The Owners - Strata Plan No 44958 v Michel

Applicant's case

1. The applicant's evidence and submissions included the following.
2. The retaining wall is failing and needs to be replaced. The parties should equally contribute to the cost of replacing the retaining wall as it part of the dividing fence, in that it provides foundation or support necessary for the support and maintenance of the fence and falls within paragraph (c) of the definition of "fence" in section 3 of the Act. The function of the retaining wall is to support the fence which is on the boundary line between the parties adjoining lands. It is in effect a single structure.
3. The fence itself has not been constructed adequately, as the footings are not deep enough. The wall should have been removed to properly construct the fence with adequate footings.

Respondent's case

1. The respondent's evidence and submissions included the following.
2. The dividing fence is the Colourbond fence alone and that is a sufficient dividing fence. The retaining wall does not fall within the section 3 definition of "fence".
3. If there is an issue with the footings of the Colourbond fence, that is because damage to the soil has been caused by the applicant's lack of maintenance of the retaining wall, and any cost of repair required to that fence should be borne by the applicant alone.

Consideration

1. The issues for consideration are: 1. Whether the retaining wall is part of the dividing fence 2. Is there a sufficient dividing fence 3. What orders, if any, for fencing work should be made 4. How should the cost of any fencing work be shared between the parties.

Retaining wall

1. The Appeal Panel in Inacio v Luckose [2020] NSWCATAP 149 considered the relevant authorities and legislative history relating to the issue of whether a retaining wall is to be considered part of a dividing fence. The Appeal Panel set out the following conclusions: [66] A common thread running through the cases referred to above is that questions such as whether a structure is a dividing fence and whether a retaining wall is a foundation or support for a dividing fence must be determined having regard to the purpose for which the structure or wall has been constructed. [67] The fact that a retaining wall provides support for a dividing fence , in the sense that the fence will fall over if the wall is removed, is not sufficient to establish that the wall is a foundation or support for the fence. It must be a common feature of retaining walls that whatever is constructed above the wall is likely to collapse if the wall is removed. It would not be consistent with the intention of the Act that any retaining wall constructed on or near the boundary between adjacent properties will be a dividing fence or part of a dividing fence . It is necessary that the wall be constructed as a foundation or support for a dividing fence , that is, for the purpose of providing a foundation or support for the fence. [68] There is support for that construction of the definition of 'fence' in the parts of the second reading speech for the Amending Act which we have extracted above, to which we may have regard both to confirm the ordinary meaning of the words of the definition and to guide the construction of those words to the extent that they are ambiguous or obscure: Interpretation Act 1987 (NSW) s 34.
2. The Appeal Panel continued, at [70]: [70] The facts in this case are: that the fence is built next to the retaining wall ; that, if the wall is removed, the footings of the fence will be exposed; and that that loss of lateral support may result in the fence falling over. Those facts by themselves do not persuade us that the definition of "fence" in the Act is satisfied to the extent that the retaining wall forms part of the fence or that the retaining wall is a foundation or support necessary for support and maintenance of the fence. ... [71] As Ms Jaeger submitted on behalf of the appellant, the retaining wall and the fence were separate structures. The fence was constructed with its footings against the wall, but apart from the fact that the soil in which it is founded is held up by the retaining wall , the wall is not a foundation or support for the wall. The purpose of the wall is to support the appellant's land; the fact that the fence is constructed within the soil supported by the wall is not sufficient to bring the wall within the words of paragraph (c) of the definition of "fence".
3. I largely accept the respondent's position on this issue.
4. I am satisfied the fence and retaining wall are separate structures. The retaining wall was constructed when the applicant's land was developed in about 1993, for the purpose of supporting the natural ground at the side and rear of the applicant's land (the respondent's land being to the rear). The responsibility for the retaining wall was solely with the then owners of the applicant's land, and that is echoed in the current DA consent requiring the retaining wall to be constructed entirely on the applicant's land. This is inconsistent with it being a dividing fence.
5. The Colourbond fence is located on land that existed prior to that excavation. This supports the conclusion that the purpose of the retaining wall was not to provide a foundation or support for the fence. As stated in Inacio, the fact that the fence will fall over if the wall is removed (or not properly maintained), is not sufficient in itself to establish that the retaining wall is a foundation or support for the fence. Rather, the purpose of the retaining wall is to support the natural ground, including the respondent's land, which happens to include the land on which the fence is built.
6. For completeness, the Tribunal notes that the decision in matter COM22/53150, and the parties' submissions in respect thereof, have been considered. The tribunal considers that case is distinguishable on its facts.
7. It follows that any work in respect of the retaining wall is not "fencing work" within the meaning of the Act, and the Tribunal cannot therefore make any order in respect of it.

Is there a sufficient dividing fence?

1. There is a Colourbond fence approximately along the boundary of the parties' adjoining lands. It was erected in 2015.
2. The applicant has provided a civil engineer's report, primarily in relation to the retaining wall, but it also comments that the Colourbond fence appears to have been inadequately installed and is failing, as the posts do not appear to be contained within a concrete-filled bored pier.
3. The applicant has provided two quotes for the proposed retaining wall and fence work. The Bula Brothers quote includes "removal of existing back fence and reinstall existing panels with supply and install of new posts", for a cost of $2,640. The Novak quote includes "remove and store existing Colourbond fence, and reinstate on completion of [retaining wall] works". The quote is not itemised.
4. The respondent also provided a report from a civil engineer which states: the current issues with the fence are due to the retaining wall being too close to the fence, the fence posts not being deep enough due to the encroachment of the retaining wall and the retaining wall not of sufficient build quality.
5. I am satisfied on the balance of probabilities, on the evidence before me, that the Colourbond fence is not a sufficient dividing fence. Both civil engineers have identified issues with the fence, including with the post installation.

Orders for fencing work and sharing of costs

1. I am satisfied that repair to the fence should be undertaken in accordance with the Bula Brothers quote. I am satisfied that would result in a sufficient dividing fence, having regard to the relevant legislative considerations. This work envisages the fence being reinstalled as part of, or after, the retaining wall works. It is unclear when that work will take place but it does seem that should happen in a timely manner. I am satisfied an order should be made for the fencing work to be carried out within four months.
2. I am satisfied the parties should share equally the cost of the fencing work. That is the general position as set out in section 7 of the Act. Whilst the failure of the retaining wall may possibly have contributed to issues with the fence, there is also evidence to the effect the posts were not deep enough or properly secured. I am not comfortably satisfied that the fence has been damaged by a negligent or deliberate act of the applicant, such that section 7 would apply.

Respondent's claim for costs

1. Section 23 of the Act provides that the Tribunal may award costs against either party. Section 60 of the Civil and Administrative Tribunal Act 2013 provides, relevantly: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3) [that is, the duty to co-operate with the Tribunal to give effect to the Tribunal's guiding principle - to facilitate the just, quick and cheap resolution of the real issues in the proceedings - and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal.] (g) any other matter that the Tribunal considers relevant.
2. Guidance in consideration of costs applications under section 60 is provided by the decision of the Appeal Panel in Foster v Byrnes [2016] NSWCATAP 197, where it was stated (citations omitted): [50] The term "special circumstances" is not defined in the Act. It has been interpreted to mean circumstances that are out of the ordinary but not necessarily extraordinary or exceptional. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs…
3. I am not satisfied that the circumstances of this case amount to special circumstances warranting an award of costs. Both parties have had some success. The applicant's case was certainly not without tenable basis, or frivolous or vexatious. There is also nothing in the nature of the proceedings, or in the way in which the proceedings were conducted, to warrant an order for costs. The respondent was entitled to obtain advice and documents in support of their case, and parties in matters before the Tribunal often do, but they are generally costs the party itself bears. I am not satisfied a costs order should be made because they have incurred cost. Considering all the circumstances, no order for costs is made.

Conclusion

1. The orders are: 1. The following fencing work is to be carried out, on or before 11 April 2024, on the boundary between the applicant's land and the respondent's land: remove the existing Colourbond fence, supply and install new posts along the same line, and reinstall existing panels. 2. The work is to be done by Bula Brothers Landscaping 3. The applicant is to provide instructions to the contractor for the carrying out of the work and is to pay the contractor 4. Within three days of the completion of the work, and payment of the contractor in full, whichever occurs later, the respondent is to pay to the applicant one half of the cost of that work.
2. The Tribunal notes that the work was quoted at $2,640 in August 2023, although that quote has now expired.

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: 08 August 2024