Michael Lindsay and Patricia Lindsay v Scott Johnston and Jane Johnston

reasons for decision BACKGROUND 1.The applicants are the owners of rural land at Ballimore comprising lot 16 and lot 17(called in these Reasons for Decision "the applicants' land") on which they graze cattle. 2.The respondents are the owners of rural land at Ballimore comprising lot 11 (called in these Reasons for Decision "the respondents' land") on which they graze horses, sheep, goats and cattle on the applicants' evidence. 3.The applicants' lands and the respondents' lands are separated by a watercourse known as Goan Creek. 4.The applicants' lands have a boundary with Goan Creek of about a mile long. The respondents' lands have a similar boundary on the other side of the creek. 5.Goan Creek is a watercourse that was dry at the time of inspection by the Tribunal. There are some remnant water holes. The Tribunal observed one small waterhole. The parties submit that the creek may flow perhaps once in every 4 years. Neither the applicants nor the respondents rely on Goan Creek as a source of water for their stock. 6.Along the eastern boundary of the applicants' land with the western high bank of Goan Creek is an existing post and wire netting and barbed wire fence for the part of the boundary. 7.On 12 August 2013 the Applicants served on the Respondents with a notice pursuant to s 11 of the Dividing Fences Act 1991 (called in these Reasons for Decision "the Notice"). 8.The Notice proposed that fencing work be carried out as follows: 1."Properties affected (street address) a.Applicants' land; b.Respondents' land; c.Creek-State owned; 2.Position of fencing work was shown on the attached plan; 3.Being on the eastern high bank of Goan Creek adjoining the respondents' land. 4.Fencing work proposed to be carried out; 5.Boundary fence 800 metres, 7.90.30 hingejoint, 2 barbs on top, steel posts, 2 gates and steel strainers and stays' 6.Estimated cost of the fence: ½ each." 9.The respondents did not agree to the proposed fencing work as set out in the Notice. APPLICATION 10.On 20 September 2013 the applicants filed an application to the Local Land Board for an Order for Fencing Work seeking orders in accordance with the fencing work proposed in the Notice (called in these Reasons for Decision "the Application"). JURISDICTION 11.On 31 December 2013 the provisions in the Crown Lands Act 1989 establishing and granting jurisdiction to the Local Land Boards were repealed. 12.Division 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013 contains savings and transitional provision for pending proceedings commenced before 1 January 2014 in an existing tribunal that has been abolished. 13.NCAT may hear and determine such matters and exercise all functions that the relevant existing tribunal had immediately before its abolition applying the provisions of any Act that would have applied to or in respect of the proceeding had the NCAT Act and the enabling amending Acts had not been enacted. 14.The application now before this Tribunal for hearing and determination is determined by NCAT. 15.The applicants prosecute that application. APPLICANTS' EVIDENCE 16.The applicants evidence is contained in a bundle of documents tendered to the Tribunal and oral evidence; relevant to the application is: a.The fencing notice dated served on the respondents on 12 April 2013: b.The application filed with the local land board on 20 September 2013; c.A copy of the deposited plan of showing the Lot 17 and Lot 1; d.Original portion plans for what are now Lot 11, Lot 16 & Lot 17 dating from the early 1900's. e.A copy of a survey report dated 29 March 2004 by Surveyor Astley of Imrie, Astley & Associates of Dubbo; f.Quotes for fencing work proposed dated 12 August 2013 from G.A & B.D. Wheeler for $7,910.00 and another dated 12 August 2103 from K. Fitzgerald for $7,810.00 g.Other letters statements and reports in relation to the proposal for the applicants to establish a voluntary conservation agreement, wildlife refuge and evidence registration of Aboriginal grinding sites and artefacts within Goan Creek and into lot 17; RESPONDENTS EVIDENCE 17.The respondents' did not file any documents in accordance with the directions of the Tribunal. The Tribunal granted leave to the respondents to give oral evidence which included: a.The existing fence running along the applicants boundary with Goan Creek is a sufficient dividing fence for the purposes of a dividing fence and does not need to be changed; b.The applicants' land boundary with Goan Creek is the high bank on their side of the creek, the respondents' land boundary with Goan Creek is its high bank on the respondents' side of the creek. c.The problem of escaping stock that the applicants complain of is not caused by the existing fence, but the inadequacy of the stock ramp at or near the high bank of Goan Creek on the applicants boundary where a road crosses the creek into the respondents land; d.The applicant has wanted to create a give and take fence along the creek so that half of the creek is fenced into the applicants' and the other half is fenced into the respondents' land. The applicant has already fenced his side of the creek further along and expects the respondents to do similarly; e.Historically there has never been a give and take fence along the creek; f.The respondents regard the eastern high banks of the creek as their boundary with it and the applicants' boundary is the western high bank of the creek. TRIBUNAL FINDINGS 18.The first issue to be considered by the Tribunal is whether the applicants' lot 17 adjoins the respondents' Lot 11 for the purposes of the Act. 19.Section 5 of the Act provides: Adjoining owners-land separated by road or watercourse (1) The intervention of a road or watercourse between 2 parcels of land does not prevent: (a) the owners of those parcels of land from being taken to be adjoining owners for the purposes of this Act, or (b) a claim for contribution for fencing work being brought in respect of a fence on either side of the road or watercourse. (2) This section applies only if the fence has been used or, in the opinion of the Local Court or the Civil and Administrative Tribunal could reasonably be used, as a dividing fence by the owners of the land on either side of it. 20.The deposited plan and the original portions plans tendered to the Tribunal by the applicants clearly show that the respective high banks of Goan Creek as having a boundary on its western side with the applicants 'land and on its eastern side with the respondents' land 21.The Tribunal finds that is the location of the boundaries. 22.The applicants' existing fence is located on the applicants' side of Goan Creek approximately along its high bank. On the applicants evidence it has been in place for many years and as far as the applicant knows as early as the 1940's. 23.The applicants propose that the fence should be retained and a new fence be located on the respondents' boundary with Goan Creek. The effect of which will be to fence out the creek bed. 24.Of the applicants own volition and at their cost, they have fenced about 800 metres of their boundary with Goan Creek at the other end of it to the 800 metres of fence line the subject of this application. If they are successful in this application they will achieve a give and take dividing fence so that 800 metres will be on their boundary with the creek and the other 800 metre dividing fence will be on the respondents' boundary with Goan Creek. 25.The evidence of both parties is that neither of them relies on the fickle flow of Goan Creek for stock or domestic water. The respondents' evidence is that even if there are water holes remaining after floods, they soon become stagnant. 26.The applicants dress their proposal with the intention of creating a give and take fence along the applicants' and the respondents' boundary with Goan Creek where none has existed before. 27.Despite the applicants' lands and the respondents' lands being separated by a watercourse the existing fence is used and has been used by the applicants and respondents and their predecessors in title as a dividing fence. 28.The Tribunal is satisfied that the existing fence is a dividing fence and that the applicants and the respondents are adjoining land owners for the purpose of the Act. 29.The second issue to be determined by the Tribunal as to whether the general principles of the Act apply to the application. 30.The general principles of the Dividing Fences Act are set out in s 6, which states: (1) An adjoining owner is liable, in respect of adjoining lands where there is no sufficient dividing fence, to contribute to the carrying out of fencing work that results or would result in the provision of a dividing fence of a standard not greater than the standard for a sufficient dividing fence. (2) This section applies whether or not a dividing fence already separates the adjoining lands. 31.Section 4 of the Act sets out the requirements to make a determination of what is a sufficient dividing fence as follows: In any proceedings under this Act, the Local Court or a local land board 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. 32.Section 4 requires the Board to consider all the circumstances of the case in making a determination as to the standard of a sufficient dividing fence. 33.If the Board finds that there is no sufficient dividing fence then the jurisdiction granted by the Act to make fencing orders is triggered. This finding is fundamental to making any orders under s 14 of the Act. 34.Malpass M (as he then was) found in Alwiah v Watts and anor [2004] NSWSC 948 : "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 s6 and enables the making of orders pursuant to s14." 35.Hidden J in Brown v Doyle [2012] NSWSC 1269 cites with approval the above passage. 36.Once the Board finds that there is an insufficient dividing fence for the subject of an application before it, it is then open to the Board to determine the standard of a sufficient dividing fence for which adjoining land owners should contribute in accordance with the Act and the allows the Tribunal to make orders in accordance with s 14 of the Act. 37.The applicants regard that the existing fence is not sufficient and propose that it should be replaced not on its existing line, but on the other side of the creek so that the applicants can achieve their proposal to create a give and take fence for the purpose of them achieving a conservation area. 38.While it is a matter that the Tribunal will consider in determining if a fence is a sufficient dividing fence it is only one of the factors to be considered. 39.The test of whether a fence is a sufficient dividing fence in s 4 of the Dividing Fences Act is that the Tribunal must consider all the circumstances including the criteria set out in the that section. 40.The Tribunal at a view of the site observed an existing fence along the high bank of Goan Creek adjoin lot 17. In relation to that fence: a.The applicants expressed concern that on their understanding that it was built in the 1940's; b.Their concerns were that the fence was not stock proof and in particular would not constrain a bull; c.Member Barton, who has experience obtained through a lifetime as a farmer and grazier, examined the fence. With the benefit of that expertise, the Tribunal is satisfied that it is and will be stock proof if it is maintained in the usual course of best farming maintenance practices; d.Member Barton's understanding and experience of the propensity of bulls is that most rural fences will not prevent a bull from passing through a fence to get to cows and heifers in the vicinity of the bulls enclosure; e.The stock ramp erected at the end of the existing fence is deficient and unable to function as a barrier to deter stock crossing as there is no visible excavation beneath it as would normally restrict stock from crossing it. There is damage one side of the ramp fence. f.Other than the stock ramp the fence appears to be in a condition that will restrain stock for the purpose of the enterprise of grazing stock. 41.The lands are used by the applicants and the respondents for grazing stock. The applicants intend to use part of their lands and the bed of Goan Creek as a nature reserve. On the evidence before the Tribunal it is satisfied that the primary purpose of the land use is in the pursuit of grazing business. 42.The applicants' proposal is for the existing fence to remain in place and that the fence the subject of the application is to be erected on the respondents' boundary with the high bank of Roan Creek. The existing fence is adequate for the purpose of the enterprise of grazing stock. 43.The existing fence and the propose fence are of a type usual in the locality. 44.As to compliance with any policy or code adopted by a council of the local government area in which the lands are situated and any relevant environmental planning instrument there was no evidence before the Tribunal that needs to be considered on these criteria. 45.The Tribunal is satisfied that the existing fence is not an insufficient fence for the purposes of the Act. Consequent on that finding the Tribunal does not have jurisdiction to make orders as sought and will dismiss the application. ORDERS 46.The Tribunal orders that the application is dismissed. (signed) Philip L Boyce Senior Member Civil and Administrative Tribunal of New South Wales (signed) Michael Barton Member Civil and Administrative Tribunal of New South Wales 9 April 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar