Grose v Bolton; Bolton v Grose

Documentary Evidence of Ms Grose

1. In addition to documents and submissions in Matter Com 18/03408, the documents relied upon by Ms Grose were as follows: 1. Statement of Ms Grose dated 16 October 2018. 2. Inner West Council Development Assessment Report (date of receipt 23 December 2015). 3. Referral Panel Meeting Minutes of Leichardt Council dated 3 February 2016. 4. Inner West Council Notice of Determination of Development Application dated 14 June 2016 (to lapse on 14 June 2021). 5. Owner/Builder licence issued by NSW Fair Trading to Mr Slaven. 6. Construction Certificate issued by private certifier Mr Scott Hackett dated 17 November 2017. 7. Policies of Insurance regarding residential building work. 8. A photograph of part of the boundary between the properties, showing a retaining wall with 3 posts located in the ground between sections of the retaining wall. 9. Ms Grose's Fencing Notice dated 20 December 2017. 10. Ms Bolton's Fencing Notice dated 30 August 2018. 11. A plan identified as 'Annexure A' to Ms Bolton's Fencing Notice. That plan shows the boundary between the properties identified as sections 'A'; 'B'; 'C'; 'D'; and 'E'.

Documentary Evidence of Ms Bolton

1. In addition to the documents and submissions in Matter Com 18/03408, the documents relied upon by Ms Bolton were as follows: 1. Statements of Ms Bolton dated 14 November 2018 and 6 December 2018. 2. An annotated photograph showing a laser measurement. 3. A photograph of Ms Bolton standing next to a section of the boundary taken in October 2018. 4. A plan showing the boundary divided into Sections 'A'; 'B'; 'C'; 'D' and 'E' (also in Ms Grose's documents and attached to Ms Bolton's Fencing Notice). 5. 2 photographs of the area of the previous metal fence on the boundary. The first was taken in September 2014 (before removal) and the second in March 2016 (after removal). 6. An email from Inner West Council dated 18 May 2017. 7. A written notice from Mr Slaven dated 17 November 2017 that "demolition works" including the side fence; pergola; front windows; and side doors would commence on 28 November 2017. 8. A Statement of Environmental Effects for Alteration to an Existing Dwelling House and Fences dated December 2015 prepared by Mr Bruce Threlfo, town planning consultant, submitted in respect of the Development Application. 9. 4 photographs with comments on some of them by Ms Bolton taken at various times between December 2017 and October 2018. 10. A brief document from "Martin" at Crescent Timber and Hardware Pty Ltd addressed "to who it may concern" stating that: "In our opinion, a hardwood paining fence would outlast a treated pine paling fence under normal conditions and installation practices". 11. 3 photographs of a wooden paling fence taken in March 2018. 12. A quotation from Mr Demetriou of Sydney Fencing and Gates dated 9 November 2018. The quote gives prices for a timber pailing fence at "Section C; D; and E" with a total length of 19.51 mtrs. The quote gives various prices for treated pine; hardwood; and 15mm FC sheets. 13. A letter from Ms Bolton to Ms Grose dated 21 December 2017 responding to the Fencing Notice. The letter states that no consent will be given until Ms Grose provides "three stamped drawings numbered DA03, DA04 and DA06" filed with the construction certificate. 14. 2 documents lodged with Ms Grose's Development Application showing plans for the "new 2400 mmm (H) feature fence". 15. An email from Inner West Council dated 30 November 2017. Relevantly, the email states: "The application is finalised. In response to your Question 3, the fence is to be located on top of the retaining wall, which by survey is located on the whole of the subject site…"

The Fencing Notice of Ms Grose

1. The Fencing Notice of Ms Grose relevantly sets out the type of fence and contribution as follows: 2. Position of Fencing Work As per Inner West Council Development Consent D/2015/745. Drawing DA03, DA04, DA06 as attached. 3. Fencing Work proposed to be carried out (including length, height, and type of materials) As per Inner West Council Development Application No: D/2015/745. With reference to condition 3 (a). The fence is to be constructed as a lapped and capped timber dividing fence with a maximum height of 2.2 m above the existing retaining wall with the exception of the following 1. Adjacent to No 12…North Facing elevated 'drying' deck the fence can be 2.4 m above the existing retaining wall; and 2. From the North West Corner back towards the building line of No 12…(1.5 m from the front boundary) the fence is to be maximum height of 1860mm matching the height of the proposed front fence. The fence pailings are to face No 12 with the railings to face No 10 4. Estimated cost: To be paid for by…(Ms) Grose 5. Attribution of cost: (Ms) Grose to pay 100%"

The Fencing Notice of Ms Bolton

1. The Fencing Notice of Ms Bolton relevantly sets out the type of fence and contribution as follows: "Construct fence per approved plans for DA 2015/745 subject to the following: (a) Fence Height for Section B which comprises 5.4 m of 26 m Fence Between the proposed pergola and our building alignment (Section B in the drawing in Annexure A) you propose a brick and slate fence with a height of 2310 above the front footpath, as part of a design prepared by an architect and said by the applicant's town planner, in his SEPP1 Objection, to address overlooking. The fence in section B is to be made of brick & slat, matching the existing brick dividing fence and the front fence, at the proposed height of 2310 above the front footpath. (b) Materials in Section A (boundary to No 12's building alignment) and Section B The slats above the brick wall are to match those on the front fence and be 1860 above the front footpath to match the height of the slats on the front fence. (c) Cladding next to near-boundary brick wall Fence cladding alongside my kitchen wall (Section E in Annexure A) is impracticable to maintain on my side of the fence as there is only 150 mm clearance next to the brick wall. Any cladding should be applied to No 10's side of the fence adjacent to the kitchen wall in Section E (d) Mr Slave not to Enter Mrs Bolton's land Neither Mr Slaven nor Ms Grose is to access my land at any time. (e) Indemnity You are to provide indemnity in respect of any loss, damage or injury due to you or your contractors using my land and to which access must be kept to a minimum and arranged in advance in writing and occur only after written consent is received. (f) Licensed and insured contractors Only licensed and insured contractors may enter our land to carry out the works. You will provide or arrange for all contractors to provide evidence of licenses and certificates of currency of insurance. 4. Estimated cost (assessed for above works above the flashing): $10,000 5. Attribution of cost: (Ms) Grose to pay 100%"

The Development Consent Approval by Inner West Council

1. The minutes of the Referral Panel Meeting of the Local Council dated 3 February 2016 relevantly state regarding objections to the fence: "The height of the fence, in addition to the exiting retaining wall over all on average has an effective height of 3m. The provisions of the SEPP for Complying and Exempt Developments stipulate a max height of 1.8 m at ground level with an allowance of 2.2 m for stepping. As the site is relatively level at the top of the retaining wall, the fence is considered as proposed to be excessive in height and is required to be reduced. In relation to the overlooking as claimed from the applicant, the area of most concern is the north facing deck from (No 12) that enable overlooking to one bedroom window and set of French doors to the main living area of No 10. In this regard the assumed eye level of 1.6 m is considered an acceptable height to minimise overlooking from all areas of the deck from No 12…including the 'trafficable' area as mentioned on the objection. Therefore, the height of the fence is to be conditioned to have an effective height of no more than 2.2 m from any part of the existing retaining wall. Matters in relation to the FC (fibre cement) sheeting adjacent to 12…is to be condition to have a finish that is satisfactory to both parties agreeable on civil terms. Due to installation and maintenance issues, FC sheeting adjacent to 12…north east elevation wall closed to the boundary is to be deleted. Acoustic matters are non-existent and to install and maintain the FC in this area is considered unreasonable. Alternatively discuss with applicant for timber pailing fence at 2.2 m with 2.4 m at "drying deck" to eliminate overlooking".
2. The Development Assessment Report of Inner West Council in regards to the Development Application by Ms Grose relevantly states (at pp 8-11) as follows regarding the dividing fence: 1. The majority of the fence as recommended should be no higher than 2.2. m from the top of the existing retaining wall, which provides an effective height of 1.6 m from the finished floor level of No 12, given that the finished floor level of No 12 is approximately 1.2 m above the ground level of No 10. 2. In respect of the height of the fence (at page 11): "It is acknowledged that the fence is higher than that allowed under the State Environmental Planning Policy (SEPP) Exempt and Complying Development, however, it is recommended to generally have a height of 2.2 m which will have an effective height, as viewed from (Ms Bolton's property) of 1.8 m". 1. However, to protect the privacy of both parties, in the area of the fence adjacent to the external "drying deck" of No 12, the fence height is recommended to be increased to 2.4 m providing an effective height of 1.8 m measured from the finished floor level at the elevated deck. 2. The fence at an effective height of 1.8 m at the "drying deck" area would provide minimal overshadowing at this area of the fence. 3. The fence at a height of 2.2m above the existing retaining wall and 2.4 m height adjacent to the to the elevated "drying deck" would provide a reasonable level of privacy to both parties. 4. Although the height of the fence at 2.4 m at the area of the elevated "drying deck" is higher than that allowed under the State Environmental Planning Policy (SEPP) Exempt and Complying Development, it is reasonable and acceptable in all the circumstances for the fence to generally have a height of 2.2. m which will have an effective height as viewed from No 12 of 1.8 m; and the fence at the area of the "drying deck" to have an effective height of 1.8 m measured from the finished floor level of the "drying deck" at No 12. 5. The fence is recommended to be a low maintenance timber fence pailing fence that should allow a reasonable amount of ventilation and is considered low maintenance.
3. The Development Assessment Report recommended that approval be given.
4. On 16 June 2016, Inner West Council issued a Notice under s 81 (1)(a) of the Environmental Planning & Assessment Act 1979 (NSW) approving the Development Application. A condition of consent was that work was to be performed (except where amended by conditions of consent) in accordance with the plans of Ms Grose's architect, Arthur Vellis Architects, Site Plan DA03 Rev E; DA04 Rev E; and Elevations & Sections B-B-DA 06 Rev E.
5. It is not clear from the documents of Ms Grose whether the plans lodged with the Local Council were amended to show a timber lapped and capped fence rather than the previously proposed fence comprising of separate sections of brick and slats; and fibre cement sheeting. The plans provided to the Tribunal do not appear to have been amended.
6. Relevantly, page 4-5 of the Development Approval of Inner West Council dated 14 June 2016 states: "3. Amended plans are to be submitted incorporating the following amendments: (a) The fence is to be constructed as a lapped and capped timber dividing fence with a maximum height of 2.2 m above the existing retaining wall with the exception of the following: 1. adjacent to No 12…North facing elevated 'drying' deck the fence can be 2.4 m above the existing retaining wall; and 2. From the North West corner back toward the building line of No 12… (1.5m from the front boundary) the fence is to be a maximum height of 1860 mm matching the height of the proposed front fence (comprising of lightweight including the support posts) to minimise the visual impacts of the proposal on the surrounding heritage conservation area 3. Horizontal slats to front fence shall not exceed a level of 75% obscurity. …."
7. Irrespective of whether amended plans were lodged, it is clear the Council regarded a lapped and capped timber pailing fence of specific heights as appropriate and that was the type of fence approved as part of the Development Approval. The Fencing Notice issued by Ms Grose identifies the type of fence to be built as a lapped and capped timber paining fence and she seeks to erect a fence in accordance with the Development Approval.

Issues for Determination

1. The Tribunal must consider issues including: 1. Whether it has jurisdiction in the matter under the Dividing Fences Act? 2. If so, is there currently a sufficient dividing fence? 3. If not, what is the appropriate sufficient dividing fence to be constructed (including height and materials); where should it be constructed; who should construct it; what contribution should be made regarding cost; and what, if any, access orders should be made so that the fence can be constructed.

Adjoining Owners

1. There is no dispute between the parties that Ms Grose and Ms Bolton are the owners of adjoining land.

Time for Commencing Proceedings

1. Ms Bolton agreed that she had been personally served with Ms Grose's Fencing Notice dated 20 December 2017 on or about 20 December 2017. Personal service is a method of service under s 21 of the Dividing Fences Act. The proceedings have been brought in the Tribunal by Ms Grose more than 1 month after service of the Fencing Notice (s 12 (2) of the Dividing Fences Act). Section 12 of the Dividing Fences Act identifies the minimum time that must expire before proceedings are taken in the Tribunal, but the Dividing Fences Act does not contain any limitation period stipulating that proceedings must be taken by a certain period of time.
2. In respect of the Fencing Notice of Ms Bolton, irrespective of whether or not the notice was validly served and the 1 month minimum time period before proceedings can be taken in the Tribunal, the Tribunal can consider Ms Bolton's proposal regarding what is an appropriate sufficient dividing fence in the context of the application by Ms Grose.
3. However, in respect of Ms Bolton's Fencing Notice, there was no dispute that the notice had not been served in accordance with s 21 of the Dividing Fences Act on or about 30 August 2018. Ms Bolton's proceedings were filed with the Tribunal on 21 November 2018. The Tribunal is satisfied that proceedings were filed more than 1 month after service of the Fencing Notice.

Content of the Fencing Notice

1. Section 11 of the Dividing Fences Act states: 11 Notice to carry out fencing work (1) An adjoining owner may require the other adjoining owner to contribute, under this Act, to the carrying out of fencing work by serving a notice in writing to that effect on the other owner. (2) The notice is to specify the following: (a) the boundary line on which the fencing work is proposed to be carried out or, if it is impracticable to carry out fencing work on the common boundary of the adjoining lands, the line on which it is proposed to carry out the work, (b) the type of fencing work proposed to be carried out, (c) the estimated cost of the fencing work. (3) The owner serving the notice may propose that the cost of the fencing work is to be borne otherwise than in equal proportions. In such a case, the notice is to state the proposed proportions. (4) The description of land in a notice need not particularly define the land if it allows no reasonable doubt as to what land is referred to in the notice. (5) An adjoining owner is not liable to contribute to the cost of any fencing work in respect of a dividing fence: (a) carried out before a notice under this section is served on the adjoining owner (unless section 9 applies or the notice is served in accordance with section 22), or (b) carried out after the service of the notice on the adjoining owner and before agreement is reached by the adjoining owners concerning the fencing work (including the contributions to be made in respect of the work) or before the matter has been determined by the Local Court or the Civil and Administrative Tribunal.
2. The Fencing Notice of Ms Grose complies with s 11 of the Dividing Fences Act. It identifies the type of fence and contribution, subject to the issue of whether a notice is invalid if it does not require any contribution, which is further discussed below. In respect of where the fence is to be located, although the notice does not identify the position of the fence other than by stating that it is to be located in accordance with the Development Approval of Inner West Council, the application filed by Ms Grose contains a survey report of a registered surveyor. There was no issue taken by Ms Bolton that the survey did not correctly identify the boundary between the respective properties, and it can be implied that the notice identifies that the fence should be constructed on the boundary line.
3. Ms Bolton submits that the Tribunal has no jurisdiction under the Dividing Fences Act in circumstances where one owner does not seek any contribution from the other owner, and that the decisions in Larney v Johannson [2012] NSWSC 1297 and Larney v Johannson [2013] NSWCA 409 support the asserted principle.
4. However, the decisions of both the Supreme Court and Court of Appeal in Larney v Johannson are not authority for the proposition that a neighbour must seek contribution from the adjoining neighbour for the cost of fencing work; nor that a Fencing Notice is invalid if it does not seek some contribution. In Larney v Johannson, an owner of land (Ms Johannson) constructed a dividing fence, and her neighbour Mr Larney sought to have the fence removed with Ms Johannson contributing to the cost. The Local Land Board dismissed the application and the owner appealed that decision to the Supreme Court (Adams J) and subsequently the NSW Court of Appeal.
5. The NSW Court of Appeal (upholding the decision of Adams J in the Supreme Court) held that there was no jurisdiction to make any order for fencing work under the Dividing Fences Act because: (i) there was a sufficient dividing fence, being the fence that had been constructed by Ms Johannson; and (ii) no Fencing Notice had been served by Mr Larney before commencing proceedings, and the provisions under s 9 of the Dividing Fences Act did not apply (i.e. urgent fencing work, where a fence can be constructed or repaired without a Fencing Notice having been issued, and contribution can still be sought from the adjoining neighbour).
6. In Larney v Johannson, both the Supreme Court and the NSW Court of Appeal held that there is no jurisdiction unless there is not a sufficient dividing fence. However, that is a different issue to the issue raised by Ms Bolton, which is that the Tribunal has no jurisdiction in circumstances where there is not a sufficient dividing fence, but the owner proposing to erect or repair the fence does not seek contribution from the other neighbour. There is nothing in the decisions of Larney v Johannson that supports such a proposition.
7. Section 6 of the Dividing Fences Act states. 6 General principle - liability for fencing work (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.
8. Section 6 of the Dividing Fences Act refers to a "general principle" regarding contribution. It does not state that the adjoining owner "must" contribute, and identifies the principle regarding contribution as "general" not mandatory.
9. Section 7 of the Dividing Fences Act states: 7 Contribution as between adjoining owners - generally (1) Adjoining owners are liable to contribute in equal proportions to the carrying out of fencing work in respect of a dividing fence of a standard not greater than the standard for a sufficient dividing fence. (2) An adjoining owner who desires to carry out fencing work involving a dividing fence of a standard greater than the standard for a sufficient dividing fence is liable for the fencing work to the extent to which it exceeds the standard for a sufficient dividing fence. (3) An adjoining owner who desires to carry out the trimming, lopping or removal of vegetation (as referred to in paragraph (b) of the definition of fencing work in section 3) for a purpose other than the provision of a sufficient dividing fence is liable for the expenses of carrying out the work to the extent to which those expenses are attributable to work done for that other purpose.
10. Again, Section 7 of the Dividing Fences Act uses the word "generally" regarding the principle of neighbouring owners contributing in equal proportions to the cost of fencing work. That provision does not state that a neighbour "must" contribute, or should be interpreted in a manner that supports the contention that a Fencing Notice is invalid unless it demands some form of contribution to proposed fencing work from the neighbouring owner.
11. In any event, both Ms Grose and Ms Bolton propose that Ms Grose pay for the entirety of the fencing work.
12. Section 8 of the Dividing Fences Act states: 8 Contribution where negligent or deliberate act (1) Despite section 7, an adjoining owner is liable for up to the whole cost of the fencing work required to restore a dividing fence that has been damaged or destroyed by a negligent or deliberate act of the owner or of a person who has entered the land concerned with the express or implied consent of the owner. (2) Any such dividing fence is to be restored to a reasonable standard, having regard to its state before the damage or destruction. (3) In determining an adjoining owner's liability under this section, it does not matter if the negligent or deliberate act concerned took place before the commencement of this section.
13. Section 8 of the Dividing Fences Act clearly identifies circumstances where one owner can be held liable for the entire cost of fencing work. That provision does not support the argument of Ms Bolton that the Tribunal has no jurisdiction where a Fencing Notice does not seek contribution from the other neighbour for the cost of fencing work.
14. The Tribunal is not satisfied that the mere fact the Fencing Notice issued by Ms Grose does not seek contribution from Ms Bolton deprives the Tribunal of jurisdiction.

Sufficient Dividing Fence

1. The next issue to be considered is whether there is currently a sufficient dividing fence. Unless there is no sufficient dividing fence, the Tribunal does not have jurisdiction: Alwiah v Watts and Anor [2004] NSWSC 948; Larney v Johannson [2013] NSWCA 409; Purcell v Chadwick [2018] NSWCATAP 250.
2. Section 4 of the Dividing Fences Act states: 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.
3. In this matter, it is clear that there is no dividing fence for a significant proportion of the boundary between the two properties. This is not a situation, such as in Purcell v Chadwick where there was an existing dividing fence between properties which an owner sought to demolish and replace because it was not on the boundary line between the two properties.
4. The Tribunal is satisfied that there is currently no sufficient dividing fence between the neighbouring properties.

Fencing Work

1. Section 3 of the Dividing Fences Act relevantly states: … fence means a structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land, whether or not continuous or extending along the whole of the boundary separating the land of adjoining owners, and includes: (a) any gate, cattlegrid or apparatus necessary for the operation of the fence, and (b) any natural or artificial watercourse which separates the land of adjoining owners, and (c) any foundation or support necessary for the support and maintenance of the fence, but does not include a retaining wall (except as provided by paragraph (c)) or a wall which is part of a house, garage or other building. 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. …
2. The work propose by Ms Grose (and the counter proposal by Ms Bolton) is "fencing work" within the meaning of s 3 of the Dividing Fence Act. Although there is a retaining wall between the properties, the majority of the previous fence was erected on top of that retaining wall, and the proposed fencing work also involves building part of the fence on top of the existing retaining wall. The proposed fencing work does not involve the erection or relocation of the retaining wall. The Tribunal is satisfied that the proposed work is "fencing work" within the meaning of s 3 of the Dividing Fences Act.

What is the Appropriate Fence That Should Be Erected?-The Competing Submissions of the Parties

1. Section 14 of the Dividing Fences Act states: 14 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 a declared area of outstanding biodiversity value under the Biodiversity Conservation Act 2016 without the consent of the Environment Agency Head (within the meaning of that Act). (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.
2. There are two competing proposals for fencing work. Ms Grose proposes a lapped and capped timber fence at the heights stipulated in the Development Assessment Report of Inner West Council that for the basis of the Council's Development Approval. Ms Bolton proposes a fence generally in accordance with the original fence proposed by Ms Grose in her Development Application (i.e. brick and pier for part of the fence, and fibre cement sheets for another part of the fence, subject to the "cladding" being on Ms Grose's side of the fence adjacent to the kitchen wall in 'Section E' of the boundary) and particularly takes issue with the height of Ms Grose's proposed fence at the 5.4 m section between Ms Bolton's building line and the western end of the Ms Grose's new pergola ("Section B" of the boundary); and the 3.34m section adjacent to the 'drying deck' on Ms Bolton's property "Section D" of the boundary).
3. Ms Grose submits that a lapped and capped timber fence at the height approved by Inner West Council is appropriate because Inner West Council considered relevant issues including privacy; overshadowing; ventilation; and compliance with codes and regulations and that that she should be able to construct a fence in accordance with the Development Approval, rather than a fence inconsistent with the Development Approval. Ms Grose further submits that Ms Bolton had objected to the original Development Application and had her objections considered by Inner West Council.
4. Ms Bolton submits that Ms Grose has "taken advantage of a poorly drafted condition" because: 1. The height of the fence at Section B exceeds the maximum height under SEPP 2.34; and SEPP 2.36; and ss 4.15 and 4.17 of the Environmental Planning and Assessment Act 1979 (NSW). According to Ms Bolton, erection of a fence at 'Section B' at the height approved in the Development Approval would "result in a taller fence made from timber pailings and result in a fence quite different fence" that Ms Grose had proposed in the Development Application". In essence, Ms Bolton submits that the fence at Section B should be no higher than 1.8m from the top of the retaining wall. 2. It would be an "act of bad faith" for Ms Grose to construct a fence at Section B at greater height than the fence proposed in the original development application and at a height above the maximum height for an "exempt fence" under the SEPP. 3. An excessively high fence would cause overshadowing and ventilation issues affecting pot plants and plants in planter boxes at the side of Ms Bolton's house, and was unnecessary to address privacy concerns. 4. The fence, as approved by Inner West Council in the Development Approval would be excessively high particularly in respect of Section B and Section D. 5. Ms Grose was estopped from seeking to construct any type of fence other than the fence she had proposed in her original Development Application.
5. In addition to the above oral submissions that were made at the hearing by Mr Bolton, Mr Bolton also sent through further additional written submissions and purported further evidence (which is in substance constitutes further submissions, not fresh evidence) in January and February 2019. The principles applicable to the granting of leave to re-open a case and adduce further evidence are discussed by the Appeal Panel of the Tribunal in Wassef v Panagiotopolous [2019] NSWCATAP 101. However, the further submissions did not in substance introduce new evidence, but further legal argument.
6. At the conclusion of the hearing on 19 December 2018, the Tribunal did not make directions regarding further written submissions, nor were such directions sought. Ms Grose has not responded to the further submissions.
7. It is inappropriate for a party to send to the Tribunal further written submissions in circumstances where no directions have been made providing a timetable for submissions and without having sought leave to do so. It is surprising and disappointing that a Solicitor would adopt this course of action. In any event, much of the further submissions of Mr Bolton simply repeat, in slightly different terms, the same oral submissions made at the hearing on 19 December 2018.
8. In circumstances where there has been no application for leave to adduce further submissions, and the Tribunal has not made any orders regarding a timetable for both parties to file and serve further submissions, it would be procedurally unfair to Ms Grose to consider such submissions. The Tribunal has only considered the submissions made orally and in writing by the parties up to and including the hearing date of 19 December 2018.

Where Should the Replacement Fence Be Erected (s 14 (a) Dividing Fences Act)?

1. The Tribunal is satisfied that any fencing work be erected on the boundary between the two properties as identified in the survey report of Mr Ian Wicks Registered Surveyor dated 20 December 2017, being the survey attached to the application filed by Ms Grose.

What Fencing Work Should Be Carried Out, Including the Type of Fence (Section 14 (1) (b) of the Dividing Fences Act)?-Consideration

1. As discussed previously, there are two competing types of fence that each neighbour says should be erected. A key issue in dispute is the height of the fence at 'Section B' and 'Section D' of the boundary.
2. The Tribunal is satisfied that a lapped and capped timber fence is appropriate. This is the type of fence that was recommended in the Development Assessment Report of Inner West Council. It is also the type of fence that approved by Inner West Council in the Development Approval.
3. Ms Bolton's submission regarding the type of fence would, if adopted, result in the Tribunal ordering a type of fence different to the type of fence approved in the Development Approval. There is no provision of the Dividing Fences Act which states that the Tribunal must adopt the type of fence approved in a Development Approval by a Local Council.
4. However, the Tribunal must give very significant weight to the type of fence approved in a Development Approval by a Local Council, and if it were to order a different type of fence there must be compelling reasons to do so. Clearly, it is not in the interests of the parties or of public policy if there is inconsistency between Development Approvals issued by a Local Council regarding fencing work; and decisions of the Tribunal regarding the same fencing work; unless there are clear and compelling reasons.
5. It is also not the role of the Tribunal in a Dividing Fences dispute to provide a forum for the parties to re-agitate disagreements regarding renovations of residential premises that have been previously considered by Local Councils under the Environmental Planning & Assessment Act 1979 (NSW), other than in the limited context of the Dividing Fences Act.
6. In the circumstances of this matter, Inner West Council considered the objections of Ms Bolton; the Development Application was referred to a Referral Panel; a detailed Development Assessment Report was prepared (comprising of 35 pages) and Ms Bolton made further objections to the Local Council regarding the Development Application of Ms Grose, before it was approved on 16 April 2016.
7. The Development Assessment Report discusses in detail the appropriate fence to be constructed, including the issues of privacy; overshadowing and ventilation, which are the same issues raised by Ms Bolton before the Tribunal. The Development Assessment Report gives a detailed explanation as to why a timber pailing fence is appropriate rather than the original type of fence proposed by Ms Grose in the Development Application.
8. Ms Bolton has not provide any clear evidence as to the reasons why a timber paling fence would be inappropriate, or why a brick pier and slat fence along part of the boundary with an additional component of fibre cement sheeting along another part of the boundary is a more appropriate outcome than a lapped and capped timber fence.
9. Ms Bolton submits that Ms Grose is "estopped" from building a different fence to the type of fence that formed part of the original Development Application. The submission is fundamentally misguided. Ms Grose submitted a Development Application to the Local Council that included construction of a particular type of fence on the boundary between the neighbouring properties at particular heights. The Local Council, after conducting its own inquiries and considering submissions of persons opposed to the Development Application, made its own determination as to what was an appropriate development, including the fence, under the provisions of the Environmental Planning and Assessment Act 1999 (NSW). It was always within the statutory discretion of the Local Council to approve a different type of fence, and at different heights, than originally proposed.
10. The fence originally proposed by Ms Grose is not an unequivocal representation or conduct which created an assumption in Ms Bolton and which Ms Bolton relied upon (and Ms Grose knew or intended that there be reliance) causing detriment to Ms Bolton in circumstances where it would be unjust to allow Ms Grose to depart from the unequivocal representation or conduct, which are the elements of estoppel: Arfaras v Vosnakis [2016] NSWCA 65 at [67]-[113]. Rather, it is an application to the Local Council to approve certain types of work under the Development Application (including in the circumstances of this matter, construction of a fence between adjoining properties) under the provisions of the Environmental Planning & Assessment Act 1979 (NSW) to which Ms Bolton had an opportunity to object, and the Local Council had discretionary statutory powers to determine what type of work was appropriate by way of issuing a Development Approval.
11. In regard to the height of the fence, Ms Bolton argues there is a discrepancy between the Development Assessment Report in respect of 'Section B' and 'Section D' of the boundary and the Development Approval.
12. Relevantly, in the 'Section D' area the Development Assessment Report stated: "…the fence is recommended at 2.2 m above the existing retaining wall to maintain a reasonable protection of privacy to both parties. And is to be conditioned to be 2.4m height adjacent to the elevated 'drying' deck providing and effective height of 1.8 m-the height of an exempt fence".
13. In the Development Approval states: "(a) The fence is to be constructed as a lapped and capped timber dividing fence with a maximum height of 2.2m above the existing retaining wall with the exception of the following: i. adjacent to No 12…North facing elevated 'drying' deck the fence can be 2.4m above the existing retaining wall…"
14. When the Development Assessment Report is read in its full context, it is clear that there is no discrepancy between this part of the Development Assessment Report and the Development Approval.
15. Page 9 of the Development Assessment Report shows that the 'drying deck' of Ms Bolton's property is a raised area. At page 9 of the Development Assessment Report, there are photographs of the area showing the 'drying deck' from the perspective of each property, including the brick retaining wall and the previous colourbond fence that was in place in this section of the boundary.
16. In respect of the height of the fence at this area, and the objections Ms Bolton had raised regarding overshadowing, the Development Assessment Report states (at pages 9-10): Solar Access Although the applicant was not required to provide shadow diagrams for the fence, the proposal will cast shadows along the boundary between the two sites. The shadows are considered minimal, and the impacts on the drying deck area and dwelling of No 12…are considered reasonable by the proposed dividing fence. In particular, shadow cast to the 'drying deck' area will effectively be shadow cast by an exempt 1.8 m high dividing fence. ...to protect the privacy of both parties from the external 'drying deck' of 12…the fence height is recommended to be increased to 2.4 m providing an effective height of 1.8 m measured from the F.F.L at this elevated deck. At 1.8 m, the effective height of an exempt fence, the fence will cast an allowable exempt and minimal overshadowing impact to the drying deck off the kitchen and dining area…"
17. At page 10 of the Development Assessment Report, there is also consideration of privacy and overlooking issues, which was clearly taken into account regarding the height of the fence. The Development Assessment Report also points out that although consultation between neighbours is encouraged, it is not mandatory.
18. Because the 'drying deck' area of Ms Bolton's property is at a higher level in comparison to Ms Grose's property, the height of the fence at the 'drying deck' area ('Section D') should also be raised and doing so would give the fence an "effective height" of 1.8 m from the finished floor level of Ms Bolton' s drying deck area. Although this is at a height greater than the previous colourbond fence, Inner West Council regarding that height as appropriate, having considered the objections of Ms Bolton regarding issues including overshadowing, ventilation, and privacy.
19. In respect of the height of the fence at the 'Section B' area of the boundary of which Ms Bolton asserts is unnecessarily high in the Development Approval, page 8 of the Development Assessment Report states: "The proposal entails a front fence of brick and vertical steel railings with a height of 1860 mm at its highest point…The side dividing fence is however required to be at the same height as the front fence at the south western corner when returning south east for 1.5m adjacent to the building line of No 12…to ensure it is no higher forward of the building line ensuring the potential impacts on the amenity of the adjoining property & streetscape are minimised. A condition is recommended accordingly. The application is to provide privacy to the subject site which is 600 mm lower than ground level to No 12…and 1.2m lower than the F.F.L of No 12…As the subject site is lower, implications of the built form at No 12…exacerbate overlooking from the applicant's perspective and via versa in respect to the French doors off the dining room being assessed under Building Certificate BC/2016/10. With this in mind, the fence is recommended at 2.2m above the existing retaining wall to maintain a reasonable protection of privacy for both parties. And is conditioned to be 2.4m high adjacent to the elevated 'drying deck' providing an effective height of 1.8m-the height of an exempt fence. The fence whilst higher than the usual 1.8 m will not have any adverse impacts on the neighbouring properties and as such meets the objectives of the control".
20. When the Development Approval is read together with the Development Assessment Report, there is no relevant inconsistency. Further, the Local Council has clearly considered the application of the SEPP and the appropriate height of the fence at pages 8-11 of the Development Assessment Report.
21. Ms Bolton's submissions refer to Inner West Council having misapplied or misunderstood the SEPP and provisions of the Environmental Planning and Assessment Act 1999 (NSW) regarding exempt fences
22. Regarding the submission by Ms Bolton that the relevant SEPP stipulates that an "exempt fence" can be no more than 1.8 m, the determination of Inner West Council in respect of the Development Consent clearly refers to what is the height of an "exempt fence" and that it has considered the "effective height" of the fence, taking into account the differing heights of each respective property adjacent to the boundary.
23. Importantly, page 11 of the Development Assessment Report states: "Height of the fence It is acknowledged that the fence is higher than that allowed under State Environmental Planning Policy (SEPP) Exempt and Complying Development, however it is recommended to generally have a height of 2.2.m which will have an effective height, as viewed from (No) 12…of 1.8m. The fence adjacent to the drying area at (No) 12…is also recommended to have an effective height of 1.8 m measured from the F.F.L of the 'drying' deck at No 12…to afford a reasonable amount of privacy to both parties. The fence, as recommended is considered reasonable and acceptable in the context of the site conditions. Material against No 12…Boundary Brick Wall As the build form to No 12 is on/near the boundary, this is not the burden of No 10…wishing to erect a dividing fence on or near the boundary to secure their property. As the fence is not being located flush against the building at No 12, ventilation, albeit reduced, will be obtainable. The fence is recommended to be a low maintenance timber pailing fence that should allow reasonable amount of ventilation and is considered low maintenance. Maintenance As mentioned above, the concerns raised regarding the proposed fence are acknowledged. It is recommended the fence be a low maintenance timber pailing dividing fence."
24. It is clear from the Development Assessment Report that Inner West Council considered that the height of the approved fence would exceed the SEPP, but having taken into account the different respective heights of the properties and issues including privacy, overshadowing and maintenance that it was appropriate the height of the fence be a maximum of 2.2m from the top of the retaining wall on the boundary between the two properties (including the 'Section B' part of the boundary), with the exception of the area adjacent to the 'drying' deck ('Section D').
25. Ms Bolton also submits that there is an inconsistency between what was discussed at the Council Referral Panel meeting dated 3 February 2016 and the Development Approval. However, the Referral Panel meeting is only one part of the Development Approval process, and the most detailed consideration regarding the issues raised by Ms Bolton in the context of the application to Inner West Council by Ms Grose is contained in the Development Assessment Report and the Development Approval. In any event, the minutes state: "…the height of the fence is to be conditioned to have an effective height of no more than 2.2m measured from any part of the existing retaining wall".
26. Regarding the height of the fence, having considered all of the issues raised by Ms Bolton in this application, the Tribunal is satisfied that the maximum height of the fence should be at the heights set out in the Development Approval by Inner West Council. Inner West Council, as part of the process of issuing the Development Consent, provided detailed reasons explaining why it had approved the height of the fence (including the 'Section B' and 'Section D' areas) and no satisfactory reasons have been advanced by Ms Bolton as to why the Tribunal should not adopt the same approach.

The Manner In Which Contribution for Fencing Work Should be Apportioned or the Amount Each Owner is Liable to Pay (s 14 (1) (c) of the Dividing Fences Act).

1. The Tribunal is satisfied that Ms Grose should contribute the entire cost of the fencing work.

Which Portion of the Dividing Fence is to be Constructed by Either Owner? (s 14 (1) (d) of the Dividing Fences Act

1. The Tribunal is satisfied that the fencing work should be performed by under the direction and control of Mr Slaven in his capacity as a licenced owner/builder under the Home Building Act 1989 (NSW).

Time In Which the Work Is to Be Performed (s 14 (1) (e) of the Dividing Fences Act)

1. It is appropriate that the work be completed on or before 8 weeks from the date of this decision.

Amount of Compensation for Loss of Occupation of Land (s 14 (1) (f) of the Dividing Fences Act).

1. This provision is not applicable to this dispute.

In the Circumstances, No Dividing Fence is Required (s 14 (1) (g) of the Dividing Fences Act)

1. For reasons discussed previously, the Tribunal is satisfied that a dividing fence is required.

The Issue of Access

1. Section 20 of the Dividing Fences Act states: 20 Right to enter adjoining land An adjoining owner who carries out fencing work under this Act (including the owner's employees or agents) may, at any reasonable time, enter on the land adjoining the dividing fence for the purpose of carrying out the work.
2. In the circumstances of this matter, and considering the history of animosity between the parties, it is appropriate to make an order that Ms Grose give Ms Bolton 4 clear days written notice of the date that access is required so that the fencing work pursuant to the orders in these proceedings be performed. As s 20 of the Dividing Fences Act sets out, a neighbouring owner cannot unreasonably refuse access to frustrate the performance of fencing work in circumstances where there have been orders of the Tribunal.
3. In her Fencing Notice, Ms Bolton asserts that she should be provided licence details of the persons performing fencing work; details of insurance; and an indemnity regarding any damage caused to Ms Bolton's property in respect of the fencing work and access to perform such work before any fencing work is performed.
4. The Tribunal declines to include any such stipulations in its orders. Firstly, it is unclear that the Tribunal has a power to make such orders under the Dividing Fences Act, although the Tribunal notes that in Gillard v Russell [2018] NSWCATCD 69 Senior Member Boyce made extensive "facilitating orders" so that the stipulated fencing work could be performed without further dispute. Secondly, Mr Slaven has provided licence details that he is a licensed owner/builder under the Home Building Act 1989 (NSW). Thirdly, if there is any issues regarding damage to property, Ms Bolton may have rights that can be exercised in a Court, and an indemnity is unnecessary.
5. Finally, in respect of the issue of whether the Tribunal has jurisdiction in a Dividing Fences dispute to simply make access orders (as was allegedly raised by the presiding Member in the first proceedings in the Tribunal before the parties), that does not arise as an issue. This is not a dispute only regarding access. This is a dispute where Ms Bolton does not agree with the proposed type of dividing fence and height of the proposed fence. The issue of access is dealt with under s 20 of the Dividing Fences Act, and arises as an ancillary order to facilitate the performance of fencing work determined by the Tribunal as appropriate under s 14 of the Dividing Fences Act.

Orders Regarding Fencing Work

1. The Tribunal makes the following orders: 1. Ms Rebecca Grose is to perform fencing work on the boundary between her property and the property of Ms Rika Bolton in Annandale NSW on or before 8 weeks from the date of this decision. The work is to be performed as stipulated in these orders. 2. The fencing work is to be performed on the common boundary of the properties of Ms Grose and Ms Bolton as identified in the survey certificate of Mr Ian Wicks, Registered Surveyor dated 20 December 2017. 3. The fence is to be constructed as a lapped and capped timber dividing fence with a maximum height of 2.2m above the existing retaining wall between the properties, with the exception of the following: 1. Adjacent to the North facing elevated drying deck on Ms Bolton's property, a maximum height of 2.4m above the existing retaining wall. 2. From the North West corner back towards the building line of Ms Bolton's property (1.5 m from the front boundary) the fence is to be a maximum height of 1860 mm matching the height of the proposed front fence contained in the Inner West Council Notice of Determination of Development Application No: D/2015/745. 3. The fence palings are to face Ms Bolton's property and the railings are to face Ms Grose's property. 1. The fencing work is to be performed by suitably licenced persons under the Home Building Act 1989 (NSW). 2. Ms Grose is to provide a minimum 4 days written notice to Ms Bolton of when the fencing work is to occur. Written notice is to be given by both email to Mr Bolton at the email address of JBL Solicitors; and by leaving a letter in the letterbox of the residence of Ms Bolton. 3. Ms Bolton is to provide reasonable access to her property so that the fencing work can be performed in compliance with these orders, with such access to be limited to the persons supervising and performing the fencing work and only to the extent necessary so that the fencing work can be performed in compliance with the orders of the Tribunal in these proceedings.

Costs

1. In light of the involvement of legal representatives, a costs application may arise. The provisions of s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) will apply to any such application. Any costs application is to be made as follows: 1. Party applying for costs to make a written application filed with the Tribunal and served on the other party by 14 days from the date of this decision. The written application is to include all submissions and documents in support of the application. The written application is also to state whether or not the party consents to the issue of costs being determined on the papers in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW) or seeks a further oral hearing. 2. The party opposing costs is to file with the Tribunal and serve on the other party all written submissions and documents relied upon in response to the costs application 14 days thereafter. 3. Any application to amend or vary the timetable regarding determination of the issue of costs is to be made to the Tribunal in writing and served on the other party by no later than the date of compliance with the relevant obligation under the timetable. 4. Subject to the submissions of the parties, the issue of costs may be determined on the papers and without further oral hearing in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).

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: 19 July 2019