What law applies to fences in New Zealand?

The Fencing Act 1978 generally governs the building and maintenance of fences.

What law applies to retaining walls in New Zealand?

In some cases the Fencing Act 1978 will apply to retaining walls, if they are operating as a boundary fence.  However there is also a ‘right of support’ under the common law where  owners of land must not remove any existing support (e.g. a retaining wall) without replacing it with appropriate alternative support.  The law regarding retaining walls is complex and often you will need to take legal advice if you and your neighbour cannot agree on who pays for a retaining wall or its repair.

When is a building consent required?

The Building Act 2004 requires building consents for fences over 2.5 metres high, and for retaining walls over 1.5 metres high.

Are there any other things to bear in mind when building a fence or retaining wall?\

You may also need to consider requirements or restrictions in any covenants on the land, as in certain subdivisions there may be a restriction on the materials with which a fence may be built, or the colour of a fence. 

You may also need to consider putting in place an easement if a retaining wall encroaches or relies on a neighbour’s land (e.g. by the use of rock anchors).

Who pays for a boundary fence?

Usually, neighbours on either side of a boundary fence will be required to equally share the costs of building or replacing a fence, under the Fencing Act.

When do costs not have to be shared equally?

Costs do not have to be shared equally when the fence is damaged by one of the neighbours who share the fence, by mutual agreement, or when there is an existing covenant or arrangement in place (most commonly in new subdivisions) that states how costs shall be shared.

What is the process for notifying my neighbour that a new fence is needed?

The Fencing Act requires you to issue a notice (a ‘fencing notice’) to the neighbour where the current fence is not adequate.  This must include the description of boundary to be fenced, type of fence, method of construction, estimated total cost, how materials to be purchased or supplied and how paid for, and the date for commencement of work.

What if my neighbour disagrees with my proposed new fence as described in the notice?

Your neighbour has 21 days after receiving the notice to object and make counter-proposals (i.e. suggest a different type of fence, or dispute that a new fence is needed), via a ‘cross notice’.

What happens if you hadn’t notified your neighbour before building a fence?

If the building of the fence was not urgent, and you did not notify your neighbour in advance via a fencing notice, your neighbour can refuse to pay their share of costs of building the fence.

What happens when you can’t agree with your neighbour?

If you have followed the process outlined in the Fencing Act (providing the correct notices to your neighbour, etc.) but cannot agree, you can pursue resolution through mediation, arbitration, Disputes Tribunal, or filing in the District Court.

What if the repairs are urgent?

If the fence needs immediate repairs and your neighbour is away, you can carry out immediately necessary work without giving your neighbour notice and subsequently arrange for them to pay half of the cost upon their return.

This does not include circumstances where the fence is being ‘upgraded’.

It applies when the fence is being replaced ‘like for like’ or fixed to be an adequate fence (i.e. one that is adequate in nature, condition, and state of repair, is reasonably satisfactory for the purpose that it serves or is intended to serve).

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Claire Tyler and Raiyan Azmi