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.