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FENCES ACT 1975 - SECT 12

FENCES ACT 1975 - SECT 12

12—Powers of court

        (1)         Where any difference or dispute arises in relation to fencing work, or any liability arising under this Act, any person affected by the difference or dispute may by application to the court seek a determination of the matter.

        (2)         Upon the hearing of an application under subsection (1) of this section the court may determine the matter in such manner as it considers just and may—

            (a)         make any finding, determination or order in relation to the erection of a fence, the nature of the fence to be erected, the line of fence to be adopted and the amount of compensation (if any) to be paid for loss of occupation of land as a result of the erection of a fence otherwise than upon the boundary of contiguous land; and

            (b)         make any finding, determination or order in relation to the performance of replacement, repair or maintenance work in relation to a dividing fence; and

            (c)         determine the person or persons by whom any fencing work is to be performed, and where it is to be performed by different persons, the part of the work to be performed by each; and

            (d)         re-open and correct or vary any agreement arrived at under this Act (including an agreement that is, by virtue of section 7 of this Act, deemed to have been made) upon such terms as the court considers just; and

            (e)         re-consider and vary upon such terms as the court considers just an order under section 9 or section 10 of this Act; and

            (f)         determine the time at which fencing work is to be performed and the manner of its performance; and

            (g)         make any order that may be necessary or expedient in relation to entry upon or access to land for the purposes of performing fencing work; and

            (h)         order the removal of a fence or any portion of a fence not erected upon the proper boundary; and

                  (i)         determine the cost of fencing work and the persons by whom and the proportions in which the cost is to be borne; and

            (j)         make any order or give any direction that may be necessary or expedient to overcome difficulties ascertained during the progress of fencing work; and

            (k)         determine, and order payment of, compensation for any damage for which compensation is payable under this Act, or any other Act or law; and

            (l)         make such order for costs as the court considers just.

        (3)         The court may, on the application of any interested person, extend any limitation of time prescribed by this Act (whether or not the time so limited has expired).

        (4)         Where the owner of land claims to be entitled to the payment of an amount from an adjoining owner in respect of the performance of fencing work either in pursuance of the provisions of this Act, or any agreement under this Act, he may apply to the court for an order for payment of that amount.

        (5)         The court may upon an application under subsection (4) of this section make an order for any person to pay an amount for which he is so liable.

        (6)         Subject to subsection (7) of this section, any dispute as to the relative proportion in which the cost of fencing work is to be borne as between adjoining owners shall be determined according to the benefit that each of the adjoining owners derives from the performance of the fencing work, and, in the absence of proof to the contrary it shall be presumed that the adjoining owners derive equal benefit from the performance of the fencing work.

        (7)         If fencing work consists in the erection of an adequate fence or a fence of better quality than an adequate fence, or the conversion of an existing fence into an adequate fence or a fence of better quality than an adequate fence, then, in the absence of agreement between the adjoining owners, the contribution for which an adjoining owner is liable shall be one-half of the minimum cost of erecting an adequate fence, or converting the existing fence into an adequate fence.

        (8)         For the purposes of this section—

            (aa)         in the case of a fence dividing land, of not less than 0.8 hectare in area, used for primary production purposes from land used for residential or other purposes—an adequate fence is a fence that is adequate for the primary production purposes or a fence that is adequate for the residential or other purposes, whichever would cost less; and

            (a)         in any other case—an adequate fence is a fence that conforms with general standards of good fencing existing in the locality in which the fencing work has been or is to be performed and is adequate for the purposes of the owner against whom contribution is sought; and

            (b)         a fence may be an adequate fence notwithstanding that it is discontinuous where any vegetation, watercourse, ditch or other geographical configuration serves as a fence or portion thereof.

        (9)         Any person who is, in accordance with this Act, liable to either of the adjoining owners of land in respect of fencing work shall be entitled to appear in any proceedings relating to that fencing work under this section.

        (10)         In this section—

"primary production purposes" means agriculture, pasturage, horticulture, viticulture, apiculture, poultry farming, dairy farming, forestry or any other activity consisting of the cultivation of soils, the gathering in of crops, the rearing of livestock or the propagation and harvesting of fish or other aquatic organisms.