Huang v Finch [2022] NSWCATCD 182

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Huang v Finch [2022] NSWCATCD 182 Hearing dates: 30 May 2022 Date of orders: 20 September 2022 Decision date: 20 September 2022 Jurisdiction: Consumer and Commercial Division Before: G Sarginson, Senior Member Decision: (1) The applicant is to cause the performance of fencing work between Lot 327 of Deposited Plan 238119 ('the applicant's property') and Lot 326 of the Deposited Plan 238119 ('the respondent's property') by 3 months from the date of this decision with such work and contribution for such work to be as follows: (a) Demolish and remove the existing wire mesh fence. (b) Construct a slate grey Colorbond fence 1.8m in height and a length of 32.01 m positioned on the boundary line between the applicant's property and the respondent's property as identified in the survey report of Mark Anthony Reid survey date 19 February 2022. (c) The area along the boundary is only to be cleared to the extent necessary to construct the replacement fence, including locating fence posts into the ground. (d) In respect of any trees located on the common boundary where the fence is to be constructed, such trees cannot be removed unless the applicant has obtained any applicable consent from local government authorities (including Tree Management Permits) and has complied with any conditions imposed by local government authorities. (e) The fencing work is to be performed by a suitably licensed fencing contractor selected by the applicant, and any other suitably licensed person selected by the applicant necessary to comply with any applicable consent conditions from local government authorities (including Tree Management Permits) for the removal of trees necessary to construct the replacement fence. (f) The applicant is to give the respondent three (3) clear business days' notice of the date the fencing work will occur. Notice by email is sufficient. (g) The respondent and any person occupying the respondent's property are to give reasonable access to the respondent's property to the licensed persons performing the fencing work so that the existing fence can be demolished and removed; and the replacement fence constructed in accordance with these orders. (h) The applicant is to pay for the fencing work with the respondent to provide a contribution to the cost of the fencing work by way of making a payment to the applicant as set out in these orders. (i) By 28 days from the date of the completion of the fencing work set out in these orders the respondent is to pay the applicant $3,903.50. (2) If either party seeks a costs order it is to notify the Tribunal and the other party in writing by 14 days from the date of this decision. If a costs application is made the Tribunal will issue further procedural directions setting out the manner in which the costs application is to be determined. Catchwords: LAND LAW---Dividing fence---Dividing Fences Act 1994 (NSW)---Time to commence Tribunal proceedings---Whether time should be extended----Sufficient dividing fence---Replacement fence---Type and position of replacement fence---Removal of vegetation to construct replacement fence---Removal of trees Legislation Cited: Civil and Administrative Tribunal Act 2014 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Dividing Fences Act 1994 (NSW) Interpretation Act 1987 (NSW) Local Land Services Act 2013 (NSW) Roads Act 1993 (NSW) State Environmental Planning Policy (Biodiversity and Conservation) 2021 (NSW) Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 JDW Services Pty Ltd as trustee for JDW Superannuation Fund as v O'Dea [2022] NSWCATCD 29 Minifie v Maxwell [2020] NSWCATAP 30 Nicholls v Fortmann [2020] NSWCATAP 52 Purcell v Chadwick [2018] NSWCATAP 250 Zheng v Lee [2021] NSWCATCD 94 Texts Cited: Nil Category: Principal judgment Parties: Qian Huang (Applicant)