Statutory Interpretation: Dividing Fences Act 1991 - Math Problem Example

Statutory Interpretation: Dividing Fences Act 1991 [Name] [Professor Name] [Course] [Date] Abstract: The Dividing Fences Act 1991 sets out the rules regulating how the cost of a dividing fence, a common fence that separates the land owned by adjoining land owners, can be shared among the concerned land owners. It also specifies the types and specification of the fence. According to the Dividing Fences Act 1991, section 3, the dividing fence may constitute any structure, hedge or embankment that separate these landowners with the exception of a wall that forms part of a building or a retaining wall. This paper interprets the Act using different scenarios. Statutory Interpretation: Dividing Fences Act 1991 Outline The Dividing Fences Act 1991 in South Wales specifies the neighbors’ mutual obligations with regard to the construction of a common fence. The fundamental principle of the Dividing Fences Act 1991 is that the costs of constructing these common fences should be shared among the neighbors1. It further points out the procedure for finding solutions to the disputes resulting from the type, cost and the position of a common fence. Thus the adjoining land owners are responsible for sharing equally the costs of paying for the entire construction cost in a “sufficient diving fence,” as stipulated by Dividing Fences Act 1991, Part 2 Section 62. Case Analysis (a) Nathan’s claim of the cost of repairing the fence Nathan cannot claim the whole amount of the cost of repairing the fence. The law, according to Dividing Fences Act 1991 No 72 Part 2 Section 8 (1), requires that the cost of the dividing fence that needs repairing because of the negligent damage resulting from the carelessness of the adjoining neighbor, or his associates, be met by that negligent neighbor. However, in the present scenario depicting Nathan and Julia, it can be argued that Nathan never issued Julia the fencing notice to construct the relatively expensive new section of the common fence, built with wire and posts, which cost nearly $15000. Nathan’s conduct contravened the Dividing Fences Act 1991 Section 7 (2), which specifies that the adjoining land owner who wishes to build a common fence to the standard that is greater than a “sufficient diving fence” is responsible for the fencing work to the level that is greater than the standard for a “sufficient diving fence.” In the case Brown v Doyle3, even though the judge considered an appeal where the land board had held the proposals of one party other than that of the other party with regard to a new fence be considered, he did not make a decision on whether it was a sufficient diving fence as specified by Dividing Fences Act 1991 Section 6. The judge’s of the relationship between Sections 14 and 6 of the Act was obiter dictum. The case was therefore dismissed. This therefore means that Julian would be expected to only pay the amount that does not exceed the standard for “sufficient diving fence.” In addition, Julia would not be expected to pay the entire cost of the new section of the fence that was destroyed by fire since she had never been served with a fencing notice as required by the Dividing Fences Act 1991. The fencing notice must include the details of the estimated cost of the fencing construction as well as other details, upon which if the cost is to be shared other than in equal proportions, then the intended proportions should be stated. This again was not the case with the Nathan and Julian scenario. In any case, the adjoining neighbor would still be liable to meet half the cost, although it can be reviewed by the Local Land Board. An exception to sharing costs occurs when the fence has to be replaced or repaired due to damages resulting from the actions of one of the adjoining owners or someone acting with his permission. However, this situation is only applicable to standard of the fence, in this case “the sufficient diving fence.” The issue in this scenario is therefore the standard of the fence that was built by Nathan4. (b) Evan’s liability to contribute to the cost of planting the hedge Basing on the interpretation of the Diving Fence Act 1991, Evan is not liable to contribute to the costs of planting the hedge. First, she was never served with a Fencing Notice. Even though Dividing Fences Act 1991 Section 7(1) points out that adjoining land owners are held as legally responsible to share the costs of the construction works of the “sufficient diving fence” equally, this is only applicable in situations where the land owner who wants the adjoining land owner to share the costs of the fence serves a Fencing Notice to the adjoining owner before the construction works gets started. However, this was not the case as Evan seemed to be against the idea of the fence and therefore did not approve it claiming that the wire fence was enough. The basic principle is that if a land owner wants to construct a fence, he should consult his adjoining neighbor first, so that they can agree on the type or cost of the fence. Besides a sufficient dividing fence existed prior to Julie’s decision to plant the hedge5. A case in point is the Alwiah v Watts6, where the primary judge dismissed the proceedings on grounds that the plaintiff has failed to convince the court that the existing dividing fence was indeed an insufficient diving fence. The judge further held that there had not been prior consultation; even though the defendant was served with a fencing notice, he did not accede to what had been proposed. The content of the Dividing Fences 1991 Act demonstrates that the jurisdiction’s power to make an order depends on the grounds that there is insufficient diving fence between the adjoining lands. Such a finding brings about the liability demonstrated in Section 6 of the Act, and further enables the jurisdiction to make orders pursuant to Section 147. Evan’s order to remove the Hedge However, Evan cannot seek an order that the fence be removed unless his decision is in compliance with State Environmental Planning Policies Seniors Living cl.38(4)(c) Pursuant to s 79(c)(1)(a)(i) of the State Environmental Planning Polices (Seniors Living) and Environmental Planning and Assessment Act 1979. Evan can seek another legal channel, for instance, he apply for an order to remove the hedge, but only if he proves that the fence is an environmental hazard or fails to comply with the state planning policies. A case that demonstrates such an incidence Mete v Warringah 8where the court held that the application was not made pursuant to State Environmental Planning Policy Seniors Living 2004, thus 2, 3 and 4 fall away. Therefore the applicable statute under the Environmental Planning and Assessment Act 1979 is the Warringah Local Environmental Plan 2000. (c) Wesley’s liability in repairing to the wall Wesley is not liable for the repair of the walls, since from the description of the walls that divide his portion of land and that of Julia, they can be described as retaining walls -- as the structure supports filled up earth or excavated earth on a property. The Dividing Fence Act 1991 does not cover retaining walls (Dividing Fences Act 1991, section 3). This however means that it would still be important for Julia and Wesley to establish whether the structure is really a retaining wall or a diving fence. A case that demonstrates this scenario is the Kontikis v Schreiner9. Even though the Dividing Fence Act 1991 regulated the obligations of the neighbors towards sharing fencing costs and responsibilities, it does not prevent the adjoining neighbors from reaching their own agreement on the fence, for instance, whether one of the neighbors will pay for the entire cost of the fence10. (d) Minister’s second reading speech on Dividing Fences Bill and significance on the purpose of the Act? Concerning the former Minister for Planning and Minister for Energy’s (Hon R. J. Webster’s) second reading of the Dividing Fences Bill, the bill was intended to reform the law that determined the contributions that the adjoining landowners had to make towards the cost of the dividing fence. Following the analysis of the speech, it can be established that the Dividing Fences Bill was made with the purpose of detailing the procedure for resolving disagreements of disputes between neighbours over the types, cost and position of the fences. The speech demonstrates that the existing legislation must have failed to effectively resolve such conflicts and only served to aggravate them. The act in question in this was the Dividing Fences Act 1828 which had been strengthened without amendment into the 1902 Act, and subsequently the Dividing Act 1951. It can further be noted that Dividing Fences Bill in 1991 was intended to replace the Dividing Fences Act 1951, that had been extensively based on the Victorian Act 1928 and the South Australian ACT, both of which are exposed in the speech as having been confusing provisions11. Comity between the Courts and Parliament The speech on the Second Reading of the Dividing Fences Bill can be used in the court of law to assist in interpreting the Dividing Fences Act, under the principle of comity between the courts and the parliament. This is as specified in the Parliamentary Privileges Act, 1987. As means through which the principle is applicable on the side of the parliament is under the sub judice principles, which prevent the case that undergo proceedings in the court to be discussed in the parliament. In return, the courts cannot question the proceedings of the parliament. The principle of comity is not absolute and in cases where speeches can be helpful in interpreting some statutes, such as the Dividing Fences Act 1991, then the speeches or parliament records can be used as reference subject to injunction. Conclusion This paper concludes that Nathan cannot claim the whole amount of the cost of repairing the fence. It also argues that Evan is liable to contribute to the cost of planting the hedge and that he cannot seek an order that the hedge be removed unless he has proof that it violates the states regulations on environment. Also, Wesley is not liable for the repairs to the retaining wall and finally the minister’ s second reading, which can be used in the court under the principle of comity, helps in the interpretation of the Dividing Fences Act 1991. References Case Notes Alwiah v Watts [2004] NSWSC 948 Brown v Doyle [2010] NSWSC 1269 Kontikis v Schreiner (1989) 16 NSWLR 706 Mete v Warringah 2004 NSWLEC 273 Mezzagosto v Carnuccio & Anor [2004] NSWSC 285 Articles Needham, J & Hill, S. 2008. Neighbours and the Law. Sydney. Land Council of South Wales New South Wales. 1991. Dividing Fences Act 1991 No. 72. (Online) Retrieved from: [http://www.legislation.nsw.gov.au/sessionalview/sessional/act/1991-72.pdf] Accessed 2 May 2013 NRCLC. n.d. Dividing Fences Residential and Rural. (Online) Retrieved from: [http://www.nrclc.org.au/SiteMedia/w3svc728/Uploads/Documents/Dividing%20Fences%20Fact%20Sheet.pdf] Accessed 2 May 2013 Parliament of New South Wales. 10 Dec 1991. Dividing Fences Bill: The Second Reading. (Online) Retrieved from: [http://www.parliament.nsw.gov.au/prod/parlment/hansart.nsf/V3Key/LC1991121103] Accessed 3 May 2013 Truelocal.com.au. 2009. Dividing Fences and Retaining Walls. (Online) Retrieved from [http://media.truelocal.com.au/C/4/C7BCC3AF-D7C9-4D15-B7BD-900712DA43F4/1338797349066_Thelawondividingfences.pdf] Accessed 2 May 2013 Read More