Good Fences – Significant responsibilities for rural landowners

Robert Frost wrote ‘Good fences make good neighbours’ which is a great maxim by which you should farm. Issues and accidents arising from wandering, escaped and uncontrolled stock result in many disputes, accidents and deaths in rural New Zealand.

If you are the landowner, it’s your responsibility to ensure that your stock is constrained by an adequate fence. The legalities of what constitutes an adequate fence, and the rights and responsibilities of landowners, can be found in the Fencing Act 1978.

 

The Act provides that an ‘adequate fence’ is a fence that, as to its nature, condition, and state of repair, is reasonably satisfactory for the purpose that it serves or is intended to serve.

 

Adequate fencing

The legislation details examples of what is adequate in terms of a fence in urban and rural environments. In rural areas an adequate fence includes:

• A substantial 7–8 wire fence, properly strained, battened, with up to 2 strands barbed wire, with durable posts of timber, metal or concrete, evenly spaced and not more than 5 metres apart
• A substantial 9–10 wire fence, properly strained, with or without battens, with durable posts of timber, metal or concrete, evenly spaced and not more than 5 metres apart
• A substantial prefabricated (netting) fence, properly strained, with or without battens, with durable posts of timber, metal or concrete, evenly spaced and not more than 5 metres apart, and
• A close and sufficient live (electrified) fence.

 

The onus is on the landowner to show that their fence is reasonable for the purposes for which it’s being used and the stock that it’s containing.

 

If you’re farming or grazing large or boisterous animals it’s your responsibility to ensure that the fencing is sufficient for the type of stock you’re carrying. For example, deer fences are quite different from fences designed to keep in sheep.

 

Recent cases

Recent disputes which have arisen over fences include:

• A subdividing land owner claiming that a 2-wire electric fence, with widely spaced posts, was sufficient for the purposes of a boundary fence between a dairy operation and a sheep farm
• The adequacy of an historic fence over which one landowner’s heifer calf kept escaping, although it was suitable for the other’s grazing sheep, and
• A patch of virtually impassable gorse being viewed by one owner as an adequate boundary fence.

 

Landowner responsibility

Landowners must be aware of their liabilities and responsibilities. Escaping stock affects not only neighbouring landowners but also the wider community if the escaped stock cause an accident that results in damage or a fatality. Farm owners and lifestyle block owners are well advised to ensure that they hold public liability insurance to protect against the liabilities arising from these risks. Large animals, which are frequently darkly coloured, don’t mix well with high speed vehicles travelling on empty dark roads.

The Fencing Act states that in the country, as in town, the cost for an adequate boundary fence is to be shared equally by the two landowners. If, however, one neighbour requires a fence in excess of what is adequate it would be the responsibility of that neighbour to meet the costs above what would be reasonable.

 

The process for building a new fence would usually be by agreement with your neighbour. You both need to agree on the type of fence and its materials, its location (if the exact location of the boundary is an issue), who is going to do the work and how the costs are to be divided.

 

If you and your neighbour can’t agree or one of you refuses to contribute, the legislation provides that one of you can serve a Fencing Act Notice to the other detailing the requirements and details of the proposed fence and the starting date for construction.

 

The landowner being served with the notice, in turn, has the right to oppose the proposed fence if they believe the current fence is adequate or, if they disagree with the type of fence proposed, to offer a counter-proposal as to a suitable fence.

 

If you’re proposing to issue, or you receive, a Fencing Act Notice talk with us as if you don’t issue a notice correctly the Notice may be void. If you don’t respond to a Notice in a timely manner this may result in a default acceptance of the new fence.

 

If, however, neither of you can reach agreement then there’s the option to apply to the court for an order for the construction of a fence. This is a last resort, and a somewhat drastic and expensive outcome for good neighbour relations. If the fence looks like being a problem, get in touch with us early on.