Victorian Consolidated Legislation

Fences Act 1968 - SECT 9

Notice to fence when occupier unavailable

9. Notice to fence when occupier unavailable



(1) When the occupier of any land is absent from Victoria or cannot be found
or any land is unoccupied, the occupier of any adjoining land may-

   (a)  insert in a newspaper circulating in the neighbourhood of the land a
        notice addressed to the occupier describing him as the occupier of the
        land requiring him to contribute to the construction of a dividing
        fence; or

   (b)  where the case allows, send such a notice by registered post to the
        occupier of the land at his address as shown in the rate records of
        the municipal council within whose municipal district the land is
        situated.

(2) The occupier of the adjoining land may then proceed ex parte to obtain
from the Magistrates' Court or an arbitrator appointed by the Court an order
or award (as hereinbefore provided in the case of persons not agreeing as to
the construction of a fence, the kind of fence to be constructed, or the
proportions in which they are to join in or contribute to the construction of
a fence)-

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

   (b)  specifying the kind of fence to be constructed;

   (c)  specifying what proportion of the cost of constructing the fence is to
        be contributed by each occupier; and

   (d)  specifying the position of the fence.

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

(4) If during the continuance of the fence any person occupies the land, the
occupier of the adjoining land may within one month thereafter serve any
person who if the fence was not in existence would be liable to contribute to
the construction of a dividing fence with a copy of the order or award.

(5) The occupier of the adjoining land shall after the expiration of one month
from the date of such service be entitled to recover the same proportion of
the existing value of the fence as was originally ordered or awarded against
the occupier of the land in relation to the cost of its construction.

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

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

(8) The Court may-

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

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