Property / Real Estate

Fencing: "..There is no dispute more unpleasant than one between Neighbours.."

The recent decision in Gosney v Ngai Tahu Property Limited was an appeal from a district court decision granting Ngai Tahu an interim injunction which prevented the Gosneys from interfering with Ngai Tahu constructing a fence on the boundary of the Gosney property and associated orders.

In the appeal decision the Judge quoted Dr A M Finlay in his speech during the first reading of the Fencing Bill 1978 as follows:

"There is no instrument more calculated to aid venomous and mischievous neighbours in their suits against each other than the existing provisions of the [Fencing] Act [1908].  Unfortunately, sometimes they are assisted by counsel, or other advisers, who lend themselves to the venom that enters a dispute between neighbours.  Everyone knows that there is no dispute more unpleasant than one between neighbours, and that if one wants to aggravate a neighbourhood dispute one can resort to the Fencing Act with a great deal of facility…".

In the present case Ngai Tahu, which was seeking to develop land adjoining that of the Gosneys, was required by the provisions of the District Plan to construct a fence to certain specifications.  Ngai Tahu was not asking Gosneys for any contribution to the cost of the fence which (while this was originally disputed) was being erected on the boundary.

His Honour stated:

"That, however, does not displace the position under the Fencing Act.  Consent or an order of the Court is still required in such a situation". 

In the present case it was clear that the fence was to be erected on the boundary but nevertheless the High Court determined that under section 8 of the Fencing Act 1978:

"No person is entitled to erect a fence that encroaches to any degree whatever (emphasis added) 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 of this Act". 

The judgment states:

"The plain words of this section make clear that, quite apart from any other provisions in the Act, a fence is not to be encroached on a neighbour's property to "any degree whatever".

This must be taken to mean any encroachment however minor, is prohibited, and irrespective of how that encroachment arises, including from the placement of a fence on a boundary, except by consent or court order.  Thus, a person seeking to construct a fence must either obtain consent of the landowner or they must obtain an order of the court before that person is entitled to erect a fence".  (emphasis added)

His Honour also determined that, where contributions to the erection of a fence is not being sought, the notice regime in the Fencing Act does not apply.  His Honour stated:

"What is required between Ngai Tahu and the Gosneys in such a situation is nothing more or less than discussion and negotiation.  As I said, formal notices form no part of this kind of dispute.  If that discussion and negotiation proves fruitless, section 8 provides recourse to the courts for orders under section 25.  However, in such an application the substantive rights of the parties are to be determined, not merely on an interim basis".

Every lawyer has had experience of disputes between neighbours and will testify that, regardless of the outcome, there is really no "winner" by the time the cost and the adverse impact on neighbourly relations is taken into account. 

This case is therefore a timely reminder that not only in respect of any dispute in relation to fencing but in respect of any other dispute between neighbours, an amicable, negotiated, resolution is the best chance at preserving neighbourly relations at the least cost.  

Specifically however, the present case is a useful summary of the law relating to fencing and that no fence should be erected, even on the boundary and without requirement for a contribution, without the agreement of the neighbour or a court order.  


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