Gibbs v Draper

reasons for decision BACKGROUND 1.The applicant is the owners of land at 31 **************, Caringbah (called in these Reasons for Decision "the applicants' land"). 2.The respondents are the owners of 29 *************, Caringbah (called in these Reasons for Decision "the respondents' land"). 3.The applicants' and the respondents' lands adjoin and they share a common boundary. 4.Along the common boundary there is a hardwood timber paling fence 1.4 to 1.5 metres high. 5.On 14 January 2013 the applicant served on the respondents a notice pursuant to s 11 of the Dividing Fences Act 1991 (called in these Reasons for Decision "the Notice"). 6.The Notice proposed that fencing work be carried out as follows: 1.The fencing work to be carried out on the common boundary of the adjoining lands [31 and 29 *************** Caringbah]; 2.The fencing work consists of approximately 38m of 1.8m (height) Colorbond (Colour-Riversand). The fencing will start at the western boundary (adjoining the Milton's eastern fence) of the common fence line and extend for 38 m in an easterly direction along that boundary. 3.The estimated cost of the fencing work of $2550 (+GST) is to be born (sic) in equal proportions of $1275.00 (+GST). (See attached quote) 7.The respondents did not agree to the proposed fencing work as set out in the Notice. APPLICATION 8.On 22 February 2013 the applicant filed an application to Local Land Board for an Order for Fencing Work seeking orders in accordance with the fencing work proposed in the Notice (called in these Reasons for Decision "the application"). 9.The applicants prosecute that application. JURISDICTION 10.This application was part heard by the Local Land Board on 5 December 2013. 11.Local Land Boards were abolished by amendments to the Crown Lands Act 1989 on 31 December 2013. 12.The New South Wales Civil and Administrative Tribunal (the "Tribunal") commenced on 1 January 2014. 13.The jurisdiction to hear and determine applications under the Dividing Fences Act 1990 was given to NCAT commencing 1 January 2014. 14.Sch 1 of the Civil and Administrative Tribunal Act 2013 contains savings and transitional provisions for applications commenced in existing tribunals. S 7 (2) of Sch 1of that Act provides that part heard proceedings in an existing tribunal are to continue to be heard and determined by the existing tribunal sitting as the Tribunal. 15.The Tribunal continues to hear this application. APPLICANT'S EVIDENCE 16.The applicant's evidence is contained in the exhibits tendered to the Tribunal, as follows: a.Exhibits: i.Exhibit 1- 1.a copy of a letter dated 2 October 2013 to the Local Land Board from the applicant (before commencement of this application); 2.a statement "Arguments in favour of a colorbond fence" 3.an unsigned copy of the Notice dated 18 January 2013; a copy of a letter dated 12 February 2103 from the respondents to the applicant; 4.a copy of a plan showing the improvements erected on the applicant's land; ii.Exhibit 2- 1.A copy of a response dated 30 January 2014 to respondents letter dated 13 January 2014; 2.An undated statement about chlorine by the applicant; 3.A response dated 30 January 2014 to the respondents Summary; b. A final statement to the hearing 6 May 2014; c.Oral evidence and submissions of the applicant in support of the documentary evidence. RESPONDENTS' EVIDENCE 17.The respondents' evidence is contained in the exhibits tendered to the Board, as follows: a.Exhibits: i.Exhibit A- 1.An aerial map showing dividing fence materials in locality; 2.A copy of the Notice dated 14 January 2013; 3.A copy of a quote dated 5 January 2013 from Buildingzone Pty Ltd to carry out the applicant's proposed fencing work; 4.A copy of a letter dated 12 February 2013 from respondent to applicant; 5.A copy of a quote dated 19 January 2013 from B.M.K.A.V for a treated pine dividing fence 1.8 metres high and 49 metres long for $4000; 6.A copy of a quote dated 4 February 2013 from Rod's Fencing for a treated pine paling fence 1.8 metres high and 50 metres long for $4750; 7.A copy of a quote dated 23 January 2013 from David Evans & Son for a treated pine paling fence 1.8 metres high and 50 metres long for $4340; 8.A copy of a letter dated 4 March 2013 from NSW Attorney General & Justice, Community Justice Centre to the respondents; 9.A copy of a letter dated 20 March 2013 from NSW Attorney General & Justice, Community Justice Centre to the respondents advising the applicant does not wish to mediate the fencing dispute; 10.8 photographs; 11.A colorbond fact sheet downloaded on 30 October 2013; 12.A Bluescope steel technical bulletin CTB-13 about steel contact with timber; 13.A sample warranty for Colorbond steel fencing issued by Bluescope steel; 14.A copy of a fencing notice dated 9 November 1998 from the respondents to the applicant for a 1.8 metre high treated pine paling fence ("1998 Notice"); 15.A copy of a letter from the applicant to the respondents dated 25 November 1998 responding to the 1998 fencing notice; 16.A copy of a letter dated 21 December 1998 from the respondents to the applicant; 17.A copy of a letter dated 2 January 1999 from the applicant to the respondents; 18.A copy of quote dated 16 October 2013 from David Evans & Son for a 1.8 metres high 50 metre long treated pine paling fence for $4550.00 and for a colorbonded sheet metal fence $4286; ii.Exhibit B- 1.A copy of a letter to the Registrar of Local Land Boards dated 28 April 2013 from the respondents; 2.A photograph taken in June 2013; 3.A summary of the respondents evidence prepared by the respondents; 4.A copy of Exhibit A as admitted above (including the 18 individual documents); iii.Exhibit C- 1.A copy of a letter dated 7 February 2014 from the MCW Lawyers to the Divisional Registrar NCAT with attachments; a.Annexure S- Colorbond Fact Sheet downloaded 6 February 2014; b.Annexure T-"Swimming Pool Safety Barrier Guide & Options to Australian Standard AS 1926.1-2007 & BCA 2010"; b.Oral evidence and submissions of the applicant in support of the documentary evidence. TRIBUNAL'S FINDINGS 18.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. 19.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 the 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. 20.S 4 requires the Board to consider all the circumstances of the case in making a determination as to the standard of a sufficient dividing fence. 21.If the Board 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. 22.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. 23.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. 24.If 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. Is the existing dividing fence a sufficient dividing fence? 25.On the evidence before the Tribunal it is satisfied that the existing fence is not a sufficient dividing fence for the purposes of the Act. What is the effect of the Swimming Pools Act 1992? 26.The Swimming Pools Act 1992 requires an owner of premises on which a swimming pool is situated to ensure that a swimming pool is at all times surrounded by a child proof barrier (S 7). The relevant provisions are as follows: a.S 32 (2) of the Swimming Pools Act provides that if there is any inconsistency between that Act and any other Act, the provisions of the Swimming Pools Act prevail to the extent only of the inconsistency. b.S 33 (1) provides that the expense of fencing works to a dividing fence are to the extent attributable to compliance with the Swimming Pool Act in respect of a swimming pool to be borne by the owner of the premises on which the swimming pool is situated; c.S 33 (2) provides that s 33 prevails over any provision of the Dividing Fences Act 1991 to the contrary. 27.That is, the owner of premises on which a swimming pool is situated is responsible for the whole of the cost of a dividing fence that serves also as a childproof barrier in order to comply with the Swimming Pools Act. Length of dividing fence the subject of the application 28.The application before the Tribunal is to replace 38 metres of dividing fence between the adjoining lands. 29.However, page 8 of the applicant's Exhibit 1 is a diagram of the common boundary prepared by the applicant. It shows a legend that includes an acknowledgement of the respondents claim for a new 50 metre long fence. It also shows that on the applicant's common boundary with his northern neighbour there is a colorbond fence. 30.At the view taken by the Tribunal on 31 January 2014 in the company of the parties the line of the proposed fence was paced out and appears to be from the respective rear boundary of the lands 21 metres to the start of the swimming pool internal north/south eastern fence, then 18 metres of boundary which will form the swimming pool child proof barrier and finally a further 11 metres of dividing fence along the common boundary to the original building alignment of the applicant's dwelling. A total of 50 metres. 31.For the purposes of making orders in this application the Tribunal will deal with the 50 metres of common boundary as identified at the view. What is a sufficient dividing fence in the locality? 32.There has been a long dispute between the applicant and the respondent about the dividing fence between their adjoining lands. 33.On the evidence before the Tribunal the disagreements between the parties seem to have been in place as early as 9 November 1998 when the respondents served on the applicant a notice to carry out fencing work proposing to erect a treated pine paling dividing fence (page N of Exhibit A). The applicant's response is conciliatory to an extent in his letter of 25 November 1998 in that he offers to agree to the proposed paling fence except he requires a colorbond fence for that section of the common boundary which adjoins the "splash area" of his swimming pool. However, negates that compromise by referring to the respondents' proposal to erect a paling fence with a colorbond fence parallel to it within the applicant's land adjoining the pool as "silly". 34.It is evident by the demeanour of, and the evidence of, the parties in hearing this matter that they have entrenched inflexible positions when it comes to the type of material to be used to construct the dividing fence. 35.Therefore, it is for the Tribunal to consider the criteria set out in S 4 of the Act. The existing dividing fence 36.The existing dividing fence is hardwood timber posts, rails and palings. It is in poor condition. The Tribunal has already found that it is not a sufficient dividing fence and the Tribunal is able to make orders under S 14 of the Act. It has served the adjoining land owners as a dividing fence for many years and if it were in a good condition and still serving its purpose it would be a sufficient dividing fence. The purposes for which the adjoining lands are used or intended to be used 37.The applicant and the respondents use their adjoining lands for residential purposes. As already observed, the applicant uses part of his land for swimming pool purposes. The types of fence proposed by both parties are consistent with a usual dividing fence in residential areas. It is common ground that the fence is to be 1.8 metres high. The privacy or other concerns of the adjoining land owners 38.The 1.8 metre fence proposed by the applicant will address a higher level of privacy than now exists with the existing dividing fence. The respondents have erected within their land privacy screens made out of lattice frames and shade cloth about 2.5 metres high. 39. It is the concerns of each party about the type of material to be used to construct the proposed dividing fence that causes the great contention between the parties. 40.The applicant proposes that the new fence be constructed out of colorbond sheeting and supports his position by 5 pages of submissions in his Exhibit 1. He has asserted a comprehensive list of supporting arguments, relying on his observations and understanding. They include: a.Climbing plants/creepers cannot grow up colorbond fences making gardens easier to maintain; b.Colorbond requires minimal maintenance and can be maintained from both sides of the fence; with a paling fence maintenance can only be carried out from the side of the fence that the palings are attached to the rails, that is the respondents' side where the privacy screens and gardens make it difficult to do so; c.The 1.8 metre high fence will afford privacy to pool users; d.Colorbond is a durable material and will not shrink like timber opening up gaps in between the palings allowing observation of adjoining land owners between the palings; e.The respondents' entertainment area is on the northern side of their house and would not be looking at the fence when using that area; f.Colorbond is cheaper, environmentally friendly and recyclable; g.Colorbond is more frequently used in modern housing developments; h.Colrbond has been recently used on the common boundary between the applicant's land and his northern boundary land owner; i.Timber fences are able to be climbed by children making them less safe for children where there is a pool; j.The existing timber dividing fence has not been maintained; k.Treated timber contains toxins; l.Colorbond provides better sound insulation; m.The lighter colours of colorbond will reflect more light and warmth into the winter months; n.If a paling fence loses one paling its security, safety and privacy integrity is breached; o.Colorbond is vermin proof, neater and fire proof; p.He addresses the respondents concerns about the effect of the pool chlorine; he asserts that if a colorbond fence is damaged by chlorine from his pool he will be responsible for the effect it has on the fence (Exhibit 2); 41.The respondents' evidence in support of their proposal that the dividing fence should be a treated pine paling fence is extensive and almost exhaustive. Their concerns not otherwise identified are: a.That the quote submitted by the applicant with his Notice was from a building company that is deregistered, that the entire 50 metres of length of fence needs to be replaced not just the 38 metres proposed by the applicant and they want to replace the existing paling fence with another paling fence; b.They support their argument against the applicant's proposed colorbond fence with a fact sheet from Colorbond (Exhibits A & B page M. That fact sheet identifies an issue with Colorbonded metal where it is used for pool fencing if it is installed in a splash zone as both salt and chlorine have a corrosive effect on the finish and may negate the warranty. c.The fact sheet also identifies an issue where Colorbonded metal comes into contact with treated timber as acidic substances from the timbers have a corrosive effect on the metal coating. Even run off from CCA treated timber contains leachate which will cause corrosion on contact with treated metal. d.They are prepared to contribute to the cost of the fencing work of 12 metres in length (Exhibit B-letter dated 28 April 2013 to the Registrar of Local Land Boards) once a decision is made as to the material to be used, however, they do not agree to contribute to the cost of the 38 metres of fencing work which will form part of the child proof barrier for the applicant's pool; e.They are also concerned about the visual impact of: i.Their multiple windows facing directly onto the proposed fence; ii.Their two courtyards beside the fence; iii.Their existing privacy screens; f.They prefer timber a timber fence as they assert that it is: i.Will allow airflow; ii.Is climate friendly; iii.Is the most renewable and sustainable fencing product; iv.Is sturdy, natural sound barrier due to the density of timber; g.They have also tendered to the Tribunal a document "Swimming Pool Safety Barrier Guide" (Exhibit C). In particular this guide refers to a Non Climbable Zone ("NCZ") to be incorporated into a safety barrier all around a swimming pool perimeter. "A NCZ is a 900mm vertical continuous section on the safety barrier or fence, free of projections and indentations greater than 10mm, that can be used as a finger or foothold, enabling a child to climb up or down the barrier or fence." h.The guide also sets out options for the use of three rail 1.8 metre high paling fences as a pool safety barrier. i.Option A is described as the easiest option with the rails of a paling fence on the non pool side of the fence; ii.Option B provides additional vertical palings to cover any top or middle rail staggered with a 10mm gap or solid type sheeting securely fastened; iii.Option C is to fix a second timber rail on the top rail finishing flush with the top of the fence to provide the 900mm NCZ to any middle rail or the next rail down. Finishing flush with the vertical face of the top horizontal rail; iv.Option D is a 60 degree timber splay fixed to the top rail with gaps between the staggered palings above the rail filled with a timber infill to the top of the fence. No gaps must be greater than 10mm; v.Option E is to construct a fence with any middle rail spaced more than 900mm below the top rail; The kind of dividing fence usual in the locality, 42.On the applicant's observation 20 of the 28 properties within 100 metres of the applicant's land have some colorbond fencing. 43.In the locality forming and adjacent to the corner of the intersecting streets where the lands are located the respondents have identified on an aerial photograph approximately 20 timber dividing and rear fences for 15 properties. 44.An applicant and a respondent in applications for orders to carry out fencing work will colour their evidence to the Tribunal in a light to suit and sustain their respective contentions. The evidence adduced by both the applicant and the respondents in this application as to the type of fencing in the area is selective and because they agitate for different types of fencing they have reached an opposite conclusion on the same facts. This is not uncommon in disputes about the type of fencing to be used. 45. Of great assistance to the Tribunal is that it undertook a view of the adjoining lands and the locality in which they are located. The Tribunal observed that the locality is an established area of quality homes. Most homes have been erected for a length of time that in the ordinary course of maintenance to control the ravages of time, weather and wear and tear, existing fencing is nearing the time where some needs to be repaired or replaced. That is, the materials of choice when the locality was first developed would have been hardwood timber fencing. That material is getting to the age where it needs to be replaced. Contemporary materials are predominately colour bonded sheet metal or treated pine timber fences. The locality displays a mix of fencing and as such there is no clear indicator of the single type of dividing fence used in the locality. 46.So far as fencing is concerned traditionally readily available local materials were used. This is evident particularly in rural areas where fences are an important economic tool for the management of rural enterprises and the significant cost of fencing was controlled by adapting locally available materials to local practices for the enterprise undertaken. The type of fence in a locality where sheep grazing is undertaken is different to where broad acre cropping is undertaken. 47.In this application, as already found, the use of the adjoining lands is for residential purposes. The type and style of fencing is fairly limited to that propounded by the respective parties; this being the essence of the dispute. 48.The locality appears to be in transition as older hardwood fences are replaced with either colorbond fencing or treated pine. The Tribunal is not satisfied that one type of fence is predominant over the over in the locality. Any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated 49.There is no evidence before the Tribunal as to any policy or code relating to dividing fences adopted by the local authority. 50.The Tribunal is on notice that the type of fence proposed is a complying development. Any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated 51.There is no evidence before the Tribunal as to any relevant planning instrument relating to the adjoining lands. Conclusion 52.The Tribunal is not an arbiter of style or an adjudicator of aesthetics. It can only make a decision on the evidence before it, applied to the law. 53.S 4 of the Dividing Fences Act sets out specific criteria for the Tribunal to consider. However the Tribunal's consideration is not limited to those criteria, the Tribunal must consider all the circumstances of the case before it when determining the standard for a sufficient dividing fence. 54.Once the Tribunal has determined the standard for a sufficient dividing fence, then that is the type of fence that the respondents will be liable to contribute to. 55.The 18 metre length of common boundary that adjoins the applicant's pool is not a length of fence to which the respondents must contribute; it is excluded from the provisions of the Act by the Swimming Pools Act. That Act imposes an obligation on the applicant to provide a child proof barrier. That section of fence is at his sole cost. 56.A question to be considered by the Tribunal is to what extent do the respondents have any say in the type of fence for this section of fence to also be used as a dividing fence? A fence used as a swimming pool fence and a dividing fence must incorporate the requirements of both uses. If a treated pine paling fence is used it will need to be modified by the applicant in order to comply with his obligations under the Swimming Pools Act. It is for the applicant to ensure compliance with that Act. No liability falls on the respondents in that regard. 57.The Tribunal is satisfied that if the applicant is obliged to provide a child proof barrier in compliance with the Swimming Pools Act then the material used and method of construction is the responsibility of the owner of the land in which the swimming pool is located, that is, the applicant. Neither the Swimming Pools Act nor the Dividing Fences Act contemplates otherwise. 58.The Tribunal finds that it is for the applicant to choose how he complies with his swimming pool obligations as he is solely responsible for the cost of that fence and liable to comply with the law. 59.The applicant proposes that the whole length of dividing fence, including that section that incorporates his swimming pool fence, be colorbonded steel. The respondents strongly oppose this type of material for their reasons set out in these reasons for decision. 60.The parties are intractable about the choice of material for the remainder of the dividing fence. The applicant seeks to impose his choice on the respondents and proposes that the fence have uniformity in style for the whole length of the fence. The respondents seek to impose their choice on the applicant for the whole length of the fence. They have been arguing about the material to be used for the proposed fence since 1998, which is nearly 16 years. They will not agree and the only option available to break this stalemate is for the Tribunal to impose a decision in the absence of their agreement. 61.Having found that the length of fence forming the swimming pool child proof barrier is to be at the applicant's choice for which he has chosen colorbonded sheet metal, the options for orders open to the Tribunal in relation the 32 metres for the remainder of the fence is a treated pine paling fence or a colorbond fence. If a timber fence this would result in the dividing fence consisting of part timber and part colorbond. Alternatively, for consistency of appearance the whole of the dividing fence the subject of the application could be ordered to be colorbond. The result will depend on what type of fence the Tribunal finds is a sufficient dividing fence for the purpose of the Act. 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 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. 63. It is the applicant's application and he has the onus of proof to satisfy the Tribunal that he is entitled to orders he seeks under the Act. 64.The applicant seeks a contribution to the cost of his proposed fencing work from the adjoining land owner. The Act provides that contribution to be limited to the cost of carrying out fencing work to a standard that results in the provision of a dividing fence of a standard not greater than the standard for a sufficient dividing fence. 65.It is well established that if the Tribunal finds that there is no sufficient dividing fence then it is open to the Tribunal to make any of the orders set out in s 14, in particular, an order of the kind of fencing work to be carried out. 66.The Tribunal has already found that the existing fence is no longer a sufficient dividing fence. 67.The Tribunal must now determine the standard of a sufficient dividing fence in order to make the orders under the Act. 68.A colorbonded sheet metal fence 1.8 metres high is a type not unusual in the locality, it is of a type that is used in residential areas, it addresses the concerns of both parties as to privacy, that part of it that forms the swimming pool fence is the responsibility of the applicant and if the concerns of the respondents come to fruition it will be for the applicant to maintain and repair that part of the fence solely. There is no evidence of it offending any policy or code of the council for the local government area or relevant environmental instrument. 69.In all the circumstances, the Tribunal finds that the applicant has satisfied the onus on him that a colorbonded sheet metal dividing fence is a sufficient fence for the purposes of this application and the Tribunal will make the orders for the carrying out of fencing work as now set out. ORDERS 70.The Tribunal orders: 1.The existing dividing fence between the applicant's and the respondents' adjoining lands is to be demolished and removed and the fence line cleared sufficiently to allow the fencing work to be carried out as part of the fencing work the subject of these orders. 2.A new Colorbonded sheet metal dividing fence 1.8 metres high is to be erected on the common boundary line between the applicant's and the respondents' adjoining lands. 3.The fencing work is to be carried out by David Evans & Son in accordance with their quote of 16 October 2013 for a Colorbond fence. 4.The applicant is responsible for the cost of the fencing work including the cost of the fencing work for the approximately 18 metres of the dividing fence that forms his swimming pool child proof safety barrier. 5.The respondents' contribution to the cost of the fencing work will be 50% of the cost of 32 metres of fencing work as quoted by David Evans & Son ("Fencing Contractor") regardless of the final cost, that is, $1,371.52. 6.The applicant must pay the whole cost of the fencing work to the Fencing Contractor and will be the only party to give instructions to the Fencing Contractor in relation to the carrying out of the fencing work. 7.Subject to availability of the Fencing Contractor, the fencing work is to be completed within two (2) months of the date of these orders. 8.The fencing work is to be carried out in a good and workmanlike manner using new materials. 9.The Fencing Contractor is to be paid on the day the fencing work is completed. 10.The respondents are to pay to the applicant their contribution, as ordered in these orders, within seven (7) days of completion of the fencing work, without deduction or allowance. (signed) P Boyce Senior Member Civil and Administrative Tribunal of New South Wales 23 May 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar