Hill v Vicars

Local Court Proceedings

1. The subject of the application to the Local Court by the plaintiffs was a fence at the rear of the adjoining properties, 13m long with a timber gate in it.
2. The application to the Local Court was made on 3 February 2021. It was made pursuant to s 45 of the Local Court Act and sought orders for fencing work to be carried out pursuant to s 14 of the Act. The application certified that the requisite procedures required by ss 11 and 12 of the Act had taken place.
3. When the matter came on for hearing in the Local Court there was a great deal of uncontested fact. Those matters which were not contested were recorded in the Local Court's reasons and include the following: 1. First, a matter which was not in dispute was that the original fence, which existed in February 2021, to which I will refer as "the old fence", was dilapidated and was not a sufficient dividing fence for the purposes of the Act; and 2. Secondly, a matter that was not in contest was that about three weeks or so before the hearing, the defendants had caused to be constructed a 2.1m paling fence, supported by metal poles, along the boundary line.
4. The issue then posed for the Local Court's decision was whether the fence which had been newly constructed in or about September 2021, to which I will refer as "the new fence", was a sufficient dividing fence for the purposes of the Act.
5. It is necessary to draw attention to the legal exercise upon which the Local Court was engaged. It was being asked to make an order under s 14 of the Act requiring that the defendants undertake fencing work, which was described in the Application in the following way, "The Court makes [an order] for the following dividing fence to be erected[:] 2.1m high x 13.0m long lapped and capped fence with timber gate located in the fence approximately halfway along the fence line. The fence is a replacement for the existing dilapidated wooden timber fence with timber gate located on the boundary line between [the applicants' property] and [the respondents' property]."
6. It is to be observed that no order was sought specifically with respect to a contribution as between the adjoining owners pursuant to s 7 of the Act.
7. In order for the Local Court to have the jurisdiction to make an order under s 14, it first needed to be satisfied that at the time of making the order there was no sufficient dividing fence, as that term is defined in s 4 of the Act.
8. It is clear that unless the Court determined that threshold question and concluded that there was no sufficient dividing fence, it did not have the jurisdiction to make orders under s 14. In these circumstances, in my view, that threshold fact can properly be described as a fact going to the jurisdiction of the Court to make the relevant orders: see Larney v Johansson [2013] NSWCA 409 at [54]; and Alwiah v Watts [2004] NSWSC 948.
9. It is apparent from the decision of the Local Court that it accepted the defendants' submission that the new fence was a sufficient dividing fence. The Local Court consequently held that it did not have jurisdiction to make the orders sought by the plaintiffs for fencing work to be carried out pursuant to s 14 of the Act. I note in this respect the term "fencing work" does not include the removal or demolition of an existing dividing fence, except to the extent that its removal may be necessitated by the replacement, repair or maintenance of the existing fence: see Larney at [69] per Emmett JA.
10. In their submissions that the Local Court should refuse to make the orders in the application, the defendants drew the Local Court's attention to and relied upon Subdiv 17 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, which I will refer to as "the 2008 SEPP", and in particular cl 2.34 as being the standard applicable to the plaintiffs' application. No other environmental planning instrument, policy or code was drawn to the Local Court's attention.

Relevant Legislative Provision

1. At this point I note that s 4 of the Act provides the following in relation to the meaning of "sufficient dividing fence": "In any proceedings under this Act, the Local Court... 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..."

Discernment

1. In drawing the Local Court's attention to the 2008 SEPP, neither party drew the Local Court's attention to the following undoubted circumstances: 1. the fact that Subdiv 17 of 2008 SEPP did not actually apply to the issue of a dividing fence between the properties of the parties; 2. the provisions of the Woollahra Local Environmental Plan 2014, to which I will refer as the "2014 LEP", which had the effect of prohibiting any development, including the construction of a dividing fence on the adjoining lots relevant to this application without first obtaining a development consent, to which at least cl 5.21 of the 2014 LEP applied; and 3. the fact that the new fence had not been the subject of any application for development sent to Woollahra Council or the grant of any consent by the Council.
2. The Local Court proceeded to determine the threshold fact relevant to its jurisdiction, namely whether there was a sufficient dividing fence, on a wholly inadequate basis, because it was misled by omission, namely the lack of referral to the 2014 LEP and mistakenly as to the applicability of the 2008 SEPP.
3. These are matters made specifically relevant by ss 4(e) and (f) of the Act and were required to be addressed by the Local Court when determining the existence of a sufficient dividing fence. It follows that by reason of the conduct of the parties, the Local Court was invited to undertake a flawed exercise in the determination of the relevant jurisdictional fact. Thus, an error of law has been established because the Local Court's consideration of that relevant fact wholly miscarried.

Relief

1. This Court, in the event that such error of law is established, does not have the power to make primary findings of fact, nor does it have the power to make findings of mixed fact and law: see Lesley-Swan v Owners of SP 32735 [2013] NSWSC 1635 at [71]; Pearson v Jamaica Blue Pty Ltd [2019] NSWSC 1737 at [25]. It is not a matter for this Court on an appeal pursuant to the Local Court Act to engage in the determination of facts which may be relevant to the merits of the proceedings below.
2. It follows that I am satisfied the plaintiffs' appeal must be upheld.
3. I note that the plaintiffs also sought to agitate relief pursuant to s 69 of the Supreme Court Act. It is unnecessary to determine that application because the same result would apply, and no greater relief can be obtained by an order under s 69 than is obtained on a successful appeal.

Orders

1. I make the following orders: 1. Appeal upheld. 2. The decision of the Local Court on 21 October 2021 is set aside. 3. The orders of the Local Court with respect to the payment of the defendant's costs by the plaintiffs is set aside. 4. Remit the matter to the Local Court to be dealt with in accordance with the law. 5. Order the defendants to pay the plaintiffs' costs of the proceedings in this Court. 6. Otherwise dismiss the claims in respect to which leave to file is granted today.

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: 22 June 2022