Tales of the Tribunal: Neighbour’s knickers in a twist over fences and washing lines

Thursday, 26 December 2024

Just as relations between countries that share a border are frequently tense, neighbours can find themselves in disputes over the walls and fences that divide them.

The little-known Fencing Act is the piece of law that governs the building of fences, and can be used by homeowners to get their neighbours to pay half costs to put up “adequate” fencing between their properties.

It also discourages unilateral fence building, wall construction and hedge removals, attempting to prevent border disputes by emphasizing cooperation over high-handed solo action.

2024 saw many fencing disputes come before the Disputes Tribunal, which adjudicates on small money claims of less than $30,000.

Two-metre high failure

In June, the tribunal heard a plea from one homeowner who wanted his neighbour to go halves on erecting a 2m high fence between their homes.

There was no current boundary fence, and 2m was necessary to provide “reasonable privacy”, and that height was necessary to “contain” a dog, or a child, and he intended to add both to his household.

His neighbours had a heritage home, and preferred there to be no fence at all, but suggested a low 1.2m fence.

Their local council said a 2m fence would require a resource consent, and agreement between both parties.

The neighbours could agree on almost nothing about the design of the fence, and the neighbours who did not want the fence had done some “excavation work” on their side of the boundary, which dropped the level of the land by 50cms, which they said was merely returning it to its “original ground level”.

Tribunal referee L Trevelyan ordered a 1.5m fence be erected with the height measured from the pre-excavation ground level.

Each neighbour would chip in $6325 towards the cost, and the neighbour who wanted the fence would organise the work.

Hedge massacre

A couple took it upon themselves to have a hedge removed on the boundary with their neighbours’ property, and to build a fence.

The neighbours were outraged not only by the defoliation and the audacity of their neighbours, but also because the hedging massacre had involved trespass on their property.

They wanted $23,000 to replace the hedge and trees.

Tribunal referee Souness said the hedge was the boundary “fence” under the Fencing Act, and it had been adequate.

The act required a party that destroys an fence, including a “living fence”, without the consent of the property-owners they share it with, is liable for the full cost of reinstating it, the referee said.

However, he noted that the hedge destroyers had paid for the new fence, and not asked anything of their neighbours.

“Parties should be discouraged from taking the law into their own hands by removing and replacing boundary fences without discussion, even if that does not result in any financial cost to their neighbours,” the referee said.

The neighbours had suffered a loss of enjoyment of their property, he said.

He ordered the hedge killers to pay their neighbours just over $5000.

Fencing land grab

A messy dispute erupted between a trust that owned a property and its neighbour who had inadvertently built a boundary wall and fence that was in the wrong place while renovating their garden.

They had put the wall and fence up on the same line as an existing fence that had separated the two properties.

The wall and fence were 30cm to 40cm on the trust’s land, and the trust wanted it removed, and asked the tribunal for an order to that effect.

Referee L Trevelyan said the Fencing Act said a fence must not encroach on a neighbour’s land to any degree whatsoever, unless there has been consent form the owner of the neighbouring land, or an order under the Fencing Act.

But there were two exceptions that meant the wall and fence did not need to be immediately removed at the expense of the people who had it built, the referee said.

The first was that the encroachment was minimal. The second was that the fence was having no adverse impact on the trust, which had left the property vacant for some time.

That could change, if the trust proceeded with a plan to subdivide the land, Trevelyan said.

Financial pressure follows fencing dispute over

A storm damaged the fence between a permanent resident’s home in a beach community, and the bach next door.

Both owners got insurance money to put in a new fence, and the permanent resident and bach owners agreed on a course of action.

But communications went awry and a dispute blew up over whose side the fence boards would be nailed, and who would get the fence posts facing in.

The bach was co-owned, and one of the owners had told the permanent resident she was happy to have the fence posts visible from the bach side.

But when her co-owner saw the fence being erected, he threw a wobbly, and said he would not contribute any money towards the fence being built.

Tribunal referee C Dawes said that had left the permanent resident under financial pressure, having paid out the full cost of the fence.

While the Fencing Act governs fencing disputes, Dawes said the Disputes Tribunal was required to determine disputes according to the merits and justice of each.

So while the permanent resident did not have a binding agreement with the owners of the bach next door, it would be unfair for the bach-owners to get a fence for free.

Dawes ordered them to pay the permanent resident $3785.

Unilateral corrugated iron fence

A couple asked the tribunal to order a corrugated iron fence erected by a business that owned a property next door be removed.

The fence had been put with without any consultation.

The business thought it had found a loophole in the Fencing Act, which only covers boundary fences. It said the 1.8m corrugated iron fence was on its side of the boundary, so it could do what it liked.

That argument did not convince referee Nigel Wolland as the posts to which the corrugated iron was nailed were attached to the existing fence posts on the boundary line.

“I do not accept that submission in as much that the boundary fence is considered to be shared in whole by each of the parties and any work completed on the fence has an effect on both parties,” he said.

He ordered the corrugated iron removed.

Take down those pants

A couple were not concerned about the 2m fence between their place and their neighbours.

What bothered them were the pants, knickers and bras hung on tree branches, and washing lines string so high, they could be seen .

They were also unimpressed by screens erected over it, and asked the tribunal to order their neighbour to take down the unsightly items.

The pants-hanging neighours were willing to “negotiate” over the screens, the tribunal heard, but ultimately, referee Nicholas Blake said the boundary dispute was one that lay outside of the tribunal’s power to deal with.

The complaining homeowners had “shown that the appearance of the makeshift screens and washing, which are near their fence and constantly visible to them, are unappealing to them, and the reasons for that,” Blake said.

“However, the Disputes Tribunal cannot make an order that they be removed. The items are on [the neighbours’ property, and have not caused any damage to property owned by [the complainants],” he said.

Insurer’s dodgy decision after flood

After flooding damaged a 20-metre section of fence between homes in Auckland in early 2023, their insurer (they both used the same one in New Zealand’s highly-concentrated insurance market) decided just 6m of the fence damage was due to the flooding.

Referee D Alofivae could find no evidence that justified this decision, and ordered the insurer to pay up to fix the whole fence, which needed re-aligning after the flood.