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Fencing Permit Condition Adjoining Council Land

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Customer Query:

A Council issued a permit to subdivide a property which included a permit condition that required the subdividor to fence a boundary that was common with Council Land. A legal opinion obtained stated:

The critical question is:is the land designated as Reserve or POS. If it is not and it is just a piece of land owned by Council, then the condition is unlawful and Council are trying to avoid their responsibilites under the Boundary Fences Act. The Act exempts Crown Land and Public Reserves. Note there is no definition of 'Public Reserve' in the act, just common law.

Note the zoning of the land does not effect this opinion.

Our Thoughts:

Council's do not have the right to ask you to fence land adjoining their own land unless it is a reserve or Public Open Space.

We can determine the status of the adjoining land and confirm the ownership followed by advice in relation to solving the issue with Council. NOTE that if such a condition is a permit condition the matter must be followed up within 14 days of receipt of the permit.