Fencing Act 1978

1: Short Title and commencement
1: This Act may be cited as the Fencing Act 1978.
2: This Act shall come into force on 1 April 1979.
1: Interpretation and application
2: Interpretation
In this Act, unless the context otherwise requires,— adequate fence adjoining occupiers court
a: the District Court under the District Court Act 2016
b: the Disputes Tribunal with jurisdiction under section 24A fence fencing agreement fencing covenant
a: that one party to the covenant, agreement, or proviso may not be required by the other party, being the occupier of adjoining land, to contribute towards the cost of work on a fence between the land occupied by the first party and that adjoining land; and
b: that does not enure for the benefit of any subsequent purchaser for value of the land occupied by the first party occupier
a: in relation to any land, other than a public reserve, means the owner thereof, except that,—
i: where another person is in occupation of the land under a tenancy granted for a term of not less than 10 years certain or continues to be in occupation of the land after having been in occupation thereof under such a tenancy, that other person shall be the occupier of the land; or
ii: where no person is an occupier of the land by virtue of subparagraph (i)
b: in relation to any public reserve, means the local authority, trustees, or persons in which or whom control of the reserve is vested owner public reserve Reserves Act 1977 repair road section 43 Government Roading Powers Act 1989 work work on a fence 1908 No 61 s 2 Section 2 court replaced 1 March 2017 section 261 District Court Act 2016 Section 2 fencing covenant amended 14 December 1979 Fencing Amendment Act 1979 Section 2 road amended 1 August 2008 section 50(1) Land Transport Management Amendment Act 2008 Section 2 road amended 1 October 1989 section 116(1) Government Roading Powers Act 1989
3: Application of Act
1: Nothing in this Act shall apply in respect of—
a: roads:
b: land forming part of a national park under the National Parks Act 1980
ba: land that is Te Urewera land, as defined by section 7
c: land held for railway purposes other than for the accommodation of employees by the Crown, New Zealand Railways Corporation, or a railway operator that is a Crown transferee company (as those terms are defined in section 2
ca: land held or occupied for the operation of a railway by a railway operator, not being a Crown transferee company (as those terms are defined in section 2
d: land that is a marginal strip within the meaning of the Conservation Act 1987
e: land that is an esplanade reserve within the meaning of the Resource Management Act 1991
2: Subject to subsection (1) 1908 No 61 s 5 Section 3(1)﻿(b) amended 1 April 1981 section 80(2) National Parks Act 1980 Section 3(1)﻿(ba) inserted 28 July 2014 section 138 Te Urewera Act 2014 Section 3(1)﻿(c) substituted 28 August 1990 section 35 New Zealand Railways Corporation Restructuring Act 1990 Section 3(1)﻿(ca) inserted 28 August 1990 section 35 New Zealand Railways Corporation Restructuring Act 1990 Section 3(1)﻿(d) substituted 1 April 1987 section 65(1) Conservation Act 1987 Section 3(1)﻿(e) substituted 1 July 2003 section 262 Local Government Act 2002
2: Agreements
4: Act not to interfere with agreements
Except as provided in section 6 1908 No 61 s 6
5: Fencing covenants and agreements registrable
1: Fencing covenants and fencing agreements relating to land subject to the Land Transfer Act 2017
2: Subject to section 6 Section 5(1) amended 12 November 2018 section 250 Land Transfer Act 2017
6: Registration of fencing covenants to expire after 12 years
1: Where a fencing covenant is registered under the Land Transfer Act 2017 Land Transfer Act 1952 section 7 of the Fencing Act 1908
2: Nothing in subsection (1) Section 6(1) amended 12 November 2018 section 250 Land Transfer Act 2017
7: Creation of fencing covenants
Without affecting any other manner in which a fencing covenant may be created, a fencing covenant by the transferee of any land may be created by—
a: the inclusion in the memorandum of transfer of the land to him (whether or not he signs the transfer) of the words The transferee shall be bound by a fencing covenant as defined in section 2
b: the inclusion in the memorandum of transfer of the land to him of a covenant or agreement signed by him, or a proviso (whether or not signed by him) that constitutes a fencing covenant as defined in section 2
8: Fence not to encroach without consent or court order
1: Notwithstanding anything in this Act, no person is entitled to erect a fence that encroaches to any degree whatever upon any land of which he is not the occupier, except—
a: with the consent of the occupier of that land; or
b: pursuant to an order of the court made under section 24
2: Where any fence erected otherwise than in accordance with subsection (1)
a: that the degree of encroachment is minimal; and
b: that the encroachment in no way adversely affects the use and enjoyment of his land by the applicant.
3: Nothing in this section applies in respect of a fence erected before the commencement of this Act.
3: Liability for work on a fence
9: Adjoining occupiers to share cost of fencing
Subject to the provisions of this Act, and to any order of the court made under this Act, the occupiers of adjoining lands not divided by an adequate fence are liable to contribute in equal proportions to work on a fence. 1908 No 61 s 11
9A: Contributions
where Building Act 2004 requires pool to have means of restricting access Where any person is required to provide a fence in order to comply with the subpart 7A
a: all work on that fence that is required because of the application of that Act and would not otherwise be required shall be the responsibility of the owner of the swimming pool; and
b: no person, other than the owner of the swimming pool, shall be required to make any contribution under this Act to the work on a fence greater than the contribution that the person would be required to make to the work on a fence (whether of the same type or not) if the swimming pool did not exist. Section 9A inserted 20 July 1987 section 14 Fencing of Swimming Pools Act 1987 Section 9A heading amended 1 January 2017 section 20 Building (Pools) Amendment Act 2016 Section 9A amended 1 January 2017 section 20 Building (Pools) Amendment Act 2016
10: Notice to do work to be given
1: Any occupier who desires to compel any other occupier under this Act to contribute to the cost of work on a fence shall serve on him a notice in form 1 of Schedule 1
2: The notice shall—
a: specify the boundary or line of fence, or the parts of the boundary or the line of fence, along which the work is to be done; and
b: specify (whether by reference to a fence described in Schedule 2
i: comprehend the nature of the work proposed and the materials to be used; and
ii: estimate the cost of the work; and
c: specify the consequences of failure to comply therewith.
3: If it is proposed that the cost of the work shall be borne otherwise than in equal shares, the notice shall state the shares that are proposed.
4: Except as provided in section 16
a: any part of the work on a fence that is done before notice relating to the work has been duly served on him:
b: any part of the work that is done after the due service of such a notice and before the due service of a cross-notice on the occupier who gave the notice or the expiration of 21 days from the date of the service of the notice, whichever first happens:
c: any part of the work that is done after the due service of such notice and cross-notice and while differences between the parties remain to be resolved either by agreement or by the court. 1908 No 61 s 12
11: Objections to proposed fence
1: If the occupier receiving a notice objects to any of the proposals set out therein, he may, within 21 days after the date of the service of the notice, serve on the occupier who gave the notice a cross-notice signifying his objection, and he may make counter-proposals in that cross-notice.
2: A cross-notice shall be in form 2 of Schedule 1 subsection (2) of section 10
3: If the occupier receiving a notice fails to serve a cross-notice within the said period of 21 days, he shall be deemed to have agreed to the proposals set out in the notice served on him. 1908 No 61 s 13
12: Service of notices
1: Any notice or cross-notice required or authorised by this Act to be served on any person shall be delivered to that person, and may be delivered to him either personally or by posting it by registered letter addressed to that person at his last known place of abode or business in New Zealand. A notice or cross-notice so posted shall be deemed to have been served at the time when the registered letter would in the ordinary course of post be delivered.
2: If the person is absent from New Zealand, the notice or cross-notice may be delivered as aforesaid to his agent in New Zealand. If he is dead the notice or cross-notice may be delivered as aforesaid to his administrator.
3: If the person is not known, or is absent from New Zealand and has no known agent in New Zealand, or is deceased and has no administrator, the notice or cross-notice shall be delivered in such manner as may be directed by an order of the court.
4: Any notice or cross-notice required or authorised by this Act to be served on or given by any person who is a minor may be served on or given by—
a: a person who is the guardian of, or who has the role of providing day-to-day care for, or who has the custody of, the minor; or
b: the minor himself or herself if he or she—
i: is of or over the age of 18 years; or
ii: has the management and control of the land in respect of which the notice or cross-notice is served or given.
5: Notwithstanding anything in the foregoing provisions of this section, the court may in any case make an order directing the manner in which any notice or cross-notice is to be delivered, or dispensing with the delivery thereof. 1908 No 61 s 40 1952 No 51 s 152 Section 12(4)﻿(a) substituted 1 July 2005 section 151 Care of Children Act 2004 Section 12(4)﻿(b) substituted 1 July 2005 section 151 Care of Children Act 2004
13: Where notices vary
If a notice and cross-notice have been duly served or if notices to do work have been duly served and the proposals in those notices do not correspond, then (unless within 21 days after the date of the service of the last notice or cross-notice the differences are resolved by agreement) the matters in dispute may be determined by the court in manner hereafter provided in this Act. 1908 No 61 s 14
14: Provision for doing work
1: Where a person serves notice under this Act in respect of work on a fence, he may proceed to do the work—
a: after the expiration of 21 days from the date of the service of the notice if he is not duly served with a cross-notice within that period; or
b: if before the expiration of the said period of 21 days he is duly served with such a cross-notice, as soon as all differences between the parties are resolved either by agreement or by the court.
2: If the person who served the notice fails to commence to do the work within 28 days commencing on the day on which he first became entitled to commence the work or such longer period as may be agreed to by the parties or fixed by the court (in this section referred to as the prescribed period
3: If the party who last proceeded to do the work fails for a period of 28 days to carry out the work with due diligence, the other party may proceed to complete the work.
4: If for any period of 90 days after the expiration of the prescribed period and before the completion of the work neither party does any part of the work, all notices, cross-notices, agreements, and orders relating to the work (other than agreements and orders to which subsection (5)
5: At any time before or after the expiration of any period of 90 days to which subsection (2) or subsection (4)
6: Where in accordance with this section either party does any work on a fence, he may recover from the other party as a debt the other party's proportion of the cost of the work done. 1908 No 61 s 17
15: Effect of change of occupier
Where a notice or cross-notice is duly given by the occupier of any land to the occupier of any other land in accordance with this Act, but, before the matter is settled (whether by agreement or order of the court), one of the parties disposes of his interest in either of the parcels of land concerned, the notice or cross-notice shall cease to have effect.
16: Contribution where immediate work required
Subject to the provisions of section 17 1908 No 61 s 33
17: Liability for damage caused by occupier
If any fence is damaged or destroyed in circumstances in which, apart from this Act, an occupier would be liable therefor, he shall be liable for the whole cost of making good the fence.
18: Person taking advantage of fence
1: In any case where there is a fence along the boundary between any land and a road, if a person (other than the owner or occupier or some other person lawfully in possession of that land) adopts or takes advantage of any means by which the fence is rendered of beneficial use to himself, or avails himself of the fence, the occupier of that land may serve on that other person a notice in writing requiring him to pay interest at the rate of 10% per annum on half the value of the fence at the time of the serving of the notice; and, so long as that other person continues to take advantage or avail himself of the fence, he shall be liable to pay that interest to the giver of the notice or his successor in title, and he shall also be liable for repairs to the fence as if he were an adjoining occupier.
2: In any case where a notice in respect of a fence has been served under subsection (1) 1908 No 61 s 25
19: Fence erected when occupier of adjoining land exempt from liability therefor
1: Where at the time when any fence was erected the occupier of the land on one side thereof had, by reason of section 3 Fencing Act 1908
a: the person who erected the fence, or his successor in title, may serve upon the occupier of that land a notice in writing requiring him to pay an appropriate share of the value of the fence at the time when the notice is served taking into account any contributions made towards the cost of the erection and maintenance of that fence by any occupier of that land; and
b: that occupier shall, within 1 month after receiving the notice, pay that share to the person who erected the fence, or to his successor in title, and so long thereafter as he continues to be the occupier shall be liable to bear half the cost of work on the fence.
2: This section shall not apply in any case where the exemption from liability to contribute to the cost of the erection of a fence arose by reason of a fencing covenant or any other covenant, agreement, or proviso relating to fencing. 1908 No 61 s 19
20: Crown tenant's option
Where a fence was erected under the provisions of the Fencing Act 1908 section 20 of the Fencing Act 1908 1908 No 61 s 20
21: Give and take fence
1: Where it is impracticable or undesirable to erect a fence on the boundary of adjoining lands, and the occupiers cannot agree upon a line of fence on either side of that boundary, the line of the fence shall be determined by the court in manner hereafter provided in this section.
2: The court may inspect, or may appoint 1 or more persons to inspect, the proposed line of fence, and shall determine whether a fence is necessary, and (if so) what line is to be adopted; and whether any, and (if so) what compensation (whether an annual payment or otherwise) is to be made to either of the occupiers in consideration of loss of occupation of land.
3: The reasonable costs of inspection shall be borne as the court in its discretion shall direct.
4: The occupation of lands on either side of the line of fence shall not constitute a tenancy or be deemed adverse possession, and shall not affect the title to or possession of any lands, save for the purposes of this Act.
22: Where fence to be built
Save as otherwise agreed or ordered by the court, the middle of a fence shall be upon the boundary line: provided that, where a fence is supported by or formed about posts, the posts shall be placed on the boundary line or as near thereto as practicable. 1908 No 61 s 24
4: Procedure
23: Proceedings to be in accordance with
District Court Act 2016
1: Subject to section 24A the District Court Act 2016
2: Nothing in this Part shall restrict section 26 1908 No 61 s 37 Section 23 heading amended 1 March 2017 section 261 District Court Act 2016 Section 23(1) substituted 1 March 1989 section 72 Disputes Tribunal Act 1988 Section 23(1) amended 1 March 2017 section 261 District Court Act 2016 Section 23(2) amended 1 July 1993 section 362(2) Te Ture Whenua Maori Act 1993
24: Jurisdiction of the court
1: Notwithstanding that a question of title may be involved and whatever the amount involved, the court shall have jurisdiction to hear and determine all questions and disputes arising under this Act in relation to the following matters:
a: whether an existing fence is an adequate fence:
b: work on a fence:
c: the persons by whom work on a fence is to be done:
d: the reasonable and proper cost of work on a fence, including interest on outlay and reasonable remuneration for the superintendence and labour of an occupier (or of any person acting on his behalf) when he is or has been personally engaged on the work:
e: the person or persons by whom the cost of any work on a fence is to be borne; and, if the cost is to be borne by 2 or more persons, the proportion of the cost which each of them shall bear:
f: the line of fence to be adopted, and the amount of compensation (if any) to be paid for loss of occupation of land and the manner of payment thereof:
g: the date on or before which, and the manner in which, any work is to be done:
h: the removal of a fence that is not erected on the proper boundary:
i: whether there has been a failure to exercise due diligence under subsection (3) of section 14
j: whether immediate work is or was required under section 16
k: the entry on adjoining land for the purpose of carrying out the work:
l: the use on adjoining land of animals, vehicles, aircraft, hovercraft, any mode of conveyance, and any equipment for the purpose of carrying out the work:
m: the value or cost of a fence, and the amount of the appropriate share payable by an occupier, for the purpose of any of the following sections, namely, sections 18 19 20
n: the amount of the appropriate share under section 19
o: any other question or dispute arising out of this Act:
p: the costs of any proceedings (including such expenses of survey as the court thinks fit), and the parties by whom and to whom costs are to be paid.
2: In any case where the court has jurisdiction under subsection (1)
a: make such consequential order as it thinks fit:
b: enter judgment for such sum of money as it thinks fit.
3: In any such case—
a: the court may make or enter an interim order or judgment:
b: the order or judgment shall be deemed to be final unless it expressly states that it is an interim order or judgment, as the case may be. 1908 No 61 s 36
24A: Jurisdiction of Disputes
Tribunal
1: Subject to subsection (2), the Disputes Tribunal Disputes Tribunal
a: hear and determine all questions and disputes arising under this Act in relation to any of the matters specified in paragraphs (a) to (o) of subsection (1) of section 24
b: exercise the powers conferred by subsection (2) or subsection (3) of that section.
2: In subsection (1), the Disputes Tribunal
a: make an order under section 24(2)﻿(a)
i: requiring a person to pay an amount exceeding $30,000
ii: requiring a person to incur any expense that exceeds $30,000
iii: declaring a person not liable to another for an amount exceeding $30,000
iv: requiring a person to remove a fence where the value of the fence exceeds $30,000
b: enter judgment under section 24(2)﻿(b) $30,000 and an order or judgment of the Tribunal
3: Section 24A inserted 1 March 1989 section 73 Disputes Tribunals Act 1988 Section 24A heading amended 1 March 2017 section 261 District Court Act 2016 Section 24A(1) amended 1 March 2017 section 261 District Court Act 2016 Section 24A(2) amended 29 October 2019 section 340(2) Tribunals Powers and Procedures Legislation Act 2018 Section 24A(2) amended 1 March 2017 section 261 District Court Act 2016 Section 24A(2)﻿(a)﻿(i) amended 29 October 2019 section 340(2) Tribunals Powers and Procedures Legislation Act 2018 Section 24A(2)﻿(a)﻿(ii) amended 29 October 2019 section 340(2) Tribunals Powers and Procedures Legislation Act 2018 Section 24A(2)﻿(a)﻿(iii) amended 29 October 2019 section 340(2) Tribunals Powers and Procedures Legislation Act 2018 Section 24A(2)﻿(a)﻿(iv) amended 29 October 2019 section 340(2) Tribunals Powers and Procedures Legislation Act 2018 Section 24A(2)﻿(b) amended 29 October 2019 section 340(2) Tribunals Powers and Procedures Legislation Act 2018 Section 24A(3) repealed 29 October 2019 section 340(2) Tribunals Powers and Procedures Legislation Act 2018
25: Power to come in and defend proceedings
Where any proceedings have been commenced under this Act in relation to any fence, any person who may ultimately incur any liability in respect of the fence may come in and—
a: raise any defence in the proceedings against any party thereto:
b: avail himself of any defence in the proceedings that any party thereto might set up. 1908 No 61 s 45
5: Miscellaneous provisions
26: Right of persons constructing fences to enter on adjoining land
1: Where an occupier is doing or proposes to do work under this Act and access to the fence over his own land is more difficult, inconvenient, or expensive than over the adjoining land, the court may authorise that occupier, his agents, workmen, and contractors, with or without animals, vehicles, aircraft, hovercraft, any mode of conveyance, and any equipment, to enter upon any portion of the adjoining land at all reasonable times and do such things thereon as are reasonably necessary to carry out the work.
2: The following provisions shall apply with respect to any order made under subsection (1)
a: the right of entry thereby conferred shall be exercised so as to cause as little damage as possible to the land entered upon and as little disturbance as possible to persons lawfully upon the land, and shall be upon such terms and conditions, including payment of compensation, as the court thinks fit:
b: no such order shall authorise any person to cut down, lop, or injure any tree or shrub without the consent of the owner.
3: If an owner or occupier of land, by himself or his agents or employees, obstructs any entry authorised by an order made under subsection (1) 1908 No 61 s 45
27: Rules
1: The Governor-General may from time to time, by Order in Council, make rules prescribing, in all cases not specially provided for in this Act, the practice and procedure of the court and forms in all proceedings before a court under this Act, and until rules are made and to the extent they do not cover any case the provisions of the District Court Rules 2014 Disputes Tribunal Act 1988 , as the case may require,
2: Rules under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 27(1) amended 1 March 2017 section 261 District Court Act 2016 Section 27(1) amended 1 March 1989 section 74 Disputes Tribunals Act 1988 Section 27(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
28: Repeals and savings
1: The enactments specified in Schedule 3
2: All matters and proceedings commenced under any such enactments, and pending or in progress at the commencement of this Act, may be continued, completed, and enforced under this Act.