The applicant is the registered proprietor of Lot 81 DP754453 and a related entity is the registered proprietor of Lots, 29, 107 and 170 DP754453 and Lot 1 DP520575. Together they form the property known as 43 Thone River Road Byabarra ("applicants land").
The respondents are the registered proprietors of Lot 4 DP598280 known as 571 Bagnoo Road Byabarra ("respondents' land").
Part of the applicants land, Lot 81 DP754453, and the respondents' land are separated by the Thone River ("River"). Lands separated by a watercourse are deemed by section 5 of the DFA to be adjoining lands and the provision of the DFA applies.
The applicant and Mr Gates conduct a beef grazing enterprise on her land. The applicant lives with her family on her land. Her land has an area of approximately 500 acres
The respondents care for and provide a home for retired racehorses on their land. The respondents live on their land. Their land has an area of approximately 18 acres.
On the applicants land there is a three tape electric fence along part of the high bank of the River on the applicants land. The River bank starts at its southern point from a low bank, part way along the applicant draws water from the River by means of pipes and pump, then rises steeply, with thick undergrowth (some recently cleared) before descending to the northern end of the common boundary from where the respondents draw household water and stock water by means of pipes and pump.
The respondent's land is less steep that the applicants land. From the land in front of their house there is a bank undulating about 2-3 metres above water level in part. The respondents submit that when the River is in flood the water level can nearly reach the respondents dwelling. The horse paddocks/day yards are set back from the high bank by a width of land between the high bank and the yards sufficient to allow a vehicle to pass. They are fenced with high posts and multiple strands of electric fence tape. There are no other fences along the River on the respondents' side of the River. At the view, the Tribunal observed some old posts and wire remnants of a former fence on the applicants side of the River.
On 29 March 2018 the applicant sent to the respondents a letter proposing "we would like to discuss with you both the apportionment of costs and the manner of construction [of a dividing fence]. We propose as follows:
1. Repair or Replace- we propose replacement is the most cost effective option of the existing partial fence, and then new installation of other sections.
2. Cost-the cost of the proposed fencing works be shared equally. We are in a position with experience and equipment, to undertake all works and do not intend to utilise external contractors. It is unclear how you would prefer to meet the shared cost of the fencing, perhaps one of the following arrangements may be workable, subject to further written agreement:
a. Equal supply of labour, equipment and materials;
b. You purchase and supply all materials and we will complete the fencing works (excluding clearing works costs);
c. You engage your own contractor to install half of the fence and we will complete the other half;
d. If neither of these options are suitable and you prefer us to purchase all materials and complete all the fencing we are happy to discuss a financial contribution at 50% of all materials, labour and equipment costs arising out of or associated with the fencing.
3. Line clearing-the fencing line needs to be cleared first to allow the existing fence to be removed and the new fence installed.
4. Construction method-we propose to install the fence as follows:
a. Aim of Construction-to have a sufficient dividing boundary fence that is effective in limiting cattle and horses movement across properties and be of a consistent design for a perimeter boundary fence across the area namely 5 strand.
i. Provided two access points, 1 per paddock to allow cattle river access for drinking
access points crossing the river to have strainer posts per side to allow solid wire connection and allow removal/lifting of wires during floods.
ii. In all areas with a high flood risk, install more strainer posts at 10m centres to allow wires to be removed and raised for floods.
b. Removal of Existing Fencing Along River-remove any existing posts and/wires and dispose of.
c. Steel or Wooden Posts-option to use either 1800mm galvanised steel posts at 3.5m centres or wooden split posts at 3.5m centres.
d. Wires-install 5 wires, heavy gauge galvanised barbed wire Waratah Iowa Galvanised, with securing clips to posts and galvanised strainers (where used).
e. Strainers-strainers can be wooden or steel posts. All steel posts to be concreted to ground.
i. In-line and Corner-use either wooden 3 posts with interconnected top beam at the top to allow load distribution in both directions, and steel posts with angled braces in each direction.
ii. End Strainers-use either 2 posts with interconnected top beam, or single steel post with single angled brace.
iii. Strainer Positioning-at no more than 100 meters centres. In other areas/closer spacing where ground conditions dictate (such as valleys, changes in angle or gates).
f. Gates- 2 proposed, one at each river access area, not less than 3600mm in length.
g. Location of Fence-we have attached a later in this letter a diagram of the proposed fence, we intend to erect the fence on our property as the ground rises and is in the majority not flood affected.
5. Indicative costs:
a. Clearing the fence line-estimated 2 days for bulldozer plus transport $1,160.00;
b. Removal of existing fence posts and wires-1 day 2 people plus transport and disposal costs $800;
c. Installation of fence-cost dependant on materials chosen:
Fencing Materials-approx. $5,200-$5,600;
Labour, Clearing, Fence Removal and Disposal-approx. $7,100-$9,500.
d. Total between $12,000 to $14,700.
We envisage a total cost of materials and labour between $12,000 to $14,700 or per metre between $21.60 to $26.50 approximately including clearing/disposal costs. As a comparison, we recently had a quotation for 1.2km at approximately $15.60/mete (plus clearing/disposal costs of approximately $7,000 which increased this to approx. $21.43/metre.
The applicants rely on the letter of 29 March 2018 as a notice to carry out fencing work in accordance with section 11 of the DFA. The Tribunal is satisfied that the applicant's letter of 29 March 2018 sets out the matters required under section 11(2) of the DFA and accordingly is a valid notice to carry out fencing work.
The respondents did not agree to the fencing work proposed by the notice to carry out fencing work or at all.
The Tribunal will consider the content of the submissions, statements and statutory declarations to the extent they address issues required to be decided. As is the case in many disputes about dividing fences, they reflect a sad breakdown in adjoining land owners potentially good neighbourly relationships. The opportunity to file documents, respond and reply allows the parties the opportunity to canvass issues not necessarily relevant to the limited jurisdiction of the Tribunal and determination of the application before it.
The respondents have provided multiple statements and statutory declarations and referenced material which they have accessed from the internet to generally support their defence of the application. The material down loaded from the internet is generic in nature and does not specifically address the issues that the respondents contend supports their defence to the application.
In any application before the Tribunal the applicant bears the onus of proof, it is for the applicant to support its application with evidence of sufficient weight to prove its case so that the Tribunal can make the orders the applicant seeks.
If the applicant proves her case, then the respondents defence to the application must be supported by evidence of sufficient weight to answer the application so that the Tribunal is then in a position to make a determination to the civil standard of proof.
Before the Tribunal can consider the application, the threshold test must be undertaken. Master Malpass (as he then was) in Alwiah v Watts [2004] NSWSC 948 at [10]:
The content of the Act [Dividing Fences Act 1991] demonstrates that jurisdiction to make orders is dependent upon a finding that there is an insufficient dividing fence between the adjoining lands. Unless that finding is made, no orders can be made. Such a finding gives rise to the liability referred to in s6 and enables the making of orders pursuant to s14.
Is there an insufficient dividing fence between the applicant's land and the respondents' land? To make that determination the Tribunal must 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,
In that consideration:
1. There is no existing dividing fence;
2. The Tribunal has already noted that the applicant uses her land for the purposes of grazing beef cattle. The applicant's evidence is that an ability to constrain the natural propensity of cattle to stray is essential in the operation of a cattle grazing enterprise. The respondents land use is for the care of horses. Those horses are already constrained by the respondents' fenced yards.
3. While the respondents do not support their concerns with other than bold statements and public available generic material down loaded from the internet, the Tribunal takes into account, but must as a consequence limit the weight that can be given to non-specific material in support, the respondents concerns appear to be crystallised into concerns for:
1. the loss of value to their property caused by a fence restricting access to the River;
2. Applicant's Cattle escaping downstream from the applicants land and proposed River access areas;
3. Applicant's Cattle contaminating the River, in particular, contaminating their water supply from the River;
4. Environmental damage to the River ecosystem;
5. Barriers across free flowing water that will restrict the use of the River by recreational users of the River, that is, for example, kayakers.
1. The applicant's concern is that she can constrain her cattle, manage her enterprise and give access to water for her stock when they are using the paddocks adjoining the river.
2. The type of fence proposed by the applicant in the alternative is not addressed by the respondents in their evidence except that they would prefer an electric fence. The applicant's evidence is by photograph and locality plan as to the type of dividing fence in the locality. The Tribunal's view of the locality recorded that boundary fences were usually of timber posts 3- 3.5 metres apart and 4 or 5 strand of barbed wire type.
3. There is no local authority policy, code or environmental instrument in either the applicant's or the respondents' evidence or submissions and accordingly cannot be taken into account when determining if the existing fencing is insufficient.
Notwithstanding the respondent's genuine concerns as listed, the Tribunal must look to all the circumstances. The lands are in a rural locality where farming enterprises are undertaken. Defining boundaries, using fences as a tool to manage stock, controlling access to water are all benefits a dividing fence can give to land owners. The applicant's evidence is that without a dividing fence, the applicant's cattle can escape across the River, through the respondents' land and onto Bagnoo Road and beyond, as has happened in the recent past.
In a rural locality it is to be expected that dividing fences are required for those reasons. The Tribunal has considered all the circumstances of the case and finds that there is no sufficient dividing fence between the adjoining lands and on that basis, the Tribunal has jurisdiction to make a determination on the application.
The applicant proposes that the dividing fence follow the highest point on the River bank on her side of the River except for the stock access points at the northern and southern end of the boundary where the fence would cross the River to the respondents' side of the River, effectively fencing in an area where stock could gain access to water. The two side fences either side of the access point is to constrain the cattle into that area. The southern access point is some 545 metres upstream from the northern access point, with 844.6 lineal metres of fence.
The respondents' draw household water from the area to be fenced into the applicant's land by the northern access point.
While there is only the respondents' speculation about the effect cattle will have on the waterhole from where their household water is drawn and the implications that the respondents' ask the Tribunal to draw from the material they rely on, the Tribunal has no evidence of the adverse effects that the respondents fear will take place. The Tribunal takes notice that the likelihood of cattle having access to the River bed at the northern access is more than likely to result in contamination of the water by being churned by cattle standing or wallowing in the River floor and defecating and urinating in the River. While the prospect of the cattle doing the same in the southern access point is the same, that point is more than 540 metres upstream. Water travelling that distance will have a chance to drop its contaminants. In times of low water, the water will be less likely to flow at a rate that will deliver cattle faeces, urine and River bottom churn to the northern access point. In times of high water contaminants will be flushed rapidly.
The Tribunal is satisfied that the proposed dividing fence, subject to the Tribunal's variations set out below, is a sufficient dividing fence for the purpose of the DFA. As such, pursuant to section 5 and 6 of the DFA the respondents' have liability to contribute to the cost of the dividing fence.
The respondents concern about the northern access point must be accommodated in any order. The Tribunal takes into account the respondents' concern for their existing access to clean water and the proximity of that point to their dwelling house. The Tribunal will order that the there be no access point fenced into the applicants land at this point.
The Tribunal accepts that as a result of the intervention of the Department of Primary Industries issuing a notice to remove 2 flood fences across the River at the proposed southern access point and removal of those fences by the applicant, the applicant revised the diagram showing the line of the proposed fencing. The new diagram was tendered to the Tribunal at the hearing and admitted as Exhibit A2. The length of fencing proposed increased from 544 metres to 844.6 metres (if both access point fencing is ordered).
The adjoining lands are separated by the River. Both the applicant's and the respondents' land have riparian rights for the purpose of watering stock and for domestic consumption. The applicant proposes that the dividing fence be mostly erected on her land except for the access points where the river will be fenced across to allow stock access to water and to constrain their escape from the respondents' side of the River. The Tribunal has already referred to the northern access point. The Tribunal is satisfied that the applicant's proposal to install a give and take fence at the southern access point will form part of the dividing fence. The proposed northern access point is not permitted and the dividing fence at this point is to continue on the line above the high bank of the River on the applicant's side of the River.
The applicant contends that the applicant should cause the fencing work proposed on her side of the River and the respondents for the fencing work on their side of the River. Such a proposal is unworkable. The applicant will be responsible for causing the fencing work to be carried out.
Neither the applicant nor the respondents' evidence as to cost of the fencing work is sufficient for the Tribunal to make a determination as to contribution by the respondents of the cost of the fencing work and the parties are required to obtain quotes from fencing contractors. The respondents must obtain a quote for the fencing works to test the applicant's estimate of the cost of the works. The quote is to be include a total costs and a cost per lineal metre for the fencing work. Obtaining a quote is not an opportunity for the parties to engage in attempting to change the scope of the fencing work now ordered. The extent of any further material to be filed will be strictly limited to quotes complying with the scope of fencing works now ordered.
The Tribunal orders as to the fencing work to be carried out. The apportionment of cost of the fencing work will be the subject of further orders after the parties' have obtained.
[2]
Conclusion
For the reasons given, the Tribunal orders that the fencing work is to be as follows:
1. Line of dividing fence is to be a give and take fence, and is:
1. As shown on the diagram Exhibit 2 varied as follows and:
1. Southern Access Area:
2. To commence at the respondents southern boundary fence and follow a line in a northerly direction 2 metres back from the high bank of Thone River into the respondents' land;
3. Then continue along a line until 15 meters into the deep water pool marked at the end of "River Access A" (as shown on Exhibit A2) and then to fence down directly to the Thone River edge.
4. The fence erected on the line in order 1(a)(i)(b) at the Thone River edge will be in a form and design so that livestock are not able to move around the end of the fence at the Thone River.
5. The section of fence from the top of the Thone River Bank to the Thone River edge is to be flood strengthened fencing.
6. The respondents existing boundary fence from the starting point of the new fence now ordered in Order (1)(a)(d) is to be replaced.
7. Fence between southern access point and northern western corner of Lot 81 DP754453:
8. Is to follow the line proposed in the plan Exhibit A2 and otherwise:
9. The line of existing fence, temporary electric fence section and inside of the established mature tree line to limit clearing of the fence line;
10. Be subject to the fencing installers recommendation to deal with adverse site issues if they arise;
11. The fencing identified in the potentially flood affected areas in Exhibit 2 are to be flood strengthened fencing;
1. The applicant and the respondents are to identify and mark the location on the ground of any underground cables, wires, pipes, telecommunication lines or other items which may be damaged by installation of fence posts clearly identifiable to the fencing installer;
2. The dividing fence is to be:
1. Timber posts and strainers;
2. 5 strand Iowa 2.5mm galvanised barbed wire;
3. Corner and in line strainer assemblies to be stayed in two directions using three strainer posts and a top 3 metre timber rail not less than 100mm x 100mm square. End strainer assembles to be 2 strainers and a top rail.
4. At Thone River edge a multi panel timber or other suitable material assembly to be installed off 3 strainer posts to extend to the natural point to prevent livestock from moving around the end of the fence;
5. Additional strainer posts to be installed at potential flood affected sections as determined in lieu of normal posts for additional strength at not less than 10 metre centres;
6. 1 galvanised "W" style gates of not less than 4180mm wide are to be installed at the Southern Access Point.
7. Posts are to be installed at 3 metre centres.
1. The applicant and the respondent are to obtain at least one written quote each from an experienced rural fencing contractor for the scope of fencing works proposed in orders (1)-(3) inclusive and file those quotes with the Tribunal on or before 30 November 2018.
2. Upon filing the quotes with the Tribunal the Tribunal will make orders as to apportionment of the cost of the fencing work on the papers without the need for a further hearing unless the parties request otherwise.
[3]
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: 30 January 2019
Parties
Applicant/Plaintiff:
Stanfield
Respondent/Defendant:
Baker
Cases Cited (1)
(4) Upon filing the quotes with the Tribunal the Tribunal will make orders as to apportionment of the cost of the fencing work on the papers without the need for a further hearing unless the parties request otherwise.
Catchwords: REAL PROPERTY - boundaries of land and fencing - fences and fencing - give and take fence - adjoining lands separated by a river
Legislation Cited: Civil and Administrative Tribunal Act 2014
Dividing Fences Act 1991
Cases Cited: Alwiah v Watts [2004] NSWSC 948
Category: Principal judgment
Parties: Allison Rebecca Stanfield (Applicant)
Barry John Baker, Patricia Isabel Baker and Deborah Terese Baker (Respondents)
Representation: Steven Gates with authority and leave (Applicant)
Deborah Baker with authority and leave (Respondent)
File Number(s): COM18/28334
Publication restriction: Nil