Facer v Rosenberg

JURISDICTION OF THE TRIBUNAL

1. It was not in dispute, and I find, that the applicants served on the respondent a Fencing Notice that complied with the requirements of section 11 of the Act.
2. It was not in dispute, and I find, that the Fencing Notice was served on the respondent on 3 February 2021.
3. Pursuant to subsection 12(2) of the Act, proceedings cannot be commenced within one (1) month of service of the Fencing Notice
4. By reason of regulation 23(2) of the Civil and Administrative Tribunal Rules 2014 (NSW), the applicants had 28 days from 3 March 2021 to commence proceedings in the Tribunal.
5. These proceedings were commenced on 8 March 2021, which was when the application was received by the Tribunal.
6. Accordingly, I am satisfied that the Tribunal has jurisdiction to hear the application.

ISSUES TO BE DETERMINED

1. The Tribunal must determine: 1. whether the existing fence is a sufficient dividing fence. If the existing fence is sufficient, the application must be dismissed. Whether or not there is currently an existing dividing fence which is sufficient is, or is not, sufficient, is a matter of degree involving consideration of all relevant circumstances, including the circumstances set out in section 4 of the Act: Purcell v Chadwick [2018] NSWCATAP 250 at [28]. What weight, if any, is given to the matters set out in subsection 4 (a) to (g) of the Act (and any other relevant circumstances) is a matter for the Tribunal to determine based on the evidence in the case: Nicholls v Fortmann [2020] NSWCATAP 52 at [33]; 2. if the existing fence is not a sufficient dividing fence, should the Tribunal exercise its discretion to order that the fence proposed by the applicant replaces it? 3. if so, where should the fence be constructed and what contribution should be made by the respondents?

IS THE EXISTING FENCE A SUFFICIENT DIVIDING FENCE?

1. In Purcell v Chadwick [2018] NSWCATAP 250 the Appeal Panel said at [22] to [28]: The Tribunal does not have jurisdiction to make an order under the Act unless any existing fence is found to be insufficient: see Alwiah v Watts & Anor[2004] NSWSC 948 approved in Larney v Johannson [2013] NSWCA 409. The term "sufficient" is protean. In determining what is a "sufficient dividing fence", s 4 of the Act provides: 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: (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 immediately before the repeal of that Act. The section provides a list of factors as part of an inclusive definition, and otherwise requires the Tribunal "to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of [the Act]". It is inappropriate to attempt to prescribe all the circumstances which might be relevant. However, as is evident from the list of factors in the Act, they include a consideration of the existing fence, the purposes for which "the adjoining lands are used or intended to be used", and the "privacy or other concerns of the adjoining landowners". Taken together, it is clear that the nature of the adjoining land, and how a landowner wishes to use and enjoy their land, are relevant factors in determining the sufficiency of a fence. The question of whether a particular fence is sufficient is one of degree. As recognised by Adams J in Larney v Johannson [2012] NSWSC 1297 at [11], a fence might be sufficient "but some fences might be more sufficient than others". While his Honour was considering what might be a sufficient fence for the purpose of an order under s 14 of the Act, his Honour's comments are nonetheless relevant to examining the sufficiency of an existing fence.
2. It was not in dispute, and I find, that the existing dividing fence had been a dilapidated timber paling fence, on timber posts and rails, that was 1.5 metres high and 26.9 metres in length. It was not in dispute, and I find, that the existing dividing fence was located on or near the common boundary line.
3. It was not in dispute, and I find, that, on 24 January 2019, the respondent removed a 4.5 metre section of the dilapidated timber paling dividing fence. It was not in dispute, and I find, that in this section of the boundary between the adjoining properties there is no sufficient dividing fence.
4. It was not in dispute, and I find, that, on 22 April 2021, the respondent: 1. removed a 10.5 metre section of the dilapidated timber paling dividing fence, which was located entirely on his property; and 2. erected a Colorbond fence which is 2.4 metres high and 9.25 metres long in the same location.
5. It was not in dispute, and I find, that the Colorbond fence was constructed by the respondent pursuant to a development consent granted by Hornsby Shire Council (the Council) on 26 May 2020. According to the Site Fence Plan approved by the Council: 1. the common boundary line is 38.07 metres in length; 2. the Colorbond fence was to be erected: 1. 0.035 metres from the common boundary line, from the front of the respondent's lot to the back of the respondent's lot; 2. 11.4 metres from the front of the respondent's lot; and 3. 17.42 metres from the back of the respondent's lot.
6. It was also not in dispute, and I find, that the development consent granted by the Council for the construction of the Colorbond fence did not extend to provide consent for the demolition of the existing dividing fence.
7. It was not in dispute, and I find, that for the remaining 11.9 metres of the boundary between the adjoining properties, whether on the common boundary line or some other line, there is a dilapidated timber paling fence, on timber posts and rails, that is 1.5 metres high. It was not in dispute, and I find, that this 11.9 metres of dilapidated timber paling fence is not a sufficient dividing fence.
8. The issue is whether the Colorbond fence is a sufficient dividing fence.
9. The applicants submitted that the Colorbond fence is not a sufficient dividing fence for the following reasons: 1. the Council approved the Colorbond fence as a private fence only and that the development consent for the private fence did not include demolition of the existing dividing fence and that any replacement of the existing dividing fence was subject to the Act; 2. the applicants had no ownership of, or control of, or liability for the Colorbond fence as they would for a jointly owned dividing fence; 3. the applicants have not agreed to the height, type or location of the fence; and 4. the Colorbond fence is of a different material, construction and height to the existing dividing fence
10. The respondent submits that the Colorbond fence is a sufficient dividing fence.
11. Insofar as the applicants submit that Colorbond fence is a private fence, it is immaterial whether the Colorbond fence is on the common boundary or on a line other than the common boundary: see the definition of "fence" in section 3 of the Act. In other words, the Colorbond fence can be a sufficient dividing fence even if it is located wholly on the respondent's property. As set out above, in accordance with the development consent issued by the Council, Colorbond fence was to be erected 0.035m from the common boundary line, and it is not in dispute, and I find, that it was erected in accordance with the development consent.
12. Likewise, it is immaterial whether the respondent removed the previous dividing fence without the consent of the Council to do so. As set out above, it is not in dispute that the dilapidated timber paling fence that was there was not a sufficient dividing fence.
13. It is also immaterial that the Council did not consider the Colorbond fence to be a common boundary dividing fence. The issue is whether the Colorbond fence is a sufficient dividing fence for the purposes of the Act.
14. Insofar as the applicants submit that they have no ownership of, or control of, or liability for the Colorbond fence as they would for a jointly owned dividing fence, if it is a sufficient dividing fence then the applicants have rights under the Act, including under section 8 of the Act, and are advantaged by the fact that they were not required to contribute to the cost of the Colorbond fence.
15. It is also immaterial that the applicants have not agreed to the height, type or location of the fence. As set out above, the issue is whether the Colorbond fence is a sufficient dividing fence for the purposes of the Act.
16. Finally, it is immaterial whether the Colorbond fence is of a different material, construction and height to the existing dividing fence. There is no requirement under the Act that a replacement or new dividing fence be of the same material, construction or height as the existing dividing fence.
17. Having regard to each of the circumstances prescribed by section 4 of the Act: 1. the existing dividing fence in question is the Colorbond fence. It is a new fence, having only been constructed in the last twelve (12) months and has been erected close to the common boundary line and in the same location as the previous dilapidated timber paling dividing fence; 2. the adjoining properties are used for residential purposes only; 3. the Colorbond fence satisfies any privacy concerns of both the applicants and the respondent and also satisfies the concerns of the respondent with respect to the noise impacts of the applicants' air-conditioning unit; 4. the evidence of the applicants and the respondent was that there is a mix of Colorbond fences and timber paling fences used in the locality, although each of the applicants and the respondent predictably emphasised that the type of fence sought by them was more dominant; 5. neither party identified any policy or code relating to dividing fences adopted by Hornsby Council; 6. neither the Hornsby Local Environmental Plan 2013 nor the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the SEPP) express a preference for timber paling fences over Colorbond fences and, as set out above, the construction of the Colorbond fence was approved by the Council; and 7. the Colorbond fence is not a dividing fence affecting land the subject of a lease under the Western Lands Act 1901 (NSW).
18. Having considered and weighed up the relevant matters under section 4 of the Act, the Tribunal is satisfied that the Colorbond fence is a sufficient dividing fence. Accordingly, the application is dismissed insofar as it seeks the replacement of the Colorbond fence or the erection of a new dividing fence in the same location as the Colorbond fence.

SHOULD THE TRIBUNAL EXERCISE ITS DISCRETION AND ORDER THAT THE REMAINING SECTIONS OF THE EXISTING FENCE BE REMOVED AND REPLACED?

1. As set out above, both parties agreed that the remaining sections of the existing dilapidated timber dividing fence were not a sufficient dividing fence. The parties also agreed that there were sections where there was no dividing fence whatsoever.
2. In the circumstances, the Tribunal is satisfied that it is appropriate that the remaining sections of the existing dilapidated timber paling dividing fence be removed and replaced with a new dividing fence, and that a new fence be constructed in the sections where there is no dividing fence whatsoever.
3. I understand that this means that a new fence of 17.65 metres is to be constructed, as the previous dilapidated timber fence was 26.9 metres, prior to the removal of any sections of it, and the Colorbond fence is 9.25 metres.
4. The issue is the type of replacement fence.
5. In their Fencing Notice, the applicants seek a timber paling fence on galvanised steel posts with a height of 1.8 metres.
6. The respondent submitted that constructing the balance of the replacement dividing fence out of timber would be visually incongruent with the Colorbond fence and not in keeping with the kind of dividing fence in the locality. The respondent also submitted that: However, given the retaining wall along the boundary, including its sheer height, proximity to the boundary and partial encroachments, the fact that some of it was built absent Council approval and the detrimental impact to my privacy, the most equitable outcome is an order for a fence that is a continuation of the screen - as close to the legal boundary as possible and constructed of the same material and colour. Although NCAT cannot make an order for a 2.2m high fence, it should be the maximum height of 1.8m in the circumstances. I have confirmed I am prepared to equally share the expense of constructing this fence with the Applicants. However, I do not agree to a combined fence that is in effect, both colourbond and wood, for the reasons I have already outlined.
7. With respect to the reference by the respondent to a retaining wall along the boundary, I note that the respondent adduced a survey of the common boundary which was dated 2 August 2019 and prepared by Matthew Cooper, a surveyor, pursuant to a boundary determination application (the Survey). The Survey showed that there was retaining wall on the applicants' property adjacent to the common boundary line but that the posts for the retaining wall were on the common boundary. Photographs adduced by the respondent also showed the posts for the retaining wall were immediately adjacent to, or butted up next to, the timber rails for the existing dilapidated timber paling dividing fence.
8. I do not accept the submission of the respondent that a timber paling fence would not be in keeping with the kind of dividing fence in the locality. The existing dividing fence, albeit it dilapidated, is a timber paling fence and the photographs adduced by both parties confirm that there is a timber paling dividing fence at the rear of the applicants' lot and the rear of the respondent's lot.
9. Further, it was the choice of the respondent to: 1. seek and obtain approval for the construction of the Colorbond fence as a privacy screen, when he was aware since at least 2014 that the applicants were seeking to replace the existing dilapidated timber paling fence with a new timber paling fence; and 2. proceed to construct the Colorbond fence as a privacy screen after the applicants had made this application commencing these proceedings but before the hearing of these proceedings and before a judgment had been delivered.
10. Accordingly, I am satisfied that it is appropriate that the remaining sections of the existing dilapidated timber dividing fence, and sections where there is no fence whatsoever, be replaced with a 17.65 metre timber paling fence on galvanised steel posts with a height of 1.8 metres from the existing ground level and not from the height of the applicants' retaining wall.
11. Insofar as the height of the new dividing fence is concerned: 1. I note that, according to the development consent from the Council for the construction of the Colorbond fence, the respondent's property is zoned R2, being low density residential, and I infer that the applicants' property has the same zoning; 2. in the absence of any evidence to the contrary, I infer that the new dividing fence is not being constructed: 1. on a lot, or along a common boundary of a lot, that contains a heritage item or a draft heritage item; 2. along the boundary of, or within the setback area of, a primary or secondary road within a heritage conservation area or draft heritage conservation area; 3. on a flood control lot; or 4. on land that is identified as being in a foreshore area. 1. accordingly, clause 2.34 of the SEPP provides that the new dividing fence must not be higher than 1.8 metres above "ground level (existing)"; 2. clause 1.5(2) of the SEPP states that a word or expression used in the SEPP has the same meaning as it has in the standard local environmental planning instrument prescribed by the (Local Environmental Plans) Order 2006 (the Standard Instrument) unless it is otherwise defined in the SEPP. The expression "ground level (existing)" is not defined in the SEPP; and 3. the Standard Instrument defines "ground level (existing)" as the existing level of a site at any point, which is to be compared to "ground level (finished)", which means, for any point on a site, the ground surface after completion of any earthworks (excluding any excavation for a basement, footings or the like) for which consent has been granted or that is exempt development.
12. The new dividing fence should be constructed on the common boundary line, or as close to the common boundary line as possible, as defined on the Survey, and, where appropriate, incorporate both the posts for the retaining wall constructed on the applicants' property and the Colorbond fence constructed on the respondent's property.

CONTRIBUTION BY THE PARTIES

1. The starting point is that each neighbour should pay half the cost of the fence, unless there are appropriate reasons to depart from this, such as the replacement fence is a different type and higher standard than the current fence.
2. I did not understand either party to submit that they should not be required to contribute 50% of the costs of constructing a new dividing fence and I am satisfied that each party should contribute 50% of the costs of constructing the new dividing fence.
3. As the quotation of Active Fencing & Access Timbers may now be out of date, bearing in mind it is dated 3 February 2021, and the price for the work may have gone up. Accordingly, I will order each party to contribute a proportionate amount to pay the fencer, rather than each party contributing a fixed amount. It is also not necessary that the applicants use Active Fencing & Access Timbers to perform the fencing work, but the applicants must use a suitably licensed fencing tradesperson.

CONCLUSION

1. For the reasons set out above, I make the following orders. 1. The applicants are to cause the performance of fencing work between the residential property of the applicants and the residential property of the respondents by 31 March 2022 with such work to be performed as follows: 1. demolish the existing timber paling fence between the respective properties; 2. remove any plants or shrubs along the existing fencing line only to the extent necessary to construct a new fence; 3. construct a 17.65 metre x 1.8 metre treated pine timber paling fence with 50mm galvanised steel posts as set out in the scope of works contained in the quotation of Active Fencing & Access Timbers dated 3 February 2021 and detailed in the Fencing Notice dated 3 February 2021; 4. the new timber paling fence is to be constructed on the common boundary line, or as close to the common boundary line as possible, as defined on the survey dated 2 August 2019 and prepared by Matthew Cooper and, where appropriate, incorporate both the posts for the retaining wall constructed on the applicants' property and the Colorbond fence constructed on the respondent's property; 5. the new timber paling fence is to be 1.8 metres from existing ground level and not 1.8 metres from the height of the retaining wall on the applicants' property; 6. the applicants are to give the respondent three (3) clear business days written notice of the date the fencing work will occur. Notice by email is sufficient; 7. the fencing work is to be performed by a person or business who holds a current and valid contractor licence permitting them to perform fencing work; 8. the respondent is to give reasonable access to his property to the licensed tradesperson performing the fencing work so that the existing fence can be demolished and a new fence be constructed in accordance with these orders; and 9. within 28 days of the issuing of an invoice by the licensed tradesperson performing the fencing work set out in these orders, the respondent is to pay the applicants an amount equivalent to 50% of the invoice.

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: 15 February 2022