Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The objects of this Bill are as follows:

(a) to amend the Dividing Fences Act 1991 (the Principal Act):

        (i) to enable an adjoining owner to seek a contribution for the carrying out
of work to a retaining wall, where the wall is necessary for the support
and maintenance of a dividing fence, and to enable orders relating to
that work to be made under the Principal Act, and
        (ii) to clarify that an adjoining owner may seek a contribution for the
preparation of land involving the trimming, lopping or removal of
vegetation, for the purpose of the provision of a dividing fence, and that
orders relating to that work may be made under the Principal Act, and
        (iii) to ensure that an owner who desires to carry out such work for a purpose
other than a sufficient dividing fence is liable for the expenses of
carrying out the work that are attributable to work done for that other
purpose, and
        (iv) to enable a local land board to make an order specifying a fixed amount
that an adjoining owner is required or liable to pay under the Principal
Act, and
        (v) to enable such an order, when its particulars are certified by a
Chairperson of the local land board and the certificate is filed with a
court of competent jurisdiction, to be enforced as a judgment of that
court,

(b) to amend the Access to Neighbouring Land Act 2000 to provide that the costs
of an application for an access order under that Act are payable by the
applicant for the order, subject to any contrary order of the Local Court,

(c) to amend the Crown Lands Act 1989 to enable a Chairperson of a local land
board alone to constitute a quorum for the purpose of dealing with an
application under the Principal Act where the area to which the application
relates is in the Metropolitan, Penrith, Picton or Windsor land district or a
predominantly residential area.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.

Clause 3 is a formal provision that gives effect to the amendments to the Dividing
Fences Act 1991 set out in Schedule 1.

Clause 4 is a formal provision that gives effect to the amendments to other Acts set
out in Schedule 2.

Clause 5 provides for the repeal of the proposed Act after all the amendments made
by the proposed Act have commenced. Once the amendments have commenced the
proposed Act will be spent and section 30 of the Interpretation Act 1987 provides
that the repeal of an amending Act does not affect the amendments made by that Act.

Schedule 1 Amendment of Dividing Fences Act 1991
Schedule 1 [1] amends the definition of fence to provide for a retaining wall to be
treated as part of a fence, for the purposes of the Principal Act, where the wall is
necessary for the support and maintenance of the fence. As a result, such a retaining
wall also becomes a dividing fence, for the purposes of the Principal Act, where it
separates the land of adjoining owners. The proposed amendment gives effect to
paragraph (a) (i) of the objects referred to in the Overview.

Schedule 1 [2] amends the definition of fencing work in the Principal Act to clarify
that fencing work comprising the preparation of land for the purpose of the provision
of a dividing fence includes the trimming, lopping or removal of vegetation. This
gives effect to paragraph (a) (ii) of the objects referred to in the Overview.

Schedule 1 [3] inserts proposed section 7 (3) into the Principal Act. The proposed
new subsection ensures that an adjoining owner who desires to carry out the
preparation of land comprising the trimming, lopping or removal of vegetation for a
purpose other than the provision of a sufficient dividing fence is liable for the
expenses of carrying out the work to the extent that those expenses are attributable to
work done for that other purpose.

Schedule 1 [4] amends section 14 of the Principal Act to enable a Local Court or
local land board to make an order determining the amount of money that each
adjoining owner must pay for fencing work as an alternative to an order determining
the manner in which contributions for the work are to be apportioned.

Schedule 1 [5] amends section 24 of the Principal Act to enable a local land board to
make an order, on the application of an adjoining owner, determining an amount that
the other adjoining owner is required or liable to pay under that Act. The proposed
amendment also enables such an order, when its particulars are certified by a
Chairperson of the local land board and the certificate is filed with a court of
competent jurisdiction, to be enforced as a judgment of that court.

Schedule 1 [6] clarifies that the provisions of the Principal Act do not override
provisions of or under other Acts relating to fencing work. Examples of such
provisions include provisions in Acts or instruments requiring development consent
or another kind of authorisation for the carrying out of work relating to retaining
walls or the trimming or removal of trees.

Schedule 1 [7] and [8] enact savings and transitional provisions consequent on the
enactment of the proposed Act.

Schedule 2 Amendment of other Acts
Schedule 2.1 amends the Access to Neighbouring Land Act 2000.

Currently, section 27 of the Access to Neighbouring Land Act 2000 provides that the
costs of an application for an access order under that Act are payable at the Local
Court’s discretion. Schedule 2.1 [1] and [2] amend section 27 of that Act:

(a) to provide that the costs of an application for an access order are payable by
the applicant for the order, subject to any order of the Local Court to the
contrary, and

(b) to clarify that when determining whether any costs of an application for an
access order are payable by a party, the Court may consider the conduct of the
parties.

Schedule 2.1 [3] and [4] enact savings and transitional provisions consequent on the
enactment of the proposed Act.

Schedule 2.2 amends the Crown Lands Act 1989. In particular, Schedule 2.2 amends
Schedule 2 to that Act to enable a Chairperson of a local land board alone to
constitute a quorum for the purpose of dealing with an application under the Dividing
Fences Act 1991 where the area to which the application relates is in the
Metropolitan, Penrith, Picton or Windsor land district or a predominantly residential
area.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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