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Where should you build your new fence?

Earlier this year I was looking to fence my property. Fencing did not proceed (too expensive!) - but while looking into the legal side of what I needed to do, I came across a suprising case. I had thought that if I build a boundary fence there would be no problems. I was wrong.

In Gosney v Ngai Tahu Ngai Tahu erected a boundary fence, following a boundary survey. They erected the fence on the exact boundary. The Gosney’s had concerns and voiced these. Ngai Tahu took the matter immediately to the District Court, and obtained an injunction – meaning the Gosney’s were unable to interfere with the building of the fence on the boundary line.

The Gosney’s appealed to the High Court and were successful. The Court applied the Fencing Act and found that a new fence must not encroach (go onto) a neighbours section at all, without consent, or without a Court order. To do so would be a trespass. So a fence which ‘straddles’ a boundary by being on the exact boundary, is an encroachment, and is unlawful. This is despite the fact that the person constructing the fence might be paying the full costs of constructions (that is, not seeking a lawful contribution from the neighbour).

If you wish to build a fence on a boundary line, without a contribution from your neighbour, and they refuse to consent, you have two options. First, you can build the fence entirely within your section, ensuring that there is not the slightest little encroachment. Second, you can apply to the District Court for an order to erect a boundary fence. A Court will usually allow a fence to be built on the boundary, on the basis that the encroachment is minimal and in no way impacts on the neighbour’s use of his or her land. Once the order has been given, you can build your fence.

It has to be understood that these situations are very rare. In nearly all cases neighbours will reach an amicable agreement about building the fence. The agreement should be recorded in writing so that if there is a dispute in the future about consent, or fence type, the agreement can be produced. In the rare case where you have a dispute, you may need to talk to your lawyer.

As a final warning, the Judge in the High Court also ordered indemnity (full) costs against Ngai Tahu, on the basis that their actions had been completely wrong. Ngai Tahu was ordered to pay the Gosney’s legal costs of $29,592.80.

• Posted By: Graham Day on Fri, 10th Jul 2015 @ 08:25:30

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