Larney v Johannson

The Decisions of the Board and the Primary Judge 53There was some dispute about the location of the common boundary between the two parcels of land. The Board found that the New Fence was erected wholly within Mrs Johannson's land, apart from where it was physically difficult to do so. The Board also found that despite Mr Larney's allegations as to location of the common boundary, none of the survey evidence supported his contentions. The Board found that the surveyors were sufficiently close in their findings so as to determine that the fence is built entirely on Mrs Johannson's land, except for a "short part" on Mr Larney's land. The Board found that, having regard to "the very difficult topography of the land, other options for fencing would be limited". 54The Board referred to the decision of Malpass M in Alwiah v Watts [2004] NSWSC 948. In that case, the plaintiff proposed that the height of the existing common boundary fence be increased and that a retaining wall in front of the fence be replaced. The Local Court dismissed the plaintiff's application under the Act on the basis that the plaintiff had not established that the existing dividing fence was an insufficient dividing fence. On appeal to the Supreme Court, Malpass M held that the jurisdiction to make orders under the Act was dependent upon a finding that there was an insufficient dividing fence between adjoining lands. He considered that such a finding would give rise to the liability referred to in s 6, enabling the making of orders under s 14, and that unless such a finding was made no order could be made. Since the Local Court was not satisfied that there was an insufficient dividing fence, Malpass M held that there was no error in concluding that the Local Court had no jurisdiction. 55Applying Alwiah v Watts, the Board held that its jurisdiction to make orders was dependent upon a finding that there was an insufficient dividing fence between the adjoining parcels of Mr Larney and Mrs Johannson. The Board found that though there had been no fence between the adjoining parcels before Mrs Johannson erected the New Fence, in all of the circumstances the New Fence was a sufficient dividing fence. The Board therefore concluded that it was precluded from entertaining Mr Larney's application. 56The primary judge also referred to Alwiah v Watts. His Honour considered that s 14 permits, and possibly obliges, a local land board that otherwise has jurisdiction to choose between proposed fences, even if each of the proposals is sufficient or even if one reasonably appropriate proposal is that no dividing fence is required. However, his Honour said that that does not determine the question of whether, if there is already a sufficient dividing fence in existence and there is no claim for contribution in respect of construction of that fence, a local land board would have any jurisdiction to make a determination other than in respect of the sufficiency of the dividing fence. 57The primary judge referred to Mr Larney's argument that that part of the boundary constituted by the rock face did not need any fencing and that the fence constructed by Mrs Johannson should be removed, each party paying half of the cost. His Honour considered that the matter was properly before the Board and the question of the sufficiency of the dividing fence was also properly before the Board. His Honour concluded that, having decided that the New Fence was a sufficient dividing fence, the Board was correct in saying that it had no jurisdiction to consider Mr Larney's alternative proposal to remove it.

The Appeal 58In his Further Amended Notice of Appeal filed on 6 August 2013, Mr Larney asserted that the Board erred in holding that its jurisdiction was dependent on a finding that there was no sufficient dividing fence between the two adjoining parcels of land. He also asserted that the primary judge erred in holding that if there was a sufficient dividing fence between the adjoining lands, there was no jurisdiction under the Act for the Board to entertain an application for a determination that no dividing fence was required and that an existing fence be removed. 59In the course of the hearing of the appeal, senior counsel for Mr Larney indicated that Mr Larney's application of 10 December 2011 should be understood as an application for contribution to the cost of removing that part of the New Fence that has been erected across the rock face. Senior counsel was unable to point to any specific provision of the Act conferring a power on a local land board to make such an order. 60Mr Larney contended that the Act should be construed as authorising a Local Court or a local land board to order the removal of the New Fence. First, he argued that s 22 would be rendered nugatory if it were not so construed. As indicated above, s 22 authorises the grant of leave to serve a notice demanding contribution under the Act up to 12 months after the fencing work concerned has been carried out. However, s 22 would clearly still operate where an adjoining owner carries out fencing work and then seeks contribution to the cost of that fencing work. 61Mr Larney also complains that the consequence of the conclusion reached by the Board and the primary judge is that, where an adjoining owner gives notice of an application for a determination that no dividing fence is required and for an order that any dividing fence constructed in the meantime be removed, the other adjoining owner could deprive the Local Court or the local land board of jurisdiction by erecting a sufficient dividing fence before determination of the application. That contention, however, begs the question. Under s 14(g), the Act gives power to the Local Court and local land board to determine, in respect of an application under the Act, that no dividing fence is required. There is no provision in the Act for an application to be made for a determination that no dividing fence is required. There is no provision in the Act for an order that a dividing fence be removed. 62Section 13 confers jurisdiction on the Local Court or a local land board to hear and determine any matter arising under the Act. Section 14 provides that the Local Court or a local land board may, in respect of an application under the Act, make an order determining one or more of the matters set out in s 14(1). Removal of an existing fence is not one of those matters. 63Mr Larney also contended that a further consequence of the decisions of the Board and the primary judge is that an adjoining owner can, by erecting a sufficient dividing fence during the period of notice required by the Act, deprive the Local Court or local land board of jurisdiction to consider a foreshadowed application that no dividing fence is required, thereby encouraging self-help and exacerbating disputes between adjoining owners. Once again, however, the contention begs the question. Section 14 authorises a determination that no dividing fence is required, but only in the context of a notice requiring contribution to the cost of fencing work. 64The Act is not concerned with resolving disputes between adjoining owners as to whether one adjoining owner should be permitted to erect a dividing fence on the land of that adjoining owner contrary to the wishes of the other adjoining owner. There is nothing in the Act to prevent an adjoining owner from carrying out fencing work, within the meaning of the Act, on the land of that adjoining owner. There may be requirement under the Local Government Act 1993 for approval to be given by a local council for erection of a dividing fence. However, that has nothing to do with the Act. 65The notices given by Mrs Johannson could have formed the basis of an application by her for contribution to the dividing fence specified in those notices. They could also have formed the basis of an application by Mr Larney under s 12(2) for an order "determining the manner in which the fencing work (if any) is to be carried out". However, that is not the relief Mr Larney seeks. Rather, Mr Larney seeks an order removing a fence that has already been determined to be a sufficient dividing fence. If Mrs Johannson had not served any notice on Mr Larney, there would have been no basis for Mr Larney to make any application under the Act to the Local Court or to a local land board. 66To the extent that any part of the New Fence has been constructed on Mr Larney's land, Mr Larney may have a ground for complaint in trespass, but not under the Act. Further, he may well be entitled to remove that part of the New Fence erected on his land. However, there is nothing in the Act that confers on the Local Court or on a local land board jurisdiction to deal with such a complaint. 67It is clear from the long title of the Act, as well as the scheme of the Act generally, that the Act is concerned with providing for the apportionment of the cost of fencing work involved in the construction of a dividing fence. The liability to contribute to the cost of fencing work is imposed under Part 2. Part 3 then specifies procedures for resolving disputes as to boundary lines, the type of fencing work to be carried out and the cost of the fencing work. 68Specifically, s 11 provides for the giving of a notice by one adjoining owner to another. Section 12 then provides that if the adjoining owners do not agree as to the fencing work to be carried out, either adjoining owner may apply for an order determining the manner in which the fencing work, if any, is to be carried out. Clearly, the point of the qualification "if any" is to prevent the appearance of the Act begging the question that a dividing fence needs, in any given circumstance, to be constructed and contributed to by the other adjoining owner. It may be the case that there is already a sufficient dividing fence, whether natural or man-made, so that a new fence does not need to be constructed. It does not follow that, after a dividing fence has been constructed, an adjoining owner may apply under the Act to remove it and seek contribution for that removal. 69The Act is concerned only with contribution to the carrying out of fencing work. That term does not include the removal or demolition of an existing dividing fence, except to the extent that its removal may be involved in the replacement, repair or maintenance of an existing dividing fence. There is nothing in the Act that is capable of being construed as conferring on either the Local Court or a local land board jurisdiction to require an adjoining owner to remove or demolish a dividing fence except for that purpose. Even if an adjoining owner in Mr Larney's position, who has received a notice under s 11 requiring him to contribute to proposed fencing work, successfully obtains an order under s 12(2) that that proposed fencing work is not required,there is nothing in the Act that would prevent the other adjoining owner who has served the notice from simply building the fence. Of course, that owner may not be able to obtain a contribution to the cost of the fence that was in excess of what was required. However, the owner who had successfully obtained the order saying that the fence is not required would have no remedy under the Act for removal of the fence. 70Whether the decision in Alwiah v Watts is right or wrong, it does not have any application in the present circumstances. This is not a case where Mr Larney sought to add to the New Fence erected by Mrs Johannson. He simply sought an order that it be removed. In one place, he sought contribution to the cost of doing so. In another place, he sought an order that Mrs Johannson bear the entire cost of doing so. 71Mr Larney's application of 10 December 2011 was misconceived. Section 12(2) of the Act authorises either adjoining owner to apply to the Local Court or a local land board for an order determining the manner in which "the fencing work (if any) is to be carried out". Such an application is dependent upon adjoining owners not agreeing within one month after one of them has served a notice under s 11 "as to the fencing work to be carried out". Thus, whether it is the adjoining owner who gives the notice or the adjoining owner to whom the notice is given who makes an application, the only application authorised by s 12(2) is for a determination of the manner in which the fencing work specified in a notice seeking contribution under s 11 is to be carried out. Mr Larney has given no notice that could fairly be characterised as a notice under s 11. 72Section 11(1) provides that an adjoining landowner may require the other adjoining owner to contribute to the carrying out of fencing work by serving a notice in writing to that effect on the other owner. Under s 11(2) the notice must specify the following: (a) the boundary line on which the fencing work is proposed to be carried out; (b) the type of fencing work proposed to be carried out; and (c) the estimated cost of the fencing work. 73While the notices given by Mrs Johannson were said to be "pursuant to s 20 of the Fences Dividing Fences Act 1988", they might fairly be regarded as satisfying s 11. In particular, the notice of 6 November 2011 attaches a survey on which the boundary is highlighted, describes the type of fencing work as "black PVC wire" and attaches a quotation of $2,568 for the cost of the work. The notice would have been sufficient to trigger an application under s 12(2), either by Mr Larney or by Mrs Johannson, for an order determining the manner in which the fencing work described in that notice was to be carried out. 74However, Mr Larney's application of 10 December 2011 quite clearly was not an application for an order determining how the fencing work specified in the notice of 6 November 2011 should be carried out. His application, and the covering letter of 10 December 2011, in so far as they referred to any work, referred only to the removal of the New Fence. The jurisdiction of the local land board was not enlivened by the application dated 10 December 2011. 75Mr Larney's letter to Mrs Johannson of 9 November 2011 does not purport to specify a boundary line. It does not identify a type of fencing work proposed, other than to say that an application had been made to the land board "for the fence to be rebuilt and any damages to natural features restored". The letter purports only to be an objection to the location of the fencing. It clearly does not specify a boundary line on which any fencing is proposed. The letter contains no estimate of the cost of any fencing work. The letter does not refer to any fencing work within the meaning of the Act. In any event, a notice requiring only contribution to the removal of a fence would not satisfy the requirements of s 11. 76The jurisdiction of the Board was not properly invoked by Mr Larney. The Board was correct to dismiss his application. It follows that there was no error on the part of the primary judge in dismissing Mr Larney's appeal to the Supreme Court. Leave to appeal should be granted, but the appeal should be dismissed with costs.

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: 09 December 2013