Gosney v Ngai Tahu Property Limited
[2015] NZHC 515
•17 March 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2015-409-000010 [2015] NZHC 515
BETWEEN BRIAN ARTHUR GOSNEY AND
AUDREY LAURA EDWARDS Appellants
AND
NGAI TAHU PROPERTY LIMITED Respondent
Hearing: 17 March 2015 Appearances:
R Armstrong for Appellant
A Riches and J Taylor for RespondentJudgment:
17 March 2015
ORAL JUDGMENT OF GENDALL J
Introduction
[1] Mr Brian Gosney and Ms Audrey Edwards (who I will refer to in this judgment as “the Gosneys”) appeal against a decision of Judge Crosbie in the District Court at Christchurch dated 2 December 2014 granting an interim injunction in favour of Ngai Tahu Property Limited (who I will refer to as Ngai Tahu) making the following interim orders:1
(a) Preventing the Gosneys from interfering with the plaintiff’s erection of a fence along the western boundary of their property where it meets the eastern boundary, a property owned by Ngai Tahu, and in particular preventing the damage or removal of posts made to enable the erection of the fence.
(b)Allowing Ngai Tahu to go on to the Gosneys' property to enable erection of the fence.
1 Ngai Tahu Property Ltd v Gosney DC Christchurch CIV-2014-009-2307, 2 December 2014.
GOSNEY v NGAI TAHU PROPERTY LIMITED [2015] NZHC 515 [17 March 2015]
(c) Preventing the defendants, the Gosneys from interfering with the
plaintiffs’ cadastral survey pegs.
[2] Ngai Tahu resist the appeal on the basis that the decision reached by
Judge Crosbie in the District Court was correct.
Background facts
[3] Ngai Tahu purchased a parcel of land in the north east of Christchurch, which it has been developing into a residential subdivision known as “Prestons”. Ngai Tahu said it wished to build a fence along the western boundary of the Gosneys' property.2 Indeed, Ngai Tahu is required to do so as a result of Plan Change 30 in the Christchurch District Plan.
[4] In anticipation of the fence being constructed, Ngai Tahu contracted surveyors to survey the boundaries of the new fence. Ngai Tahu then employed fencing contractors to begin constructing the fence in March 2014, which was confirmed to be on the boundary line. However, the Gosneys took objection to this and began removing the fence as it was being constructed. As a result, Ngai Tahu by its solicitors, on 10 October 2014, sent a letter to the Gosneys stating that if they further interfered with the construction of the fence then Ngai Tahu would apply for an injunction.
[5] Unfortunately, no amicable solution was able to be reached. Ngai Tahu therefore applied to the District Court for the orders which I have set out above. The Gosneys opposed the orders sought in the District Court on the basis that:
(a) They were entitled to interfere with the applicant Ngai Tahu’s erection of a fence on their land because Ngai Tahu’s actions constituted a
trespass on the Gosneys' land.
2 The Gosneys claim however that the western boundary of their property borders Marshlands
Road and they assume Ngai Tahu are actually referring to the eastern boundary.
(b)Ngai Tahu has not followed the procedure made out in the Fencing Act 1978 and is therefore not entitled to invoke the procedures in that Act.
(c) The Gosneys have not, in any event, interfered with any survey pegs.
[6] The Gosneys contend that there are various factual errors in the position of Ngai Tahu (and as a result, the judgment of Judge Crosbie), such as incorrectly referring to the western boundary of the Gosneys’ property (which boarders Marshlands Road, not Prestons) and listing an incorrect address.
[7] The Gosneys state that they became distressed when they saw the fence being erected by Ngai Tahu as they had not been properly consulted, people were trespassing on their land and there were concerns the fence was not going up in the correct position. This is why they say they took steps to prevent its erection. They say that the experience and tension of removing the fence as it was being erected was one of the worst experiences they have been through. The Gosneys, as I understand it, do not dispute the position of the fence now and also state that they therefore had no reason to interfere with the cadastral survey pegs, and they deny ever having done so.
The fencing regime
[8] Turning now to the fencing regime generally. The obligation or right to fence arises entirely from legislative process in this country. At common law, there was no general obligation to fence. The position is summarised in Hinde McMorland & Sim Land Law in New Zealand:3
At common law an occupier of land is under no duty to fence off his or her land from the adjoining land of a neighbour or from the road or highway, though there is a common law duty to erect or repair a fence where persons using the highway might otherwise be endangered by a nuisance on the land close to the highway. Apart from the common law, a number of statutes make special provision regarding fences and fencing in particular circumstances…
3 Hinde McMorland and Sim Land Law in New Zealand (online looseleaf ed, LexisNexis) at [6.045] (citations omitted). See too New South Wales Law Reform Commission Community Law Reform Program: Dividing Fences (NSWLRC R59, 1988) at Ch 2.
[9] Fencing legislation is not endemic to New Zealand, and I refer to the Canadian position.4 Rather, there are legislative regimes the world over dealing with the evils caused by disputes arising from fencing.5 The nature of these issues were articulated during the first reading of the Fencing Bill 1978, by the Hon Dr A M Finlay, in the context of the Fencing Act 1908:6
There is no instrument more calculated to aid venomous and mischievous neighbours in their suits against each other than the existing provisions of the [Fencing] Act [1908]. Unfortunately, sometimes they are assisted by counsel, or other advisers, who lend themselves to the venom that enters a dispute between neighbours. Everyone knows that there is no dispute more unpleasant than one between neighbours, and that if one wants to aggravate a neighbourhood dispute one can resort to the Fencing Act with a great deal of facility, if only by invoking the provisions of the second schedule.
[10] The Fencing Act 1978 is one of the main pieces of legislation governing fencing in New Zealand.7 At the time it was enacted it was the statutory culmination of over a century of Ordinances and public Acts. The first fencing legislation in New Zealand was contained in the Fencing Ordinance 1847.8 The Fencing Ordinance was repealed, along with multitudinous provincial Acts, by the Fencing Act 1881.9 The Act of 1881, along with its amendments,10 was replaced by the Fencing Act 1895, which was amended in 1904, before being reborn in the 1908 consolidation.11
[11] The Fencing Act 1908 then endured for over 60 years, before being referred to the Property Law and Equity Reform Committee, by the Minister of Justice, on
the recommendation of the Law Revision Committee.12 The lineage of the Fencing
4 For the historical Canadian position see generally RM MacDonald “Fences” (1895) 15
Canadian Law Times 149. For a snapshot of early legislation in Michigan refer Frank Robson “A Few Words About Fences” (1895) 4 Michigan Law Journal 175, while a good overview of the law in America more generally is to be found in Clarence Danhof “The Fencing Problem in the Eighteen-Fifties” (1944) 18(4) Agricultural History 168.
5 See for example the Fences Act 1968 (Vic); Fences Act 1975 (SA); Dividing Fences Act 1961 (WA); Boundary Fences Act 1908 (Tas); Fences Act (NT); Dividing Fences Act 1991 (NSW)
6 (14 December 1977) 416 NZPD 5341–5342.
7 See too the Fencing of Swimming Pools Act 1987; Local Government Act 1974, s 353.
8 Fencing Ordinance 1847 11 Vict 8, which was described as “An Ordinance to encourage the
Fencing of Land”.
9 Fencing Act 1881, sch C. The repeals included provincial Acts and Ordinances in Southland,
Otago, Westland, Malborough, Nelson, Wellington, Hawke’s Bay, Taranaki and Auckland.
10 Fencing Amendment Act 1882; Fencing Amendment Act 1888; Fencing Amendment Act 1893.
11 Fencing Act 1895; Fencing Amendment Act 1904; Fencing Act 1908.
12 Property Law and Equity Reform Committee The Fencing Act 1908 (June 1972).
Act 1978 can be traced to that report. It is this Act, and its amendments, which form the backbone of the current law.
Does the Fencing Act apply?
[12] I turn now to the issue “Does the Fencing Act apply?”
[13] The Fencing Act 1978 does not purport to be a code dealing with all fencing in New Zealand. In particular, it is concerned with boundary fences and the liability of adjoining owners to contribute to the construction or repair of fences.13 This is a case where Ngai Tahu does not seek contribution from the Gosneys, so it must be determined whether the Fencing Act 1978 has application at all. In my view it is plain that it does, notwithstanding that no contributions are being sought. Section 8 provides:
8 Fence not to encroach without consent or Court Order
(1) Notwithstanding anything in this Act, no person is entitled to erect a fence that encroaches to any degree whatever upon any land of which he is not the occupier, except—
(a) With the consent of the occupier of that land; or
(b) Pursuant to an order of the Court made under section 24 of this Act.
(2) Where any fence erected otherwise than in accordance with subsection (1) of this section encroaches upon any land of which the person who erected the fence is not the occupier, the occupier of that land may apply to the Court for an order that the fence be removed; and the Court shall order the removal of the fence (at the expense of the person who erected it) unless it is satisfied—
(a) That the degree of encroachment is minimal; and
(b) That the encroachment in no way adversely affects the use and enjoyment of his land by the applicant.
(3) Nothing in this section applies in respect of a fence erected before the commencement of this Act.
[14] The plain words of this section make clear that, quite apart from any other provisions in the Act, a fence is not permitted to encroach on a neighbour’s property
to “any degree whatever”.14 This must be taken to mean any encroachment however
13 Fencing Act 1978, ss 2, 9–22.
14 See too the position at common law: Elius v Loftus Iron Co (1874) LR 10 CP 10 (Comm Pleas)
at 12.
minor, is prohibited, and irrespective of how that encroachment arises, including from the placement of a fence on a boundary, except by consent or court order. Thus, a person seeking to construct a fence must either obtain consent of the landowner or they must obtain an order of the Court before that person is entitled to erect a fence. JF Corkery addressed this point as follows:15
Now, under the 1978 Act, even if not seeking contribution to the cost of fencing, one must get the consent of the neighbour or a court order if the fence “to any degree” encroaches upon the neighbour’s land. Fences erected right on the boundary must to some degree encroach on the neighbour’s land, the middle of the fence being on the boundary line. The legislature was concerned that especially in urban areas the adjoining owner should have some control over boundary fences, whether or not he is paying a proportion of the cost.
[15] JF Corkery was referring to the second reading of the Fencing Bill, where the
Hon David Thomson stated the position thus:16
Clause 6A is new and is intended to cover the situation when an adjoining owner intends to erect a fence on the boundary, but does not intend to seek contribution from his neighbour to cover the costs. In the Government’s view an adjoining owner, particularly in an urban area, should have some say on the type of fence that is to be erected on a boundary but for which contribution is not being requested.
[16] The Fencing Act 1978, as enacted, differs from the proposal by the Property Law and Equity Reform Committee at the time, which included no equivalent to what is now s 8. This was likely the reason for the following comments in the report of the Property Law and Equity Reform Committee:17
… There is, of course, nothing in the present fencing legislation to prevent a person erecting any type of fence he wishes, provided he does not call upon his neighbour to contribute towards costs…
[17] Under the extant regime it is therefore clear that an adjoining landowner is not free to simply erect whatever fence they see fit. What is required is either the consent of the adjoining landowner, or a Court order. Further, the position of the Property Law and Equity Reform Committee as outlined above, it seems to me, cuts
directly across the grain of one of the purposes of fencing legislation. That is, to
15 JF Corkery “The Fencing Act 1978 and Related Matters” (1977–1978) 4 Otago Law Review 269 at 275–276 (emphasis added).
16 (26 September 1978) 421 NZPD 3809 at 3810 (emphasis added).
17 Property Law and Equity Reform Committee The Fencing Act 1908 (June 1972) at 7.
reduce the scope for neighbourly dispute. If a person was free to erect a fence, which their neighbour considered abhorrent, there is the very real risk that amicable neighbourly relations would be jeopardised.
Application to this case
[18] I turn now to the application of this to the present case. I therefore reject the argument here of Ngai Tahu which has been placed before me that because s 22 mandates that a fence follow a boundary line, the result is that the fence will “straddle” that boundary line and not encroach. In light of the foregoing, it is apparent that this argument is misconceived. The reality is that a fence erected on a boundary will in fact encroach, at least to some degree. It would be artificial to suggest otherwise.
[19] The very existence of s 8 was to ensure that parties such as Ngai Tahu were not able to simply do as they pleased absent involvement from neighbours. To the extent that Mr Riches for Ngai Tahu sought to pray in aid Parliamentary intent in his written submissions in support of his position, it seems he neglected to avail himself of the Parliamentary materials, which I have set out above, which strongly indicate that Parliamentary intent favours the Gosneys’ interpretation.
[20] Further, s 22 confers no substantive right. It is declaratory of the position that a boundary fence must follow the boundary line, which also represents the position under the Fencing Act 1908.18 Moreover, s 22 is made subject to agreement between the parties or a Court order. From the words of s 22, it does not follow that Ngai Tahu are able to construct a boundary fence. It simply means that where there exists the ability to construct such a fence, it is to follow the boundary in the absence of agreement or Court order.
[21] Ngai Tahu has also sought to avail itself of the fact that Plan Change 30 mandates that a fence be built, and that it be built to certain specifications. That, however, does not displace the position under the Fencing Act. Consent or an order
of the Court is still required in such a situation. At no point has there been any
18 Ahearn v Havler [1967] NZLR 245 (SC).
indication that the need to fence came on urgently. Ngai Tahu was quite able to consult with the Gosneys to have this matter resolved amicably. The Gosneys say Ngai Tahu chose not to take up such an option and instead sought to resolve the issue by resort to the Court.
[22] Mr Riches for Ngai Tahu before me, however, suggested that before the District Court there was some suggestion the Gosneys informally consented to the fence ultimately constructed, or to the order which the District Court made. Mr Armstrong, however, for the Gosneys noted that an issue did arise in the District Court it seems as to whether in general terms, would the Gosneys consent to a fence, including posts, being constructed along a boundary ultimately if, of course, all proper processes had been undertaken. Mr Armstrong confirmed that, of course, the answer to this was yes, but that was not the only issue which was arising at the time and before the District Court. On this Mr Armstrong emphasised that the Gosneys would not and did not consent to either the order being made for the interim injunction as sought, nor to the erection of the fence being built at the time.
[23] He said the Gosneys had not been properly consulted at the time as to the erection of the fence proposed and they never consented to the actions unilaterally undertaken by Ngai Tahu. He acknowledged that the Gosneys had generally, as I have noted, consented to the notion that any fence posts should ultimately be on the boundary but this was as far as the consent went.
[24] In considering these matters and all the matters before the Court I accept the position as advanced to me by Mr Armstrong.
[25] So overall, in the circumstances I have referred to above, the legal position in my view here favours the Gosneys.
[26] I turn to Mr Riches’ written submissions before me that the Gosneys’ interpretation, which I have accepted, would mean that no boundary “fence could be built without either the consent of one’s neighbour or a court order” and this is objectionable. Notwithstanding this, the proposition, in my view, is in fact the correct position. The reality is that the vast majority of fencing issues between
neighbours are resolved amicably inter partes. However, where this is not possible, as in the case of a dispute over contributions to the cost of fencing, the parties will resort to the Courts (or the Disputes Tribunal).
[27] In the counterfactual, if I were to accept Mr Riches’ submission that a neighbour is able, as of right, to construct any boundary fence they saw fit, it seems implicit that Mr Riches is making the argument that the constructing party has a right of access to their neighbour’s property. How this right would arise is not articulated. The only possible basis, in the absence of consent or an order under s 24, is the right conferred by s 26.19 However, even that requires a Court order and initially no such order had been made in Ngai Tahu’s favour. Thus, on the face of it there is likely to have been a trespass by Ngai Tahu initially.
[28] It follows that an injunction was not the appropriate remedy here, as there should have never been a fence in existence in respect of which an injunction could operate. Indeed, by its very nature an injunction does not lend itself to determination of the substantive dispute, which s 8 and s 24 contemplates, namely an order of the Court permitting construction of a fence in the absence of agreement between neighbours. This is of particular concern where the effect of the interim injunction would be to permit another party access to another party’s property. Even more so where the necessity to erect a new fence has arisen from a situation of Ngai Tahu’s own making, namely the Prestons development.
Does the notice regime apply?
[29] I turn now briefly to consider whether the notice regime applies. On this I do not agree with the Gosneys, that a situation of this sort necessarily invokes the notice regime in Part 3 of the Act. These notices deal with the liability of parties for contributions to the cost of fencing. This situation, where no contribution is sought, in my view, stands apart from the rest of the regime, including the notice
requirement.
19 The Property Law Act 2007 may provide an alternate avenue, but, again, this would require a
Court order.
[30] What is required between Ngai Tahu and the Gosneys in such a situation is nothing more or less than discussion and negotiation. As I see it, formal notices form no part of this kind of dispute. If that discussion and negotiation proves fruitless, s 8 provides recourse to the courts for orders under s 24. However, in such an application the substantive rights of the parties are to be determined, not merely on an interim basis.
Section 8(2)
[31] The final element of Ngai Tahu’s resistance to this appeal was that s 8(2) of the Fencing Act deals with the situation where a fence is constructed other than in accordance with s 8(1). In that situation one remedy for an aggrieved neighbour is to apply to the Court for an order that the encroaching fence be removed, which the Court “shall order”, unless the Court is satisfied that the degree of encroachment is minimal and the encroachment in no way adversely affects the use and enjoyment of the aggrieved party’s land.
[32] While the point may have merit, the appeal I am dealing with is predicated on no fence being in existence. It is an appeal against granting an injunction permitting the construction of a fence. It is therefore inappropriate that I have regard to a section which had no bearing upon the case before Judge Crosbie.
Outcome
[33] I now turn to address the outcome. For the reasons I have mentioned, the appeal before me is allowed. I quash the decision of the District Court and make no order in its place. But this decision quashing the District Court decision shall not take effect, and the interim injunction granted shall remain in full force, and effect (with amendment to its terms to refer to the eastern boundary of the appellant’s property rather than the western boundary), and so it shall not take effect until 4 p.m. on 31 March 2015.
[34] Before me Mr Armstrong indicated that the appellants have no intention of activating self-help remedies here in taking actions to have the existing fence or such part as lies within their land removed.
[35] Notwithstanding this, the delay I have just ordered in this decision having full force and effect is simply to ensure that no precipitous actions are taken to remove the existing fence. This fence runs for approximately 200 metres, as I understand it, and, in my view, in the interim it would be a major and potentially disastrous situation for all concerned if steps were taken immediately to remove it, irrespective of the ultimate rights of the parties here.
[36] In the meantime, it will be for Ngai Tahu to either seek to engage with the Gosneys and reach an agreement regarding the fence by consent, or to bring a fresh application for an order permitting construction of the encroaching fence.
Costs
[37] I now turn to the issue of costs. Costs here are reserved. As I understand it from earlier submissions, there is a suggestion that the appellants, the Gosneys, may wish to seek indemnity costs on this appeal and in the District Court proceeding. As the Gosneys have succeeded on this appeal, costs will follow the event in the absence of compelling reasons to the contrary. Memoranda on costs are to be filed by the appellants, the Gosneys, within 10 working days of the date of this judgment, with the respondent, Ngai Tahu, following not later than 10 working days thereafter. Memoranda on costs are limited to five pages in length. I will then deal with the matter of costs on the papers in the absence of either party indicating they wish to be heard on the matter.
...................................................
Gendall J
Solicitors:
Young Hunter, Christchurch
Saunders & Co, Christchurch
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