While farmers essentially have the responsibility of keeping out straying livestock rather than a duty to keep their own livestock in, there can be other consequences if livestock strays from inadequately fenced land.
Those consequences arise under the Impounding Act 1955, the Animals Law Reform Act 1989 and the Transit New Zealand Act 1989.
In the 1950s and 1960s there were Court decisions which found that there was no duty on the owner or occupier of land adjoining a road to prevent stock from straying on to roads. However the position changed with the enactment of the Transit New Zealand Act and the Animals Law Reform Act.
Section 5 of the Animals Law Reform Act implies that compensation may be claimed for damage caused by an animal straying on to a road based on the negligence of the owner or occupier of adjoining land. Subsection (2) provides that if a claim is made then:
… consideration shall be given, amongst any other matters that are required or entitled to be considered, to –
(a) The common practice, in the locality in which the relevant part of the highway is located, in relation to fencing, and the taking of other measures to prevent animals from straying onto highways in that locality; and
(b) Any measures taken to warn users of that highway of the likely presence of animals on the highway.
For land fronting a State Highway there are even stricter provisions applicable. With certain limited exceptions the Transit New Zealand Act provides that no person may allow any animal that ought to be under that person’s control to be on any motorway and that person will be liable for any damage that may result from a collision with the animal unless it can be proved that this was not due to any negligence on that person’s part.
On all roads and highways, if stock is found straying or wandering (or even tethered in a manner which may obstruct or be reasonably likely to obstruct the road) it may be impounded and the owner will be liable for fees charges and fines payable under the Impounding Act.
There is provision under the Impounding Act for a Local Authority to declare that a particular road is used so infrequently by vehicles that depasturing stock will not constitute an inconvenience or danger to road users where the road is unfenced or only partially fenced. There must be a permanent warning on the road and the Local Authority can require the erection of cattle stops or swing gates.
Overall though, with the increasing urbanisation of New Zealand and the increased numbers of motor vehicles using our roads, the onus on farmers to have fencing completed to prevent livestock straying on to roads continues to increase.