Facer v Rosenberg [2021] NSWCATCD 144

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Facer v Rosenberg [2021] NSWCATCD 144 Hearing dates: 23 July 2021 Date of orders: 22 November 2021 Decision date: 22 November 2021 Jurisdiction: Consumer and Commercial Division Before: R Notley, Senior Member Decision: The applicants are to cause the performance of fencing work between the residential property of the applicants and the residential property of the respondents by 31 March 2022 with such work to be performed as follows: (a) demolish the existing timber paling 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 17.65 metre x 1.8 metre treated pine timber paling fence with 50mm galvanised steel posts as set out in the scope of works contained in the quotation of Active Fencing & Access Timbers dated 3 February 2021 and detailed in the Fencing Notice dated 3 February 2021; (d) the new timber paling fence is to be constructed on the common boundary line, or as close to the common boundary line as possible, as defined on the survey dated 2 August 2019 and prepared by Matthew Cooper and, where appropriate, incorporate both the posts for the retaining wall constructed on the applicants' property and the Colorbond fence constructed on the respondent's property; (e) the new timber paling fence is to be 1.8 metres from existing ground level and not 1.8 metres from the height of the retaining wall on the applicants' property; (f) the applicants are to give the respondent three (3) clear business days written notice of the date the fencing work will occur. Notice by email is sufficient; (g) the fencing work is to be performed by a person or business who holds a current and valid contractor licence permitting them to perform fencing work; (h) the respondent is to give reasonable access to his 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; and (i) within 28 days of the issuing of any invoice(s) by the licensed tradesperson performing the fencing work set out in these orders, the respondent is to pay the applicants an amount equivalent to 50% of the invoice(s). Catchwords: DIVIDING FENCES — Whether existing fence sufficient — Should Tribunal exercise discretion to order replacement of fence — Contribution to new fence Legislation Cited: Civil and Administrative Tribunal Rules 2014 (NSW) Dividing Fences Act 1991 (NSW) Hornsby Local Environmental Plan 2013 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Cases Cited: Nicholls v Fortmann [2020] NSWCATAP 52 Purcell v Chadwick [2018] NSWCATAP 250 Texts Cited: Nil Category: Principal judgment Parties: Jonathan Facer (First Applicant) Christina Facer (Second Applicant) David Rosenberg (Respondent) Representation: First and Second Applicant (Self-represented) Respondent (Self-represented) File Number(s): COM 21/10595 Publication restriction: None