APPLICATION OF RELEVANT LAW
17The issue is whether the 24 metres of existing timber fence should be replaced with timber or colourbond.
18A dividing fence is a fence separating the land of adjoining owners, whether on the common boundary of adjoining lands or on a line other than the common boundary. Fencing work includes the replacement, repair or maintenance of the whole or part of a dividing fence,
19Section 4 provides for the determination of what is a sufficient dividing fence:
4 Determination as to sufficient dividing fence
In any proceedings under this Act, the Local Court ...is to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of this Act, including the following:
(a) the existing dividing fence (if any),
(b) the purposes for which the adjoining lands are used or intended to be used,
(c) the privacy or other concerns of the adjoining land owners,
(d) the kind of dividing fence usual in the locality,
(e) any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated,
(f) any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated.
20In He v Hecker [2013] NSWSC 1219 an application was made for a colourbond fence to replace an existing brick fence and that parties pay respective costs of the fencing work. At paragraph 23 the Court said:
"The Dividing Fences Act s 4 provides that Local Court is to consider all the circumstances of the case when determining the standard for a sufficient dividing fence which includes the existing dividing fence if any, the purposes for which the adjoining lands are used. Privacy or other concerns of the adjoining landowners, the kind of dividing fence used in the locality, any policy or code relating to dividing fences adopted by the council of the local government area, any relevant environmental planning instrument. So the Act presumes that there is to be a dividing fence between the properties. "
21On the evidence before the Tribunal I find that the adjoining lands are used for residential purposes. There was no evidence other than bald assertion that colourbond had a longer life span than timber. There was no evidence other than bald assertion that the area was prone to termites. The evidence as to other fences used in the locality was equivocal with use of both colourbond and timber. I accept Ms Roper's claim that timber was more commonly used for side fences. The issue of privacy was not raised in relation to the respective fence options. No policy or Council codes were relied on.
22The applicant bears the onus of proving his case on the balance of probabilities with evidence put before the Tribunal. There was scant evidence, just assertions. The claims were not substantiated by any documentary evidence or an expert report. The procedural direction of General Member Simon specifically referred to the possibility of such a report being provided.
CONCLUSION
23It would not be proper to simply dismiss the application. Case law supports the contention that the Act requires a positive decision to be made.
24In Larney v Johannson [2012] NSWSC 1297 at [10] the Court said:
"Section 14 of the Act grants specific jurisdiction to the land board to make orders determining any of the matters referred to in that section where there is an application under the Act. Since it is clear that the question of sufficiency of a dividing fence could only arise in the context of an application of one kind or another, s 14 should be read as giving jurisdiction to make orders in respect of the specified matters where there is a question to be determined of the sufficiency of the dividing fence (one being in existence), and that a mere finding in the result that there is already a sufficient dividing fence does not preclude orders in accordance with s 14.
It is clear, I think, that s 14 justifies a decision to be made on which of two or more proposed fences should be ordered even if all such fences are, as it happens, sufficient. To adapt a phrase from Orwell's Animal Farm, "[though] all fences are sufficient but some fences might be more sufficient than others".
To my mind, s 14 must permit and perhaps obliges the land board, otherwise having jurisdiction, to choose between proposed fences, even if each of the proposals is sufficient and, indeed, even if one reasonably appropriate proposal is that no dividing fence were required. However, that does not determine the question 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, the land board has any jurisdiction to make any determinations, except of course the jurisdictional one in respect of sufficiency of the dividing fence.
Furthermore, the institution and maintenance of land boards and the requiring of Local Court magistrates to determine matters arising under the Act undoubtedly constitutes a significant public expense. Where opinions may reasonably differ on the appropriateness or aesthetics of a wide range of fencing solutions, each which might well be thought to be sufficient, to permit those matters to be litigated in the absence of a real argument about apportionment of cost might fairly be thought to place an inappropriate burden upon the public purse. So that, where there is already a sufficient dividing fence in existence, whether it had been there for a hundred years or a hundred hours, the State should play no part in settling disputes between quarrelling neighbours about essentially incommensurable matters of taste as to which there is little or no public interest in determining. Of course, where more fundamental planning issues arise, a consideration which is not material here and anyway in respect of which other legislative schemes apply."
25The timber fencing is to be preferred as the applicant has not been able to prove his case that it should be replaced with colourbond because it is more sufficient than timber.
G Bassett
General Member
Civil and Administrative Tribunal of New South Wales
2 April 2014
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
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Decision last updated: 20 June 2014