Determining ‘adequate’ fencing

Whether building a fence is part of your contract, or something you offer homeowners advice on, it’s worth knowing the rules around fencing

Building a fence between two properties may not sound like a complicated project, but it’s one that’s been known to cause a few issues. Over the next few months, Under Construction will provide details on various aspects of The Fencing Act 1978 that might come in handy one day.

Who pays?

One of the questions the Fencing Act 1978 (the Act) deals with is who pays for the erection of and repairs to dividing fences between adjacent properties.

Generally, if a homeowner wants to build a fence on a common boundary with their neighbour, or upgrade an existing one, the homeowner can expect the neighbour to go halves on the bill for an ‘adequate’ fence. The definition of adequate in the 1978 Fencing Act is a barrier that in its “nature, condition, and state of repair, is reasonably satisfactory for the purpose that it serves or is intended to serve”.

However, what was adequate ten, or 20 years ago, or even last week, is not necessarily considered adequate today and the purpose it intends to serve can differ person to person. Repelling burglars, providing privacy, protecting children, and even appeal to potential buyers are all considered when judging the adequacy of an urban fence.

A barrier that merely shows the boundary between two properties does not need to be high to be ‘adequate’, and New Zealand has a long tradition of low fences separating back gardens, or gardens from neighbours’ driveways. There are still properties not separated by fences at all.

According to senior solicitor Peter Hall from law firm Simpson Western, there is no general duty to fence at all under the Fencing Act.

“Adequate doesn’t have a nice clean, crisp definition when you are talking about fences,” says Hall. ”It is very circumstantial.”

The meaning of adequate

To help homeowners better understand potential factors, Simpson Western compiled a list of some of the factors that have been considered in tribunal and court cases in judging the adequacy of fences.

Privacy: Over the past 30 years, lace curtains have fallen from windows to let more light in, but fences and walls have gone up to screen homeowners from prying eyes.

Urban dwellers have argued before the Disputes Tribunal that privacy is a factor that should be considered.

Security: A national burglary epidemic means fear of being burgled is common. Adequate may, depending on the circumstances, include a fence high enough to deter intruders.

Noise reduction: This argument was persuasive in a tribunal case where a property was flanked by a shared driveway used by multiple vehicles which created noise that a more substantial fence could reduce.

Child safety: Low wire, or concrete block fences cannot keep any but the smallest children in, or roaming dogs out. Families living near major roads who want higher fences argue ‘adequate’ means at least high enough to keep their children in.

Aesthetics: What is acceptable in a poorer suburb may not be adequate in a more affluent one. Arguments in cases have included whether fences matched other fences around the property, and were in keeping with the neighbours’ fences. Fences that are ‘eyesores’ may not be considered adequate in an urban
setting where the view outside the window matters.

Animals: Keeping animals in or out can be a factor in deciding whether a fence is adequate.

Safety: A barbed wire fence that could cause injury to livestock and children is unlikely to be judged adequate.

State of repair: A damaged or ramshackle fence or wall is unlikely to meet the definition of adequate, though repair is always an option.