Bad fences cause trouble

If you move stock make sure the fencing is appropriate. Photo / Duncan Brown

The liabilities you may face if stock escape can be substantial, writes Leandra Fitzgibbon

In rural New Zealand, wandering stock are a serious public safety risk. They can also cause costly damage to other people's property.

Farmers have a duty to ensure their farms are adequately fenced to contain their livestock and they're liable for any damage their wandering stock cause.

An adequate fence means a fence that, as to its nature, condition and state of repair, is reasonably satisfactory for the purpose that it serves or is intended to serve, says the Fencing Act 1978.

The courts have held that the appropriate test as to whether a fence is an adequate fence is what sort of fence a reasonable occupier would build given the purpose and the surrounding circumstances. For example, if sheep are put in a paddock fenced for cows, this may be inadequate.

If you are changing the stock in specific paddocks you need to give your neighbour a reasonable opportunity to protect their property by giving a notice under the Fencing Act or by erecting a suitable fence for keeping stock contained.

Three key pieces of legislation relate to a farmer's liability and responsibilities for wandering stock.

Impounding Act 1955
This protects road users from wandering livestock, sets rules for the management of livestock pounds and the impounding of wandering and trespassing livestock, and it protects the interests of private property owners.

If your livestock wander on to private land you can be liable for any damage that's caused. This includes any costs that result from your livestock being impounded that are incurred by the local council.

This could include transportation to the pound, advertising, impounding fees, animal control officers' time and mileage, grazing costs and any vet bills.

And if your livestock wander on to private land, the owner can charge you trespass and sustenance fees. If the owner of the land on to which your livestock have wandered isn't happy with the official trespass rates they can claim for the actual loss rather than the trespass rates. The actual loss, however, won't be payable if you can prove that your land was adequately fenced.

Animals Law Reform Act 1989
This legislation relates to liability for damage animals cause. In essence it says that those who are in charge of livestock have to take reasonable care to ensure stock straying on to roads cause no damage.

Reasonable care is to be assessed by what is the common practice in your area. This includes fencing and other measures you should take to prevent your animals from straying, and also any warning measures you may have taken in a particular case.

The Act allows for compensation to be claimed for any damage caused by wandering livestock.

Crimes Act 1961
If your livestock wander on to public roads, you can be criminally liable if you haven't taken adequate steps to secure your livestock. Potential criminal charges include criminal nuisance (maximum penalty one year's imprisonment), and endangering safety (maximum penalty three months' imprisonment or a $2000 fine).

Keep them fenced
To avoid the potential costs and liability of your livestock jumping or escaping the fence to greener pastures, it's important - as well as financially prudent - that you take all precautions to ensure your boundary fences and gates are in good repair. This may also help prevent some friction between you and your neighbours! If your stock are persistent escapers it would also pay to check that you have good public liability insurance cover in place.

Leandra Fitzgibbon is a partner in Ashburton law firm Argyle Welsh Finnigan. This article was first published in NZ LAW Limited member firms' client newsletter Fineprint.