Gillard v Russell

Application

1. The applicants first filed an application with the Tribunal on 5 June 2018 (COM 18/25811) seeking orders: 1. An order determining the boundary line or line on which fencing work is to be carried out; 2. An order determining the fencing work to be carried out (including the kind of fencing work involved); 3. An order determining the manner in which contributions for fencing work are to be apportioned or re-apportioned between the parties or the amount that each adjoining owner is liable to pay for that work; 4. An order determining which portion of the dividing fence is to be constructed or repaired by either owner; 5. An order determining the time within which the fencing work is to be carried out.
2. The proceedings were listed for Conciliation and Hearing in a Group List in the Tribunal on 26 June 2018. The applicant did not appear. The Tribunal dismissed the application.
3. The applicants filed this further application on 29 June 2018 seeking the same orders as in the first dismissed application.
4. The proceedings were listed for Conciliation and Hearing in a Group List in the Tribunal on 12 July 2018. The applicants appeared through their agent. The respondent appeared. The parties were unable to resolve the dispute by conciliation. The Tribunal made orders to set the proceedings down for hearing and gave directions for the parties to parties to file and serve the documents upon which they intended to rely at the hearing.
5. The parties both filed the documents on which they rely late. No exception was taken by either party to the late filing of the documents and leave is granted for the respective parties' documents to be filed on the day they were filed.
6. The applicants were represented at the hearing by their managing real estate agent, Steven Jackson. The Tribunal grants leave to Mr Jackson to appear on behalf of and represent the applicants. The respondent appeared in person and represented herself at the hearing.
7. Throughout these reasons for decision the location of the parties adjoining lands has been anonymised.

Jurisdiction and Legislation

1. S 28 of the Civil and Administrative Tribunal Act 2013 ("CATA") provides that the NSW Civil and Administrative Tribunal ("Tribunal") has jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.
2. S 13 of the Dividing Fences Act 1991 ("DFA") confers jurisdiction on NCAT to hear and determine any matter arising under the DFA.
3. The general principles of the DFA 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.
4. S 3 of the Act defines the term "adjoining owner" as: adjoining owners means the owners of land on either side of a common boundary owner includes: (a) any person who jointly or severally (whether at law or in equity) is entitled to land for any estate of freehold in possession or who receives or is entitled to receive any rents and profits of the land, whether as beneficial owner, trustee, mortgagee in possession or otherwise, and (b) any person who is the holder of a lease (the unexpired term of which is not less than 5 years) when a notice to carry out fencing work in accordance with this Act is given by, or served on, that person. fencing work means: (a) the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence, and (b) the surveying or preparation of land (including the trimming, lopping or removal of vegetation) along or on either side of the common boundary of adjoining lands for such a purpose, and includes: (c) the planting, replanting and maintenance of a hedge or similar vegetative barrier, and (d) the cleaning, deepening, enlargement or alteration of a ditch, embankment or watercourse that serves as a dividing fence.
5. S 14 of the Act sets out the orders that can be made in respect of an application for fencing work:

Orders as to fencing work (1) The Local Court or the Civil and Administrative Tribunal may, in respect of an application under this Act, make an order determining any one or more of the following: (a) the boundary or line on which the fencing work is to be carried out, whether or not that boundary or line is on the common boundary of the adjoining lands, (b) the fencing work to be carried out (including the kind of dividing fence involved), (c) the manner in which contributions for the fencing work are to be apportioned or re-apportioned or the amount that each adjoining owner is liable to pay for that work, (d) which portion of the dividing fence is to be constructed or repaired by either owner, (e) the time within which the fencing work is to be carried out, (f) the amount of any compensation (in the form of an annual payment to either of the adjoining owners) in consideration of loss of occupation of any land, (g) that, in the circumstances, no dividing fence is required in respect of all or part of the boundary of the adjoining lands. (1A) Despite subsection (1), no order may be made for the carrying out of fencing work on critical habitat within the meaning of the Threatened Species Conservation Act 1995 without the consent of the Director-General of National Parks and Wildlife. (2) The occupation of land on either side of a dividing fence, as a result of an order determining that fencing work is to be carried out otherwise than on the common boundary of the adjoining lands, is not taken to be adverse possession as against the owner or to affect the title to or possession of the land, except for the purposes of this Act.

Notice to Carry Out Fencing Work

1. The Tribunal finds that on 2 May 2018 the applicants served a fencing notice pursuant to s11 of the Dividing Fences Act 1991 ("DFA") (called in these Reasons for Decision "the Notice") on the respondent.
2. The Notice proposed that fencing work be carried out as follows: 1. Properties affected: A. 19 ***** Place *********** owned by Dianne Russell; and, B. 21 ***** Place *********** owned by Allan & Robyn Gillard. 1. Position of fencing work (on the boundary line, or as shown on attached plan: On the boundary line or as near as reasonable practical (sic) to it. 1. Fencing Work proposed to be carried out (include length, height and type of materials):: Length of fence: 37.3 metres Height of fence: 1.8 metres Retaining sleepers: 37.3 Type of fence: Treated Pine Lap & Cap Demolish & Removal of old fence 1. Estimated Cost: $6,358 2. Sharing of cost: a. Allan & Robyn will pay for the fencing work and will be paid half the estimated cost by Dianne on completion
3. The Tribunal finds that the Notice complies with the requirements of section 11 (2) and (3) of the DFA and is a valid notice for the purposes of the DFA.
4. The Tribunal finds that the application has been brought more than one month after service of the Notice and the Tribunal has jurisdiction to determine the application.

Background and Facts

1. The applicants' evidence is contained in the folder of documents prepared by Mr Jackson and filed with the Tribunal and admitted as Exhibit A1. Mr Jackson also made submission on behalf of the applicants.
2. The respondent's evidence is contained in the folder of documents prepared by the respondent and filed with the Tribunal and admitted as exhibit R1. The respondent also gave sworn evidence.
3. The Tribunal notes that neither the applicants nor the respondent filed and served statements in the form of sworn or affirmed statutory declarations or affidavits and rely on the bundles of documents for the Tribunal to sort out the relevant material in support of the application and the defence.
4. The parties are reminded that the applicants bear the onus of proof of their application and, as such, it is incumbent on the applicants to provide relevant coherent probative evidence. Similarly in her response to the application the respondent has the onus of proving the elements of her defence to the application. The Tribunal will take from the volume of material such evidence as is relevant to support the applicants' case and the respondent's defence. It will make relevant findings of fact and describe the background of the case.
5. The Tribunal finds from the evidence adduced by the parties the following background and facts. 21 The applicants are the owners of 21 ***** Place *********** in NSW being lot 7003 DP779 (called in these Reasons for Decision "the applicants' land"). 22 The respondent is the owner of 19 ***** Place *********** in NSW being lot 7004 DP779 (called in these Reasons for Decision "the respondents' land").
6. The applicants' land has a street frontage to ***** Place on the arc of the radius of a cul de sac of 11.5 metres. The applicants' land adjoins the respondent's land on two boundaries.
7. The respondent's land is what is commonly referred to as a battle axe parcel of land. It has an arc frontage to ***** Place on the radius of a cul de sac of 2.9 metres.
8. The common boundary between the applicants' land and the respondent's land is the "handle" of the battle axe access adjoining the applicants' south eastern boundary and is 29.04 metres long to a splayed corner of 3.97 metres long and then adjoins the applicants' north eastern boundary for a distance of 32.95 metres ("Boundary 'B'").
9. On 29 March 2018 the applicants caused the existing dividing fences along the common boundary to be demolished and removed. The existing dividing fence was in disrepair. The parties do not contend that the existing dividing fence was a sufficient dividing fence. The applicants' then caused a new treated pine lapped and capped paling dividing fence to be erected along the battle axe handle and the splay corner between the applicants' land and the respondent's land.
10. The respondent became concerned that the newly erected fence was not being erected on the common boundary line and caused the fencing work then being undertaken to cease.
11. By letter to the applicants dated 7 April 2018 the respondent gave notice to the applicants that she required the common boundary line between the adjoining lands to be defined by a registered surveyor.
12. By letter to the respondent dated 10 April 2018 the applicants agreed to the "idea of determining the boundary line between our two properties" subject only to hearing from the respondent "in a timely manner-by close of business 18 April 2018". The letter is ambiguous. The consequences claimed by the applicants' of the respondent not complying with the unilateral time limit stipulated by the applicants for carrying out the survey work is not disclosed in any of the evidence, except that they deny liability to contribute to the cost of the survey work.
13. On 20 April 2018 by letter to the applicants, the respondent stated that: "As you have not advised me that you had intentions of identifying the disputed boundary line between our properties…. within seven days of the notice I served on you on 07 April 2018, I employed Pinnacle Land Surveyors to determine the boundary lines on our behalf… [on] Friday 20 April 2018.Boundary pegs, markers and stakes have been placed identifying the boundary lines."
14. In that same letter the respondent informed the applicants that the newly erected dividing fence encroached onto her land and that the contractor would be informed to move the fence to the common boundary line.
15. The survey obtained by the respondent from Pinnacle Land Surveyors shows that the newly erected dividing fence is variously 0.35 metres and 0.27 metres onto the respondents land on the handle of the battle axe and 0.27 metres and 0.22 metres on the splay corner. The survey also identifies where the pegs for the remaining boundary are located.
16. The respondent's evidence is that she has lost confidence in the fencing contractor used by the applicants to carry out the fencing work. The respondent must accept that the fencing work that has been carried out was done by the contractor in agreement with the applicants. That is a contractual relationship. The respondent was not a party to that agreement. The contractor had no contractual duty to the respondent to respond to her attempts to contact him. In any case, the fencing works the subject of the Tribunals order will be ordered to be carried out by an independent contractor other than the Local Fencing Pty Ltd to avoid bias that the respondent may apprehend.
17. The newly erected fencing encroaching on the respondents land is not the subject of the application. The application is brought by the applicants in respect of the proposed dividing fence for Boundary "B".
18. If there was an agreement between the parties that fencing work be carried out on the battle axe handle and the splay corner boundary (and the Tribunal does not make a finding in that regard in relation to the current application), and it was not erected in accordance with any such agreement, then that may be the subject of a claim by the respondent such as she may be advised by her legal advisers.
19. It is not clear from the respondent's evidence that she presses a claim for compensation in respect of alleged damage to her property perpetrated by the applicant's fencing contractor. In any case, the Tribunal is not empowered under the DFA to make such orders if those were to be sought by the respondent.
20. The applicants rely on a quote from Local Fencing Pty Ltd dated 17 January 2018. The quote relates to all the dividing fences of each of the applicants' boundaries. The quote refers to the cost of the fencing work for Boundary "B" from the end of the fence on the splay corner to the end of the common boundary between the applicants' land and respondent's land and is for: 23.1m of 1.8m high Treated Pine Lap & Cap Fence $1728.00 10m of 1.8m high Treated Pine Lap & Cap Fence $748.00 Demolish and remove old fence $850.00 Total $3326.00 Retaining wall 12m 600-200 Retaining Sleepers (lin. M) $743.00 11.1m 400-200 Retaining Sleepers (lin.M) $462.00 10m 400 Retaining Sleepers (lin.M) $462.00 8 Dig Back (Hand) $704.00 Total $2371.00 Fence in Colorbond 1.8m high (without allowance for splay corner) $6728.00
21. The respondent tendered with her evidence a quote dated 25 July 2018 from Active Fencing for the cost to erect fencing on the handle of the battle axe boundary, splay corner boundary and the boundary section referred to as Boundary "B", a total of 59m, as follows: Supply & Erect 1.8m of Treated Pine Lap & Cap 59m $5605.00 Supply & Erect 1.8m of ColorBond Steel Fence 59m $5700.00 Galvanised Steel 50 x 50mm Posts extra $470.00 Demolish & Remove Existing Fence 25.7m $565.00 Heights 1.8m or 1.5m same price
22. The application is only for the section of the common boundary along Boundary "B". The applicants quote should therefore be adjusted proportionately. The quote has a diagram on it showing the battle axe handle boundary with a length of 21.7 metres, the splay corner boundary with a length of 4 metres and the boundary "B" with a length of 33.3 metres. Boundary "B" as a fraction of the entire length is 333/590. When applied to the total price for the length of all boundaries, the colorbond quote is $3217.12 and the treated pine quote is $3613.50.
23. It is clear that from the evidence of both the applicants and the respondent the Tribunal has no relevant current quotes upon which it can make a determination. The Tribunal will order that quotes be obtained by both parties for the scope of works that the Tribunal will order.
24. During the hearing the applicants conceded and the respondent agreed: 1. That the proposed dividing fence should be 1.5 meters high above the level of the surface of the applicants land along the common boundary line; and, 2. That the proposed dividing fence should be constructed of colorbond panels and posts so as to conform with Hornsby DCP 2013 that dividing fences are to be constructed of non-combustible material.

Issues

1. The remaining issues are: 1. Does the Tribunal have the jurisdiction to make an order in respect of the retaining wall proposed? 2. If it does where should the retaining wall be located? 3. Does the respondent have any liability to contribute to the retaining wall? 4. Do the applicants have any liability in respect of contributing to the cost of the survey? 5. Do the applicants have any liability for the costs incurred by the respondent in participating in these proceedings?

Retaining Wall

1. The Tribunal's jurisdiction in relation to retaining walls is limited to retaining walls that are a foundation or support necessary for the support and maintenance of the fence. 44 The respondent disputes that the cost of the proposed retaining wall beneath the fence is a cost that should be borne equally between the parties. The respondent relies on the evidence adduced by the applicant of a copy of a planning certificate issued under section 10.7(2) of the Environmental Planning and Assessment Act 1979 in respect of 21 ***** Place ***********. Paragraph 7(a) of the Planning Certificate identifies the applicants' land as being all or partly having a gradient in excess of 20% and is therefore the subject of Hornsby DCP 2013. The Hornsby DCP 2013, adduced in evidence by the respondent, provides at Clause 1C under the heading "Prescriptive measure" that sloping sites with a gradient in excess of 20% require certification from a geotechnical engineer as to stability of the slope.
2. The applicants' evidence is that the land affected by the Landslip notification on the Planning Certificate is at the street front of the applicants' land.
3. There is no evidence before the Tribunal as to the extent of the Landslip Notification on the applicant's land as to whether it is for all or part of the land.
4. The only evidence before the Tribunal is that the applicants land at the common boundary had been leveled and was supported by a low retaining wall and a higher retaining wall built within the respondent's land. The photographs tendered by the respondent show a retaining wall some 11 courses of interlocking concrete blocks forming a support for the applicants' land with a garden planted on the slightly sloping/leveled area created by it between the applicants' land and the respondent's land. If the concrete block is a standard size then they are 200mm high each and with 11 courses the wall is approximately 2.2 metres high It is above the garden at the top of the existing retaining wall that the applicants' say there should be a low retaining wall of between 200mm - 600mm high to provide a support or foundation for the proposed dividing fence.
5. The Tribunal is satisfied on the evidence before it that the low retaining wall included in the application is a retaining wall for the purpose of a foundation or footing for the support of the proposed dividing fence and act as plinth beneath the dividing fence. It will support the earth on the applicants' side of the fence and prevent it escaping onto the respondent's land. It will also allow the base of the fence to be leveled and supported.
6. The retaining wall should be located so that the width of the sleepers forming the retaining wall elements is centered on the common boundary line as has been determined by the surveyor.
7. As the retaining wall is part of the fencing work the respondent will be required to contribute to one half of its cost.

Liability for survey costs

1. The respondent claims from the applicants a sum of $1177.00 being one half of the surveyor's fees.
2. The DFA provides a procedure for defining boundary line at section 18 as follows: (1) An adjoining owner may give notice in writing to the other adjoining owner of his or her intention to have the common boundary line defined by a registered surveyor if the owners do not agree on the position of the common boundary line for the purposes of carrying out fencing work. (2) The owner receiving the notice may, within 7 days after service of the notice: (a) define the position of the common boundary line by pegs if satisfied as to its position, or (b) employ a registered surveyor to define the common boundary line, and in either case is to inform the other adjoining owner in writing of what has been done. (3) The owner giving the notice may have the common boundary line defined by a registered surveyor if the owner to whom the notice is given has, within 1 month after service of the notice, defined the common boundary line by pegs or failed to have the common boundary defined by a registered surveyor. (4) If the common boundary line as defined by a registered surveyor is ascertained to be in the same position defined by pegs placed there by the owner receiving the notice, that owner is entitled to recover from the owner giving the notice any costs incurred. (5) In any other case when a registered surveyor has been employed, all reasonable expenses are to be paid in equal shares by the adjoining owners. (6) In this section, registered surveyor means a person registered under the Surveying and Spatial Information Act 2002 as a surveyor.
3. The respondent invoked the provisions of section 18(1) of the DFA by her letter dated 7 April 2018 giving notice that she intended to have the common boundary determined by a registered surveyor.
4. The applicants letter of 10 April 2018 the applicants although agreeing to the "idea of determining the boundary line between our two properties" did not inform the respondent that they intended to otherwise define the position of the common boundary line or employ a registered surveyor or would do as required to be done by section 18(2) of the DFA.
5. In the absence of the response by the applicants as required by the DFA, the respondent proceeded to have the common boundary line defined by a registered surveyor. The registered surveyor defined the common boundary line on 20 April 2018, that is, within one month of the respondent giving notice under section 18(1).
6. Section 18(5) of the DFA provides that when a registered surveyor has been employed, all reasonable expenses are to be paid in equal shares by the adjoining owners.
7. Section 3 of the DFA defines fencing work to include surveying.
8. Section 14(c) of the DFA allows the Tribunal to make orders in regard to the contributions to the cost of fencing work.
9. The Tribunal will order that the applicants pay to the respondent one half of the cost of the survey work incurred by the respondent to define the boundary, that amount being part of the cost of the fencing work.

Costs

1. The respondent has sought an order for costs and expenses that she has incurred in preparation of her response to the application.
2. Section 60(1) of CATA provides that each party to proceedings before the Tribunal should bear their own costs unless special circumstances under section 60(2) are present.
3. Except for the surveyor's fees, the expenses are the expenses normally and necessarily incurred by a party in contested litigation. The respondent has not established that special circumstances are present.
4. Accordingly section 60(1) applies and each party must pay their own costs.

Orders

1. To give effect to the findings made in these reasons for decision the Tribunal makes the following orders: 1. Orders (a) The line of the dividing fence and retaining wall between 18 ***** Place *********** and 21 ***** Place *********** along Boundary "B" is to be centred on the common boundary line as defined by surveyors, Pinnacle Land Surveyors. 1. The applicants are to trim and cut their paving to provide a clear working area for the erection for the new fence at their sole expense. 2. The retaining wall beneath the dividing fence is to be constructed of treated pine sleepers placed on their side and fixed so that they act as a retaining wall and footing or foundation and plinth for the proposed dividing fence and are to be installed as part of the fencing work at the joint cost of the parties. 3. A new dividing fence is to be constructed of colorbonded sheet metal fence supported on steel posts concreted into the ground and have a height of 1.5 metres high above the surface level of the applicants' land at the common boundary line between the applicants' land and the respondent's land at the joint cost of the parties. 4. The applicants must pay to the respondent on or before the 20 November 2018 the amount of $1,177.00 as their contribution to the survey work carried out by Pinnacle Land Surveyors to identify the common boundary. 1. Facilitating Orders 1. Each party is to obtain at least one (1) quote from a licensed fencing contractor for the fencing work set out in these orders within one (1) month of the date of publication of these Reasons for Decision. 2. The fencing contractor is not to be Local Fencing Pty Ltd. 3. The parties are to exchange their respective quotes with each other within seven (7) days of receipt of their quote. 4. The parties are to agree on the quote to be accepted. 5. If a quote is not obtained by the respondents within one (1) month of the date of publication of these Reasons for Decision, then the quote obtained by the applicants will be the quote to be accepted; 6. If both parties obtain a quote within the time allowed under these orders and there is absence of agreement between the parties within 6 weeks of the date of publication of these Reasons for Decision as to which quote is to be accepted, the quote or quotes are to be referred to the Presiding Tribunal Member for decision as to which quote will be selected. In making the decision, the Tribunal Member:- 1. Will not consider submissions made by either party in respect of the acceptability or otherwise of the quotes submitted; 2. is not bound to select the lowest quote submitted by the parties; 3. is not obliged to satisfy themselves as to the bona fides or license status of the proposed fencing contractors; 1. The applicants must pay the 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. 2. Subject to availability of the fencing contractor, the fencing work is to be completed within three (3) months of acceptance of the quote. 3. The fencing work is to be carried out with due care and skill using new materials. 4. The fencing contractor is to be paid on the day the fencing work is completed. 5. The respondent is to pay to the applicants her contribution, as ordered in these orders, within seven (7) days of completion of the fencing work, without deduction or allowance. 1. Costs 1. Each party is to pay their own costs.

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: 30 January 2019