Cameron v Smith [2023] NSWCATCD 25 | Case summary

NCAT Consumer and Commercial|2023-02-06

The application

The application seeks orders that 52 metres of 1.8 metre colourbond fencing be constructed on the boundary with the respondent's adjoining land, and that the respondent pay half of the cost of $8,354. The respondent contends the existing dividing fence is "sufficient", and therefore he is not liable (under section 6 of the Dividing Fences Act ('Act")), to contribute anything for a different fence, as the construction of one should not be ordered.

Evidence

Both parties relied on affidavits addressing the factors in section 4 of the Act and annexing various documents such as maps, photos, and quotes. The respondent also relied on a report from a fencing contractor, Neville Batastuzzi. Additional evidence was provided by answers the parties and Mr Bastuzzi gave to questions from the Tribunal at hearing. The Tribunal refused the applicant's request to be permitted to rely on additional documents lodged shortly before the hearing, except for pages 13 and 14 of "RC 12" which touch on Local Government fencing requirements. Those additional disallowed documents related to disputes with some of the applicant's other neighbours and are not relevant. Both parties were given the opportunity to make additional oral submissions at hearing about the section 4 considerations.

Extension of time

The application was lodged on 5 December 2022. It relates to a fencing notice given to the respondent under section 11 of the Act on or about 23 December 2021. Other fencing notices had previously been given. Section 12 of the Act says that if adjoining land owners do not agree, within a month, on the fencing work to be done, either of them may apply to the Tribunal (or the Local Court). The Act does not prescribe a time limit where no agreement is reached within a month of service of the notice, and therefore regulation 23 (3) (b) of the Civil and Administrative Tribunal Regulation applies. That regulation requires the application to have been made within 28 days of the expiration of the month after service of the notice. Accordingly the applicant is more than 10 months late in lodging the application.
At hearing the Tribunal heard evidence form the applicant as to the reasons for the delay. These were delay caused by the flooding in the area in February and March 2022, difficulty obtaining legal advice, and the emotional difficulty in advancing the case. In that regard the Tribunal notes there unfortunately appears to be a high degree of conflict between the applicant and some of the neighbours whose land adjoins the applicant's. The Tribunal noted there was no prejudice to the respondent if the time within which the application may be lodged was extended, and after considering the principles in Jackson v NSW Land and Housing Corporation [2015] NSWCATAP 281 (22 December 2015) extended the time under section 41 of the Civil and Administrative Tribunal Act.

Jurisdiction

The Tribunal has jurisdiction under section 13 of the Act to hear and determine the application, and to make orders under section 14.

Findings

The essential facts are not in dispute. The applicant and respondent own adjoining lands in Goonellabah, near Lismore NSW. The applicant's lot comprises 1.74 hectares which is zoned R1 residential and 9.7 hectares zoned RU1 rural. The respondent's land forms part of an urban subdivision and is zoned residential. It adjoins that part of the applicant's land zoned R1 rural on the respondent's northern boundary. The respondent's land "juts out" from the line of boundaries on either side of it, so there are three sections of boundary fence in question. These are referred to as the northern, eastern and western parts of the boundary fence in question. Sheet 3 of a plan which is annexure "RC 2" to the applicant's affidavit sworn 20 December 2022 depicts the location of the fence.
There are another 21 residential properties that adjoin the applicant's land. The total of the length of the boundaries of those properties adjoining the applicant's land is approximately one kilometre, and the applicant would like that length fenced with 1.8 metre colourbond fencing. There is considerable conflict with at least some of the neighbours who share that boundary.
The respondent has owned his land since 2004 and the applicant has owned hers since 2016.
The northern boundary of the respondent's land is 36 metres long and fenced with pool fencing panels 1.25 metres high on top of a retaining wall the lowest point of which is 1.4 metres above the ground. That part of the fence has been there since before the applicant bought her property, when cattle were being grazed on that land. No cattle have ever escaped through that fence. The applicant's residence is approximately 500 metres from that fence and is partly obscured by trees.
The adjoining part of the eastern side of the boundary of the respondent's land is 15 metres long, and fenced with 1.5 metre high cream colourbond sheeting on top of a retaining wall with varying heights.
The adjoining part of the western side of the boundary of the respondent's land is 15 metres long and fenced on top of a retaining wall of varying height with 1.5 metre colourbond sheeting, in a colour described as "pale eucalyptus". This part of the boundary had been fenced with timber pickets until about September 2021, when the respondent began dismantling it to enable colourbond fencing similar to that on the eastern boundary to be installed. On or about 19 September 2021 the applicant advised the respondent she did not consent to the removal of the picket fence until a replacement fence had been agreed. The respondent replied and said he would replace the timber fence with colourbond, as he had done on the eastern side in response to the applicant's request in March 2019 to improve it. (It is noted that in her letter, or earlier fencing notice, the applicant had requested a 1.8m colourbond fence, not the 1.5 metre high fence installed by the respondent.). The respondent completed the replacement of the timber fence with the 1.5m high colourbond fence on 4 January 2023.

Considerations of the matters in section 4 of the Act

Section 4 of the Act requires the Tribunal to consider all the circumstances of the case when considering the standard for a sufficient dividing fence, including, 1. the existing dividing fence (if any), 2. the purposes for which the adjoining lands are used or intended to be used, 3. the privacy or other concerns of the adjoining land owners, 4. the kind of dividing fence usual in the locality, 5. any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated. 6. any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated.
The three sections comprising the existing dividing fence are described above. The Act does not contain a prohibition against a land owner constructing a dividing fence without consent from an adjoining owner. An adjoining owner who unilaterally constructs a dividing fence, runs the risk that if that fence is later found not to be "sufficient", they may be liable for half the cost of a new fence which is "sufficient", as well as having spent money on the fence they unilaterally constructed. If an adjoining owner destroys an existing fence, they may be liable for the whole of the cost of restoring it to a reasonable standard under section 8. For these reasons it is my view the word "existing" means "existing at the time of the hearing of the application", not as I understood the applicant to argue, at the time the fencing notice was served on the adjoining land owner.
The applicant uses her land for agricultural purposes, as well as residing in the house on the land. Although the applicant herself has not grazed cattle on her land yet, she intends to do so. The applicant also uses and intends to use her land for growing crops such as blueberries. The applicant asserted the 1.5 metre colourbond fencing and pool panel fencing were insufficient for these uses because cattle may escape and weeds could enter. I am not satisfied those assertions are correct. In relation to the use for cattle, the respondent gave un-contradicted evidence he was unaware of any cattle escaping the applicant's land since he bought his property in 2004. Furthermore, Mr Battistuzzi, a fencer with over 25 years experience in rural and domestic fencing in the area, was of the opinion the fence is suitable for cattle. He also gave evidence no fence can stop the spread of weeds. Mr Battistuzzi was cross examined by the applicant and did not resile from his opinion. The applicant also believes a solid 1.8 metre fence will prevent stray cats and dogs entering her land. There was no evidence stray cats and dogs are a nuisance, nor that the construction of a solid fence would significantly reduce such a problem if it existed, given there is about a further 2 kilometres of boundaries that do not have solid fencing. That argument is therefore rejected.
The respondent uses his land for residential purposes. There is a swimming pool adjacent to the pool panel fencing on the northern part of the boundary. Some screening is provided by way of shrubs or bushes that have been planted on the respondent's side of the fence. The respondent submits a solid fence such as colourbond instead of the existing pool fencing, would detract from the pleasant rural outlook he has from the pool and its surrounds. That submission is plausible and is accepted.
Privacy and security are the main concern of the applicant. As mentioned, it seems there is a high level of conflict between some of the adjoining landowners and the applicant about the issue of fencing, and unpleasant exchanges have taken place at or near the boundary. The applicant asserts that a 1.8 metre colourbond fence, would prevent or limit these exchanges and stop people potentially observing her on her land or in her house (although the house is about 500 metres away from the boundary). I note the respondent denies he has engaged in any unpleasant exchanges with the applicant, and the applicant does not allege that he has. Even if it were accepted by the Tribunal that a 1.8 metre solid fence would generally prevent unpleasant exchanges (and that is not accepted), there would be no need to have one in this case, as the respondent is not responsible for anything untoward with the applicant. At this stage it is helpful to bear in mind the comments of the Tribunal's Appeal Panel in Draper v Gibbs [2014] NSWCATAP 54 (23 September 2014) at paragraph 62. "It should not be forgotten, the preamble to the Dividing Fences Act states that it is "An Act to provide for the apportionment of the cost of dividing fences;" the Act is not a panacea for all disputes between neighbours. The general principle of the Act is clearly set out in s 6." Section 6 of the Act says "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". In my view the applicant's concerns about her security and privacy do not mean that a 1.8 metre colourbond fence is required to meet the standard of a "sufficient" dividing fence in this case.
There are two main types of dividing fence in the locality - barbed wire and post, and colourbond. Of the 22 residential properties with boundaries common to the applicant's, seven are colourbond and 1.8 metres high and some of those are blue; four or five have no fencing; one is mesh and 1.2 metres high, and the balance have the common post and barbed wire fence about 1.4 metres high (some of which are flood damaged). While it might be said the respondent's colourbond fence is not in keeping with others in the locality because it is 1.5 metres high, not 1.8 metres, that would overlook the fact the respondent's colourbond fencing is mounted on a substantial retaining wall which results in heights from ground level between 1.4 to 2 metres (evidence of Mr Battastuzzi) which result in a total height equivalent to above metres. Furthermore, the other fences in the locality are but one consideration, and absent the retaining walls I would not order a 1.8 metre fence to be built on these boundaries.
Local government regulations permit a fence of up to 1.8 metres high. There is no prohibition on the types of existing fence, nor that proposed by the applicant. The applicant says the pool fencing is too low at 1.25 metres high, and by implication does not meet the standards of the Swimming Pools Act. Mr Battistuzzi confirms the height at 1.25 metres and points out the fence is on a retaining wall. The lower side of the retaining wall is on the applicant's side of the boundary, meaning the retaining wall also forms part of the pool barrier. Whether or not that complies with the Swimming Pools Act is unknown. If it does not, that would not result in a requirement for a 1.8 metre colourbond fence to be erected.
No relevant environmental planning instruments relating to the adjoining lands or to the locality in which they are situated, were relied on by either party

Conclusion

Having regard to all of the relevant considerations in section 4, and the applicant's concern for her security, I am of the view the existing dividing fence, comprised of the three sections of it described above, is "sufficient". It is not necessary for that fence to be replaced with any other fence, or altered in any way.
Accordingly the application should be dismissed.

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

Amendments 18 August 2023 - Formatting amendments. 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: 18 August 2023

Cameron v Smith

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Cases Cited (2)