Huang v Finch

Solicitors: Pacific Trade Legal (Respondent) File Number(s): COM 21/50041 Publication restriction: Nil

REASONS FOR DECISION

1. This is a dispute between neighbouring land owners under the Dividing Fences Act 1994 (NSW) ('the DF Act').
2. Relevant authorities that deal with the jurisdiction of the Tribunal under the DF Act and the discretionary considerations relevant to the making of orders include JDW Services Pty Ltd as trustee for JDW Superannuation Fund v O'Dea [2022] NSWCATCD 29; Minifie v Maxwell [2020] NSWCATAP 30; Purcell v Chadwick [2018] NSWCATAP 250; Nicholls v Fortmann [2020] NSWCATAP 52; and Zheng v Lee [2021] NSWCATCD 94.
3. Unfortunately, as is often the case in dividing fence disputes, much of the evidence and submissions of the parties focussed upon disputes and discord between neighbours that had little, if any, relevance to the real issue in dispute under the DF Act that the Tribunal has jurisdiction to hear and determine.
4. The properties of the parties are located in a north-western suburb of Sydney, NSW. The properties include a large number of trees; vegetation; and bush rocks. The land is uneven.
5. The applicant is the owner of No 10. The respondent is the owner of No 12.
6. The existing fence is a wire mesh fence that is located near the rear boundary of No 10.
7. The applicant, her husband (Jing Fa Liew), and young son reside at No. 10. The respondent does not reside in No. 12. His son resides in No. 12. The respondent visits his son and stays in the property at No. 12 on a regular basis.
8. The evidence of the respondent referred to the history of No. 10 being previously owned by a company of which the applicant is a director, and then sold to the applicant in October 2021.
9. However, that history of ownership is irrelevant to the issues for determination under the DF Act.
10. In September 2020 the applicant obtained a boundary survey for the respective properties of the parties from Mr Brock of C & A Surveyors.
11. In October 2020, the respondent obtained a boundary survey from Stephen R Carr.
12. The applicant asserts that both surveys demonstrate that the current dividing fence between the properties encroaches upon the land of the applicant. The applicant has also obtained a further survey report of Mr Reid of C & A Surveyors with a survey date of 19 February 2022. That survey report will be discussed in more detail later in this decision.
13. According to the respondent, in October 2020 he had discussions with the applicant's husband regarding the installation of a new fence and an agreement reached, subject to the applicant issuing a Fencing Notice. However, no Fencing Notice was issued by the applicant at that time.
14. The respondent asserts that the applicant was performing unapproved development works to her property around that time and "action" was taken by the local Council.
15. In late 2020 the applicant lodged a Development Application with the local Council that included the area at the rear of her property.
16. In early 2021, the local Council issued a Development Consent. A copy of relevant plans as part of the Development Consent is attached to the affidavit of the applicant dated 3 December 2021. The plans show that the in area near the neighbouring properties of the applicant and the respondent the applicant intends to construct a 1 metre wide garden bed along the majority of the boundary.
17. According to the applicant, the common boundary between No 10 and No 12 runs along the western corner and southern corner of No 10. The land is higher on the southern corner and slopes down towards the western corner.
18. Importantly, there are about 6 trees located in close proximity to the boundary of the properties. According to the applicant, one of the trees "straddles" the boundary.
19. On 15 April 2021 the local Council issued a tree management permit to remove "three small trees" as set out in the application for a permit. The permit is valid for 5 years, and contains conditions including the re-planting of trees on the applicant's land.
20. On 14 October 2021 the local Council issued a further tree management permit to remove "tree 1 species-Casuarina tree". The permit if valid for 5 years, and contains conditions including the re-planting of 2 45 litre pot size trees. The applicant asserts that this tree is "on the boundary" between No 10 and No 12.
21. On 10 November 2021 the local Council issued a further tree management permit. 3 trees were referred to. The applicant was given permission to remove "tree 1" (which on the hand drawn plan attached to the document is at the rear of No 10) subject to conditions regarding re-planting a new tree on the applicant's land. The other two trees identified were to be pruned, nor removed. The permit is valid for 5 years.
22. In November 2021 the applicant constructed Colorbond fences on the boundary between No 10 and two other neighbours.

Fence Discussions in 2021 and Issue of Fencing Notice

1. The respondent states that in February and March 2021 there were discussions between the applicant's husband and himself regarding construction of a replacement fence between their respective properties, but no agreement was reached.
2. The applicant asserts that she served a Fencing Notice pursuant to s 11 of the DF Act on the respondent dated 20 April 2021. The respondent asserts it was posted on 27 April 2021.
3. The Fencing Notice relevantly: 1. Proposes the new fence be constructed on the common boundary and that "both surveyors agreed with the location of the common boundary". 2. States the existing wire fence be removed and replaced because it was an insufficient fence. 3. Identifies the replacement fence is to be a Colorbond fence (dual colour, with each neighbour able to choose the respective colour for their side). 4. States the length of the fence is to be 32.01 m, being the length of the common boundary; and the height of the fence is to be approximately 1.8 m to 2..2 m high depending on the slope of the ground. 5. Proposes that each party pay half the cost of construction of the fence, including each party paying an upfront "deposit" (sic) in equal proportions. 6. Proposes that each party pay half of the "additional costs" to construct the fence, relevantly involving removal of trees. 7. Proposes that trees be removed on the common boundary (subject to local Council tree management permit being obtained, if required) to remove (a) four small trees between your side gate and shared driveway to be removed"; and (b) the larger tree which grows on the common boundary to be removed as well". 8. Attaches a quotation from All Hills Fencing dated 20 April 2021 for construction of a 32 m x 1.8 m Colorbond fence and associated works in the sum of $6,891.
4. On 7 June 2021 the respondent wrote to the applicant stating as follows: 1. The existing fence needed to be replaced. 2. The replacement fence should be a 1.2 m high chain wire mesh fence (i.e. the same type of fence as the existing fence). A Colorbond fence would not be in keeping with the "bush location". 3. The document from All Hills Fencing was an "estimate" rather than a "quote". 4. Both parties would have to agree about the type of fence and placement of the fence. If that occurred, both parties would then obtain quotes. The respondent would need to meet the proposed fencing contractor and be "assured as to the quality of the work" before "approval" was given by the respondent. 5. The existing fence should be removed by the parties, not the fencing contractor. 6. The "fence along the position of my front yard is already demolished" so 32 meters of fencing does not need to be removed. 7. The "estimate" of All Hills Fencing refers to additional costs for core drilling and rock digging, but does not identify the costs. Confirmation of "exact costs" are required. 8. Mature trees should be maintained. 3 trees between "the driveway and my side fence" should be removed.
5. On 7 December 2021 the applicant filed the current proceedings in the Tribunal. According to the respondent, he received no correspondence or contact about the fencing issue between his letter of 7 June 2021 (which was sent by email) and the filing of the Tribunal application.

Application to the Tribunal

1. The application to the Tribunal sought the following orders: 1. Removal of existing wire fence, boundary tree and vegetation, and tree stump in order to enable the (sic) Colorbond fence to be erected. 2. A 32m x 1.8 m dual Colorbond scheme fence (slate grey on my property's side and colour of the respondent's choice on his side) on the boundary line between my property and the respondent's property.
2. The application identified the cost of the proposed fencing work to be $10,534 "with additional costs for core drilling". The applicant sought that each party contribute 50% of the cost of the work.
3. The application attached a large number of documents. Those documents were: 1. A written application by the applicant for leave to be legally represented in the proceedings. 2. Affidavit of the applicant dated 3 December 2021. The affidavit contained 116 pages of annexures. 3. Affidavit of Jing Fa Liew dated 3 December 2021. The affidavit contained 24 pages of annexures. 4. Affidavit of John Brock, registered surveyor, dated 5 November 2021.
4. On 21 December 2021 the applicant filed a further brief affidavit dated 16 December 2021, which stated that work had commenced for the installation of a Colorbond fence on a boundary of the applicant's property that did not involve the respondent.
5. On 22 December 2021 the Tribunal ordered that both parties be granted leave to be legally represented.
6. On 13 January 2022 the matter was listed for a Conciliation and Group List hearing at the Tribunal. Mr Misra of Counsel appeared for the applicant. The matter was adjourned with a notation that the applicant agreed to mark out the proposed position of the new fence by 20 January 2022 so the issue of the boundary line where the fence may be constructed was clarified prior to the next hearing.
7. On 1 March 2022 the matter was listed for a directions hearing at the Tribunal. Mr Misra of Counsel appeared for the applicant and Mr Dabbah, Solicitor, appeared for the respondent. The matter was set down for a special fixture hearing, with directions for the filing and serving of documentary evidence.
8. The matter was listed for hearing at the Tribunal on 30 May 2022. The hearing was conducted by Audio-Visual Link. The applicant appeared self-represented with her husband. Ms Edwards of Counsel appeared for the respondent, instructed by Mr Dabbah Solicitor.
9. At the hearing, the applicant and the respondent were cross examined. No other witness was required for cross examination. Neither party sought an adjournment of the hearing.
10. An issue raised by the respondent in the proceedings was that the application filed with the Tribunal was outside the limitation period in Regulation 23 of the Civil and Administrative Tribunal Rules 2014 (NSW) ('the NCAT Rules'). The Tribunal made clear that it would consider the evidence and submissions on all issues, and deal with the issue of whether the limitation period should be extended under s 41 of the Civil and Administrative Tribunal Act 2014 (NSW) ('the NCAT Act') in its final decision.

Documentary Evidence of the Parties

1. The following documentary evidence of the parties was admitted, subject to weight and relevance:

Applicant 1. Affidavits of Ms Qian Huang dated 3 December 2021 and 5 April 2022. 2. Affidavits of Mr Jing Fa Liew dated 3 December 2021 and 5 April 2022. 3. Affidavit of Mr Mark Reid dated 5 April 2022. 4. Affidavit of Mr John Brock dated 5 November 2021.

Respondent 1. Affidavit of Mr Finch dated 24 May 2022.

CONSIDERATION

1. The first issue for consideration is whether the limitation period should be extended to bring the proceedings.
2. The second issue, if the limitation period is extended, is what orders (if any) should be made under the DF Act. That involves consideration of: 1. Whether the Fencing Notice is a valid notice and has been validly served. 2. Whether the fence sought to be removed and replaced is a "sufficient dividing fence". 3. If not, what type of fence should be constructed (including the height and length of the fence). 4. Where should the replacement fence be located. 5. What work necessary to construct the replacement fence should be ordered. 6. What contribution should be ordered for the cost of the new fence.

Limitation Period

1. Under Section 13 (1) of the DF Act the Tribunal has jurisdiction to hear and determine any matters arising under the Act.
2. Under Section 12 (2) of the DF Act, if neighbouring owners do not agree to a new fence within 1 month of the date one of them has served a Fencing Notice under s 11 of the DF Act, either owner may apply to the Tribunal.
3. However, there is no limitation period in the DF Act for the taking of proceedings in the Tribunal.
4. In this matter, the respondent's evidence is that he received the Fencing Notice (which had been posted by the applicant) on 10 May 2021 and it had been posted on 27 April 2022. In circumstances where the respondent clearly received the Fencing Notice on 10 May 2021, it is unnecessary to explore the provisions of s 76 of the Interpretation Act 1987 (NSW) regarding when postal service is deemed to have occurred.
5. Further, as the Fencing Notice was served by post it was served in a manner compliant with s 21 of the DF Act.
6. Reg 23 of the NCAT Rules states as follows: 23 General applications (1) A general application must be - (a) in or to the effect of the approved form, and (b) duly completed, and (c) lodged at the Registry, and (d) accompanied by the applicable fee (if any) for the application. (2) A general application need not specify the Division of the Tribunal to which the function of determining the application is allocated by the Act. However, if the appropriate Division is not specified or an incorrect Division is specified, a registrar may complete or alter the application form accordingly. (3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made - (a) in the case where enabling legislation specifies the period within which the application is to be made - within the period specified, or (b) in any other case - within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application. (4) This rule does not apply to a referral to the Tribunal by the Ombudsman of a legal question for an advisory opinion under section 35C of the Ombudsman Act 1974.
7. The applicant was entitled to commence proceedings in the Tribunal no earlier than 1 month from 10 May 2021. By reason of the definitions of "month" and "calendar month" in s 21 of the Interpretation Act 1987 (NSW), that means proceedings could have been filed with the Tribunal from 10 June 2021.
8. By reason of Reg 23 (3) (b) of the NCAT Rules, the applicant had 28 days from 10 June 2021 to commence proceedings, unless leave to extend time is granted under s 41 of the NCAT Act. 28 days from 10 June 2021 is 8 July 2021. The applicant filed Tribunal proceedings on 7 December 2021.
9. Accordingly, the applicant commenced proceedings 5 months outside the applicable limitation period.

Should the Tribunal Extend Time Under s 41 of the NCAT Act?

1. The matters for consideration as to whether an extension of time is granted were enunciated in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] as follows: 1. The length of the delay. 2. The reasons for the delay. 3. Prospects of success of the party seeking the extension, being usually whether there is a fairly arguable case. 4. The extent of any prejudice to the other party. 5. If the explanation for the delay is less than satisfactory or the other party has a substantial case of prejudice it may be appropriate to consider in more detail the merits of the substantive application. In such circumstances it may be relevant whether the party seeking the extension has more substantial merit rather than merely being fairly arguable.
2. The explanation for the delay in filing the application with the Tribunal was that (a) the applicant did not understand there was a limitation period; (b) the applicant was focused upon other matters, including obtaining the Development Consent which involved landscaping works to the rear of the applicant's property (but did not include the construction of a new fence); (c) delays regarding the obtaining of evidence due to the impact of COVID-19 in 2021.
3. The respondent opposed the extension of time on the basis that the delay was significant and there was no adequate explanation for the delay.
4. The Tribunal is satisfied that time to file the application in the Tribunal should be extended. The explanation for the delay is not compelling, as the predominant reason appears to be failure to know the law. The other reasons proffered do not clearly explain why proceedings were not commenced within the limitation period.
5. However, the applicant clearly has an arguable case. Further, the merits of the application are strong in the sense that there is correspondence from the respondent prior to the commencement of the proceedings that clearly states the existing wire fence needs to be replaced, and what the dispute is really about is what type of fence replaces it and where it is positioned (as well as the cost of the work and the appropriate contributions of the parties).
6. No prejudice or unfairness has been demonstrated by reason of the extension of time. The parties have clearly been in dispute about matters that include the replacement fence for a considerable period of time. Both parties have obtained survey reports. Both parties have obtained completing quotes from licensed fencers. There is nothing to indicate the respondent has not been able to obtain evidence that would have been able to be obtained if the applicant had commenced the proceedings within the limitation period.
7. Additionally, dismissing the proceedings because they are out of time will most likely simply result in the applicant issuing a fresh Fencing Notice and commencing fresh proceedings in the Tribunal. The fencing dispute will not simply evaporate because the proceedings are dismissed. There is no appropriate basis for not extending the period to commence proceedings in the Tribunal and determining the fencing dispute on the evidence and submissions of both parties in these proceedings.

Is the Fencing Notice a Valid Notice?

1. Section 11 of the DF 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 the applicant dated 20 April 2021 contains sufficient information to comply with the provisions of s 11 of the DF. As discussed previously, it has been served in accordance with s 23 of the DF Act.

Is There Currently A Sufficient Dividing Fence?

1. The Tribunal has no jurisdiction under the DF Act unless it is satisfied there is currently no sufficient dividing fence.
2. Section 4 of the DF 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. The Tribunal is satisfied that there is currently no sufficient dividing fence between the property of the parties.
4. The photographs and oral evidence of both parties satisfy the Tribunal that the current wire link fence is overgrown with vegetation and leaning in areas. Further, that fence does not extend along the complete length between the two properties. The existing fence is, on the survey reports obtained by both parties, not position on the boundary between the two properties.
5. The fact that an existing fence is not positioned on the boundary is a relevant matter under s 4 of the DF, but is not of itself determinative as to whether there is currently an existing sufficient dividing fence (Purcell v Chadwick [2018] NSWCATAP 250 at [33]-[37]).
6. The respondent submits that the existing fence has been in its position for a number of years, and there have been no disputes about fencing matters until recent times and in conjunction with the applicant's Development Application that includes alterations to the rear of the applicant's property. Those matters do not ameliorate the clear evidence that the existing fence is not a sufficient dividing fence. Further, the respondent acknowledged the insufficiency of the existing fence in his letter of 7 June 2021.

What Fence Should Be Constructed to Replace the Existing Fence and Fence the Unfenced Area?

1. Section 14 of the DF Act states as follows: 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. The applicant submits that the new fence should be a Colorbond fence for the following reasons: 1. It will provide improved privacy and security. The applicant also points to the fact that the respondent has a dog, which the applicant asserts her young son is afraid of. The applicant is scared the dog will enter her property. 2. It is consistent with other fences in the area, including Colorbond fences the applicant has constructed on the boundary with other neighbours and is not inconsistent with the provisions of the applicable standards in the State Development Planning Policy (Exempt and Complying Development Codes) 2008. 3. A Colorbond fence is fire resistant.
3. The respondent submits the new fence should be a wire mesh fence of the same height (and at the same location) as the existing fence for the following reasons: 1. The encroachment of the existing fence is minor. 2. A Colorbond fence would provide less privacy to the respondent. 3. The large Casuarina tree which the applicant asserts is on the boundary between the two properties is "not on the boundary" and to remove it would cause a loss of privacy to the respondent. 4. Removing that tree would also affect a retaining wall on the respondent's property as the tree is "very close" to the retaining wall. 5. The respondent's dog has not gone into the applicant's yard and is well behaved. 6. If a Colorbond fence was erected it would spoil the view of the respondent, as the house of the respondent's land currently overlooks bush and trees rather than a "metal fence".
4. The applicant has obtained quotations for a Colorbond fence. The respondent has obtained quotations dated 27 January 2022 from KV Trading Pty Ltd for a 1.2 m high "Chainwire" fence ($2,464); and a 1.8 m high Colorbond fence ($4,620, exclusive of GST and additional costs if required, including extra core drilling holes).
5. In determining what type of replacement fence should be erected, there is rarely a clear-cut answer. Both parties have an arguable basis for the type of replacement fence each seeks. It is disappointing (but not unusual) that neighbours cannot agree on the type of a replacement fence or be prepared to compromise. Each dispute depends on its own particular facts and circumstances.
6. Many of the issues raised by the parties during the hearing and in their evidence involve matters that are not relevant to the issues for consideration of the Tribunal under s 14 of the DF Act.
7. Further, some of the issues raised by the parties, when assessed objectively, carry little weight. An issue raised by the applicant was that there are potential security issues because the respondent's son had looked into her back yard; and there were other incidents where the applicant had "reported to the police" instances of "car and property damage and trespass".
8. The Tribunal does not accept the evidence establishes that there is currently any substantial security risk by reason of the current condition of the fence and absence of fencing. The evidence also fails to establish that the dog which resides on the respondent's property is a risk to safety.
9. The Tribunal is also not persuaded by the respondent's evidence that a Colorbond fence would be unsightly or not in keeping with fences in the area. The respondent's evidence that there were no disputes involving neighbours prior to the applicant moving in has little or no relevance to the real issues in dispute under the DF Act. Further, the evidence does not satisfy the Tribunal that the construction of a Colorbond fence will cause any significant loss of privacy for the respondent, as compared to constructing a wire mesh fence of the same type that currently exists.
10. The respondent also refers to the fact that he did not have the opportunity to comment when the applicant and other neighbours agreed to the construction of a Colorbond fence along their respective boundaries (or fencing line). The respondent being involved in such decisions is not a requirement of the DF Act. What is relevant is that there are Colorbond fences on boundaries or fencing lines in close proximity to the proposed fence in this matter.
11. Having considered the evidence and arguments of both parties, the Tribunal is satisfied that a Colorbond fence is a more appropriate replacement fence than a wire mesh fence of lower height. The proposed fence is higher and has solid panels, which will give more privacy to both parties. The Tribunal does not accept that such a fence is unsightly, or out of character for the area. The construction of a 1.8m fence with solid panels is also more appropriate in circumstances where the applicant has a young child and a dog resides at the respondent's property (albeit a well behaved dog). Other issues raised by both parties are either irrelevant; neutral; or balance each other out.

Where Should The Fence Be Located and Does Construction Involve the Removal of Trees?

1. An important issue in this matter is whether any trees need to be removed to construct a fence on the common boundary between the two properties.
2. If the Tribunal orders the replacement fence be constructed on the existing fencing line, it will be ignoring an encroachment. However, if the Tribunal orders the replacement fence be constructed on the common boundary, there is a significant dispute as to whether trees need to be removed to construct the replacement fence.
3. As discussed previously, both parties obtained survey reports. The applicant obtained a survey of Mr Brock. The respondent obtained a survey or Mr Carr. During the course of proceedings, the applicant filed and served an affidavit from Mr Reid, registered surveyor (as with Mr Brock, Mr Reid is with C & A Surveyors) dated 5 April 2022.
4. Mr Reid states that he was instructed to prepare a survey of the boundaries of the applicant's property; and to "mark out the location of the trees located near the south-western boundary of the property".
5. Mr Reid's affidavit contains a survey dated 19 February 2022 with himself identified as the registered surveyor. The survey identifies the "survey date" as 19 February 2022 and the "drawn date" as 4 March 2022. Mr Brock's affidavit contains a survey date 4 August 2021 identifying himself as the registered surveyor. Mr Reid's survey contains different details to Mr Brock's survey because there is different references to the position of pegs and details about the position of trees.
6. The Tribunal infers that Mr Reid attended the applicant's property and performed a site inspection to prepare his survey report.
7. The affidavit of Mr Reid relevantly states a paragraph [10]: … During the site inspections, available plans of survey and extant evidence were re-surveyed and it was observed that: a. There was an existing wire fence standing into the Property by up to 2.15m ('the Mesh fence"). b. 0.05 metre encroachment (into the adjacent property, Lot 326 in DP 238119, being No 12 (address) of the Boundary Tree trunk previously surveyed by surveyor John Brock in his affidavit encroaches by such dimension at 1.7 m in height; and c. Additional Boundary Tree has a diameter of 0.265m. Its base where the tree leaves the ground sits 0.265 m. Its base where the tree leaves ground sits 0.195 m into the Property and 0.07 m into the adjacent property (No 12). d. Trees indicated by A, B, C, D and F have their base and main trunk next to, and are within 500 mm form the Rear Boundary. …
8. As discussed previously, there is a dispute between the parties as to what, if any, trees need to be removed to construct a fence on the boundary line.
9. The applicant's evidence on this issue is concisely set out in her affidavit of 3 December 2021 as follows: … There are six trees located on and next to the boundary of Huang property (sic). These are marked 'A', 'B', 'C', 'D', 'E' and 'F' on the map on page 71 of Exhibit QH-1. One of the trees, marked 'E' straddles the boundary of the Huang property and the Finch property ('the Boundary Tree'). I have obtained approvals form the Council to remove trees 'A' to 'F' pages 72 to 74 of Exhibit QH-1, tree 'E'L is the subject of the Council approval at page pages (sic) 75 to 78 of Exhibit QH-1, and tree 'F' is the subject of Council approval at page pages 79 to 82 of Exhibit QH-1. …
10. The respondent's evidence on this issue is concisely set out in his affidavit of 24 May 2022 as follows: … The document marked as 75 to the affidavit refers to the removal of Casuarina Tree (sic) which states is crossing into my yard. This tree according to the string line and boundary is not on the boundary and therefore, the applicant should not be seeking for me to pay or this tree removal. It is also very close to the retaining wall and disturbance of the soil would cause subsidence to the existing retaining wall. If this tree is on the boundary then the boundary line needs to be discussed further as this would be closer to the existing dividing fence. … Regarding paragraph 20 of the Liew affidavit, I am uncertain as to why this tree is to be removed as it is not on the boundary. The tree that crosses between the boundary is a Trident Maple, not a Casuarina. I have received a quote for removal of this tree and poisoning the stump at $1,500 and such removal by grinding will cause further and unnecessary damage to my property. There is no approval for the removal of the Trident Maple, this is incorrect in the Liew affidavit. … Regarding the affidavit of John Francis Brock, I am concerned with his ability to measure the tree without physically being on the Property (sic) as I believe he is referring to the wrong tree and I have never been notified on (sic) his presence on my property.
11. …
12. During cross examination and oral submissions, both parties disputed what, if any trees, needed to be removed to construct a fence on the boundary. There was also a dispute about a string line run from surveying pegs, and whether the Casuarina tree needed to be removed or whether the fence could be constructed in close proximity to it.

Can the Tribunal order that Trees Be Removed to Construct the Replacement Fence; And if So, Should Such an Order be Made?

1. "Fence" and "Fencing work" are defined in s 3 of the DF Act as follows: 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. There is no definition of "vegetation" in s 3 of the DF Act. However, "vegetation" is defined in other legislation that pertains to the clearing of vegetation.
3. Part 2.2. of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (NSW) defines "vegetation" as follows: vegetation means a tree or other vegetation, whether or not it is native vegetation.
4. Section 60B (1) of the Local Land Services Act 2013 (NSW) defines "native vegetation" as follows: 60B Meaning of "native vegetation" (1) For the purposes of this Part, native vegetation means any of the following types of plants native to New South Wales - (a) trees (including any sapling or shrub or any scrub), (b) understorey plants, (c) groundcover (being any type of herbaceous vegetation), (d) plants occurring in a wetland. (2) A plant is native to New South Wales if it was established in New South Wales before European settlement. The regulations may authorise conclusive presumptions to be made of the species of plants native to New South Wales by adopting any relevant classification in an official database of plants that is publicly accessible. (3) For the purposes of this Part, native vegetation extends to a plant that is dead or that is not native to New South Wales if - (a) the plant is situated on land that is shown on the native vegetation regulatory map as category 2-vulnerable regulated land, and (b) it would be native vegetation for the purposes of this Part if it were native to New South Wales. (4) For the purposes of this Part, native vegetation does not extend to marine vegetation (being mangroves, seagrasses or any other species of plant that at any time in its life cycle must inhabit water other than fresh water). A declaration under section 14.7 of the Biodiversity Conservation Act 2016 that specified vegetation is or is not marine vegetation also has effect for the purposes of this Part.
5. Section 88 of the Roads Act 1993 (NSW) involves the power of a road authority to trim or remove vegetation that affects a road. It states as follows: 88 Tree felling A roads authority may, despite any other Act or law to the contrary, remove or lop any tree or other vegetation that is on or overhanging a public road if, in its opinion, it is necessary to do so for the purpose of carrying out road work or removing a traffic hazard.
6. The Tribunal is satisfied that the "removal of vegetation" to construct or replace a fence in s 3 of the DF Act includes removal of trees. Such an interpretation operates to the full extent, but does not exceed, the power conferred under the DF Act (s 32 (1) of the Interpretation Act 1987 (NSW) and is consistent with the purpose or objects of the DF Act (s 33 of the Interpretation Act 1987 (NSW)) in respect of the power of the Tribunal to determine where and how a fence should be constructed or replaced (once it has determined that there is no existing sufficient dividing fence).
7. As discussed, other legislation also considers "trees" to fall within the definition of "vegetation".
8. However, s 3 of the DF Act must be read in conjunction with s 14 of the DF Act. The pertinent inquiry is what is the degree of work that is necessary to prepare land so that the replacement fence can be constructed. That is a matter of degree. It would not be an appropriate exercise of discretion to make orders regarding the removal of vegetation (including trees) that goes beyond what is necessary (emphasis added) to construct or replace a fence. The DF Act cannot be used as a vehicle or 'trojan horse' for orders to remove trees and vegetation that do not need to be removed other than to the extent necessary to construct or replace a fence consistent with the provisions of the DF Act.
9. Further, although the DF Act is not subservient to other legislation when it comes to the exercise of discretion regarding the position of the replacement fence and what work is necessary to prepare the land so that the replacement fence can be constructed. Section 4 of the DF Act includes legislative policies; codes; and environmental planning instruments as matters to be considered (if relevant) on the issue of whether there is currently a "sufficient dividing fence". Such matters are also relevant to the exercise of discretion regarding what is to be the replacement fence; how that fence is to be constructed; and where it is to be constructed. Further, the Tribunal does not have jurisdiction under the Trees (Disputes Between Neighbours) Act 2006 (NSW) which involves damage to neighbouring properties caused by trees.
10. It would not usually be appropriate, for example, for the Tribunal to make an order for the preparation of land necessary to construct the replacement fence that is inconsistent with other legislative requirements on land owners, such as the provisions of Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (NSW).
11. In this matter a difficulty is the completing evidence of the parties regarding tree removal. The applicant's evidence (from the applicant and her husband) are that either the applicant has obtained Tree Management Permits for from the local Council that involve all of the trees that are on the boundary or in close proximity to the boundary such as to need to be removed to prepare the land for the construction of a fence; or do not require a Tree Management Permit to be removed.
12. However, the Tree Management Permits contained in the applicant's evidence only appear to clearly refer (in the diagram of the applicant that is attached to the relevant Tree Management Application Form) the Casuarina tree as being on the boundary.
13. The report and survey of Mr Reid, whilst identifying trees that he asserts are on the boundary (or in very close proximity to it) do not make any reference to the Tree Management Permits issued by the local Council, or whether the trees he is referring to are the subject of the Tree Management Permits.
14. Further, although the applicant in her affidavit of 5 April 2022 refers to Mr Reid's survey and "affirms" that the trees identified are either trees that are the subject of the Tree Management Permits allowing removal; or (in respect of the "Trident Maple Tree') are a tree that does not require a Tree Management Permit, there is no clear expert evidence adduced by the applicant that (a) confirms the lay evidence of the applicant regarding the identity and position of the trees and that they are subject to any applicable Tree Management Permit; and (b) need to be removed so that the fence can be constructed on the boundary line.
15. The applicant's evidence contains a quotation of Hills District Stump Grinding dated 2 April 2022 that contains a quotation to "cut 4 small trees and take away"; "cut down Chinese maple and take away" and "cut down and take away Casuarina tree". However, that quotation does not state it is necessary to perform such work to construct a replacement fence; nor does the quotations of All Hills Fencing provided (the original quote and an updated quote) clearly set out that removal of trees and stump grinding is necessary to construct the replacement fence quoted for (although the quotation of All Hills Fencing dated 1 April 2022 includes clearing and removing "4 x small trees and 1 x citrus tree; and "1 stump griding of 1 x stump on fence line".
16. However, the evidence of the respondent also does not contain any expert evidence that addresses the issue of whether or not trees located on the boundary need to be removed so as to construct a replacement fence. The respondent's lay opinion on this issue is not supported by an expert evidence.
17. After consideration and weighing the evidence of the parties, the Tribunal is satisfied that the applicant has proved on the balance of probabilities that it is necessary to remove the Casuarina tree to construct the replacement fence as it is positioned on the common boundary and that this tree is the subject of the Tree Management Permit Re-Consideration of the local Council dated 14 October 2021 (Reference 499/2021/TR/A).
18. However, it is unnecessary to make findings about the other trees, or make a more detailed finding about the Casuarina tree. This is because the Tribunal, in the exercise of its discretion, is satisfied that it is appropriate to include as part of the orders in this matter that: 1. The replacement fence be constructed on the common boundary, as set out in the survey of Mr Mark Reid (C & A Surveyors) survey date 19 February 2022. 2. The area along the boundary only be cleared to the extent necessary to construct the replacement fence, including locating fence posts into the ground. 3. In respect of any trees located on the common boundary where the fence is to be constructed, such trees cannot be removed unless the applicant has obtained any applicable consent from local government authorities (including Tree Management Permits) and has complied with any conditions imposed by local government authorities.

Cost of the Replacement Fence and the Issue of Contribution

1. Section 7 of the DF Act states as follows: 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.
2. The respondent submits that many of the costs identified in the quotations provided by the applicant (which the respondent asserts are 'estimates' rather than quotes) are unknown and that there are significant costs that that the respondent should not be liable to pay.
3. The Tribunal can only determine the issue of contribution on the basis of the evidence before it. If there are unascertained costs or costs increase by the time the work is performed, it is appropriate the applicant bears those costs rather than the respondent, as the applicant could have obtained evidence to deal with those costs.
4. Further, it is not appropriate to make orders that each party pay a licensed fencer a share of the costs each. Such an order will only increase uncertainty and potential future disputation.
5. The Tribunal is satisfied that a Colorbond fence is to the standards of a sufficient dividing fence and the respondent should bear 50% of the cost of the construction of the fence, but exclusive of removal of vegetation.
6. The Tribunal is satisfied that the amount to be contributed by the respondent should be $3,903.50, being 50% of the amount set out in the quotation of All Hills Fencing dated 1 April 2022. The Tribunal does not accept the quotation of KV Trading Pty Ltd dated 27 January 2022 as that quote contains no allowance for removing the existing wire mesh fence.
7. If costs have increased since the relevant quotations have been obtained; and costs increase due to any core drilling/rock drilling; and further costs are incurred to remove vegetation to construct the fence, the Tribunal is satisfied that it is appropriate that the applicant bear such costs.
8. In respect of the manner of contribution, the Tribunal makes similar orders to those in Zheng v Lee [2021] NSWCATCD 94 to provide certainty to the parties.

ORDERS

1. The Tribunal makes the following orders: 1. The applicant is to cause the performance of fencing work between Lot 327 of Deposited Plan 238119 ('the applicant's property') and Lot 326 of the Deposited Plan 238119 ('the respondent's property') by 3 months from the date of this decision with such work and contribution for such work to be as follows: 1. Demolish and remove the existing wire mesh fence. 2. Construct a slate grey Colorbond fence 1.8m in height and a length of 32.01 m positioned on the boundary line between the applicant's property and the respondent's property as identified in the survey report of Mark Anthony Reid survey date 19 February 2022. 3. The area along the boundary is only to be cleared to the extent necessary to construct the replacement fence, including locating fence posts into the ground. 4. In respect of any trees located on the common boundary where the fence is to be constructed, such trees cannot be removed unless the applicant has obtained any applicable consent from local government authorities (including Tree Management Permits) and has complied with any conditions imposed by local government authorities. 5. The fencing work is to be performed by a suitably licensed fencing contractor selected by the applicant, and any other suitably licensed person selected by the applicant necessary to comply with any applicable consent conditions from local government authorities (including Tree Management Permits) for the removal of trees necessary to construct the replacement fence. 6. The applicant is to give the respondent three (3) clear business days' notice of the date the fencing work will occur. Notice by email is sufficient. 7. The respondent and any person occupying the respondent's property are to give reasonable access to the respondent's property to the licensed persons performing the fencing work so that the existing fence can be demolished and removed; and the replacement fence constructed in accordance with these orders. 8. The applicant is to pay for the fencing work with the respondent to provide a contribution to the cost of the fencing work by way of making a payment to the applicant as set out in these orders. 9. By 28 days from the date of the completion of the fencing work set out in these orders the respondent is to pay the applicant $3,903.50. 1. If either party seeks a costs order it is to notify the Tribunal and the other party in writing by 14 days from the date of this decision. If a costs application is made the Tribunal will issue further procedural directions setting out the manner in which the costs application is to be determined.

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

Amendments 12 September 2023 - Formatting amendments. 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: 12 September 2023