Larney v Johannson [2012] NSWSC 1297

Supreme Court New South Wales

Medium Neutral Citation: Larney v Johannson [2012] NSWSC 1297 Hearing dates: 14 August 2012 Decision date: 14 August 2012 Jurisdiction: Common Law Before: Adams J Decision: 1. Appeal dismissed. 2. Indemnity costs in favour of the defendant. Legislation Cited: Dividing Fences Act 1991 Uniform Civil Procedure Rules 2005 Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333 Alwiah v Watts [2004] NSWSC 948 Brown v Doyle [2010] NSWSC 1269 Category: Principal judgment Parties: Ismail Larney (Plaintiff) Angela Johannson (First Defendant) New South Wales Local Land Board (Second Defendant) Representation: L Doust (Plaintiff) A Davis (First Defendant) Griffiths Delaney & Co (Plaintiff) Fox O'Brien Solicitors & Conveyancers (First Defendant) I V Knight, Crown Solicitor (Second Defendant) File Number(s): 2012/72116

EX TEMPORE Judgment Introduction 1Two neighbours were in conflict over a dividing fence. Their dispute came before a Local Land Board pursuant to the Dividing Fences Act 1991 (the Act). The Board, constituted by Senior Chairman Boyce, heard the matter on 6 February 2012 and issued a determination on the same day. The Senior Chairman, in addition to hearing from the parties, who were unrepresented, also visited the site. The chronology of events 2On about 17 October 2011, the Defendant gave the Plaintiff notice that she required the Plaintiff to contribute towards the construction of a fence on the boundary between the properties. The notice stated that the fence proposed to be constructed was "wire fencing". A further notice from the Defendant dated 6 November 2011, in similar form but nominating "black PVC wire" as the form of fencing and attaching a quote for works, was also served on the Plaintiff. The Plaintiff wrote to the Defendant on 9 November 2011 in which he confirmed a letter dated 7 November 2011, his objection to the proposed fence on the following grounds - (a)the type of fencing proposed was out of keeping with that in the local area; and (b)the location of the proposed fence, in particular, his concern that there would be damage to a rocky outcrop and grass trees. The Plaintiff indicated he would make application to the Local Land Board in respect of the proposed fencing (for the fence to be rebuilt and any damage to natural features be restored) at the expiration of one month. 3On 11 November 2011, a contractor engaged by the Defendant erected a fence of the type she had foreshadowed in her notice, and which had been objected to by the Plaintiff. The fence was described by the Local Land Board in its reasons (at [7]) as being - "... built mostly within the Respondent's [Defendant's] land, splaying on to the Applicant's [Plaintiffs] land to join up with the end of a paling fence next to a sandstone rock outcrop." The Plaintiff's application of 11 December 2011 to the Local Land Board to deal with the matter was accompanied by a letter dated 10 December 2011 asking the Board to "determine the manner in which fencing work (if any) is to be carried out at the rear of the above mentioned property". The Plaintiff set out the history of correspondence between the parties, which is recited above. The Plaintiff identified, at the conclusion of the letter, the determinations he sought from the Board, being - "(i) That the large boulder on the property be deemed sufficient for a dividing fence (Pictures Annex B). (ii) That the rest of the fence comply with the restrictions stated on DP 262462, as well as the Sydney Water Easement Guidelines, dated 13 September 2010, page 15, item 2.2.2.2 (a) (1) "erect, construct or place any building, structure, retaining walls and/or fences (With the exception of boundary fences with removable panels which can be readily dismantled)". (iii) That the newly erected fence be removed at the cost of Mrs Johansson." The Local Land Board conducted a hearing on 6 February 2012 which was attended by both the Plaintiff and the Defendant. The appeal 4The unsuccessful applicant before the Board appealed to this Court pursuant to s 19 of the Act, which states - (1) Any order made by the Local Court or a local land board under this Act is final. (2) However, a party to proceedings under this Act who is dissatisfied with the order of the Local Court or a local land board as being erroneous in point of law, may appeal to the Supreme Court. (3) Any person may apply to the Supreme Court for an order directing a Magistrate of the Local Court or a local land board to perform any of the functions of the Court or board under this Act (other than under section 13 (2)). 5The dispute boiled down to this: The respondent built a fence, in the result claiming no contribution. Of itself the fence may have constituted, and the Senior Chairman held that it did constitute, a sufficient dividing fence within the meaning of s 6 of the Act which provides - (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. Also relevant is s 14, which provides, so far as may be material - 14 Orders as to fencing work (1) The Local Court or a local land board 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. ... 6The plaintiff sought to agitate the question whether, in the terms of s 14 of the Act, the fencing work that was carried out was inappropriate and, more fundamentally, to argue that no dividing fence was required in respect of all or part of the boundary. As may have been noticed, the plaintiff particularly submitted that an area of rock which stood on or near the boundary was of itself sufficient to constitute a dividing fence, even if by implication. The rest of the fence built by the respondent was appropriate, although I think it is fair to say this last implication was not in express terms conceded. This does not matter for present purposes. 7The Senior Chairman held that, since the fence as already constructed was a sufficient fence, taking into account, as I think he did the consideration specified in s 4, he was not at liberty to go on to consider whether in effect there was a better solution or "a more appropriate sufficient dividing fence", and concluded in particular that the kind of dividing fence proposed by the plaintiff, whether constituted in part by the rock face to which I have already referred or no dividing fence (by implication except for that which might have been regarded as constituted by the rock face) was necessary, upon the basis that, having decided that the existing fence was a sufficient dividing fence within the meaning of s 6, he had no jurisdiction to consider such additional or ancillary matters. Discussion 8This case, I must say, raises difficult questions of statutory interpretation and there is much to be said for both sides of the controversy. 9Ms Doust of counsel for the plaintiff points to the fact that s 6 does not of itself give jurisdiction to the board but simply creates a liability to contribute to the carrying out of fencing work which is required to provide a sufficient dividing fence when such a fence is not already in existence. Accordingly, for the purpose of determining any issue of liability to make a contribution to the carrying out of fencing work, if there is already a sufficient dividing fence in existence, no liability arises. 10However, Ms Doust submits, that that is not an end of the matter. Section 14 of the Act grants specific jurisdiction to the land board to make orders determining any of the matters referred to in that section where there is an application under the Act. Since it is clear that the question of sufficiency of a dividing fence could only arise in the context of an application of one kind or another, s 14 should be read as giving jurisdiction to make orders in respect of the specified matters where there is a question to be determined of the sufficiency of the dividing fence (one being in existence), and that a mere finding in the result that there is already a sufficient dividing fence does not preclude orders in accordance with s 14. 11It is clear, I think, that s 14 justifies a decision to be made on which of two or more proposed fences should be ordered even if all such fences are, as it happens, sufficient. To adapt a phrase from Orwell's Animal Farm, "[though] all fences are sufficient but some fences might be more sufficient than others". 12To my mind, s 14 must permit and perhaps obliges the land board, otherwise having jurisdiction, to choose between proposed fences, even if each of the proposals is sufficient and, indeed, even if one reasonably appropriate proposal is that no dividing fence were required. However, that does not determine the question whether, if there is already a sufficient dividing fence in existence and there is no claim for contribution in respect of construction of that fence, the land board has any jurisdiction to make any determinations, except of course the jurisdictional one in respect of sufficiency of the dividing fence. 13As it happened, of course, here the plaintiff sought to argue that there should be no fence or, on one view, that that part of the boundary constituted by the rock face did not need any fencing, and the fence constructed by the defendant should be removed, each party paying one half of the cost. However, I don't think anything turns on this procedural point. The matter was undoubtedly properly before the land board, and the question of sufficiency of the dividing fence was also properly before the board and no party, I think, suggests otherwise. The dispute concerns whether, having decided that there was a sufficient dividing fence constituted by what had already been constructed, the Senior Member it was correct in going on to say that he had no jurisdiction to consider the alternative proposal of the applicant. 14The interpretation of the Act is regrettably not simple and it is clear that the language needs to be revisited to clarify the point at issue in this appeal. However, I must deal with the matter as it appears before me with the current language. 15The starting point of interpretation is, of course, always the language itself. I think I have already said enough to indicate my view that s 14 is in terms subject only to there being an application validly before the land board. Here the plaintiff asked that the board should determine whether the fencing work he proposed, in substance, the removal of the existing fence or adjustment of it in respect of that part of the boundary constituted by the rock, should be carried out. The issue of the manner in which contributions for this should be apportioned involved necessarily whether, in the circumstances, there should be an order determining that no dividing fence was required in respect of all or part of the boundary and that the existence of his application gave jurisdiction to the land board to determine those matters. 16On the other hand, there already being a fence in existence, if it were indeed a sufficient dividing fence no question of liability to make a contribution to the carrying out of fencing work would arise because s 6(1) required there to be "no sufficient dividing fence" for such a liability to exist. If there were no such liability, the making of orders as to fencing work was unnecessary. It is important to note, as the long title of the Act states, that its purpose was, "to provide for the apportionment of the cost of dividing fences [and to repeal and amend certain other Acts]". It does seem to me to be of some significance that no part of the purpose is said to be to determine disputes as to fencing work, for example, where there is already a sufficient dividing fence between the properties. 17Furthermore, the institution and maintenance of land boards and the requiring of Local Court magistrates to determine matters arising under the Act undoubtedly constitutes a significant public expense. Where opinions may reasonably differ on the appropriateness or aesthetics of a wide range of fencing solutions, each which might well be thought to be sufficient, to permit those matters to be litigated in the absence of a real argument about apportionment of cost might fairly be thought to place an inappropriate burden upon the public purse. So that, where there is already a sufficient dividing fence in existence, whether it had been there for a hundred years or a hundred hours, the State should play no part in settling disputes between quarrelling neighbours about essentially incommensurable matters of taste as to which there is little or no public interest in determining. Of course, where more fundamental planning issues arise, a consideration which is not material here and anyway in respect of which other legislative schemes apply. 18On the other hand, disputes between neighbours over fences can result in bitter and painful conflicts leading sometimes to violence, indeed extreme violence. It is in the public interest that they should be settled by an independent arbiter giving both sides a fair opportunity to be heard on the question, this being indeed the fundamental purpose providing for civil justice. 19Interpretation of the Act is not without some prior consideration in this Court. In Alwiah v Watts [2004] NSWSC 948 the then Master Malpass needed to consider a decision in the Local Court determining an application under the Act in which the learned magistrate determined that the plaintiff had not satisfied him that the existing fence was "an insufficient dividing fence". His Honour stated: "[9] The purpose of the Act is expressed to be to provide for the apportionment of the cost of a dividing fence between adjoining lands. I shall briefly refer to the structure of the legislation. Section 6 purports to enunciate a general principle (which is that an adjoining owner is liable to contribute to the carrying out of fencing work where there is no sufficient dividing fence). Section 4 sets out the matters to be considered when determining the standard for a sufficient dividing fence. Section 14 sets out the orders as to fencing work that may be made by the court. [10] The content of the Act demonstrates that jurisdiction to make orders is dependent upon a finding that there is an insufficient dividing fence between the adjoining lands. Unless that finding is made, no orders can be made. Such a finding gives rise to the liability referred to in s 6 and enables the making of orders pursuant to s 14." 20It is clear therefore that his Honour took the view that the consideration of the matters specified in s 14 could be ancillary only to a finding that an existing dividing fence when one is present was insufficient. 21In Brown v Doyle [2010] NSWSC 1269 Hidden J considered an appeal brought where the land board decided that the proposals of one party rather than the other in respect of a new fence should be accepted but did not make any decision as to whether there was a "sufficient dividing fence within the meaning of section 6". Although, as his Honour in effect states, his view of the relationship between s 6 and s 14 was obiter, he cited the above passage from Alwiah v Watts with approval and, in effect, that the failure of the board to make a finding about the sufficiency of an existing vegetative barrier was to fail to do what was required by the Act. Conclusion 22As I have said, I think the arguments in this matter are equally balanced. My mind has wavered during the helpful exchange with counsel as to the correct view. In the result I have decided that, whilst not obliged to do so, the outcome in this case should be in accordance with the previous decisions made in this Court, applying the practice (if it is not a principle) of judicial comity. 23It follows that the appeal must be dismissed. 24In relation to costs the defendant communicated to the plaintiff an offer of compromise expressly under r 20.26 of the Uniform Civil Procedure Rules 2005 in terms; (1) that the plaintiff's summons is dismissed and (2) that each of the parties are to pay their own costs. 25It is a somewhat controversial question whether the reference to the costs means that this is not an offer pursuant to the Rules. However, the letter added that the defendant relied upon the offer in accordance with the principles in Calderbank v Calderbank [1975] 3 All ER 333, if, as it might turn out, it was not accepted to be an offer within the Rules. Fortunately I do not need to determine this question, since I am satisfied that in the circumstances an order for indemnity costs ought to be made. 26The plaintiff has argued that as the question of statutory interpretation was uncertain and the arguments were evenly balanced it was reasonable for the plaintiff to reject the offer. However, as I have said, the matter was the subject of prior authority in this Court and the practice of judicial comity is of undoubted significance in resolving questions of this kind. In my view it was not reasonable for the plaintiff to have rejected the offer and accordingly I exercise my discretion in favour of the defendant in this regard. 27I make the following orders: (1)The appeal is dismissed. (2)Indemnity costs in favour of the defendant.