The law relating to the construction and repair of boundary fences in Tasmania is contained in the Boundary Fences Act 1908 (Tas) (BFA). The BFA has remained substantially unchanged since 1908. The BFA was the subject of a Law Reform Commission of Tasmania Report in 1984 (No 37 of 1984) but, at the time of writing (2013) this report had yet to be acted upon, and is unlikely to be acted upon, considering the lapse of time.
Exemptions from the Act
Unoccupied Crown lands and public reserves are exempted from the application of the BFA (s6). It is not clear whether the phrase “public reserves” refers solely to Crown public reserves, or to all public reserves including those controlled by local authorities. Different local authorities in Tasmania have adopted different policies on accepting liability for sharing the cost of fencing boundaries between private properties and reserves.
The Crown is not liable to make any contribution towards the erection or repair of any fence between Crown lands and adjoining lands (s6). The Forestry Commission is not liable to make any contribution towards the erection or repair of any dividing fence between land owned by the Commission and adjoining owners (s6A). Authorities in charge of roads are not liable to make any contribution towards the erection or repair of fences between roads and the land adjoining roads (s7).
Erection of Fences
Fences between properties must be sufficient or ‘rabbit proof’. In town, boundary fences must have council planning approval only if the fence is to be taller than 2.1 metres high. Sufficient in town means a fence that neighbours have agreed upon. On properties out of town, this means capable of excluding livestock.
It is an offence to plant gorse, briar or bramble on any boundary without the consent of the owner of the adjoining land (s20).
Repair of Fences
Where a fence is out of repair or becomes insufficient, the owners of land on either side are liable for the cost of repairing the fence in equal proportions (s22). Similar provisions apply in relation to the state of rabbit-proof fences.
Accidental or Wilful Damage
If a fence, or part of a fence, is damaged or destroyed by accident or wilfully, it appears that either adjoining owner, after giving the other owner 7 days’ notice, has the power to repair or renew the fence and to recover half the costs of doing so from the other owner within 12 months (s24(1)). If a fence is damaged or destroyed by fire, a falling tree, or stock, the owner responsible for the cause of damage must repair any damage to or renew the fence.
If any dispute or difference between adjoining owners, or an owner and occupier of the same property, cannot be resolved it can be decided by arbitration in the manner referred to in the BFA although the right of a person to sue through the courts to recover compensation for any damage or injury caused by the reckless use of fire is preserved. The costs of the arbitration are to be borne by the parties in such proportions as the arbitrator may determine.
Many problems or disputes between neighbours occur because people, animals or things cross the boundary. Normally it does not matter in such a dispute whether there is a fence or not. The boundary still exists without a fence.
Under section 44 of the Boundary Fences Act 1908, a person may enter adjoining land for the purposes of effecting repairs on a boundary fence. Where the neighbour refuses to permit access an application can be made to a Magistrate for an order to allow such access under the Access to Neighbouring Lands Act 1992 (Tas). An application can also be made if access to adjoining land is necessary for other repairs.