribute in such proportions as are agreedupon or, in the absence of agreement, aredetermined by the Magistrates' Court underthis Act.

(2) Save as otherwise expressly provided in this Part,the provisions of this Part shall have effectnotwithstanding any stipulation to the contrarywhether made before or after the commencementof this Act, and no contract or agreement made orentered into either before or after thecommencement of this Act shall operate to annulor vary or exclude any of the provisions of thisPart, or to indemnify any person against anyclaims made under this Part.

5 Where watercourse is natural boundary, occupiersmay agree on line of fence

(1) Where a waterway forms the boundary betweenadjoining lands but is not capable of resisting thetrespass of cattle, the occupiers of the adjoininglands may agree upon such a line of fence oneither side of the waterway as will secure a fencefrom the action of floods.

(2) If the occupiers fail to agree upon a line of fence,either occupier may call in the nearest magistratewho shall—

(a) determine the line of fence; and

(b) decide whether any compensation in theshape of an annual payment shall be paid toeither of the occupiers in consideration of

S. 4(1)(b)amendedbyNos 9019s. 2(1)(Sch.item 68),57/1989s. 3(Sch.item 70.2).

No. 6249 s. 6.

s. 5

S. 5(1)amendedbyNo. 81/1989s. 3(Sch.item 15.1).

S. 5(2)amendedbyNos 16/1986s. 30, 57/1989s. 3(Sch.item 70.3(a)).



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loss of occupation of land, and if any, theamount of the compensation.

(3) The magistrate shall be entitled to receive fromthe occupiers in equal proportions the actual costof his travelling expenses (if any) incurred invisiting and inspecting the ground.

(4) The occupation of lands on either side of the lineof fence shall not be deemed to be adversepossession, and shall not affect the title to orpossession of any of the adjoining lands, exceptfor the purposes of this Act.

6 Service of notice to fence

Any person desiring to compel any other person toconstruct or join in or contribute to theconstruction of a dividing fence may serve on theother person a notice to fence which shall—

(a) be in writing or in print, or partly in writingand partly in print;

(b) specify the boundary to be fenced;

(c) contain a proposal for fencing the boundary;and

(d) specify the kind of fence proposed to beconstructed.

7 In default of agreement, Court or arbitrator maydecide

(1) If within one month after the service of a notice tofence the person serving and the person servedwith the notice do not agree upon the constructionof a fence, the kind of fence to be constructed, orthe proportions in which they are to join in orcontribute to the construction of the fence, theMagistrates' Court on the complaint of either ofthem may make an order prescribing—

S. 5(3)amendedbyNos 16/1986s. 30, 57/1989s. 3(Sch.item 70.3(b)).

No. 6249 s. 7.

s. 6

No. 6249 s. 8.

S. 7(1)amendedbyNos 7876s. 2(3),57/1989s. 3(Sch.item 70.4(a)).



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(a) the kind of fence to be constructed;

(b) the portion of the fence to be constructed byeach person, or the proportion of the cost ofconstructing the fence to be contributed byeach person; and

(c) where such further order is necessary, theposition of the fence.

(2) The Court may refer the determination of thematters to be prescribed by the order to the awardof an arbitrator who shall be appointed by an orderof the Court.

(3) The arbitrator shall within the time stipulated inthe order appointing him (if any) deliver his awardto the Court.

(4) The award of the arbitrator shall have the sameeffect as, and be deemed to be, an order of theCourt.

(5) Where an arbitrator—

(a) neglects or declines to act;

(b) becomes incapable of acting; or

(c) dies—

the Court may appoint in his place anotherarbitrator who shall have the same powers andduties.

(6) In making the order or award, the Court orarbitrator (as the case may be) shall be guided asto the kind of fence to be constructed by the kindof fence usually constructed in the place where itis proposed to construct the fence.

s. 7

S. 7(3)amendedbyNo. 57/1989s. 3(Sch.item 70.4(b)).



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8 Person may construct fence and recovercontribution

(1) Where—

(a) the person serving and the person servedwith a notice agree concerning theconstruction of a fence, or in the absence ofagreement an order of the Magistrates' Courtor an award of an arbitrator is made; and

(b) either person fails to perform his part of theagreement or to comply with the order oraward within the time named in theagreement order or award or, where no timeis named, within three months of theagreement order or award—

the other person may construct the whole fence incompliance with the agreement order or awardand may recover the proportion of the cost agreedupon ordered or awarded before the Magistrates'Court.

(2) No proceedings for the recovery of a proportion ofthe cost of construction of a fence shall fail on theground that the fence was not constructed incompliance with an agreement order or awardunless the agreement order or award was notcomplied with in a respect or to an extent whichwas material.

No. 6249 s. 9.

s. 8

S. 8(1)amendedbyNos 7876s. 2(3),57/1989s. 3(Sch.item 70.5).

S. 8(1)(a)amendedbyNo. 57/1989s. 3(Sch.item 70.5).



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9 Notice to fence when occupier unavailable

(1) When the occupier of any land is absent fromVictoria or cannot be found or any land isunoccupied, the occupier of any adjoining landmay—

(a) insert in a newspaper circulating in theneighbourhood of the land a notice addressedto the occupier describing him as theoccupier of the land requiring him tocontribute to the construction of a dividingfence; or

(b) where the case allows, send such a notice byregistered post to the occupier of the land athis address as shown in the rate records ofthe municipal council within whosemunicipal district the land is situated.

(2) The occupier of the adjoining land may thenproceed ex parte to obtain from the Magistrates'Court or an arbitrator appointed by the Court anorder or award (as hereinbefore provided in thecase of persons not agreeing as to the constructionof a fence, the kind of fence to be constructed, orthe proportions in which they are to join in orcontribute to the construction of a fence)—

(a) authorizing the construction of a fencesufficient for the purposes of both occupiers;

(b) specifying the kind of fence to beconstructed;

(c) specifying what proportion of the cost ofconstructing the fence is to be contributed byeach occupier; and

(d) specifying the position of the fence.

(3) The occupier of the adjoining land may constructa fence in compliance with the order or award.

Nos 6249s. 10, 6550s. 2.

S. 9(1)(b)amendedbyNo. 12/1989s. 4(1)(Sch. 2item 43.2).

s. 9




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(4) If during the continuance of the fence any personoccupies the land, the occupier of the adjoiningland may within one month thereafter serve anyperson who if the fence was not in existencewould be liable to contribute to the construction ofa dividing fence with a copy of the order or award.

(5) The occupier of the adjoining land shall after theexpiration of one month from the date of suchservice be entitled to recover the same proportionof the existing value of the fence as was originallyordered or awarded against the occupier of theland in relation to the cost of its construction.

(6) No proceedings for the recovery of a proportion ofthe value of the fence shall fail on the ground thatthe fence was not constructed in compliance withthe order or award unless the order or award wasnot complied with in a respect or to an extentwhich was material.

(7) If in the opinion of any person liable to contributeto the construction of the fence the order or awardmade ex parte is inequitable, he may make acomplaint within one month after the service ofthe order or award in the Magistrates' Court.

(8) The Court may—

(a) relieve the complainant from the whole orany portion of the sum claimed as the valueof the fence; or

(b) order that the line of the fence be altered onsuch terms as are just.

10 Apportionment of cost of fencing between landlordand tenant

(1) Where any fence is constructed under theprovisions of this Act dividing any lands held byany person as tenant of any landlord from anyadjoining lands, the cost thereof as between such


No. 6249 s. 11.

s. 10



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landlord and tenant shall subject to subsection (4)be payable in the proportions following—

(a) where the interest of the tenant at the time ofthe construction of the fence is less than for aterm of three years, the whole cost shall bepayable by the landlord;

(b) where the interest of the tenant is for a termof three years and less than for a term of sixyears, three-fourths of such cost shall bepayable by the landlord and one-fourth of thecost by the tenant;

(c) where the interest of the tenant is for a termof six years and less than for a term oftwelve years, one-half of the cost shall bepayable by the landlord and one-half by thetenant;

(d) where the interest of the tenant is for a termof twelve years or upwards, the whole of thecost shall be payable by the tenant.

(2) If either the landlord or the tenant pays under theprovisions of this Act more than his properproportion of the cost, he may recover the excessbefore the Magistrates' Court from his landlord ortenant (as the case may be) and any tenant may setoff any sum recoverable by him under this sectionagainst any rent payable to his landlord.

(3) Where a tenant is served with a notice order awardor certificate under this Act relating to theconstruction of a fence, he shall within fourteendays serve a copy of the notice order award orcertificate by registered post on—

(a) his landlord at his last known address;

(b) the person to whom he pays his rent; or

s. 10




12

(c) any person who he has reason to believe isauthorized to accept service of notices onbehalf of his landlord.

(4) Where the tenant fails to comply with subsection(3), the whole cost of the construction of the fenceshall be payable by the tenant.

11 Tenant to pay certain sums to landlord

Any tenant having a right to purchase any landoccupied by him at a fixed rate shall on thecompletion of the purchase pay to his landlord, inaugmentation of and as part of the purchasemoney, any sum paid by such landlord under thelast preceding section, together with interest onthe same at the rate of eight per centum perannum.

12 Recovery of one-half of value of fence dividingunalienated land

(1) Where any person has constructed on theboundary of his land a dividing fence sufficientfor the purposes for which he occupies the landand the land adjoining is unalienated Crown land,the occupier of the land shall be entitled to claimand recover from the person who afterwardsbecomes the first occupier of the adjoining landone-half of the then actual value of the dividingfence.

(2) The value of the fence shall be ascertained as soonas practicable after the adjoining land has becomeso occupied and in default of agreement betweenthe parties the value may on the complaint ofeither of them be determined by the Magistrates'Court.

No. 6249 s. 12.

s. 11

No. 6249 s. 13.




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(3) Any sum recoverable under this section may berecovered in the Magistrates' Court.

13 Occupier may construct fence on boundary withroad

(1) If the occupier of any land bounded by a roadwithin a municipal district desires to plant a livefence on the common boundary of his land and theroad and for that purpose to construct a temporaryfence upon such road he shall give notice inwriting of his desire to the municipal council forthat municipal district describing the proposedfence and its proposed position.

(2) The Magistrates' Court, within one month after theservice of any notice on a municipal council undersubsection (1), on the complaint of and good andsufficient cause shown by the municipal council,may order the occupier serving such notice not toproceed with the construction of the temporaryfence.

(3) If within one month after the service of suchnotice the occupier is not served with an order ofthe Magistrates' Court prohibiting the constructionof the temporary fence, the occupier may at anytime not exceeding six months after the service ofthe notice proceed to construct the temporaryfence in compliance with the followingconditions—

(a) no part of the temporary fence shall be morethan 183 metres distant from the nearestpoint on the boundary of his land; and


No. 6249ss 14, 15.

s. 13

S. 13(1)amendedbyNo. 12/1989s. 4(1)(Sch. 2items 43.3,43.4).

S. 13(2)amendedbyNos 7876s. 2(3),12/1989s. 4(1)(Sch. 2items 43.5,43.6), 57/1989s. 3(Sch.item 70.9(a)).

S. 13(3)amendedbyNos 7876s. 2(3),57/1989s. 3(Sch.item 70.9(b)).

S. 13(3)(a)amendedbyS.R. No.154/1974reg. 2(a)(i).



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(b) the width of the road available for trafficafter the construction of the temporary fenceshall not in any place where the road isreduced by the construction of the temporaryfence be less than 915 metres.

(4) If the occupier after the construction of thetemporary fence forthwith proceeds to plant a livefence on the boundary of his land and the road,and afterwards constantly and with all properdiligence protects it from injury, he may maintainthe temporary fence on the road for a period notexceeding four years, or such longer period as themunicipal council in writing allows, until the livefence becomes a fence sufficient for the purposesof the occupier.

_______________

S. 13(3)(b)amendedbyS.R. No.154/1974reg. 2(a)(ii).

S. 13(4)amendedbyNo. 12/1989s. 4(1)(Sch. 2item 43.7).

s. 13

Part II—Maintenance and Repairs of Fences


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PART II—MAINTENANCE AND REPAIRS OF FENCES

14 Occupiers to repair dividing fence

Where a dividing fence which is of a kindsufficient for the purposes of both the occupiers oflands separated by the dividing fence is out ofrepair, the occupiers shall be liable to repair, orjoin in or contribute to the repair of, the dividingfence in accordance with the followingprovisions—

(a) where the dividing fence has been destroyedor damaged by fire or by the falling of a treethrough the neglect of an occupier—theoccupier shall be liable to repair the entirefence or the damaged portion of it (as thecase may be);

(b) in any other case—each occupier shall beliable to join in or contribute to the repairingof the fence in such proportions as shall beagreed upon or, in default of agreement,determined by the Magistrates' Court underthis Part.

15 Procedure for compelling repairs, or contribution torepairs

(1) Where an occupier of land desires the occupier ofadjoining lands to repair, or join in or contributeto the repairing of, a dividing fence, he may servea notice on the occupier of the adjoining landsrequiring him to repair, or join in or contribute tothe cost of the repairing of, the fence (as the casemay be).

(2) If the occupier served with the notice refuses orneglects to repair or join in or contribute to thecost of repairing the fence (as the case may be) forthe space of one week after service of the notice,the occupier serving the notice may repair the

No. 6249ss 16, 17.

s. 14

S. 14(b)amendedbyNos 9019s. 2(1)(Sch.item 68),57/1989s. 3(Sch.item 70.10).

No. 6249 s. 17.


Part II—Maintenance and Repairs of Fences


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fence and demand and recover from the occupierof the adjoining lands the cost of repairing thefence or the proportion of the cost of repairing thefence which is agreed upon or in default ofagreement, determined by the Magistrates' Courtunder this Part.

(3) Notwithstanding anything to the contrary insubsections (1) and (2), if a dividing fence or anyportion of a dividing fence is destroyed byaccident either occupier may immediately repairthe fence without any notice, and demand andrecover from the other occupier the proportion ofthe cost of repairing the fence which is agreedupon, or in default of agreement, determined bythe Magistrates' Court under this Part.

16 In default of agreement, Court may determinecontributions

Where a fence is repaired under this Part, and theoccupiers of the land separated by the dividingfence do not agree upon the proportions whichthey are to be liable to contribute to the cost ofrepairing the fence, the Magistrates' Court may onthe complaint of either of them make an orderprescribing the proportions in which they are to beliable to contribute to the cost of repairs.

_______________


S. 16amendedbyNos 7876s. 2(3),57/1989s. 3(Sch.item 70.12).

s. 16

Part III—Special Provisions Relating to Vermin Proof Fences


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PART III—SPECIAL PROVISIONS RELATING TO VERMINPROOF FENCES

17 Definition of vermin-proof fence

In this Part vermin-proof fence means a fence ofone of the following kinds—

(a) a wire net fence 147 metres in heightconsisting of wire netting constructed inaccordance with the following provisions—

(i) the lower portion of the netting shall benot less than 91 centimetres in widthand of a mesh not exceeding41 millimetres, shall be 15 centimetresin the ground or shall have15 centimetres thereof properly securedto the surface of the ground, and shallbe 76 centimetres above the ground;

(ii) above such wire netting shall be placedother wire netting not less than61 centimetres in width and of a meshnot exceeding 10 centimetres;

(iii) the whole of such wire netting shall beattached by wire or staples tosubstantial posts stakes or ironstandards, which posts stakes or ironstandards shall be at least 206 metresin height, placed 56 centimetres in theground, and not more than 3 metresapart;

(iv) 10 centimetres above the netting thereshall be a barbed wire stapled to eachpost stake or standard and drawnthrough straining posts 25 metres inlength of which 91 centimetres shall bein the ground (which straining posts

No. 6249 s. 18.

S. 17amendedbyS.R. No.154/1974reg. 2(b),No. 41/1987s. 103(Sch. 4item 20.2).

s. 17



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shall be not more than 100 metresapart);

(b) a wire net fence 102 metres in height madeof wire netting which shall—

(i) not be less than 106 metres in width;

(ii) be of a mesh not exceeding41 millimetres;

(iii) be 15 centimetres in the ground or shallhave 15 centimetres thereof properlysecured to the surface of the ground;and

(iv) be attached by a wire or staples tosubstantial posts stakes or ironstandards with a barbed wire extendingfrom one post stake or standard toanother and placed 10 centimetresabove the netting;

(c) a post and rail or paling fence of substantialmaterial firmly erected not less than106 metres in height—

(i) having three wires tightly stretched ortwo wires and top rail in either casewith posts or standards of iron ordurable wood not more than370 metres apart;

(ii) having galvanized wire netting not lessthan 106 metres wide of14 millimetres diameter and not largerthan a 38 millimetre mesh firmlyaffixed thereto, and sunken in theground not less than 15 centimetres;and

s. 17



19

(d) a post and rail or paling or wire fence orportion or portions of a fence of any of thedescriptions in subparagraphs (i) (ii) and (iii)of this paragraph to which is firmly affixedgalvanized wire netting not less than106 metres wide and of 14 millimetresdiameter and not larger than a 38 millimetremesh sunken into the ground not less than15 centimetres—

(i) a post and rail fence at least 106 metresin height of substantial material firmlyerected with no greater distancebetween the rails or the bottom rail andthe ground than 30 centimetres unlessthere is a wire inserted between therails and the posts not more than275 metres apart;

(ii) a substantial paling or picket fence atleast 106 metres in height with nogreater distance between the palings orpickets than 10 centimetres;

(iii) a substantial wire fence at least106 metres in height having wirestightly stretched with no greaterdistance between each of the threelowest wires or the bottom wire and theground than 15 centimetres and theposts or standards or binding wires ofwhich are not more than 335 metresfrom each other with straining posts notmore than 365 metres apart;

* * * * *

S. 17(d)(iii)amendedbyNo. 9019s. 2(1)(Sch.item 69).

s. 17

S. 17(e)repealed byNo. 41/1987s. 103(Sch. 4item 20.2).



20

18 Power to Governor in Council to proclaim vermin-proof fence

The Governor in Council may by Order proclaimany fence described in such Order to be a vermin-proof fence within the meaning of this Part eitherthroughout Victoria or within any portion thereofspecified in such Order and may at any timerevoke any Order made under this section orparagraph (e) of the last preceding section or anycorresponding previous enactment.

19 Liability for contribution respecting vermin-proofdividing fence

(1) Notwithstanding anything in this Act, where anyadjoining lands are not divided by a vermin-prooffence and the Minister on consideration of arecommendation or report by any officer of theDepartment of Natural Resources andEnvironment made after a personal inspection bysuch officer certifies in writing that a vermin-proof fence is necessary, each of the occupiers ofthe adjoining lands shall subject to subsections (2)and (3) be liable to contribute in equalproportions—

(a) towards constructing a vermin-proof fencebetween such lands; or

(b) towards making vermin-proof any fencepreviously constructed between such lands;or

(c) towards maintaining and repairing anyvermin-proof fence previously constructedbetween such lands.

(2) A copy of the certificate shall be served on eachoccupier personally or by post.

No. 6249 s. 19.

s. 18

Nos 6249s. 20, 7228s. 7.

S. 19(1)amendedbyNos 10087s. 3(1)(Sch. 1item 59(a)(b)),46/1998s. 7(Sch. 1).



21

(3) Any person who feels aggrieved by the certificateof the Minister may within fourteen days of beingserved with a copy of the certificate lodge with theMinister a statement of his objections thereto andthe Minister upon consideration of the objectionsmay cancel or confirm the certificate.

(4) This section does not apply to—

(a) Crown lands; or

(b) any land vested in—

(i) the Roads Corporation within themeaning of section 3 of the TransportIntegration Act 2010; or

(ii) Victorian Rail Track within themeaning of section 3 of the TransportIntegration Act 2010; or

(iii) V/Line Corporation within the meaningof section 3 of the TransportIntegration Act 2010; or

(iv) a passenger transport company withinthe meaning of the Transport(Compliance and Miscellaneous) Act1983; or

(v) any "Authority" under the Water Act1989.

20 Notice to fence to specify proposed kind of vermin-proof fence

(1) Where a person desires to compel any otherperson to contribute to the construction of adividing fence and desires that such fence shall bea vermin-proof fence he shall in the notice to beserved on the person pursuant to section 6distinctly specify the kind of vermin-proof fenceproposed to be constructed.

S.19(4)amendedbyNos9019s.2(1)(Sch.item70),9921s.255,44/1989s.41(Sch.2item15),81/1989s.3(Sch.item15.2),104/1997s.47,12/2004s.156,substitutedbyNo.6/2010s.203(1)(Sch.6item22).

No. 6249 s. 21.

s. 20



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(2) Where such notice distinctly specifies the kind ofvermin-proof fence proposed to be constructed thepower of the Court or of any arbitrator toprescribe or award the kind of fence to beconstructed shall be limited to prescribing orawarding the particular kind of vermin-prooffence to be constructed.

21 Making a fence vermin-proof to be deemedconstructing a vermin-proof fence

For the purposes of this Part the making of anydividing fence vermin-proof shall be deemed to bethe construction of a vermin-proof fence, and allthe provisions of this Act enabling any person tocompel any other person to contribute to theconstruction of a vermin-proof fence shall equallyapply to compelling persons to contribute to themaking of any fence so constructed vermin-proofand such provisions with such substitutions asmay be necessary for such purpose shall be readand construed accordingly.

22 No contribution in case of certain kinds of fence

Notwithstanding anything to the contrary in thisAct, where any person has (whether before orafter the commencement of this Act) constructedon the boundary of his land a fence of any of thekinds specified in paragraphs (c) and (d) ofsection 17 but having wire netting the mesh ofwhich is larger than 38 millimetres and not largerthan 41 millimetres the occupier of any adjoiningland shall not be entitled to compel any suchperson to contribute towards constructing avermin-proof fence of another kind in place ofsuch fence or on the ground merely of the size ofthe mesh to contribute towards making such fencevermin-proof.

No. 6249 s. 22.

No. 6249 s. 23.

S. 22amendedbyS.R. No.154/1974reg. 2(c),No. 9019s. 2(1)(Sch.item 71).

s. 21

No. 6249 s. 24.



23

23 Recovery of one-half of value of vermin-proof fencedividing unalienated land

(1) Where any person constructs on the boundary ofhis land a vermin-proof fence and the landimmediately adjoining is unalienated Crown land,the occupier of the land shall be entitled to claimand recover from the person who afterwardsbecomes the first occupier of the adjoining landone-half of the then actual value of the vermin-proof fence forming the dividing fence.

(2) The value of the fence shall be ascertained as soonas practicable after the adjoining land has becomeso occupied and in default of agreement betweenthe parties the value may on the complaint ofeither of them be determined by the Magistrates'Court.

(3) In ascertaining or determining for the purposes ofthis section the value of any fence containing wirenetting, there shall be deducted from the value ofthe fence any proportion of the value of the wirenetting which is attributable to assistance providedunder the Wire Netting Act 1958.

(4) Any sum recoverable under this section may berecovered before the Magistrates' Court.

24 Proportion of contribution to vermin-proof fence acharge on land until paid

(1) If any person served with a notice requiring him tocontribute towards the construction of a vermin-proof fence or the making of any dividing fencevermin-proof proves to the satisfaction of theMagistrates' Court upon the hearing of acomplaint under section 7 that he is unable tocontribute his proportion of the cost of suchconstruction or of the work of making the fence



No. 6249 s. 25.

s. 23




24

already constructed vermin-proof the Court maymake an order that the person giving such noticeshall be at liberty to construct the whole of thefence or do the whole of the work.

(2) Upon the construction or work being completedthe proportion of the cost for which the personserving the notice is liable shall become and untilpaid be and remain a charge upon the land, andthe owner of the land until he pays the amount ofsuch proportion shall pay annually to the personso constructing the fence or doing such workinterest upon such amount at the rate of six percentum per annum.

(3) If default is made in respect to any such annualpayment of interest the payment may be enforcedat any time by the person entitled to receive theinterest in a summary way before the Magistrates'Court or by proceeding in any court of competentjurisdiction.

(4) Every mortgagee or lienee of or over any landshall be at liberty when any sum has pursuant tothis Act become a charge upon such land to paythe amount of such charge, and such paymentwhen so made shall be deemed a part of theprincipal sum secured by such mortgage or lienrespectively and be subject to the provisionspowers and trusts thereof.

(5) When any order is made by the Magistrates' Courtunder this section the amount which any person isliable to contribute as his proportion of the cost ofconstructing a vermin-proof fence or of makingvermin-proof any fence previously constructed,may be determined by the Court at the time ofmaking such order, or if not then determined itmay on the complaint of either party or of theowner for the time being be determined by theMagistrates' Court at any time subsequent to the

S. 24(3)amendedbyNos 7876s. 2(3),57/1989s. 3(Sch.item 70.14(b)).

s. 24

S. 24(5)amendedbyNos 7876s. 2(3),57/1989s. 3(Sch. item70.14(c)(i)(ii)).



25

construction of such fence or the doing of suchwork.

(6) If the complaint is not the complaint of the ownerfor the time being the Court may direct that theowner be made a party to and served with a copyof the complaint and may adjourn the hearing toenable the owner to appear.

25 Part II to apply to vermin-proof fences

The provisions of Part II of this Act shall apply tothe maintenance and repairs of fences constructedor made vermin-proof under the provisions of thisPart or any corresponding previous enactment.

26 Penalty for destroying etc. another person's vermin-proof fence

Every person who wilfully destroys or breaksdown or injures or removes any vermin-prooffence belonging to another person or any portionthereof, or cuts, detaches or removes any nettingforming part thereof shall in addition to paying theamount of the injury done be liable on convictionbefore the Magistrates' Court—

(a) for a first offence to a penalty of 5 penaltyunits;

(b) for a second or subsequent offence toimprisonment for a term of not less thanthree nor more than twelve months.

No. 6249 s. 26.

s. 25

No. 6249 s. 27.

S. 26amendedbyNos 7876s. 2(3),57/1989s. 3(Sch.item 70.15).

S. 26(a)amendedbyNo. 9554s. 2(2)(Sch. 2item 70).

S. 26(b)amendedbyNo. 9945s. 3(3)(Sch. 2item 18).



26

27 Penalty for setting traps etc. for hares or rabbitswithin 11 metres of vermin-proof fence

(1) Every person who, on any land within 11 metresfrom any vermin-proof fence, or on any road setsor uses any snare, trap, engine or contrivance forthe taking of hares or rabbits shall be liable onconviction before the Magistrates' Court—

(a) for a first offence to a penalty of 1 penaltyunit;

(b) for a second or subsequent offence to apenalty of 5 penalty units.

(2) In the case of any such land (other than a road) theforegoing provisions of this section shall not applyto—

(a) the owner or occupier of any such land orany person acting under his writtenauthority; or

(b) any person appointed as an authorised officerunder the Conservation, Forests and LandsAct 1987 for the purposes of the Catchmentand Land Protection Act 1994.

_______________

Nos 6249s. 28, 6961s. 2.

S. 27(1)amendedbyNo. 7876s. 2(3), S.R.No. 154/1974reg. 2(d),No. 57/1989s. 3(Sch.item 70.16).

S. 27(1)(a)amendedbyNo. 9554s. 2(2)(Sch. 2item 71).

S. 27(1)(b)amendedbyNo. 9554s. 2(2)(Sch. 2item 72).

S. 27(2)(b)amendedbyNos 41/1987s. 103(Sch. 4item 20.3),52/1994s. 97(Sch. 3item 9).

s. 27

Part IV—Proceedings for the Recovery of Contributions


27

PART IV—PROCEEDINGS FOR THE RECOVERY OFCONTRIBUTIONS

28 From whom moneys recoverable under this Act

(1) Where any person serves a notice to fence orrepair or a copy of an ex parte order or award theperson serving the notice may recover all moneysrecoverable under this Act in respect of theconstruction or repairing of the fence from—

(a) any person who is liable to contribute to thecost of constructing or repairing the fencewho is served with notice to fence or repairor the ex parte order or award; or

(b) any person who comes in and defends underthe provisions of this Act any proceedingsconsequent upon the notice or the service ofthe order or award.

(2) If any moneys are recoverable by the personserved with notice he may recover them from theperson serving the notice or any person liable tocontribute to the construction or repair of thefence as tenant of whom the person serving thenotice holds the lands bounded by the fence.

29 Proceedings to be before Magistrates' Court

(1) All proceedings for orders and for the recovery ofsums of money shall be before the Magistrates'Court.

No. 6249 s. 29.

s. 28

Nos 6249s. 30, 6432s. 2.


Part IV—Proceedings for the Recovery of Contributions


28

* * * * *

(3) The costs of every complaint shall be in thediscretion of the court but where a court appointsan arbitrator the court may if it thinks fit refer thecosts of the reference to the award of thearbitrator.

_______________

S. 29(2)amendedbyNo. 7876s. 2(3),repealed byNo. 57/1989s. 3(Sch.item 70.17(b)).

s. 29

Part V—General Provisions


29

PART V—GENERAL PROVISIONS

30 Act not to interfere with agreements etc.

Except as in this Act provided, nothing in this Actshall be deemed or taken to affect any covenantcontract or agreement made or hereafter to bemade relative to fencing between landlord andtenant or between occupiers of adjoining land.

31 Act not to apply to unalienated Crown lands

This Act except as is in sections 12 and 23otherwise provided shall not apply to anyunalienated Crown lands; nor shall the Crown theGovernor the Minister administering section 19nor any public officer appointed by the Governoror by the Governor in Council for theadministration management or control of theCrown lands or public works or who by virtue ofhis office however styled has any suchmanagement or control be liable under this Act tomake any contribution towards the construction orrepairing of any dividing fence between the landof any occupier and any Crown land.

32 Persons constructing or repairing fences can enterupon adjoining lands

Every person engaged in constructing or repairinga fence under this Act and his servants and agentsmay with or without horses or cattle or cartscarriages or other vehicles at all reasonable timesenter upon the adjoining lands and do thereonsuch acts matters and things as are necessary orreasonably required to carry into effect theconstruction or repairing of the fence.

No. 6249 s. 31.

s. 30

Nos 6249s. 32, 7228s. 7.

S. 31amendedbyNos 10087s. 3(1)(Sch. 1item 60),46/1998s. 7(Sch. 1),74/2000s. 3(Sch. 1item 46).

No. 6249 s. 33.

Part V—General Provisions


30

33 Landlord may defend proceeding against tenant

Any landlord may come in and defend anyproceeding under this Act against his tenant inconsequence of which the landlord may ultimatelyincur any liability, and any defence which thetenant might set up shall be available to thelandlord.

__________________

* * * * *

__________________

No. 6249 s. 34.

s. 33

Pt 6 (Headingand ss 34–37)amendedbyS.R. No.154/1974reg. 2(e),repealed byNo. 9863 s. 2.


31

SCHEDULE

Section 2

REPEALS

Numberof Act Title of Act Extent of Repeal

6249 Fences Act 1958 The whole

6432 Fences (Amendment) Act 1958 The whole

6550 Fences (Amendment) Act 1959 The whole

═══════════════

Sch.


32

ENDNOTES

1. General Information

The Fences Act 1968 was assented to on 2 December 1968 and came intooperation on 1 March 1969: Government Gazette 5 February 1969 page 238.

Endnotes


33

2. Table of Amendments

This Version incorporates amendments made to the Fences Act 1968 by Actsand subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Justices (Amendment) Act 1969, No. 7876/1969Assent Date: 25.11.69Commencement Date: All of Act (except ss 3, 5, 6, 7(k)(m)–(o)) on 1.4.70;

ss 3, 5, 6, 7(k)(m)–(o) on 1.7.70: Government Gazette25.2.70 p. 463

Current State: All of Act in operation

Statute Law Revision Act 1977, No. 9019/1977Assent Date: 17.5.77Commencement Date: 17.5.77: subject to s. 2(2)Current State: All of Act in operation

Penalties and Sentences Act 1981, No. 9554/1981Assent Date: 19.5.81Commencement Date: S. 2(2)(Sch. 2 items 70–72) on 1.9.81: Government

Gazette 26.8.81 p. 2799Current State: This information relates only to the provision/s

amending the Fences Act 1968

Statute Law Revision (Repeals) Act 1982, No. 9863/1982Assent Date: 5.1.83Commencement Date: 5.1.83Current State: All of Act in operation

Transport Act 1983, No. 9921/1983Assent Date: 23.6.83Commencement Date: S. 255 on 1.7.83: s. 1(2)(c)Current State: This information relates only to the provision/s


Penalties and Sentences (Amendment) Act 1983, No. 9945/1983Assent Date: 20.9.83Commencement Date: S. 3(3)(Sch. 2 item 18) on 20.12.83: Government



Statute Law Revision Act 1984, No. 10087/1984Assent Date: 22.5.84Commencement Date: 22.5.84: subject to s. 3(2)Current State: All of Act in operation

Courts Amendment Act 1986, No. 16/1986Assent Date: 22.4.86Commencement Date: S. 30 on 1.7.86: Government Gazette 25.6.86 p. 2180Current State: This information relates only to the provision/s


Endnotes


34

Conservation, Forests and Lands Act 1987, No. 41/1987Assent Date: 19.5.87Commencement Date: S. 103(Sch. 4 items 20.1–20.3) on 1.7.87: Government



Local Government (Consequential Provisions) Act 1989, No. 12/1989Assent Date: 9.5.89Commencement Date: S. 4(1)(Sch. 2 items 43.1, 43.3–43.7) on 1.11.89:

Government Gazette 1.11.89 p. 2798; Sch. 2 item 43.2on 1.10.92: Government Gazette 23.9.92 p. 2789

Current State: This information relates only to the provision/samending the Fences Act 1968

Transport (Amendment) Act 1989, No. 44/1989Assent Date: 6.6.89Commencement Date: S. 41(Sch. 2 item 15) on 1.7.89: s. 2(1)Current State: This information relates only to the provision/s


Magistrates' Court (Consequential Amendments) Act 1989, No. 57/1989Assent Date: 14.6.89Commencement Date: S. 4(1)(a)–(e)(2) on 1.9.89: Government Gazette

30.8.89 p. 2210; rest of Act on 1.9.90: GovernmentGazette 25.7.90 p. 2217

Current State: All of Act in operation

Water (Consequential Amendments) Act 1989, No. 81/1989Assent Date: 5.12.89Commencement Date: 1.11.90: Government Gazette 15.8.90 p. 2473Current State: All of Act in operation

Mineral Resources Development Act 1990, No. 92/1990Assent Date: 18.12.90Commencement Date: S. 128(Sch. 1 item 10) on 6.11.91: Government



Catchment and Land Protection Act 1994, No. 52/1994Assent Date: 15.6.94Commencement Date: S. 97(Sch. 3 item 9) on 15.12.94: s. 2(3)Current State: This information relates only to the provision/s


Rail Corporations (Amendment) Act 1997, No. 104/1997Assent Date: 16.12.97Commencement Date: S. 47 on 31.3.98: Special Gazette (No. 23) 31.3.98 p. 1Current State: This information relates only to the provision/s


Endnotes


35

Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998Assent Date: 26.5.98Commencement Date: S. 7(Sch. 1) on 1.7.98: s. 2(2)Current State: This information relates only to the provision/s


Statute Law Revision Act 2000, No. 74/2000Assent Date: 21.11.00Commencement Date: S. 3(Sch. 1 item 46) on 22.5.95: s. 2(2)(h)Current State: This information relates only to the provision/s


Road Management Act 2004, No. 12/2004Assent Date: 11.5.04Commencement Date: S. 156 on 1.7.04: s. 2(2)Current State: This information relates only to the provision/s


Mineral Resources Development (Sustainable Development) Act 2006,No. 63/2006

Assent Date: 29.8.06Commencement Date: S. 61(Sch. item 14) on 30.8.06: s. 2(1)Current State: This information relates only to the provision/s


Transport Integration Act 2010, No. 6/2010Assent Date: 2.3.10Commencement Date: S. 203(1)(Sch. 6 item 22) on 1.7.10: Special Gazette

(No. 256) 30.6.10 p. 1Current State: This information relates only to the provision/s


–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Metric Conversion (Fences Act) Regulations 1974, S.R. No. 154/1974Date of Making: 7.5.74Date of Commencement: 1.6.74: reg. 1

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Endnotes


36

3. Explanatory Details

No entries at date of publication.

Endnotes

Documents

Fences Act 1968 - Eastside Fencing