Property Boundaries and Fencing Disputes in Victoria

How Legal Boundaries Are Determined

The legal boundary of a Victorian parcel is the line shown on the registered plan of subdivision (or, for older land, the Crown grant and any superseded plans) lodged with Land Use Victoria. The plan records the dimensions, bearings and connections that define the parcel — and the registered plan is the only document that legally defines what each owner owns. The fence is not the boundary. The hedge is not the boundary. The paving is not the boundary. The plan, re-established on the ground by a licensed surveyor, is the boundary.

Re-establishment surveying works by reference to permanent survey marks placed by surveyors over decades. The surveyor locates the relevant marks, applies the dimensions and bearings shown on the registered plan, and pegs the true position of each corner of the parcel. The result is a surveyor's plan that shows the title boundary, the position of any fences, the position of structures and the discrepancy (if any) between them.

Title Plans Versus Physical Fences

The distinction between the title plan and the physical fence is the single most important concept in boundary disputes — and the single most commonly misunderstood. The title plan is the legal line. The fence is a physical structure that may or may not sit on that line. The two are independent. A fence can be moved without changing the boundary; the boundary can change (by a plan of subdivision) without anyone touching the fence.

The practical consequence is that many fences in Victoria do not sit on the title boundary, and many owners do not own up to the fence. The strip between the fence and the true boundary may belong to the neighbour — or to the encroaching owner under adverse possession, depending on how long the fence has been in place. The only way to know is to commission a re-establishment survey.

The Three Boundaries

In any boundary dispute, three different lines are typically in play:

• The legal title boundary — the line shown on the registered plan of subdivision, re-established by a licensed surveyor. This is the only line that defines ownership.
• The fence line — the physical line of the fence as it sits today, often erected by reference to other fences and rarely by reference to the title plan.
• The occupation boundary — the line up to which an owner has actually used and treated the land as their own: the edge of paving, garden beds, retaining walls, lawn or structures. Occupation often extends slightly past the fence line (overhanging eaves, paving beyond the fence) or stops short of it (a setback for a garden bed).

Resolving a boundary dispute requires identifying all three lines, understanding why they differ and applying the relevant legal regime to the discrepancy.

Why Fences Are Often in the Wrong Position

The reasons are historical and practical. Most boundary fences in Victoria were erected without a survey. In post-war suburbia, builders, owner-builders and neighbours commonly put up fences by eye, by reference to nearby fences, or by reference to pegs that may or may not have been in the right place. Once a fence is up, it tends to be replaced on the same line — perpetuating any original error indefinitely. Even where a survey was commissioned at subdivision, the pegs are routinely disturbed by construction, and decades-old fences are not realigned when they are replaced.

The result is that a re-establishment survey today commonly reveals discrepancies of ten centimetres to a metre or more between the title boundary and the fence line. On a small inner Melbourne lot, this can amount to several square metres of land in dispute — material to the saleable area, material to building envelopes and material to the value of the property.

Common Causes of Boundary Disputes

The triggering events for most Victorian boundary disputes are predictable:

• A re-establishment survey commissioned before demolition, subdivision, a new fence or a planning application reveals a discrepancy that no one previously knew about.
• A purchaser commissions an identification survey before settlement and uncovers an encroachment by or against the vendor's property.
• A fence reaches the end of its life and the neighbours disagree about the position, cost or specification of the replacement.
• A retaining wall begins to fail and the neighbours dispute who is responsible for repair or replacement.
• Tree roots, overhanging branches or root damage to paving, fences or retaining walls become intolerable.
• An access dispute arises over a driveway, side passage, laneway or rear access route.
• A development application or planning permit puts the boundary line into focus and exposes long-standing irregularities.

Survey Evidence and Licensed Surveyors

A licensed land surveyor — registered under the Surveying Act 2004 (Vic) — is the only person legally qualified to re-establish a property boundary in Victoria. A re-establishment survey is the foundation of every serious boundary discussion. Without one, the parties are arguing about lines nobody can place; with one, the parties usually have a workable basis for negotiation.

The surveyor's plan typically shows the title boundary, the position of any fences, the position of any encroaching structures (with measurements), the relative position of features in dispute, and any permanent survey marks relied on. On a contested matter the surveyor may also be called to give evidence about the methodology and the marks. The cost of a survey — typically a few thousand dollars on a residential lot — is small compared to the cost of fighting a boundary dispute without one.

Encroachments

An encroachment is a structure that sits across the title boundary onto the neighbour's land. Typical encroachments include eaves and gutters that overhang the boundary, garage walls built up to or across the line, retaining walls placed wholly on one side, paving and driveways extending beyond the title, decks, garden sheds and outbuildings. The legal response depends on when the encroachment was built and how long it has been in place.

A recent encroachment can usually be resolved by demand, negotiation and, if necessary, injunctive relief or an order for removal in the Supreme Court of Victoria. A long-standing encroachment — typically more than 15 years — may have given rise to a possessory title in favour of the encroaching owner under the doctrine of adverse possession (discussed below), in which case the encroached strip may already belong to the encroacher and the question becomes one of formalising title rather than removing the structure.

Retaining Walls

Retaining walls are a distinct legal category. They are not dividing fences within the meaning of the Fences Act 1968 (Vic), and the default 50/50 cost split for dividing fences does not apply. Responsibility for a retaining wall typically rests with the owner whose land is being retained — that is, the owner whose ground level is being held up by the wall. Where the difference in ground levels was created by one owner's excavation or fill, the obligation to retain (and to maintain the retaining structure) usually attaches to that owner.

Retaining walls built as part of a residential subdivision may be governed by planning permit conditions and the Building Act 1993 (Vic); long-standing walls may give rise to easements of support by long use; failing walls that threaten injury or damage may attract nuisance and negligence claims. Retaining wall disputes are among the most expensive boundary disputes to litigate and almost always warrant early legal and engineering advice.

Trees Near Boundaries

Victoria does not have a specific neighbour-tree statute equivalent to New South Wales' Trees (Disputes Between Neighbours) Act 2006. Tree disputes are dealt with through the common law of nuisance and negligence, supplemented by local council planning controls, significant tree overlays, environmental significance overlays and the Local Government Act 2020 (Vic).

As a general proposition, an owner can prune branches and roots back to the title boundary, provided no statutory protection applies to the tree. Damage caused by tree roots (to retaining walls, paving, fences, drains or structures) may give rise to a nuisance claim against the tree's owner. Overhanging branches may also be a nuisance if they cause material damage or interference. However, many trees are subject to planning overlays that require a permit before any pruning or removal — checking the council's planning scheme before any tree work is essential, and unilateral removal of a protected tree can attract substantial penalties.

Access Disputes

Access disputes involve driveways, side passages, laneways, shared paths and rear access routes. The legal question is always whether the right of access exists as:

• A registered easement on the title — the strongest and clearest basis;
• An unregistered easement implied by long use, necessity or by virtue of the original subdivision;
• A licence from the servient owner, which can be withdrawn;
• A trespass that should be restrained by injunction.

Older inner-Melbourne properties commonly rely on access arrangements that were never properly documented. These arrangements can survive for generations and then crystallise into disputes when the property is sold or developed. A title search and a careful review of the registered plan, the section 32 statement and any historical conveyancing documentation is the starting point. See our companion guide on easements on Victorian property for a fuller treatment.

Adverse Possession and Boundary Confusion

Adverse possession is the doctrine that converts long, unchallenged occupation of land into legal ownership. Where a fence has stood in the wrong position for at least 15 years and the encroaching owner has used the disputed strip openly, exclusively and continuously, that owner may be entitled to apply for possessory title under Part IV of the Transfer of Land Act 1958 (Vic).

The adverse possession analysis is essential in any boundary dispute over a long-standing fence. It frequently changes the negotiating position dramatically: the paper owner who assumed they could simply demand realignment of the fence may discover that the encroaching neighbour already owns the disputed strip. For a detailed treatment, see our companion article on adverse possession in Victoria.

Easements and Boundary Confusion

Many boundary disputes are complicated by easements — rights of way, drainage easements, sewerage easements and easements of support — that affect what can be done on the disputed strip. An encroachment over a drainage easement, for example, may attract enforcement action from the water authority quite independently of the boundary issue. A right of way along a shared driveway may dictate where a new fence can be erected. Identifying every easement affecting the affected land — by title search and review of the registered plan — is part of the basic preparation for any boundary dispute.

The Fences Act 1968 (Vic)

The Fences Act 1968 (Vic) regulates the construction, maintenance and cost-sharing of dividing fences between adjoining owners. It does not regulate the position of the title boundary, retaining walls, encroaching structures or trees — those are governed by separate bodies of law. The Act's principal mechanisms are:

• Fencing notices — the formal notice an owner serves on an adjoining owner specifying the proposed fencing works, the type of fence, the estimated cost and the proposed contribution.
• Default cost-sharing — the costs of a "sufficient dividing fence" are shared equally between the adjoining owners.
• Disagreement resolution — where the neighbours cannot agree, the Magistrates' Court of Victoria can determine the type of fence, the position and the cost contribution.
• Urgent fencing works — provisions allowing works to proceed before the formal process completes where urgency is shown.
• Position of the fence — the Act assumes the fence will be built on the common boundary; where the true boundary is in dispute, the Act does not resolve the dispute, and a survey and title work is needed first.

Fences Act disputes are typically heard in the Magistrates' Court of Victoria. They are usually about cost and specification rather than about the position of the boundary. Where the boundary itself is in dispute, the Fences Act mechanism is not the right forum — the dispute belongs in the Supreme Court or in negotiations supported by a surveyor's plan.

Negotiated Resolutions

Most boundary disputes are resolved by negotiation once the parties have a surveyor's plan in front of them. The common outcomes include:

• A boundary adjustment — a small plan of subdivision moving the boundary to the fence (or to some other agreed line), with the consideration negotiated between the parties.
• A deed of agreement — a written agreement recording the position of the fence, the parties' rights and any consideration, lodged on the title where appropriate.
• An exchange of land — where each owner transfers a small strip to the other to bring the title into line with the fence and use.
• An easement — formalising existing access or support arrangements that have been informal for decades.
• Compensation — a payment in exchange for acceptance of an existing encroachment, deed of release or boundary adjustment.

Mediation

Mediation resolves a high proportion of Victorian boundary disputes before they reach court. The options include private mediators (often retired judges, barristers or experienced property lawyers), the Dispute Settlement Centre of Victoria (DSCV) for less complex disputes, and the Court-annexed mediation programs operated by the Supreme Court of Victoria and the Magistrates' Court of Victoria. Mediation is particularly well-suited to boundary disputes because the parties usually need to continue living next door to one another and the cost of contested litigation is disproportionate to the value of the disputed strip.

Court Proceedings

Where negotiation and mediation cannot resolve a boundary dispute, court proceedings may be necessary. The forum depends on the issue:

• Magistrates' Court of Victoria — Fences Act 1968 (Vic) disputes about the type, position and cost of a dividing fence.
• Supreme Court of Victoria — title disputes, adverse possession claims, encroachment claims, injunctive relief, easement disputes and removal orders for structures.
• VCAT — limited role in boundary disputes; relevant for some owners corporation, planning and retaining wall matters.

Proceedings in the Supreme Court of Victoria are evidence-heavy. The surveyor's plan and survey evidence are central; expert engineering evidence is required for retaining wall claims; historical records and aerial photography may be relevant where adverse possession is in issue. Our companion guide on costs consequences of Victorian litigation sets out the cost risks in more detail.

Costs Risks

Boundary disputes carry a disproportionate cost risk. The value of the disputed strip — particularly on a small inner suburban lot — is often a fraction of the cost of litigating the dispute. Surveyor's fees, expert engineering reports, counsel's fees, court costs and the inevitable management time of the parties all add up. Costs orders in favour of the successful party are routine in the Supreme Court, but they rarely cover the actual costs incurred; the losing party typically pays a substantial proportion of the successful party's costs on top of their own.

Courts are well aware of the disproportion and actively encourage settlement and mediation. A realistic and frank cost-benefit analysis — measured against the likely value of the outcome — is an essential part of advice before any boundary dispute proceeds to litigation. In many cases, even a generous settlement is cheaper than a contested hearing.

Practical Steps Before Commencing Litigation

1. Obtain a current title search, the registered plan of subdivision and any prior plans for the affected land.
2. Commission a licensed surveyor to undertake a re-establishment or identification survey with instructions to mark the title boundary, identify any encroaching structures and measure the discrepancy between the boundary and the fence.
3. Photograph the disputed area thoroughly, prepare a chronology of the fence and structures, and gather any documentation (invoices, rates notices, prior correspondence) about the history of the boundary.
4. Obtain legal advice on the title, the Fences Act 1968 (Vic), any easements affecting the land, the adverse possession position, encroachment principles and the realistic settlement options.
5. Engage with the neighbour in writing, supported by the surveyor's plan, and propose a clear basis for resolution — whether boundary adjustment, deed of agreement, easement, compensation or otherwise.
6. Consider mediation, the Dispute Settlement Centre of Victoria or a private mediator before commencing proceedings.
7. Avoid unilateral action — moving a fence, removing a structure, building over the disputed strip or denying access before the legal position is clear can prejudice your position and expose you to liability in trespass, nuisance, conversion or breach of the Fences Act 1968 (Vic).
8. Address the issue early. Boundary disputes age badly — evidence is harder to gather, neighbours move on, the cost rises sharply once the matter is litigated and the risk of adverse possession crystallising against you increases over time.

Risks for Purchasers, Vendors and Executors

For purchasers, boundary risks crystallise after settlement when the buildable area, saleable area or value of the property turns out to be materially less than expected. An identification survey before exchange — or at least a careful review of the section 32 statement and registered plan by a property lawyer — is cheap insurance. Our guide on buying property in Victoria explains the broader pre-purchase due diligence framework.

For vendors, boundary issues discovered after exchange can lead to rescission, price reduction claims and litigation. Disclosure obligations under the section 32 statement do not always require disclosure of boundary discrepancies, but failure to disclose known encroachments or disputes can give rise to misleading conduct claims. Our companion guide on selling property in Victoria covers the position in more detail.

For executors, boundary issues are commonly uncovered during estate administration when the family home is prepared for sale. A previously unknown encroachment, a failing retaining wall or an undocumented access arrangement can delay sale, depress price and expose the executor to claims from beneficiaries. Identifying and addressing boundary issues early in the administration is part of the executor's fiduciary obligation to the estate. If a caveat or other registered interest is delaying a sale, see our companion guide on caveat removal in Victoria.

How Parke Lawyers Can Help

Parke Lawyers advises Victorian property owners, purchasers, vendors, executors, developers and adjoining landowners on the full range of boundary and fencing issues — survey discrepancies, encroachments, retaining walls, dividing fences, tree disputes, access disputes, easements, adverse possession claims, Fences Act notices, Magistrates' Court applications and Supreme Court proceedings. Our property and conveyancing and litigation and dispute resolution teams work together so a matter can move efficiently from survey to negotiation, to deed of agreement or to contested proceedings as the situation requires.

Frequently Asked Questions