Western Australian Current Acts

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5 .         Terms used

        (1)         In this Act, unless the contrary intention appears, —

        court means the Magistrates Court;

        dividing fence means a fence that separates the lands of different owners whether the fence is on the common boundary of adjoining lands or on a line other than the common boundary;

        lease includes an original or derivative lease or an under-lease or an agreement for a lease;

        owner , in relation to land, includes, subject to subsection (2), every person who —

            (a)         jointly or severally, whether at law or in equity —

                  (i)         is entitled to land for any estate of freehold in possession; or

                  (ii)         is entitled to receive or is in receipt of or if the land were let to a tenant would be entitled to receive the rents and profits of the land, whether as beneficial owner, trustee, mortgagee in possession, or otherwise;


            (b)         is the holder of a lease of land the unexpired term of which is not less than 5 years at the time —

                  (i)         notice to fence is given by or to him pursuant to section 8;

                  (ii)         he makes application to the court under section 11(1);

                  (iii)         a copy of an order made pursuant to section 11(2) is given to him;

                  (iv)         notice is given by or to him pursuant to section 15,

        but does not include any trustees or other persons in whom land is vested as a public reserve, public park or for such other public purposes as may be prescribed, or a person who has the care, control and management of a public reserve, public park or land used for such other public purposes as may be prescribed;

        repair includes re-erect and re-align and inflexions of the word repair include corresponding meanings;

        section means section of this Act;

        sufficient fence , in relation to a dividing fence or a boundary fence referred to in section 16, means —

            (a)         any fence prescribed by a local law as a sufficient fence for the part of the local government district in which the dividing fence or boundary fence is, or is to be, erected; or

            (b)         any fence of the description and quality agreed upon by the parties concerned which does not fail to comply with any local law referred to in paragraph (a),

        or where no such local law or agreement is made, means —

            (c)         any substantial fence that is ordinarily capable of resisting the trespass of cattle and sheep; or

            (d)         any fence determined to be a sufficient fence by the court pursuant to this Act;

        surveyor means a surveyor licensed under the Licensed Surveyors Act 1909 .

        (2)         For a community scheme under the Community Titles Act 2018 , the owner of land is to be determined as follows —

            (a)         if the by-laws of a community titles scheme under that Act determine who is to be the owner for the purposes of this Act, the owner is to be determined according to those by-laws;

            (b)         in any other case —

                  (i)         if the land is a lot under that Act, the owner of the land is the owner of the lot under that Act;

                  (ii)         if the land is common property under that Act, the owner of the land is the community corporation for the community titles scheme to which the common property belongs.

        [Section 5 amended: No. 5 of 1969 s. 2; No. 14 of 1996 s. 4; No. 79 of 1996 s. 28; No. 59 of 2004 s. 141; No. 32 of 2018 s. 201.]

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