Inacio v Luckose

The Decision under Appeal

In her decision the Member referred to the evidence filed by the parties and made findings in six numbered paragraphs. On the basis of those findings the Member concluded that it was appropriate to make orders for the retaining wall and fence to be replaced and for the parties to be jointly liable for the cost.
The Member's findings were as follows: 1. I am satisfied on the evidence and indeed as agreed by the parties, that the applicants and respondent live in adjoining properties and that between these adjoining properties there exists a wooden retaining wall on which sits, in part, a steel post fence. 2. I am satisfied that the applicants served a Notice on the respondent to meet the requirements of the Dividing Fences Act 1991 (the Act) on or about 2/5/19. 3. The best evidence before the Tribunal as to the positioning, role and current state of the said retaining wall and the steel fence that rests on the west of that retaining wall, is the document signed by Sean McCluskey from Front End Structural Engineering dated 11 October 2019 (the engineer's report). 4. On the basis of this engineer's report I am satisfied that there is a risk of the retaining wall collapsing if it is not repaired and the steel fence must of necessity be repaired as part of this process. 5. While the engineer's report puts the matter of the applicant's water tank no higher than that there is "likely damage to the existing rainwater tank" it also states that the retaining wall is 16mm from the water tank and that the Quote refers to the need to remove that tank for access purposes. 6. I am not satisfied that the respondent has established her defence. In particular that she does not have joint responsibility under the Act and that there is no need for the existing structures to be removed and replaced. Nor has the respondent provided any evidence to show that the applicants are seeking to replace the current structures with more expensive material. While the respondent was quite adamant in support of the matters she raised she failed to support them with substantiating evidence.
The engineer's report of Mr McCluskey referred to in paragraph 3 of the Member's findings consisted of a letter dated 11 October 2019 which described the retaining wall as a treated pine sleeper retaining wall varying in height up to 860mm. Mr McCluskey also identified from Wollongong City Council aerial mapping that the retaining wall had been constructed between 1993 and 2006.
Mr McCluskey stated: "The steel boundary fence is immediately to the west of the retaining wall, on the upper side of the retaining wall. The posts are supported by concrete piers which are shown at the top of ground level, immediately adjacent to the timber retaining wall."
Mr McCluskey recorded that the retaining wall was leaning towards the east, that is towards No 9 and that there was a risk of the retaining wall collapsing if not repaired or replaced. Mr McCluskey further stated (emphasis in original): "The steel fence is supported by concrete pier footings at the posts. These piers have been poured against the back of the retaining wall. If the retaining wall were to fail lateral support of the fence posts would no longer be provided and failure of the fence would occur. The retaining wall forms a required lateral support of the steel fence at ground level of [No 11]."

The Proper Construction of the Definition of "fence" and "dividing fence" in s 3 of the Act

To understand the intention of the Act and in particular the terms of paragraph (c) of the definition of "fence" and the qualification to the exclusion of retaining walls "except as provided by paragraph (c)" it is appropriate to have regard to the history of the Act and its predecessor, the Dividing Fences Act 1951 (NSW) (the 1951 Act).
The definition of "fence", in s 5 of the 1951 Act, was as follows: a structure of posts and boards, palings, rails, galvanised iron, metal, or wire, enclosing or bounding land, or a wall, ditch, or embankment enclosing or bounding land, and includes any foundation, foundation wall, or support reasonably necessary for the support and maintenance of the fence, but does not include a wall which is part of a house or other building [emphasis added].
The definition of "dividing fence" in the 1951 Act was almost identical to the definition of that term in the Act.
In Carter v Murray [1981] 2 NSWLR 77 McLelland J considered the position of two adjoining properties, one of which was substantially higher than the other. There was between them "a retaining wall made of dry-laid sandstone blocks" which his Honour described (at 78) as follows: "The wall is between two and three metres high and the top is roughly level with the surface of No 30 in its immediate vicinity, the back-fill on No 30 comprising a mixture of natural material, fill soil and rubble. The base of the wall is approximately level with the ground level of No 34 in its immediate vicinity, although for a distance of about five or six feet at the north-western end the wall stands on sandstone bedrock which has been cut vertically so as to stand above the ground level of No 34 to a height about one foot, tapering to nothing."
In dealing with a submission, made in opposition to the making of an order requiring contribution to the repair of that wall, that it was not a "fence" within the Act, McLelland J held, at 79: "In my opinion, the word 'separating' in the definition of 'dividing fence' has a functional connotation, which renders it necessary to examine the physical characteristics and function of the fence in question in relation to the physical characteristics of the rest of the land on either side thereof in order to determine whether the statutory criterion is satisfied. The concluding words of the definition of 'dividing fence' which contemplate a dividing fence otherwise than on the common boundary seem to me to support such a connotation in the present case. The retaining wall provides structural support for other material on and below the surface of No 30 and thus assists to maintain the surface of No 30 at its present level, but it seems to me that it does not 'separate' the two parcels of land in what I consider to be the relevant sense of impeding egress or ingress to or from either property. The retaining wall should, in my opinion, be treated as an integral part of the sub-surface of No 30. The thing that in the relevant sense separates No 30 and No 34 is the vertical drop of two or three metres between their respective levels at or near the common boundary, rather than the retaining wall, notwithstanding that the latter happens to be where the vertical drop occurs."
In Kontikis v Schreiner (1989) 16 NSWLR 706, at 709-710, Mahoney JA, with whom Hope and Priestley JJA agreed, held, in respect of a submission that a "fence" for the purposes of the 1951 Act did not include a retaining wall: The true distinction, for the purposes of the Act, is between a structure or wall which is a fence within s 5 and one which is not. It is therefore necessary to examine the operation of the definition. The relevant portion of it relates to "a structure of … enclosing or bounding land or a wall … enclosing or bounding land …". It is to the significance of "a wall … bounding land" to which the argument has in substance been directed. On one view, the definition, and so the operation of the Act, extends to any wall bounding land. On this view, the fact that a wall bounds or happens to bound land is enough to bring it within the definition. The alternative view is that, to fall within the definition, the wall must not merely bound land in fact but it must be there functionally or essentially for that purpose. This view is, or is similar to, that taken by McLelland J in Carter v Murray … The facts there considered by McLelland J were different from those now before the Court. But his Honour was concerned with the scope of the definition of "fence" and its cognates. He did not, in my opinion, conclude that if a wall is a "retaining wall" it cannot be a "fence" within the Act. A wall may be a fence within the Act notwithstanding that it does in fact retain the soil of one property from falling onto the other. What is in issue in the determination of the meaning of "fence" is whether the structure or the wall is a structure or wall "enclosing or bounding land" in the sense referred to in the definition of "fence". I agree with the view of McLelland J that in the definition of "dividing fence" the verb there used, "separating", is to be seen as having "a functional connotation"; similarly, in my opinion, "enclosing or bounding" has a functional connotation. The mere fact that a particular structure or wall happens to be upon the boundary of land does not, in my opinion, mean that it is for the purposes of the Act a "fence". The term "fence" is, I think, limited to a structure or wall which, being on the boundary, is there for the purpose of "enclosing or bounding" the relevant land. It would, I think, be strange if an Act of the present kind had been intended to govern the cost of the erection and repair of what might be large and expensive structures such as retaining walls or structures of similar dimensions. …
His Honour referred to the fact that the 1951 Act mandated an equal sharing of cost without regard to the differential benefits received by adjoining landowners from a retaining wall and continued, at 711-712: Anomalies and incongruities are not unknown when legislation framed in general terms must be applied to different factual situations. But they are to be taken into account in determining, having regard to the purposes of the legislation, the ambit of the operation of its terms. I do not think that it was contemplated that the Act would apply to cases in which large consequences such as cost of retaining walls and the like are in question. On the alternative view, the definition, and so the Act, applies only where the wall not merely bounds the land in fact but is to have or was constructed to have that function. Therefore, if the function of the wall be to retain A's land rather than to bound it, that is, to mark out the limitations of it, the Act would not apply to it. That view would require determination in each case of what was the function of the wall erected or to be erected. That would, in most cases, pose little difficulty. The Court would, I think, look to the real reason why the particular wall was or was to be erected, that is, whether the particular wall or kind of wall was chosen to bound land or whether it was chosen because it was necessary or appropriate to perform another function, for example, of retaining A's land. Where the reason for choosing that wall or that kind of wall be not to bound but to support or retain the land, then the wall would not fall within the definition. The wall to be erected might in fact fulfil two purposes: it might retain the land and might mark out the boundary between it and other land. But, for the purposes of deciding whether the wall chosen was within the Act, the court would ask: Why was this wall or this kind of wall chosen rather than some other wall? If the reason be to retain rather than to bound the land, it would not be within the definition. It is not possible to exclude the possibility of a case in which the particular wall or kind of wall was, in a real sense, chosen both because such a wall was necessary properly to mark the boundary of the land and because it was necessary for another reason, such as supporting one of the adjacent lots. In that case, the particular wall or kind of wall would be chosen because functionally it was necessary both for bounding and for retaining. If such a case should arise, it would, I think, be open to the Court to hold that, as the particular fence was, or was to be, erected for the purpose of bounding the land, it was a wall bounding the land within the definition, notwithstanding that it was also erected for another purpose as well.
The enactment of the Act in 1991 followed the publication in 1988 of the NSW Law Reform Commission Report 59: Dividing Fences. In that report, at [4.8] the Commission referred to the issues and problems for adjoining owners arising in relation to retaining walls and concluded: The Commission does not believe that it is appropriate to address these problems by the imposition of liability for construction and repair of retaining walls under dividing fences legislation. Retaining walls serve quite different purposes from fences. They are usually substantial and expensive structures which repose within the subsurface of the land of one adjoining owner, and are therefore required to withstand considerable lateral stress. … Retaining walls are usually erected solely for the benefit of the owner who undertakes excavation work
The definition of "fence" in the Act as enacted in 1991 included the exclusion of retaining walls in the chaussette [1] but did not include the words "(except as provided by paragraph (c))".
The Act in those terms was considered by Malpass AsJ in Warringah Properties Pty Limited v Babij (Snr) [2006] NSWSC 702. The principal issue between the parties in that case was whether or not a sandstone structure which had stood on the boundary between two properties (until demolished by the Plaintiff) was a retaining wall or a dividing fence. His Honour noted, at [10] that: Section 3 of the Act contains definitions of "dividing fence" and "fence". The definition of "fence" excludes inter alia a "retaining wall". Section 3 does not define a "retaining wall". Some assistance as to the meaning to be given to those words may be found in what was said in and what was referred to in Kontikis v Schreiner.
His Honour noted a number of differences between the Act and the 1951 Act and stated, at [12] that "what was decided [in Kontikis v Schreiner] has been seen to be of relevance to the definition of 'fence' that was introduced into the Act".
His Honour continued: 14 The definition of "fence" can be seen to be one of great width. Save for the exclusions, it would appear to be contemplated to pick up inter alia any structure that has the characteristics of enclosing or bounding land. A "fence" satisfies the statutory requirements of a "dividing fence" if it separates the land of adjoining owners. The concept of separation has been said to have a functional connotation. … 16 There is little historical evidence pertaining to the structure (it had been in existence for a very long time). As a consequence, there is a lack of express evidence as to the purpose of its construction. However, what evidence there is compellingly demonstrates that it meets the statutory requirements of both a "fence" and of a "dividing fence". The structure was at least roughly situated on the common boundary. It extended along the whole boundary. Further, it can be observed that it was a structure that was higher than the fill. It had the characteristics of enclosing or bounding land. It also separated the two properties and performed the function of a dividing fence. … 19 The Plaintiff's case is dependent on evidence that there was fill behind the structure on the Plaintiff's property and that it was performing some retaining function in relation to that fill. In my view, even assuming that to be the case, it does not seem to me to be determinative in the circumstances of this case. 20 The question of what is a "retaining wall" has been little argued. No definition was presented by counsel. There are dictionary meanings. They are to the effect of it being a wall built to hold back or support material (including earth and water). 21 There may be overlapping of purposes. Apart from being erected to perform the purpose of a separating structure, a "fence" may also serve other functions (such as a function to provide support). In the determination of the question of whether a particular structure is a "fence" it can be expected that each case will turn on its own circumstances (with regard being had inter alia to matters of physical characteristics and function). Even if a fence has a support function, the Court is not precluded from finding that it was a "fence" (see Kontikis pp 711 - 712). I do not consider that it was intended by the legislature that a structure necessarily fell outside the Act merely because it provided some support or other function.
The Act in its original form was also considered by Hidden J in Brown v Doyle [2010] NSWSC 1269; 179 LGERA 449 [2] . In that case a mound of dirt on the boundary between the parties' properties had been flowing onto the plaintiff's land. A local land board, purporting to exercise powers under the Act, had ordered the construction of a "retaining edge consisting of two railway sleepers on their edge". His Honour held that the land board had no power to make the order for construction of the retaining edge. His Honour held, at [16]: 16 It is clear that in the present case the retaining edge, constituted by railway sleepers on their edge, was for the purpose only of containing the dirt from the mound. The separation of the adjoining properties was no part of its function, which the board appears to have seen to be met by the mound and the trees upon it. Accordingly, the retaining edge is best described as a "retaining wall", as that expression is used in the statutory definition of "fence" and is excluded from that definition. It is certainly not a fence. The board had no jurisdiction to make that order, and it must be set aside. Of course, it was open to the parties to agree to construct such a retaining edge but it was not open to the board to order it.
The words "(except as provided by paragraph (c))" were inserted into the Act by the Dividing Fences and Other Legislation Amendment Act 2008 (NSW) (the Amendment Act) which came into force on 1 February 2009.
In the Second Reading Speech in relation to the Bill for the Amendment Act, the Hon Penny Sharpe, on behalf of the Minister for Lands, stated: The intention of the scheme set out in the bill is that only fencing work necessary for the immediate support of a fence will be caught within the scope of the power to order a contribution for fencing work. This will mean in practice that a contribution will not be available for the work that is necessary for repairing a retaining wall when those funds are spent purely on the maintenance of the retaining wall for its principal purpose as a retaining wall and not as part of a dividing fence. An example of the sort of fencing work that will be the subject of a contribution is work on the fence footings on top of a retaining wall. No expenses for the construction of the retaining wall itself are intended to be claimable. The operation of section 26 of the Dividing Fences Act as amended by the bill means that the Dividing Fences Act does not affect the operation of laws that affect the rights of persons to support a retaining wall. This means that the duty to preserve support for neighbouring land created by section 177 of the Conveyancing Act 1919 is preserved. … Amendments found in the bill ensure that the proposed limited power for an order to be made affecting a retaining wall, tree or other vegetation is reflected in the permissible scope of work that may be included in a fencing notice. An adjoining owner may serve a fencing notice to request a contribution for certain proposed fencing work. The bill also limits the amount of the contribution that may be claimed. An adjoining owner will only be liable to pay a contribution in respect of the removal or trimming of vegetation or for works proposed regarding a retaining wall to the extent that those works are necessary for the provision of a sufficient dividing fence. In view of the proposed limitations on the permissible scope of the fencing orders that refer to a retaining wall, tree or vegetation, it is appropriate for the existing general rule to apply that adjoining owners should make such contributions in equal proportions. Payment in equal proportions is fair and reasonable in the circumstances where a contribution only need be made to the cost of works affecting a retaining wall, tree or vegetation, to the extent those works allow for a sufficient dividing fence. A dividing fence will usually benefit both parties equally. However, an adjoining owner, as a result of fencing work relating to a retaining wall, tree or vegetation performed under the Act, may gain a particular benefit. A particular benefit arises where, for example, one owner has the benefit of relevant excavations beneath a retaining wall or has the benefit of clearing. The bill will allow an adjoining owner to construct a retaining wall or to clear vegetation that provides that owner with a particular benefit but prevents him or her from claiming a contribution for that work from the adjoining owner if that work is not part of constructing a sufficient dividing fence. (NSW Hansard, Legislative Council, 21 October 2008, p10224).
The Act in its current form, that is as amended in 2008, was considered by Commissioner Fakes in the Land and Environment Court in Riggio v The Estate of the late Phyllis Annette Lockard [2011] NSWLEC 1292. Fakes C set out, at [28], the first of the paragraphs from the second reading speech which we have quoted above and stated: 33 Pursuant to s 34(2) of the Interpretation Act 1987, the Court is entitled to have regard to a limited range of extrinsic material that may assist in the determination of the meaning of a provision of an Act. In this matter I refer to the second reading speech on the introduction into parliament of the Dividing Fences and Other Legislation Amendment Bill 2008 quoted in [28] of this judgment. In the light of this explanation of the intent of the amendment, I consider that the power of the Court under the Dividing Fences Act is limited to only ordering compensation for fencing work necessary for the immediate support of a fence and not to the entirety of the retaining wall. In this case, the fence is supported by posts set onto and partially into the retaining wall, and onto the ground at the eastern end of the wall. Therefore, any orders made will be limited to shared costs for the adequate support of the fence. As the survey sketch plan shows that the majority of the wall is on the applicant's property, another survey will be required to accurately locate the boundary and therefore the appropriate location of the fence and any necessary supports which may/ may not involve the retaining wall as part of that support system.
The Act in its current form has also been the subject of consideration in decisions of the Consumer and Commercial Division of the Tribunal.
In McKay v Greentree [2014] NSWCATCD 69, the proprietor of the higher of two adjoining properties served a fencing notice requiring the replacement of a retaining wall constructed on the lower property with a retaining wall on the higher property. There was no fence along the boundary and it was accepted that the Tribunal had jurisdiction to order the construction of a fence. The respondent objected to orders being made in relation to the retaining wall. Senior Member Boyce referred to Warringah Properties v Babij, Kontikis v Schreiner and Riggio v The Estate of Lockard and stated: 36 When considering whether a retaining wall is part of fencing work, the Tribunal uses the 'principal purpose test' of the retaining wall. If a wall's principal purpose is to provide a foundation or support to a dividing fence, then the Tribunal has jurisdiction. It becomes more difficult to make a determination if the principal purpose of a retaining wall is to support or retain earth and the support of a fence is ancillary.
Senior Member Boyce concluded: 56 The Tribunal is satisfied that the demolition of the retaining wall … is not fencing work for the purpose of the Act because it is not sufficiently proximate to the common boundary to be part of fencing work required in the preparation of the land either side of the common boundary of the adjoining lands for the carrying out of the erection of a dividing fence.
In Fallon v Croese [2016] NSWCATCD 40, Member Ross held: 21 In this matter the quotation for the fence has risen since the commencement of this matter, from $2,450.00 to up to $6,600.00. The difference in the quotations is related to the necessity to retain land on the boundary. The original quote allowed for 1 sleeper under each panel, whereas the most recent quotations require 2 or 3 sleepers. The Tribunal is satisfied that the sleepers are not required as foundations or supports for the fence. They are required to retain the land because of the cutting and filling on each side of the boundary. The sleepers amount to retaining walls. The Tribunal has no jurisdiction to make orders in relation to them.
In Nham v Hayes [2018] NSWCATCD 17 Member Ash held that the evidence before the Tribunal did not enable him to draw the inference that the replacement of a retaining wall in association with the construction of a fence was "wholly within paragraph (c) of the definition of fence" and dismissed the application for an order requiring that work.
At [33]-[34] Member Ash accepted the submission of the respondents that: If the New Retaining Wall is a substantial and material part of the fencing work proposed by the applicants, and if its principal purpose is to support or retain earth to improve the amenity of the applicants' land, and if the applicants do not seek to sever the work from the order sought (and they did not), the Tribunal can make no order.
The Member continued: 37 However, the matter depends on definitions in an Act. Those definitions do not refer to the intention of either party. The Tribunal is of the view that a conclusion is properly reached by considering the text of the Act. … 39 The meaning and intention [of the definition of fence in relation to retaining walls] is clear: (1) Fencing work involves, relevantly, the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence. (2) Where there is an extant dividing fence and the proposed work is the design, construction, replacement, repair or maintenance of a foundation or support necessary for its support or maintenance, the work is fencing work. (a) This is so whether or not that foundation or support is also incidentally a retaining wall. That is, the work is inside the inclusion and therefore beyond the operation of the exclusion. (b) This proposition recognises that the person liable under the general law cannot seek contribution for the structure qua retaining wall but only for the structure qua foundation or support necessary for the extant dividing fence. (c) In practical terms, a person serving a fencing notice which includes work on a retaining wall should take care to ensure that no contribution is sought in respect of work on the wall which is not a foundation or support necessary for the support and maintenance of the extant dividing fence. (3) Where there is no extant dividing fence, there is nothing to replace, repair or maintain. If anything is being done, it is design or construction. In this situation: (a) Reading the definition of "fence" out of context and without regard to the purpose of the Act, it is possible to conclude that the design and construction of a retaining wall can never amount to "any foundation or support necessary for the support and maintenance of the fence", because the relevant fence has not yet been built. (b) Such a reading benefits the respondents in this matter but gives no practical effect to the amending words read in context. (c) An available interpretation which gives practical effect to the amending words read in context is that "fence … includes… (c) any foundation or support necessary for the support and maintenance of the [not-yet-built] fence". (d) This accords with the interpretation applicable in the case of extant dividing fences. (e) Again, in practical terms, a person serving a fencing notice which includes work constructing a retaining wall should take care to ensure that no contribution is sought in respect of work on the wall which is not a foundation or support necessary for the support and maintenance of the proposed dividing fence.
The Member cited the second and third paragraphs of the extract from the second reading speech for the Amending Act which we have set out above and noted: 41 The … Fencing Notice seeks contribution in respect of a retaining wall and a paling fence atop the wall. However, there is no evidence before the Tribunal as to which part if any of the retaining wall is a foundation or support necessary for the support and maintenance of the fence. 42 The relationship between dividing fences and retaining walls is complex. But the legislature has consistently shown an intention that contribution for dividing fences is generally the province of an inferior court or tribunal, and that liability for a retaining wall is a substantive legal issue affecting property which is the province of the Supreme Court. … 44 In 2008, Parliament made a minor adjustment to the Act. That adjustment did not give the Tribunal any jurisdiction with respect to the general law of retaining walls. Rather, it confirmed that if a person sought contribution for work and if that work included retaining wall work, the Tribunal's jurisdiction in respect of contribution both includes and is spent by, consideration of the retaining wall work which is associated with the dividing fence in the terms of paragraph (c) of the definition of fence. 45 The adjustment implicitly addresses a different but related problem, the practical difficulty of making an order under s 14 of the Act relating to the nature and extent of fencing work, in circumstances where there is also work to be done on a retaining wall. The adjustment does so because it puts the task of differentiation squarely with the person giving a fencing notice, ie the applicant. If the overall work and the overall cost includes work and cost for that work which is outside the Act, the person giving a fencing notice must isolate that part of the work and the cost in respect of which the Tribunal can make orders. The Fencing Notice in this matter, on its face, does not do this. 46 The Tribunal only adds that a person charged with liability for a retaining wall under the general law was before the amending Act and remains since the amending Act, free to discharge that liability before turning to the issue of contribution for fencing. 47 In circumstances where there is no dispute that the proposed work includes the construction of a retaining wall, it is necessary that the applicants bring evidence as to what part of the retaining wall work falls within paragraph (c) of the definition of fence and evidence of how that is to be addressed in terms of orders that can be made under section 14, both as to the work itself and as to contribution.
In Gillard v Russell [2018] NSWCATCD 69 the applicants' land at the common boundary had been levelled and was supported by a low retaining wall and a higher retaining wall built within the respondent's land. Senior Member Boyce held: 46 The Tribunal is satisfied on the evidence before it that the low retaining wall included in the application is a retaining wall for the purpose of a foundation or footing for the support of the proposed dividing fence and act as plinth beneath the dividing fence. It will support the earth on the applicants' side of the fence and prevent it escaping onto the respondent's land. It will also allow the base of the fence to be leveled and supported. 47 The retaining wall should be located so that the width of the sleepers forming the retaining wall elements is centered on the common boundary line as has been determined by the surveyor. 48 As the retaining wall is part of the fencing work the respondent will be required to contribute to one half of its cost.
A common thread running through the cases referred to above is that questions such as whether a structure is a dividing fence and whether a retaining wall is a foundation or support for a dividing fence must be determined having regard to the purpose for which the structure or wall has been constructed.
The fact that a retaining wall provides support for a dividing fence, in the sense that the fence will fall over if the wall is removed, is not sufficient to establish that the wall is a foundation or support for the fence. It must be a common feature of retaining walls that whatever is constructed above the wall is likely to collapse if the wall is removed. It would not be consistent with the intention of the Act that any retaining wall constructed on or near the boundary between adjacent properties will be a dividing fence or part of a dividing fence. It is necessary that the wall be constructed as a foundation or support for a dividing fence, that is, for the purpose of providing a foundation or support for the fence.
There is support for that construction of the definition of 'fence' in the parts of the second reading speech for the Amending Act which we have extracted above, to which we may have regard both to confirm the ordinary meaning of the words of the definition and to guide the construction of those words to the extent that they are ambiguous or obscure: Interpretation Act 1987 (NSW) s 34.
We do not need to consider for the purpose of these proceedings whether the Tribunal in Nham v Hayes was correct in concluding that part of the work involved in the construction of a retaining wall may be for the support and maintenance of a fence while other parts may not and that an applicant for an order under the Act who fails to provide evidence distinguishing the costs attributable to support and maintenance of the fence must fail in their application.
The facts in this case are: that the fence is built next to the retaining wall; that, if the wall is removed, the footings of the fence will be exposed; and that that loss of lateral support may result in the fence falling over. Those facts by themselves do not persuade us that the definition of "fence" in the Act is satisfied to the extent that the retaining wall forms part of the fence or that the retaining wall is a foundation or support necessary for support and maintenance of the fence. The bolded statement in Mr McCluskey's report set out in [28] above does not take the matter further. To the extent that the conclusion there stated may be interpreted as meaning any more than that the fence is likely to fall over if the retaining wall is removed, that conclusion is a matter of law for the Tribunal to determine, not for expert evidence.
As Ms Jaeger submitted on behalf of the appellant, the retaining wall and the fence were separate structures. The fence was constructed with its footings against the wall, but apart from the fact that the soil in which it is founded is held up by the retaining wall, the wall is not a foundation or support for the wall. The purpose of the wall is to support the appellant's land; the fact that the fence is constructed within the soil supported by the wall is not sufficient to bring the wall within the words of paragraph (c) of the definition of "fence".
Once it is determined that the retaining wall is not part of the fence there is no basis for any conclusion that the existing dividing fence is not a sufficient fence. The evidence discloses that the fence has been repaired (at the appellant's cost). There is no suggestion that the fence itself requires replacement. In fact the contractors who quoted for the work of replacing the retaining wall - including the contractor referred to in the orders - disclosed an intention to reinstate the same fence following the construction of a replacement retaining wall.
In the absence of a finding that there is not a sufficient dividing fence between the parties' properties, the Tribunal has no jurisdiction to make any order under the Act: "The content of the Act demonstrates that jurisdiction to make orders is dependent upon a finding that there is an insufficient dividing fence between the adjoining lands. Unless the finding is made, no orders can be made. Such a finding gives rise to the liability referred to in s6 and enables the making of orders pursuant to s14." Alwiah v Watts [2004] NSWSC 948, per Malpass M at [10].
Accordingly in our view the appeal should be allowed. The orders should be set aside and the respondents' original application should be dismissed.
We note that in so ordering we do not purport to make any determination in relation to the parties' obligations in respect of the repair and maintenance of the retaining wall. It is apparent from photographs of the wall taken at the northern end of the two properties that the respondents' land has been excavated to the base of the retaining wall to enable the respondents' house to be built on one level. Accordingly, regardless of whether the land on the appellant's property has been filled in any degree, it is likely that the provisions of s 177 of the Conveyancing Act 1919 (NSW) relating to support of neighbouring land will be relevant to the allocation of responsibility for maintenance of the retaining wall. It is also possible that the original development consent for the construction of the respondents' house will have made some provision relating to the excavation on the respondents' property and the respondents' obligations, as the owners of the property benefitting from the excavation, to maintain the support for the appellant's land.
Our conclusion that the retaining wall is not a dividing fence or part of a dividing fence means that the Tribunal has no jurisdiction to determine those issues.
Accordingly our orders are: 1. Appeal allowed. 2. The Orders made on 16 December 2019 in proceedings COM 19/37951 are set aside. 3. The application in proceedings COM 19/37951 is dismissed.

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (12)

Cited By (2)