Western Australian Current Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]


11 .         Cases where owner of adjoining land cannot be found

        (1)         Where the owner of land satisfies the court at the place nearest to the place where he proposes to construct a dividing fence, that he has made reasonable inquiries and has been unable to ascertain the whereabouts of the owner of the adjoining land for the purpose of giving a notice as required by section 8, the court may, upon application in the prescribed form by the first-mentioned owner for an order authorising the construction of a dividing fence as set out in the application, proceed ex parte to make an order authorising the applicant to construct a fence of the kind specified in the order upon the boundary or line specified therein.

        (2)         Where a person constructs a dividing fence in compliance with an order made under subsection (1), if afterwards during the continuance of that fence, the person ascertains the whereabouts of the owner of the adjoining land, whether or not such owner was the owner of the land at the time of the construction of the fence, the person may give to such owner a copy of the order.

        (3)         The owner to whom the copy of the order is given shall, after the expiration of one month from the date the notice is given to him, be liable to pay to the person who constructed the fence half the value of the fence at the date of the giving of the copy of the order.

        (4)         If the owner to whom the copy of the order is given considers the order inequitable, the court may, on an application by that owner made within one month after the giving to him of the copy of the order —

            (a)         relieve the applicant from a portion of the sum claimed as the value of the fence; and

            (b)         order that the position of the fence be altered on such terms as the court may think fit.

        (5)         The value of the fence shall be ascertained as soon as practicable after the giving of the copy of the order, pursuant to subsection (3), and, in default of agreement between the owners, the value may, on an application by either of them, be determined by the court.

        (6)         Where an owner has obtained an ex parte order under subsection (1) he shall, within 21 days, give or cause to be given to the chief executive officer of the local government of the district in which the fence referred to in that order is to be constructed, a copy of that order, and if the owner fails to comply with this subsection he is not entitled to recover any portion of the cost of constructing the fence from the owner to whom the copy of the order is given under this section.

        [Section 11 amended: No. 14 of 1996 s. 4; No. 59 of 2004 s. 141.]

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback