Philip Mckay v Stuart Earl Greentree and Nadeen Maree Greentree

APPLICATION 17On 18 March 2013 the applicant filed an Application to 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"). 18The applicant prosecutes that application.

APPLICANT'S EVIDENCE 19The applicant's evidence is contained in the exhibits tendered and oral evidence as follows: (a)Exihibits: (i)Exhibit A- Black Folder containing: (ii)A copy of the Notice; (iii)A copy of the Application; (iv)Notes "For Speaking to the Chairperson"; (v)A copy of S 3 of the Dividing Fences Act 1991; (vi)A copy of S 4 of the Act; (vii)A copy of S 7 of the Act; (viii)A copy of Cl 4.16 of the Wollongong DCP 2009; (ix)A copy of Part 3 Division 2 Subdivision 6 Cl 3.29 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008; (x)A copy of Part 2 Division 1 Subdivision 15 Cl 2.29 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008; (xi)A copy of a quote dated 21 August 2013 from Tony Myers Builder for carrying out proposed fencing work consisting of 13.85 metres of a brick retaining wall 800mm high on a concrete footing in the sum of $6,826.00; (xii)A copy of a quote dated 20 February 2013 from R Lee Bricklaying for building a double brick retaining wall 800mm high for 14 lineal metres on a concrete footing for $8,850.00; (xiii)A copy of a quote dated 4 February 2013 from HLK Brickwork for a brick retaining wall 800mm high for a length of 14 metres on a concrete footing for $9,790.00; (xiv)Photographs of 6 neighbouring properties; (xv)9 Photographs of the existing interlocked concrete block retaining wall erected by the respondents within their land; (xvi)A photograph of landscaping within the applicant's land; (xvii)5 Photographs of the undeveloped state of the respondents' land; (xviii)A copy of a letter dated 27 January 2013 from other neighbours in support of the applicant's application; (xix)A copy of a letter dated 20 October 2011 from the respondent to the applicant refusing a proposal to by the applicant to remove the respondents' retaining wall and erect a brick retaining wall and forgoing a fence along the common boundary; (b)Exhibit B: (i)A copy of a report dated 23 August 2013 prepared by "Detom Design" and authored by Renee Tenhave, a registered landscape architect; (ii)A copy of Part B Chapter B1 of the Wollongong DCP 2009, in force as at 3 August 2011; (iii)2 photographs with an artist's impression of the proposed work of the applicant superimposed and on the other an impression of a colourbond fence erected on the common boundary with the respondents' block wall retained; (c)Oral evidence of the applicant: (i)He proposes that the existing wall erected within the respondents' land be demolished and removed; (ii)A new double brick wall 800mm high and 13.8 metres long is to be erected on engineered concrete footing be erected within his land so that it will retain his land and support hedge plantings as a dividing fence; (iii)All work to be carried out at his cost; (iv)He refers to the Wollongong DCP which requires that any retaining wall along an adjoining boundary is to be set back 900mm from any side or rear boundary; (d)In accordance with the orders of the Tribunal, the applicant also produced a full copy of Wollongong DCP 2009 and State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (called in these reasons for decision ("SEPP"), and made submissions.

RESPONDENTS' EVIDENCE 20The respondents' evidence is contained in the Exhibit tendered to the Tribunal and oral evidence as follows: (e)Exhibit 1- A Dial before you Dig Plan showing the approximate location of service lines and pipes to the respondents' land crossing the common boundary at a point approximately half way along the common boundary the subject of this application; (f)Oral evidence of Mr Greentree: (i)He and his wife propose that any fence that is to be erected is to be colourbond and on the common boundary line ; (ii)Colourbond fences are used extensively in the locality except for their existing rear fence which is timber paling; (iii)The respondents' land adjoins 4 other properties including the applicant's; (iv)The existing retaining wall is exclusively within their land and has been back filled, it supports the applicant's land and was placed in its present location when the respondents excavated their driveway; (v)There is no need to remove the existing retaining wall and a colourbond fence can be built along the common boundary which is parallel to and about 400mm from the existing retaining wall.

What is a "dividing fence', "fence" and "fencing work" 21S 3 of the Act defines "dividing fence", "fence" and "fencing work" as follows: "dividing fence" means 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. "fence" means a structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land, whether or not continuous or extending along the whole of the boundary separating the land of adjoining owners, and includes: (a) any gate, cattlegrid or apparatus necessary for the operation of the fence, and (b) any natural or artificial watercourse which separates the land of adjoining owners, and (c) any foundation or support necessary for the support and maintenance of the fence, but does not include a retaining wall (except as provided by paragraph (c)) or a wall which is part of a house, garage or other building. "fencing work" means: (a) the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence, and (b) the surveying or preparation of land (including the trimming, lopping or removal of vegetation) along or on either side of the common boundary of adjoining lands for such a purpose, and includes: (c) the planting, replanting and maintenance of a hedge or similar vegetative barrier, and (d) the cleaning, deepening, enlargement or alteration of a ditch, embankment or watercourse that serves as a dividing fence.

Sufficient dividing fence 22The 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. 23S 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 Tribunal 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. 24Section 4 requires the Tribunal to consider all the circumstances of the case in making a determination as to the standard of a sufficient dividing fence. 25If the Tribunal 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. 26Malpass 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." 27Hidden J in Brown v Doyle [2012] NSWSC 1269 and Adams J in Larney v Johannson [2012] NSWSC 1297 both cite with approval the above passage. 28Once the Tribunal finds that there is no sufficient dividing fence for the subject of an application before it, it is then open to the Tribunal to determine the standard of a sufficient dividing fence for which adjoining land owners should contribute in accordance with the Act.

Retaining walls 29Associate Justice Malpass in Warringah Properties Pty Limited v Babij (Snr)and 1 Ors [2006] NSWSC 702 examined the meaning of 'retaining wall' in the course of his judgement. It is not defined in the Act. Malpass, AJ considered earlier decisions of the Court, particularly in Kontikis & Anor v Schreiner & Ors (1989) 16 NSWLR 706. The Kontikis decision arose out of the Dividing Fences Act 1951 (the "1951 Act") and considered whether a brick wall was a fence, finding that it was a retaining wall and beyond the provisions of the 1951 Act. 30S 3 of the Act at the time of Warringah Properties defined a fence specifically excluding a retaining wall as a fence. "fence" means a structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land, whether or not continuous or extending along the whole of the boundary separating the land of adjoining owners, and includes: (a) any gate, cattlegrid or apparatus necessary for the operation of the fence, and (b) any natural or artificial watercourse which separates the land of adjoining owners, and (c) any foundation or support necessary for the support and maintenance of the fence, but does not include a retaining wall or a wall which is part of a house, garage or other building. 31Malpass AJ at [14] defines a fence under the Act as "[O]ne 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." 32At [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)." 33And at [21]: "There may be overlapping 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." 34After the 2009 amendment to the Act, Commissioner Fakes in the decision of the LEC in Riggio v The Estate of the late Phyllis Annette Lockard [2011] NSWLEC 1292 at [28] referred to a submission made by the solicitor for the respondent in those proceedings, reporting the second reading speech of the Dividing Fences and Other Legislation Amendment Bill 2008 (which introduced the 2009 amendment to the Act added the words in s 3 of the definition of 'fence' "(except as provided by paragraph (c))" between the words in the s 3, "retaining wall" and the word "or" made by the Hon Penny Sharpe and reported in Hansard as follows: "The intention of the scheme set out in this 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 work that will be 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 this 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 crated by section 177 of the Conveyancing Act 1991 is preserved." 35Fakes, C at [33], concluded 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". 36When considering whether a retaining wall is part of fencing work, the Tribunal uses the 'principle purpose test' of the retaining wall. If a wall's principle 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 principle purpose of a retaining wall is to support or retain earth and the support of a fence is ancillary.

Sufficient dividing fence 37The applicant proposes that a retaining wall be built 900mm within his land and a hedge planted as a dividing fence. 38The respondents propose that no retaining wall be built as the existing retaining wall 400mm-600mm within the respondents' land and parallel to the common boundary is able to support the applicant's land and that a colourbond dividing fence can be erected along the common boundary line. 39It is therefore common ground that the parties regard the existing arrangement as not a sufficient dividing fence. 40The Tribunal is also satisfied that there is no dividing fence erected along the common boundary. 41As required by s 4 of the Act the Tribunal has considered all the circumstances placed before it in determining whether there is sufficient dividing fence. 42The Tribunal finds that there is no sufficient dividing fence between the adjoining lands for the length of common boundary the subject of this application. 43As such, the Tribunal is able to make a determination in regard to the application and the orders set out in s 14 of the Act are available to the Tribunal in making its determination. 44The evidence before the Tribunal is that the adjoining lands are located within a gated community. Within that community the homes are substantial and considerable effort has been taken by other land owners including the applicant to establish quality gardens. The applicant's landscape consultant has described the respondents' land as "The landscape at 3 ******** [respondents' address] does not exhibit the same level of materials quality, workmanship or maintenance as the surrounding residences." 45At the site view, the Tribunal observed that the description by the landscape consultant is accurate.

Is the existing or proposed retaining wall a footing or support for the dividing fence?

Existing retaining wall 46In his oral evidence the applicant proposes that the Tribunal orders that the retaining wall built within the respondents' land is to be demolished and removed. This is not part of the fencing work proposed in the Notice or in the Application. 47The respondents oppose the removal of their retaining wall. They say that it was placed by them where it is, at no cost to the applicant and serves its primary purpose, which is to support the applicant's land, which was necessary because the respondents removed that support when they excavated for their driveway. 48They submit that the existing structure permits the common boundary line to be clear and ready for a dividing fence to be erected. 49The applicant, together with his landscape architect, regard the existing retaining wall as being non-compliant with the SEPP. 50In making that assessment they rely on Part 2, Subdivision 15, Clause 2.30 (b) of the SEPP. That clause requires that for a retaining wall to be an exempt development it must be located at least 900mm from a boundary. 51The applicant's landscape architect refers to the retaining wall in her report that the wall "shows evidence of poor construction, is unsightly due to the inconsistencies of construction and poor maintenance, and does not deal adequately with drainage". However, apart from a finding that it does not comply with the objectives of the Wollongong DCP there is no finding that it is structurally unsound nor is there evidence of the applicant's consultant being qualified to make a determination of the structural integrity of the wall, even if she did so. 52The existing retaining wall, despite the aesthetic offence it causes to the applicant is serving its primary purpose, which is to retain and support the applicants land. 53Regardless of whether it is a non-compliant retaining wall pursuant to the SEPP, it is not for this Tribunal to make such a determination. 54The Tribunal has no power under the Act to make orders for the demolition and removal of structures unless that work falls within the definition of "fencing work" for the preparation of the land either side of the common boundary of the adjoining lands. 55On the evidence before the Tribunal the existing retaining wall is approximately 400mm - 600mm off the common boundary. For fencing work to be carried out, whether it is the erection of a timber or sheet metal fence or planting of a hedge, the common boundary is sufficiently clear to allow fencing work to be carried out. 56The Tribunal is satisfied that the demolition of the retaining wall was not part of the proposed fencing work in the applicant's Notice or Application and in any case it 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.

Proposed retaining wall 57The applicant proposes that the retaining wall he wishes to erect is to be a brick bond pattern double brick wall. The Tribunal takes notice that there is a standard size brick used in Australia. That is 76mm high x 230mm long x110mm wide. That wall based on a standard brick width would be 220mm wide (the width of two bricks), wider if there is a cavity. 58On the SEPP requirements for a complying development that would place the edge of the wall at least 900mm from the boundary plus at least 220mm width of bricks, a total of 1.12 metres from the common boundary line. A garden bed would then be installed and hedging planted. The applicant has not given evidence of the accurate location of the proposed line of hedging. It is reasonable for the Tribunal to expect that the proposed hedge would be at least 1.5metres from the common boundary. 59The Act specifically excludes a retaining wall as a fence in the definitions in S 3 unless it falls within the exemption of being a "foundation or support necessary for the support or maintenance of [a] fence". 60That is, unless the Tribunal finds that a proposal to erect a retaining wall is necessary for the support or maintenance of fence then the proposed work is beyond the jurisdiction of the Tribunal to make orders. 61The application before this Tribunal is for orders to erect a retaining wall as a support for the earth into which a hedge will be planted. 62The Tribunal finds that the work proposed by the applicant is too remote from the common boundary line to be fencing work within the meaning of the Act. Having made that finding the Tribunal is unable to make the orders sought by the applicant. 63The line of the common boundary is clear and able to be used now, without another retaining wall to be built. It is now possible to erect a fence or plant a hedge along it. This does not suit the applicant as he wishes, admittedly at his own cost, to build another retaining wall within his land some nearly 2 metres apart from where the existing retaining wall is located. 64The work the applicant proposes is in the nature of landscaping to enhance the amenity of his land. 65It is open to the applicant or the respondents to bring another application if they cannot agree on the type of fence to be erected on the common boundary line. If such an application were brought, then the Court or Tribunal making a determination would then need to consider whether the appropriate type of fence would be. It appears on the evidence before the Tribunal that a colourbonded sheet metal fence would be inappropriate as not being a complying development. However, the Tribunal makes no finding in that regard. 66For the reasons set out, the Tribunal dismisses the application. (signed) P Boyce Senior Member Civil and Administrative Tribunal of New South Wales 7 May 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

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 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: 31 July 2014