The boundary survey procedure

Two names for the two owners

For these sections the Act gives each side a name. The notifying owner is the one who gives the boundary survey notice to the neighbour. The adjoining owner is the owner of the land next door for which that notice is given. The Fences Regulations’ notes describe Division 3 of Part 3 of the Act as the process to follow when the common boundary is not agreed, including the boundary notice and engaging a licensed surveyor.

Before the notice: a fencing notice first

A boundary survey notice cannot come out of nowhere. Section 28(3) says the notifying owner must not give one unless either:

1. (a)they have given or received a fencing notice about the two properties, and the owners disagree on where the common boundary is; or
2. (b)they give the adjoining owner a fencing notice about the adjoining lands at the same time as the boundary survey notice.

What goes into a fencing notice, and its own 30 days, are on the government’s Fencing Notice page.

The procedure, step by step

1. The boundary survey noticeAn owner may tell the owner next door that they intend to have a licensed surveyor define the common boundary. The notice must be in writing and must say where the notifying owner believes the boundary is, unless they have already said so in a fencing notice to the adjoining owner.
2. Within 30 days: the adjoining owner’s three optionsWithin 30 days from the day they were given the notice, the adjoining owner may do any of these:
   1. (a)tell the notifying owner in writing that they agree with the boundary position in the survey notice or the fencing notice;
   2. (b)state where they believe the boundary is, either in writing or by marking the line on the ground; or
   3. (c)engage their own licensed surveyor to define the common boundary; an adjoining owner who does must give the notifying owner written notice of the boundary as the surveyor defined it.
3. After the 30 daysIf, after those 30 days, the adjoining owner has neither agreed to the boundary’s position nor had it defined under option (c), the notifying owner may have it defined by a licensed surveyor they engage.
4. Within the next 21 daysA notifying owner who intends to do that must engage the licensed surveyor within 21 days after the day the 30-day period ends.
5. Written notice of the resultThe notifying owner must then tell the adjoining owner in writing where the licensed surveyor defined the boundary.

Who pays for the surveyor

Section 30A(1) makes the two owners share equally in the reasonable cost of the licensed surveyor, whether it was the adjoining owner who engaged one under option (c) or the notifying owner after the 30 days.

So an adjoining owner who states a position within the 30 days, in writing or marked on the ground, and whose position the surveyor’s line matches, is not liable for any share of that survey.

The fencing notice clock stops while the boundary is settled

Once a boundary survey notice is given, section 30B suspends the 30-day periods in sections 17, 18, 19(a) and 20 of the Act, the periods after a fencing notice that lead to a complaint in the Magistrates’ Court or to work going ahead. The suspension lasts until either of these happens:

1. (a)the owners agree in writing on the boundary’s position, whether it is the one in the fencing notice, the one in the boundary survey notice, or another; or
2. (b)a licensed surveyor defines the common boundary under section 29 or 30.

Who may do the survey

The Act takes the meaning of “licensed surveyor” from the Surveying Act 2004. The Surveyors Registration Board of Victoria says only licensed surveyors are legally entitled to carry out land and property boundary surveys, and its register of licensed surveyors is there to check that one is registered. The register also shows each surveyor’s status, and the board says practising surveyors are authorised to undertake cadastral surveys (surveys of land boundaries) while non-practising surveyors are not.

Where the survey meets the rest of the Act

The surveying and marking of the common boundary, or of another proposed fence line, for fencing works is one of the Act’s subsidiary works. If the owners end up in court, the Magistrates’ Court may order the line that is the common boundary, and may require it to be defined by a licensed surveyor: see Bay 3, fencing orders.

Where a waterway or other obstruction makes the boundary itself impracticable, the Act lets owners agree a line elsewhere, and says that line does not shift possession or title: Bay 2 sets that out. The Fences Regulations’ notes give the reason the boundary matters: unless that is impractical, a dividing fence has to sit on the common boundary; otherwise claims of adverse possession can arise under section 30E.

In short

A fencing notice comes first, or with the boundary survey notice. The adjoining owner has 30 days to agree in writing, state their own line or engage a licensed surveyor. After that the notifying owner has 21 days to engage one. The owners share the reasonable cost equally, unless the notifying owner’s survey lands where the adjoining owner said it would. Meanwhile the fencing notice periods are on hold.