Chapter 6
Fencing
October 2012
Chapter 6
Fencing
October 2012
To receive this publication in an accessible format phone9096 0000, using the National Relay Service 13 36 77 if required.
Authorised and published by the Victorian Government, 1 Treasury Place, Melbourne.
© State of Victoria, Department of Health and Human Services May, 2017.
Except where otherwise indicated, the images in this publication show models and illustrative settings only, and do not necessarily depict actual services, facilities or recipients of services. This publication may contain images of deceased Aboriginal and Torres Strait Islander peoples.
Available at
Contents
Fencing policy
Introduction
Management
Legal requirements
Fence types
Party fencing responsibilities
Damage claims
Notice to fence/ agreement to fence
Non-agreement of fencing works
Pool fencing
Payments
Payments by instalments
Fencing procedures
Fencing works as responsive maintenance
Party fencing
Portfolio management group fencing works
Pool fencing
Payments by instalments
Appendices
Boundary fencing process flowchart
Notice to fence
Agreement to fence
Memorandum to register finance for fencing repayment agreement
Fencing cover letter
Calling card note
Fencing repayment agreement
24 Hour notice to enter the rented premises
Fencing policy
Introduction
The Department of Human Services (the Department), contributes to the maintenance or replacement of party/dividing fencing for Director of Housing (the Director)owned and community managed properties (COMAC) in accordance with the provisions of the Fences Act 1968. In general, the Department repairs fencing regardless of age in preference to replacement, unless it is not economic or there is a legal requirement to do so.
The intent of this policy is to ensure that appropriate actions are taken in relation to all fencing requirements, including new construction or acquisition, repair, part or total replacement.
The Department aims to ensure fencing outcomes in accordance with relevant legislation, in line with Australian Standards and a consistent approach is taken across business units.
Note: This policy is to be read together with the specifications documents relevant to the type of fencing works being undertaken.
Management
Schedule of Rates [
Housing Standards Policy Manual [
Public Liability Insurance Policy [
Fencing is managed by two branches within the Department, depending on whether the fencing work is project based or responsive in nature. Fencing can form part of:
•Responsive or vacated maintenance works - managed by the local Housing Office or Housing Call Centre (HCC)
•Improvement programmed works, new housing development and acquisition, or vacant land holdings projects - managed by the Property Portfolio Branch.
Compliances
•All fencing contractors engaged directly by the Department are to be approved registered builders to ensure compliance with the quality of works performed. In addition, all fencing works are to comply with relevant Departmental fencing specifications and standards, as detailed in the Schedule of Rates (SOR) and Housing Standards Policy Manual.
The Department also requests private owners who initiate fencing works to comply with these requirements when seeking an agreement to fence.
Reference should be made to the specifications relevant to the type of fencing works being undertaken.
Note: All fencing contractors engaged directly by the Department must carry a minimum $10,000,000 public liability insurance cover. Contractors who are engaged by private owners are also required to have the same certification and public liability insurance coverage as the Department’s head contractor, see Public Liability Insurance Policy.
Legal requirements
All applicable legislation is to be observed in negotiating and undertaking fencing works, and maintained from initiation through to completion of the works.
The Fences Act (FA) 1968 applies to fencing matters in Victoria. The Department must comply with the FA, the Residential Tenancies Act 1997 (RTA), the Information Privacy Act 2000 (IPA), and any other legislation relevant to the completion of works.
The Magistrates’ Court of Victoria (Magistrates’ Court) hears disputes in relation to fencing matters under the FA. The Magistrates’ Court may order the kind of fence to be constructed (as per the FA (s.7 (1) (a)), the portion of fence to be constructed (as per the FA (s.4 (1) (a) (b))by each party or the proportion of the cost of constructing the fence to be contributed by each party. The FAplaces particular emphasis on fences being suitable for the purposes of both occupiers (as per the FA (s.14 (a) (b)).
The Department has an obligation under theRTA (s.68) to ensure the rented premises are maintained in good repair. This includes the maintenance of fencing between Director owned propertiesand a privately owned property.
If the Victorian Civil and Administrative Tribunal (VCAT) orders the Department to replace a fence as a result of an action taken against it by a public housing tenant, the Department must comply with the order and will initially be responsible for the total cost of the fence.
A Notice to Fence and an Agreement to Fence must have been obtained and served prior to the commencement of fencing works.
Refer to the appendices for more information on fencing documentation.
Construction of a new or replacement fence
Where no fence exists or the existing fence is not sufficient for one of the occupiers, for example where the neighbour’s dog constantly enters a neighbouring property, that party can initiate a fencing request, and can also take the matter to the Magistrates’ Court for determination if agreement cannot be reached, as per the FA (s.4(1)(a)(b).
Maintenance of fences
Repairs to a fence can be undertaken where both parties agree that the fence is of a sufficient kind for both occupiers, and where both parties agree to the cost of repairs.
Where one of the parties does not agree to the cost of repairs but agrees that the fence is sufficient for both occupiers, the party that initiates the fencing repair request can take the matter to the Magistrates’ Court for determination, as per the FA (s.14(1)(a)(b).
If one of the parties does not agree that the fence is sufficient for them but is instead of the opinion that the fence should be replaced, that party may issue a Notice to Fence and take the matter to the Magistrates’ Court for determination.
The Notice to Fence must be in the name of the occupier of the property. The occupier, if they are not the owner of the property, must forward the Notice to Fence and accompanying documents to the owner within 14 days by hand or registered post, or they may be liable for the full cost of repairs.
Note: It is important to negotiate appropriate outcomes for fencing with the occupiers of neighbouring premises to avoid the initiation of legal action through the Magistrates’ Court. The FAplaces particular emphasis on fences being suitable for the purposes of both occupiers. Legal action should always be viewed as a last resort.
Fencetypes
Schedule of Rates [
Housing Standards Policy Manual [
The Department’s standard height for timber paling fencing is 1650mm from ground level to the trimmed fence top. Any additional costs for fencing that exceed the Department’s fencing specifications are generally borne by the requesting party.
Note:The Schedule of Rates (SOR) allows for some discretion in relation to the fence boundary height, for example, up to 1800mm in certain circumstances. This is in situations where styles of neighbourhood and local council requirements require a higher fence, or where individual tenancy or property management issues are best addressed by installing a higher fence.
Where agreed by adjoining owners, the Department may erect alternative styles of fencing appropriate to the local environment, or in accordance with local planning laws.
Alternative fencing types may include picket, vertical board screen, coloured chainmesh, horizontal board or colourbond metal.
Note: Wherever possible, replacement fencing should be similar to existing fencing. The Magistrates’ Court can make orders about the type of fence and the proportion of the cost of constructing a fence to be contributed by each party. Any such determination overrides Departmental policy about costs for fencing that exceeds the Department’s fencing specifications, as per the FA (s.7(a)(b) and see Housing Standards Policy Manual.
Party fencing responsibilities
Tenant Property Damage Chapter [
Schedule of Rates[
NOS Works [
Adjoining Directorowned properties
Repair or replacement of party fencing between two Director owned properties is the sole responsibility of the Department, including fencing that is accidentally damaged.
Note: Malicious damage caused by a public housing tenant, a household member or their visitor is to be considered for tenant responsibility charges, as outlined in the Tenancy Property Damage Chapter.
Adjoining Director and privately owned properties
The responsibility and costs for dividing fences are shared equally between the Director and the private owner unless neglect of either party is found. This type of fencing is known as Party or Boundary fencing.
Where the dividing fence has been destroyed or damaged by fire or by the falling of a tree through the neglect of one of the parties, that party shall be liable to repair or replace the entire fence or the damaged portion, as per the FA (s.14 (1) (a) (b).
In any other case, each party shall be liable to contribute to the repair of the fence as agreed upon between the parties, or as determined by the Magistrates’ Court.
Department initiated
•Where fencing works are initiated by the Department for responsive or vacant unit maintenance, the head contractor undertakes the works in accordance with the SOR for fencing works. Where a casual contractor is to carry out the works, Not on Schedule (NOS)works policy and procedures apply.
Reference should be made to specifications relevant to the type of fencing works undertaken.
•The Department provides at least one quotation to the private owner/occupier for fencing work required, based on the SOR. The local Housing Office is responsible for serving the initial fencing documents, which includes the Notice to Fencesee appendices page 21and Agreement to Fence, see appendices page 22to the private owner/occupier.
Note: A Notice to Fence and an Agreement to Fence must have been obtained before commencing any fencing works.
Private owner/occupier initiated
•The private owner/occupier is to obtain two competitive quotations for the work required. The Department requests quotations based on the Department’s fencing specifications for that type of fencing. A Notice to Fencesee appendices page 21and Agreement to Fence, see appendices page 22for shared costs with the Department and evidence of public liability insurance cover (minimum $10,000,000) must also be submitted to the local Housing Office.
A decision on acceptance of the fencing quotations shall be in accordance with the current NOS policy and procedure, and is made by the local Housing Office.
Note:In cases where the private owner/occupier initiates fencing with the Director, the legal obligation to fence overrides budget constraints.
Private owner/occupier has erected fence and wants to recover costs from the Department
If the private owner/occupier has erected a replacement fence without having served the Director with a Notice to Fence or obtained agreement, the private owner/occupier is not entitled to recover any costs associated with the fencing works from the Department, as per the FA (s.8(2)).
However, the Department cannot seek to have the fence demolished unless the fence does not conform to building regulations or requires a planning permit that has not been obtained.
The private owner/occupier is entitled to recover half share of costs for a fence erected by them if they have served the Director with a Notice to Fence and the Department has agreed to the work.
If the Department does not respond to a Notice to Fence within one month, the private owner/occupier may initiate action through the Magistrates’ Court to obtain an order for the Department’s share in the costs of a replacement fence, as per the FA (s.7).
Damage claims
Tenant Property Damage Chapter [
Managing Incidents and Claims Chapter – Business Practice Manual [
In the event of fencing works caused by motor vehicle damage, the Department may make a claim against the driver, a company (if a commercial vehicle is involved) or their insurer, for loss or damage incurred to a Director owned property due to the negligence of that party. Action may be taken by the local Housing Office or the Department’s Legal Services Branch (LSB) as determined by the extent of the damage.
•The Department will consider tenant responsibility charges if malicious damage is caused by a public housing tenant, a household member or their visitor, as outlined in the Tenant Property Damage Chapter.
•Refer to the Managing Incidents and Claims Chapter in the Business Practice Manual for more information on damage claims.
Notice to fence/ agreement to fence
A Notice to Fence is a formal notice served under the FA (s.6). An Agreement to Fence is a legal agreement between adjoining property owners or occupiers, and may be used in legal proceedings between disputing parties. The private owner/occupier has one month in which to respond to the Department before legal action is pursued.
When party fencing adjoining Director and privately owned properties is identified as needing major repair or replacement, Housing staff are to contact the private owner/occupier to negotiate an agreement for the required works to be undertaken.
•Where the fencing works are initiated by the Department, the Department must serve the occupier of the private property with a Notice to Fencesee appendices page 21 and Agreement to Fence, see appendices page 22 and at least one quotation, including one from the head contractor. The quote should make reference to specifications relevant to the type of fencing works being undertaken.
The Notice to fence documents, served on the occupier/owner of the private property by the Department either in person or via registered post must:
•be in writing
•contain the addresses of both properties
•specify the proposed boundary to be fenced
•contain a proposal for fencing
•specify the type of fence proposed
•include the cost of the proposed fencing works
•include all quotations
•include the name of the private owner or occupier.
Note: A Notice to Fence and an Agreement to Fence must have been obtained before commencing any fencing works.
Non-agreement of fencing works
The FA (s.7) requires that a Notice to Fence be served on a private owner/occupier in person or by registered post, and that the private owner/occupier has one month in which to respond to that notice.
Where fencing works are initiated by the Department and the private owner/occupier does not agree to share in the cost of fencing or has not responded to the Notice toFence after the expiration of the one-month period, the matter is referred to the Department’s Legal Services Branch (LSB). LSB will serve the private owner with a seven-day Notice of Demand prior to taking action in the Magistrates’ Court for determination of the Department’s share of the costs.
Note: The Department attempts to resolve disputes as far as possible by negotiation. LSB will only become involved upon the expiration of the legislated one month period.
If the public housing tenant takes it upon themselves to refer the matter to VCAT, the Housing Services Officer (HSO) shall advise the Tribunal that the case has been referred to the Magistrates’ Court for arbitration. However, if the Director is directed to proceed with the works by the tribunal, the Department would comply with the order.
Pool fencing
Responsive Maintenance Chapter [
Tenant Property Damage Chapter [
Compliance with pool fencing regulations
Building Regulations 1994 came into effect on 1 July 1997 with regard to requirements to secure swimming pools in residential properties, to reduce the risk of drowning by small children.
The regulations require fences and other securing devices such as door and window locks to be installed for pools over 300mm deep. The legislation applies to both in-ground and above-ground pools and spas.
Note: Pools and spas are non-standard fixtures in public housing and community managed properties. All requests for installation of pools and spas must be made at the local Housing Office, as outlined in the Responsive Maintenance Chapter.
•The Director as landlord and owner of the rented premises is liable for compliance with pool security regulations. Where the tenant has installed a pool without consent of the Department and the pool is not to be removed, the Department of Human Services seeks to recover the costs of making pool fencing compliant from the tenant through the Maintenance Claim Against the Tenant (MCAT) process, as outlined in the Tenant Property Damage Chapter.
The tenant may lodge an appeal against the claim or make arrangements to pay for the pool fencing. Otherwise, the Department may make an application to VCAT for compensation.
Payments
Payments are not to be approved until proof of all required compliance documents is received by the Department, that is,
•A job order (invoice) where a Notice to Fence /Agreement to Fence is not required, for adjoining public housing properties
•A job order, signed Notice to Fence, Agreement to Fence and Fencing Payment Agreement where the Department has initiated the Agreement to Fence with the private owner
•An invoice, signed Notice to Fence, Agreement to Fence and confirmation that the fencing works are completed to the Department’s specifications where the private owner has initiated the fencing works.
The Department will only make half cost payments for fencing works to contractors where the adjoining property is privately owned. It is the responsibility of the contractor to recover private owner debts.
Payments by instalments
Existing finance policies and systems support the option of payments by instalments for debtors who are not the Department’s clients.
Payments by instalments are only approved where the private owner/occupier can demonstrate they will experience hardship if they are required to pay the total amount in full.