General Principles

The Commission believes that disputes over fencing costs should be, settled by agreement rather than by litigation. Neighbouring owners should be encouraged to settle their disputes by negotiation, if necessary with the aid of a mediator. Judicial determination should be seen as a last resort, but where it becomes necessary adjudication should be simple, inexpensive and readily accessible to both parties. The Commission has also been guided by the principle that the basis of liability for contribution should be use of or benefit from the fence.

(paras 3.1-3.2)

Consolidation and Rationalisation of Acts

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

(paras 3.3-3.12)

Construction and Repair of Fences

2. The Dividing Fences Act should incorporate a single concept of “fencing work”, including the construction, replacement and repair of fences.

(paras 3.13-3.15)

Determination of Disputes

3. Disputes under the Dividing Fences Act should be capable of being brought before either a Local Court or a local land board. Disputes which are pending in either type of tribunal should be capable of being transferred to the other by a system of cross-vesting if appears to the tribunal before which the dispute is pending that it is more appropriate that the other tribunal hear the application. In making this decision the first tribunal should have regard to the subject-matter of the application and the nature and composition of the tribunal to which the application is to be transferred. Such a transfer should be final and not subject to appeal or review in any way.

(paras 3.16-3.23)

4. Where a court or land board has to determine what is a sufficient fence for the purposes of the Dividing Fences Act, it 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;

(c) a 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; and

(e) any relevant rule, regulation, by-law, order or environmental planning instrument.

(paras 3.24-3.26)

5. A party to proceedings under the Dividing Fences Act should be able to appeal to the Supreme Court where the decision of a court or land board is erroneous in point of law, on terms similar to those available for appeals from Local Courts in normal civil cases.

(paras 3.34-3.37)

Alternative Dispute Resolution

6. The recommended forms of fencing notice and fencing agreement contained in Appendix B should be included in regulations made under the Dividing Fences Act, as well as being incorporated into an informative pamphlet on the Act which should be made widely available.

(paras 3.27-3.28)

7. Where parties to a dividing fence dispute have attended a community justice centre and entered into an agreement at a mediation session, that agreement should be admissible and binding in court.

(paras 3.29-3.32)

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

(para 3.33)

Apportionment of Costs

9. 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.

(paras 3.38-3.43).

Planning and Local Government Issues

10. To allow the development of “no fence” areas a Local Court or land board should be able to order that, in the circumstances, no fence shall be built.

(para 3.50)

Liability of the Crown and Other Public Bodies

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

(a) situated in a city, a municipality, or the whole or part of a shire in which the shire council may regulate the erection of buildings under Part 11 of the Local Government Act 1919; or

(b) less than one hectare in area; or

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

(paras 3.54-3.63)