On 23 March 2018, the appellant filed application COM 18/14724, under the Dividing Fences Act 1991 (NSW) ("the Act"), in respect of a fence dividing his property from that of the respondent.
The application was dismissed by the Tribunal on 20 June 2018 because the Tribunal was not satisfied it had jurisdiction to hear the claim. The Tribunal found that the appellant had not proved that the fence, the subject of the application, was not sufficient for the purposes of the Act.
On 16 July 2018, the appellant filed a Notice of Appeal dated 3 July 2018. The appeal was lodged in time.
[2]
Notice of Appeal, history of appeal proceedings, and submissions
The Notice of Appeal referred to a document dated 3 July 2018, which was attached to the notice and sets out the grounds of appeal.
The appellant's general contention was that the decision was not fair and equitable, or that it was against the weight of evidence, because the existing fence:
1. was not on the boundary line;
2. was not plumb and straight; and
3. was not of a reasonable and acceptable standard.
The appellant says that the encroachment of the rear portion of the existing fence "is very significant (i.e. in excess of 150-315 mm in places), and this does adversely impact on suitable access with to [sic] our rear secondary dwelling". The appellant contends that he is unable to install a proposed gate, in order to separate the rear secondary dwelling from the private open space, as the opening is too narrow to be practical. The appellant also says that he is unable to install proposed landscaping and path lighting for safe afterhours access to the rear secondary dwelling, which he says has had "a significant adverse impact on the use and community" of his property. The appellant says, in his written submissions dated 3 July 2018, that "the rear portion of the boundary fence [should] be located 'on the boundary', and the remaining front portion of the fence [should] be plumbed and straightened to a reasonable standard".
In relation to the existing fence, in his written document the appellant said that the fence was "relatively new (approximately 5-6 years old), [and] has been very poorly constructed". He relies on photographs, mark-up plans, which he contends show the encroachments, and a certificate from a surveyor.
The appellant also refers to the relative values of the adjoining properties (which he says is $2 million for his property and $1 million for the respondent's property), and submits that "any reasonable person could only regard the existing fence is totally substandard and unacceptable and hence cannot be regarded as "sufficient" on this basis".
In relation to the evidence provided to the Tribunal, the appellant says:
Unfortunately the photographs don't do justice to showing how bad the existing fence is, so please read this in conjunction with the attached encroachment plan, which provides encroachment dimensions from the boundary line determined by the Registered Surveyor. Photos 2 & 5 & 15 & 16 are the best representations of the rear portion of the fence and Photos 3 & 11 are the best representation of the front portion of the fence. Photo 6 shows the surveyors market (screw with coloured tape) and the existing dividing fence encroaching 150 mm into [the appellant's property].
At the hearing of the appeal, the appellant made oral submissions to similar effect. He said the boundary was straight however the fence was not on the boundary line. He said the fence was curved and cranked and was not straight and plumb. He asserted every part of the fence was out of plumb. He said the fence was "unsightly".
He said that the Tribunal was in error in failing to take account of the fact the existing fence was not on the boundary line.
The appellant accepted that the fence was in reasonable condition and runs the full length of the boundary. However, having regard to the location of his property in an urban area, and the fact that the encroachment was not insignificant, he considered that an order should be made in his favour. In this regard, the appellant accepted that the majority of the components of the fence could be reused to reconstruct the fence on the boundary line.
In making these submissions, the appellant accepted that the adequacy of the fence was a matter of degree.
When asked what findings and orders he said the Appeal Panel should make, the appellant said we should be satisfied that the fence was insufficient and, accordingly, that we should make the following orders:
1. The existing fence should be demolished, the components reused, and the fence reconstructed plumb and straight on the boundary line, save for the front section of the fence, which only needed to be made plumb.
2. The costs of the fence should be shared equally.
3. The respondent should remove materials currently placed against the existing fence.
4. The respondent should pay the costs of the application.
The respondent filed a Reply to Appeal. In that reply he said the Tribunal was correct to determine that it had no jurisdiction to hear the claim. The respondent said there was "extreme animosity between the parties involved".
In written submissions, attached to the Reply to Appeal, the respondent made the following submissions in the event the Appeal Panel determined that the Tribunal was in error concerning the issue of jurisdiction:
1. The respondent has owned his property for 40 years, the current Colorbond fence being placed in the same location as an earlier wooden fence. Its location was on the boundary line as previously established by a surveyor.
2. The respondent was unable to afford to engage a surveyor and, in any event, wished to cross-examine the appellant's surveyor concerning the location of the boundary line.
3. The existing Colorbond fence was built by fencing contractors and is in good order and secure.
In addition, in his submissions to the Tribunal at first instance the respondent said:
1. He had "no issue straightening the fence from the original rear fence corner boundary".
2. Insofar as there is insufficient space to construct the gate on the appellant's property in the desired location, this was a matter which the appellant could have accommodated, having regard to the location of the existing fence.
3. As to the bow in the fence, this was because the fence was constructed around the roots of a camphor laurel tree, which was present at the time that the existing fence was built.
The respondent did not appear at the hearing of the appeal.
At the commencement of the hearing of the appeal, the Appeal Panel noted that the respondent had been served with notice of the hearing and, in the circumstances, decided to continue with the hearing of the appeal in the absence of the respondent. Oral reasons were given for that decision.
The Appeal Panel will, however, have regard to the written submissions attached to the respondent's Reply to Appeal.
[3]
Consideration
This appeal involves consideration of what is meant by the word "sufficient", as it is used in the Act, and whether the Tribunal was correct to conclude, as a matter of fact, that the fence installed on the subject land was sufficient.
[4]
Meaning of "sufficient"
The Tribunal does not have jurisdiction to make an order under the Act unless any existing fence is found to be insufficient: see Alwiah v Watts & Anor [2004] NSWSC 948 approved in Larney v Johannson [2013] NSWCA 409.
The term "sufficient" is protean.
In determining what is a "sufficient dividing fence", s 4 of the Act provides:
4 Determination as to "sufficient dividing fence"
In any proceedings under this Act, the Local Court or the Civil and Administrative 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 immediately before the repeal of that Act.
The section provides a list of factors as part of an inclusive definition, and otherwise requires the Tribunal "to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of [the Act]". It is inappropriate to attempt to prescribe all the circumstances which might be relevant.
However, as is evident from the list of factors in the Act, they include a consideration of the existing fence, the purposes for which "the adjoining lands are used or intended to be used", and the "privacy or other concerns of the adjoining landowners".
Taken together, it is clear that the nature of the adjoining land, and how a landowner wishes to use and enjoy their land, are relevant factors in determining the sufficiency of a fence.
The question of whether a particular fence is sufficient is one of degree. As recognised by Adams J in Larney v Johannson [2012] NSWSC 1297 at [11], a fence might be sufficient "but some fences might be more sufficient than others". While his Honour was considering what might be a sufficient fence for the purpose of an order under s 14 of the Act, his Honour's comments are nonetheless relevant to examining the sufficiency of an existing fence.
In its reasons for decision, the Tribunal said on page 2:
Even if the fence is not on the exact boundary line, this is not a factor which establishes that a fence is not sufficient. The fence does not appear damaged at all from the photos; it looks sufficiently upright and runs the full length of the boundary. The applicant agreed with the proposition that the panels and the railings are in good condition.
The appellant contends that the Tribunal was in error in concluding that the location of the fence - more particularly whether it was on the boundary line - was not a relevant factor in determining whether an existing fence is sufficient.
We agree.
There are three reasons for our view.
First, s 4 provides an inclusive definition of "sufficient" for the purposes of the Act. One of those purposes is to determine whether the existing fence is sufficient or whether the jurisdiction of the Tribunal to make an order to carry out fencing work is enlivened because the existing fence is insufficient. As we have said above, ss 4(b) and (c) make clear that the existing and prospective use of the land and privacy and other concerns of the adjoining landowners are specific considerations which the Act identifies as being relevant to determining the question of sufficiency.
Secondly, the Act expressly enables the Tribunal to have regard to the "existing dividing fence (if any)", an expression that is not limited to the physical properties of the fence, but also includes its location and purpose.
Thirdly, the use of the expression "in all the circumstances" would make it anomalous to construe the word "sufficient" in a manner which would exclude from consideration a fence encroaching on the adjoining neighbour's property that inappropriately restricted the use or enjoyment of the land of an adjoining landowner.
Whether a particular encroachment is such as to render the fence insufficient, within the meaning of the Act, requires a consideration of the nature and extent of any encroachment. In this regard, it seems to us that some deviations from the boundary line are permissible and would not justify a conclusion that any existing fence, in a good state of repair, was otherwise insufficient. For example, it is self-evident that minor deviations from the boundary line or deviations from the boundary line due to the varying width of fencing materials would not usually render a fence insufficient.
It follows that the error of the Tribunal in interpreting the Act and the failure to take account of a relevant jurisdictional fact is an error of law: Craig v The State of South Australia (1995) 184 CLR 163 at 177; [1995] HCA 58.
However, it is necessary to consider whether the order to dismiss the application should be set aside and, if so, what orders should be made. This requires a consideration of the findings of the Tribunal and the appellant's evidence and submissions concerning the issue of sufficiency of the existing fence.
[5]
Was the existing fence sufficient?
In its reasons, the Tribunal made the following findings:
1. While the fence is not plumb, "there is nothing actually wrong or dilapidated in the condition of the fence".
2. While the applicant submitted that the current fence had been poorly constructed, "there was no evidence of exactly what was wrong with the fence which would diminish its purpose".
3. In an area where the fence was not in a straight line, it was common ground that it had been constructed in this manner "to avoid some tree roots that were present at the time".
4. The photographic evidence did not show that the fence was damaged; rather it appeared "sufficiently upright" and "runs the full length of the boundary". In this regard the appellant agreed that the panels and railings were in good condition.
By reason of these findings, the Tribunal concluded that the appellant had failed to show that the fence was insufficient, and consequently dismissed the application. It did so despite the respondent indicating to the Tribunal that he did not object to part of the fence being straightened. In this regard, the Tribunal found that "there is no evidence that the non-straight part is not 'sufficient'". In addition, there were no costings provided in relation to that part of the fence said to require straightening.
The evidence, on which the appellant relies to challenge these conclusions, is contained in a bundle of material, provided to the Appeal Panel, which was before the Tribunal in the hearing at first instance. We note that we were not provided with a copy of the sound recording, nor a typed copy of what was said at the hearing, despite directions made by the Appeal Panel on 31 July 2018.
The material relied upon by the Appellant consisted of photographs, a survey report and schedule prepared by Mr Clarke, a surveyor from Clarke Dowdle & Associates, and a sketch drawing on a site plan for works proposed on the appellant's property ("site plan") which, apparently, have now been constructed.
We note that the only evidence of measurement by a surveyor is that of Mr Clarke, which shows the fence being 150 mm (0.15 m) off the boundary line in the north-western corner of the land owned by the appellant. However, that survey does not show the position of the fence relative to the boundary line for its whole length, nor does it show the alleged deviation of the fence from the boundary line of 315 mm.
The "Screw Fd Top of Fence", being the boundary mark recorded on Mr Clarke's sketch drawing, is depicted in photograph 6 of the appellant's bundle.
Significantly, there is no evidence as to the precise location of the boundary mark at the other end of the property, nor is there evidence of measurements from that line to the existing fence. Rather, there is evidence that the pink string line, shown in the photographs, is placed in the centre of the existing fence in the north-western corner (see Photo 6), and no evidence where it is fixed in the south-western corner. Moreover, there is no evidence of the actual boundary line relative to the fence. Also, there is no evidence that the diagram recording various measurements on the site plan was prepared by a surveyor. In any event, this diagram shows a deviation of up to +/- 50 mm over the majority of the length of the fence from the front boundary in Bundara Avenue to the location of the "Proposed Pool" shown on the site plan.
Otherwise, as best as we can discern from the evidence, it would seem that the alleged deviation of 315 mm is at the position where the camphor laurel tree was previously located.
The appellant submits that this evidence, together with other photographic evidence depicting the use of a long spirit level to show that the fence is out of plumb, demonstrates that the existing fence is not sufficient. In this regard, the photographs have captions on them seeking to describe the consequence of these matters for the appellant and his use of his property. For example, the caption on photo 15 reads:
Photo 15 showing the fence at the rear portion of the site is not straight with boundary line - should be 150 mm off the concrete path as it is out the front section. This the king down with encroachments of 150-300+ mm adversely affects a reasonable clear with access to the rear secondary dwelling, especially for furniture and appliance movements and pedestrian access with shopping bags etc, and also prevents landscaping and installation of proposed path lights for safe afterhours access to the rear secondary dwelling, and in addition is looks substandard and is regarded as totally unsatisfactory for a prime real estate location and a quality home/development.
The problem with these submissions is that the evidence in the photographs shows that the concrete path and/or timber deck walkway have been constructed down the side of the house and are available for use. There is no evidence to suggest that the access paths have in fact been reduced from the design intent. Presumably, any issue concerning access was considered having regard to the location of the existing fence and were matters dealt with as part of the planning, approval, set out and construction process for the new dwelling.
Rather, this evidence tends to suggest that the building works carried out by the appellant were done in accordance with the plans and specifications, to the required dimensions; a matter counting against a conclusion that access is adversely affected by the location of the existing fence.
In relation to the location where the fence is said to be bowed and off the boundary by an amount of 150 mm, this area seems to be after the end of the concrete path by which access is gained to the rear dwelling: see photos 1 and 5 where there is no path down the side of the dwelling at the rear of the property in the north-western corner. The site plan, showing the "Proposed Secondary Dwelling" at the rear of the property, does not suggest a point of access on the western boundary at or north of the point marked "+315" through which "furniture and appliance movements and pedestrian access with shopping bags etc" would be required. Rather, access appears to be via the stairs in the area marked "Deck" for the "Proposed Secondary Dwelling", access to those stairs being along the concrete path, which the photographs show turning to the right toward the "Deck".
As recorded above, the appellant agreed in written and oral submissions that the fence material was in good condition and could be reused in constructing the fence in a different location. This concession was to the effect that the physical properties of the fence are not in a state of dilapidation or decay. Certainly, the appellant has not suggested that this type of fence, namely a Colorbond fence, would not be in keeping with the locality or that it would not be of a type suitable for houses at that locality.
In relation to the fence being out of plumb, there is no evidence to suggest that, with maintenance, the fence cannot be adjusted to return it to a vertical position. If this were to occur, the top of the fence would move by 30 to 50 mm toward the respondent's property (as shown in Photo 9), and by about the same distance away from the appellant's property (as shown in Photo 10).
As to the inability to install lighting and provide safe access down those walkways, which we have described above, there is no evidence concerning the location of the lighting or the reason why it cannot otherwise be installed.
Having regard to the above, while it seems clear that the fence is not constructed on the boundary line at the north-western corner of the property (as recorded in the surveyor's report), we are not satisfied that the Tribunal was in error in failing to conclude that the present fence was insufficient.
In this regard, we are not satisfied that the appellant has demonstrated that the use of the land has been affected in a manner that warrants a conclusion that the existing fence is insufficient or that the existing fence requires demolition and rebuilding across the whole of its length. Indeed, as recorded above, the appellant conceded that only the rear portion of the fence needed to be relocated in any event.
Consequently, the Tribunal does not have jurisdiction to make an order for the carrying out of fencing work under the Act and the appeal should be dismissed.
In reaching this conclusion, we note that the respondent was prepared to agree with the appellant to straighten the fence at the rear and move the fence onto the boundary line in this location. No doubt if there is a relevant encroachment, this is a matter that could be the subject of further disputation under other legislation. Despite the view we have formed, it would be hoped that neighbours might discuss with each other how this adjustment to the fence might be made; for example, by the appellant carrying out this work at his cost, in order to avoid a further dispute.
[6]
Orders
The Appeal Panel makes the following orders:
1. The appeal is dismissed.
.
[7]
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: 19 October 2018