Anthony Allen Tarplee and Ruth Tarplee v Robert Hayes and Bernadette Hayes

Notice to Carry Out Fencing Work

1. On 7 October 2014 the respondents' solicitors sent to the applicants a letter in relation to the Hebel Wall and included in that letter was what the respondent purported to be a fencing notice pursuant to s 11 of the Dividing Fences Act 1991 (called in this judgement "the Notice").
2. The Notice proposed that fencing work be carried out as follows: 1. Properties affected (street address) 1. The respondents' land; 2. The applicants' land; 1. Fencing Work: The type of fencing work proposed is to remove the New Structure (the Hebel Wall) and to restore the fence, consistent with the type of fence which existed prior to the destruction by you. Accordingly, the fence to be erected will be a paling fence of 1.5 metres high; 1. Cost: The estimated cost of the proposed fencing work is between $1,595.00 and $3,500.00. This includes the removal of the New Structure (Hebel Wall) and the erection of the replacement fence. We enclose three quotes obtained by the Hayes. 1. Apportionment of Cost: 1. In the circumstances where the Fence was destroyed by you, you are to pay the entire costs of the proposed fencing work.
3. The respondent did not agree to the proposed fencing work as set out in the Notice.

APPLICATION

1. On 7 October 2014 the Applicants filed an Application to NCAT (file number 14/51856) seeking orders that: 1. The New Fence [Hebel Wall] is a sufficient fence for the purposes of section 4 of the Act; 2. Section 8 has no application, either in regards to placing an obligation on the Tarplees to replace the New Fence [Hebel Wall] or to pay for a replacement; 3. Section 8 has no application, in regards to placing an obligation on the Tarplees to remove the remaining section of the Old Fence or to pay for its replacement; and, 4. The boundary/line on which the New Fence [Hebel Wall] is shown on the "as built" survey plan, is correct.
2. The application was filed before one month had elapsed after service of the notice to carry out fencing work as required by s12(2) of the Dividing Fences Act. The respondents do not object to the application proceeding. The applicants sought leave of the Tribunal and were granted leave file their application despite it being filed prematurely.
3. The applicants now prosecute that Application.

APPLICANTS EVIDENCE

1. The Applicants evidence is contained in the bundle of documents filed with the Tribunal on 3 December 2014 and admitted as exhibit A together with the oral evidence of Mr Tarplee given under oath, as follows: 1. Exhibit containing: 1. A chronology; 2. An unsigned and undated statement but tendered by Mr Tarplees as his statement made immediately before he filed his documents with the Tribunal; 3. A copy of a letter from Watson Mangioni, Solicitors, for the respondents' dated 7 October 2014, part of which includes the Notice; 4. A survey plan of the respondents land; 5. A quote form Sivas Renovations dated 26 September 2014 to remove the Hebel Wall and remainder of the existing dividing fence for $1,450.00; 6. A quote from Better Quality Fencing and Decking Pty Ltd undated but bearing a fax header date stamp of 30 September 2014 for the supply and installation of 14 metres of hardwood paling fence 1.5 metres high with timber or galvanised steel posts core drilled and concreted in if necessary for a price of $2,002.00 and for a similar fence that is 1.8 metres high for a price of $2,094.00; 7. A quote from Tony the Handyman to demolish and remove the Hebel Wall dated 27 September 2014 for a price of $3,500.00; 8. A copy of a Boundary Survey of the applicants land carried out by 3D Surveying and dated 16 August 2014; 9. Two photographs, one of the Hebel Wall and the other of the dividing fence before it was removed by the applicants; 10. A letter dated 17 July 1994 from the applicants to the respondents' about a proposed new dividing fence between the applicants' and the respondents' lands; 11. A second letter between the same parties dated 8 September 1994; 12. A quote for fencing dated 4 September 1994; 13. A receipt for the payment for the 1994 fence from the applicants to the respondents'; 14. A copy of a plan dated 15 March 2013 of the applicants proposed renovation showing the proposed line of the New Fence and noted in its comments "Retain existing fence to rear alignment of existing lower ground floor from rear boundary, then new lightweight AAC masonry panel boundary fence to 2100mm high to existing lower floor of dining room, piered no closer than 7m from rear boundary to protect existing tree roots". 15. A copy of a letter dated 11 May 2010 from Marrickville Council to the applicants giving Notice of a Proposed Development at the applicants' land; 16. A copy of 2 pages of "Display Plans" for the proposed development stamped with Councils reference Number; 17. A copy of an information sheet from Marrickville Council titled "Advice Concerning Submissions on Applications; 18. A copies of emails dated 19 May 2010, 31 July 2012; 19. A copy of a product information sheet for Hebel Fences; 20. A copy of an email dated 18 February 2013 giving the respondents' notice that the applicants proposed to start work on demolishing the existing fence and erecting the Hebel Wall on 22 February 2013; 21. A copy of an email dated 27 May 2013 from the respondent to the applicant giving notice that an arborist would be attending the lands; 22. A copy of a shadow plan of the adjoin lands drawn 15 March 2013; 23. Two photographs. 1. Exhibit B-A copy of a letter from Stephen Sainsbury Architect dated 12 January 2015 to the applicants.

RESPONDENTS' EVIDENCE

1. The Respondents' evidence is contained in the documents that they have submitted to the Tribunal on 18 December 2014 and admitted as exhibit 1 and the oral evidence of both respondents, as follows (where a documents are duplicated with the applicants documents it is not included in the list): 1. An unsigned and undated statement but tendered by Mr and Mrs Hayes as their statement made immediately before they filed their documents with the Tribunal; 2. Copy of a letter dated 14 June 2014 from Marrickville Council being the first page of the letter giving notice of a modification to Development Approval; 3. A copy of two plans of the applicants'' proposed development 4. A copy of page 9 of what purports to be conditions of development approval, notably referring to Paragraph 33- "The person acting on this consent must comply with the requirements of the Dividing Fences Act in respect to the erection, removal, alterations and additions to the boundary fences. Note: Where new boundary fences are to be erected onto adjoining properties or existing fence demolished/altered, where located on adjoin properties, the written consent of the adjoin owner/s should first be obtained; Reason: to ensure that the provisions of the At are observed" 1. A series of emails ending with an email dated 5 December 2014 from Marrickville Council Officer to the respondent; 2. A series of emails ending with an email dated 16 December 2014 from Marrickville Council Officer to the respondent; 3. A series of emails ending with an email dated 8 December 2014 from Marrickville Council Officer to the respondent; 4. One page from Marrickville Development Control Plan, "2.11 Fencing". 5. The footings for the Hebel Wall and the end of the wall closest to the dwellings encroaches into the respondents' land by 0.05 metres;
2. The respondents also tendered: 1. Exhibit 2- a copy of a letter from their Architectural Draftsman to the respondents dated 16 January 2015; 2. Exhibit 3-a copy of an email from an officer of Marrickville Council dated 13 January 2015 to the respondents.
3. The respondents oppose the orders sought by the applicants and propose that the Tribunal makes orders: 1. That the paling fence be restored and the Hebel Wall be rebuilt within the applicants boundary in accordance with the development approval they had for the construction of the wall.

LEGISLATION

1. The general principles of the Dividing Fences Act are set out in s 6, which states: (1) An adjoining owner is liable, in respect of adjoining lands where there is no sufficient dividing fence, to contribute to the carrying out of fencing work that results or would result in the provision of a dividing fence of a standard not greater than the standard for a sufficient dividing fence. (2) This section applies whether or not a dividing fence already separates the adjoining lands.
2. S 4 of the Act sets out the requirements to make a determination of what is a sufficient dividing fence as follows: In any proceedings under this Act, the Local Court or a local land board is to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of this Act, including the following: (a) the existing dividing fence (if any), (b) the purposes for which the adjoining lands are used or intended to be used, (c) the privacy or other concerns of the adjoining land owners, (d) the kind of dividing fence usual in the locality, (e) any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated, (f) any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated, (g) in the case of a dividing fence affecting land the subject of a lease under the Western Lands Act 1901, any order in force under section 18A of that Act.
3. S 12 of the Act provides for the procedure where agreement cannot be reached between adjoining land owners about a proposed dividing fence as follows: Procedure when agreement not reached (1) Adjoining owners may attend a Community Justice Centre in an attempt to reach an agreement concerning the carrying out of fencing work (including the contributions to be made in respect of the work). (2) If adjoining owners do not agree (within 1 month after one of them has served a notice under section 11) as to the fencing work to be carried out, either owner may apply to the Local Court or the Civil and Administrative Tribunal for an order determining the manner in which the fencing work (if any) is to be carried out.
4. S 14 of the Act sets out the orders that can be made in respect of an application for fencing work: Orders as to fencing work (1) The Local Court or the Civil and Administrative Tribunal may, in respect of an application under this Act, make an order determining any one or more of the following: (a) the boundary or line on which the fencing work is to be carried out, whether or not that boundary or line is on the common boundary of the adjoining lands, (b) the fencing work to be carried out (including the kind of dividing fence involved), (c) the manner in which contributions for the fencing work are to be apportioned or re-apportioned or the amount that each adjoining owner is liable to pay for that work, (d) which portion of the dividing fence is to be constructed or repaired by either owner, (e) the time within which the fencing work is to be carried out, (f) the amount of any compensation (in the form of an annual payment to either of the adjoining owners) in consideration of loss of occupation of any land, (g) that, in the circumstances, no dividing fence is required in respect of all or part of the boundary of the adjoining lands. (1A) Despite subsection (1), no order may be made for the carrying out of fencing work on critical habitat within the meaning of the Threatened Species Conservation Act 1995 without the consent of the Director-General of National Parks and Wildlife. (2) The occupation of land on either side of a dividing fence, as a result of an order determining that fencing work is to be carried out otherwise than on the common boundary of the adjoining lands, is not taken to be adverse possession as against the owner or to affect the title to or possession of the land, except for the purposes of this Act.

FINDINGS

1. If the Tribunal finds that there is no sufficient dividing fence then the jurisdiction granted by the Act to make fencing orders is triggered. This finding is fundamental to making any orders under s 14 of the Act.
2. Malpass M (as he then was) found in Alwiah v Watts and anor [2004] NSWSC 948: The content of the Act demonstrates that jurisdiction to make orders is dependent upon a finding that there is an insufficient dividing fence between the adjoining lands. Unless the finding is made, no orders can be made. Such a finding gives rise to the liability referred to s6 and enables the making of orders pursuant to s14.
3. Hidden J in Brown v Doyle [2012] NSWSC 1269 and Adams J in Larney v Johannson [2012] NSWSC 1297 both cite with approval the above passage.
4. Once the Tribunal finds that there is no sufficient dividing fence for the subject of an application before it, it is then open to the Tribunal to determine the standard of a sufficient dividing fence for which adjoining land owners should contribute in accordance with the Act.
5. However, the application before the Tribunal is seeking declarations that the Hebel Wall erected by the applicants without the consent of the respondents is a sufficient dividing fence, that the liability of the applicants for removing the existing fence and erection of the wall does not apply and the where the Hebel Wall has been built is the line of the fence. It appears on the evidence before the Tribunal that the Hebel Wall has not been erected in compliance with the development approval as it was not built wholly within the applicants land.
6. Before the merits of the application can be considered, the Tribunal must determine whether it has jurisdiction to consider the application.
7. Before doing so, the Tribunal notes that unusually, the respondents served the Notice to Carry Out Fencing Work. The proposed fencing work of the respondents is to demolish the Hebel Wall and replace it with a 1.5 metre high paling fence, being the type and style of fence that the Hebel Wall replaced.
8. The applicants have brought the application now before the Tribunal. The orders they seek were not contemplated by the Notice to Carry Out Fencing Work.
9. S 12(2) of the Act permits either land owner to make an application for an order determining the manner in which the fencing work is to be carried. That phrase "the fencing work" contemplates the work proposed in the notice to carry out fencing work.
10. The applicants are entitled to bring an application to the Tribunal based on a notice to carry out fencing work served on them by their adjoining land owner.
11. However, that application is for an order determining the manner in which the "fencing work" is to be carried out.
12. "Fencing work" is defined in the Act at s 3 as: fencing work means: (a) the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence, and (b) the surveying or preparation of land (including the trimming, lopping or removal of vegetation) along or on either side of the common boundary of adjoining lands for such a purpose, and includes: (c) the planting, replanting and maintenance of a hedge or similar vegetative barrier, and (d) the cleaning, deepening, enlargement or alteration of a ditch, embankment or watercourse that serves as a dividing fence.
13. In their application, the applicants are seeking declarations from the Tribunal to regularise and legitimise the work that they have undertaken without following the procedure set out in the Act and without the consent of the respondents. They also seek a declaration that the Hebel Wall may remain where it is located.
14. The application by the applicants does not identify any "fencing work" in accordance with the definition in the Act. Unless there is something in the nature of the fencing work that the applicants seek there are no orders the Tribunal can make.
15. Additionally, the only orders that the Tribunal may make even if there is fencing work are those orders set out in s14 of the Act.
16. S 14 of the Act makes no provision for the making of declarations of the type that the applicant seeks.
17. As, such the application must fail and must be dismissed.
18. In relation to the respondents, it is noted that they did not file an application for orders determining the manner in which fencing work based on the proposed fencing work in their notice to carry out fencing work. The orders that the respondents seek are in response to the orders sought by the applicants. The Tribunal does not determine their claim for orders. It remains open for the respondents to bring such an application based on their Notice. The respondents may have other rights in other jurisdictions. The Tribunal makes no comment in this regard.

ORDERS

1. The application is dismissed as it is misconceived. P Boyce Senior Member Civil and Administrative Tribunal of New South Wales 4 February 2015

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 April 2015