Wijesena v Centex Sydney Pty Ltd [2025] NSWCATCD 193;

1. The respondent relied on the following documents which were admitted into evidence and marked as shown:

(a) Bundle of documents comprising 43 pages including the respondent's chronology and annexures - Exhibit A.

(b) Letter from the respondent to the Tribunal dated 18 July 2025 together with the attached dilapidation report dated 27 November 2024 - Exhibit B.

(c) Letter from the respondent to the Tribunal dated 5 September 2025 together with joint survey report dated 2 September 2025 signed by G J Frith, registered surveyor and Z T Wierzchowski , registered survey with the attached sketch plan - Exhibit C.

(d) Letter from the respondent to the Tribunal dated 1 October 2025 together with a marked-up version of the NSW Master Building Inspectors Report dated 12 June 2025 - Exhibit D.

1. Section 6 of the Dividing Fences Act provides:

6 General principle - liability for fencing work

(1) An adjoining owner is liable, in respect of adjoining lands where there is no sufficient dividing fence, to contribute to the carrying out of fencing work that results or would result in the provision of a dividing fence of a standard not greater than the standard for a sufficient dividing fence.

(2) This section applies whether or not a dividing fence already separates the adjoining lands.

(1) dividing fence as meaning a fence separating the land of adjoining owners, whether on the common boundary of adjoining lands or on a line other than the common boundary.

(2) fence as meaning:

a structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land, whether or not continuous or extending along the whole of the boundary separating the land of adjoining owners, and includes:

(a) any gate, cattlegrid or apparatus necessary for the operation of the fence, and

(b) any natural or artificial watercourse which separates the land of adjoining owners, and

(c) any foundation or support necessary for the support and maintenance of the fence,

but does not include a retaining wall (except as provided by paragraph (c)) or a wall which is part of a house, garage or other building.

(3) fencing work to include the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence and the planting, replanting and maintenance of a hedge or similar vegetative barrier.

1. Section 4 of the Act requires the Tribunal to make a determination as to what is a sufficient dividing fence. It provides:

4 Determination as to "sufficient dividing fence"

In any proceedings under this Act, the Local Court or the Civil and Administrative Tribunal is to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of this Act, including the following:

(a) the existing dividing fence (if any),

(b) the purposes for which the adjoining lands are used or intended to be used,

(c) the privacy or other concerns of the adjoining land owners,

(d) the kind of dividing fence usual in the locality,

(e) any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated,

(f) any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated,

(g) in the case of a dividing fence affecting land the subject of a lease under the Western Lands Act 1901, any order in force under section 18A of that Act immediately before the repeal of that Act.

1. The factors listed in section 4 are not exhaustive. The Tribunal must consider all the circumstances of the case when determining the standard for a sufficient dividing fence: Purcell v Chadwick [2018] NSWCATAP 250.
2. Section 11 of the Dividing Fences Act provides:

11 Notice to carry out fencing work

(1) An adjoining owner may require the other adjoining owner to contribute, under this Act, to the carrying out of fencing work by serving a notice in writing to that effect on the other owner.

(2) The notice is to specify the following:

(a) the boundary line on which the fencing work is proposed to be carried out or, if it is impracticable to carry out fencing work on the common boundary of the adjoining lands, the line on which it is proposed to carry out the work,

(b) the type of fencing work proposed to be carried out,

(c) the estimated cost of the fencing work.

(3) The owner serving the notice may propose that the cost of the fencing work is to be borne otherwise than in equal proportions. In such a case, the notice is to state the proposed proportions.

(4) The description of land in a notice need not particularly define the land if it allows no reasonable doubt as to what land is referred to in the notice.

(5) An adjoining owner is not liable to contribute to the cost of any fencing work in respect of a dividing fence:

(a) carried out before a notice under this section is served on the adjoining owner (unless section 9 applies or the notice is served in accordance with section 22), or

(b) carried out after the service of the notice on the adjoining owner and before agreement is reached by the adjoining owners concerning the fencing work (including the contributions to be made in respect of the work) or before the matter has been determined by the Local Court or the Civil and Administrative Tribunal.

1. Section 12 of the Dividing Fences Act provides:

12 Procedure when agreement not reached

(1) Adjoining owners may attend a Community Justice Centre in an attempt to reach an agreement concerning the carrying out of fencing work (including the contributions to be made in respect of the work).

(2) If adjoining owners do not agree (within 1 month after one of them has served a notice under section 11) as to the fencing work to be carried out, either owner may apply to the Local Court or the Civil and Administrative Tribunal for an order determining the manner in which the fencing work (if any) is to be carried out.

1. Section 14 of the Dividing Fences Act provides [emphasis added]:

14 Orders as to fencing work

(1) The Local Court or the Civil and Administrative Tribunal may, in respect of an application under this Act, make an order determining any one or more of the following:

(a) the boundary or line on which the fencing work is to be carried out, whether or not that boundary or line is on the common boundary of the adjoining lands,

(b) the fencing work to be carried out (including the kind of dividing fence involved),

(c) the manner in which contributions for the fencing work are to be apportioned or re-apportioned or the amount that each adjoining owner is liable to pay for that work,

(d) which portion of the dividing fence is to be constructed or repaired by either owner,

(e) the time within which the fencing work is to be carried out,

(f) the amount of any compensation (in the form of an annual payment to either of the adjoining owners) in consideration of loss of occupation of any land,

(g) that, in the circumstances, no dividing fence is required in respect of all or part of the boundary of the adjoining lands.

(1A) . . .

(2) The occupation of land on either side of a dividing fence, as a result of an order determining that fencing work is to be carried out otherwise than on the common boundary of the adjoining lands, is not taken to be adverse possession as against the owner or to affect the title to or possession of the land, except for the purposes of this Act.

1. Section 14(1)(a), read with the definitions of "dividing fence" and "fence" in section 3, expressly allows for a determination that a dividing fence be erected otherwise than on the legal boundary between adjoining properties; and section 14(2) expressly provides that occupation of land on either side of a dividing fence, as a result of an order determining that the fence be erected otherwise than on the legal boundary, does not constitute adverse possession against the owner in whom title to occupied land resides: Eratt v Grills [2015] NSWSC 594 at [17].
2. The Dividing Fences Act does not specify the time limit for applications to be commenced in the Tribunal. Section 12(2) of the Dividing Fences Act provides, that if adjoining owners do not agree (within 1 month after one of them has served a notice under section 11) as to the fencing work to be carried out, either owner may apply to the Local Court or the Civil and Administrative Tribunal for an order determining the manner in which the fencing work (if any) is to be carried out.
3. Rule 23 (3)(b) of the Civil and Administrative Tribunal Rules 2015 (NSW) provides that applications must be lodged within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application.

1. Dr Wijesena says that notice under section 11 of the Dividing Fences Act was first served with the letter from Pezikean Legal to C & L Associates Solicitors dated 2 February 2025 (Exhibit 4).
2. The letter is marked "without prejudice". It is clear from the contents of the letter that it contains an offer in an attempt to negotiate a settlement of the dispute. Under the Evidence Act, 1995 (NSW), the letter would not be admissible in evidence in a court. However, section 38(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) provides that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself of any matter in such manner as it thinks fit, subject to the rules of natural justice.
3. Dr Wijesena says that the letter was sent from the applicants' solicitors to the respondents' solicitors. I accept this. The letter states:

We are instructed to make the following Offer to resolve the dispute between our clients and your client, Centex Pty Ltd:

(a) Within 5 days of the acceptance of this Offer, our clients will issue your client with the enclosed notice made under the dividing fences act 1991 (NSW) (Notice);

...

1. The letter attaches a notice to carry out fencing work that complies with section 11 of the Dividing Fences Act.
2. Notwithstanding the letter is marked "without prejudice" and notwithstanding the contents of the letter, having regard to section 38 of the NCAT Act and the guiding principle to be applied to practice and procedure of the Tribunal to facilitate the just, quick and cheap resolution of the real issues in the proceedings, I admit the letter from Pezikean Legal to C & L Associates Solicitors dated 2 February 2025 and the attached notice into evidence.
3. Based on the letter dated 2 February 2025, the attached notice and Dr Wijesena's statement that the letter and attached notice were sent to the respondent's solicitor, I am satisfied that a notice in accordance with section 11 of the Dividing Fences Act was served on the respondent on or about 2 February 2025.
4. It is now necessary to determine whether these proceedings have been commenced within time.
5. As indicated, section 12(2) of the Dividing Fences Act provides, that if adjoining owners do not agree (within 1 month after one of them has served a notice under section 11) as to the fencing work to be carried out, either owner may apply to the Civil and Administrative Tribunal for an order determining the manner in which the fencing work (if any) is to be carried out. Rule 23 (3)(b) of the Civil and Administrative Tribunal Rules provides that applications must be lodged within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application.
6. There is a statutory distinction between 1 month (referred to in section 12(2) of the Dividing Fences Act) and 28 days (referred to in rule 23(3)(b) of the Civil and Administrative Tribunal Rules).
7. Section 3(3) of the Interpretation Act 1987 (NSW) provides that the Dictionary in Schedule 4 defines certain terms used in Acts and instruments.
8. The Dictionary in Schedule 4 contains the following definitions:

calendar month means a period commencing at the beginning of a day of one of the 12 named months and ending -

(a) immediately before the beginning of the corresponding day of the next named month, or

(b) if there is no such corresponding day, at the end of the next named month.

month means a calendar month.

1. On my calculation, 1 month from 2 February 2025 ended on 1 March 2025. 1 March 2025 was a Saturday. The next working day was Monday 3 March 2025.
2. As no agreement was reached between the parties resolving the dispute within 28 days of service by the applicants of the section 11 notice, pursuant to 12(2) of the Dividing Fences Act, the applicants were entitled to commence these proceedings on 3 March 2025.
3. As stated, rule 23 (3)(b) of the Civil and Administrative Tribunal Rules provides that applications must be lodged within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application. For the purpose of calculating time under rule 23(2)(b), I do not think 28 days runs from the date of service of a section 11 notice but runs from the expiry of 1 month from the service of the notice, giving the parties the opportunity to resolve the dispute.
4. Accordingly, it seems to me that the applicants were required to lodge the Application on or before 31 March 2025 being 28 days after 3 March 2025.
5. As stated, these proceedings were commenced by Application received by the Tribunal on 10 March 2025. Accordingly, they were commenced within time.
6. If I am wrong on my determination of when the proceedings were required to be commenced, section 41 of the NCAT Act provides that the Tribunal may extend the period of time for filing an application. In the event these proceedings were commenced out of time, I order that time be extended nunc pro tunc up to 10 March 2025 for the applicants to lodge the Application.

1. The report from GJ Frith dated 6 June 2025 (Exhibit 3) establishes that the common boundary between the applicants' and respondent's properties is 60.96 metres. The report establishes that along the northern side of the applicants' land is a driveway.
2. The joint survey report dated 2 September 2025, and the attached sketch plan (Exhibit C) establishes that:

(1) The applicants' driveway encroaches onto the respondent's land from between 85mm near the front entrance to 220mm near the 21.86 metre mark hear the point where the driveway dog legs in a southerly direction into the applicants' land.

(2) The concrete block retaining wall constructed at the rear of the respondent's land is 18.2 metres long and encroaches 10mm into the applicants' land for the entire length of the concrete block retaining wall.

1. During the hearing, Dr Wijesena said that the applicants' dwelling and driveway have been in place for approximately 90 years. The NSW Master Building Inspectors Report dated 12 June 2025 (Exhibit 2) states the applicants property comprises a single level double brick house approximately 90 years old. In the applicants' chronology, the applicants state that the "property was originally built in 1948 by the previous owner, Mr. Greg, including the house, garage, driveway, and surrounding fencing." (Exhibit 1 page 1 para 1) (77 years ago). I am satisfied that the dwelling and driveway on the applicants' property have been in place for approximately 80 years. I find that over the years, the occupants of the applicants' dwelling have had uninterrupted use of the driveway.
2. The evidence establishes the following facts.

(1) The applicants purchased their property in August 2005.

(2) With the exception of the recent demolition of the dividing fence, no change or alterations have been made to the dwelling, driveway, garage and dividing fence, since the applicants purchased their property.

(3) The dividing fence ran from the front to the rear of each property for 60.96 metres.

(4) Dr Wijesena's parents live in the property.

(5) In November 2024, Dr Wijesena's mother discovered that the dividing fence separating the applicants' and respondent's land was removed. Neither the applicants nor Dr Wijesena's parents consented to the removal of the dividing fence. At or about the time the dividing fence was removed, a temporary fence was erected on the driveway.

1. Dr Wijesena says, and I accept, that the driveway is narrow. Dr Wijesena says that she was unable to remove her motor vehicle from the garage due to the temporary fencing that had been placed on the driveway. She says that her motor vehicle was stuck in the garage for over 2 months due to the obstruction by the heavy metal temporary fencing on the driveway. Dr Wijesena has been able to move her motor vehicle onto the street. She says that since removing the vehicle from the property, she has not used the driveway for vehicle access.
2. The applicants tendered: - photographs of the driveway and adjoining fence before it was demolished (Exhibit 1, pages 69 to 71); the dividing fence and gateway shortly before the dividing fence was removed (Exhibit 1 pages 46, 47,63); and the temporary fencing placed on the applicants' driveway (Exhibit 1 pages 54, 55 and 62).
3. Dr Wijesena says, and the photos establish, that the gate across the driveway, was previously supported by a post as part of and in line with the dividing fence. The evidence establishes that the gate is now tied to the temporary fencing and is no longer stable.
4. I find that up to the time of removal of the dividing fence separating the applicants' and respondent's land, the gate across the driveway provided privacy and security for occupants of the applicants' land.
5. There is no dispute that the respondent removed the dividing fence separating the applicants' and respondent's land. The respondent contends it was entitled to remove the fence adjoining the driveway because it was erected on the respondent's land. There is no dispute the respondent placed temporary fencing on the applicants' driveway.
6. There is no dispute the respondent erected a concrete block retaining wall at the rear of the properties. It erected a lapped and capped paling fence on the concrete block retaining wall. The evidence establishes that the concrete block retaining wall is 18.2m long and encroaches onto the applicants' land by 10mm for the length of the retaining wall (Exhibit C).
7. Mr Mizzi says that the applicants' driveway encroaches onto the respondent's land. Mr Mizzi says the respondent consents to the erection of a dividing fence on the boundary line between the applicants' and respondent's land as determined by the surveyors in the joint survey report (Exhibit C).
8. Dr Wijesena says that if the dividing fence is erected on the boundary line as determined by the joint survey report, the driveway will be too narrow to safely drive along the driveway.
9. Dr Wijesena and Mr Mizzi accept that the current width of the driveway is approximately 2.8 metres. Dr Wijesena says her vehicle is a standard SUV Honda which has a width of approximately 2 metres, excluding the side mirrors. Dr Wijesena says there is a tap, garden hose and drain on the side of the driveway outside the exterior wall of the dwelling which reduces the width of the driveway at that point. Dr Wijesena says that if the width of the driveway is reduced to the common boundary line determined the surveyors in the joint survey report, it will be a tight squeeze to drive her vehicle along the driveway. Dr Wijesena says that if a dividing fence is erected on the driveway along the line determined by the surveyors in the joint survey report, it would be possible to drive along the driveway, however it would be difficult, and she would be unable to safely drive along the driveway.
10. Dr Wijesena points to Australian Standard 2890.1 which provides that the minimum width of a driveway for new dwellings is 3 metres. She says that the applicants do not have the land to build a new driveway.
11. I accept Dr Wijesena's evidence and submissions.
12. As stated, Mr Mizzi says that the applicants' driveway encroaches onto the respondent's land. He says that the temporary fencing erected on the driveway is in the approximate position of the true common boundary determined by the surveyors in the joint survey report. He submits that if the driveway is reduced to 2.6 metres, removing the encroachment onto the respondent's land, it will remain wide enough to drive a standard motor vehicle along the driveway. He says that when driving a standard motor vehicle along the driveway, there will be about 300 millimetres or 30 centimetres on each side. Mr Mizzi says that Australian Standard 2890.1 applies to new developments and does not apply to the applicants' land.
13. I accept Mr Mizzi's submissions. However, the submissions do not acknowledge the continuous and uninterrupted use of the applicant's encroaching driveway by the applicants and previous occupants of the applicants' land. Nor does Mr Mizzi's submission acknowledge that a reduction in the width of the driveway will, to adopt what Dr Wijesena said, make it a tight squeeze and she will be unable to drive along the driveway.
14. Mr Mizzi says the respondent will erect a dividing fence on the boundary line between the applicants' and respondent's property shown in the sketch plan attached to the joint surveys report (Exhibit C). He says the fence will be erected to provide a driveway width or clearance of 2.6 metres from the wall of the home to the finished side of the dividing fence.
15. As stated, Dr Wijesena and Mr Mizzi accept that the current width of the driveway is approximately 2.8 metres. In my view if a dividing fence is erected on the common boundary determined by the surveyors in the joint survey report, reducing the width of the driveway to 2.6 metres for a length of 21.86 metres from the driveway entrance, such a reduction in width will reduce the usability of the driveway and Dr Wijesena will unable to drive along the driveway (even though it would remain possible).

1. The jurisdiction to make orders for fencing work under section 14 of the Dividing Fences Act is dependent upon finding that there is an insufficient dividing fence between adjoining lands: Alwiah v Watts [2004] NSWSC 948.
2. Section 4 of the Dividing Fences Act set out a non-exhaustive list of factors the Tribunal may consider when determining whether there is a sufficient dividing fence.
3. There are a residential dwelling, garage and driveway on the applicants' land which has stood in place for approximately 80 years. The respondent is constructing a residential dwelling on its land.
4. I am satisfied that a dividing fence separating the applicants' and the respondent's land stood for approximately 80 years and ran in a line from the front of the properties to the rear boundary of each property. At least part of the dividing fence, adjacent to the driveway, was on a line other than the common property and was erected on the respondent's land.
5. I find that in or about November 2024, the respondent removed the dividing fence separating the applicants' and respondent's land without the applicants' permission. The dividing fence removed by the respondent provided privacy to occupants of the applicants' and respondent's land.
6. I find that the respondent has erected a concrete block retaining wall and a lapped and capped paling fence at the rear of the properties for a length of 18.2 metres. The concrete block retaining wall encroaches onto the applicants' land by 10mm for the length of the concrete block retaining wall.
7. I find that there is currently no dividing fence, within the meaning of section 3 of the Dividing Fences Act, separating the applicants' and respondent's land from the front of the properties up to concrete block retaining wall and lapped and capped fence at the rear of each property. There is currently a temporary fence erected on part of the applicants' driveway.
8. I am satisfied that there is an insufficient dividing fence separating the applicants' and the respondent's land.
9. The Tribunal is therefore satisfied that it has jurisdiction to make orders that fencing work occur under section 14 of the Dividing Fences Act.
10. The Tribunal is satisfied that a replacement dividing fence should be erected separating the applicants' and respondent's land. A dividing fence should be erected from the front of the property up to the concrete block retaining wall and lapped and capped paling fence erected at the rear of the properties. The remaining issue is to determine the line on which the fencing work is to be carried out.
11. Dr Wijesena submits that a replacement fence should be erected along the same line that the previous fence stood for approximately 90 years. Mr Mizzi submits that replacement fence should be erected on the common boundary line determined by the surveyors in the joint survey report and shown in the sketch plan referred to tin the joint survey report. This would have the effect of reducing the width of the driveway to 2.6metres over a length of 21.86 metres.
12. I accept on the evidence before me that the driveway encroaches onto the respondent's land. The applicants have had the uninterrupted use of the driveway since they purchased their property approximately 20 years ago. The applicants' predecessors in title and the previous occupants of the applicants' home have had continuous use of the driveway since it was erected approximately 80 years ago. This continuous and uninterrupted use of the encroaching driveway may entitle the applicants to claim an easement by prescription over the respondent's land: Maher v Bayview Golf Club [2004] NSWSC 275 at [26] to [33]. If necessary, the applicants also have the right to seek an order imposing an easement over the respondent's land if it is reasonably necessary for the effective use of the applicants' land under s 88K of the Conveyancing Act 1919 (NSW). The Tribunal does not have jurisdiction to make orders or declarations determining an easement by prescription or to make an order imposing an easement over land.
13. Section 14 (1) of the Dividing Fences Act sets out the orders the Tribunal may make on an application under the Act.
14. The Application annexes a notice to carry out fencing work under section 11 of Dividing Fences Act. The notice annexes a marked-up survey plan prepared by G J Frith, registered land surveyor. The applicants seek orders by reference to the notice and annexed plan.
15. Section 14(1)(a) empowers the Tribunal to determine the boundary or line on which the fencing work is to be carried out, whether or not that boundary or line is on the common boundary of the adjoining lands.
16. The evidence establishes there was a dividing fence separating the applicant's and respondent's land stood for approximately 80 years. At least part of the dividing fence was erected on the respondent's land. The evidence establishes the applicants' driveway encroaches onto the respondent's land for a length of 21.86 metres by a width of 85mm to 220mm.
17. I find that the applicants' have had uninterrupted and continuous use of the driveway since purchasing their property up until November 2024, when the respondent removed the dividing fence and erected a temporary fence on the driveway.
18. I find that the existing driveway is narrow (2.8metres). I find that a reduction in the width of the driveway, by between 85 to 220mm, to 2.6 metres for a length of 21.86 metres will reduce the usability of driveway and make it difficult to drive a standard motor vehicle along the driveway. I accept Dr Wijesena's evidence that she will be unable to drive along the driveway.
19. As stated, I find that the respondent has erected a concrete block retaining wall and a lapped and capped paling fence at the rear of the properties for a length of 18.2 metres. The concrete block retaining wall encroaches onto the applicants' land by 10mm for the length of the concrete block retaining wall.
20. I find there is currently no sufficient dividing fence from the front of the properties up to the concrete block retaining wall and lapped and capped paling fence at the rear of the respondent's and applicants' land.
21. I am satisfied that a dividing fence should be re-erected along the same line where the previous dividing fence stood before the respondent removed it. The dividing fence should be erected from the front of the properties up to the concrete block retaining wall and lapped and capped paling fence erected at the rear of the respondent's and applicants' land.
22. Section 14(1)(b) provides that the Tribunal may determine the fencing work to be carried out.
23. The respondent has erected a lapped and capped paling fence on the concrete bloc retaining wall at the rear of the properties. For conformity, I will order that the respondent erect a lapped and capped paling fence. The fence is to run from the front of the respondent's land, along the same line as the previous dividing fence stood before the respondent removed it, up to and joining the concrete block retaining wall and lapped and caped fence erected at the rear of the respondent's and applicants' land (replacement dividing fence). The replacement dividing fence should be 1.8 metres in height above the ground level.
24. The fencing work to be carried out is to include fastening, in a secure manner, the gate across the driveway on the applicants' land to a post on the respondent's land. The gate is to be fastened in such a way that it opens and closes as intended or expected of a driveway gate.
25. Section 14(1)(c) provides that the Tribunal may determine the manner in which contributions for the fencing work are to be apportioned or re-apportioned or the amount that each adjoining owner is liable to pay for that work.
26. There is no evidence that the dividing fence the respondent removed, required replacement. The respondent removed the fence without seeking the applicants' consent. The applicants' served a notice in conformity with section 11 of the Dividing Fences Act before commencing these proceedings. Having regard to these factors and having regard to my finding that the respondent should erect the replacement dividing fence along the same line where the previous dividing fence stood before the respondent removed it, I find that the respondent is liable for all of the cost of erecting the replacement dividing fence.
27. Section 14(1)(d) provides that the Tribunal may determine which portion of the dividing fence is to be constructed by either owner. I find that the respondent is to construct the replacement dividing fence.
28. Section 14(1)(e) provides that the Tribunal may determine the time within which the fencing work is to be carried out. I will order that the fencing work is to be carried out within 35 days.
29. Section 14(1)(f) provides that the Tribunal may determine the amount of compensation in consideration of loss of occupation of any land.
30. The evidence establishes that the driveway encroaches onto the respondent's land. The fencing work I will order the respondent to carry out will require the respondent to erect a dividing fence on its land along the same line as the previous dividing fence stood for approximately 80 years before the respondent removed it. In these circumstances, the erection of the replacement dividing fence will not result in the loss of occupation of any part of the respondent's land.
31. There is no dispute the respondent has erected a concrete block retaining wall which encroaches onto the applicants' land. The respondent erected the encroaching concrete block retaining wall without the consent of the applicants. The respondent has not paid the applicant any compensation for that encroachment.
32. In the circumstances referred to in paragraph s [89] and [90], I will not make any order for compensation to the respondent for the erection of the replacement fence on the respondent's land.

(1) ORDER that within 35 days of these orders, the respondent, at its cost, is to erect a dividing fence, along the same line where the previous dividing fence stood before it was removed by respondent (replacement dividing fence).

(2) ORDER that subject to order 1, the replacement dividing fence is to be erected in the location outlined in the marked-up survey plan lodged with the Application received by the Tribunal on 1 March 2025, in which:

(a) Point A denotes the front of the respondent's property.

(b) Point A to point B, denotes that the replacement dividing fence is to be erected on the respondent's land, along the edge of the existing concrete driveway and along the same line where the previous dividing fence stood before it was removed by respondent.

(c) Point B is 21.86 metres from Point A.

(d) Point C denotes the commencement of the concrete block retaining wall and lapped and capped paling fence shown in the sketch plan referred to in the joint report of GJ Frith and Z T Wierzchowski dated 1 September 2025.

(e) Point B to point C denotes the replacement dividing fence is to be erected along the same line where the previous dividing fence stood before it was removed by respondent and is to connect with the concrete block retaining wall and lapped and capped paling fence shown in the sketch plan referred to in the joint report of GJ Frith and Z T Wierzchowski dated 1 September 2025.

(3) ORDER that the replacement dividing fence is to be a lapped and capped paling fence, 1.8 metres in height above ground level.

(4) ORDER that no part of the replacement dividing fence is to extend on or over the driveway shown in the sketch plan referred to in the joint survey report signed by G J Frith and Z T Wierzchowski dated 1 September 2025.

(5) ORDER that within 35 days of these orders, the respondent is to secure the gate across the applicants' driveway to a supporting post to be erected on the same point where the previous supporting post stood before the respondent removed it. The gate is to be fastened to the post in a good and workmanlike manner so that the gate is fully operational and can be opened and closed and locked.

(6) ORDER that before the fencing work ordered to be done is commenced, the respondent is to mark out the line on which the replacement dividing fence is to be erected using a string line and to give the applicants 48 hours' notice to inspect the marked-out line on which the replacement dividing fence is to be erected.

(7) ORDER that the respondent is to give the notice required by order 6 by sending the notice to [redacted].

(8) ORDER that within 35 days of these orders, the respondent remove the temporary fencing placed on the driveway on the applicants' and respondent's land.

(9) ORDER that the applicants have leave to renew these proceedings if any of these orders are not complied with.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.