Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Zheng v Lee [2021] NSWCATCD 94 Hearing dates: 11 August 2021 Date of orders: 2 September 2021 Decision date: 02 September 2021 Jurisdiction: Consumer and Commercial Division Before: G Sarginson, Senior Member Decision: 1. The applicant is to cause the performance of fencing work between the residential property of the applicant and the residential property of the respondents by 6 December 2021 with such work to be performed as follows: (a) Demolish the existing metal and wire mesh fence between the respective properties. (b) Remove any plants or shrubs along the existing fencing line only to the extent necessary to construct a new fence. (c) Construct a 28m x 1.8 m green Colourbond fence along the existing fencing line as set out in the scope of works contained in the quotation of All Hills Fencing dated 15 March 2021 and detailed in the Fencing Notice dated 13 January 2021. (d) Extend the green Colourbond fence for a further 12 m toward the front boundary of the respective properties as set out in the Fencing Notice dated 13 January 2021. (e) The applicant is to give the respondents 3 clear business days written notice of the date the fencing work will occur. Notice by email is sufficient. (f) The fencing work is to be performed by a person who holds a valid licensed issued by NSW Fair Trading to perform fencing work. (g) The respondents are to give reasonable access to their property to the licensed tradesperson performing the fencing work so that the existing fence can be demolished and a new fence be constructed in accordance with these orders. (h) Within 28 days of the completion of the fencing work set out in these orders, the respondents are to pay the applicant $2,358. Catchwords: DIVDING FENCES — Whether Fencing Notice validly served — Whether sufficient dividing fence —Appropriate type of replacement fence —Contribution of parties to the fencing work Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Dividing Fences Act 1991 (NSW) Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Nicholls v Fortmann [2020] NSWCATAP 52 Purcell v Chadwick [2018] NSWCATAP 250 Texts Cited: Nil Category: Principal judgment Parties: Zhe (Wilson) Zheng (Applicant) Colin Lee (First Respondent) Peggy Hau (Second Respondent) Representation: Applicant (Self Represented) Respondents (Self Represented) File Number(s): COM 21/13153 Publication restriction: Nil REASONS FOR DECISION 1. This is a dividing fence dispute between neighbours at Beecroft, NSW. 2. The applicant and his wife live at number 14 and the respondents live at number 16. They are the owners of their respective properties. 3. Proceedings were filed in the Tribunal on 23 March 2021. The applicant seeks an order that he be able to demolish an existing fence between the properties and construct a green Colourbond fence. 4. The existing 1.2 metre high wire mesh fence with metal poles runs from near the rear of the residences of the respective parties up to the rear boundary for a distance of 28 metres. 5. For a distance of approximately 12 metres where the respective houses of the parties are directly opposite each other, there is no fence. Rather, there is side path and trees/shrubbery. 6. At the front yard of the properties there is also no fence. However, the applicant does not seek to construct a fence in that area. 7. The cost of the proposed fence (as set out in a quotation of All Hills Fencing dated 15 March 2021 is $5,895). That quotation only deals with the removal of the existing fence from where it commences at behind the respective residences of the parties and replacing it with a Colourbond fence for 28m x 1.8 m to the rear of the properties. 8. The Fencing Notice served by the applicants identifies the fencing work to be divided into two sections. The first section is the 28 metres of fence which is identified as "remove the existing wire fence and replace with new fence". 9. The second section of work is identified as the 12 metres of fencing where there is no fence and is identified as "install new fence to the front part of the boundary, following the existing fencing line". The total cost of the works is identified as $7,422. The Fencing Notice attaches a plan showing where the fencing work is proposed to be done and attaches the quotation of All Hills Fencing dated 15 March 2021. 10. In the application filed with the Tribunal the applicant identifies that in respect of the proposed fencing work, "the estimated cost is $5,895. Each owner pays half the cost on the date the fencing work completion (sic)". 11. The respondents assert that the existing fence is a sufficient dividing fence. They do not propose any alternative fence but submit there is no proper basis for demolishing the existing fence and replacing it. 12. The respondents have not proposed an alternative type of fence for the length of the respective properties, such as a wood paling lapped and capped fence. However, the respondents did propose on 12 February 2021 that there be a Colourbond fence at the side of the properties where the residences face each other, but at the rear of the properties there be a section of Bamboo fence (9.9 metres) and otherwise the existing 1.2 metres high metal and mesh fence be retained. No quotation was obtained, but they estimated the total cost of such works to be $3,815.14 compared to the applicants proposed fence costing $7,422. 13. The applicant issued a Fencing Notice dated 13 January 2021. That notice attached the quotation of All Hills Fencing. 14. The Fencing Notice was placed by the applicant into the letterbox of the respondents. A text message exchange on 13 January 2021 informed the respondents the Fencing Notice had been placed in their letterbox, and the respondents agreed at the hearing that they had received the Fencing Notice on or about 13 January 2021. 15. On 30 April 2021 the matter came before the Tribunal for a Conciliation and Group List hearing. The parties were unable to resolve the dispute and it was set down for hearing with procedural directions regarding the filing and serving of documentary evidence. The directions also pointed out a potential time limitation issue and noted the parties would "need to make submissions in relation to this issue". 16. The hearing on 11 August 2021 was conducted by telephone. The Tribunal Registry had allocated 90 minutes hearing time. 17. At the commencement, both parties stated they were ready to proceed and were not seeking an adjournment for any reason. 18. Although there were disputes about when documents had been filed and served and whether or not Tribunal directions had been complied with, both parties had received each other's documents with sufficient time to prepare for the hearing. The documents of each party were admitted into evidence, subject to weight and relevance. 19. Both parties were given the opportunity to cross examine the other party at the hearing. 20. The documents of the applicants can be relevantly summarised as follows: 1. Fencing Notice 2. Quotation of All Hills Fencing 3. Text messages and Whats App messages between the parties. 4. Photographs of the fence; the front of the boundary between the properties; the fence at the rear of the applicants' property; and photographs of fences of other houses in the area. The various photographs contained comments by the applicants. 5. An extract from the Hornsby Development Control Plan. 6. Statement of another neighbour, Mr McCurdie (adding to a statement he had given to the respondents). 1. The documentary evidence of the respondents can be summarised as follows: 1. Joint statement of the respondents dated 13 May 2021. 2. Photographs of the area between the properties and of other properties in the area with comments. 3. Statement of a neighbour, Mr Carew, dated 11 May 2021. 4. Statement of Mr McCurdie dated 12 May 2021. Evidence and Submissions of the Parties 1. The applicant and his wife moved into their property in September 2013 and have one child less than 8 years of age. The respondents moved into their property in 2016. The respondents have no children. 2. Both properties are on a sloping block. The applicant's property is on the higher side of the block. The slope is greatest at the front of the properties. In the area behind the respective houses of the parties the slope is moderate. 3. At the front of the properties there is no fence. There is also no fence at for a distance of approximately 12 metres at the side of the parties' respective houses where they face each other. 4. From an area near the respective houses of the parties, there is a metal and wire mesh fence at a height of approximately 1.2 metres. That fence travels to the rear of the boundary between the properties. At the very rear of the fence there is a metal gate. The metal wire mesh fence then forms a rear fence, traversing a number of properties. 5. The respondents have a "privacy screen" constructed of wooden frame and slats on its land at the rear of its house. The respondents' privacy screen is approximately 4.5 metres high. Next to the privacy screen is a retaining wall with a bamboo brush/reed screen sitting in proximity to it. The metal and wire mesh fence runs next to the bamboo brush/reed screen. 6. The respondents have a swimming pool on their property, which is surrounded by a pool fence. 7. There are considerable plants, trees and vegetation between the two properties, with both properties being on large blocks. Towards the rear of the properties, shrubbery sits very close to the fence and at various points is growing through the fence. 8. The oral evidence of both parties focussed upon the metal and wire mesh fence that has been in position for many years. 9. The applicant asserts that the current metal and wire fence is insufficient because it does not adequately provide for privacy, and is a security risk (in particular, due to its height). The applicant asserts the fence is old and that there are other properties in the area that have a Colourbond fence. The applicant asserts that a Colourbond fence would give better security; privacy and improve the amenity and value of the property. The applicant asserts the metal gate at the rear of the property can be opened and is a security risk. 10. There was no clear evidence to indicate that the metal and wire fence was falling over at any point; or had large holes in it; or was at risk of falling over in whole or part. 11. The respondents assert that replacing the current fence with a Colourbond fence would make no difference to privacy or security. In respect of privacy, due to the positon of the respective properties; the existence of a privacy screen for part of the area; and the large number of trees and plants on the respective properties near the existing fence, the respondents assert there are no sufficient privacy concerns to justify replacing the existing fence. The respondents assert that the metal gate at the rear of the properties cannot be opened. 12. The respondents concede that when the applicants first raised the issue of a replacement fence, they were prepared to agree and contribute, but asserted that they changed their minds when they saw the length of the proposed replacement fence and the cost. The respondents submit that if the Tribunal orders the fence be removed and replaced, they should not have to contribute because they regard the current fence as sufficient. 13. Neither party has obtained a land survey. The applicants seek the replacement fence be constructed on the existing fencing line. In respect of the front of the properties where there is no fence, they seek the fence continue along the same fencing line as the existing metal and mesh fence. 14. The parties did not participate in mediation at a Community Justice Centre. Under s 12 (1) of the DF Act parties may participate in a mediation at a Community Justice Centre, but it is not compulsory. Jurisdiction of the Tribunal 1. The Fencing Notice is in a form that complies with the requirements under s 11 of the Dividing Fences Act 1991 (NSW) ('the DF Act'). 2. The Fencing Notice was served by placing it in the letterbox of the respondent. Section 21 of the DF Act states that a Fencing Notice "is to be served" personally or by post. 3. Although the Fencing Notice was not hand delivered to the respondents, they agree it was placed in their letterbox and they had received the Fencing Notice on 13 January 2021. The respondents did not seek to argue that they had not received the Fencing Notice or that the Tribunal did not have jurisdiction because the Fencing Notice had not been personally given to them, rather than the respondent's collecting the Fencing Notice from their letterbox. 4. The Tribunal is satisfied, in circumstances where the respondents collected the Fencing Notice from their letterbox on 13 January 2021 that it has been personally served on them pursuant to s 21 of the DF Act on 13 January 2021. 5. The proceedings were commenced on 23 March 2021. Under s 12 (2) of the DF Act, proceedings cannot be commenced within 1 month of service of the Fencing Notice. 6. By reason of Regulation 23 (2) of the Civil and Administrative Tribunal Rules 2014 (NSW), the applicant had 28 days from 13 February 2021 to commence proceedings in the Tribunal. 7. Accordingly, the application is approximately 10 days out of time. However, the Tribunal has the power to extend the limitation period under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) ('the NCAT Act'). The applicable principles for extension of time under s 41 of the NCAT Act are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. Relevantly, they involve the length of the delay; the reasons for the delay; any prejudice or unfairness caused to the other party by reason of the delay and the extension sought; and the prospects of success of the substantive application. 8. Considering the extension is for a short period of time; there is no prejudice or unfairness to the respondents if the extension is granted (such as, for example, the respondent was not able to obtain evidence it would otherwise have been able to obtain had the proceedings been brought within time); and the applicant has an arguable case that the existing fence is not a sufficient dividing fence, the Tribunal extends the time period to take proceedings to 23 March 2021. Consideration of the Merits of the Application 1. The Tribunal must determine: 1. Whether the existing fence is a sufficient dividing fence. If the existing fence is sufficient, the application must be dismissed. Whether or not there is currently an existing dividing fence which is sufficient is, or is not, sufficient, is a matter of degree involving consideration of all relevant circumstances, including the circumstances set out in s 4 of the DF Act (Purcell v Chadwick [2018] NSWCATAP 250 at [28]. What weight, if any, is given to the matters set out in s 4 (a)-(g) of the DF Act (and any other relevant circumstances) is a matter for the Tribunal to determine based on the evidence in the case (Nicholls v Fortmann [2020] NSWCATAP 52 at [33]) 2. If the existing fence is not a sufficient dividing fence, should the Tribunal exercise its discretion to order that the fence proposed by the applicant replaces it? 3. If so, where should the fence be constructed and what contribution should be made by the respondents? Is The Current Fence a Sufficient Dividing Fence? 1. Section 4 of the DF Act sets out that the Tribunal must consider "all of the circumstances of the case" including: (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. There is no dividing fence at the side of the properties for approximately 12 metres. In that part of the property the fence is insufficient because there is no fence. It is unnecessary to consider the lack of a fence at the front of the properties because the applicant's proposed fencing work does not include that area. 2. In respect of the existing metal and mesh fence, from the photographic evidence provided by both parties it does not appear to be falling down or leaning excessively other than towards the very rear of the properties. At this section there is a significant amount of shrubs and plants on both sides of the fence. 3. The Tribunal is satisfied that the metal gate at the rear of the fence is leaning and is capable of being opened. The respondents denied this and provided one photograph of the gate being closed, but the preponderance of photographic evidence supports the applicants' evidence that the gate is leaning and open, being surrounded by a large amount of shrubbery which is pressing upon that area of the existing fence and the gate. 4. As discussed previously, there was a significant divergence between the parties as to whether the existing fence gave sufficient privacy and whether replacing it with a 1.8 m Colourbond fence would make any difference. 5. The Tribunal accepts that there are some privacy issues by reason of height of the current fence (1.2m) and the fact that it is metal wire mesh and can be seen though. This is ameliorated to some extent by the amount of shrubbery and trees at the rear yards of the respective properties; the 'privacy screen'; and the fact that the applicant's property is on the high side of the slope. However, the Tribunal accepts that replacing a 1.2 metre high metal and wire mesh fence with a solid panel 1.8m high Colourbond fence will improve privacy between the two properties. 6. On the issue of security, the Tribunal is satisfied that there are similar 1.2 metre high metal and wire mesh fences in the suburb of Beecroft, including at the rear of the applicant's premises. There is no evidence of any immediate security issue in the sense of a burglary occurring. The Tribunal notes the applicant has external rear security cameras attached to the rear wall of their premises. 7. However, by reason of the gate at the rear of the fence; and the low height of the fence, the Tribunal is satisfied that the current 1.2 metre fence is a less secure fence than a 1.8 metre high Colourbond fence, and that a replacement Colourbond fence would improve security. 8. The Tribunal is satisfied that there are Colourbond fences in the Beecroft area, with fencing in the immediate area a mixture of metal and wire mesh fences; wooden lapped and capped paling fences; and Colourbond fences. The Tribunal does not accept that a Colourbond fence would be visually jarring or exceptional. 9. In respect of Section 4 (e) and (f) of the DF Act, there is no evidence the proposed fence is inconsistent with the local Council Development Control Plan; or inconsistent with any other relevant statutory regulation. There is no evidence that the proposed fence requires Development Consent of the local Council to construct. The Hornsby Council Development Control Plan 2013 3-2 provided in the applicants' evidence relevantly stipulates the maximum height of fences in the area, but not the fencing materials to be used. 10. Section 4 (g) of the DF Act is clearly inapplicable to the circumstances of this matter, and the Tribunal gives that circumstance no weight. 11. The Tribunal notes that both parties obtained statements from various neighbours, where they expressed their opinion about the existing fence and the proposed fence. Such opinions have little or no relevance to the applicable relevant considerations under s 4 of the DF Act, and the Tribunal gives such statements little evidentiary weight. 12. Having considered and weighed up the relevant matters under s 4 of the DF Act, the Tribunal is satisfied that the current fence is not a sufficient dividing fence, in addition to the fact there is no dividing fence at all at part of the side of the respective properties. Should the Tribunal Order That the Existing Fence Be Removed and Replaced With a Colourbond Fence? 1. The Tribunal is satisfied that it is appropriate the current fence be removed and replaced with a Colourbond fence as proposed by the applicant. 2. There is no valid reason for the Tribunal not to exercise its discretion in favour of the fence proposed by the applicant. 3. Although there is a small section of the fencing line where the current fence is built near a retaining wall, there is no proposal to demolish or build a retaining wall and construction of the proposed fence does not require this to occur. 4. Although shrubs and plants may have to be removed or cut back to install the Colourbond fence, this is not a sufficient reason not to install the fence. 5. As discussed previously, neither party has obtained a land survey. However, there is an existing fencing line where the current fence is located. The Tribunal is not satisfied that a survey is required as a prerequisite to making an order under the DF Act in the circumstances of the matter. The fence can be extended along the current fencing line to include the currently unfenced side area (approximately 12 metres in length). Contribution by the Parties 1. The starting point is that each neighbour should pay half the cost of the fence, unless there are appropriate reasons to depart from this, such as the replacement fence is a different type and higher standard than the current fence. 2. Considering a higher Colourbond fence is to replace an existing lower metal and wire mesh fence, the Tribunal is satisfied the appropriate percentage contribution is for the respondents to pay 40% of the proposed costs as set out in the quotation of All Hills Fencing, being $2,358. 3. The Tribunal notes that the quotation of All Hills Fencing may now be out of date. However, so that there is certainty between the parties, the Tribunal regards as appropriate that the applicant constructs the fence, and upon construction the respondents pay $2,358 to the applicant, rather than each party contribute a proportionate amount to pay the fencer. 4. If the price for the work has gone up since the quotation was obtained, the applicant will have to bear that increase. The applicant will also have to bear the cost of the 12 metre unfenced section between the residences of the parties, as the quote they obtained from All Hills Fencing did not include this area. 5. It is not necessary that the applicant use All Hills Fencing to perform the fencing work, but the applicant must use a suitably licensed fencing tradesperson. ORDERS 1. The applicant is to cause the performance of fencing work between the residential property of the applicant and the residential property of the respondents by 6 December 2021 with such work to be performed as follows: 1. Demolish the existing metal and wire mesh fence between the respective properties. 2. Remove any plants or shrubs along the existing fencing line only to the extent necessary to construct a new fence. 3. Construct a 28m x 1.8 m green Colourbond fence along the existing fencing line as set out in the scope of works contained in the quotation of All Hills Fencing dated 15 March 2021 and detailed in the Fencing Notice dated 13 January 2021. 4. Extend the green Colourbond fence for a further 12 m toward the front boundary of the respective properties as set out in the Fencing Notice dated 13 January 2021. 5. The applicant is to give the respondents 3 clear business days written notice of the date the fencing work will occur. Notice by email is sufficient. 6. The fencing work is to be performed by a person who holds a valid licensed issued by NSW Fair Trading to perform fencing work. 7. The respondents are to give reasonable access to their property to the licensed tradesperson performing the fencing work so that the existing fence can be demolished and a new fence be constructed in accordance with these orders. 8. Within 28 days of the completion of the fencing work set out in these orders, the respondents are to pay the applicant $2,358. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 November 2021