17 March 2015

Fencing: Gosney v. Ngai Tahu

In the 1860s objections by Taranaki Maori to colonial settlement saw survey pegs pulled out as a mark of resistance.  Now 150 years on, Ngai Tahu faced similar tactics and sued a Christchurch couple for tearing down a disputed boundary fence.
The High Court was told Brian Gosney and Audrey Edwards object to a fence being constructed on their boundary by Ngai Tahu at its Prestons subdivision in north-east Christchurch.  There were initial arguments over the precise boundary and an ongoing dispute over access.  The District Court issued an injunction preventing Mr Gosney and Ms Edwards from obstructing construction.  They appealed.
The Fencing Act sets out rules governing boundary fences.  If neighbours can agree on the style and positioning of a fence, their agreement prevails.  Failing that, a court order is required.
Ngai Tahu argued that since it was paying the full cost of the fence, it was free to decide the style of fence and then build it on the boundary line.  Justice Gendall disagreed.  He said even when one neighbour is meeting the full cost, the fence cannot straddle the boundary line without the neighbours’ consent.  This amounts to a trespass on the neighbouring property.  Ngai Tahu was trespassing on the neighbours land by constructing a fence on the boundary line without either the neighbours’ consent or a court order, His Honour said.
Justice Gendall said this situation requires nothing more or less than discussion and negotiation between the neighbours.  He ordered that the District Court injunction expire after fourteen days, with the two week delay intended to give the warring neighbours time to reach some agreement.
Gosney v. Ngai Tahu – High Court (17.03.15)

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