Lease on Napier to Gis­borne rail line of­fered to HBRC

The Orchardist - - Contents - John Shed­dan is part­ner in Ban­ner­mans Lawyers, Gore. This ar­ti­cle was first pub­lished in Fineprint (Sum­mer 2014), the client news­let­ter of NZ LAW Limited mem­ber firms. Ban­ner­mans Lawyers is a mem­ber of NZ LAW.

The onus is on the landowner to show that their fence is rea­son­able for the pur­poses for which it is be­ing used and the stock that it is con­tain­ing.

If you are farm­ing or grazing large or bois­ter­ous an­i­mals it is your re­spon­si­bil­ity to en­sure that the fenc­ing is suf­fi­cient for the type of stock you are car­ry­ing. For ex­am­ple, deer fences are quite dif­fer­ent from fences de­signed to keep in sheep.

• A sub­di­vid­ing landowner claim­ing that a two-wire elec­tric fence with widely spaced posts was suf­fi­cient for the pur­poses of a bound­ary fence be­tween a dairy op­er­a­tion and a sheep farm.

• The ad­e­quacy of an his­toric fence over which one landowner's heifer calf kept es­cap­ing, although it was suit­able for the other's grazing sheep.

• A patch of vir­tu­ally im­pass­able gorse be­ing viewed by one

owner as an ad­e­quate bound­ary fence. RE­CENT CASES Re­cent dis­putes which have arisen over fences in­clude:

LANDOWNER RE­SPON­SI­BIL­ITY

Landown­ers must be aware of their li­a­bil­i­ties and re­spon­si­bil­i­ties. Es­cap­ing stock af­fects not only neigh­bour­ing landown­ers but also the wider com­mu­nity if the es­caped stock cause an ac­ci­dent that re­sults in dam­age or a fa­tal­ity. Farm own­ers and life­style block own­ers are well ad­vised to en­sure that they hold pub­lic li­a­bil­ity in­surance to pro­tect against the li­a­bil­i­ties aris­ing from th­ese risks. Large an­i­mals, which are fre­quently darkly coloured, don't mix well with high speed ve­hi­cles trav­el­ling on empty dark roads.

The Fenc­ing Act states that in the coun­try, as in town, the cost for an ad­e­quate bound­ary fence is to be shared equally by the two landown­ers. If, how­ever, one neigh­bour re­quires a fence in ex­cess of what is ad­e­quate it would be the re­spon­si­bil­ity of that neigh­bour to meet the costs above what would be rea­son­able.

The process for build­ing a new fence would usu­ally be by agree­ment with your neigh­bour. You both need to agree on the type of fence and its ma­te­ri­als, its lo­ca­tion (if the ex­act lo­ca­tion of the bound­ary is an is­sue), who is go­ing to do the work and how the costs are to be di­vided.

If you and your neigh­bour can't agree, or one of you re­fuses to con­trib­ute, the leg­is­la­tion pro­vides that one of you can serve a Fenc­ing Act No­tice to the other de­tail­ing the re­quire­ments and de­tails of the pro­posed fence and the start­ing date for con­struc­tion.

The landowner be­ing served with the no­tice, in turn, has the right to op­pose the pro­posed fence if they be­lieve the cur­rent fence is ad­e­quate or, if they dis­agree with the type of fence pro­posed, to of­fer a counter-pro­posal as to a suit­able fence.

If you're propos­ing to is­sue, or if you re­ceive, a Fenc­ing Act No­tice, talk with your lawyer as if you don't is­sue a no­tice cor­rectly it may be void. If you don't re­spond to a no­tice in a timely man­ner this may re­sult in a de­fault ac­cep­tance of the new fence.

If, how­ever, nei­ther of you can reach agree­ment then there's the op­tion to ap­ply to the court for an or­der for the con­struc­tion of a fence. This is a last re­sort, and a some­what dras­tic and ex­pen­sive out­come for good neigh­bour re­la­tions. If the fence looks like be­ing a prob­lem, get in touch with your lawyer early on.

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