Background
"8. The parties were neighbours. There had been various discussions about replacing the dividing fence between them over the year preceding 11 July 2017. On that date, Mr Taylor sent an email to Mr Joye's solicitor seeking an agreement about contribution to the new fence. The solicitor wrote back saying he was seeking instructions and that Mr Taylor should not take any action. Mr Taylor followed up on a number of occasions without success. Upon learning that Mr Joye had placed his property on the market and had agreed a sale, Mr Taylor began proceedings in the Tribunal and without waiting for an order proceeded to get the work done.
9. The Taylors filed application COM 17/42631 on 5 October 2017. They sought orders requiring fencing work to be carried out, and an order determining the manner in which contributions for the fencing work was to be apportioned and other orders sought in an attached letter dated 4 October 2017. Those orders were that, in the event that the Tribunal determined that the appellants' email to the respondent's solicitor of 11 July 2017 did not constitute the notice required by s 11 of the DF Act:
• an order that the appellants could carry out the fencing work required to restore the dividing fence (in this respect the appellants referred to s 11 of the DF Act); and
• an order granting leave to serve a notice under the DF Act (in this respect the appellants referred to s 22 of the DF Act).
10. The hearing was held on 7 March 2018. The Decision records at [25] the appellants' concession that they had not served a notice that complied with the requirements of the DF Act. The Tribunal noted that, the appellants' concession that they had not served a notice pursuant to s 11 of the Act "[a]t first appearance . . . defeats their application": par [26]."
Paragraph 13 of Taylor says:
"At [28], the Tribunal referred at some length to the appellants' submissions in relation to s 9. The Tribunal concluded at [32] and [33]:
32. The Tribunal is not satisfied that the circumstances of the retaining wall damage required urgent fencing work notwithstanding the extent of the applicants' argument that it was. The Tribunal is also not satisfied that it was impracticable to serve a notice under section 11 in respect of the dividing fence.
33. As to the alleged urgency, the applicants had been entering into discussions with the respondent's representative since at least June 2016 about the replacement of the retaining wall. They arranged and paid for the brick wall to be stabilised with buttresses in December 2016. If the applicants sought to rely on the [DF Act] for orders that the respondent contribute to the cost of the work that they claimed to be fencing work, then it was open to them then to serve a notice under section 11. However, they elected to pursue an attempt to resolve their dispute without recourse to the [DF Act]. It was only after they became aware that the respondent had sold his land that they sought to invoke the provisions of the [DF Act]. The applicants acknowledge that the intent of the [DF Act] is to allow a land owner to give a notice of proposed fencing work to the adjoining land owner so that an opportunity for both parties to enter into discussion about the proposed fencing work may commence before an application is filed with the Local Court or the Tribunal…", and [40] of Taylor says:
"40. The evidence was that the dividing "structure" (the Tribunal did not consider the question of whether the structure was a dividing fence) was in a dilapidated and potentially dangerous condition. The evidence was not that the structure was damaged or destroyed in the sense that some external force had broken or eliminated the structure. The damaged or destroyed language used in s 9 of the DF Act is more apt to cover an event such as tree branch falling on to a fence and damaging it; or the fence being swept away by a flood or burnt out by a fire. In those cases the urgency is obvious. The section would not usually be applicable to a dividing structure that was slowly dilapidating even to the point of near failure. We do not consider that s 9 of the DF Act was available to Mr and Mrs Taylor.""
The evidence in this case shows distinct similarities to Taylor, and the reasoning of the tribunal is clear and compelling. The tribunal found that "urgent fence work" would apply when "some external force had broken or eliminated the structure. The damaged or destroyed language used in s 9 of the DF Act is more apt to cover an event such as tree branch falling on to a fence and damaging it; or the fence being swept away by a flood or burnt out by a fire. In those cases, the urgency is obvious." Conversely, "[t]he section would not usually be applicable to a dividing structure that was slowly dilapidating even to the point of near failure (Taylor, at [40])."
On this basis, the applicants' fencing work is not "urgent", regardless of Ms Wang's distress from finding a "child sized gap" upon her fence inspection on 21 May 2023 or concerns about the respondents' dogs.
Consequently, s 9 of the DFA does not apply, and, in the absence of evidence of a financial arrangement made with the respondents prior to the fencing works on 2 June 2023, or a valid Notice to Carry Out Fencing Order under s 11 of the DFA, no compensation for the applicants' wire mesh fence costs is payable. The wire mesh fencing materials shall remain the property of the applicants.
Section 12(j) of the Act considers "other matters as the Court considers relevant in the circumstances of the case".
The applicants introduced a NSW National Park Investigation at Q31. With regard to damage to trees in the national park behind the respondents' land, I consider that mistakes were made by Mr Geyer, but due process was followed, and the issue was resolved appropriately. I am not satisfied that this issue is relevant to damage or risk of injury due to the respondents' trees, to consideration of elements in s 12 of the Act, nor to orders that the Court may make.
Similarly, as the dispute became more protracted and intense, both parties cast aspersions on the others' integrity and character. In general, such submissions are of little relevance to the Court except in relation to the requirement of the applicants to make a reasonable effort to reach agreement with the trees' owners. Issues without relevance to the determination of the case included Ms Wang's allegations regarding Mr Geyer's timing of pruning of branches touching electricity service wires. The fact that I have not explicitly discussed such issues should not be construed as menot having considered them.
[2]
Action under s 13(2) of the DFA
On 30 November 2023, Registrar Frow granted the applicants' Notice of Motion to transfer the respondents' fencing application from Wollongong Local Court to the LEC, to be heard with the applicants' action under the Act. As s 10(2) of the Act was satisfied by the respondents' trees causing damage to the common fence and the applicants' retaining wall, the jurisdiction is engaged for the Court to decide the fencing issues, under s 13 of the DFA.
The applicants submitted that the current common boundary fence, cumulatively comprising the existing steel posts, residual timber, the attached steel mesh, and their Fejioa hedge, constituted a 'sufficient fence' under the requirements of the DFA.
The respondents claimed the existing timber fence is dilapidated and dispute that the steel posts, steel mesh fence, and the applicants' Fejioa hedge constitute a 'sufficient fence', due to inadequate privacy and security. They want a Colorbond replacement fence, preferably extended to near the parties' common southern corner.
Contrary to the applicants' submission, I am not satisfied that the current fence is sufficient. I am persuaded by the respondents' argument in Mr Hanna's written submission, particularly the requirement under s 4 of the DFA, to consider all the circumstances of the case. Mr Hanna cited Ward v Herkelman [2023] NSWCATCD 146, which considered s 4 of the DFA; at [36].
In the case before me, relevant s 4 considerations were: a) the dilapidated condition of the hardwood on the existing dividing fence, c) that privacy provided by the existing dividing fence was inadequate d) my agreement that a wire mesh fence is not generally used for side boundaries in the locality, e) Mr Geyer cited the RFS Planning for Bushfire Protection guide, adopted by Council, which states: "However, in circumstances where the fence is within 6 m of a building or in areas of BAL 29 or greater, they should be made of non-combustible material only", f) Mr Geyer referenced "Fences in bush fire prone areas shall be of a metal or masonry construction only", from pp 12, item 13 of Wollongong DCP.
The respondents noted a preference for maximum privacy in recognition of the impacts of the dispute. Considering the dispute's duration and intensity, this is reasonable and likely to benefit both parties. Much as I encourage the judicious use of hedges for screening, one must be mindful of the vulnerability of longer-term plantings to pests, diseases, and the vagaries of weather under the influence of climate change. For example, the applicants' Feijoa trees are members of the plant family, Myrtaceae. An exotic disease called MyrtIe rust, which entered Australia about 15 years ago, has impacted many native and exotic species in the Myrtaceae family, with some native species heavily impacted and now considered endangered. The future spread and impact of the disease remains unpredictable.
Based on these adduced considerations, I am satisfied a Colorbond fence is the optimal option, and, by the conclusion of the hearing, a broad agreement was reached between the parties for a replacement boundary fence. The existing fence shall be replaced with a 1.8 m tall Colorbond fence, coloured 'Ironestone'. Considering that compensation for, and rectification of damage by the Oleander have been determined (above; at [47]-[49]), and will be at the respondents' expense, based on the analysis of 'Fence deterioration during both parties' occupation', (above; at [66]-[92]), the costs of the fence shall be shared equally between the parties, consistent with the default position under the DFA.
The existing galvanised steel posts shall be retained, except for approximately three posts which were levered out of alignment by the Oleander's crown and roots. Post replacement works shall be preceded by the location of underground services in the vicinity of each hole by BCE Spatial, presumably as a variation to the underground service location works to be undertaken with the Colorbond fence extension addressed below. These additional service location works shall be costed and quoted separately. Although the number of replacement fence posts is currently only an estimate, regardless of the final number of posts and price of these works and the additional works of BCE Spatial, the costs shall be borne by the respondents.
The 1.8 m tall 'Ironestone' Colorbond fence shall continue uninterrupted along the boundary and terminate in line with the front building alignment of the neighbouring dwelling to the east. For guidance, the applicants' survey showed the boundary meeting the centre of the respondents' electricity service pole at the street frontage and the setback from the pole to the fence termination point is about 3.5 m. The location of underground services along the boundary shall be determined by BCE Spatial, as agreed by the parties, prior to fence construction. At its southern end, the fence shall taper down from a height of 1.8 m to 1.2 m, in keeping with neighbouring fences and Council DCP guidelines. The costs of the fence shall be shared equally between the parties.
[3]
Conclusions
Some of the respondents' trees have damaged the applicants' retaining wall, the common boundary fence, and levered approximately three steel fence posts out of alignment. In the absence of intervention, trees are likely to cause further damage in the near future. This engaged s 10(2)(a) of the Act. Orders shall be made for the respondents to pay compensation to the applicants for the cost of retaining wall damage repair. The respondents, at their expense, shall have contractors replace the damaged fence posts, in accordance with the Quotation Description in Quotation: 291123 from Serrata Landscape Solutions, included at the back of the applicants' Claim Details.
Considering the analysis by Commissioner Fakes in Ness, I was not satisfied that the Oleander presented a genuine risk of injury to persons, nor that branches of the respondents' trees that previously contacted the respondents' electricity service wires presented risk to persons in the foreseeable future, as the branches had been pruned with sufficient wire clearance, and such pruning was likely to be repeated as required. Consequently, s 10(2)(b) of the Act was not satisfied. As only one of the three states of damage, or risk to persons, need be satisfied to engage the jurisdiction however, s 10(2) of the Act was engaged, and relevant s 12 elements were subsequently considered.
Orders will be made for removal of five trees in close proximity to the fence at the respondents' expense. The orders shall include poisoning of the Prunus sp. and Oleander, and, at least 14 days later, removal of Oleander roots from between the applicants' retaining wall and the boundary, and from the path of the fence.
The Act provides the Court with powers to resolve fence issues under the DFA and a Colorbond fence shall be ordered. The Court expects normal wear and tear to impact all structures. I am satisfied that natural weathering and fungal wood decay were the primary causes of the fence's deterioration. Actions or omissions of both parties also contributed to the fence's decline and had a relatively equivalent impact. Consequently, the fencing costs shall be apportioned equally between the parties, consistent with the default position under the DFA.
The applicants claim for compensation for the material and labour costs of wire mesh fencing was unsuccessful as the respondents were not notified of the impending fencing works and nor was a claim for payment made prior to the fencing works of 2 June 2023. Further, the fencing works were not urgent under s 9 of the DFA and, as the works were not urgent, there was no reasonable impediment to prevent the applicants serving a valid Notice to Carry Out Fencing Order on the respondents, under s 11 of the DFA.
Both parties proposed cost orders covering proceedings in both the LEC and the Wollongong Local Court. With respect to such claims, Commissioners do not have powers to order costs. Claims for items such as expert reports or legal fees require lodgement of a Notice of Motion with the Court, which is heard before a Registrar, or a Judge.
[4]
Orders
The Court orders that:
1. Within 7 days of the date of these orders, the respondents shall reimburse the applicants by electronic funds transfer (EFT), the sum of $1870.00, as compensation for the cost of repair works to the applicants' retaining wall per the quote of MDC Bricklaying Contractors Pty Ltd, dated 1 December 2023.
2. Within 50 days of the date of these orders, the respondents, at their expense, shall complete the removal of Tree's 1, 2, 9, 14, 17 (dead), and 18 (per Coulter report), to near ground level, and poison Tree's 1 and 18. The respondents shall contract Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances (the arborists), to undertake the tree removals and poisoning.
3. The respondents, at their expense, shall contract the arborists to prune dead, damaged, and stubbed branches, and branches likely to damage the fence in the near future from all remaining trees along the boundary, as required, in compliance with the Australian pruning standard, AS4373:2007 Pruning of amenity trees. The pruning shall be completed within 50 days of the date of these orders.
4. Within 70 days of the date of these orders, but at least 14 days after Tree's 1 and 18 were poisoned, the respondents, at their expense, shall stump grind Tree's 1, 2, and 18, using contractors with all appropriate insurance. The contractors shall remove roots from Tree 18 between the applicants' retaining wall and the boundary to a minimum depth of 200 mm and clear roots from the path of the fence. The respondents shall take all measures necessary to control and remove any and all regrowth from residual tree stumps.
5. The tree works in Order (2) shall be undertaken in compliance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
6. Within 90 days of these orders, the applicants shall remove all wire mesh fencing and fencing attachments from the existing common boundary fence.
7. The respondents, at their expense, shall employ a fencing contractor, licenced landscape gardener, or licenced builder, with all appropriate insurances, to replace damaged fence posts near Tree 18 within 90 days of the date of these orders, in accordance with the Quotation Description in Quotation: 291123 from Serrata Landscape Solutions. The respondents, at their expense, shall engage BCE Spatial to locate services in the vicinity of each replaced post, prior to any excavation. The respondents shall be responsible for any service relocation that may be required.
8. Within 90 days of these orders, the applicants and respondents shall equally share the costs of installing a Colorbond fence, coloured Ironstone, to the existing posts of the existing fence.
9. To give effect to Order 7 above:
1. The parties are to engage a suitably insured fencing contractor, licenced landscape gardener, or licenced builder, with the lowest quote from two (2) independent quotes submitted by the parties (one quote from each party) to install the new Colorbond dividing fence to the existing posts in the fenced section in a manner that complies with all applicable rules (including without limitation, the Safe work Australia General Guide for Working in the Vicinity of Overhead and Underground Electrical Lines).
2. The cost of installing a new dividing fence in the currently fenced section is to be paid for by the parties in equal shares.
3. The height of the dividing fence is to be 1.8m and the new fence is to have no aboveground components made of combustible materials (for example, pinewood timber sleepers as fence foot support to a Colorbond fence). The abovementioned heights and materials must comply with the NSW State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("the Codes SEPP") and the Planning for Bush Fire Protection Guide November 2019 by NSW Rural Fire Services ("the RFS Guide").
1. Within 90 days of these orders, the Applicants and Respondents are to install a Colorbond fence, coloured Ironstone, along the unfenced section of the common boundary line, in accordance with the boundary survey by JRK Surveys dated 23 November 2023, terminating in line with the front building alignment of adjacent dwellings, approximately 3.5 metres north of the parties' common southern corner.
2. To give effect to Order 10 above:
1. The parties are to engage a suitably insured fencing contractor, licenced landscape gardener, or licenced builder, with the lowest quote from two (2) independent quotes submitted by the parties (one quote from each party) to install the new Colorbond dividing fence in the currently unfenced section in a manner that complies with all applicable rules (including without limitation, the Safe work Australia General Guide for Working in the Vicinity of Overhead and Underground Electrical Lines).
2. The cost of installing a new dividing fence in the currently unfenced section is to be paid for by the parties in equal shares.
3. The height of the dividing fence is to be 1.8m (slopping down to 1.2m in height over the front set-back area towards the street), and the new fence is to have no aboveground components made of combustible materials (for example, pinewood timber sleepers as fence foot support to a Colorbond fence). The abovementioned heights and materials must comply with the NSW State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("the Codes SEPP") and the Planning for Bush Fire Protection Guide November 2019 by NSW Rural Fire Services ("the RFS Guide").
4. The parties are to engage BCE Spatial prior to any excavation and equally share the costs to determine the location of underground services along the southern section of the boundary line, where there is currently no fence.
5. If any of the Applicant's underground services impede the installation of the dividing fence, the Applicant will be solely responsible for redirecting those services to enable installation of the dividing fence, subject to Order 12 below.
6. If any of the Respondent's underground services impede the installation of the dividing fence, the Respondent will be solely responsible for redirecting those services to enable installation of the dividing fence, subject to Order 12 below.
1. In the event the costs to either the Applicants or Respondents for redirecting the underground services are excessive (ie. cost more than $3,500 each), either party may notify the other party that the current unfenced section is not to be fenced as per Order 10 above and are to approach the Court to vacate Order 10 above. In determining the abovementioned cost cap, each party must obtain and submit at least one (1) independent quote to the other party as evidence of genuine attempts to engage a contractor.
2. All quotes and works shall be completed during reasonable daytime working hours and both parties shall provide all reasonable access for insured contractors to undertake quotes, and for completion of all works, upon receipt of at least 48 hours' notice from the other party, by email.
3. Where orders have been made for costs to be shared equally between the parties, each party shall pay half the total cost of each shared element of the works directly to the chosen contractors within 14 days of receipt of itemised tax invoices.
[5]
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: 16 May 2024
[6]
(2) To give effect to Order 1 above, the parties agree as follows:
[7]
(a) The Respondents will be solely responsible for removal of the Oleander tree (T4).
(b) The Applicants will be solely responsible for removal of the wire mesh fence.
(c) To engage Gately Fencing to install the dividing fence, which includes the trimming and removal of trees in the path of the dividing fence.
(d) To engage BCE Spatial and equally share the costs to determine the location of underground services along the boundary line.
(e) If any of the Applicant's underground services impede the installation of the dividing fence, the Applicant will be solely responsible for redirecting those services to enable installation of the dividing fence, subject to Order 3 below.
(f) If any of the Respondent's underground services impede the installation of the dividing fence, the Respondent will be solely responsible for redirecting those services to enable installation of the dividing fence, subject to Order 3 below.
(g) In the event the costs to either the Applicants or Respondents for redirecting the underground services are excessive (ie. cost more than $3,500 each), either party may notify the other party that installation of the new fence is not to be carried out as per Order 7 above and are to approach the Court to vacate Order 7 above. In determining the abovementioned cost cap, each party must obtain and submit at least one (1) independent quote to the other party as evidence of genuine attempts to engage a contractor.
(h) The colour of the dividing fence is to be Ironstone.
[8]
(3) In the event the costs to either the Applicants or Respondents for redirecting the underground services are excessive (ie. cost more than $3,500 each), either party may notify the other party that only the current unfenced section is not to be fenced as per Order 1 above. In determining the abovementioned cost cap, each party must obtain and submit three (3) independent quotes to the other party as evidence of genuine attempts to engage a contractor.
[9]
(4) Following Order 2 above, the Respondents must attend to payment of the Quote of MDC Bricklaying Contractors Pty Ltd dated 1 December 2023 for repair works to the Applicants' retaining wall.
[10]
(5) Ongoing Maintenance - the Applicants will be solely responsible for trimming tree branches that overhang onto the Applicants' property and dispose of such trimmings responsibly in their own green waste bin. The Respondents will be solely responsible for trimming tree branches on the Respondents' property that encroach or may encroach on the newly installed dividing fence and dispose of such trimmings responsibly in their own green waste bin.
[11]
(6) The Applicants pay the Respondents costs of these proceedings and the Local Court proceedings.
[12]
Both parties submitted reports from suitably qualified and experienced arborists who acknowledged having read and agreeing to be bound by the Expert Witness Code of Conduct in s 7 of the Uniform Civil Procedures Rules 2005.
Mr Kenworthy of Sydney Landscape Consultants, who was contracted by the applicants, conducted inspections on 21 October 2023 and 27 November 2023. The Kenworthy report identified Callistemon viminalis, Leptospermum petersonii,Melaleuca sp., Nerium oleander (Oleander), and Prunus sp. amongst the respondents' trees. Mr Kenworthy inspected cracking in the applicants' low brick retaining wall parallel to their driveway and provided photographs of roots located under and around the wall damage. He included a scaled close-up photograph of roots about 30 mm in diameter "traversing under the brick walling" and identified them as belonging to the Oleander. Mr Kenworthy also noted a distortion in the fence away from the Oleander where Oleander branches impacted the fence. He recommended removal of the Oleander tree and removal of trunks and branches of other trees likely to contact and damage the fence, along with replanting.
Mr Kenworthy observed that the existing timber fence was" in a poor state" with palings that were missing, displaced, and of uneven heights. He concluded the timber fence can be repaired or dismantled.
The respondents' report (Coulter report), procured from Mr Coulter of The Ents Tree Consultancy, was informed by inspections conducted on 2 November 2023 and 15 January 2024.
In his Discussion, at 4.3, Mr Coulter said, "The inspection of the fence revealed that the fence is old with rotting beams (horizontal wood pieces) that have collapsed in several places away from trees". "The fence is reported to be approximately 20 years old and had evidence of white rot (fungal decay), and different types of borer damage. The shading of the trees will allow for moisture to remain on the fencing structure due to shading. Both properties have vegetation" "that contribute to the favourable conditions for decay".
Mr Coulter assessed all 23 trees along the respondents' boundary and noted that, "the position of the trees/ shrubs on both sides of the fence appears to have little to no impact on the fence physically from their associated root systems". He added that Tree 18 (the Oleander tree) "may have roots contributing to damage, however no other trees or shrubs were identified as having roots or buttress roots damaging the fence (Discussion, at 4.4)".
Mr Coulter recommended removal of 4 trees that were contacting the fence (Coulter's Tree's 1, 9, 14 & 18) along with current and ongoing minor pruning of retained trees to prevent trees impacting the fence or the respondents' electricity service wire. The recommended tree removals included the two trees proposed for removal by the applicants (applicants' T1-Prunus and T4-Oleander). Overall, Mr Coulter considered the trees' interactions with the fence to be "minor, with tree 9 impacting on 2 palings, tree 14 impacting 1 paling and tree 18 causing bowing of a small section of the fence. He said, "the majority of the damage appeared to be due to natural weathering".
Mr Coulter noted (at 4.6) that "many of the respondents' trees had the potential to double in size over time". He encouraged monitoring and management of the trees and consideration of staged removal and replanting further from the fence.
[13]
With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
Section 8(1) of the Act requires that applicants must give at least 21 days' notice of the lodging of the application and the terms of any order sought to: (a) the owner of the land on which the tree is situated, (b) any relevant authority that would, in accordance with section 13, be entitled to appear in proceedings in relation to the tree, and (c) any other person the applicant has reason to believe will be affected by the order.
Mr Hanna claimed the applicants did not satisfy s 8(1)(a) of the Act because Ms Wang first emailed notice of trees in dispute and orders sought on 7 October 2023 and lodged the application under the Act, thirteen days later on 20 October 2023.
The satisfaction of the requirement at s 8(1) of the Act is addressed in Ball v Bahramali & Anor[2010] NSWLEC 1334 (Ball). Section 14C(1) was considered in Ball, where s 14C(1) is the same requirement in Pt 2A as s 8(1) in Pt 2 of the Act. Ball, at [38], says;
[14]
"With respect to Mr Gerathy's contentions concerning the notice given by the applicant and compliance with s 14C(1) the application was filed with the Court on 19 August. The date specified and stamped in the application by the Court regarding when the application had to be served on the respondents and other parties was 27 August. The matter was listed for a preliminary hearing on 21 September 2010. This information is recorded in the application; this was copied and made available to the applicant. Thus there was at least 21 days notice specified by the Court for the serving of documents and the preliminary hearing and therefore compliance with s 14C(1)."
[15]
In this case, the application was filed with the Court on 20 October 2023. The date specified and stamped in the application by the Court regarding when the application had to be served on the respondents and other parties was 31 October 2023. The matter was listed for a preliminary hearing on 21 November 2023. This information is recorded in the application; this was copied and made available to the applicant. Thus, there was at least 21 days notice specified by the Court for the serving of documents and the preliminary hearing and therefore compliance with s 8(1)(a) of the Act.
The Court has produced an Annotated Trees Act (annotated Act), available on the Court's website, which assists the interpretation of the Act by providing commentary about case law relevant to each section. With respect to s 8(1)(a) of the Act, at page 30, the annotated Act says; "It is clear that the 21-day period relates to notice of an application having been made not of an intention to lodge an application". The applicants also provided evidence of service of the application to Wollongong City Council (Council), which satisfied s 8(1)(b) of the Act.
Section 9 provides the Court with a wide range of powers to remedy, restrain, or prevent damage and/or injury to a person caused by a tree or trees on adjoining land.
Pursuant to s 10(1), the Court is obliged to consider the following matters:
[16]
(1) The Court must not make an order under this Part unless it is satisfied:
[17]
(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and
(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.
[18]
Mr Hanna submitted that the applicants failed to make reasonable efforts to reach agreement in accordance with s 10(1)(a) of the Act because, "[f]or some unknown reason, the Applicant (sic) felt the need to lodge the Tree Application without waiting for the Respondent (sic) to respond to the Applicant's (sic) emails. Irrespective of the Applicant (sic) serving a Notice to Carry Out Fencing Work, there was ample opportunity for the parties to engage in dialogue with a view to reaching an agreement".
Preston CJ provides extensive commentary on s 10(1)(a) of the Act in Robson v Leischke(2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson). At [194] - [195], his Honour says:
[19]
"194 The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application.
195 The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made "a reasonable effort to reach agreement" is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process."
[20]
The requirement at s 10(1)(a) of Pt 2 of the Act is the same as at s 14E(1)(a) of Pt 2A, which Commissioner Fakes discusses at [39]-[45] of Ball;
[21]
"39 Mr Gerathy's concerns about the 3 days between the applicant's son visiting the respondents and then filing the application in essence go towards s 14E(1)(a) and the making of a reasonable effort.
40 I agree that the effort to come to an agreement has been less than ideal. However, s 14E(1)(a) states that (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and
41 The making of orders presumes that the matter has been heard. Orders generally follow a judgment; even Consent Orders require a determination and a reason for agreement. The Act does not prescribe a time period for reaching an agreement or provide guidance on a reasonable effort.
42 The experience of the Court in these matters is that attempts by applicants to negotiate an agreement with their neighbour are often unsuccessful. This may be due to many factors including a flat refusal by a respondent to participate, ambit or unreasonable requests by an applicant, a history of previous disputes about other matters and cultural differences.
43 In a number of matters that have come before the Court, an applicant has made a single approach to a tree owner before the making of the application. There is a period of at least 21 days from the serving of the application until the preliminary/ directions hearing. The Court considers that this period is available for parties to negotiate an agreement. A number of disputes have settled before the directions hearing and the matter has been discontinued. Similarly, matters have been resolved and discontinued post directions hearing and prior to the date set for the final hearing.
44 The hearing also provides another opportunity for the parties to come to an agreement. In a number of matters, the parties have agreed on consent orders and the Court has concurred.
45 Therefore, while the initial approach was only some days prior to the filing of the application, there have been opportunities up until the end of the hearing for negotiations to occur. On the basis of this, I do not propose to dismiss the application on the basis on non-compliance with s 14E(1)(a)."
[22]
The Act does not prescribe applicants' conduct or the means of negotiation required to satisfy s 10(1)(a) of the Act, nor a deadline for the applicants' reasonable effort, provided it is made before the Court determines the application (Robson; at [194])
At question 32 of the Claim Details, the applicants provided evidence of initial fencing discussions and receipt of a fencing quote from the respondents in 2020, ongoing verbal and written negotiations through 2022 and 2023, and negotiations between the parties' legal representatives across the second half of 2023. The parties' engagement at the onsite hearing also brought partial agreement by consent.
The applicants declined an invitation to mediate, organised by the respondents through a Community Justice Centre (CJC), but there is no requirement that the applicants must mediate in response to the respondents' fencing notice. Ms Wang emailed the CJC Director an explanation and advised that, "In my professional and personal opinion, this matter is unsuitable for mediation (pp 131 MXW-1)".
Mr Hanna's submission that, "[f]or some unknown reason, the Applicants felt the need to lodge the Tree Application without waiting for the Respondents to respond to the Applicants' emails", may be somewhat disingenuous as Ms Wang clearly communicated with Mr Hanna's staff that the applicants wanted to lodge their 'Trees' application with the Court before the respondents' amended Notice to Carry Out Fencing Order of 22 September 2023 became valid, after 30 days after lodgement.
Regardless that they are currently in deep dispute, the parties have communicated and negotiated about the trees and fence for over two years. Based on the history informing the dispute and other adduced evidence, both parties have invested considerable sustained efforts towards reaching agreement, more than is necessarily required. Consequently, I am satisfied the applicants have made a reasonable effort to reach agreement with the owners of the land on which the trees are situated, such that s 10(1)(a) of the Act is engaged.
The next major test that is posed, by s 10(2) of the Act, states:
[23]
(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:
[24]
(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or
(b) is likely to cause injury to any person
[25]
If the jurisdictional test in s 10(2) is satisfied, s 9 of the Act empowers the Court to make any order it sees fit to remedy, restrain, or prevent damage to property or injury to persons. If orders are to be made, the Court must consider a number of discretionary matters in s 12 of the Act.
[26]
I was satisfied that some of the respondents' trees had damaged the fence, particularly a large Oleander (T4 in Application), the base of which encroached across the common boundary. I was also satisfied that the Oleander had damaged the applicants' low brick retaining wall as I observed a causal link between roots and retaining wall damage, both on site and in Mr Kenworthy's photographs. I was satisfied that the roots emanated from the Oleander and that the pattern of cracking along the retaining wall's mortar was consistent with wall damage due to uplift. Consequently, s 10(2)(a) of the Act was engaged.
I was also satisfied that approximately three steel fence posts had been levered out of alignment by the Oleander's crown and roots.
Tree 1 and (Mr Coulter's) Tree 9 and Tree 14, were pressing against the fence or in close proximity. Without intervention, they were likely to damage the fence in the near future. Tree 1 was an old Prunus tree growing against the northern end of the fence. It had been reduced to a low stump but still appeared to have potential for regrowth and fence damage. Tree 9 was a vigorous Syzygium paniculata (Lilly Pilly) with potential for marked growth in trunk girth while Tree 14 was a small Leptospermum petersonii (Lemon Scented Tea Tree) which may only cause minor damage as it was small and suppressed by neighbouring trees, but was in poor condition and in the path of the fence.
In a guidance decision published in Yang v Scerri[2007] NSWLEC 592 (Yang), in relation to damage, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination. I am satisfied that (Mr Coulter's) Tree's 1, 9, and 14 were likely to cause damage in the near future, thus also engaging s 10(2)(a) of the Act.
Mr Kenworthy measured Tree 2 as 8-10 cm from the fence and recommended removal due to such close proximity. He speculated that trunk movement in heavy winds could cause fence damage but acknowledged there was no wind during his inspections. In his report, at 4.6, Mr Coulter said, "Many of the trees have the potential to double in size in this situation". While I am not satisfied that much trunk movement of Tree 2 is likely, I do accept that it is not yet mature, and its trunk is likely to thicken towards the boundary.
Paragraph 14 of Yang begins:
[27]
"Ordinarily, the near future would involve a time period extending from the date of determination of the application to 12 months. After 12 months, it would be difficult to describe a period as being "in the near future" or being close in time to the date of determination of the application. We say "ordinarily" because there may be, in the particular circumstances of the case, reason to adopt a longer period than 12 months."
[28]
Given Tree 2's close proximity to the fence, I am satisfied that future fence damage is likely as a result of the tree's thickening trunk. While I am not convinced that such damage is necessarily likely in the ensuing 12 months, it would be unreasonable in this protracted, intense dispute to leave an obvious vector of likely future fence damage unresolved. This would also be contrary to the overriding purpose under s 56 of the Civil Procedure Act2005 to facilitate the just, quick, and cheap resolution of the real issues in civil proceedings. On this basis, I am satisfied that likely future damage by Tree 2 engaged s 10(2)(a) of the Act.
[29]
The leaves and other parts of Oleander are toxic to humans if ingested and Ms Wang claimed that poisoning of her children from ingesting parts of the Oleander presented a genuine risk. The respondents submitted Ness v Morris & anor[2014] NSWLEC 1063 (Ness), which included a literature review of two peer reviewed scientific journal papers on the toxicity of Oleanders.
A 2010 paper, considered the superior of the two, recorded no paediatric deaths due to Nerium oleander. The conclusion drawn from the papers was that the risk of injury from ingestion of Nerium oleander is negligible. A fact sheet from Westmead Children's Hospital includes Nerium in the same category of toxic plants as Agapanthus, Cycads, Frangipani and Grevillea - all species that grow commonly in suburban gardens. At [13] of Ness, the 2010 paper concluded that "Nerium oleander leaves have a strong bitter taste; therefore, children rarely eat large quantities", and at [21], Fakes C said: "In regard to the scientific review papers discussed above, the plant is toxic but the reported incidence of poisoning due to Nerium oleander is extremely low." I have reached a similar conclusion in this situation and consequently consider the risk of poisoning due to Nerium oleander to be extremely low, such that this element of the application is refused.
The applicants submitted that branches of five of the respondents' trees came in contact with the respondents' electricity service wires and thus posed a risk of injury to a person. Though electricity service wires are insulated, abrasion by branches can damage the wires' casing and indirectly present a risk of fire or electrocution, but this is rare and usually involves firm, persistent contact from branches on wires that are vulnerable to deterioration or cracks due to aging. In this case, however, the respondents and/or their employed contractors had recently pruned the branches to clear branch contact with the service wires. From my ground-based inspection at the hearing, the wires appeared relatively new and unaffected by previous branch contact.
The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou[2011] NSWLEC 29. At [62] Craig J states in part, "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...". The subject trees are sufficiently mature that regrowth is likely to extend relatively slowly, and the wires are not in proximity of either parties dwelling or back yards. Genuine risk in such circumstances is merely a "theoretical possibility".
Ms Wang reported Mr Geyer to Endeavour Energy for previous non-compliance of vegetation clearance. Mr Geyer is now aware of the legislative requirement to maintain vegetation clearance from service wires. In this context, I am not satisfied that a recurrence of service wire contact by the respondents' tree branches is likely. Therefore, I am not satisfied that contact between the respondents' trees and their service wires presents a genuine risk to a person in the foreseeable future.
[30]
With s 10(2)(a) engaged, in contemplating orders, the Court is required to consider relevant factors in s 12 of the Act, as follows:
The respondents' trees are located close to the common boundary, with three trees impacting the fence and two trees likely to impact the fence in the near future (s 12(a)).
In the absence of s 6 of the Act, depending on the works proposed, interference with the respondents' trees may require separate approval under the Environmental Planning and Assessment Act 1979, as administered by Council under their 'Preservation and Management of Trees and Vegetation', in the DCP (s 12(b)).
The respondents' trees are mainly hardy natives that are generally tolerant of required pruning. Many trees along the boundary exhibited signs of past pruning of branches that had grown into or towards the fence. The pruning was generally of poor quality, and some appeared to have been undertaken with an axe. The Court's orders shall include repruning of relevant stubbed branches to their branch collars along with pruning of other branches that may impact the replacement fence in the near future. Such works shall be completed in accordance with AS4373:2007 Pruning of amenity trees (s 12(b2)).
The stumps of the Prunus sp. and Oleander trees require poisoning before stump grinding to minimise the likelihood of regrowth from basal suckers. This applies particularly to the Oleander, which is resilient and difficult to kill and remove. As a consequence, orders for the Oleander will include removal of roots between the applicants' retaining wall and the boundary to a minimum depth of 200 mm and clearance of roots from the path of the fence. (s 12(b2)).
The trees contribute to the respondents' privacy, to their landscaping and garden design, and would offer protection from wind and sun. Especially when aggregated as a group and considered in context of neighbouring bushland, the trees contribute to the local ecosystem and biodiversity. Paradoxically, photographs 8 and 9 on pp 16 of the Kenworthy report exhibited ecosystem and biodiversity benefits from the row of trees in flower, yet in his report, at 8.12, Mr Kenworthy said the trees do not have "any biodiversity value". These photographs displayed no damage from high overhanging branches but highlighted the important contribution of the trees to the respondents' privacy by limiting oversight from the applicants' first floor windows (ss 12(b3) and (d)).
Section 12 (h)(i) covers "anything, other than the tree, that has contributed, or is contributing, to any (such) damage or likelihood of damage" to the applicants' property, "including any act or omission by the applicant and the impact of any trees owned by the applicant". At Question 31, under, "any other matters that you consider are relevant for the Court to be aware of in the circumstances of the case", the applicants detailed the 'History of tree and dividing fence dispute', the analysis of which is relevant to inform apportionment of costs of a replacement fence, should it be ordered and/or compensation for fence damage not yet considered, should it be appropriate.
[31]
Fence deterioration during both parties' occupation
[32]
The applicants claimed that the fence was in good working condition in 2018 upon the respondents' occupation but, as well as damage due to the respondents' trees, the respondents' acts and omissions since 2018 caused the fence to deteriorate significantly. The alleged acts and omissions included: "refusing to rectify encroaching vegetation, not performing adequate maintenance or repair of the fence, not providing the Applicants with safe access for adequate maintenance or repair, and permanently affixing removable fence toppers to the fence without the Applicants' consent and interfering with the Applicants' maintenance (Claim Details, pp 20)". The applicants noted that "proper maintenance of the existing timber fence" could only be done from the respondents' property as the palings were affixed on the respondents' side.
The Court considers that a certain amount of wear and tear is expected to arise with any structure over time and accounts for this when determining the relative extent to which the respondents' trees may or may not have caused alleged damage. Mr Kenworthy observed that the existing timber fence was" in a poor state". The respondents attributed the fence's deterioration to natural weathering. Mr Coulter said the fence had "evidence of white rot (fungal decay), and different types of borer damage" and "[t]he majority of the damage appeared to be due to natural weathering".
Ms Wang based her argument of damaging fence impacts by the respondents, at least in part, on the superior condition of her other hardwood boundary fences, which she claimed were about the same age. The applicants submitted no evidence to substantiate this claim, however, and it is common for boundary fences to be replaced at different time, depending on respective neighbours' preferences. Ms Wang claimed that well maintained hardwood should last for at least 30 years, but many factors may contribute to the rate of timber deterioration, not least the species and grade of timber and the quality of its seasoning, most of which is mixed and variable.
Mr Coulter noted that the respondents' trees dripping on the fence may have contributed to decay, but the long-range photograph from 4 February 2018, at pp 19 of MXW-1, showed that the applicants' property at that time and for many years prior, had a large Eucalyptus tree growing in the backyard, not far from the common boundary. Based on the appearance and colour of its distinctive rough, spiralled bark, this tree was probably a Eucalyptus microcorys (Tallowood), which was also likely to shade the common boundary fence and may have overhung it.
Ms Wang said palings initially detached at the fence's southern end and she blamed the respondents "refusing (refused) to rectify encroaching vegetation". In her 2023 affidavit, at para 48 - 50, Ms Wang said that "on or about 3 June 2020", she observed that palings had come off the fence in "the vicinity of a thick undergrowth of Fishbone Ferns" on the respondents' land, "approximately 5 metres long and 75 centimetres along a section of the timber fence from the Oleander tree towards the direction of the street".
Based on photograph T10-D5 - 1 of 2 in the Claim Details, stamped as 3 June 2020, the rails at the southern end of the fence, though clear of vegetation, were sagging and decayed, and distinctly deteriorated. This loss of timber strength appeared to be due to fungal decay under the influence of gravity, rather than human intervention. Ms Wang said she repaired the damage at the fence's southern end around 24 August 2020 and subsequently observed the respondents "removed fallen palings rendering simple repair difficult." The respondents first requested fence replacement in August 2020.
At para 51 of her 2023 affidavit, Ms Wang said: "Sometime before 22 February 2023, I observed that the Fishbone Fern Undergrowth was removed but the fence's bottom rail affected by the Fishbone Fern Undergrowth had come off, rendering simple repair difficult." In her affidavit of 22 January 2024, at para 14, Ms Geyer noted clearing the ferns by hand in 2021, "and (I) did not cause any damage to the dividing fence".
The following email from Ms Wang to Mr Geyer on 22 February 2023 is relevant:
[33]
"Thank you, Andre. It's very helpful.
There's a legal question here, ie does the development guide apply to existing structures and repairs? If it does, all timber fences in the area will need to be demolished and rectified. It's a point of particular interest for me as I have hardwood timber fences on all sides. I would appreciate that you and Ash can understand my insistence on legal clarity is coming from a good place.
The definition of repair vs new development is a point of legal interpretation. I think "repair" vs "new development" will be construed with underlying facts by court.
Factually, there are 1-2 sections that are beyond simple repair (ie simple maintenance of palings in the case of timber fence), due to rots of bottom beam by dense fern vegetable on (your) side for years. Previous owner of (your property) did not clean the vegetable to allow for repair. I was very pleased that you and Ash cleared the ferns being such good neighbours, so thank you.
Some sections have various tree encroachment that the previous owner did nothing about for years. Trimming of these trees will allow replacement of palings in these cases. However, I noticed the temporary fence extensions we put on in some sections for privacy purposes a few years ago were somehow screwed onto the palings, rendering repairs difficult.
I recognise the lack of repair was largely due to previous owner's neglect and reluctance to provide access for repairs. Over the years, we've tried to patch up palings from our side where we can.
Where repairs are permitted without obstruction and done in a timely manner, the fences are in."
[34]
At para 4 of the email, Ms Wang acknowledged that, "Previous owner of (your property) did not clean the vegetable to allow for repair. I was very pleased that you and Ash cleared the ferns being such good neighbours, so thank you." Further, paling damage at the fence's southern end may be deemed less significant than similar fence damage adjacent the parties' back yards as the fence's southern end was inconspicuous from the parties' dwellings and not relevant for security of either parties' children or dogs.
The timber rails in a section of fence adjacent to the Oleander tree had been subject to sufficient force from the Oleander that a parallel section of both rails had been warped into the shape of half a sine curve. Rails are usually attached together along the length of a fence. When these fence rails were previously attached, forces that caused such distortion may have been referred along the fence's rails and impacted nearby sections, such as the nearby area at the southern end of the fence where the bottom rail detached from the post. Stretching, twisting, and cracking of timber is likely to create conditions conducive to accelerated wood decay due to increased opportunity for spores from fungal fruiting bodies to penetrate cracks and gain purchase within the wood, rather than only on outer surfaces.
Ms Wang's allegation of fence deterioration due to the respondents "not performing adequate maintenance or repair of the fence" is difficult to assess. Available photographs showed that the fence appeared entire in 2018 but it had sagging rails and palings missing at its southern end in 2020. The respondents claimed that their lack of reattachment of palings was due to the decay in the rails and palings, and that the timber was insufficiently sound to hold nails or screws in place, particularly more recently. Though it lacked a date stamp, the respondents submitted a useful close-up photograph of nails and screws in decayed timber at the northern end of the fence, and during my inspection, the northern end was where the fungal decay was more widespread and advanced, especially on the upper rails and the top of palings.
There were various rails that displayed sufficiently advanced wood decay that their structural integrity was compromised and many locations where the rails were too decayed to maintain paling attachment. The applicants appeared to imply that the respondents' nonattachment and alleged removal of palings was done to wilfully compromise the timber fence but there was no evidence to suggest that the respondents stole or secreted palings to reduce the fence's utility, nor of the applicants requesting to be provided with such palings by the respondents so they could alternatively try to attach the palings to their side of the timber rails.
At para 5 of the email transcript at [72], Ms Wang said: "Some sections have various tree encroachment that the previous owner did nothing about for years" and at para 6, "I recognise the lack of repair was largely due to previous owner's neglect and reluctance to provide access for repairs. Over the years, we've tried to patch up palings from our side where we can." Until 24 May 2023, when Mr Geyer's requested the use of non-combustible materials, there was no evidence indicating any restraint on the applicants from reattaching palings to their side of the fence.
In the context of a protracted dispute, I do not consider the respondents "not providing the Applicants with safe access for adequate maintenance or repair" is a reasonable claim by the applicants. Though communication between the parties appeared civil and willing, particularly until recently, from the respondents' initial fencing request in 2020, the parties' preferences were polarised. There are many reasonable reasons why one may deny access to one's property, and I am not satisfied that the respondents' refusal to allow the applicants access to undertake maintenance should necessarily be construed as the respondents obstructing such maintenance.
"Permanently affixing removable fence toppers to the fence without the Applicants' consent and interfering with the Applicants' maintenance" is the final claim. The photograph from 4 February 2018, at pp 19 of MXW-1, displayed the removable fence toppers, which were located north of the centre of the fence and extended about 600 mm above the top of the fence over a distance of about 15 m. The fence toppers were constructed of horizontal strips of timber stacked tightly to form a solid screen and were attached to about 13 fence palings above the top rail with short vertical stakes, at intervals of about 1.2 m. In the photograph, the fence toppers appeared in pristine condition, absent of bleaching or weathering and thus were likely recently installed. They provided privacy for both parties as the applicants' raised rear balcony and the respondents' living areas aligned where they faced the common boundary.
A photograph at pp 99 of MXW-1, stamped 8 December 2018, displayed fence toppers on a section of the fence about 7.5 m long. The photographer appeared to be about 7 m from the fence. The applicants' hedge of Feijoa trees growing parallel to the common fence were then about 1 m tall, yet to contribute to useful privacy. In both this fence sub-section and the more distant perspective in the photograph from 4 February 2018, the fence looked functional with all palings in place and at a fairly uniform height, but the photographs were taken too far from the fence to provide sufficient detail to gauge the fence's structural integrity.
The removable fence toppers had been in situ for over five years. Mr Kenworthy described them as "an extension of smaller screening light weight wood, in a dilapidated state, above the existing fence". Based on my site inspection, photographs 4 - 6, and 10 of the Kenworthy report, and a photograph at pp 100 of MXW-1, it appears that the removable fence toppers, over the 5-year period of connection to the top of about 13 palings, had flexed and levered the top of the fence and contributed to damage and deterioration of the fence's timber across the toppers' length of about 15 m.
The close-up photograph at pp 100 of MXW-1 showed a vertical topper connector that had snapped the majority of the paling to which it is connected. The photograph also showed a fence topper leaning towards the respondents' property at an angle of about 40 degrees from vertical, necessarily exerting considerable bending force on the top of the fence. Photographs 4 and 5 (left and right) of the Kenworthy report show the fence topper leaning towards the respondents' property and broken and decayed palings where the vertical stakes should connect. Photograph 10, another close up, displayed extensive fungal decay and complete timber deterioration on rails and palings below the fence topper.
As to Mr Geyer, "permanently affixing removable fence toppers to the fence without the Applicants' consent", from the photographs, it appears that Mr Geyer has used roofing screws to connect a similar vertical timber stake as used by the applicants onto the fence and the fence topper in an attempt to straighten up the leaning "dilapidated" fence topper. While it would have been courteous for Mr Geyer to notify the applicants first, I see no malice in Mr Geyer undertaking fence maintenance on the shared boundary fence to prevent the applicants' deteriorating topper from falling onto his land.
Regarding the claim of interference with the Applicants' maintenance, if this means the aforementioned vertical timber stakes that Mr Geyer screwed into the fence topper, the fence topper appeared to have been in a deteriorated condition for some time and detached from the fence. Given that the applicants had not rectified the fence toppers over a sustained period, it was reasonable that Mr Geyer did so. At para 6 of her email at [82], Ms Wang said, "Over the years, we've tried to patch up palings from our side where we can." Although the applicants were unable to access the respondents' property for fence maintenance, the applicants had every opportunity to conduct fence maintenance, including attachment of palings on their side of the fence. The applicants were free to choose the extent to which they undertook maintenance from their side, and I am not satisfied that "proper" maintenance could only be undertaken from the respondents' land. Therefore, I am not satisfied that the respondents interfered with the applicants' fence maintenance to any material degree.
Mr Coulter considered the trees' interactions with the fence to be "minor, with Tree 9 impacting on 2 palings, Tree 14 impacting 1 paling and Tree 18 causing bowing of a small section of the fence. Mr Kenworthy noted broken palings where pruned branch stubs pointed towards the fence but from the photographs, the palings appeared damaged mainly above the top rail, with the remaining section of paling mainly still in place. There may have been other branches, since pruned, that damaged the fence in the past, but significant damage was not evident near pruned branch stubs at the hearing or from the applicants' evidence. Photographs in the Claim Details showed Tree 1 with extensive foliage impacting the fence, but even in this area of the fence, there was no significant damage.
The Oleander damage to the applicants' retaining wall, the fence posts, and the fence have been addressed. Orders shall be made for the respondents to remove the Oleander, repair damaged fence posts, and compensate the applicants for retaining wall damage.
I am satisfied that the primary cause of the fence's deterioration is natural weathering over time featuring extensive fungal wood decay. In her email at [72], Ms Wang noted inadequate vegetation and fence maintenance by the prior owners of the respondents' property as another cause.
The respondents' trees have damaged palings, and the presence of branches impacting, and growing near the fence, may have obstructed maintenance. The Oleander probably cracked nearby rails, but this is speculative and Oleander damage has been addressed and will be compensated. A dog owned by the respondents apparently entered the applicants' back yard on one or two occasions but evidence before the Court suggested these instances were resolved without negative consequences. The applicants have expressed annoyance and frustration and blamed fence deterioration on the respondents' alleged poor conduct, but the applicants suffered no financial loss due to the respondents, other than for damage that has already been addressed.
Further, the applicants had apparently not considered the potential damaging impacts of the fence topper, protruding above the fence. The fence topper is akin to an impermeable sail of about 9 square m that would have been buffeted by winds since early 2018, likely bending the top of the fence over its 15 m length and probably levering and loosening nails and damaging palings.
Just as rain would drip from the trees onto the fence, rain would run down the fence toppers directly onto palings and top rails, which, as shown in Mr Kenworthy's photograph 10, was where decay appeared most marked. Decay is likely to progress more rapidly during sustained rainfall, as experienced in Sydney from 2020 - 2022, particularly 2020, when the annual rainfall record was exceeded. The borers and insects noted by Mr Coulter are not related to the trees or vegetation. Rather, they are larvae of beetles or moths, and often ants, that occupy and preferentially consume wood that has been broken down by wood decay fungus. I saw no evidence of termite activity.
Had the fence timber been relatively new, the respondents' branches may not have damaged palings, and the fence toppers' impact may have been negligible, but by 2018, the fence was already long established. Though the fence appeared from a distance in 2018 to be entire and its timber sufficiently intact to maintain attachment of palings, based on the arboricultural expertise I bring to the Court and on submitted photographs showing the extent and pattern of fungal decay and timber deterioration in the ensuing years, I am satisfied that wood decay fungus was established in the timber in 2018 and that timber deterioration has accelerated since.
Consequently, I am satisfied that both parties' actions or omissions have also contributed to the fence's decline and that the impact of each parties' contributions appear to roughly balance out. Even if the fence was in reasonable working order in 2018, it is now significantly deteriorated and in need of replacement, and, in this location, replacement fences require non-combustible material. On this basis, no additional compensation for damage is payable and should a replacement fence be ordered, the costs of its construction shall be apportioned equally between the parties.
[35]
The applicants claimed $4,992.50 compensation from the respondents under the Act, for the cost of labour and materials for urgent fencing works and this may be considered under s 12 (h)(i) of the Act. Ms Wang also made a compensation claim under s 9 of the DFA, thus I shall consider both Acts. In her 2024 affidavit, at para 26 b), Ms Wang said:
[36]
"I am entitled to claim at least half of the cost for urgent fencing works, which is a claim under Section 9 of the NSW Dividing Fences Act. I am potentially entitled to claim from Respondents a higher proportion of the cost of the urgent fencing works due to Respondents' trees, dogs, acts, and omissions contributing to the damage."
[37]
As noted above at [12]-[13], on 18 May 2023, Ms Wang emailed Mr Geyer and requested his agreement to undertake "spot repairs" on the fence. On 20 May 2023, Mr Geyer confirmed by email that, "Spot repairs are fine".
In her 2023 affidavit, at para 79, Ms Wang said:
[38]
"On 21 May 2023, I walked behind the Feijoa hedge to inspect the existing timber fence and observed a child-sized gap in the existing timber fence behind the hedge", and at para 80, "I was concerned because our children and our dogs were able to fit through the large gap in the fence or other dogs may enter our backyard and attack our children."
[39]
In their Claim Details, the applicants provided copies of paid invoices from Wire Mesh World, which showed 31.2 m of wire mesh purchased by Ms Wang on 23 May 2023 at a cost of $1247.50 and a further purchase of 21.6 m of wire mesh on 24 May 2023, costing $745.00.
On 24 May 2023, Mr Geyer requested the respondents use "non-combustible materials in the repairs" and Ms Wang agreed.
The applicants contracted Serrata Landscapes to attach 1.8 m tall rigid rectangular steel mesh to the entire fence and the works were undertaken on 2 June 2023. During the works, Mr Geyer visited the respondents, but the subsequent conversation content is contested, including the time of the visit which Mr Geyer said was 10am and Ms Wang said was 1pm. In her 2023 affidavit, at para 83, Ms Wang said the conversation with Andre was, "to the following effect":
[40]
"He said: "The wire mesh you put up is perfect, no issue. I was just wondering why the wire mesh on the swimming pool side is higher than the timber fence."
I said: "It is 1.8 metres from ground level of my side. My ground level is higher you're your ground level I will plant some hedges, maybe climbing hedges, to give us both privacy".
He said: "All good.""
[41]
Alternatively, in his affidavit, at para 31, Mr Geyer claimed the conversation was, "to the following effect":
[42]
"AG: This is not what we agreed.
MW: The mesh fence is an adequate fence and is not combustible.
AG: This does not help the on-going negotiations.
MW: The mesh fence is appropriate and that they raised the height of the new fence above the existing fence at the pool to make it compliant.
AG: Can you please provide your lawyers contact details?
MW: I will send you the details."
[43]
The respondents rejected the applicants' compensation claim for urgent fencing works, and Mr Hanna submitted the following initial rationale:
Section 9(2) of the DFA states "if it is impracticable to serve a notice under s 11 in respect of a dividing fence...an adjoining owner may, without serving such a notice, carry out the urgent fencing work...". Mr Hanna said the Act does not define "urgent fencing work" but cited Woods v Sleeman[2020] NSWLEC 1513, which, at [30], says:
[44]
"The respondents have replaced or repaired damaged sections of fence at their expense. Their claim for the applicants to contribute to the cost of erecting the original fence and the cost of the recent fence rectification work is not one I would consider. The fence is on the common boundary. Unless there was some emergency requiring urgent fencing work, which there was not, the time for negotiating apportionment of fencing costs was prior to the works being done. The respondents took matters into their own hands, organising and paying for the fence...".
[45]
When the Court considers whether or not to make orders related to damage, 'Failure to give the tree owner an adequate opportunity to respond to the damage' may be taken into account under s 12 (h)(i) of the Act, if an applicant becomes aware of damage being caused to their property and repairs the damage without providing the tree owner any opportunity to assess the damage or to be consulted about the method and cost of repairs. This consideration is discussed in the annotated Act. In Turner v O'Donnell[2009] NSWLEC 1349, at [23], Fakes AC says:
[46]
"With respect to the compensation for damage, the applicant did not notify the respondent of the actual damage to the shirt or the spa cover and as such, denied the respondent the ability to take remedial or rectifying steps. As a result, the claim for compensation of $79.95 for the shirt and $875 for the spa cover is refused."
[47]
Though the circumstances are different, this failure to notify under s 12 (h)(i) of the Act has parallels to the applicants' actions, which comprised failing to notify the respondents of imminent fencing works that were contrary to the arrangement struck with Mr Geyer for "spot repairs" and involved a major change of the fencing brief. Regardless that Ms Wang may have discovered a "child sized gap" for the first time during her inspection of the fence on 21 May 2023, if Ms Wang's intention was for the respondents to share the cost of repairs, there was ample opportunity to discuss her plans and reach an agreement with the respondents, prior to proceeding with the purchase of fence materials or the commissioning of works. Child sized gaps could be secured with interim non-combustible solutions such as small fibre cement panels.
In her 2024 affidavit, at para 26d), Ms Wang claimed to have "used wire mesh panels instead of timber palings", "[a]s Andre opposed in-kind timber repairs and demanded different material", but evidence suggests Ms Wang's purchase and use of wire mesh for the entire fence was not in response to Mr Geyer's request for non-combustible material. Ms Wang's initial purchase from Wire mesh world included 31.2 m of wire mesh on 23 May 2023 while Mr Geyer's email request for non-combustible fence material was dated 24 May 2023.
It is axiomatic that the applicants' purchase of wire mesh on 23 and 24 May 2023, sufficient to cover the full fence length, betrayed an intention to do just that. Ms Wang's claim that difficulty attaching the wire mesh for individual spot repairs influenced the installation of wire mesh along the whole fence may thus be dismissed as a distraction. I am not satisfied that when the mesh was installed that the applicants intended to undertake "spot repairs", or that the 'average person on the street' would consider the installation of continuous mesh panels along the entire 53 m length of the dividing fence, as "spot repairs", and nor do I.
At para 27a) of her 2024 affidavit, Ms Wang claimed, "Andre's verbal agreement was confirmed shortly after the event in writing. In this regard, I refer to my Whatsapp message on page 106 of Exhibit MXW-1, which relevantly states "... I appreciate you come to us just now to have a chat and note your agreement to repair with mesh panel...". Andre's response was "... all good".
I am not satisfied that this quote excerpt submitted by Ms Wang is a genuine reflection of the message from which it is sourced. The majority of Ms Wang's Whatsapp message was quite personal and addressed multiple issues, none of which related to the respondents' authorisation of the mesh fence or the respondents contributing to the mesh fence's cost. As much of the content was relatively personal, I find it unnecessary to display the message verbatim, but a limited expansion of the message content is required:
[48]
"[2/6/2023, 2:11:51 pm] "Mina: Hi Andre, whilst I appreciate you come to us just now to have a chat and note your agreement to repair with mesh panel. As I said in the chat before, pls send your demands in letters to my letterbox. I will pass onto my lawyer............ I hope you appreciate the reason I need to outsource the communication to a lawyer. I find it extremely distressful to deal with this matter............. I hope when you've obtained your legal advice you will realise that I have not been unreasonable. Best wishes. Mina.
[2/6/2023, 2:15:48 pm] Andre Geyer: I totally get it, all good (Exhibit "MXW-1", pp 106)."
[49]
In the original message, there are 235 words between "mesh panel" at the end of Ms Wang's first sentence and Mr Geyer's response of, **"**I totally get it, all good". In this context, I am not satisfied that Mr Geyer's, "I totally get it, all good", is made in response to "(I) note your agreement to repair with mesh panel" from the first sentence of Ms Wang's message. Having read the message many times, I consistently gained the impression that Mr Geyer's reply is made as a display of empathy to Ms Wang's predicament, rather than endorsement or approval of the mesh panel fence.
Consequently, I am not satisfied that Mr Geyer (or Ms Geyer) had agreed to the applicants' wire mesh fence during the contested conversation of 2 June 2023 or in the Whatsapp exchange above. Even if the respondents had agreed, both parties' evidence showed that reimbursement was initially mentioned during a Whatsapp exchange with Ms Geyer on 22 June 2023, about 3 weeks after the fencing works, where Ms Wang said: "The current mesh panel fence is done with your consent. I have not claimed your share of the cost, but I reserve my legal right to do so..."
In her 2024 affidavit, at para 26a), Ms Wang said:
[50]
"I am not required under Section 9 of the NSW Dividing Fences Act 1991 to obtain prior agreement for urgent fencing works. The fencing work was urgent to prevent security and safety risk to my young children and dogs posed by various existing gaps and loose palings on the existing timber fence and the Respondents' dogs."
[51]
Mr Hanna submitted that the applicants' works were not urgent fencing works. He noted that the fence had been dilapidated since before 2020 and that fencing discussions between the parties had continued between 2020 and 2023, consistent with evidence provided by both parties. Mr Hanna cited Taylor v Joye[2018] NSWCATAP 309 (Taylor), the Background of which is displayed below:
[52]
"8. The parties were neighbours. There had been various discussions about replacing the dividing fence between them over the year preceding 11 July 2017. On that date, Mr Taylor sent an email to Mr Joye's solicitor seeking an agreement about contribution to the new fence. The solicitor wrote back saying he was seeking instructions and that Mr Taylor should not take any action. Mr Taylor followed up on a number of occasions without success. Upon learning that Mr Joye had placed his property on the market and had agreed a sale, Mr Taylor began proceedings in the Tribunal and without waiting for an order proceeded to get the work done.
9. The Taylors filed application COM 17/42631 on 5 October 2017. They sought orders requiring fencing work to be carried out, and an order determining the manner in which contributions for the fencing work was to be apportioned and other orders sought in an attached letter dated 4 October 2017. Those orders were that, in the event that the Tribunal determined that the appellants' email to the respondent's solicitor of 11 July 2017 did not constitute the notice required by s 11 of the DF Act:
[53]
• an order that the appellants could carry out the fencing work required to restore the dividing fence (in this respect the appellants referred to s 11 of the DF Act); and
• an order granting leave to serve a notice under the DF Act (in this respect the appellants referred to s 22 of the DF Act).
[54]
10. The hearing was held on 7 March 2018. The Decision records at [25] the appellants' concession that they had not served a notice that complied with the requirements of the DF Act. The Tribunal noted that, the appellants' concession that they had not served a notice pursuant to s 11 of the Act "[a]t first appearance . . . defeats their application": par [26]."
[55]
"At [28], the Tribunal referred at some length to the appellants' submissions in relation to s 9. The Tribunal concluded at [32] and [33]:
[56]
32. The Tribunal is not satisfied that the circumstances of the retaining wall damage required urgent fencing work notwithstanding the extent of the applicants' argument that it was. The Tribunal is also not satisfied that it was impracticable to serve a notice under section 11 in respect of the dividing fence.
33. As to the alleged urgency, the applicants had been entering into discussions with the respondent's representative since at least June 2016 about the replacement of the retaining wall. They arranged and paid for the brick wall to be stabilised with buttresses in December 2016. If the applicants sought to rely on the [DF Act] for orders that the respondent contribute to the cost of the work that they claimed to be fencing work, then it was open to them then to serve a notice under section 11. However, they elected to pursue an attempt to resolve their dispute without recourse to the [DF Act]. It was only after they became aware that the respondent had sold his land that they sought to invoke the provisions of the [DF Act]. The applicants acknowledge that the intent of the [DF Act] is to allow a land owner to give a notice of proposed fencing work to the adjoining land owner so that an opportunity for both parties to enter into discussion about the proposed fencing work may commence before an application is filed with the Local Court or the Tribunal...", and [40] of Taylor says:
[57]
"40. The evidence was that the dividing "structure" (the Tribunal did not consider the question of whether the structure was a dividing fence) was in a dilapidated and potentially dangerous condition. The evidence was not that the structure was damaged or destroyed in the sense that some external force had broken or eliminated the structure. The damaged or destroyed language used in s 9 of the DF Act is more apt to cover an event such as tree branch falling on to a fence and damaging it; or the fence being swept away by a flood or burnt out by a fire. In those cases the urgency is obvious. The section would not usually be applicable to a dividing structure that was slowly dilapidating even to the point of near failure. We do not consider that s 9 of the DF Act was available to Mr and Mrs Taylor.""
[58]
The evidence in this case shows distinct similarities to Taylor, and the reasoning of the tribunal is clear and compelling. The tribunal found that "urgent fence work" would apply when "some external force had broken or eliminated the structure. The damaged or destroyed language used in s 9 of the DF Act is more apt to cover an event such as tree branch falling on to a fence and damaging it; or the fence being swept away by a flood or burnt out by a fire. In those cases, the urgency is obvious." Conversely, "[t]he section would not usually be applicable to a dividing structure that was slowly dilapidating even to the point of near failure (Taylor, at [40])."
On this basis, the applicants' fencing work is not "urgent", regardless of Ms Wang's distress from finding a "child sized gap" upon her fence inspection on 21 May 2023 or concerns about the respondents' dogs.
Consequently, s 9 of the DFA does not apply, and, in the absence of evidence of a financial arrangement made with the respondents prior to the fencing works on 2 June 2023, or a valid Notice to Carry Out Fencing Order under s 11 of the DFA, no compensation for the applicants' wire mesh fence costs is payable. The wire mesh fencing materials shall remain the property of the applicants.
Section 12(j) of the Act considers "other matters as the Court considers relevant in the circumstances of the case".
The applicants introduced a NSW National Park Investigation at Q31. With regard to damage to trees in the national park behind the respondents' land, I consider that mistakes were made by Mr Geyer, but due process was followed, and the issue was resolved appropriately. I am not satisfied that this issue is relevant to damage or risk of injury due to the respondents' trees, to consideration of elements in s 12 of the Act, nor to orders that the Court may make.
Similarly, as the dispute became more protracted and intense, both parties cast aspersions on the others' integrity and character. In general, such submissions are of little relevance to the Court except in relation to the requirement of the applicants to make a reasonable effort to reach agreement with the trees' owners. Issues without relevance to the determination of the case included Ms Wang's allegations regarding Mr Geyer's timing of pruning of branches touching electricity service wires. The fact that I have not explicitly discussed such issues should not be construed as menot having considered them.
[59]
On 30 November 2023, Registrar Frow granted the applicants' Notice of Motion to transfer the respondents' fencing application from Wollongong Local Court to the LEC, to be heard with the applicants' action under the Act. As s 10(2) of the Act was satisfied by the respondents' trees causing damage to the common fence and the applicants' retaining wall, the jurisdiction is engaged for the Court to decide the fencing issues, under s 13 of the DFA.
The applicants submitted that the current common boundary fence, cumulatively comprising the existing steel posts, residual timber, the attached steel mesh, and their Fejioa hedge, constituted a 'sufficient fence' under the requirements of the DFA.
The respondents claimed the existing timber fence is dilapidated and dispute that the steel posts, steel mesh fence, and the applicants' Fejioa hedge constitute a 'sufficient fence', due to inadequate privacy and security. They want a Colorbond replacement fence, preferably extended to near the parties' common southern corner.
Contrary to the applicants' submission, I am not satisfied that the current fence is sufficient. I am persuaded by the respondents' argument in Mr Hanna's written submission, particularly the requirement under s 4 of the DFA, to consider all the circumstances of the case. Mr Hanna cited Ward v Herkelman[2023] NSWCATCD 146, which considered s 4 of the DFA; at [36].
In the case before me, relevant s 4 considerations were: a) the dilapidated condition of the hardwood on the existing dividing fence, c) that privacy provided by the existing dividing fence was inadequate d) my agreement that a wire mesh fence is not generally used for side boundaries in the locality, e) Mr Geyer cited the RFS Planning for Bushfire Protection guide, adopted by Council, which states: "However, in circumstances where the fence is within 6 m of a building or in areas of BAL 29 or greater, they should be made of non-combustible material only", f) Mr Geyer referenced "Fences in bush fire prone areas shall be of a metal or masonry construction only", from pp 12, item 13 of Wollongong DCP.
The respondents noted a preference for maximum privacy in recognition of the impacts of the dispute. Considering the dispute's duration and intensity, this is reasonable and likely to benefit both parties. Much as I encourage the judicious use of hedges for screening, one must be mindful of the vulnerability of longer-term plantings to pests, diseases, and the vagaries of weather under the influence of climate change. For example, the applicants' Feijoa trees are members of the plant family, Myrtaceae. An exotic disease called MyrtIe rust, which entered Australia about 15 years ago, has impacted many native and exotic species in the Myrtaceae family, with some native species heavily impacted and now considered endangered. The future spread and impact of the disease remains unpredictable.
Based on these adduced considerations, I am satisfied a Colorbond fence is the optimal option, and, by the conclusion of the hearing, a broad agreement was reached between the parties for a replacement boundary fence. The existing fence shall be replaced with a 1.8 m tall Colorbond fence, coloured 'Ironestone'. Considering that compensation for, and rectification of damage by the Oleander have been determined (above; at [47]-[49]), and will be at the respondents' expense, based on the analysis of 'Fence deterioration during both parties' occupation', (above; at [66]-[92]), the costs of the fence shall be shared equally between the parties, consistent with the default position under the DFA.
The existing galvanised steel posts shall be retained, except for approximately three posts which were levered out of alignment by the Oleander's crown and roots. Post replacement works shall be preceded by the location of underground services in the vicinity of each hole by BCE Spatial, presumably as a variation to the underground service location works to be undertaken with the Colorbond fence extension addressed below. These additional service location works shall be costed and quoted separately. Although the number of replacement fence posts is currently only an estimate, regardless of the final number of posts and price of these works and the additional works of BCE Spatial, the costs shall be borne by the respondents.
The 1.8 m tall 'Ironestone' Colorbond fence shall continue uninterrupted along the boundary and terminate in line with the front building alignment of the neighbouring dwelling to the east. For guidance, the applicants' survey showed the boundary meeting the centre of the respondents' electricity service pole at the street frontage and the setback from the pole to the fence termination point is about 3.5 m. The location of underground services along the boundary shall be determined by BCE Spatial, as agreed by the parties, prior to fence construction. At its southern end, the fence shall taper down from a height of 1.8 m to 1.2 m, in keeping with neighbouring fences and Council DCP guidelines. The costs of the fence shall be shared equally between the parties.
[60]
Some of the respondents' trees have damaged the applicants' retaining wall, the common boundary fence, and levered approximately three steel fence posts out of alignment. In the absence of intervention, trees are likely to cause further damage in the near future. This engaged s 10(2)(a) of the Act. Orders shall be made for the respondents to pay compensation to the applicants for the cost of retaining wall damage repair. The respondents, at their expense, shall have contractors replace the damaged fence posts, in accordance with the Quotation Description in Quotation: 291123 from Serrata Landscape Solutions, included at the back of the applicants' Claim Details.
Considering the analysis by Commissioner Fakes in Ness, I was not satisfied that the Oleander presented a genuine risk of injury to persons, nor that branches of the respondents' trees that previously contacted the respondents' electricity service wires presented risk to persons in the foreseeable future, as the branches had been pruned with sufficient wire clearance, and such pruning was likely to be repeated as required. Consequently, s 10(2)(b) of the Act was not satisfied. As only one of the three states of damage, or risk to persons, need be satisfied to engage the jurisdiction however, s 10(2) of the Act was engaged, and relevant s 12 elements were subsequently considered.
Orders will be made for removal of five trees in close proximity to the fence at the respondents' expense. The orders shall include poisoning of the Prunus sp. and Oleander, and, at least 14 days later, removal of Oleander roots from between the applicants' retaining wall and the boundary, and from the path of the fence.
The Act provides the Court with powers to resolve fence issues under the DFA and a Colorbond fence shall be ordered. The Court expects normal wear and tear to impact all structures. I am satisfied that natural weathering and fungal wood decay were the primary causes of the fence's deterioration. Actions or omissions of both parties also contributed to the fence's decline and had a relatively equivalent impact. Consequently, the fencing costs shall be apportioned equally between the parties, consistent with the default position under the DFA.
The applicants claim for compensation for the material and labour costs of wire mesh fencing was unsuccessful as the respondents were not notified of the impending fencing works and nor was a claim for payment made prior to the fencing works of 2 June 2023. Further, the fencing works were not urgent under s 9 of the DFA and, as the works were not urgent, there was no reasonable impediment to prevent the applicants serving a valid Notice to Carry Out Fencing Order on the respondents, under s 11 of the DFA.
Both parties proposed cost orders covering proceedings in both the LEC and the Wollongong Local Court. With respect to such claims, Commissioners do not have powers to order costs. Claims for items such as expert reports or legal fees require lodgement of a Notice of Motion with the Court, which is heard before a Registrar, or a Judge.
[61]
(1) Within 7 days of the date of these orders, the respondents shall reimburse the applicants by electronic funds transfer (EFT), the sum of $1870.00, as compensation for the cost of repair works to the applicants' retaining wall per the quote of MDC Bricklaying Contractors Pty Ltd, dated 1 December 2023.
(2) Within 50 days of the date of these orders, the respondents, at their expense, shall complete the removal of Tree's 1, 2, 9, 14, 17 (dead), and 18 (per Coulter report), to near ground level, and poison Tree's 1 and 18. The respondents shall contract Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances (the arborists), to undertake the tree removals and poisoning.
(3) The respondents, at their expense, shall contract the arborists to prune dead, damaged, and stubbed branches, and branches likely to damage the fence in the near future from all remaining trees along the boundary, as required, in compliance with the Australian pruning standard, AS4373:2007 Pruning of amenity trees. The pruning shall be completed within 50 days of the date of these orders.
(4) Within 70 days of the date of these orders, but at least 14 days after Tree's 1 and 18 were poisoned, the respondents, at their expense, shall stump grind Tree's 1, 2, and 18, using contractors with all appropriate insurance. The contractors shall remove roots from Tree 18 between the applicants' retaining wall and the boundary to a minimum depth of 200 mm and clear roots from the path of the fence. The respondents shall take all measures necessary to control and remove any and all regrowth from residual tree stumps.
(5) The tree works in Order (2) shall be undertaken in compliance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(6) Within 90 days of these orders, the applicants shall remove all wire mesh fencing and fencing attachments from the existing common boundary fence.
(7) The respondents, at their expense, shall employ a fencing contractor, licenced landscape gardener, or licenced builder, with all appropriate insurances, to replace damaged fence posts near Tree 18 within 90 days of the date of these orders, in accordance with the Quotation Description in Quotation: 291123 from Serrata Landscape Solutions. The respondents, at their expense, shall engage BCE Spatial to locate services in the vicinity of each replaced post, prior to any excavation. The respondents shall be responsible for any service relocation that may be required.
(8) Within 90 days of these orders, the applicants and respondents shall equally share the costs of installing a Colorbond fence, coloured Ironstone, to the existing posts of the existing fence.
(9) To give effect to Order 7 above:
(a) The parties are to engage a suitably insured fencing contractor, licenced landscape gardener, or licenced builder, with the lowest quote from two (2) independent quotes submitted by the parties (one quote from each party) to install the new Colorbond dividing fence to the existing posts in the fenced section in a manner that complies with all applicable rules (including without limitation, the Safe work Australia General Guide for Working in the Vicinity of Overhead and Underground Electrical Lines).
(b) The cost of installing a new dividing fence in the currently fenced section is to be paid for by the parties in equal shares.
(c) The height of the dividing fence is to be 1.8m and the new fence is to have no aboveground components made of combustible materials (for example, pinewood timber sleepers as fence foot support to a Colorbond fence). The abovementioned heights and materials must comply with the NSW State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("the Codes SEPP") and the Planning for Bush Fire Protection Guide November 2019 by NSW Rural Fire Services ("the RFS Guide").
(10) Within 90 days of these orders, the Applicants and Respondents are to install a Colorbond fence, coloured Ironstone, along the unfenced section of the common boundary line, in accordance with the boundary survey by JRK Surveys dated 23 November 2023, terminating in line with the front building alignment of adjacent dwellings, approximately 3.5 metres north of the parties' common southern corner.
(11) To give effect to Order 10 above:
(a) The parties are to engage a suitably insured fencing contractor, licenced landscape gardener, or licenced builder, with the lowest quote from two (2) independent quotes submitted by the parties (one quote from each party) to install the new Colorbond dividing fence in the currently unfenced section in a manner that complies with all applicable rules (including without limitation, the Safe work Australia General Guide for Working in the Vicinity of Overhead and Underground Electrical Lines).
(b) The cost of installing a new dividing fence in the currently unfenced section is to be paid for by the parties in equal shares.
(c) The height of the dividing fence is to be 1.8m (slopping down to 1.2m in height over the front set-back area towards the street), and the new fence is to have no aboveground components made of combustible materials (for example, pinewood timber sleepers as fence foot support to a Colorbond fence). The abovementioned heights and materials must comply with the NSW State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("the Codes SEPP") and the Planning for Bush Fire Protection Guide November 2019 by NSW Rural Fire Services ("the RFS Guide").
(d) The parties are to engage BCE Spatial prior to any excavation and equally share the costs to determine the location of underground services along the southern section of the boundary line, where there is currently no fence.
(e) If any of the Applicant's underground services impede the installation of the dividing fence, the Applicant will be solely responsible for redirecting those services to enable installation of the dividing fence, subject to Order 12 below.
(f) If any of the Respondent's underground services impede the installation of the dividing fence, the Respondent will be solely responsible for redirecting those services to enable installation of the dividing fence, subject to Order 12 below.
(12) In the event the costs to either the Applicants or Respondents for redirecting the underground services are excessive (ie. cost more than $3,500 each), either party may notify the other party that the current unfenced section is not to be fenced as per Order 10 above and are to approach the Court to vacate Order 10 above. In determining the abovementioned cost cap, each party must obtain and submit at least one (1) independent quote to the other party as evidence of genuine attempts to engage a contractor.
(13) All quotes and works shall be completed during reasonable daytime working hours and both parties shall provide all reasonable access for insured contractors to undertake quotes, and for completion of all works, upon receipt of at least 48 hours' notice from the other party, by email.
(14) Where orders have been made for costs to be shared equally between the parties, each party shall pay half the total cost of each shared element of the works directly to the chosen contractors within 14 days of receipt of itemised tax invoices.
Parties
Applicant/Plaintiff:
Wang
Respondent/Defendant:
Geyer
Legislation Cited (6)
Procedure Act 2005
Fences Act 1991
Planning and Assessment Act 1979
Trees (Disputes between Neighbours) Act 2006
Uniform Civil Procedures Rules 2005
(Disputes Between Neighbours) Act 2006
Cases Cited (11)
Jurisdictional requirements - Part 2
With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
Section 8(1) of the Act requires that applicants must give at least 21 days' notice of the lodging of the application and the terms of any order sought to: (a) the owner of the land on which the tree is situated, (b) any relevant authority that would, in accordance with section 13, be entitled to appear in proceedings in relation to the tree, and (c) any other person the applicant has reason to believe will be affected by the order.
Mr Hanna claimed the applicants did not satisfy s 8(1)(a) of the Act because Ms Wang first emailed notice of trees in dispute and orders sought on 7 October 2023 and lodged the application under the Act, thirteen days later on 20 October 2023.
The satisfaction of the requirement at s 8(1) of the Act is addressed in Ball v Bahramali & Anor [2010] NSWLEC 1334 (Ball). Section 14C(1) was considered in Ball, where s 14C(1) is the same requirement in Pt 2A as s 8(1) in Pt 2 of the Act. Ball, at [38], says;
"With respect to Mr Gerathy's contentions concerning the notice given by the applicant and compliance with s 14C(1) the application was filed with the Court on 19 August. The date specified and stamped in the application by the Court regarding when the application had to be served on the respondents and other parties was 27 August. The matter was listed for a preliminary hearing on 21 September 2010. This information is recorded in the application; this was copied and made available to the applicant. Thus there was at least 21 days notice specified by the Court for the serving of documents and the preliminary hearing and therefore compliance with s 14C(1)."
In this case, the application was filed with the Court on 20 October 2023. The date specified and stamped in the application by the Court regarding when the application had to be served on the respondents and other parties was 31 October 2023. The matter was listed for a preliminary hearing on 21 November 2023. This information is recorded in the application; this was copied and made available to the applicant. Thus, there was at least 21 days notice specified by the Court for the serving of documents and the preliminary hearing and therefore compliance with s 8(1)(a) of the Act.
The Court has produced an Annotated Trees Act (annotated Act), available on the Court's website, which assists the interpretation of the Act by providing commentary about case law relevant to each section. With respect to s 8(1)(a) of the Act, at page 30, the annotated Act says; "It is clear that the 21-day period relates to notice of an application having been made not of an intention to lodge an application". The applicants also provided evidence of service of the application to Wollongong City Council (Council), which satisfied s 8(1)(b) of the Act.
Section 9 provides the Court with a wide range of powers to remedy, restrain, or prevent damage and/or injury to a person caused by a tree or trees on adjoining land.
Pursuant to s 10(1), the Court is obliged to consider the following matters:
(1) The Court must not make an order under this Part unless it is satisfied:
(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and
(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.
Mr Hanna submitted that the applicants failed to make reasonable efforts to reach agreement in accordance with s 10(1)(a) of the Act because, "[f]or some unknown reason, the Applicant (sic) felt the need to lodge the Tree Application without waiting for the Respondent (sic) to respond to the Applicant's (sic) emails. Irrespective of the Applicant (sic) serving a Notice to Carry Out Fencing Work, there was ample opportunity for the parties to engage in dialogue with a view to reaching an agreement".
Preston CJ provides extensive commentary on s 10(1)(a) of the Act in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson). At [194] - [195], his Honour says:
"194 The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application.
195 The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made "a reasonable effort to reach agreement" is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process."
The requirement at s 10(1)(a) of Pt 2 of the Act is the same as at s 14E(1)(a) of Pt 2A, which Commissioner Fakes discusses at [39]-[45] of Ball;
"39 Mr Gerathy's concerns about the 3 days between the applicant's son visiting the respondents and then filing the application in essence go towards s 14E(1)(a) and the making of a reasonable effort.
40 I agree that the effort to come to an agreement has been less than ideal. However, s 14E(1)(a) states that (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and
41 The making of orders presumes that the matter has been heard. Orders generally follow a judgment; even Consent Orders require a determination and a reason for agreement. The Act does not prescribe a time period for reaching an agreement or provide guidance on a reasonable effort.
42 The experience of the Court in these matters is that attempts by applicants to negotiate an agreement with their neighbour are often unsuccessful. This may be due to many factors including a flat refusal by a respondent to participate, ambit or unreasonable requests by an applicant, a history of previous disputes about other matters and cultural differences.
43 In a number of matters that have come before the Court, an applicant has made a single approach to a tree owner before the making of the application. There is a period of at least 21 days from the serving of the application until the preliminary/ directions hearing. The Court considers that this period is available for parties to negotiate an agreement. A number of disputes have settled before the directions hearing and the matter has been discontinued. Similarly, matters have been resolved and discontinued post directions hearing and prior to the date set for the final hearing.
44 The hearing also provides another opportunity for the parties to come to an agreement. In a number of matters, the parties have agreed on consent orders and the Court has concurred.
45 Therefore, while the initial approach was only some days prior to the filing of the application, there have been opportunities up until the end of the hearing for negotiations to occur. On the basis of this, I do not propose to dismiss the application on the basis on non-compliance with s 14E(1)(a)."
The Act does not prescribe applicants' conduct or the means of negotiation required to satisfy s 10(1)(a) of the Act, nor a deadline for the applicants' reasonable effort, provided it is made before the Court determines the application (Robson; at [194])
At question 32 of the Claim Details, the applicants provided evidence of initial fencing discussions and receipt of a fencing quote from the respondents in 2020, ongoing verbal and written negotiations through 2022 and 2023, and negotiations between the parties' legal representatives across the second half of 2023. The parties' engagement at the onsite hearing also brought partial agreement by consent.
The applicants declined an invitation to mediate, organised by the respondents through a Community Justice Centre (CJC), but there is no requirement that the applicants must mediate in response to the respondents' fencing notice. Ms Wang emailed the CJC Director an explanation and advised that, "In my professional and personal opinion, this matter is unsuitable for mediation (pp 131 MXW-1)".
Mr Hanna's submission that, "[f]or some unknown reason, the Applicants felt the need to lodge the Tree Application without waiting for the Respondents to respond to the Applicants' emails", may be somewhat disingenuous as Ms Wang clearly communicated with Mr Hanna's staff that the applicants wanted to lodge their 'Trees' application with the Court before the respondents' amended Notice to Carry Out Fencing Order of 22 September 2023 became valid, after 30 days after lodgement.
Regardless that they are currently in deep dispute, the parties have communicated and negotiated about the trees and fence for over two years. Based on the history informing the dispute and other adduced evidence, both parties have invested considerable sustained efforts towards reaching agreement, more than is necessarily required. Consequently, I am satisfied the applicants have made a reasonable effort to reach agreement with the owners of the land on which the trees are situated, such that s 10(1)(a) of the Act is engaged.
The next major test that is posed, by s 10(2) of the Act, states:
(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:
(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or
(b) is likely to cause injury to any person
If the jurisdictional test in s 10(2) is satisfied, s 9 of the Act empowers the Court to make any order it sees fit to remedy, restrain, or prevent damage to property or injury to persons. If orders are to be made, the Court must consider a number of discretionary matters in s 12 of the Act.
Damage caused by the trees
I was satisfied that some of the respondents' trees had damaged the fence, particularly a large Oleander (T4 in Application), the base of which encroached across the common boundary. I was also satisfied that the Oleander had damaged the applicants' low brick retaining wall as I observed a causal link between roots and retaining wall damage, both on site and in Mr Kenworthy's photographs. I was satisfied that the roots emanated from the Oleander and that the pattern of cracking along the retaining wall's mortar was consistent with wall damage due to uplift. Consequently, s 10(2)(a) of the Act was engaged.
I was also satisfied that approximately three steel fence posts had been levered out of alignment by the Oleander's crown and roots.
Tree 1 and (Mr Coulter's) Tree 9 and Tree 14, were pressing against the fence or in close proximity. Without intervention, they were likely to damage the fence in the near future. Tree 1 was an old Prunus tree growing against the northern end of the fence. It had been reduced to a low stump but still appeared to have potential for regrowth and fence damage. Tree 9 was a vigorous Syzygium paniculata (Lilly Pilly) with potential for marked growth in trunk girth while Tree 14 was a small Leptospermum petersonii (Lemon Scented Tea Tree) which may only cause minor damage as it was small and suppressed by neighbouring trees, but was in poor condition and in the path of the fence.
In a guidance decision published in Yang v Scerri [2007] NSWLEC 592 (Yang), in relation to damage, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination. I am satisfied that (Mr Coulter's) Tree's 1, 9, and 14 were likely to cause damage in the near future, thus also engaging s 10(2)(a) of the Act.
Mr Kenworthy measured Tree 2 as 8-10 cm from the fence and recommended removal due to such close proximity. He speculated that trunk movement in heavy winds could cause fence damage but acknowledged there was no wind during his inspections. In his report, at 4.6, Mr Coulter said, "Many of the trees have the potential to double in size in this situation". While I am not satisfied that much trunk movement of Tree 2 is likely, I do accept that it is not yet mature, and its trunk is likely to thicken towards the boundary.
Paragraph 14 of Yang begins:
"Ordinarily, the near future would involve a time period extending from the date of determination of the application to 12 months. After 12 months, it would be difficult to describe a period as being "in the near future" or being close in time to the date of determination of the application. We say "ordinarily" because there may be, in the particular circumstances of the case, reason to adopt a longer period than 12 months."
Risk of injury to a person
The leaves and other parts of Oleander are toxic to humans if ingested and Ms Wang claimed that poisoning of her children from ingesting parts of the Oleander presented a genuine risk. The respondents submitted Ness v Morris & anor [2014] NSWLEC 1063 (Ness), which included a literature review of two peer reviewed scientific journal papers on the toxicity of Oleanders.
A 2010 paper, considered the superior of the two, recorded no paediatric deaths due to Nerium oleander. The conclusion drawn from the papers was that the risk of injury from ingestion of Nerium oleander is negligible. A fact sheet from Westmead Children's Hospital includes Nerium in the same category of toxic plants as Agapanthus, Cycads, Frangipani and Grevillea - all species that grow commonly in suburban gardens. At [13] of Ness, the 2010 paper concluded that "Nerium oleander leaves have a strong bitter taste; therefore, children rarely eat large quantities", and at [21], Fakes C said: "In regard to the scientific review papers discussed above, the plant is toxic but the reported incidence of poisoning due to Nerium oleander is extremely low." I have reached a similar conclusion in this situation and consequently consider the risk of poisoning due to Nerium oleander to be extremely low, such that this element of the application is refused.
The applicants submitted that branches of five of the respondents' trees came in contact with the respondents' electricity service wires and thus posed a risk of injury to a person. Though electricity service wires are insulated, abrasion by branches can damage the wires' casing and indirectly present a risk of fire or electrocution, but this is rare and usually involves firm, persistent contact from branches on wires that are vulnerable to deterioration or cracks due to aging. In this case, however, the respondents and/or their employed contractors had recently pruned the branches to clear branch contact with the service wires. From my ground-based inspection at the hearing, the wires appeared relatively new and unaffected by previous branch contact.
The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part, "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...". The subject trees are sufficiently mature that regrowth is likely to extend relatively slowly, and the wires are not in proximity of either parties dwelling or back yards. Genuine risk in such circumstances is merely a "theoretical possibility".
Ms Wang reported Mr Geyer to Endeavour Energy for previous non-compliance of vegetation clearance. Mr Geyer is now aware of the legislative requirement to maintain vegetation clearance from service wires. In this context, I am not satisfied that a recurrence of service wire contact by the respondents' tree branches is likely. Therefore, I am not satisfied that contact between the respondents' trees and their service wires presents a genuine risk to a person in the foreseeable future.
Urgent fencing works - who pays?
The applicants claimed $4,992.50 compensation from the respondents under the Act, for the cost of labour and materials for urgent fencing works and this may be considered under s 12 (h)(i) of the Act. Ms Wang also made a compensation claim under s 9 of the DFA, thus I shall consider both Acts. In her 2024 affidavit, at para 26 b), Ms Wang said:
"I am entitled to claim at least half of the cost for urgent fencing works, which is a claim under Section 9 of the NSW Dividing Fences Act. I am potentially entitled to claim from Respondents a higher proportion of the cost of the urgent fencing works due to Respondents' trees, dogs, acts, and omissions contributing to the damage."
As noted above at [12]-[13], on 18 May 2023, Ms Wang emailed Mr Geyer and requested his agreement to undertake "spot repairs" on the fence. On 20 May 2023, Mr Geyer confirmed by email that, "Spot repairs are fine".
In her 2023 affidavit, at para 79, Ms Wang said:
"On 21 May 2023, I walked behind the Feijoa hedge to inspect the existing timber fence and observed a child-sized gap in the existing timber fence behind the hedge", and at para 80, "I was concerned because our children and our dogs were able to fit through the large gap in the fence or other dogs may enter our backyard and attack our children."
In their Claim Details, the applicants provided copies of paid invoices from Wire Mesh World, which showed 31.2 m of wire mesh purchased by Ms Wang on 23 May 2023 at a cost of $1247.50 and a further purchase of 21.6 m of wire mesh on 24 May 2023, costing $745.00.
On 24 May 2023, Mr Geyer requested the respondents use "non-combustible materials in the repairs" and Ms Wang agreed.
The applicants contracted Serrata Landscapes to attach 1.8 m tall rigid rectangular steel mesh to the entire fence and the works were undertaken on 2 June 2023. During the works, Mr Geyer visited the respondents, but the subsequent conversation content is contested, including the time of the visit which Mr Geyer said was 10am and Ms Wang said was 1pm. In her 2023 affidavit, at para 83, Ms Wang said the conversation with Andre was, "to the following effect":
"He said: "The wire mesh you put up is perfect, no issue. I was just wondering why the wire mesh on the swimming pool side is higher than the timber fence."
I said: "It is 1.8 metres from ground level of my side. My ground level is higher you're your ground level I will plant some hedges, maybe climbing hedges, to give us both privacy".
He said: "All good.""
Alternatively, in his affidavit, at para 31, Mr Geyer claimed the conversation was, "to the following effect":
"AG: This is not what we agreed.
MW: The mesh fence is an adequate fence and is not combustible.
AG: This does not help the on-going negotiations.
MW: The mesh fence is appropriate and that they raised the height of the new fence above the existing fence at the pool to make it compliant.
AG: Can you please provide your lawyers contact details?
MW: I will send you the details."
Given Tree 2's close proximity to the fence, I am satisfied that future fence damage is likely as a result of the tree's thickening trunk. While I am not convinced that such damage is necessarily likely in the ensuing 12 months, it would be unreasonable in this protracted, intense dispute to leave an obvious vector of likely future fence damage unresolved. This would also be contrary to the overriding purpose under s 56 of the Civil Procedure Act 2005 to facilitate the just, quick, and cheap resolution of the real issues in civil proceedings. On this basis, I am satisfied that likely future damage by Tree 2 engaged s 10(2)(a) of the Act.
The respondents rejected the applicants' compensation claim for urgent fencing works, and Mr Hanna submitted the following initial rationale:
Section 9(2) of the DFA states "if it is impracticable to serve a notice under s 11 in respect of a dividing fence…an adjoining owner may, without serving such a notice, carry out the urgent fencing work…". Mr Hanna said the Act does not define "urgent fencing work" but cited Woods v Sleeman [2020] NSWLEC 1513, which, at [30], says:
"The respondents have replaced or repaired damaged sections of fence at their expense. Their claim for the applicants to contribute to the cost of erecting the original fence and the cost of the recent fence rectification work is not one I would consider. The fence is on the common boundary. Unless there was some emergency requiring urgent fencing work, which there was not, the time for negotiating apportionment of fencing costs was prior to the works being done. The respondents took matters into their own hands, organising and paying for the fence…".
When the Court considers whether or not to make orders related to damage, 'Failure to give the tree owner an adequate opportunity to respond to the damage' may be taken into account under s 12 (h)(i) of the Act, if an applicant becomes aware of damage being caused to their property and repairs the damage without providing the tree owner any opportunity to assess the damage or to be consulted about the method and cost of repairs. This consideration is discussed in the annotated Act. In Turner v O'Donnell [2009] NSWLEC 1349, at [23], Fakes AC says:
"With respect to the compensation for damage, the applicant did not notify the respondent of the actual damage to the shirt or the spa cover and as such, denied the respondent the ability to take remedial or rectifying steps. As a result, the claim for compensation of $79.95 for the shirt and $875 for the spa cover is refused."
Though the circumstances are different, this failure to notify under s 12 (h)(i) of the Act has parallels to the applicants' actions, which comprised failing to notify the respondents of imminent fencing works that were contrary to the arrangement struck with Mr Geyer for "spot repairs" and involved a major change of the fencing brief. Regardless that Ms Wang may have discovered a "child sized gap" for the first time during her inspection of the fence on 21 May 2023, if Ms Wang's intention was for the respondents to share the cost of repairs, there was ample opportunity to discuss her plans and reach an agreement with the respondents, prior to proceeding with the purchase of fence materials or the commissioning of works. Child sized gaps could be secured with interim non-combustible solutions such as small fibre cement panels.
In her 2024 affidavit, at para 26d), Ms Wang claimed to have "used wire mesh panels instead of timber palings", "[a]s Andre opposed in-kind timber repairs and demanded different material", but evidence suggests Ms Wang's purchase and use of wire mesh for the entire fence was not in response to Mr Geyer's request for non-combustible material. Ms Wang's initial purchase from Wire mesh world included 31.2 m of wire mesh on 23 May 2023 while Mr Geyer's email request for non-combustible fence material was dated 24 May 2023.
It is axiomatic that the applicants' purchase of wire mesh on 23 and 24 May 2023, sufficient to cover the full fence length, betrayed an intention to do just that. Ms Wang's claim that difficulty attaching the wire mesh for individual spot repairs influenced the installation of wire mesh along the whole fence may thus be dismissed as a distraction. I am not satisfied that when the mesh was installed that the applicants intended to undertake "spot repairs", or that the 'average person on the street' would consider the installation of continuous mesh panels along the entire 53 m length of the dividing fence, as "spot repairs", and nor do I.
At para 27a) of her 2024 affidavit, Ms Wang claimed, "Andre's verbal agreement was confirmed shortly after the event in writing. In this regard, I refer to my Whatsapp message on page 106 of Exhibit MXW-1, which relevantly states "… I appreciate you come to us just now to have a chat and note your agreement to repair with mesh panel…". Andre's response was "… all good".
I am not satisfied that this quote excerpt submitted by Ms Wang is a genuine reflection of the message from which it is sourced. The majority of Ms Wang's Whatsapp message was quite personal and addressed multiple issues, none of which related to the respondents' authorisation of the mesh fence or the respondents contributing to the mesh fence's cost. As much of the content was relatively personal, I find it unnecessary to display the message verbatim, but a limited expansion of the message content is required:
"[2/6/2023, 2:11:51 pm] "Mina: Hi Andre, whilst I appreciate you come to us just now to have a chat and note your agreement to repair with mesh panel. As I said in the chat before, pls send your demands in letters to my letterbox. I will pass onto my lawyer………… I hope you appreciate the reason I need to outsource the communication to a lawyer. I find it extremely distressful to deal with this matter…………. I hope when you've obtained your legal advice you will realise that I have not been unreasonable. Best wishes. Mina.
[2/6/2023, 2:15:48 pm] Andre Geyer: I totally get it, all good (Exhibit "MXW-1", pp 106)."
In the original message, there are 235 words between "mesh panel" at the end of Ms Wang's first sentence and Mr Geyer's response of, "I totally get it, all good". In this context, I am not satisfied that Mr Geyer's, "I totally get it, all good", is made in response to "(I) note your agreement to repair with mesh panel" from the first sentence of Ms Wang's message. Having read the message many times, I consistently gained the impression that Mr Geyer's reply is made as a display of empathy to Ms Wang's predicament, rather than endorsement or approval of the mesh panel fence.
Consequently, I am not satisfied that Mr Geyer (or Ms Geyer) had agreed to the applicants' wire mesh fence during the contested conversation of 2 June 2023 or in the Whatsapp exchange above. Even if the respondents had agreed, both parties' evidence showed that reimbursement was initially mentioned during a Whatsapp exchange with Ms Geyer on 22 June 2023, about 3 weeks after the fencing works, where Ms Wang said: "The current mesh panel fence is done with your consent. I have not claimed your share of the cost, but I reserve my legal right to do so…"
In her 2024 affidavit, at para 26a), Ms Wang said:
"I am not required under Section 9 of the NSW Dividing Fences Act 1991 to obtain prior agreement for urgent fencing works. The fencing work was urgent to prevent security and safety risk to my young children and dogs posed by various existing gaps and loose palings on the existing timber fence and the Respondents' dogs."
Mr Hanna submitted that the applicants' works were not urgent fencing works. He noted that the fence had been dilapidated since before 2020 and that fencing discussions between the parties had continued between 2020 and 2023, consistent with evidence provided by both parties. Mr Hanna cited Taylor v Joye [2018] NSWCATAP 309 (Taylor), the Background of which is displayed below: