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DIVIDING FENCES BILL 1991
NEW SOUTH WALES
EXPLANATORY NOTE
(This Explanatory Note relates to this Bill as introduced into Parliament)
The object of this Bill is to replace the Dividing Fences Act 1951 with new
legislation designed to update and rationalise the law relating to dividing fences.
The Bill implements the majority of the recommendations of the New South Wales
Law Reform Commission as summarised in its Report entitled "Dividing Fences" of
December 1988 (Report LRC 59 1988). The Bill is based on the draft Bill contained in
Appendix A to that Report.
The main features of the Bill include the introduction of a single concept of "fencing
work" (which includes both the construction and repair of a dividing fence), a new
expanded definition of "fence" and the general principle that adjoining land owners are
liable to contribute in qual proportions to the carrying out of fencing work in respect of
a dividing fence of a standard not greater than the standard for a "sufficient dividing
fence". Most of the provisions of the existing legislation have been adapted and
modified by the Bill. The Crown, and other bodies such as local councils in respect of
certain land, will continue to be not bound by the legislation
PART 1--PRELIMINARY
Clause 1 specifies the short title of the proposed Act.
Clause 2 provides that the proposed Act commences on a day or days to be
appointed by proclamation.
Clause 3 contains definitions for the purposes of the proposed Act. In particular,
"fence" is given a wider meaning than in the existing Act and will include "Living"
fences such as hedges. "Fencing work" is defined to mean the design, construction,
replacement, repair or maintenance of a dividing face and the surveying or preparation
of land for such a purpose.
Clause 5 provides that the intervention of a road or watercourse between 2 parcels
of land does not prevent the owners of those parcels of land from being taken to be
adjoining owners if a fence on either side of the road or watercourse is used or is
capable of being used as a dividing fence by the owners.
PART 2-LIABILITY FOR FENCING WORK
Clause 6 provides that adjoining owners are liable to contribute to the carrying out
of fencing work that results in the provision of a dividing fence of a standard not greater
than the standard for a sufficient dividing fence. This provision applies whether or not a
dividing fence already separates the land.
Clause 7 provides that adjoining owners are liable to contribute in equal proportions
to the carrying out of fencing work in respect of a dividing fence of a standard not
greater than the standard for a sufficient dividing fence. However, the additional cost of
fencing work to meet a standard above that of a sufficient dividing fence will be met by
the owner wanting the better quality dividing fence.
Clause 8 provides that an owner who deliberately or negligently damages or
destroys a dividing fence (whether or not that act took place before the commencement
of the proposed section) will be liable for up to the whole cost of restoring the fence to
its state before the damage or destruction. The liability for damage caused by the
negligent or deliberate act of an owner arises also when it is the act of a person who
enters the land concerned with that owner's permission.
Clause 9 provides that an adjoining owner will be able to carry out fencing work in
respect of a damaged or destroyed dividing fence which requires urgent repair (for
example, to prevent the escape of livestock or for reasons of safety or security) without
serving a notice to fence. The other owner is to be liable for half the cost (or more if the
fence has been destroyed or damaged by the negligent or deliberate act of the owner).
Clause 10 expressly extinguishes any obligation that may exist under the common
law (for example, in relation to a fencing easement) to perform fencing work
PART 3--PROCEDURE AND IMPLEMENTATION
Clause 11 provides that an owner of adjoining land may require the other adjoining
owner to contribute to the carrying out of fencing work by serving a notice. The notice
must' specify the boundary line or other line proposed for the dividing fence, the
proposed type of fencing work and the estimated cost. An adjoining owner is not liable
to contribute to the cost of fencing work carried out before an agreement is made
concerning the work or before the matter has been determined by a Local Court or local
land board.
Clause 13 provides that a Local Court or local land board has jurisdiction hear
and determine matters arising under the proposed Act. As a preliminary step in
determining an application made to a Local Court or local land board under the
proposed Act, the Court or board may transfer the dispute to another tribunal
from
the Local Court to a local land board or from the board to a Court) if it is more
appropriate that the other tribunal determine the application because of the
subject-matter of the dispute. Such a transfer is final and not subject to review. The
clause also provides that a Local Court may refer the parties to an arbitrator under the
Arbitration (Civil Actions) Act 1983.
Clause 14 enables a Local Court or local land board to make orders about the
fencing work in dispute. For example, the court or board may make an order
determining the boundary or line on which the fencing work is to be carried out, how
the contributions for the work are to be apportioned, what kind of dividing fence is to be
constructed or what kind of work is required cm an existing dividing fence. The court or
board may order that no dividing fence is required in respect of the adjoining lands.
Clause 15 provides that if an agreement is reached or an order is made by the Local
Court or local land board and an adjoining owner fails to perform his or her obligations
within the time specified in the order or within 3 months, the other owner will be able to
carry out the work agreed on or determined by the order and recover the agreed or
determined amount (or half the cost of the work if no amount has been agreed or
determined) from the defaulting owner.
Clause 16 provides that substantial compliance with the terms of an order or
agreement is sufficient for the purposes of the proposed Act, subject to the owner who
performs the fencing work being liable to the other adjoining owner for any defect or
omission.
Clause 17 provides that, in the absence of an adjoining owner, a Local Court or
local land board may make an order authorising the carrying out of fencing work The
owner carrying out the work will be able, if the other adjoining owner's whereabouts arc
subsequently ascertained, to serve a copy of the order on that owner and recover that
owner's contribution as specified in the order of the Court or board.
Clause 18 deals with the procedure when adjoining owners do not agree on the
position of the common boundary line for the purposes of carrying out fencing work
Clause 19 provides that an order of a Local Court or local land board under the
proposed Act is final except for a right of appeal on errors of law.
PART 4--MISCELLANEOUS
Clause 20 enables an adjoining owner who carries out fencing work to enter the
land adjoining the dividing fence at any reasonable time for the purpose of carrying out
the work
Clause 21 provides that service of a notice by personal delivery or ordinary post is
sufficient.
Dividing Fences 1991
Clause 22 provides that leave may be granted to serve a notice demanding
contribution from an adjoining owner up to 12 months after the fencing work has been
carried out but only if the owner has mistakenly taken action in respect of the fencing
work under some other Act or the Local Court or local land board considers it just or
equitable to grant the leave.
Clause 23 enables a Local Court or local land board to award costs against either
party in proceedings under the proposed Act.
Clause 24 provides that any money required or liable to be paid is recoverable as a
debt in a court of competent jurisdiction.
Clause 25 provides that the Crown and local councils or other trustees in respect of
public parks, public resaves or public roads are not bound by the proposed Act.
Clause 26 provides that the proposed Act does not affect any covenant or any
contract or agreement between adjoining owners in respect of a dividing fence or
fencing work nor does it affect any law relating to retaining walls or casements of
support. Any provisions relating to fences in other Acts are also not affected by the
proposed Act.
Clause 27 enables the Governor to snake regulations for the purposes of the
proposed Act.
Clause 28 repeals the Dividing Fences Act 1951 and the Dividing Fences
Regulations 1957.
Clause 29 gives effect to the Schedule containing provisions of a savings and
transitional nature.
Clause 30 gives effect to the Schedule of amendments to other Acts.
Schedule 1 provides that certain matters arising under the Dividing Fences Act 1951
are to be continued under that Act as if that Act had not been repealed and provides that
references to the 1951 Act are to be read as references to the proposed Act.
Schedule 2 contains consequential amendments to other Acts.