Western Australian Current Acts

DIVIDING FENCES ACT 1961 - SECT 9

9 .         Proceedings in default of agreement

        (1)         If within 21 days after the giving of a notice referred to in section 8, the owner giving and the owner receiving the notice do not agree as to all or any of the following matters —

            (a)         as to the need for the construction of the dividing fence; or

            (b)         the boundary or line upon which it is proposed to construct the fence; or

            (c)         the kind of dividing fence that is to be constructed,

                the court at the place nearest to the place where it is proposed to erect the fence, on an application by either of those owners may make an order determining all or any of the following matters on which the owners are not in agreement —

            (d)         as to the need for and the kind of fence to be constructed; and

            (e)         what portion of the fence shall be constructed by each owner; and

            (f)         the time within which the fence shall be constructed,

                and if the court thinks it is necessary, the court may determine —

            (g)         the boundary or line upon which the dividing fence is to be constructed; and

            (h)         the compensation in the form of an annual payment to be paid by the one owner to the other owner in consideration of loss of occupation of any land.

        (2)         Where an order made under subsection (1) determines that the dividing fence is to be constructed otherwise than on the common boundary of adjoining lands, the occupation of land on either side of that fence in pursuance of or as a result of the 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.

        (3)         When making an order under this section, the court shall be guided as to the type of sufficient fence the court orders to be constructed by the kind of fence usually constructed in the locality where it is proposed to construct the fence, the purpose for which the lands that will be separated by the fence are used and the type of sufficient fence (if any) prescribed under a local law made by the local government for that locality.

        (4)         An order of the court made under this section is final.

        [Section 9 amended: No. 14 of 1996 s. 4; No. 59 of 2004 s. 141.]