Part 3Procedure and
implementation
11Notice to carry out fencing
work
(1)
An adjoining owner may require the other
adjoining owner to contribute, under this Act, to the carrying out of fencing
work by serving a notice in writing to that effect on the other
owner.
(2)
The notice is to specify the following:
(a)
the boundary line on which the fencing work is
proposed to be carried out or, if it is impracticable to carry out fencing
work on the common boundary of the adjoining lands, the line on which it is
proposed to carry out the work,
(b)
the type of fencing work proposed to be carried
out,
(c)
the estimated cost of the fencing
work.
(3)
The owner serving the notice may propose that the
cost of the fencing work is to be borne otherwise than in equal proportions.
In such a case, the notice is to state the proposed
proportions.
(4)
The description of land in a notice need not
particularly define the land if it allows no reasonable doubt as to what land
is referred to in the notice.
(5)
An adjoining owner is not liable to contribute to
the cost of any fencing work in respect of a dividing fence:
(a)
carried out before a notice under this section is
served on the adjoining owner (unless section 9 applies or the notice is
served in accordance with section 22), or
(b)
carried out after the service of the notice on
the adjoining owner and before agreement is reached by the adjoining owners
concerning the fencing work (including the contributions to be made in respect
of the work) or before the matter has been determined by the Local Court or a
local land board.
s 11: Am 2007 No 94,
Sch 1.31 [1].
12Procedure when agreement not
reached
(1)
Adjoining owners may attend a Community Justice
Centre in an attempt to reach an agreement concerning the carrying out of
fencing work (including the contributions to be made in respect of the
work).
(2)
If adjoining owners do not agree (within 1 month
after one of them has served a notice under section 11) as to the fencing work
to be carried out, either owner may apply to the Local Court or a local land
board for an order determining the manner in which the fencing work (if any)
is to be carried out.
s 12: Am 2007 No 94,
Sch 2.
13Jurisdiction of Local Court or
local land board
(1)
The Local Court or a local land board has
jurisdiction to hear and determine any matter arising under this
Act.
(1A)
Despite subsection (1), only a local land board
has jurisdiction to hear and determine matters affecting land the subject of a
lease under the Western Lands Act
1901.
(2)
An application under this Act that is pending in
the Local Court or in a local land board may be transferred from the Court to
a board, or from the board to a Court, if it appears to the tribunal to which
the application was made that, having regard to the subject-matter of the
application and the composition and nature of the other tribunal, it is more
appropriate for the application to be determined by that other
tribunal.
(3)
The Local Court or a local land board which has
an application transferred to it under subsection (2) is to determine the
application.
(4)
A decision of the Local Court or a local land
board under subsection (2) is final and no proceedings, whether for an order
in the nature of prohibition, certiorari or mandamus or for a declaration or
injunction or for any other relief, are to lie in respect of the
decision.
(5)
The Local Court may refer the parties to
proceedings under this Act to an arbitrator within the meaning of Part 5 of
the Civil Procedure Act 2005, but only to
the extent to which that Act provides for such proceedings to be so
referred.
s 13: Am 1994 No 32,
Sch 1; 2005 No 28, Sch 5.14; 2007 No 94, Schs 1.31 [1] [2], 2, 3; 2009 No 9,
Sch 3.4 [3].
13AJurisdiction of Land and
Environment Court
(1)
The Land and Environment Court has jurisdiction
to hear and determine matters arising under this Act in proceedings to which
this section applies.
(2)
This section only applies if:
(a)
application for the exercise of the jurisdiction
is made in relation to proceedings under section 7 of the Trees
(Disputes Between Neighbours) Act 2006 that have been
commenced but not determined, and
(b)
the tree that is the subject of those
proceedings:
(i)
has caused, is causing, or is likely in the near
future to cause damage to a dividing fence, or
(ii)
is part of a dividing fence and has caused, is
causing, or is likely in the near future to cause damage to the
applicant’s property or is likely to cause injury to any
person.
(3)
The Land and Environment Court may, of its own
motion or on an application by a party to an application under this Act that
is before the Local Court or a local land board, transfer the application that
is pending in the Local Court or in a local land board to the Land and
Environment Court if:
(a)
the application is relevant to proceedings under
section 7 of the Trees (Disputes Between Neighbours)
Act 2006 that have been commenced in the Land and
Environment Court but have not been determined, and
(b)
the tree that is the subject of those
proceedings:
(i)
has caused, is causing, or is likely in the near
future to cause damage to a dividing fence, or
(ii)
is part of a dividing fence and has caused, is
causing, or is likely in the near future to cause damage to the
applicant’s property or is likely to cause injury to any person,
and
(c)
the Land and Environment Court is satisfied that
there is sufficient reason for the application under this Act to be heard and
determined by the Land and Environment Court.
(4)
An application that is transferred to the Land
and Environment Court under subsection (3) is to be continued in the Land and
Environment Court and determined by the Land and Environment Court as part of
the related proceedings under section 7 of the Trees (Disputes
Between Neighbours) Act 2006.
(5)
For the purposes of any proceedings to which this
section applies, a reference to the Local Court in this Act (except sections
13 (2), (3) and (4) and 19 (2) and (3)) is taken to include a reference to the
Land and Environment Court.
s 13A: Ins 2010 No
27, Sch 2.1.
14Orders as to fencing
work
(1)
The Local Court or a local land board may, in
respect of an application under this Act, make an order determining any one or
more of the following:
(a)
the boundary or line on which the fencing work is
to be carried out, whether or not that boundary or line is on the common
boundary of the adjoining lands,
(b)
the fencing work to be carried out (including the
kind of dividing fence involved),
(c)
the manner in which contributions for the fencing
work are to be apportioned or re-apportioned or the amount that each adjoining
owner is liable to pay for that work,
(d)
which portion of the dividing fence is to be
constructed or repaired by either owner,
(e)
the time within which the fencing work is to be
carried out,
(f)
the amount of any compensation (in the form of an
annual payment to either of the adjoining owners) in consideration of loss of
occupation of any land,
(g)
that, in the circumstances, no dividing fence is
required in respect of all or part of the boundary of the adjoining
lands.
(1A)
Despite subsection (1), no order may be made for
the carrying out of fencing work on critical habitat within the meaning of the
Threatened Species Conservation Act
1995 without the consent of the Director-General of
National Parks and Wildlife.
(2)
The occupation of land on either side of a
dividing fence, as a result of an order determining that fencing work is to be
carried out otherwise than on the common boundary of the adjoining lands, is
not taken to be adverse possession as against the owner or to affect the title
to or possession of the land, except for the purposes of this
Act.
s 14: Am 1995 No 101,
Sch 6; 2007 No 94, Sch 1.31 [2]; 2008 No 72, Sch 1 [4].
15Enforcement of agreements and
orders
(1)
If an agreement is reached by adjoining owners or
an order is made by the Local Court or a local land board and an adjoining
owner bound by the agreement or order fails within the required time to
perform his or her part of the agreement or to comply with the order, the
other adjoining owner:
(a)
may carry out the fencing work as agreed on or as
determined by the order, and
(b)
may recover from the defaulting adjoining owner
the amount agreed or ordered to be paid by that adjoining owner or (if the
agreement or order does not specify the amount to be paid) half the cost of
the fencing work carried out.
(2)
The required
time is the time specified in the agreement or order or, if
no time is specified, within 3 months after the making of the agreement or
order.
s 15: Am 2007 No 94,
Sch 1.31 [1].
16Substantial compliance
sufficient
(1)
Substantial compliance with the terms of any
agreement or order referred to in section 15 is sufficient for the purposes of
this Act.
(2)
However, the adjoining owner who carries out the
fencing work is liable to the other adjoining owner for any defect or omission
in the fencing work.
17Application for order in
absence of an adjoining owner
(1)
An adjoining owner may apply to the Local Court
or a local land board for an order, in the absence of the other adjoining
owner, authorising the carrying out of such fencing work as is specified in
the order (including the manner in which contributions for the work are to be
apportioned).
(2)
Such an order may only be made if the Court or
board is satisfied that the adjoining owner making the application has made
reasonable inquiries but has been unable to ascertain the whereabouts of the
other adjoining owner for the purposes of serving a notice under section
11.
(3)
An adjoining owner who carries out the fencing
work authorised by the order and who later ascertains the whereabouts of the
other adjoining owner:
(a)
may serve a copy of the order on the other owner,
and
(b)
is entitled, after 1 month from the date of
service, to recover from the other owner the proportion of that owner’s
contribution as specified in the order.
(4)
The adjoining owner served with a copy of an
order under subsection (3) may, within 1 month after being served, apply to
the Local Court or a local land board for a variation of the order and the
Court or board may vary the order in such manner as it thinks
fit.
s 17: Am 2007 No 94,
Sch 1.31 [1].
18Procedure for defining
boundary line
(1)
An adjoining owner may give notice in writing to
the other adjoining owner of his or her intention to have the common boundary
line defined by a registered surveyor if the owners do not agree on the
position of the common boundary line for the purposes of carrying out fencing
work.
(2)
The owner receiving the notice may, within 7 days
after service of the notice:
(a)
define the position of the common boundary line
by pegs if satisfied as to its position, or
(b)
employ a registered surveyor to define the common
boundary line,
and in either case is to inform the other adjoining
owner in writing of what has been done.
(3)
The owner giving the notice may have the common
boundary line defined by a registered surveyor if the owner to whom the notice
is given has, within 1 month after service of the notice, defined the common
boundary line by pegs or failed to have the common boundary defined by a
registered surveyor.
(4)
If the common boundary line as defined by a
registered surveyor is ascertained to be in the same position defined by pegs
placed there by the owner receiving the notice, that owner is entitled to
recover from the owner giving the notice any costs
incurred.
(5)
In any other case when a registered surveyor has
been employed, all reasonable expenses are to be paid in equal shares by the
adjoining owners.
(6)
In this section, registered surveyor means a person
registered under the Surveying and Spatial Information Act
2002 as a surveyor.
s 18: Am 2002 No 83,
Sch 2.6; 2009 No 119, Sch 2.8.
19Appeals
etc
(1)
Any order made by the Local Court or a local land
board under this Act is final.
(2)
However, a party to proceedings under this Act
who is dissatisfied with the order of the Local Court or a local land board as
being erroneous in point of law, may appeal to the Supreme
Court.
(3)
Any person may apply to the Supreme Court for an
order directing a Magistrate of the Local Court or a local land board to
perform any of the functions of the Court or board under this Act (other than
under section 13 (2)).
s 19: Am 2007 No 94,
Schs 1.31 [1], 2.