I. GUIDELINES FOR REFORM

3.1 The existing Dividing Fences Act 1951 was enacted to encourage the settlement of disputes over fencing costs between neighbours by agreement rather than by litigation.¹ The Commission believes that this should still be the overriding objective for any proposed reforms. The basic purpose of dividing fences legislation is to provide a framework which will facilitate and encourage agreement between adjoining owners. Disputes over dividing fences often become the focus of more personal and general discontent between neighbours which can be exacerbated by litigation. Where possible, therefore, the parties should be encouraged to settle the matter by private negotiation, if necessary with the aid of an independent mediator. Judicial determination should be seen as a last resort after attempts by the parties to achieve an agreement have failed. In such cases the remedy and procedure for setting the dispute by adjudication should be simple, inexpensive and readily accessible to both parties.

3.2 The Commission has also been guided in its deliberations by the principle that the basis of liability for contribution towards the cost of fences should be use of or benefit from the fence.

II. CONSOLIDATION AND RATIONALISATION OF DIVIDING FENCES LEGISLATION

3.3 A source of confusion surrounding fences legislation in New South Wales arises from the fact that provisions dealing with fences are contained in a number of different enactments. In addition to the Dividing Fences Act, there are the Pastures Protection Act and four Acts dealing with Crown lands: the Crown Lands Consolidation Act, the Western Lands Act, the Closer Settlement Act and the Returned Soldiers Settlement Act. There are also provisions dealing with fences in the Bush Fires Act, the Mining Act and the Public Works Act. The nature of the provisions relating to fences contained in these enactments was outlined in the previous chapter.

3.4 The Commission received a number of submissions arguing that this myriad of legislation was the cause of confusion. It has also been the subject of judicial criticism. In May 1983 Mr Justice Cripps, Chief Judge of the Land and Environment Court, wrote to the Commission to discuss problems illustrated by the decision in Pacific Plantations (No 4) Pty Ltd v Burvill.² Justice Cripps’ letter stated in part:

The Crown Lands Consolidation Act, the Pastures Protection Act and the Dividing Fences Act all contain provisions dealing with the rights of people to claim contribution in respect of the erection and maintenance of boundary fences. In some cases the dispute goes to the Court of Petty Sessions with an appeal to the District Court and in others the dispute goes to a local land board with an appeal to the Land and Environment Court. Under the Crown Lands Consolidation Act a person having a certain tenure may claim but another person having the same tenure may not be required to contribute. In short, the system is hopelessly clumsy. People cannot be sure whether they are proceeding under the right Act or going to the right court.

3.5 In the Pacific Plantations case, the properties of the plaintiffs (Burvills) and defendant (Pacific Plantations) were separated by an unsealed Crown road which was enclosed pursuant to s202 of the Crown Lands Consolidation Act. The fence dispute arose with respect to the boundary along that part of the road which the plaintiffs occupied by virtue of a road permit they held. The defendant appealed to the Land and Environment Court from a decision by the local land board made under the Crown Lands Consolidation Act that a cattle-proof fence be constructed to which the defendant would contribute two-thirds of the cost. It was held on appeal that while the boundary had been fenced previously by the plaintiffs (Burvills) pursuant to permission obtained under s202 of the Crown Lands Consolidation Act, the road permit was not one of those categories of interest in land which could ground a claim for contribution under that Act. It is clear then, that the Crown Lands Consolidation Act does not adequately cater for all possible claims for contribution to the cost of fencing arising from land held under its provisions. The Burvills were unable to rely upon the Dividing Fences Act in the appeal since His Honour held that it was not open to the court to entertain on appeal what amounted to a deemed application to the local land board under the Dividing Fences Act.

3.6 The Pacific Plantations case exemplifies the types of technicalities under the Crown lands legislation and the Pastures Protection Act which can prevent people with just claims for contribution in respect of fencing work from claiming against the adjoining landowner. It is clear that there has been considerable confusion as to which provisions in which Act should be followed in order to claim a contribution for half the cost of a fence. Procedural and technical difficulties have frequently intruded upon the determination of fencing claims. This situation was criticised judicially in Worthington v Cosgrove,³ where Hardy J stated:

This case indicates the difficulties confronting owners of country properties and their legal advisers, faced as they are with the problem of deciding what is the appropriate legislation to examine in order to ascertain the nature and extent of their rights and remedies in relation to the erection and maintenance of dividing fences. There are three streams of legislation on this topic ... . The Dividing Fences Act, 1902 followed the archaic lines of the original Act of 1828. Dissatisfaction with that legislation was expressed from time to time . .ultimately in 1951 a modern Dividing Fences Act was passed .... 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 Consolidation Act, 1913 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.

3.7 The present array of statutes makes it possible to proceed under an inappropriate Act for, as Pacific Plantations demonstrates, the line of demarcation between Crown lands legislation and the Dividing Fences Act can be uncertain. Similarly, there can sometimes be doubt as to whether a fence is a rabbit, marsupial or dog-proof fence to which the provisions of the Pastures Protection Act apply, or an ordinary fence to which the provisions of the Dividing Fences Act apply. Where parties proceed under the incorrect Act injustice can occur since they may bar themselves from recovering a contribution by commencing proceedings before the wrong tribunal or by failing to adhere to notice requirements which are necessary under the correct Act. For example, disputes under the Dividing Fences Act are heard by the Local Court where a fence is on the common boundary between properties and by the local land board where it is not. Under the Crown lands legislation and pastures protection legislation, all disputes are determined by the local land board.

3.8 Further, the Dividing Fences Act provides that if notice is not served on the party from whom a contribution is sought prior to the commencement of the relevant fencing work, no contribution can be claimed. However, under the Pastures Protection Act, the required notice may be served up to 12 months after the fencing work is performed and under the Crown lands legislation there is no requirement for written notice at all. It is apparent that persons with just claims for contribution may be barred from recovering if they proceed under the wrong Act.

3.9 This Commission understands that legislation is currently being prepared which, if implemented, will repeal the Crown Lands Consolidation Act and replace it with a new Act which would contain no fencing provisions. It is also understood that under these proposals the Closer Settlement Act and the Returned Soldiers Settlement Act will be repealed. With respect to the field of dividing fences, this is a desirable step and will remove much confusion in the area.

3.10 These proposals, if implemented, will leave the Dividing Fences Act, the Western Lands Act and the Pastures Protection Act as the major enactments dealing with dividing fences. Both the Western Lands Commission and the Pastures Protection Boards’ Association have urged the retention of the latter two enactments. This Commission accepts that the fencing provisions of both Acts serve useful purposes and appear to operate well in practice. Inquiries and consultation initiated by the Commission failed to reveal any dissatisfaction on the part of landowners. However, the Commission believes that certain measures are necessary in order to counteract any injustice which may arise because of the multiple statutes.

3.11 The Commission makes the following recommendation:

The notice requirements in the Dividing Fences Act should be modified so that where the court or land board considers it just and equitable in the circumstances, notice demanding contribution may be served on the party from whom contribution is sought up to 12 months after the fencing work has been performed.

The implementation of such a provision would allow parties who make a reasonable mistake in initiating an action under the Western Lands Act or Pastures Protection Act, and who therefore fail to serve notice before the fencing work is undertaken, to seek a contribution under the Dividing Fences Act. A discretion should exist on the part of the court or land board to allow late service of notice where they consider this to be justified by the circumstances.

3.12 Some mention must be made of the provisions dealing with fences in the Bush Fires Act, the Public Works Act and the Mining Act. The relevant parts of these enactments were outlined above at paras 2.27-2.29. The fencing provisions in these Acts are brief and apply to quite specific situations. For this reason, the Commission considers them to be suitably placed at present and wishes to make no recommendation with respect to them.

III. CONSTRUCTION AND REPAIR OF FENCES

3.13 Currently, the Dividing Fences Act establishes separate procedures for the construction and repair of fences. Under s9, recovery of contribution for constructing a fence involves service of a notice demanding contribution and, where agreement is not reached, a subsequent determination by the Local Court or local land board. The repair provision in s14 differs in that there is no provision for an application to be made to the court or board; it merely provides that if an owner who has been served with notice to repair does not assist in repairing the fence within one month, the person serving the notice may recover half the cost of repairing the fence as an ordinary debt. The basis for allowing an application to court in the case of disputes over the construction of a fence but not in the case of repair is uncertain. The disparity may have arisen from a concern to prevent litigation over trivial matters. However, issues concerning the repair of fences can be just as contentious as those involved in their construction. The sums involved can also be large, particularly when agricultural, ornamental or special purpose fences are concerned. For taxation purposes, farmers often repair fences instead of replacing them completely. The different procedures for recovery which currently exist naturally give rise to confusion and dispute over the distinction between construction and repair. An owner may serve the wrong notice, jeopardizing his or her ability to recover contribution under the Act. Legal practitioners commonly proceed under the simpler repair provisions unless no fence previously existed, thus avoiding the possibility of a hearing on the merits of the case.

3.14 The courts have proved equivocal on the distinction between the construction and repair of fences, particularly when the replacement of an existing fence is involved. In some cases, repair has been held to include the replacement of a fence. In Palmer v Lintott⁴ Wallace J of the Supreme Court of Western Australia held that the total replacement of a dilapidated fence constituted repair rather than construction. ln other cases, the courts have decided that the replacement of an existing fence amounts to the construction of a new fence rather than repair.⁵ In Stacey v Meagher Neasey J of the Tasmanian Supreme Court thought that “erection” included repair and replacement of an existing fence as well as construction of a new fence.⁶ Although several cases have established that the difference between construction and repair depends upon whether the previously accepted fencing line has been adhered to and the degree to which a fence of substantially different character has been created,⁷ the distinction is a fine one and may lead to injustice when owners are deprived of their rights to claim contribution because it later emerges that they proceeded under the wrong section. The Commission is of the view that these problems have arisen because the difference between construction and repair is largely artificial.

3.15 The Commission considers that the procedures for obtaining contribution should be the same for both construction and repair of fences. Parties to a dispute should in all cases be able to resort to a hearing before a tribunal where necessary. The Commission therefore makes the following recommendation:

The Dividing Fences Act should incorporate a single concept of “fencing work”, which should be defined to include the design, construction, replacement, repair and maintenance of a fence in whole or in part, the surveying and preparation of land along or on either side of a boundary between adjoining owners for any such purpose, the trimming, replanting and care of a live fence, and the cleaning, deepening, alteration or enlargement of a watercourse, ditch or embankment that serves as a fence.

In making this recommendation, the Commission endorses the approach taken in South Australia’s Fences Act 1975 and the New Zealand Fencing Act 1978, as well as the Report on the Boundary Fences Act 1908 by the Law Reform Commission of Tasmania, where it was proposed that a single definition of “fencing work” should “form the basis of a simple, all-encompassing procedure for determining disputes”.⁸

IV. DETERMINATION OF DISPUTES

A. The Local Court and the Local Land Boards

3.16 Disputes under the Dividing Fences Act are heard by either the Local Court or the local land boards. Subsection 9(3) of the Act provides that disputes relating to fences upon the “common boundary” are to be heard by the Local Court while disputes relating to fences other than on the common boundary are to be heard by the local land board for that district.

3.17 The confusion which can be generated by the shared jurisdiction of the Local Court and local land boards was demonstrated in Ex parte Carmichael: Re Newman.⁹ In that case, the applicant Carmichael appealed against an order by a magistrate in the Court of Petty Sessions¹⁰ that a dividing fence be constructed other than on the common boundary. The applicant claimed that because of subsection 9(3), the magistrate did not have the jurisdiction to make the order which he did. The Supreme Court resorted to fairly technical reasoning in holding that the Court of Petty Sessions did have jurisdiction. It reasoned that because the proposal in the notice to fence was to construct a fence, the Court was properly empowered to deal with the application under s9(1) of the Act to determine the boundary or line upon which the fence was to be constructed and that the Court of Petty Sessions was not confined to ordering the construction of a fence upon the common boundary. The Court relied upon the word “proposed” in sub-ss9(1) and (3) to determine where jurisdiction lay. That is, where it was proposed to put the fence upon the common boundary then it was appropriate to apply to the Local Court even if ultimately the Local Court ordered a fence which was not upon the common boundary. The Full Court then went on to criticise the drafting of s9 of the Act, stating that

The draftsman of s9(l) 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 [from the Victorian and South Australian Act] 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. It may be that it was intended that a Court of Petty Sessions should only have jurisdiction to make orders providing for the construction of a common boundary fence and to have that jurisdiction only where the applicant’s notice given under s8 specified a proposal to erect such a fence, and that the local land board’s jurisdiction was intended to be limited in a similar way to orders relating to “give and take” fences. But whether this be so or not, s9(l), which sets out in plain words the powers conferred on both kinds of tribunal, confers on each a jurisdiction to make either type of order.¹¹

3.18 In Flapan v Land Board for District,¹² McLelland J noted the decision in Ex parte Carmichael and stated in relation to it:

The deficiencies of s9 of the Act were pointed out in 1957 by the Full court in the case already cited and the present case provides a further illustration thereof.

The facts of the case were that the local land board declined jurisdiction on the ground that the proposed fence was “substantially on line”. The proposed fence was approximately 14 metres long and deviated a maximum distance of nine centimetres from the boundary. The defendant land board’s counsel submitted that s9(3)(a) of the Act relates only to a “give and take” fence, namely one substantially off the line of the common boundary as frequently occurs in rural areas. His Honour dismissed that submission. He held that the proposed fence was otherwise than on the common boundary of the adjoining land and that jurisdiction therefore lay with the local land board.

3.19 These cases illustrate the uncertainty which exists as to the respective roles of the Local Court and local land boards in resolving disputes under the Dividing Fences Act. Their dual jurisdiction under the Act was created because of the special demands of resolving fence disputes in country areas. The above cases demonstrate that the legislation is not operating as planned. The intent of the legislation was that land boards would resolve fence disputes involving country properties, hut the mechanism set up to achieve this in terms of whether fences are on the common boundary has not proved effective. As was decided in Flapan’s case, a fence within the metropolitan area which was only 14 metres long and nine centimetres off the common boundary falls within the jurisdiction of the land board rather than the Local Court.

3.20 This state of affairs prompted a number of submissions to the Commission which advocated that all disputes be dealt with by the Local Court and that the jurisdiction of the local land boards should be discontinued. While this would make for procedural simplicity, the Commission is concerned that the expertise of the land boards would be missed in certain types of disputes. The Commission received submissions from people in country areas who spoke highly of the practical knowledge of the land boards in resolving fence disputes. It was argued that the experience of the boards’ members allowed them to make informed and prompt decisions in rural fencing disputes which, if heard in the Local Court, might require the calling of expert evidence.

3.21 It is also the case that the problems currently being encountered arise not from the role or performance of the land boards, but rather from the inadequate procedure by which the respective domains of the Local Court and local land boards in resolving disputes under the Dividing Fences Act are determined. The Commission is of the opinion that the use of both the Local Court and the local land boards optimises expertise in the resolution of disputes over fences and that their sharing of jurisdiction can operate successfully where their respective roles are properly defined.

3.22 As the problems encountered with the present Act indicate, any statutory provision which attempts to define the demarcation between Local Courts and local land boards must be precise and readily ascertainable. Any uncertainty in such an approach will only prevent the speedy resolution of disputes. The Commission has considered a number of ways of defining a division of jurisdictions using an appropriate criterion such as geographical location or land use. After examining the various statutory means of distinguishing between urban and rural land in local government and environmental planning law, we have decided that they are not sufficiently precise for jurisdictional purposes. Instead, we have preferred a system which avoids the need for precise definition in the statute by allowing one tribunal to transfer proceedings to another - from a Local Court to a local board or vice versa - if it is satisfied that such a transfer is appropriate according to specified considerations. This approach follows that recently adopted in all Australian jurisdictions to resolve problems where State and Federal courts have parallel or dual jurisdiction.¹³

3.23 The Commission recommends that:

Disputes under the Dividing Fences Act should be capable of being brought before either a Local Court or a local land board; but where an application is pending in one type of tribunal it may be transferred to the other. A tribunal should be able to transfer a pending application where it appears to that tribunal that it is more appropriate that the other tribunal should hear the application, considering both the subject-matter of the application and the nature and composition of the tribunal to which the application is proposed to be transferred. A tribunal which has a pending application transferred to it under this provision should not be able to transfer it to another tribunal. The transfer should be final and not subject to appeal or review in any way.

This approach has the advantage of providing a unified though flexible system which allows either tribunal to finally determine a dispute according to the particular circumstances and requirements of the case. In most circumstances, the effect of this provision would be to give the applicant the choice of forum. However, both the respondent and the tribunal first approached would be able to initiate a preliminary inquiry into whether it is better for the other tribunal to hear the matter. This inquiry would be brief and conclusive; it would not require an examination of the merits of the case. It would be open to the tribunal hearing an application for transfer to refuse to do so on the ground that it was an equally appropriate tribunal to hear the matter.

B. Factors for Judicial Consideration: Definition of “Sufficient Fence”

3.24 The operation of s7 of the Dividing Fences Act depends on whether the adjoining lands in question are divided by a “sufficient fence”. What constitutes a sufficient fence for the purposes of the Act is nowhere defined, and the Commission received several submissions suggesting that a definition be included in the Act. One solicitor said that without such a definition, it is difficult for owners and practitioners to determine whether an existing fence is sufficient and therefore whether action under the Dividing Fences Act is likely to succeed. The greatest problems in this respect occur when the adjoining owners use the lands for different purposes, for instance where residential land abuts land used for grazing livestock. In these circumstances the existing fence may be sufficient for the purposes of one owner, but not for the purposes of the other.

3.25 Various attempts have been made to define a “sufficient” or “adequate” fence for the purpose of dividing fences legislation in other jurisdictions, either by a list of acceptable types of fence or by some general standard, such as whether it can resist the trespass of cattle or is sufficient for the purposes of the adjoining owners.¹⁴ The result has been either too restrictive or too vague to provide any real guidance. The Commission regards the approach taken in the Northern Territory’s Fences Act 1972 as preferable. It provides that where a court has to determine what is a sufficient fence under the Act, it shall take a list of specified items into account. As the fencing needs and uses of adjoining owners vary considerably, this approach has the benefit of allowing magistrates and land boards a degree of flexibility while directing them to take into account a number of factors. The differential weight to be attached to each factor will vary in each case and may be adjusted by the adjudicator. While this approach will not give an exact answer when a party wishes to determine whether a particular fence is sufficient, it should allow them to come to a reasonably informed conclusion.

3.26 The Commission recommends that:

The Dividing Fences Act should be amended so that where a court or local land board has to determine what is a sufficient fence for the purposes of the Act, the court or board should have regard to all the circumstances of the case, including:

(a) the kind of fence usual in the locality;

(b) the purposes for which both adjoining lands are used or intended to be used;

(c) any policy or code relating to fences which has been adopted by the local council in which the adjoining lands are situated;

(d) the privacy of the occupiers of the adjoining lands;

(e) any relevant rule, regulation, by-law, order or environmental planning instrument relating to the adjoining lands or the locality in which they are situated.

In making these recommendations, the Commission has taken into account the major complaints received from individuals and practitioners. The first two factors already exist in s9(4) of the Act. The third and fifth are included because both individuals and local councils indicated uncertainty at the relationship between the Dividing Fences Act and codes or policies of local councils (see para 3.48 below). The fourth factor, privacy, has been included because a number of cases have been brought to the attention of the Commission which suggest that decisions are sometimes made by magistrates in residential areas which fail to take account of the privacy needs of owners. In one case, a magistrate ordered that a 1.2m-high “cyclone” wire mesh fence be built along the side boundary of two properties, against the preferences of both parties, when the main reason for the plaintiff desiring a fence was the protection of his privacy. The Commission considers that privacy is one of the main purposes of fencing in urban areas, and that the law should reflect the interests of owners in this respect.

C. Non-Judicial Methods of Dispute Resolution

1. Agreement

3.27 The Dividing Fences Act requires that, where an owner wants the adjoining owner to contribute towards the cost of the construction of a fence, they should serve that owner with a notice to fence. Where the adjoining owners have agreed to the construction of a fence and one party has reneged on the obligations under the agreement, s10 provides a simple form of redress. However, there is no established form for either the notice or an agreement. The Commission believes that the absence of such forms is an impediment to the settlement of fencing disputes. Drafting such documents in terms which comply with the requirements of the Act and fulfill the needs of the parties often requires the assistance of a solicitor, thus incurring additional trouble and expense. The language in which such documents are phrased can be excessively legalistic and impersonal, while the intervention of a legal advisor during the early stages of negotiation may hamper the prospects of arriving at an amicable agreement.

3.28 In the view of the Commission, these problems can best be met by standard forms for both the notice to fence and a fencing agreement. While the exact wording of these forms should not be compulsory, since the diversity of situations in which fencing work is undertaken is great, the Commission considers it appropriate to include recommended versions in regulations under the Act. To this end, a draft form of fencing notice and a draft fencing agreement have been devised and are contained in Appendix B. They should be included in a pamphlet which contains information on the Dividing Fences Act and can be completed by an owner and sent to the adjoining owner without the need for legal advice. Pamphlets could be made available at the offices of chamber magistrates, legal centres, local councils and community justice centres. The agreement is also designed so that it can be completed by a fencing contractor or used to frame the outcome of a mediation at a community justice centre. The Commission therefore recommends:

That the recommended form of fencing notice and fencing agreement contained in Appendix B should be included in regulations made under the Dividing Fences Act and should be sufficient for the purposes of the Act. They should also be incorporated into an informative pamphlet on the Act and be made widely available.

2. Mediation

3.29 The Commission recognises that non-judicial methods of dispute resolution have an important contribution to make in the area of fencing disputes. There will often he a personal element in disputes between neighbours and therefore a dispute which ends up in court is not infrequently a by-product or symptom of a more wide-reaching problem in the neighbours’ relationship. Thus the New South Wales Community Justice Centres, in a letter to the Commission on their experience with disputes over fences, noted that “in many of the ‘fence’ disputes, the fence was a convenient way of punishing the other party for earlier real or imagined wrongs”.¹⁵

3.30 Where disputes are of a personal nature, the conventional court system will often be unable to provide a lasting resolution. A court can only concern itself with the specific dispute before it and must ignore any background conflict of which the litigated dispute is a symptom. In these cases, non-judicial methods of dispute resolution such as mediation can often prove to be beneficial. Community justice centres provide for the mediation of disputes in New South Wales and their workload includes a large number of disputes over fences (see para 1.1). Parties to a fence dispute either approach the centres directly or come at the suggestion of solicitors, legal centres or Local Courts. The community justice centres by most accounts work very successfully, and the Commission considers that any changes in this area should be directed to assisting the centres in carrying out their work.

3.31 It was suggested to the Commission that magistrates should be given the power to compulsorily refer disputes over dividing fences to the community justice centres. At present, magistrates can only adjourn matters and suggest to the parties that they attend a mediation session. Compulsory mediation would certainly be of practical advantage in getting parties to a dispute to attend a mediation session. However, the issue of compulsory mediation raises jurisprudential and practical issues and the Commission believes that it would not be appropriate to consider the matter on an ad hoc basis in the area of dividing fences. Accordingly, the Commission declines to make any recommendations on that issue in this Report.

3.32 A further issue concerns a problem which can occur where disputes over dividing fences are mediated at a community justice centre. Agreements reached at community justice centres are not binding or admissible in court.¹⁶ Therefore, where a party relies on a mediated agreement and carries out fencing work, that party cannot then recover a contribution if the other party reneges on the agreement. This has occurred in a number of cases and the Commission considers that this problem must be addressed in order that the confidence of parties in agreements reached at community justice centres is not undermined. The Commission therefore makes the following recommendation:

Any agreement relating to fencing work under the Dividing Fences Act and reached at or pursuant to a mediation session at a community justice centre should be admissible and binding in court.

3. Arbitration

3.33 At present, magistrates cannot refer matters under the Dividing Fences Act to arbitrators constituted under the Arbitration (Civil Actions) Act 1983.¹⁷ The Commission is aware that arbitration has proved successful in civil actions which would otherwise be determined in the Courts, and believes that this form of dispute resolution should also be an available option for magistrates hearing dividing fence matters which have failed to be resolved by conciliation or mediation. Civil arbitration has potential for the development of expert adjudication in a relatively informal manner away from the hectic confines of a court. The Commission therefore recommends that:

Magistrates should be able to refer matters under the Dividing Fences Act to arbitrators under the Arbitration (Civil Actions) Act 1983.

The availability of this procedure for disputes over boundary fences may encourage the formation of a panel of solicitors with expertise in such areas as local government, town planning, surveying or building to determine such disputes.

D. Rights of Appeal

3.34 Normally, where the statute under which proceedings are taken allows, a party may appeal from decisions of the Local Court. Section 122 of the Justices Act 1902 provides that a person subject to the conviction or order of a magistrate may appeal to the District Court. Similarly, slY of the Crown Lands consolidation Act creates a right of appeal from decisions of local land boards to the Land and Environment Court. However, since s9(5) of the Dividing Fences Act states that “any order of the local land board or Local Court made under this section shall be final”, these avenues of appeal are not available for orders concerning the construction of fences.

3.35 Competing factors bear on the issue of appeals. On the one hand, the sums involved in disputes over fences will often be quite small and may not justify a right of appeal. Further, a right of appeal may prolong conflict between neighbours and introduce substantial delays. Against this, however, must be weighed the potential for injustice which a lack of appeal rights gives rise to. In one case brought to the Commission’s attention, a mail delay meant that a solicitor did not receive notice of the hearing date of a dividing fences matter and was not able to present his client’s case. The matter was dealt with ex parte and there was no opportunity for relisting or appeal. The client was forced to seek an injunction from the Supreme Court to restrain enforcement of the magistrate’s order, incurring considerable costs.

3.36 Despite the exclusion of appeals, there may still be modes of redress under the Justices Act. Sections 101-111 enable a dissatisfied party to proceedings to request a magistrate to refer a stated case to the Supreme Court when a difficult question of law is involved, and also allow the Supreme Court to intervene if a magistrate refuses to refer such a case. Section 112 creates a statutory form of prohibition, which allows the Supreme Court to restrain a magistrate from enforcing or proceeding with a court order. Where a magistrate has refused to exercise a duty, for example by dismissing a claim, the Supreme Court is given power under s134 to issue a statutory form of mandamus, which directs the magistrate to perform that duty. Such hearings are in the nature of an appeal, although they do not involve a full re-hearing of the matter.¹⁸ These remedies are available only in limited circumstances. The Supreme Court may restrain or amend a magistrate’s order where it was unsupported by evidence, based on findings of fact which reasonable persons could not conclude from the evidence, or affected by a fundamental error of law which prevents the relevant facts from determined.¹⁹ Statutory prohibition may also be available where a magistrate has denied a party the right to a fair hearing. Although this power is uncertain, the Supreme Court can issue a similar prerogative remedy at common law where an application for statutory review has been made.

3.37 The Commission regards the provision of a full system of appeals, including re-hearing on questions of fact, as inappropriate for dividing fence matters. Such a system would allow many disputes to become protracted and costly, while removing the finality that is essential for those cases where resolution can only be obtained by judicial proceedings before the Local Court or land board. However, we see no reason why appeals limited to questions of law would derogate from the principle of simplicity in dividing fences cases. The existing forms of review made available by the Justices Act are adequate for this task. The inclusion of these forms of redress within the Dividing Fences Act would also have the benefit of bringing appeals in fencing matters into conformity with those provided for general civil litigation in the Local Courts. However, normal civil appeals do not specifically include statutory mandamus, which the Commission believes should be available for appeals under the Dividing Fences Act. The Commission therefore recommends that:

There should be included in the Dividing Fences Act a provision explicitly allowing a party to appeal to the Supreme Court where the decision of a Local Court or local land board is erroneous in point of law. This remedy should be in similar terms to that provided by s69 of the Local Courts (Civil Claims) Act, but should also include statutory mandamus under s134 of the Justices Act.

V. APPORTIONMENT OF COSTS FOR FENCING WORK

3.38 Section 7 of the Dividing Fences Act states that:

the owners of adjoining lands not divided by a sufficient fence shall be liable to join in or contribute in equal proportions to the construction of a dividing fence between such lands.

Similarly, s13 states that:

Whenever any dividing fence is out of repair the owners of land on either side thereof shall be liable to join in or contribute in equal proportions to the repair of such fence.

Thus, the Dividing Fences Act provides that where fencing work is required, there is to be an equal apportionment of the cost between the adjoining property owners.

3.39 The Commission received a number of submissions concerning the apportionment of costs for fencing work. In these submissions the claim was often made that the mandatory 50-50 apportionment of costs can lead to injustice since it is inflexible and does not allow the courts or land boards to exercise discretion in tailoring their orders to the situations before them. For example, cases often arise where one neighbour desires to construct a “better quality” fence than the other neighbour who would be content with a paling fence. In such cases, since there can only be an equal contribution to the cost, the order of the court or land board will invariably be for the cheaper fence and the wishes of the party seeking a more elaborate fence will be thwarted. Similar problems arise where a landowner creates the need for a special, more expensive fence because of particular activities which take place on his or her land. An example of this is where a swimming pool fence is also the boundary fence. In these cases the adjoining landowner could avoid making any contribution even though some benefit was derived from the fence.

3.40 In other jurisdictions the solution to this problem has been to allow the Court to apportion liability for fencing costs between the adjoining owners. For example, the current South Australian Act does not make any general statement as to contribution but allows a local court to “determine the cost of fencing work and the persons by whom and the proportions in which the cost is to be borne”.²⁰ This approach was adopted in New Zealand, following the Property Law and Equity Reform Committee’s report on the Fencing Act.²¹ The Committee thought that it would be fair for a court to depart from the principle of equal contribution where one occupier had completely changed the use of his or her land, so that the existing fence was no longer adequate. In such cases the Committee believed a court should have the power to order that the party who had changed their land use should pay the whole or the greater part of the cost of the new fence. In Victoria, contribution is determined in certain specific circumstances by the type of fence which is sufficient for each party’s purposes, while in all other cases it is left to the court to determine in what proportions the cost is to be met by either party.²²

3.41 A variant of this approach has been taken by the Law Reform Commissions of Western Australia and Tasmania. Both these bodies have recommended that the tribunal should determine the cost to be borne by each adjoining owner according to their respective needs and their benefit from the proposed fence; but that in the absence of proof to the contrary, it should be presumed that each owner has equal needs and will benefit equally.²³ Neither of these reports has yet been implemented by legislation. In brief, the solution taken in South Australia and Victoria involves giving the tribunal complete discretion in apportioning contribution. The modification recommended in Western Australia and Tasmania sets up a rebuttable presumption of equal need and benefit, and therefore of equal contribution.

3.42 The Commission is not convinced that either of these approaches is a useful improvement on the equal contribution rule. Strict equal apportionment at least has the advantages of simplicity and predictability. Relaxing this rule would increase the likelihood of litigation. It would also be difficult in practice to evaluate the existing need and expected benefit since both factors are highly subjective in content. Instead, to prevent injustice arising from the inflexibility of the present contribution rule, we propose limiting the contribution recoverable under the Act to half the cost of a sufficient fence. We have already recommended in para 3.26 that the concept of a sufficient fence be retained for the purpose of determining whether fencing work is required in particular cases. The Commission also believes that this concept should serve as a standard limiting the contribution which an adjoining owner is, in the absence of agreement, obliged to make under the Dividing Fences Act. We therefore recommend that:

The liability of owners under the Dividing Fences Act should be limited to half the expense of fencing work which would result in a sufficient fence dividing their properties. In the absence of an agreement, the cost of any further fencing work involving the creation of a fence of a higher standard than a sufficient fence should be borne by the owner desiring that higher standard.

This accords with the general principle stated in para 3.1 that the Dividing Fences Act should encourage agreement between adjoining owners. Thus an owner who wants a fence of better quality than a sufficient fence would be encouraged to seek an agreement with the adjoining owner to share the additional cost. The proportions in which this extra cost is borne would be left to the owners. If no agreement can be reached, perhaps after mediation, the owner proposing the better fence would either pay for the additional cost or accept a lower standard.

3.43 This recommendation also reflects the Commission’s belief that the statutory liability to contribute towards fencing costs should be confined to a minimum standard. Itwould be unjust, in our opinion, to allow a court or land board to require a landowner to pay for improvements that are neither needed nor wanted. The standard of “sufficient fence” is still flexible enough to allow the minimum to be adjusted to suit the particular needs and obligations of the owners. In the majority of cases in built-up areas, the minimum standard would be satisfied by the normal wooden paling fence. In rural areas a sufficient fence would normally be one of the usual wire and steel star post configurations used to contain sheep or cattle, although this would vary with topography, soil type and land use. In practice, therefore, the recommendation would not affect the majority of landowners or radically change the current law.

VI. PLANNING AND LOCAL GOVERNMENT ISSUES

3.44 A common complaint with the Dividing Fences Act is that it makes no allowance for aesthetics and the development of alternatives to the usual five foot paling fence. A number of submissions also raised the problem that no express provision is made in the Act for token or no-fence options and that the Act fails to take into account local government requirements as to fences.

3.45 Local councils have the power to deal with planning aspects of fencing under Part XI of the Local Government Act. Under that Part, dealing with building regulation, councils nay control the erection of buildings in urban areas, while a building may not be erected or altered unless the approval of the council has been obtained beforehand.²⁴ Since “building” is defined widely in Part XI to include “any substantial structure or any part thereof”, these general powers include control over the construction, alteration and repair of fences.²⁵ In addition, a local council is required, when considering a building application, to take into account the “height, materials, stability, design and position of fences to be erected”.²⁶ Local authorities may enforce these powers by fine and have additional powers to order a dilapidated or dangerous fence to be demolished or repaired.²⁷

3.46 In order to gauge the activities and problems of local councils in dividing fence matters, the Commission sought their views through the Local Government and Shires Associations.²⁸ The responses indicate that while most councils regulate front fences in residential areas for streetscape planning purposes, relatively few controls are placed on boundary fences behind the building line. However, councils are increasingly exercising their powers by the formulation of comprehensive codes covering the construction of fences in their localities. These generally state that council approval is required only if the proposed fence exceeds a specified height (usually 1.8m) or is of masonry construction or unusual design. Some councils have also established minimum standards for the type and materials of fences to be constructed in their areas.

3.47 Many councils expressed the view that they are not appropriate bodies for the resolution of fencing disputes between neighbouring landowners. A notable exception is Randwick Municipal Council which requires a building application in contentious cases and attempts to reconcile any differences. The Commission appreciates the reluctance of councils to become involved in neighbourhood disputes, since this task may require resources which they do not possess at present. However, the Commission believes that local councils can play a significant role in minimising disputes between neighbours over fences by formulating fencing policies which establish standards appropriate to the locality and require building approval where the proposed fence is of exceptional height or unusual design. In many cases the mere existence of ascertainable limits will discourage an owner from insisting upon an extravagant construction and promote agreement when there is doubt as to the standard appropriate to a locality. Ideally, a local council should also require evidence of the consent of the adjoining owner before it grants a building application for a fence on or near the boundary. The Commission does not expect that fencing codes such as those described in para 3.46 will overburden local councils, since those councils most active in the regulation of backyard fences reported that disputed cases are rare.

3.48 The Commission regards as appropriate the present system whereby local councils are empowered to deal with the planning aspects of fences while the Dividing Fences Act is concerned with financial contribution. These planning powers are vested in councils because of their ability to establish local planning requirements and supervise their enforcement. There are appropriate procedures for consultation, deliberation and appeal to the Land and Environment Court under this system. The inclusion of planning requirements in the Dividing Fences Act would not accord with the scheme and purpose of the Act which is designed to establish procedures for determining and obtaining contribution to the cost of fencing work by adjoining owners. While most councils contacted did not believe that this current demarcation constrains their ability to set standards for fencing, there appears to be some confusion as to the scope of the Dividing Fences Act. Many people, among them officers of local councils, believe that it regulates all aspects of boundary fences, including those which have been reserved to local councils.

3.49 There is also the problem of conflict between the Act and council determinations or policies if, for example, a magistrate ordered the construction of a fence which was not in accordance with the local council’s minimum standards. Although the council’s policy would prevail in such circumstances since it operates as delegated legislation, the Commission thinks it is appropriate for the Dividing Fences Act to direct the attention of magistrates to local government requirements when making a determination under the Act. This is achieved in Western Australia’s Dividing Fences Act by defining a sufficient fence in terms of any fence prescribed by a local government by-law as a sufficient fence.²⁹ However, similar powers are not vested in local councils in New South Wales, and the current practice by councils of issuing guidelines or minimum standards is preferable to strict requirements because it allows for flexibility and choice by adjoining owners. The Commission has recommended in para 3.26 that magistrates should take into account local government fencing policies when determining what is a sufficient fence” for the purposes of the Dividing Fences Act. That recommendation adquately resolves the problem.

3.50 A further possible conflict between the Dividing Fences Act and local government powers may arise when a council designates a “no fence” area. Such areas are sometimes established for reasons of streetscape aesthetics and prevent the construction of fences forward of the building line. The Commission believes that in such situations the Dividing Fences Act should unequivocally provide for a “no fence” order. Therefore it recommends that:

The Dividing Fences Act should allow a Local Court or local land board to order that, in the circumstances, no fence shall be built as to all or part of the boundary of the adjoining lands in question.

VII. WHERE NO CONTRIBUTION IS SOUGHT

3.51 One of the original complaints which prompted the Commission to seek a reference on the law relating to dividing fences came From a resident of Lavington. The correspondent wrote that while she was away her neighbours built a 3m high brick wall, apparently on their own property but near the boundary between the two properties. As the neighbours did not seek contribution from her, she was unable to take any action under the Dividing Fences Act. She approached Albury City Council, which informed her that it did not require the submission of plans for approval of the erection of fences between adjoining properties. Apparently, the Council refrained from regulating the construction of boundary fences because it regarded the Dividing Fences Act as the most effective means of controlling such matters. In her letter to the Commission, the correspondent intimated that the Act should be changed so that adjoining owners must in all circumstances be informed of any intention to build a fence near the boundary line.

3.52 The Commission has received a number of submissions concerning the erection of fences in similar circumstances. Typically, the complainant returned home after a short absence to find that a fence, sometimes an unusually high brick one, had been constructed without prior notice and without council approval. Local councils have been unconcerned about the erection of such structures or have approved them after their construction. The Dividing Fences Act does not assist in these circumstances. It is silent about the ownership of fences and establishes rights between adjoining owners only when one of them wants the other to contribute towards the construction or repair of the dividing fence. Similarly, the common law does not prevent a landowner doing anything on his or her own land which does not interfere with recognised common law rights of others. The common law also provides that a structure which is erected on a person’s land becomes part of that land and therefore belongs to the landowner. Hence if a fence is constructed exactly on the boundary, half the fence will belong to each adjoining owner,³⁰ although on demolition the ownership of the materials of the fence will revert to the persons who had supplied them.³¹ Therefore, in the absence of planning controls and such interference with their rights of enjoyment of their land as would constitute the tort of nuisance, a landowner has no remedy at law when a boundary fence is built on the neighbour’s land. If the fence or wall partly intrudes on their land, the complaining neighbour may apply to the Supreme Court for an order under the Encroachment of Buildings Act 1922, which may include demolition of the structure.

3.53 The Commission believes that the type of problem mentioned in para 3.51 cannot be addressed adequately by amendment of the Dividing Fences Act. Apart from falling outside the scope of the Act, a general requirement to give notice to an adjoining owner before constructing a dividing fence would be difficult to enforce through an effective and appropriate remedy. Most jurisdictions in the United States have “spite fence” laws, established either by statute or by an extension of the tort of nuisance, which prohibit the erection of a fence by defendants on their own land with the dominant motive of annoying or injuring the adjoining owner and with no use or benefit to the defendant.³² Under these laws a court may award monetary damages in compensation or issue an injunction ordering the offending fence to be removed. However, such laws would not remedy the problems which have been brought to the Commission’s attention. The Commission regards these as essentially planning problems, since they arise when the local council fails to exercise its building regulation powers, which include approval for the construction of fences. The aggrieved adjoining owner may well have a remedy in taking proceedings against the council before the Land and Environment Court. Therefore, the Commission does not make any recommendations in this area.

VIII. LIABILITY OF THE CROWN AND OTHER PUBLIC BODIES

3.54 At present many government bodies are exempted from liability for contribution under the Dividing Fences Act. It is a general rule of statutory interpretation that the Crown is not included in the operation of a statute except by express words or necessary implication.³³ Where a statute is silent on the matter, it does not bind the Crown unless the apparent purpose of the statute would be wholly frustrated by excluding the Crown from liability.³⁴ A statutory authority may rely on the immunity of the Crown if this clearly appears to have been the intention of the legislature as shown in the statute constituting the body.³⁵ As the Dividing Fences Act does not expressly bind the Crown or depend on Crown liability for its operation, a private owner cannot compel a government department or a statutory authority to contribute towards the cost of constructing or repairing a fence which divides their adjoining properties. When the Act was originally debated in Parliament, the reason given for this exemption was that it would be improper to require the Crown to pay for the cost of fencing large areas of unoccupied Crown lands from which it derived no benefit.³⁶

3.55 One exception to this general position is where work is authorised to be undertaken under the Public Works Act 1912. In such cases, the authority responsible for constructing the works is required to erect and maintain fences sufficient to separate the land taken or used for the public work from the adjoining lands.³⁷

3.56 A further exemption of public bodies from liability under the Dividing Fences Act arises from the definition of “owner” in s5. The Act applies only to parties who come within this definition, which expressly states that it

does not include any trustees or other persons in whom any land is vested as a public reserve, public park or for such other public purposes as may be prescribed or any person who has the care, control and management of any public reserve, public park or land used for such other public purposes as nay be prescribed.

Thus local councils and similar public bodies are liable under the Act unless the land involved is a public reserve or park.³⁸ No other purposes have been prescribed by regulation. In addition, while s232 of the Local Government Act 1919 vests ownership of public roads in local councils, it expressly excludes them from liability under the Dividing Fences Act. Hence local councils are not required to contribute towards the cost of fences which adjoin public roads. The Maritime Services Board is also exempt from liability under the Act in respect of sea retaining walls bounding property vested in the Board.³⁹ This includes the bed of Port Jackson, which is owned by the Board.

3.57 The Commission received several letters complaining that the exemption of public bodies from the Act imposed an unjust burden on adjoining private land owners. The most common complaints concerned fences between private houses and suburban parks owned or controlled by local councils. Submissions were also received from rural landholders who were concerned at the influx of animals from Crown lands, particularly national parks, on private grazing land in the absence of adequate vermin-proof fencing.

3.58 While they are not bound to contribute towards the cost of fencing boundaries with private landowners, some public bodies already do so. Apart from its obligations under the Public Works Act and the various railway construction Acts, the State Rail Authority makes ex gratia payments towards the cost of providing standard paling fences, particularly where railway lines run adjacent to residences. The Forestry Commission often bears the cost of fencing boundaries between state forests and private land where it considers the work to be in its interests, and may also allow adjoining landowners to cut timber from a state forest for fencing purposes. Since 1972 the National Parks and Wildlife Service has often provided the whole or part of the cost of materials for fencing the boundaries of national parks, including the erection of sophisticated fauna-proof fences, for wildlife management or ethical reasons. Of the local councils in the Sydney region which responded to the Commission’s request for information, almost half reported that they made ex gratia payments to owners of land next to parks and reserves as a matter of policy.⁴⁰

3.59 The major property-owning state government departments also do not rely on their legal exemption. The Department of Agriculture usually shares the cost of fencing its research stations and other properties with its neighbours in order to maintain good public relations. The Department of Education has advised that it is departmental policy to fence operating schools, and that it also relies upon the Dividing Fences Act to claim contribution from adjoining owners unless it is satisfied that the neighbour is unable to pay. The Department of Family and Community Services generally pays half the cost of boundary fences, sometimes meeting the total cost where the Department has special needs.

3.60 As most government bodies already contribute towards fencing costs as a matter of policy, the Commission sees no reason why the existing practices should not be the subject of a positive legal obligation. If the private landowner is entitled as a matter of fairness to have the public landowner share the cost of fencing, then his or her entitlement should be protected by legislation, rather than being dependent upon the discretion of the Crown. There is always the possibility that a system of ex gratia payments will be administered arbitrarily or inconsistently.

3.61 Several public bodies, including local councils, the Crown Lands Office of the Department of Lands, the National Parks and Wildlife Service and the Forestry Commission, made submissions which indicated that any amendment requiring them to contribute towards the fencing of land owned by them would result in enormous costs that they would be unable to meet from their present budgets. The Commission accepts that the cost of fencing all public lands throughout the state would be an onerous and unnecessary financial burden, considering that a large proportion of the state consists of vacant and unalienated crown land. However, the Commission considers it inequitable to impose the whole cost of fencing on the private owner adjoining publicly-owned land in all circumstances.

3.62 Problems arise when attempting to define reasonable and practicable limits to the liability of public bodies. In the case of fencing legislation, three approaches have been implemented or recommended in Australasian jurisdictions.

• In South Australia, s20 of the Fences Act 1975 expressly binds the Crown in respect of liability under the Act but effectively limits this liability to parcels of land of one hectare or less in area.
• The New Zealand approach is to bind the Crown with the exception of roads, national parks, land for railway purposes and land reserved by the sea, lakes, rivers and streams. Local authorities are not exempt from liability, and bodies vested with control of public reserves are specifically included in the definition of “occupier”, thus imposing general liability.⁴¹
• In its Report on Dividing Fences, the Law Reform Commission of Western Australia recommended that local authorities, the Crown and statutory bodies entitled to the immunity of the Crown should only be liable for contribution to the cost of construction and repair of fences adjoining “land in a residential locality on which a private dwelling house is erected or being constructed.” However, the Western Australian Commission further recommended that this liability be limited to fences constructed in the future.⁴³

3.63 Given that most complaints have come from residential areas and that the cost of fencing large tracts of waste Crown land would be prohibitive, the Commission regards an approach similar to that recommended for Western Australia as most appropriate for this State. There are, however, considerable difficulties in adequately defining a “residential locality” or in leaving the question of liability to the discretion of a Local Court or local land board. Instead, the means by which local councils are assigned the power to control and regulate the erection of buildings, under Part XI of the Local Government Act 1919, has been adopted. Part XI limits this power in relation to cities and municipalities as well as parts of shires which have been proclaimed for that purpose, including areas proclaimed as towns, villages and urban areas. In practice this will include most built-up areas and exclude lands for which the public body could derive no conceivable benefit from fencing. Since this solution is capable of arbitrariness and discrimination against rural landholders, the Commission also believes that there should be additional means for defining public land to which the Dividing Fences Act applies. To allow other areas to be included within this regime, there should be power within the Act to prescribe further regions by regulation. Liability should also extend in relation to small parcels of land, which may not be included in proclamations under the Local Government Act. Hence the Commission recommends that:

The Dividing Fences Act should bind the Crown and public authorities (including local councils) where land owned by the is:

(a) situated in a city, a municipality, or the whole of part of a shire in which the shire council may regulate the erection of buildings under Part XI of the Local Government Act 1919; or

(b) less than one hectare in area; or

(c) prescribed by regulation as subject to the Act.

However, the Commission believes that the present exemptions of local councils in respect of public roads and the Maritime Services Board in respect of sea retaining walls (mentioned in para 3.56) should be retained since they legitimately exclude structures which are not true dividing fences, and recommends that the Dividing Fences Act should not affect s232 of the Local Government Act 1919 or s13TC of the Maritime Services Act 1935.

FOOTNOTES

1. New South Wales Parliamentary Debates, Legislative Assembly, 2nd ser vol 195, 15 May 1951 at 1972-1973.

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

3. [1961] NSWR 1071 at 1076; (1961) 78 WN 598 at 602.

4. [1981] WAR 157; see also Hennessey v Petrie (1977) 4 Queensland Lawyer 242.

5. Lengyel v Francis (1983) 6 Petty Sessions Review 2833 (case stated to Supreme Court of New South Wales).

6. [1978] Tas SR 56.

7. At least this is the test adopted by the New Zealand courts: Tibbits v Gerrand (1896) 14 NZLR 678; McSaveny v Smith (1905) 24 NZLR 245; an v Nelson [1959] NZLA 733. This approach was in Storey v Lockhart (1915) 11 Tas LR 163.

8. Report No 37 (1984) at 10.

9. (1957) 74 WN 189.

10. As the Local Court was then titled.

11. (1957) 74 WN 189 at 191.

12. (Unreported) No 2235 of 1981, 3 July 1981, Equity Division, Supreme Court of New South Wales, transcript at 3.

13. Jurisdiction of Courts (Cross-vesting) Act 1987; see Keith Mason and James Crawford “The Cross-vesting Scheme” (1988) 62 Australian Law Journal 328.

14. See Boundary Fences Act 1908 (Tas) s4; Fences Act 1924 (SA) s5 (repealed by Fences Act 1975); Dividing Fences Act 1961 (WA) s5; Fences Act 1968 (Vic) s4(1); Fencing Act 1978 (NZ) s2.

15. Letter dated 22 April 1983 from Wendy Faulkes, Director, New South Wales Community Justice Centres.

16. Community Justice Centres Act 1983 ss23(3), 28(5).

17. This is because magistrates’ powers to refer matters under the Arbitration (Civil Actions) Act 1983 are contained in the Local Courts (Civil Claims) Act 1970 s21H, and dividing fence matters are not initially brought under that Act.

18. Peck v Adelaide Steamship Co Ltd (1914) 18 CLR 167 at 181, 186.

19. Dunn v Shapowloff [1978] 2 NSWLR 235 at 237; affirmed (1981) 148 CLR 72; Hooper v Gorman [1976] 2 NSWLR 431.

20. Fences Act 1975 (SA) s12(2)(i).

21. Fencing Act 1978 (NZ) s24(l)(e); New Zealand Property Law and Equity Reform Committee The Fencing Act 1908 (1972) at 13.

22. Fences Act 1968 (Vic) s4.

23. Law Reform Commission of Western Australia Re ort on Fences (Project No 33, 1975) at 8-9, 39; Law Reform Commission of Tasmania Report on the Boundary Fences Act 1908 (Report No 37, 1984) at 9.

24. Local Government Act 1919 ss305, 311(1).

25. Williamson v Waterloo Municipal Council (1933) 11 LGR 73; R v Lowe (1954) 19 LGR 348, noted in (1955) 29 ALJ 16; Mills and Rockleys Ltd v Leicester City Council [19461 KB 315.

26. Local Government Act 1919 s313(l)(j). Section 318 of the Act also empowers the Governor to make ordinances regulating the construction, demolition and alteration of boundary fences and defining the rights of owners of adjoining lands in relation to such fences, although no such ordinances have been proclaimed.

27. Local Government Act 1919 ss317, 249(g)-(h), 317B; Public Health Act 1902, ss64-65.

28. A notice was published in the Local Government Association’s Circular No 15, November 1987. This requested copies of fencing policies and asked for comments on possible constraints on councils caused by dividing fences legislation, the relationship between local government planning powers and the Dividing Fences Act, councils’ attitudes towards the regulation of backyard fences, and policies on the apportionment of fencing costs when council properly adjoins private property. In all, 31 replies were received, 15 from Sydney metropolitan councils, ten from regional areas (containing a population centre of more than 8,000 inhabitants), and six from country areas.

29. Dividing Fences Act 1961 (WA) s5. This definition refers to by-laws made by councils under s210(e) of the Local Government Act 1960, which in turn allows councils to define what shall constitute a sufficient fence under dividing fences legislation.

30. Minister for Lands v Australian Joint Stock Bank (1900) 21 NSWLR 209; Walsh v Elson (1955) VLR 276; Botta v Pene (1910) 15 WLR 508. It is sometimes said that there are certain common law presumptions as to ownership of fences, such as that the owner is the one on whose side the posts and rails are placed. However, these are no more than inferences which would need to be established: see Halsbury’s Laws of England, 4th ed vol 4 at para 849.

31. Ex p Denney (1925) 42 WN (NSW) 12.

32. Hornsby v Smith (1941) 133 ALR 684 and annotations at a 691-720; Rapuano v Ames (1958) 145 A 2d 384; Sundowner v King (1973) 509 P 2d 785.

33. Commonwealth v Rhind (1966) 119 CLR 584 at 598, per Barwick CJ.

34. Province of Bombay v Municipal Corporation of the City of Bombay [19471 AC 58; China Ocean Shipping Co v South Australia (1979) 145 CLR 172 at 200, per Gibbs J.

35. Townsville Hospitals Board v Townsville City Council (1982) 149 CLR 282 at 289, 291.

36. New South Wales Parliamentary Debates, Legislative Assembly, 2nd Ser vol 195 at 1988.

37. Public Works Act 1912 s91(b); see above, para 2.29.

38. See also District Council of Noarlunga v Coventry [1967] SASR 71 where Walters J thought that the history and policy of the Fences Act 1924 (SA) indicated that Parliament had not intended bodies entrusted with the maintenance of public lands to be liable to contribute towards fencing costs. The South Australian Law Reform Committee subsequently recommended that the Act be amended in this respect.

39. Maritime Services Act 1935 s13TC.

40. See above, note 28.

41. Fencing Act 1978 (NZ) s3.

42. Law Reform Commission of Western Australia Report on Dividing Fences (Project No 33, 1975) at 21.