Larney v Johannson

Background to the Dispute 40The parcels of land owned by Mr Larney and Mrs Johannson are both very steep, with the highest point being above a rock outcrop at the rear. Both parcels drop sharply in level to their street frontages. Part of the common boundary is unfenced and part is fenced. The rear part of the common boundary is now fenced with a black plastic-coated chain wire fence with black steel posts and top rails (the New Fence), which is part of a longer newly erected fence of the same type that forms the dividing fence with other parcels adjoining Mrs Johannson's land. Because of the land levels and topography, it is difficult to determine the height of the New Fence with any accuracy. The chain wire of the New Fence is a standard width of approximately 1.8 metres high affixed to posts about 2 metres in height. The posts vary in height above ground level because of the extremely steep land. 41A contractor retained by Mrs Johannson erected the New Fence during the period commencing on 11 November 2011 and ending on 10 December 2011. It is built mostly within Mrs Johannson's land, splaying onto Mr Larney's land to join up with the end of a paling fence next to a sandstone rock outcrop. The New Fence was erected without cost to Mr Larney. 42Prior to having the New Fence erected, Mrs Johannson gave three notices to Mr Larney that she required him "to contribute by paying half of the cost of construction of a dividing fence between the properties belonging to the parties". Each purported to be pursuant to "s 20 of the Fences Dividing Fences Act". One was dated 16 and 17 October 2011, one was dated 17t October 2011, and the third was dated 6t November 2011. 43Each notice states Mrs Johannson's name to be spelt "Johansson" and each is also signed by her using that spelling, which is consistent with the title of the proceedings before the Board. However, since all of the originating processes in the Supreme Court at first instance and on appeal spell the name as "Johannson" and the point was not raised by her counsel, it is appropriate to use that spelling. 44Each notice identified the two parcels of land in question. but they differed in terms of the kind of fence proposed. The notice of 16 and 17 October 2011 specified "wire fencing", the notice of 17 October 2011 specified "paling (or cyclone, if paling is not suitable for terrain or rocky soil type)" and the notice of 6 November 2011 specified "black PVC wire (as per attached quote)". 45A quotation attached to the notice of 6 November 2011, which contained a brief description of proposed fencing, covered fencing beyond the common boundary between the parcels owned by Mrs Johannson and Mr Larney. It appears that the New Fence was constructed in accordance with that quotation. 46On 7 November 2011, Mr Larney wrote to Mrs Johannson acknowledging receipt of the three notices. The letter stated: I oppose the construction of a fence as indicated on your drawing, between my backyard and the easement to drain water. The fence, as proposed by you, will have a negative impact on the ambience, enjoyment and value of my land. It will impede the access of water board officials to service their easement. 47Mr Larney wrote again on 9 November 2011 confirming his objection to the type of fencing to be built. He said in that letter that: the proposed fencing is neither in keeping with fencing in the area or on the boundaries of your property and mine. He also confirmed his objection to the location of the fencing, with particular reference to the possible damage to natural rock outcrops and grass trees. Mr Larney's letter of 9 November 2011 said that at the expiration of one month he would make an application to a local land board for the fence "to be rebuilt and any damages to natural features restored". 48On 10 December 2011, Mr Larney sent to the Department of Lands an application to the Board. The application was sent under cover of a letter dated 10 December 2011. The letter was accompanied by copies of the following: Mr Larney's letter of 9 November 2011 to Mrs Johannson; photographs of the site; Mrs Johannson's notice of 17 October 2011; Mrs Johannson's notice of 6 November 2011; Mr Larney's letter to Mrs Johannson of 7 November 2011; and Mr Larney's letter to Mrs Johannson of 9 November 2011. 49By his application, Mr Larney asserted that on 9 November 2011 he had served on Mrs Johannson a notice under s 11 of the Act requiring her to contribute to the carrying out of fencing work. In the covering letter, Mr Larney also referred to that letter as "a notice to fence". The only document served on 9 November 2011 was the letter of that date described above, which confirmed Mr Larney's objection to Mrs Johannson's proposed fencing work. As indicated above, the letter stated that Mr Larney would "make application to the Land Board for the fence to be rebuilt and any damages to natural features, restored". The purpose of a notice to carry out fencing work under s 11 is "to require the other adjoining owner to contribute ... to the carrying out of fencing work by serving a notice in writing to that effect" (emphasis added). Neither Mr Larney's letter of 9 November 2011, nor his letter of 7 November 2011 to which it referred, sought contribution from Mrs Johannson. Neither letter made any reference to the notion of contribution or, for that matter, to the Act or any other Act. Mr Larney's letter of 9 November 2011 was not a notice under s 11 of the Act. 50Mr Larney's application asserted that the alleged notice had proposed that fencing work be carried out on the common boundary and that the fencing work was as follows: (1) [t]hat the large boulder be deemed sufficient for a dividing fence; (2) [t]hat the fence comply with the restrictions as per DP262462 and Sydney Water Guid[e]lines; (iii) [t]hat the newly erected fence be removed. The references to "DP 262462" and to "Sydney Water Guid[e]lines" were a misconception and can be ignored for present purposes. The application proposed that the estimated cost of the fencing work, of $2,000, be borne in equal proportions. The application also asserted that one month had expired since the alleged notice had been given and that no agreement had been reached regarding the fencing work to be carried out. 51The covering letter of 10 December 2011 said that Mr Larney's application "to do fencing work" was motivated by the fact that on 11 November 2011 Mrs Johannson had commenced fencing work to which he objected. The letter then said: Mrs Johansson, my next door neighbour, has a history of vexatious behaviour. She is building a fence across my grass lawn. The newly constructed fence butts against a natural rock feature. The location of the fence on my lawn has a significant impact on the safety, enjoyment and the ambience of my backyard. We have enjoying the ambience of seeing the rock feature since 1981, when we bought the land. ... I object to this fence and hereby appeal to the board to consider the following: (1) [t]hat the large boulder on the property be deemed sufficient for a dividing fence ... . (2) [t]hat the rest of the fence comply with the restrictions stated on DP 262462, as well as the Sydney Water Easement Guidelines ... . (3) [t]hat the newly erected fence be removed at the cost of Mrs Johansson. [emphasis in original] There was no evidence that the letter of 10 December 2011 was served on Mrs Johannson. 52There is a clear conflict between the claim in the covering letter, that the New Fence be removed "at the cost of Mrs Johannson" and the claim in the body of the application that "the estimated cost of the fencing work [of ]$2,000.00 be borne in equal proportions". That conflict appears never to have been resolved. It highlights the difficulty in determining precisely what application Mr Larney was making to the Bboard.