I. BACKGROUND TO THE REFERENCE

1.1 Disagreements between neighbours over fences are a common source of conflict in the community. Because fences are the physical boundaries between neighbouring properties for everyday purposes, and are also controlled by both adjoining owners, they are subject to conflicts between the different uses, needs and tastes of the neighbours. Statistics of disputes handled by the Community Justice Centres show that fences were the most frequently mentioned complaint in 10.5% of new cases during 1985-86 and 8.8% of new cases during 1986-87.¹ Although the number of disputes concerning dividing fences which find their way into the judicial system is much lower, the rights and duties involved constitute a significant and often vexing area of contact with the law by ordinary citizens.

1.2 Deficiencies in New South Wales’ dividing fences legislation have been revealed in a number of judicial decisions. In 1957 the Full Court of the Supreme Court in Ex parte Carmichael; Re Newman² criticised the confused drafting of s9 of the Dividing Fences Act, which gives often competing jurisdiction for the resolution of disputes to both the courts of petty sessions (now Local Courts) and the local land boards:

The difficulties of construing s9 - which are very real - arise from the fact that s9(1) is based upon provisions in very similar terms in the Victorian Fences Act 1928 and in the South Australian Fences Act 1924. Under each of those Acts, however, a court of summary jurisdiction or an arbitrator appointed for that purpose by that court is the sole tribunal. The draftsman of s9(1) of the New South Wales Act seems not to have given sufficient attention to the fact that the scheme of the New South Wales Act was somewhat different and that by s9(3)(a) and (b) and by s11(1) jurisdiction to make orders was divided between the court of petty sessions on the one hand and the local land board on the other.

This criticism was echoed by NIcLelland J in Flapan v Land Board for Metropolitan District³ which provided a further illustration of the problems associated with the demarcation of jurisdictions.

1.3 Judicial criticism has also been directed at the fact that several statutes govern dividing fences in particular circumstances. In Worthington v Cosgrove, Hardy J referred to the passage of the Dividing Fences Act 1951 and said:

Unfortunately, Parliament did not deal with the whole subject matter, leaving untouched and on foot ... the variety of provisions on the same subject matter contained in other legislation, including the obscure sections of the Crown Lands Act already dealt with. The State and the community thus lacks one modern workable Act of Parliament on this important branch of the law, which has always been the cause of litigation and of much ill feeling and distrust among neighbours.⁴

Mr Justice Cripps of the Land and Environment Court wrote to the Commission on 26 May 1983 enclosing a copy of his judgment in Pacific Plantations (No 4) Pty Ltd v Burvill.⁵ He said that the system comprised by the Crown Lands Consolidation Act, the Pastures Protection Act and the Dividing Fences Act was hopelessly clumsy and that in his opinion there ought to be one Act dealing comprehensively with the whole subject matter of fences.

1.4 In 1983 the Commission, within its Community Law Reform Program, gave preliminary consideration to the subject-matter of this Report. Information was sought from the Legal Aid Commission and the Community Justice Centres. This information revealed in general terms the existence of a large volume of disputes within the community over dividing fences and a wide variety of deficiencies in the legislation. On the basis of its preliminary consideration of dividing fences legislation, the Commission decided that a reference should be sought under the Community Law Reform Program.

II. CONSULTATION

1.5 Given the community-based character of dividing fence issues and the diverse nature of the problems which may arise, the Commission embarked on an extensive program of consultation. The goal was to ascertain the degree of concern within the community over the legislation, to identify the problems which existed and to obtain suggestions for reform.

1.6 The Commission greatly appreciates the assistance it received from the Law Society of New South Wales and the Local Government and Shires Associations of New South Wales in tapping the expertise of their members. Circulars seeking information both at a general level and on specific issues were distributed to local councils and regional law societies. The Commission also consulted a number of bodies including the Community Justice Centres and the Conference of Chamber Magistrates. Comments were sought from a wide variety of government bodies, including those with substantial land holdings or responsibilities for fencing work.

1.7 In January 1987 the Commission sent letters to a large number of government bodies and private organisations seeking information on problems being encountered in the operation of the legislation. A tentative list of reform issues was enclosed and views were solicited on how the law should be changed. At the same time, the Commission placed articles in the Law Society Journal and the Local Government Bulletin and sent press releases to 213 newspapers and magazines. The press release was published in many suburban and country newspapers as well as in trade and special interest newspapers such as The Land. As a result of these steps, the Commission received a large number of submissions outlining both problems with the legislation and suggestions for reform. A complete list of the government bodies, private organisations and individuals who made submissions is set out in Appendix C.

III. ACKNOWLEDGEMENTS

1.8 The Commission wishes to thank the members of the Conference of Chamber Magistrates, especially Mr Bob Stewart and Mr Paul Ruse, for sharing their practical experience and making many useful suggestions. Also of great assistance were the Local Government and Shires Associations, which enabled the views of their member councils to be ascertained. Mr Howard Insall, Barrister-at-law, acted as honorary consultant to the Division and provided invaluable advice. The Commission also records its appreciation to Mr C M Orpwood, QC and Mr Nigel Hill of Parliamentary Counsel who prepared the draft legislation appearing as Appendix A. Professor Robert Eagleson of the English Department at the University of Sydney provided useful comments on a draft of the fencing agreement in Appendix B during a seminar on Plain Language which he conducted at the Commission in October 1988.

1. Community Justice Centres Annual Report 1986-87 (1987), table 8.

2. (1957) 74 WN 189 at 191.

3. (Unreported) No 2235 of 1981, 23 June 1981, Equity Division, Supreme Court of New South Wales.

4. [1961] NSWR 1071 at 1076; (1961) 78 WN 598 at 602.

5. (Unreported) No 30383 of 1982, 27 April 1983, Land and Environment Court.