Fences beside Crown land and council parks

Council parks and reserves

Section 4(2)(c) of the Act says that a council, a trustee, or any other person or body is not an owner of land it owns, has vested in it, or has in its care, control or management, where that land is held as a public park or public reserve. Three things in that sentence carry weight:

• Who: not only councils, but trustees and any other person or body.
• How they hold the land: owning it, having it vested in them, or having its care, control or management.
• Why they hold it: as a public park or public reserve. The paragraph is tied to that purpose.

The same subsection leaves out three other kinds of holder: people occupying land under a licence under the Mineral Resources (Sustainable Development) Act 1990, people occupying land held by yearly licence under the Crown lands Acts, and certain traditional owner group entities. Bay 1, who the Fences Act covers, sets out the whole list.

The exception: a fence line away from a blocked boundary

Section 16 lets the owners of adjoining lands agree to put fencing works on a line other than the common boundary, where a waterway or other obstruction, natural or manmade, sits on or forms the boundary and makes the works there impracticable. For working out that line, section 16(2) counts the park and reserve holders of section 4(2)(c) as owners after all, and a note under section 4 says the same.

Section 35 then protects both sides where owners agree, or the Magistrates’ Court orders, a fence off the boundary for that reason. An owner is not treated as possessing any part of the land next door just because the fence puts it on their side, and building the fence does not affect title to, or possession of, the adjoining land.

Unalienated Crown land

Section 31 has two halves. First, apart from what section 30H provides, the Act does not apply to unalienated Crown lands. Second, neither the Crown, nor the Governor, nor a public officer who administers, manages or controls Crown lands or public works, is liable under the Act to contribute to fencing works or subsidiary works for a dividing fence between an owner’s land and any Crown land.

Read the words closely: the first half speaks of unalienated Crown lands, while the second speaks of a fence between an owner’s land and any Crown land.

The Dispute Settlement Centre of Victoria’s fencing page, under its heading on properties next to public parks and government-owned land, puts the practical position this way:

“The Fences Act currently states particular types of Crown land are exempted from contributions. The government may choose to contribute in some circumstances, but this is not required by the Fences Act.”

Crown land that has been let is a different case. Under section 4(1)(d), where land has been alienated from the Crown by the grant of a lease or licence, and none of the Act’s other ownership tests applies, the holder of that lease or licence is the owner. The exception is a person occupying land on a yearly licence under an Act about the sale and occupation of Crown lands, whom section 4(2)(b) leaves out.

When the Crown land later gets an owner

Section 30H is the one part of the Act that reaches unalienated Crown land, and it works after the event. Its steps, in the order the section sets them out:

1. The fence is built against Crown landAn owner does fencing works, and any subsidiary works, on a dividing fence whose other side is unalienated Crown land.
2. Someone later becomes the owner next doorThe owner who did the works may recover half the value of the existing dividing fence from that person, by giving them notice under section 30H.
3. The notice is in writingIt must state the value of the dividing fence, and the amount the new owner is required to contribute.
4. Within six monthsThe notice must be given within 6 months after the day the new owner acquired the land.
5. If there is no agreement after 30 daysIf, 30 days after the notice, the owners have not agreed whether an owner is liable to contribute, or how contributions are to be apportioned or what each owner is liable to pay, either owner may ask the Magistrates’ Court, by filing a complaint, for an order under section 30C.

The court’s powers on that complaint are the ones in Bay 3, fencing orders. If the dispute is about where the boundary with the new owner actually runs, Bay 4 sets out the Act’s survey steps.

In short

Beside a council park or public reserve, the council or trustee holding it for that purpose is not an owner under the Fences Act, except when agreeing a fence line around a waterway or other obstruction. Beside unalienated Crown land, the Act does not apply and the Crown is not liable to contribute. When that land later passes to an owner, section 30H gives a six-month window to ask them for half the existing fence’s value, in writing, with the value and the amount stated, provided the fence still stands and no contribution has been received.