Legislation: ACT Civil and Administrative Tribunal Act 2008 (ACT)

Common Boundaries Act 1981 (ACT)

Tribunal: Mr C.G. Chenoweth Acting Presidential Member

CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 31 of 2009

1. That the appeal be heard as a new application under section 82 (a).

2. That neither party is to make any further payment to the other and that there be no order as to costs under section 48 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) in favour of either party.

3. That the respondents are to complete within 3 months from the date of this order and at their expense a retaining wall where excavation has occurred adjacent to the dividing fence on their property, sufficient to prevent erosion from the appellant's property onto the respondent's property.

1. This is an appeal from a decision of the Senior Member Lennard dated 11 November 2009. The order directed that the appellants pay to the respondents the sum of $884.40, made up of costs of hearing of $132, and $752.40 being compensation for the costs of the construction of a fence. The order also directed that each of the parties was to contribute one half of the cost of construction of the remaining section of a retaining wall, on the respondents' side of the common fence.

2. The appeal follows a number of conferences and hearings in the tribunal relating to the construction of different parts of a dividing fence and a retaining wall between two adjacent properties. The appellants own and rent out one of those properties, and the respondents own and live in the adjacent property. The dividing fence runs between the back fence of the properties to a garage.

3. In these reasons I refer to the portion of the fence running from the back fence to the midpoint as 'the back fence half' and the section from the midpoint to the garage as 'the garage half'. The side of the fence with the vertical palings is referred to as 'the smooth side', and the other side with the posts and horizontal rails as 'the post-side.'

4. The properties which have led to this acrimonious dispute between the parties are in a newly developed area of Canberra suburbs. The houses in the street have all been constructed at about the same time, and accordingly the dividing fences have also been constructed within a reasonably short period.

5. The original application was lodged on the 14th May 2009 by the appellants for a repair cost determination under the Common Boundaries Act 1981 (ACT) ('the CB Act').

6. The basis for the application was the appellants' contention that the back fence half which had been built by the respondents did not comply with acceptable trade standards, and the smooth side was facing the wrong way. The appellants filed a quotation from Jim's Fencing of Melba, indicating that the back fence section had not been built to current industry practice.

7. The respondents lodged a counter claim dated 9 June 2009 against the appellants. This application was for the replacement of the garage section which had been built by the appellant's builder.

8. The appeal notice had a letter from the appellants attached, setting out a number of grounds of appeal, and the respondents also filed a lengthy submission in response. The original file had many lengthy submissions, photographs and videos produced by the parties both going to the issues in the case and also accusing each other of lying, bad faith and falsification of evidence.

9. Having considered all of this material and the difficulty of determining individual appeal issues while leaving other issues to stand, I determined that the appropriate course in the interests of a proper hearing and determination of the issues between the parties was to exercise the power of the tribunal under section 82 (a) of the ACT Civil and Administrative Tribunal Act 2008 ("ACAT Act") to deal with the appeal as a new application. The matter proceeded on this basis.

10. The back fence half and the garage half were constructed with concrete or galvanised steel posts, wooden horizontal rails and vertical timber palings. The fences are approximately 1.8 m tall, in company with other fences in the area. The rear fences to both blocks are the same construction. One of the adjoining owners must have the smooth side and the other the post side. Both the appellants and the respondents wanted the smooth side of their boundary fence facing their yards. Both could not have this unless the fence was planked with palings on both sides, which would be an extra expense.

11. The respondents moved into their house in about June 2008. The appellants' house was completed in November 2008, and they then leased the property to tenants. The fact that the appellants do not live in the property does not diminish their rights under the CB Act.

12. In about mid September or early October 2008, the respondent Mr Koh and his father purchased materials and built the back fence half. This was built with the smooth side facing the respondents' yard. Shortly after, the appellants engaged a builder to build the garage half, with the smooth side facing the appellants' property. The appellants paid for this half.

13. The submissions by the appellants in both the matter under appeal and in the appeal itself referred at length to the failure of the respondents to build a fence with the smooth side following the pattern established by other houses in the street. They relied on what was said to be the good practice amongst fencing companies, and sought to draw from this an obligation said to be imposed on the respondents to have built the back fence half with the smooth side facing the appellants.

14. Whatever may have been the best practice amongst fencing companies and whatever may have been regarded as reasonable between neighbours, there is no obligation under the CB Act for the smooth side of a boundary fence to be on one side or the other.

15. The issue for determination under the CB Act where an application relating to an existing fence has been made is whether the fence required repair under section 5 of that Act. The powers of the tribunal are limited to those set out in section 11 of the CB Act.

16. From the evidence given at the hearing of this matter, the tribunal is satisfied as to the following:

(a) Generally, the dividing fences between neighbouring properties on the street have their smooth sides facing in the same direction.

(b) The respondent Mr. Koh and his father constructed the back fence half at their cost, prior to any other fence being constructed. The smooth side faced in the opposite direction to other dividing fences in the general area.

(c) The appellants then engaged a builder to build the garage half and they paid for it.

(d) The back fence half was removed by order of the tribunal of 18 August 2009, and replaced by a new section of the fence built by a fencing contractor. This has been paid for by the respondents. The smooth side of this section of fence faces the appellants' yard, as with the garage half built previously. The cost of this work was $752.40.

17. On 14 October 2009 and then by an amending order of 11 November 2009, the tribunal ordered that the costs of the back fence half, together with an amount for costs of the hearing, be paid by the appellant to the respondent. It is not necessary to go into detail as to why these orders were made.

18. As this is a new hearing under section 82 (a) of the ACAT Act, and as the respondent has complied with the direction to remove and replace the back fence section, it is necessary to determine whether the costs of this work should be borne by the appellants or the respondent. If the appellants are required to pay for the new back fence half, then they will have paid for the whole of the current fence. The respondents point out that they had paid the costs of the initial section of the back fence half constructed by them, and which has now been replaced in accordance with the order of 18 August 2009.

19. Adjoining property owners are entitled to a reasonable dividing fence between them. The judgement of what is reasonable and what should be replaced or repaired depends upon the circumstances and conditions of the fence and its surrounds. It is not enough that a fence built by one party is stable and not in danger of immediate collapse. The style and standard of construction, its appearance from both sides and its consistency with other fences in the immediate area where a number of houses and fences are of a similar age and style are all relevant factors. A fence which has been badly built compared with the adjoining fences may diminish, if only in a small way, the value of a property. People attending at the house may comment adversely on the fence which the owner may consider a reflection on him or her.

20. In this case, I am satisfied that the fence originally constructed by the respondents falls short of a reasonable standard of construction. Exhibit 1 was agreed by the respondents as showing details from the appellants' yard the post side of the fence that was constructed by Mr Koh and his father. It shows that the posts have been placed at irregular distances, particularly between the midpoint and the post to the left as compared with the next post closer to the back fence. The posts are too short to carry the top rail, which has been supported by irregular vertical short studs. The distances between the middle and top rails compared to the distance between the bottom two rails is small and irregular. The middle rail rises and falls as a consequence of short sections of middle rail being gang nailed together and not properly lined up. The whole job as shown in Exhibit 1 falls short of the standard that a new homeowner could reasonably expect.

21. The fence has now been pulled down and replaced. No complaint is made about the standard of construction of this new section. While the respondents complain about the standard of construction of the garage half, I am not satisfied that it has serious flaws that would lead to look at a conclusion that it is an unsatisfactory dividing fence.

22. As the appellants paid the costs of construction of the garage half, and the respondents have now paid the costs of the new back fence half, the appellants should not be required to contribute further to the cost of the fence. Each party has paid one half. The fact that the respondents have paid for the back fence half that has now been taken down, and that these costs have been lost, is unfortunate but is a consequence of the substandard construction.

23. A further issue that arises between the parties relates to soil retention. The appellants gave evidence that the soil on the respondents' side adjacent to the fence had been excavated for building works. The extent of the cut or excavation was of the order of 30 to 40 cm below the natural level of the land on the appellants' side. Exhibit 2 shows this excavation under part of the original back fence half.

24. The respondents have built a small concrete block retaining wall against the existing back fence half, but had not completed the construction of it to the garage.

25. Having considered further the question of whether the tribunal may make an order under the CB Act for a retaining wall as part of a dividing fence, where that retaining wall is necessary to prevent erosion of soil resulting from interference with the natural fall of the land, I am satisfied that such an order may be made.

26. As it is the respondents who have excavated along the common boundary, it is their responsibility to ensure that an appropriate retaining wall is constructed for the garage half, to ensure that soil does not erode from the appellants' property onto the respondents' property. Stability of soil along the line of the fence and its supporting posts requires that this be stabilised.

27. While the respondents have constructed the existing retaining wall in concrete or masonry blocks, it is a matter for them whether the balance of the retaining wall is built in this material or some other as long as it stabilises the soil.

28. The tribunal's decision is that the respondents are to construct within three months from the date of the order and at their expense a retaining wall sufficient to ensure that soil from the property of the appellants does not erode into the property of the respondents in the area where the excavation has occurred.

29. The tribunal has considered the issue of the granting of costs to either party in this matter. Section 48 (1) of the ACAT Act sets out the general policy of the legislation that parties to an application must bear their own costs unless the Act provides otherwise or the tribunal otherwise orders. Section (2) allows the tribunal to award costs in certain circumstances if it considers fit.

30. It is obvious that both parties to this matter have incurred substantial expense incurred in time lost from work, in the preparation of lengthy submissions and evidence and in the attendance at conferences and hearings of the tribunal. In the tribunal's view, there is no basis to distinguish between either party in this regard, bearing in mind that both had lodged applications initially and that the whole dispute about the fence was determined as a single matter. Having regard to this, the tribunal declines to award costs to either party.

31. The result of this decision is that neither party is ordered to make any further payment to the other. The respondents are given three months to complete the wall stabilising the soil along the excavation.

DATE/S OF HEARING: 3 FEBRUARY 2010 PLACE: CANBERRA

DATE/S OF DECISION: 10 FEBRUARY 2010 PLACE: CANBERRA

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )