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Boundary fence can only be built by agreement with neighbour or by court order

30 June 2015

Disputes between neighbours over boundaries and fences can be very unpleasant. A recent case made it clear that a landowner cannot build a boundary fence without first consulting with and obtaining the agreement of his or her neighbour. If no agreement is reached, the landowner will need to obtain a court order before proceeding.

 

Gosney v Ngai Tahu Property Limited

Ngai Tahu is developing a residential subdivision in Christchurch. It wished to build a fence along the boundary with one its neighbours - the Gosneys. In fact, the Christchurch District Plan required Ngai Tahu to build the fence as a condition of the subdivision.

Ngai Tahu began building the fence without consulting the Gosneys. This upset the Gosneys. They did not like people trespassing on their land and they were concerned the fence was not going up in the correct position. They began removing the fence as it was being constructed.  The dispute could not be resolved. Ngai Tahu applied for and obtained a court order preventing the Gosneys interfering with the construction of the fence.  The Gosneys appealed this order.

 

Ngai Tahu must obtain Gosneys’ agreement before building fence

On hearing the Gosneys’ appeal the High Court judge found that the Fencing Act 1978 applied even though Ngai Tahu did not seek a contribution from the Gosneys towards the costs of building the fence. (The Fencing Act is concerned with boundary fences and the liability of adjoining owners to contribute to the construction and repair of fences.) Furthermore, the judge found that fences erected right on the boundary must to some degree encroach on the neighbour’s land and that any encroachment is prohibited unless the neighbour consents or the court permits the encroachment. The judge also found that an adjoining owner should have some say on the type of fence that is to be erected on a boundary. The judge did not accept that Ngai Tahu could go ahead and build the fence because the District Plan required it for the subdivision. If that were correct, Ngai Tahu would have a right of access to the Gosneys’ property. In the judge’s view this would amount to a trespass.

The judge also found that the provisions in the Fencing Act requiring a landowner to give notice to the adjoining landowner before proceeding did not apply. The notice provisions were relevant only where one owner wanted the neighbour to contribute towards the costs of the fence.

 

Discussion and negotiation required before court action

What the judge required between Ngai Tahu and the Gosneys was nothing more or less than discussion and negotiation.  If agreement could not be reached, Ngai Tahu could bring a fresh application to the court for an order under the Fencing Act permitting construction of the encroaching fence.

 

 

Please email me at barbara.mcdermott@nwm.co.nz with your ideas for future articles. Keep an eye out for next month's column, where I will discuss another relevant rural legal issue.


Barbara McDermott is a partner of Norris Ward McKinnon, specialising in commercial and rural law. With offices in Hamilton and Huntly, we have friendly, expert legal advisors ready to help you with your business and personal legal matters.