FENCES AMENDMENT ACT 2014 (NO. 30 OF 2014) - SECT 10 Sections 32 and 33 substituted and new sections 34 to 39 inserted

FENCES AMENDMENT ACT 2014 (NO. 30 OF 2014) - SECT 10

For sections 32 and 33 of the Fences Act 1968 substitute —

        "     32     Placement of rails and framing

    (1)     If residential land or commercial land shares a common boundary with land to which the public has general access or over which there is a right of way, the rails and framing must be placed on the side of the dividing fence facing into the residential land or commercial land (as the case requires).

    (2)     If residential land shares a common boundary with commercial land, the rails and framing must be placed on the side of the dividing fence facing into the residential land.

    (3)     In all other cases, the rails and framing for a dividing fence must be placed—

        (a)     if a dividing fence is being replaced by a similar dividing fence—on the same side as the rails and framing were located on the previous dividing fence; or

        (b)     if the dividing fence is being replaced by a different type of dividing fence or if there was no previous dividing fence—on the side least subject to weathering.

    (4)     This section does not apply if an agreement or fencing notice agreement between the owners of adjoining lands, or an order made under this Act, specifies on which side of the dividing fence the rails and frames must be placed.

        33     Right to access adjoining land to undertake fencing works

    (1)     An owner of land who carries out fencing works and any subsidiary works under this Act, at any reasonable time, may enter the adjoining land for the purpose of carrying out the works.

    (2)     For the avoidance of doubt, the right of an owner under subsection (1) may be exercised by an employee or agent of the owner.

        34     Act not to affect agreements, other laws etc

Nothing in this Act affects any of the following—

        (a)     a contract or an agreement (other than an agreement under this Act) made between owners of adjoining lands, or between an owner and a tenant;

        (b)     a covenant that affects the adjoining lands;

        (c)     a law about retaining walls or rights of support for land;

        (d)     the operation of any other Act.

        35     No entitlement to possession if fence not on common boundary because of waterways and other obstructions

If, under this Act, 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 it is impracticable to carry out the works on the common boundary because a waterway or other obstruction (whether natural or manmade) is on, or forms, the common boundary—

        (a)     an owner is not taken to be in possession of any part of the adjoining land that the owner occupies merely because of the placement of the fence; and

        (b)     the construction of the fence does not affect the title to, or possession of, the adjoining land.

        36     Act does not apply in certain circumstances—owners corporations

    (1)     This Act does not apply to adjoining lands if—

        (a)     both areas of land are lots affected by the same owners corporation; and

        (b)     the rules of that owners corporation provide for contributions to fencing works and any subsidiary works between those lots.

    (2)     This Act does not apply to adjoining lands if—

        (a)     one area of land is a lot affected by an owners corporation and the other area of land is common property for which the same owners corporation is responsible; and

        (b)     the rules of that owners corporation provide for contributions to fencing works and any subsidiary works between that lot and that common property.

        37     Giving notices under this Act

    (1)     A notice under this Act may be given to a person by delivering it personally to the person or by post.

Notes

1     Section 49(1) of the Interpretation of Legislation Act 1984 sets out when service of a document by post is effected.

2     The Electronic Transactions (Victoria) Act 2000 applies to notices given under this Act.

    (2)     A notice may be delivered personally to an individual—

        (a)     by leaving a copy of the notice with the individual or, if the individual does not accept the copy, by putting the copy down in the individual's presence and telling the individual the nature of the notice; or

        (b)     by delivering a copy of the notice to the place of residence of the individual to an individual apparently above the age of 16 years who resides at that place but when the place of residence is a hotel, boarding house or similar establishment, to some individual apparently above that age who is apparently in charge of the establishment or engaged in the office of the establishment; or

        (c)     if the individual conducts a business, by delivering a copy of the notice to the place of business of the individual to an individual apparently above the age of 16 years who is apparently in charge of that business or is employed in the office of that business.

    (3)     For the purpose of giving a notice under this Act, the proper address—

        (a)     for an owners corporation is the address that is shown on the records of the Registrar for that owners corporation; or

        (b)     for a corporation (other than an owners corporation) is the registered or principal office of the corporation; or

        (c)     for an incorporated association is the registered address (within the meaning of the Associations Incorporation Reform Act 2012 ) of the incorporated association.

    (4)     If a person delivering a notice by post under this section made inquiries of a municipal council about the whereabouts of the owner to whom the notice is directed, at least one copy of the notice must be sent to the address provided by the municipal council (if any).

        38     Regulations

    (1)     The Governor in Council may make regulations for or with respect to—

        (a)     prescribing forms for the purposes of this Act; and

        (b)     any matter or thing that is required or permitted to be prescribed or necessary to be prescribed to give effect to this Act.

    (2)     Regulations under this Act—

        (a)     may be of general or limited application; and

        (b)     may differ according to differences in time, place and circumstances.

        39     Transitional provisions

    (1)     This Act, as in force immediately before the commencement of the Fences Amendment Act 2014 , continues to apply on and after that commencement to the construction and repair of a dividing fence begun before that commencement.

    (2)     This Act, as in force immediately before its amendment by the Fences Amendment Act 2014 , continues to apply on and after that amendment to any notices given, proceedings commenced or orders made under this Act before that amendment.

    (3)     Nothing in this Act affects a contract or an agreement (other than an agreement under this Act) made between owners of adjoining lands, or between an owner and a tenant, before the commencement of the Fences Amendment Act 2014 .

    (4)     This Act applies to fencing works and any subsidiary works begun on or after the day on which the Fences Amendment Act 2014 comes into operation.".