One of the issues that arise when livestock go wandering and cause damage to neighbouring properties is who becomes liable?
There are some fairly serious issues that can arise, particularly where, for example, livestock from a pastoral farm gets into a cropping property or orchard land. Damage could not only relate to the crops eaten or destroyed but also could cause issues with export or organic certification. As a result, losses caused by wandering or trespassing livestock could be significantly higher than the value of the damaged crops.
Right to impound wandering stock
The Impounding Act 1955 gives you the right to ‘impound’ livestock that has wandered on to your land. In the case of pigs, poultry, or goats (except for branded angora, Saanen, or Toggenburg goats), you may destroy them if your land is fenced and sown in grass or under cultivation.[1] We have more on this further down this article.
Seeking damages from stock owner
The occupier of land trespassed by livestock may only demand, or recover, damages from the owner of the stock where:
- The trespassed land is fenced, or
- You prove that the trespass was not wholly or partly due to the fact that the land or the portion trespassed on was not fenced, or
- Where the livestock trespasses on any unfenced land from the adjoining farmer’s land, you can prove that the trespass onto the adjoining land was
- not wholly or partly due to the fact that the adjoining land was not fenced, or
- The land (whether fenced or unfenced) is situated in a city.
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Jane Argyle-Reed
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Damages cannot be sought where the trespassed land is unfenced and has a frontage to a road that’s declared to be a stock route by your local authority and the stock is being driven along the road at the time the damage occurs. Any conditions imposed by your local authority for moving stock must have also been adhered to.
The damages for trespass[2] are recoverable from the owner of the livestock. Under this legislation, the quantum of damages is any damages whatsoever on account of the trespass by any livestock.[3]
The owner of the trespassed land can choose to seek ‘trespass rates’ instead of damages.[4] Trespass rates are fairly low, and you would usually only choose this option when seeking damages where the wandering stock were simply grazing as opposed to damaging any crops. Having said that, the trespass rates for livestock trespassing on growing crops is higher than the trespass rates for animals trespassing on ‘any paddock of grass
or stubble’.
Defining a fence
Farms need good fences. Generally, any fencing should comply with what’s termed ‘adequate fences’ in the Fencing Act 1978. An adequate fence must be — due to its nature, condition, and state of repair — reasonably satisfactory for the purpose that it’s intended to serve. Therefore, when you’re erecting fencing for livestock, it must be satisfactory to achieve the purpose of keeping the livestock within your property.
Impounding
If a landowner wants to impound trespassing livestock, they have the right to impound the livestock in the nearest accessible pound to the place where the livestock was found trespassing. Each local authority must provide and maintain a public pound. The local authority may also declare any fenced paddock or yard adjacent to a road to be a temporary pound for impounding livestock wandering on roads, if the owner of that land consents.
Another option is for an occupier of land to impound the livestock on their own land or the land that they are occupying ‘in any convenient place’ if you know the owner of the livestock.
If you impound the livestock on your own land, you must notify the stock owner within 24 hours of the impounding. You also have an obligation to feed and maintain the livestock while they are impounded in your care.
Destroying pigs, goats, and chickens
The occupier of any fenced land sown in grass, or under cultivation, has the right to destroy any poultry, pigs, or goats (except for branded angora, Saanen, or Toggenburg goats) that are found trespassing.[5]
Within 24 hours of destroying any animal or bird, the occupier must send, in writing, a description of the animal or bird destroyed and the place where it was destroyed to the owner, if they are known, and if not known, to their nearest police station.
Health and safety requirements
Wandering stock also imposes obligations under the Health and Safety at Work Act 2015 (HSWA). A person conducting a business or undertaking (PCBU) who manages or controls a workplace must ensure, so far as reasonably practicable, that the workplace, means of entering and exiting a workplace, and anything arising from the workplace are without risks to the health and safety of any person.
If your livestock wander onto the road or another property, there’s the possibility that they pose a health and safety risk to other people. Therefore, you (as a PCBU) may be in breach of your obligations under the HSWA and liable to pay a significant fine if, for example, livestock wander onto the road and cause an accident.
Wandering livestock are not only a nuisance for all concerned but they can also cause serious injuries or fatalities.
If there has been a breach of the HSWA causing a serious injury or death because of your wandering livestock, you may face a fine of up to $150,000 or $300,000 if you’re a PCBU.
If your behaviour is found to be reckless, you could also face imprisonment and more significant fines could be imposed.
Jane Argyle-Reed is a director of law firm, Argyle Welsh Finnigan Limited. It has offices in Ashburton and Rolleston.
She specialises in rural matters as well as employment law, dispute resolution, and relationship property matters. Jane and her husband Simon farm 400 hectares in an arable farming operation based in both the Selwyn and mid-Canterbury districts.
Argyle Welsh Finnigan Limited is a member of NZ LAW Limited, an association of 59 independent law firms practising in more than 80 locations.
Information given in this column should not be a substitute for legal advice.
[1] Impounding Act 1955, s 31
[2] Ibid, s 26
[3] Ibid, s 26
[4] Ibid, s 27
[5] Ibid, s 31
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