The Fencing Act 1968 (Act) has been amended by the Fences Amendment Act 2014 (Amendment Act) which commenced on 22 September 2014.
The Amendment Act aims to facilitate fairer dealings between neighbours over shared dividing fences and encourages resolution of fencing disputes. Greater guidance is provided on initiating fencing works, contributing to fencing works, the type of dividing fence to be built and the placement of dividing fences. The Act also sets out the power of the Magistrates’ Court to make orders in respect of fencing works and to determine disputes about the common boundary.
Contributing to Fences
The Amendment Act now defines owner rather than occupier of the land, reflecting a shift in the liability to contribute to dividing fences. Owners are generally the person(s) registered on the Title to the property. Owners also include certain categories of holders of leases and licenses of Crown land. Owners Corporations are deemed to be owners in respect of fences between common property and other land. Specifically excluded from the definition of owners are particular people and bodies, such as municipal councils or traditional owners of land.
Contribution between Owners
The Amendment Act clarifies that owners of adjoining land are liable to contribute in equal proportions to fencing work and any subsidiary works to construct a ‘sufficient dividing fence’. When determining if a fence is a sufficient dividing fence a number of factors must be considered including the purpose for which the adjoining land is used or intended to be used, reasonably privacy concerns, the types of fences used in the local area and any relevant municipal council, building and planning laws that are relevant to the adjoining land or the construction of a dividing fence.
Where an owner requires a fence that is greater than the standard for a sufficient dividing fence, that owner is liable for the entire cost of the fencing works, so far as they exceed the standard for a sufficient dividing fence.
If the owner of land wants to undertake fencing works, they must give a prescribed form of notice to the adjoining owner before undertaking the works, unless there has been prior mutual agreement. Exemptions to the requirement to issue fencing notices exist where urgent fencing works are required or when the adjoining land owner cannot be located.
An owner is required to make reasonable inquiries if they are not able to find an adjoining owner for the purposes of giving them a fencing notice. To this end, the owner must make inquiries of the municipal council in which the adjoining land is located about the whereabouts of the owner of the adjoining land. If after making reasonable enquiries the adjoining land owner cannot be located, then the owner is entitled to undertake the fencing works without issuing a fencing notice.
The Amendment Act permits an owner to undertake fencing works and any subsidiary works without giving a fencing notice if a dividing fence on the land has been damaged or destroyed, the fencing works need to be carried out urgently and it is impracticable to give a fencing notice to the owner of the adjoining land.
Contribution to Urgent Fencing Works
If an owner wants the adjoining land owner to contribute to the costs of the fencing works, then an urgent fencing notice must be issued which specifies the land on which the fencing works were carried out, the boundary line on which the fencing works were carried out, the type of fencing works that were carried out including the type of fence constructed and the nature of repairs or maintenance, the costs of the fencing works, the amount being claimed and the reason for the urgency of the fencing works.
Common Boundary Disputes
An owner may give an adjoining land owner a prescribed boundary survey notice where there is a dispute as to the common boundary. The adjoining notice may agree to the common boundary specified in the boundary survey notice, specify the position of the common boundary or engage a licensed surveyor to have the common boundary defined.
Pursuant to the Amendment Act, the owners are generally liable to contribute in equal proportions to any reasonable cost of engaging a licensed surveyor to define the boundary. However, if the owner has the boundary defined and it is determined to be in the same position as the adjoining land owner considered it to be, then the adjoining land owner is not liable to contribute to the cost of engaging the surveyor.
Greater power has been given to the Magistrates’ Court to make orders in respect of the line on which fencing works are to be carried out, the line that is the common boundary, whether or not a dividing fence is required, the nature of the fence, the person to carry out the works, the liability of a person to contribute to the works, the way in which contributions are to be apportioned, timeframe for the works to be undertaken and orders that a party must cease or discontinue conduct that might unreasonable damage a fence.
Adverse Possession Claims
Under the Amendment Act, the Magistrates’ Court is given the power to hear and determine adverse possession claims that arise in the context of a fencing dispute. If an owner of land is a party to proceedings under the Act and they claim title by possession to the part of the adjoining land on which the fencing works are to be carried out, the Magistrates’ Court may determine who is entitled to the Title to that parcel of land.
Adverse possession may arise in a fencing dispute where a fence has been located on a line that is not the common boundary for a continuous period of 15 years or more.
Placement of Rails and Framing
The side on which rails and framing should be placed have been incorporated into the Amendment Act. Generally speaking, rails and framing are to be placed on the same side as a similar fence that is being replaced or if there is no existing fence or a different type of fence is being built, on the side least subject to weathering.