Craig Stokeld and Kim Janelle Stokeld v Stephen Simpson and Charmaine Simpson

NCAT Consumer and Commercial|2014-10-24

Background

In these proceedings the applicants seek orders firstly for the removal of an existing dividing fence along part of the boundary between the adjoining properties, or in the alternative, that the existing dividing fence adjoining the properties at number 9 and number 11 Tudibaring Parade, Macmasters Beach be lowered.
The parties have been involved in related proceedings COM 14/44547 where the respondents in these proceedings, Mr and Mrs Simpson, had sought orders pursuant to a notice served in accordance with the Act, for contribution in respect of a dividing fence between their property at 9 Tudibaring Parade, Macmasters Beach and the property of the applicants, Mr and Mrs Stokeld. Those proceedings were dealt with by an agreement reached between the parties in the Tribunal and dated 9 October 2014. A copy of that agreement has been placed with the papers in this file.
For ease of reference, proceedings COM 14/44547 will be referred to as the "Settled Proceedings".
Following the agreement reached in the Settled Proceedings, orders have been made as sought and entered in these proceedings in partial resolution of this fencing dispute.
The balance of the dispute between the parties which continues in these proceedings was determined at a hearing at Gosford on 24 October 2014. The hearing considered two issues raised by the applicants, concerning the existing fence erected on part of the adjoining boundary.

Facts

The applicants in these proceedings are the owners of the property at 11 Tudibaring Parade, Macmasters Beach. The respondents are adjoining owners of the property at 9 Tudibaring Parade, Macmasters Beach.
For ease of reference, the applicants will be referred to as the Stokelds and the respondents as the Simpsons.
Both parties are "adjoining owners" within the meaning of the Act.
The parties have been engaged in a long running dispute since on or about 2008, as to the fencing of their adjoining boundary which runs for approximately 76 metres from the street front at Tudibaring Parade, to the beach front foreshore at Macmasters Beach.
In or about 2008, the Simpsons fenced a small portion of the boundary line, being approximately nine metres. That fencing was not by consent and was paid for by the Simpsons in a sum of approximately $2,500.00.
In or about June 2014, the Simpsons erected a further 18 metres of fence entirely within their boundary at 9 Tudibaring Parade, at a cost to them of approximately $4,000.00.
At no time did the Stokelds consent to or agree to the partial fencing constructed in 2008 or again in 2014. The total length of the partial fencing so constructed is approximately 27 metres and extends from an area slightly east of the end of the respondents' property at 9 Tudibaring Parade up to and past a Norfolk pine tree to an area approximately adjacent to and alongside the Stokelds' dwelling constructed at 11 Tudibaring Parade. The fence height was described as variously from 1.5 to 1.8 metres in height and of a horizontal slat and post construction.
The parties remain in dispute about this section of the existing dividing fence.
In the Settlement Proceedings, the parties have reached agreement as to a proposed dividing fence from the street front at Tudibaring Parade to the edge of the Simpsons' property, where the existing fencing is constructed and which is the subject of these proceedings.
That length of fencing from the street front is approximately 46 metres and is the subject of the orders made by consent on 24 October 2014.

The Application

The application in these proceedings was filed on 18 July 2014.
Orders were made by consent on 13 August 2014 for the exchange of documents in accordance with a timetable. Both parties exchanged evidence in the form of documents served on each other in accordance with the directions.
The Simpsons made no other application in relation to these or the Settlement Proceedings concerning the dividing fence.
The Simpsons however oppose the orders sought by the Stokelds for the removal or lowering of the existing fence.
That is so, notwithstanding that at the hearing on 24 October 2014, the Stokelds offered to meet the cost associated with any alteration, repair or removal of the existing fence and its replacement with a fence suitable to the Stokelds.
In order to be suitable to the Stokelds, such fence as identified by them would be either less than 1.5 metres in height or opaque in appearance.
It was agreed between the parties at hearing that the two issues to be determined were as follows:-
Firstly whether the existing 27 metres comprising two sections of fencing, one being approximately 18 metres and the other at approximately 9 metres, should be removed or replaced, on the basis that the existing fencing was not a sufficient dividing fence within the definition of the Act; and
Secondly, whether the existing fencing in the alternative should be reduced in height to something not exceeding 1.5 metres for the section described as the 9 metre section, and 1.2 metres for the section described as 18 metres east of the Norfolk pine and stretching towards the beachfront.

The Hearing

The Simpsons appeared at the hearing and were self-represented. The Stokelds were represented by Craig Stokeld. There was no objection to Kim Stokeld being added as a party, as she is a joint landowner with Craig Stokeld of the property at number 11. Approval was sought and given to Craig Stokeld to represent both applicants.
Prior to the commencement of the formal part of the proceedings, the parties were invited to consider whether any settlement negotiations were appropriate. There was some discussion between the parties and the Tribunal as to what might be regarded as a suitable compromise, were the Simpsons to agree to reduce the height of the fence or remove it as requested by the Stokelds.
That conversation was not in confidence or by way of conciliation but in part, as an attempt to outline the issues for determination. That discussion did not result in any settlement and the proceedings commenced with Mr Stokeld giving sworn evidence.
A tender bundle as exchanged between the parties and produced to the Tribunal by the Stokelds was marked Exhibit "A" and admitted into evidence without objection. In addition, Mr Stokeld sought to tender an additional document at the hearing which was a diagram which he had marked in colour, to indicate the two sections of the existing fence which were in dispute. That was admitted without objection and included in Exhibit "A" at page 8.
On conclusion of Mr Stokeld's evidence, Mr Simpson asked some questions in cross examination, as did Mrs Simpson.
The respondents then commenced their case and Mr Simpson gave sworn evidence, followed by Mrs Simpson. Each witness was cross examined by Mr Stokeld.
At the conclusion of the evidence towards the end of the hearing time allocated, Mr Stokeld made submissions for the applicants and a summary of his argument, as did Mr Simpson for the respondents.
Again at the end of the hearing time allocated, and upon conclusion of the evidence, the parties were asked whether they would prefer to have some further consideration with a view to resolving the issue without a determination. After some further short discussion between them, both parties declined any further settlement discussions and asked the Tribunal to make its determination.

Evidence

The Stokelds sought to rely upon Exhibit "A" and the oral evidence of Mr Stokeld together with the Stokelds' submissions.
The Simpsons sought to rely upon a bundle of documents provided undercover of a solicitor's letter, Penmans Solicitors and dated 2 October 2014, such bundle also tendered without objection and marked "Exhibit R", comprising a tender bundle. The Simpsons also relied upon the oral evidence of Mr Stephen Simpson and Mrs Charmaine Simpson and their submissions.

The Applicants' Claims

The Stokelds are primarily seeking the removal of the nine metres of fencing erected in 2008 and the further 18 metres of fencing erected in June 2014.
The Stokelds served a Notice to that effect on 6 June 2014. A copy of the notice was provided with the Simpsons' application filed in the Tribunal.
The further marked survey document tendered as a plan or drawing of the location of the fence by the Stokelds, and which appears at page 8 of the applicants' documents, has marked in red that portion of the fence constructed in 2014.
Marked in blue is that portion of the fence constructed in 2008.
At present, there is no other fence on the boundary, although an agreement has been reached in the Settled Proceedings for the fence which will be constructed and continue for approximately 47 metres from the roadway.
There is no present agreement or plan or proposal to fence the foreshore part of the property along the boundary line, which constitutes approximately a further 20 metres on the seaward side of the two dwellings.
The Stokelds listed their complaints as follows:-
That the currently erected fence obstructs their view to the foreshore reserve;
That the structure also obstructs their view to the lagoon; and
That it also obstructs their view to the beach itself, as seen from the rear portion of their property.
The Stokelds assert that were the height of the fence reduced from 1.8 metres to 1.2 metres they would accept that as "less offensive" and not seek its removal.
Mr Stokeld in evidence relied on the following in asserting that the existing fence was not a sufficient dividing fence:-
That the photographs in the Exhibit (both Exhibits "A" and "R") illustrate the fence is not opaque and cannot be seen through. The result is that the fence appears as a continuous wall and is not in sympathy with similar fences in the location or as required by recommendations from Gosford Council.
As to the structure itself, that a "sufficient" fence would be lower, or if at 1.5 metres or higher, then opaque so that it did not obstruct views beyond the fence. The views obstructed according to the Stokelds were those forward of the property and to the northern side towards the existing reserve, and towards the lagoon, and also forward to the beach itself, particularly from the rear of the Stokelds' property.
That a more appropriate or suitable structure to meet the requirements of a sufficient dividing fence would be of post and wire construction, or some similar material which also meant compliance with the character statement provided in the Gosford Development Control Plan and referred to at pages 14 to 16 of Exhibit "A".
These issues were all generally referred to in an email to the Simpsons from the Stokelds, in Exhibit "R" dated 6 July 2012 wherein the Stokelds say as follows:- "We are supportive of the fence but not the horizontal slat type along that part of the boundary that obstructs our views. Our preferences would be for a wired fence where we have prominent water and beach views of the same type we have with boundary. Assuming this would meet your requirement to prevent cross trespassing and allow for view retention. It should also be a low cost option."
The Simpsons replied on 8 July 2012 also by email wherein they said as follows:- "We do not believe a wire fence from the Norfolk Island pine to the rise of the sand dune (edge of your deck) would prevent trespassing as people (and tenants' dogs) would just step through it if they wanted to get to the flat walkway adjoining our property which so often happens. Beside, we are wanting some privacy and quite (sic) enjoyment in that part of our garden considering your land and house are exceedingly higher in that area."
In relation to the issues outlined above, it was clear from the photographs presented by both parties that the height of the Stokelds' balcony and present dwelling was higher than the existing fence and no views were obstructed either to the foreshore, the lagoon or the reserve, by the existing dividing fence.
In relation to the second issue, the Simpsons produced in evidence in Exhibit "R" under Tab 1, a copy of a letter from Gosford City Council dated 13 November 2013. That letter set out, inter alia, the following:- "After carrying out a site inspection and giving consideration to the circumstances, Council has decided that the boundary fence constructed is generally in accordance with 'Exempt Development' under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. Accordingly, Council has decided to take no further action in regard to this matter."
Both parties principally relied upon photographs of comparable fencing in the location. It is fair to say in this Tribunal's opinion that those photographs in Exhibit "A" and Exhibit "R" do not show a consistent style of fencing used for beachfront residences. The existing fences are quite varied and different in relation to both their design and construction. It is therefore not able to be determined conclusively that a fence constructed of posts and slats in a continuous style as currently erected by the Simpsons, would not be a sufficient dividing fence within the meaning of the Act at Section 4.

Respondents' Evidence

The Simpsons relied upon the following:-
A copy of two quotations, one dated 7 February 2014 and a second quotation from Woy Woy Fencing dated 28 January 2014
A fencing notice issued under the Act dated 4 June 2014
A letter from their solicitors, Penmans Solicitors dated 2 October 2014 which contains submissions and attached the documents admitted into evidence as Exhibit "R".
Exhibit "R" contained a copy of the relevant Building and Development (Exempt Development) Code from Gosford City Council and emails as exchanged between the Simpsons and the Stokelds, which were not in dispute.

The Law

The Act sets out at Section 4 the requirements in relation to a sufficient dividing fence. It is useful to set out the relevant Section as follows:- "4. Determination as to sufficient dividing fence In any proceedings under this Act, the Local Court or the Civil and Administrative Tribunal 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:- The existing dividing fence (if any), 1. The purposes for which the adjoining lands are used or intended to be used, 2. The privacy or other concerns of the adjoining land owners 3. The kind of dividing fence usual in the locality, 4. Any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated, 5. Any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated, 6. In the case of a dividing fence effecting land the subject of a lease under the Western Lands Act 1901, any order in force under Section 18A of that Act."

Application of Law

In dealing with each provision under Section 4 of the Act, the Tribunal notes as follows in terms of its findings on the evidence, which has been carefully reviewed and well argued during the proceedings.
In relation to Sub Section 4(a), the Tribunal has regard to the evidence in relation to the existing dividing fence, approximately 27 metres long and constructed of a timber slat and post construction along the adjoining boundary. The existing structure appears to be in good order and condition and no evidence was raised concerning that fact. There was also no evidence of complaint or objection to the construction of that fence by any other person or entity.
In relation to Sub Section 4(b), the land is presently used for residential purposes and there are two residential dwellings on the adjacent blocks of land. Those dwellings are both intermittently rented by each of the parties and further intermittently lived in by each of the parties from time to time. There was no conflict of evidence in this regard about the use of the properties or the intended use of the properties. Suffice to say in that regard, that there was some evidence the Stokelds may be selling or perhaps have already sold the dwelling at number 11. This however, had not been confirmed and for the purposes of this hearing, the Tribunal is dealing with the existing circumstance as was discussed and presented at the hearing. The Stokelds are the owners of number 11 and it is in respect of the existing dwelling (not any proposed dwelling) that the Tribunal has regard in determining the issues concerning the existing structure and dividing fence.
In relation to Sub Section 4(c) privacy was an issue of some concern for the Simpsons. This was disputed by the Stokelds given that the boundary line is very long (approximately 76 metres from street front to foreshore) and is partially unfenced. People traverse land adjacent to (and sometimes on) the parties' properties, particularly number 9. The Simpsons assert however, that they often sit near the Norfolk pine tree or close to it for shade, and it is on each side of the Norfolk pine that the existing structure has been erected and which does in fact give the Simpsons privacy from immediate view of anybody in occupation or walking along the fence at number 11. In the Tribunal's view this was a minimal issue between the parties but nonetheless must be addressed as a concern in relation to Sub Section 4(c). The Tribunal accepts that for the Simpsons the existing dividing fence does provide some privacy.
Sub Section 4(d) deals with the issue of the amenity and aesthetics of the dividing fence in that it logically should conform to any building standards required and the suitability of the structure for the locale. Although this was disputed, the Tribunal was not satisfied on the evidence that the existing structure, comprising the horizontal slat and post construction was of such a nature as not to be "usual in the locality".
In relation to Sub Section 4(e) this has been mentioned above but the Tribunal is satisfied on the evidence in Exhibit "R" comprising the letter from Gosford Council confirming that the structure is an Exempt Development in accordance with the council's existing policy and did not require consent. Nor has the Council issued any order or warning in relation to the size or nature of the structure. In all the circumstances, the Tribunal is not satisfied that the existing structure is in breach of any policy or code as referred to in the evidence contained in both Exhibits "A" and "R".
Specifically in relation to the Stokelds' reliance on the Gosford DCP at page 14 to 16 of Exhibit "A", the Tribunal notes that it is not mandated and is purposeful in the sense of providing a guide to land owners living "along the ridge of a minor coastal headland". It makes reference to what it refers to as the "Desired Character" at page 16 of Exhibit "R" where it says, inter alia:- "Facing all boundaries, emphasise a leafy garden character by avoiding tall retaining walls, elevated structures including terraces or pools, steep driveways or opaque fences that would visibly compromise existing leafy hillside character. Define boundaries by fences that are low or see through, or by hedges."
In this instance, the Tribunal notes that the existing dwelling at number 11 is in fact higher than the existing fence structure which, in the Tribunal's view does not "visibly compromise" the existing character of the block on which the residence is built, or the foreshore.
The DCP goes on to say, at page 16 of Exhibit "A", as follows:- "Avoid the appearance of a continuous wall of development along any street or hillside by locating buildings within setbacks that are similar to their surrounding properties, and by providing at least one wide side set back or stepping the shape of front and rear facades."
The Tribunal notes in this instance that although from some angles, not necessarily obvious from adjoining properties, the existing structure may have the appearance of a "continuous wall of development", it meets the requirements in relation to set back and as set out above is not dissimilar to other surrounding properties. The Tribunal is not satisfied on the evidence in this instance that the existing structure offends the stated desired character recommended by the council (but not mandated), or Sub Section 4(e) or (f).

Decision

There are a number of relevant prior decisions dealing with the Act and giving guidance as to the application of Section 4. The Tribunal notes however, that it is the particular facts and circumstances that are relevant in the final determination process, and there is no indicative or mandatory determination which will set for all circumstances what should be properly described as "a sufficient dividing fence".
In Larney -v- Johannsson [2012] NSWSC 1297, the issue before the Court was a question of contribution and liabilities of adjoining owners in that regard. The Court noted however, that in argument:- "The plaintiff sought to argue that there should be no fence or, on one view, that that part of the boundary constituted by the rock face did not need any fencing, and the fence constructed by the defendant should be removed, each party paying one half of the cost."
The Court went on to say that:- "On the other hand, there already being a fence in existence, if it were indeed a sufficient dividing fence no question of liability to make a contribution to the carrying out of fencing work would arise because Section 6(1) required there to be "no sufficient dividing fence" for such a liability to exist."
In this instance, the Simpsons have not sought nor maintained an argument that the Stokelds should contribute to the cost of the existing dividing fence. On the contrary, they seek only that it remain. In Larney, after hearing argument, the Court determined that the evidence was "equally balanced" and as a result declined to make an order for contribution towards the cost of an existing structure.
In doing so the Court also noted that notwithstanding argument that the existing fence was not a sufficient dividing fence, given the interpretation of the evidence, it was not appropriate to make any order for the removal of the fence, or "by implication" that the fence built "was appropriate". It was simply a matter that was unnecessary given that the Court was of the view that the existing structure was a sufficient dividing fence on the balance of the evidence as presented.
On appeal, the Court of Appeal in Larney -v- Johannsson [2013] NSWCA 409 approved the Trial Judge's decision. The Court of Appeal went on to say:- "The Act is not concerned with resolving disputes between adjoining owners as to whether one adjoining owner should be permitted to erect a dividing fence on the land of that adjoining owner contrary to the wishes to the other adjoining owner. There is nothing in the Act to prevent an adjoining owner from carrying out fencing work, within the meaning of the Act, on the land of that adjoining owner."
The Tribunal notes that in the circumstances of this case, which was not disputed, the existing structure is constructed on the land belonging to the Simpsons.
The Court of Appeal went further to say that:- "It does not follow that after a dividing fence has been constructed, an adjoining owner may apply under the Act to remove it and seek contribution for that removal."
The Court of Appeal continued:- "The Act is concerned only with the contribution to the carrying out of fencing work. That term does not include the removal or demolition of an existing dividing fence, except to the extent that its removal may be involved in the replacement, repair or maintenance of an existing dividing fence. There is nothing in the Act that is capable of being construed as conferring on either the Local Court or a local land board jurisdiction to require an adjoining owner to remove or demolish a dividing fence except for that purpose."
It follows that a person who has paid for an existing dividing fence unilaterally erected:- "May not be able to obtain a contribution to the cost of the fence that was in excess of what was required."
It also follows that no order should be made in this instance for the removal, demolition or repair (by lowering) to an existing sufficient dividing fence.
In this instance, as the Tribunal is of the view that the existing structure is a sufficient dividing fence within the meaning of Section 4 of the Act, and there being no application for any contribution to be made in respect of the cost of that structure, some details of which were in evidence, no such order should be made.
In Draper -v- Gibbs [2014] NSWCATAP 54, the Appeal Panel of the Tribunal noted that the requirements for a determination by the Tribunal (at first instance) are to consider the issue of the kind of fence used in the locality as one of the circumstances, and the consideration of which might include (other than a view or more detailed information) evidence in the form of a recent survey, were it to be made available, as it was in this case. It is for the Tribunal to consider whether the evidence of either party is "determinative", and satisfies the civil test as to the evidence produced. These were all matters taken into account in these proceedings, including the survey and diagram tendered by Mr Stokeld without objection.

Summary

Having carefully considered all the information before it and taken into account the requirements of the Act as to what constitutes a "sufficient dividing fence" the Tribunal answers the issues before it as follows:-
The existing structure as to approximately 18 metres erected in 2008, and a further 9 nine metres erected in June 2014 constitutes for the purposes of the Act a sufficient dividing fence. To the extent that it is necessary to so find, the Tribunal is satisfied the structure meets the requirements of the local Gosford Development Control Plan as part of an Exempt Development. Furthermore, it is not a structure built out of conformity with other or similar structures in the locale and is not such as to reach a finding that it does not comply with the "desired character" set out in the Gosford DCP recommendations.
As a consequence, the Simpsons are not required to remove the existing structure, or alter it and similarly the Stokelds are not required to contribute towards the cost of those two sections of existing fencing erected in 2008 and 2014.
It follows that the Simpsons are also not required to lower the fence as sought by the Stokelds.
In the result therefore, the application must be dismissed. In that regard, the Tribunal notes the orders made by consent and in relation to proceedings COM 14/44547 and directs that a copy of these reasons be placed with that file, it having already been determined. A McMurran General Member Civil and Administrative Tribunal of New South Wales 26 November 2014 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: 05 February 2015

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