FENCES AMENDMENT ACT 2014 (NO. 30 OF 2014) - SECT 5 Section 3 substituted and new sections 4, 5 and 6 inserted

FENCES AMENDMENT ACT 2014 (NO. 30 OF 2014) - SECT 5

For section 3 of the Fences Act 1968 substitute —

        "     3     Definitions

In this Act—

"adjoining land" in relation to an area of land, means land that shares a common boundary with the area of land;

"agricultural land" means land used primarily for agricultural or pastoral purposes, regardless of whether the land is also used for commercial or residential purposes;

"authorised fencing works" means fencing works and any subsidiary works carried out as provided for in section 12(1)(a), (b), (c) or (d);

"boundary survey notice" means a notice of intention to have a common boundary defined given under section 28;

"commercial land" means land used primarily for commercial purposes, regardless of whether the land is also used for agricultural or residential purposes;

"common property" has the same meaning as in the Owners Corporations Act 2006 ;

"corporation" means any body corporate whether formed within or out of Victoria;

"dividing fence" means a fence that—

        (a)     is located on the common boundary of adjoining lands (whether or not it is continuous or extends along the entire length of the adjoining lands); or

        (b)     is not located on the common boundary of adjoining lands, but the purpose of which is to separate adjoining lands (whether or not it is continuous or extends along the entire length of the adjoining lands);

"fence" means a structure, ditch or embankment, or hedge or similar vegetative barrier, that encloses or bounds land, and—

        (a)     includes the following—

              (i)     any gate, cattle grid or apparatus necessary for the operation of the fence;

              (ii)     any foundation or support built solely for the support and maintenance of the fence;

        (b)     does not include the following—

              (i)     any retaining wall;

              (ii)     any wall that is part of a house, garage or other building;

"fencing notice" means a notice of proposed fencing works given in accordance with section 13;

"fencing notice agreement" means an agreement between owners of adjoining lands, or owners of adjoining lands and long-term tenants (as the case requires), about proposed fencing works and any subsidiary works to be undertaken, that is reached after a fencing notice has been given to one of the owners;

"fencing works" means any one or more of the following—

        (a)     the construction, replacement, repair, demolition, removal or maintenance of the whole or part of a dividing fence;

        (b)     the planting, replanting, repair or maintenance of a hedge or similar vegetative barrier that is the whole or part of a dividing fence;

        (c)     the cleaning, deepening, enlargement, repair or alteration of a ditch or embankment that is the whole or part of a dividing fence;

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"incorporated association" has the same meaning as in the Associations Incorporation Reform Act 2012 ;

"licensed surveyor" has the same meaning as in the Surveying Act 2004 ;

"long-term tenant" means a tenant under a lease with an unexpired term referred to in section 10(2)(a) or (b);

"lot affected by an owners corporation" has the same meaning as in the Owners Corporations Act 2006 ;

"municipal council" has the same meaning as Council has in the Local Government Act 1989 ;

"owner" has the meaning given in section 4;

"owners corporation" has the same meaning as in the Owners Corporations Act 2006 ;

reasonable inquiries has the meaning given in section 5 ;

"Registrar" has the same meaning as in the Transfer of Land Act 1958 ;

"residential land" means land that is used primarily for residential purposes, regardless of whether the land is also used for agricultural or commercial purposes;

"subsidiary works" means any one or more of the following—

        (a)     the design of a dividing fence;

        (b)     the preparation or clearing of land for the purpose of fencing works;

        (c)     the surveying and marking of the common boundary of adjoining lands or other proposed line of fence for the purpose of fencing works;

        (d)     obtaining an approval required for the purpose of fencing works;

        (e)     using temporary barriers as a dividing fence until the completion of fencing works or work as described in paragraph (b);

"traditional owner group entity" has the same meaning as in the Traditional Owner Settlement Act 2010 ;

"urgent fencing notice" means a notice given under section 24.

        4     Meaning of owner

    (1)     For the purposes of this Act, "owner" means the following—

        (a)     for land under the Transfer of Land Act 1958 (other than land in an identified folio under that Act), the registered proprietor of the fee simple in the land, or a person who is empowered by or under an Act to execute a transfer of the land;

        (b)     for land in an identified folio under the Transfer of Land Act 1958 or land not under the Transfer of Land Act 1958 but in respect of which the grant of an estate in fee simple has been made, a person who has an estate in fee simple in the land (except a mortgagee), or who is empowered by or under an Act to convey an estate in fee simple in the land;

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        (c)     the holder of a right to occupy a residence area in respect of land under the Land Act 1958 whether or not covered by a mining licence under the Mineral Resources (Sustainable Development) Act 1990 ;

        (d)     for land to which paragraphs (a), (b) and (c) and subsection (3) do not apply that is alienated from the Crown by grant of a lease or licence, the holder of that lease or licence.

    (2)     Despite subsection (1), "owner" does not include any of the following—

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

        (b)     a person in the occupation of land held by yearly licence under any Act relating to the sale and occupation of Crown lands;

        (c)     a municipal council, trustee or other person or body in respect of land owned by or vested in, or under the care, control or management of, the municipal council, trustee, person or body for the purposes of a public park or public reserve;

        (d)     a traditional owner group entity to whom the Governor in Council has granted an estate in fee simple in land under section 19 of the Traditional Owner Settlement Act 2010 in relation to that land.

Note

In section 16, the term "owner" includes the persons referred to in paragraph (c).

    (3)     Despite subsection (1), if an area of land is common property for which an owners corporation is responsible, the owners corporation is taken to be the owner of the area of land for the purposes of this Act.

Note

Subsection (3) does not apply to an area of land which is a lot affected by an owners corporation. In this case, the owner of the lot is the owner of the area for the purposes of this Act.

        5     Meaning of reasonable inquiries

For the purposes of this Act, reasonable inquiries may include (but are not limited to) the following actions—

        (a)     making inquiries of any persons who occupy the adjoining land or land near the adjoining land about the whereabouts of the owner of the adjoining land;

        (b)     making inquiries of the municipal council in which the adjoining land is located about the whereabouts of the owner of the adjoining land.

        6     When is a dividing fence a sufficient dividing fence ?

    (1)     For the purposes of this Act, in determining whether a dividing fence is a sufficient dividing fence regard must be had to the following—

        (a)     the existing dividing fence (if any);

        (b)     the purposes for which the owners of the adjoining lands use or intend the lands to be used;

        (c)     the reasonable privacy concerns of the owners of the adjoining lands;

        (d)     the types of dividing fences used in the locality;

        (e)     any policy or code relating to dividing fences adopted by the municipal council of the area in which the adjoining lands are situated;

        (f)     any relevant planning instruments relating to the adjoining lands or to the locality in which the lands are situated;

        (g)     any relevant building laws relating to the adjoining lands and the carrying out of fencing works and any subsidiary works;

        (h)     the existence of any agreements or covenants that are relevant to the adjoining lands;

              (i)     the duties (if any) of an owner of land under the Catchment and Land Protection Act 1994 to control pest animals;

        (j)     the need for a dividing fence, having regard to any existing waterway or obstruction (whether natural or manmade) that is on, or forms, the common boundary between adjoining lands.

    (2)     Despite subsection (1), if different standards of dividing fence are required for different purposes, a sufficient dividing fence for those lands is the lesser standard of fence.

    (3)     Despite this section, if agricultural land shares a common boundary with residential land, a sufficient dividing fence for those lands is a dividing fence that would be a sufficient dividing fence for agricultural lands.

Note

Section 7 provides for the liability of owners in respect of sufficient dividing fences.".