Western Australian Current Acts Western Australian Current Acts (1) The owner of land
separated from adjoining land by a dividing fence may give a notice to the
owner of the adjoining land requiring him to assist in repairing the fence.
(2) A notice given
pursuant to subsection (1) may state that the owner giving the notice —
(a) is
prepared to repair the fence at his cost and the cost of the owner to whom the
notice is given, in equal shares; or
(b) is
prepared to permit the owner to whom the notice is given to repair the fence
at the cost of both the owners, in equal shares; or
(c) is
prepared to bear half of the cost of having the fence repaired by a third
party,
and shall contain a
proposal for repairing the fence upon the previous or other line, specifying
the kind and extent of repairs and the line upon which they are to be
effected.
(3) An owner who has
been given a notice pursuant to subsection (1) shall, within 14 days of the
receipt by him of the notice, advise in writing the owner giving the notice
that —
(a) he
is prepared to join in the repairing of the fence in such one of the
alternative manners set out in the notice as he specifies in the advice; or
(b) he
disputes the need for repairing the fence and is not prepared to bear any
portion of the cost of repairing the fence; or
(c) he
objects to the kind and extent of repairs or the line upon which the repairs
are to be effected.
(4) Where an owner who
has been given a notice pursuant to subsection (1) advises, in writing, the
owner giving the notice that he disputes the need for repairing the fence and
is not prepared to bear any part of the cost of repairing it or objects to the
kind and extent of repairs or the line upon which the repairs are to be
effected as provided in subsection (3), the owner who gave the notice may
apply to the court at the place nearest to the place where the fence is
situated claiming that the owner of the adjoining land has failed to assist in
repairing the fence in accordance with this section.
(5) The court on an
application made pursuant to subsection (4) may by order determine —
(a)
whether the fence is in need of repair;
(b) if
so, the kind and extent of repairs and by whom the repairs are to be effected
and the period within which they are to be carried out,
and if the court
thinks it is necessary, the court may determine —
(c) the
line upon which the repairs are to be effected; and
(d) the
compensation to be paid by one owner to the other owner in consideration of
any extra expense involved in the provision of additional fencing because of
re-alignment; and
(e) the
compensation in the form of an annual payment to be paid by one owner to the
other owner in consideration of loss of occupation of any of his land.
(5a) Where an order
made under subsection (5) determines that the repairs to a fence are to be
effected otherwise than on the common boundary of adjoining lands, the
occupation of land on either side of that repaired fence in pursuance of or as
a result of that order is not and shall not be deemed adverse possession as
against the owner of the land or affect the title to or possession of the land
except for the purposes of this Act.
(5b) When making an
order under this section, the court shall be guided as to the kind and extent
of repairs the court orders by the kind of fence in use in the locality where
it is proposed to repair the fence, the purpose for which the lands that are
or will be separated by the fence are used, and the type of sufficient fence
(if any) prescribed under a local law made by a local government for that
locality.
(6) An order of the
court made pursuant to subsection (5) is final.
(7) Where an owner,
who has been given a notice pursuant to subsection (1), fails to advise the
owner giving the notice as provided in subsection (3) within 14 days after the
receipt by him of the notice, the owner giving the notice may repair the fence
and demand and recover from the owner to whom the notice was given, one-half
of the cost of repairing the fence, but if —
(a) any
dividing fence has been constructed partly by one owner and partly by another
owner each shall bear the cost of repairing the part so constructed by him;
(b) any
dividing fence or any portion thereof is damaged or destroyed by flood, fire,
lightning, storm, tempest or accident the owner of the land on either side of
the fence may immediately repair it without any notice to the other owner and
is entitled to recover half of the expenses of so doing from the owner of the
adjoining land;
(c) any
dividing fence is damaged or destroyed in whole or in part by fire or by the
falling of any tree or portion thereof the owner of the land through whose
neglect the fire originated or caused damage or destruction to the fence, or
the tree or part thereof fell, is bound to repair or renew as soon as
practicable after the damage or destruction occurs the fence so damaged or
destroyed.
(8) If an owner of
land who is liable under subsection (7)(c) to repair or renew a dividing fence
fails to do so, the owner of the adjoining land may repair or renew the fence
and recover from the owner so liable and in default the whole of the cost of
the repair or renewal.
[Section 15 amended: No. 5 of 1969 s. 5; No. 14 of
1996 s. 4; No. 59 of 2004 s. 141.]