Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Larney v Johannson [2013] NSWCA 409 Hearing dates: 12 November 2013 Decision date: 09 December 2013 Before: Meagher JA at [1]; Barrett JA at [14]; Emmett JA at [21] Decision: 1. Leave to appeal be granted. 2. The appeal be dismissed with costs. Catchwords: APPEAL - civil - Dividing Fences Act 1991 - whether power under Act to order removal of fence - whether "fencing work" includes removal of fence - whether proper notice under s 11 was served by appellant owner requiring adjoining respondent owner to contribute to removal of fence erected by respondent owner - where respondent owner who erected fence initially served notices on appellant requiring contribution but then erected fence without seeking contribution - where respondent owner's fence determined to be a sufficient dividing fence - where appellant owner purported to apply under Act to remove fence Legislation Cited: Crown Lands Act 1989 Dividing Fences Act 1991 Fences Dividing Fences Act 1988 Local Government Act 1993 Supreme Court Act 1970, s 101(2)(r) Cases Cited: Alwiah v Watts [2004] NSWSC 948 Larney v Johannson [2012] NSWSC 1297 Texts Cited: Digest of Justinian 10.1 Justinian's Institutes 4.17.6 New South Wales Law Reform Commission, Dividing Fences Report 59, December 1988 - Community Law Reform Program: Dividing Fences Category: Principal judgment Parties: Ismail Larney (Appellant) Angela Johannson (Respondent) Representation: Counsel: RS Angyal SC with D Accoto (Appellant) P Blackburn-Hart SC (Respondent) Solicitors: Hall Partners (Appellants) Fox O'Brien (Respondent) File Number(s): CA 12/283308 Decision under appeal Citation: Larney v Johannson [2012] NSWSC 1297 Date of Decision: 2012-08-14 00:00:00 Before: Adams J File Number(s): 2012/72116 Judgment 1MEAGHER JA: The Dividing Fences Act 1991 provides for the apportionment between adjoining owners of the cost of dividing fences. By s 6 it creates a liability of an adjoining owner to contribute to the carrying out of "fencing work" in circumstances where there is no "sufficient dividing fence". Part 3 sets out the procedure for determining the existence and extent of that liability. It provides by s 11(1) that an adjoining owner may require the other owner to contribute to the carrying out of fencing work by serving a notice to that effect on the other owner. Section 11(5) describes circumstances in which an adjoining owner is not liable to contribute for particular "fencing work". They include, subject to exceptions not presently relevant, that work is carried out before a notice under s 11(1) has been given. 2The Act also provides a mechanism for the resolution of disputes as to the nature and extent of "fencing work" which is the subject of a notice requiring contribution, and as to the respective liabilities of the adjoining owners to contribute to the cost of it. In the event that owners cannot agree as to those matters, on the application of either of them under s 12 a local land board constituted under the Crown Lands Act 1989 may make orders under s 14 directed to determining those disputes in a way that binds the parties. The matters in respect of which such orders may be made include the type of "fencing work" to be carried out, and whether, in the circumstances, "no dividing fence is required in respect of all or part of the boundary" (s 14(1)(g)). 3The applicant (Mr Larney) and the respondent (Ms Johannson) are owners of adjoining land at Bonnet Bay. In November 2011 a contractor retained by Ms Johannson erected a fence along an 11.295m length of the boundary at the rear of their properties. That fence is a black plastic coated chain wire fence with black steel posts and top rails. The posts are approximately 2m in height. At one point the fence wraps around a sandstone rock outcrop on the boundary. Although Ms Johannson had previously given notice to Mr Larney that she required Mr Larney to contribute to the cost of constructing that fence, she did not pursue that claim, reach an agreement with him concerning the fencing work or seek any orders in relation to the work that was carried out. 4Mr Larney objected to the fencing work as carried out and sought to have it removed. On 10 December 2011 he made an application to a local land board. By its terms that application was made under s 12 for orders under s 14 determining the manner in which "fencing work" was to be carried out. It was made using a standard form which was suitable where the applicant had previously served on the adjoining owner a notice under s 11 requiring that owner to contribute to the carrying out of the "fencing work" which was the subject of the application. However, Mr Larney had not at that time, and has not at any time thereafter, served such a notice on Ms Johannson. 5Having recited, contrary to the fact, that such a notice had been served requiring that Ms Johannson contribute to the carrying out of "fencing work", Mr Larney's application sought orders determining the manner in which that work was to be carried out. It described the work in the following terms: "(1) That the large boulder be deemed sufficient for a dividing fence. (2) That the fence comply with the restrictions as per DP XXX and Sydney Water Guidelines. (3) That the newly erected fence be removed." It estimated the cost of that "fencing work" at $2,000. 6The application was heard and determined by a local land board, constituted by Mr PL Boyce, Senior Chairman, on 6 February 2012. In his oral submissions to the board Mr Larney indicated that he sought orders that "a large boulder on my property or on the property is deemed sufficient for a dividing fence" and that the "unsafe fence recently built by Ms Johannson" be removed. As the matter was explained in this Court, the "fencing work" in respect of which Mr Larney sought contribution and which was the subject of his application was the work of removing the existing fence constructed by Ms Johannson. 7The local land board dismissed Mr Larney's application on the basis that there was a "sufficient dividing fence" between the properties as a result of the work undertaken by Ms Johannson. Mr Larney appealed from that decision to the Supreme Court under s 19(2) of the Dividing Fences Act. That appeal was limited to errors of law and was dismissed by the primary judge (Adams J): Larney v Johannson [2012] NSWSC 1297. Mr Larney seeks leave to appeal from that decision and requires an extension of the time in which to do so. 8In my view leave to appeal should be granted and the appeal dismissed. The local land board did not err in dismissing Mr Larney's application. It did so on the basis that the fence constructed by Ms Johannson was a "sufficient dividing fence". Accordingly, it determined that there was no order which could be made in respect of the "fencing work" which was the subject of Mr Larney's application. It did so because what was proposed as "fencing work" by Mr Larney could not be the subject of a liability under s 6(1) as there already was a "sufficient dividing fence" on that part of the boundary between the properties. That conclusion as to the sufficiency of the existing fence was available on the evidence and is not challenged. 9There are two, more fundamental, reasons why the local land board was correct to dismiss Mr Larney's application. The first is that the subject matter of his application for orders under s 14 was not "fencing work" as defined in s 3. That definition includes: "(a) The design, construction, replacement, repair or maintenance of the whole or part of a dividing fence." The work which Mr Larney sought to carry out does not answer any of those descriptions. He does not seek to demolish the existing fence, in whole or part, so as to repair or replace it. 10The second is that he had not, as required by s 12(2) as a precondition to his entitlement to apply to the local land board for orders under s 14, served a notice on Ms Johannson under s 11 in respect of any "fencing work". 11Under the Dividing Fences Act contribution only may be sought in respect of "fencing work". If there is an issue as to whether there is an existing "sufficient dividing fence" so as to attract the liability created by s 6, that issue may be resolved by an application under s 12(2). However, if there is no application under s 12 and "fencing work" is undertaken without agreement or contribution being sought, the Act does not provide for a subsequent determination as to the merits or otherwise of that work. This was acknowledged to be the position by the New South Wales Law Reform Commission in its Dividing Fences Report, (LRC 59, December 1988) at 3.52. 12There is one circumstance in which an adjoining owner may invoke the provisions of the Act after a dividing fence has been erected without agreement and contribution. If it is maintained that what has been erected is not a "sufficient dividing fence" a notice may be served requiring the adjoining owner to contribute to the carrying out of whatever further "fencing work" may be necessary to produce that result. Such work would be within s 6(1). That course was not taken by or available to Mr Larney - he did not propose to carry out "fencing work" and the work he did seek to carry out was in respect of what the local land board has found to be a "sufficient dividing fence". That work could not be the subject of a liability to contribute under s 6(1). 13I agree with the orders proposed by Emmett JA. 14BARRETT JA: The circumstances giving rise to these proceedings and the issues they raise are described in the judgments of Meagher JA and Emmett JA. 15In the course of his submissions, Mr Angyal SC, counsel for Mr Larney, canvassed a multitude of matters concerning the construction of the Dividing Fences Act 1991. His client's case is, however, doomed to fail on one narrow but vital point. 16Central to Mr Larney's case is the proposition that, if the whole or a part of an existing dividing fence is demolished so that no fence or other structure remains in the place in which the dividing fence or part previously stood, the demolition constitutes "fencing work" within the s 3 definition because it entails the "replacement" of the whole or part of the fence concerned. No other aspect of the s 3 definition of "fencing work" was relied upon; nor could it be, given that the elements, in addition to "replacement", are "design", "construction", "repair" and "maintenance". 17The argument is that, in the circumstances outlined, there is "replacement" of the fence by the natural features of the unimproved land from which the fence has been removed - such as the boulder or rock outcrop that played a large part in the facts of this case. 18As a matter of plain language, the argument is untenable. There can be no "replacement" of a thing unless another thing is put into its place. A paling fence may be replaced by a post and rail fence, a chain wire fence, a barbed wire fence, a brick wall, another paling fence or a structural barrier of some other kind. But unless something is substituted for it, the fence is not replaced at all. The operation that Mr Angyal's client wishes to see characterised as the "replacement" of a fence or part of a fence is in truth the elimination of the fence or part. 19It follows that no "fencing work", as defined by s 3, was contemplated by Mr Larney's application of 10 December 2011. The Local Land Board therefore had no power to make the order that Mr Larney sought; and his appeal to the Supreme Court under s 19(2) of the Act was rightly dismissed. 20Orders should be made as Emmett JA proposes. 21EMMETT JA: These proceedings concern the construction of the Dividing Fences Act 1991 (the Act). It arises out of a dispute between the appellant, Mr Ismail Larney, and the respondent, Mrs Angela Johannson, who own adjoining parcels of land situated in Bonnet Bay, New South Wales. Their dispute concerns the type and location of fencing on part of their common boundary. 22Mr Larney made an application to a local land board on 10 December 2011. On 6 February 2012, a local land board for the Metropolitan Local Land District (the Board) found that a fence newly erected by Mrs Johannson was a sufficient dividing fence. Having made that finding, the Board concluded that it was precluded from entertaining Mr Larney's application and thus dismissed it. 23Mr Larney then appealed to the Supreme Court under s 19 of the Act. Under s 19, an order made by a local land board under the Act is final. However, a party to proceedings under the Act who is dissatisfied with the order, as being erroneous in point of law, may appeal to the Supreme Court. A judge of the Common Law Division heard Mr Larney's appeal on 14 August 2012 and dismissed it with costs. 24Mr Larney filed a notice of appeal on 14 November 2012. No application for leave to appeal was filed, notwithstanding that the sum involved is clearly well below $100,000. Under s 101(2)(r) of the Supreme Court Act 1970, there is no appeal as of right even in relation to a final judgment or order if the claim is worth less than $100,000. However, on 6 August 2013 Mr Larney filed a summons seeking leave to appeal. At the same time, he filed a further amended notice of appeal. 25The proceedings raise questions concerning the construction of the Act and so are all questions of law. Leave was not opposed. In the circumstances, it is appropriate to grant leave to appeal. Before dealing with the grounds of appeal, it is desirable to say something about the scheme of the Act. The Act 26According to its long title, the Act was passed "to provide for the apportionment of the cost of dividing fences". The pivotal provisions of the Act are to be found in Part 2, which consists of s 6 to s 10 inclusive and deals with liability for fencing work. 27Section 6 is headed: "General principle - liability for fencing work". Section 6(1) relevantly provides that 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 would result in the provision of a dividing fence of a standard not greater than the standard for a sufficient dividing fence. That provision applies whether or not a dividing fence already separates the adjoining lands. Under s 7, adjoining owners are liable to contribute in equal proportions to the carrying out of fencing work in respect of a dividing fence of a standard not greater than the standard for a sufficient dividing fence. 28Part 1 of the Act, which consists of s 1 to s 5, contains a number of definitions. Thus, adjoining owners are the owners of land on either side of a common boundary. A dividing fence is a fence separating the land of adjoining owners, whether on the common boundary of adjoining lands or on a line other than the common boundary. Fence means a structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land, whether or not continuous or extending along the whole of the boundary separating the land of adjoining owners, and includes: (a) a gate, cattlegrid or apparatus necessary for the operation of a fence; (b) a natural or artificial watercourse that separates the land of adjoining owners; and (c) a foundation or support necessary for the support and maintenance of the fence, but does not include a retaining wall or a wall that is part of a house, garage or other building. 29The term fencing work is of some significance in the appeal. That term is defined as: (a) the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence; and (b) the surveying or preparation of land along or on either side of the common boundary of adjoining lands for such a purpose, and includes: (c) the planting, replanting and maintenance of a hedge or similar vegetative barrier; and (d) the cleaning, deepening, enlargement or alteration of a ditch, embankment or watercourse that serves as a dividing fence. 30Section 4 of the Act relevantly provides that in any proceedings under the Act, all the circumstances of the case are to be considered when determining the standard for a sufficient dividing fence and, in particular, the following are to be considered: (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 landowners; and (d) the kind of dividing fence usual in the locality. 31Part 3, which consists of s 11 to s 19 inclusive, deals with procedure and implementation. Under s 11(1), an adjoining owner may require the other adjoining owner to contribute to the carrying out of fencing work by serving a notice to that effect on that other adjoining owner. The notice must specify the boundary line on which the fencing work is proposed to be carried out, the type of fencing work proposed and its estimated cost. Section 11(5) provides that an adjoining owner is not liable to contribute to the cost of any fencing work: * carried out before a notice under s 11 is served on the adjoining owner; or * carried out after the service of such a notice and before agreement is reached by the adjoining owners concerning the fencing work or before the matter has been determined by a local land board. However, there are exceptions to those restrictions in ss 9, 17 and 22. * 32Section 9 provides that where urgent fencing work is required and it is impracticable to serve a notice under s 11, an adjoining owner may carry out urgent fencing work to restore the dividing fence and the other adjoining owner is liable for half the cost. The Local Court or local land board may review any such liability on application by the adjoining owner. 33Under s 17, where the Local Court or the local land board is satisfied that the adjoining owner has made reasonable enquiries but has been unable to ascertain the whereabouts of the other adjoining owner for the purposes of serving a notice under s 11, an application may be made to the Local Court or a local land board for an order authorising the carrying out of fencing work, including the manner in which contributions for the work are to be apportioned. The adjoining owner may apply for a variation of such an order. 34Section 22 provides that a notice demanding contribution may be given up to 12 months after the fencing work concerned has been carried out, but only with the leave of the Local Court or a local land board. Leave may only be granted if the Local Court or local land board is satisfied that the owner seeking to serve a notice has mistakenly taken action in respect of the dividing fence under some other Act or considers it to be just or equitable in the circumstances for leave to be granted. 35Under s 12, if adjoining owners do not agree as to the fencing work to be carried out, either adjoining owner may apply to the Local Court or a local land board for an order determining the manner in which the fencing work, if any, is to be carried out. Section 13 confers jurisdiction on the Local Court and on a local land board to hear and determine any matter arising under the Act. Clearly, an application under s 12 would be such a matter, as would applications under ss 9, 17 and 22. 36Under s 14, the Local Court or a local land board is authorised to make, in respect of an application under the Act, 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; (b) the fencing work to be carried out; (c) the manner in which contributions for the fencing work are to be apportioned; (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; and (f) the amount of compensation in consideration of loss of occupation of any land. The Local Court or a local land board may also determine that in the circumstances no dividing fence is required in respect of all or part of the boundary of the adjoining lands. 37Section 18 specifies a procedure for defining boundary lines, a problem recognised for at least 2000 years. The Romans had a procedure for judicial determination of boundaries where there was a dispute between adjoining owners (see Digest 10.1 and Institutes 4.17.6). 38Under s 18(1), if adjoining owners do not agree on the position of their common boundary line for the purposes of carrying out fencing work, one adjoining owner may give notice to the other adjoining owner of his or her intention to have the common boundary line defined by a registered surveyor. The owner receiving the notice may either define the position of the common boundary line by pegs or employ a registered surveyor to define the common boundary line. In either case, the owner receiving the notice is required to inform the other adjoining owner of what has been done. If the owner to whom the notice is given has either defined the common boundary line by pegs or failed to have the common boundary defined by a registered surveyor, the owner giving the notice may have the common boundary line defined by a registered surveyor. Sections 18(4) and 18(5) deal with the apportionment of the costs incurred in having the common boundary line defined by a registered surveyor. 39Part 4 of the Act, which consists of s 20 and following, deals with miscellaneous matters. Section 24 provides that any money that an adjoining owner is required or liable to pay under the Act may be recovered as a debt in a court of competent jurisdiction. Section 24(3) provides that a local land board may, on the application of an adjoining landowner, make an order determining an amount that one adjoining owner is required or liable to pay under the Act to the other adjoining owner. Background to the Dispute 40The parcels of land owned by Mr Larney and Mrs Johannson are both very steep, with the highest point being above a rock outcrop at the rear. Both parcels drop sharply in level to their street frontages. Part of the common boundary is unfenced and part is fenced. The rear part of the common boundary is now fenced with a black plastic-coated chain wire fence with black steel posts and top rails (the New Fence), which is part of a longer newly erected fence of the same type that forms the dividing fence with other parcels adjoining Mrs Johannson's land. Because of the land levels and topography, it is difficult to determine the height of the New Fence with any accuracy. The chain wire of the New Fence is a standard width of approximately 1.8 metres high affixed to posts about 2 metres in height. The posts vary in height above ground level because of the extremely steep land. 41A contractor retained by Mrs Johannson erected the New Fence during the period commencing on 11 November 2011 and ending on 10 December 2011. It is built mostly within Mrs Johannson's land, splaying onto Mr Larney's land to join up with the end of a paling fence next to a sandstone rock outcrop. The New Fence was erected without cost to Mr Larney. 42Prior to having the New Fence erected, Mrs Johannson gave three notices to Mr Larney that she required him "to contribute by paying half of the cost of construction of a dividing fence between the properties belonging to the parties". Each purported to be pursuant to "s 20 of the Fences Dividing Fences Act". One was dated 16 and 17 October 2011, one was dated 17t October 2011, and the third was dated 6t November 2011. 43Each notice states Mrs Johannson's name to be spelt "Johansson" and each is also signed by her using that spelling, which is consistent with the title of the proceedings before the Board. However, since all of the originating processes in the Supreme Court at first instance and on appeal spell the name as "Johannson" and the point was not raised by her counsel, it is appropriate to use that spelling. 44Each notice identified the two parcels of land in question. but they differed in terms of the kind of fence proposed. The notice of 16 and 17 October 2011 specified "wire fencing", the notice of 17 October 2011 specified "paling (or cyclone, if paling is not suitable for terrain or rocky soil type)" and the notice of 6 November 2011 specified "black PVC wire (as per attached quote)". 45A quotation attached to the notice of 6 November 2011, which contained a brief description of proposed fencing, covered fencing beyond the common boundary between the parcels owned by Mrs Johannson and Mr Larney. It appears that the New Fence was constructed in accordance with that quotation. 46On 7 November 2011, Mr Larney wrote to Mrs Johannson acknowledging receipt of the three notices. The letter stated: I oppose the construction of a fence as indicated on your drawing, between my backyard and the easement to drain water. The fence, as proposed by you, will have a negative impact on the ambience, enjoyment and value of my land. It will impede the access of water board officials to service their easement. 47Mr Larney wrote again on 9 November 2011 confirming his objection to the type of fencing to be built. He said in that letter that: the proposed fencing is neither in keeping with fencing in the area or on the boundaries of your property and mine. He also confirmed his objection to the location of the fencing, with particular reference to the possible damage to natural rock outcrops and grass trees. Mr Larney's letter of 9 November 2011 said that at the expiration of one month he would make an application to a local land board for the fence "to be rebuilt and any damages to natural features restored". 48On 10 December 2011, Mr Larney sent to the Department of Lands an application to the Board. The application was sent under cover of a letter dated 10 December 2011. The letter was accompanied by copies of the following: Mr Larney's letter of 9 November 2011 to Mrs Johannson; photographs of the site; Mrs Johannson's notice of 17 October 2011; Mrs Johannson's notice of 6 November 2011; Mr Larney's letter to Mrs Johannson of 7 November 2011; and Mr Larney's letter to Mrs Johannson of 9 November 2011. 49By his application, Mr Larney asserted that on 9 November 2011 he had served on Mrs Johannson a notice under s 11 of the Act requiring her to contribute to the carrying out of fencing work. In the covering letter, Mr Larney also referred to that letter as "a notice to fence". The only document served on 9 November 2011 was the letter of that date described above, which confirmed Mr Larney's objection to Mrs Johannson's proposed fencing work. As indicated above, the letter stated that Mr Larney would "make application to the Land Board for the fence to be rebuilt and any damages to natural features, restored". The purpose of a notice to carry out fencing work under s 11 is "to require the other adjoining owner to contribute ... to the carrying out of fencing work by serving a notice in writing to that effect" (emphasis added). Neither Mr Larney's letter of 9 November 2011, nor his letter of 7 November 2011 to which it referred, sought contribution from Mrs Johannson. Neither letter made any reference to the notion of contribution or, for that matter, to the Act or any other Act. Mr Larney's letter of 9 November 2011 was not a notice under s 11 of the Act. 50Mr Larney's application asserted that the alleged notice had proposed that fencing work be carried out on the common boundary and that the fencing work was as follows: (1) [t]hat the large boulder be deemed sufficient for a dividing fence; (2) [t]hat the fence comply with the restrictions as per DP262462 and Sydney Water Guid[e]lines; (iii) [t]hat the newly erected fence be removed. The references to "DP 262462" and to "Sydney Water Guid[e]lines" were a misconception and can be ignored for present purposes. The application proposed that the estimated cost of the fencing work, of $2,000, be borne in equal proportions. The application also asserted that one month had expired since the alleged notice had been given and that no agreement had been reached regarding the fencing work to be carried out. 51The covering letter of 10 December 2011 said that Mr Larney's application "to do fencing work" was motivated by the fact that on 11 November 2011 Mrs Johannson had commenced fencing work to which he objected. The letter then said: Mrs Johansson, my next door neighbour, has a history of vexatious behaviour. She is building a fence across my grass lawn. The newly constructed fence butts against a natural rock feature. The location of the fence on my lawn has a significant impact on the safety, enjoyment and the ambience of my backyard. We have enjoying the ambience of seeing the rock feature since 1981, when we bought the land. ... I object to this fence and hereby appeal to the board to consider the following: (1) [t]hat the large boulder on the property be deemed sufficient for a dividing fence ... . (2) [t]hat the rest of the fence comply with the restrictions stated on DP 262462, as well as the Sydney Water Easement Guidelines ... . (3) [t]hat the newly erected fence be removed at the cost of Mrs Johansson. [emphasis in original] There was no evidence that the letter of 10 December 2011 was served on Mrs Johannson. 52There is a clear conflict between the claim in the covering letter, that the New Fence be removed "at the cost of Mrs Johannson" and the claim in the body of the application that "the estimated cost of the fencing work [of ]$2,000.00 be borne in equal proportions". That conflict appears never to have been resolved. It highlights the difficulty in determining precisely what application Mr Larney was making to the Bboard. The Decisions of the Board and the Primary Judge 53There was some dispute about the location of the common boundary between the two parcels of land. The Board found that the New Fence was erected wholly within Mrs Johannson's land, apart from where it was physically difficult to do so. The Board also found that despite Mr Larney's allegations as to location of the common boundary, none of the survey evidence supported his contentions. The Board found that the surveyors were sufficiently close in their findings so as to determine that the fence is built entirely on Mrs Johannson's land, except for a "short part" on Mr Larney's land. The Board found that, having regard to "the very difficult topography of the land, other options for fencing would be limited". 54The Board referred to the decision of Malpass M in Alwiah v Watts [2004] NSWSC 948. In that case, the plaintiff proposed that the height of the existing common boundary fence be increased and that a retaining wall in front of the fence be replaced. The Local Court dismissed the plaintiff's application under the Act on the basis that the plaintiff had not established that the existing dividing fence was an insufficient dividing fence. On appeal to the Supreme Court, Malpass M held that the jurisdiction to make orders under the Act was dependent upon a finding that there was an insufficient dividing fence between adjoining lands. He considered that such a finding would give rise to the liability referred to in s 6, enabling the making of orders under s 14, and that unless such a finding was made no order could be made. Since the Local Court was not satisfied that there was an insufficient dividing fence, Malpass M held that there was no error in concluding that the Local Court had no jurisdiction. 55Applying Alwiah v Watts, the Board held that its jurisdiction to make orders was dependent upon a finding that there was an insufficient dividing fence between the adjoining parcels of Mr Larney and Mrs Johannson. The Board found that though there had been no fence between the adjoining parcels before Mrs Johannson erected the New Fence, in all of the circumstances the New Fence was a sufficient dividing fence. The Board therefore concluded that it was precluded from entertaining Mr Larney's application. 56The primary judge also referred to Alwiah v Watts. His Honour considered that s 14 permits, and possibly obliges, a local land board that otherwise has jurisdiction to choose between proposed fences, even if each of the proposals is sufficient or even if one reasonably appropriate proposal is that no dividing fence is required. However, his Honour said that that does not determine the question of 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, a local land board would have any jurisdiction to make a determination other than in respect of the sufficiency of the dividing fence. 57The primary judge referred to Mr Larney's argument that that part of the boundary constituted by the rock face did not need any fencing and that the fence constructed by Mrs Johannson should be removed, each party paying half of the cost. His Honour considered that the matter was properly before the Board and the question of the sufficiency of the dividing fence was also properly before the Board. His Honour concluded that, having decided that the New Fence was a sufficient dividing fence, the Board was correct in saying that it had no jurisdiction to consider Mr Larney's alternative proposal to remove it. The Appeal 58In his Further Amended Notice of Appeal filed on 6 August 2013, Mr Larney asserted that the Board erred in holding that its jurisdiction was dependent on a finding that there was no sufficient dividing fence between the two adjoining parcels of land. He also asserted that the primary judge erred in holding that if there was a sufficient dividing fence between the adjoining lands, there was no jurisdiction under the Act for the Board to entertain an application for a determination that no dividing fence was required and that an existing fence be removed. 59In the course of the hearing of the appeal, senior counsel for Mr Larney indicated that Mr Larney's application of 10 December 2011 should be understood as an application for contribution to the cost of removing that part of the New Fence that has been erected across the rock face. Senior counsel was unable to point to any specific provision of the Act conferring a power on a local land board to make such an order. 60Mr Larney contended that the Act should be construed as authorising a Local Court or a local land board to order the removal of the New Fence. First, he argued that s 22 would be rendered nugatory if it were not so construed. As indicated above, s 22 authorises the grant of leave to serve a notice demanding contribution under the Act up to 12 months after the fencing work concerned has been carried out. However, s 22 would clearly still operate where an adjoining owner carries out fencing work and then seeks contribution to the cost of that fencing work. 61Mr Larney also complains that the consequence of the conclusion reached by the Board and the primary judge is that, where an adjoining owner gives notice of an application for a determination that no dividing fence is required and for an order that any dividing fence constructed in the meantime be removed, the other adjoining owner could deprive the Local Court or the local land board of jurisdiction by erecting a sufficient dividing fence before determination of the application. That contention, however, begs the question. Under s 14(g), the Act gives power to the Local Court and local land board to determine, in respect of an application under the Act, that no dividing fence is required. There is no provision in the Act for an application to be made for a determination that no dividing fence is required. There is no provision in the Act for an order that a dividing fence be removed. 62Section 13 confers jurisdiction on the Local Court or a local land board to hear and determine any matter arising under the Act. Section 14 provides that the Local Court or a local land board may, in respect of an application under the Act, make an order determining one or more of the matters set out in s 14(1). Removal of an existing fence is not one of those matters. 63Mr Larney also contended that a further consequence of the decisions of the Board and the primary judge is that an adjoining owner can, by erecting a sufficient dividing fence during the period of notice required by the Act, deprive the Local Court or local land board of jurisdiction to consider a foreshadowed application that no dividing fence is required, thereby encouraging self-help and exacerbating disputes between adjoining owners. Once again, however, the contention begs the question. Section 14 authorises a determination that no dividing fence is required, but only in the context of a notice requiring contribution to the cost of fencing work. 64The Act is not concerned with resolving disputes between adjoining owners as to whether one adjoining owner should be permitted to erect a dividing fence on the land of that adjoining owner contrary to the wishes of the other adjoining owner. There is nothing in the Act to prevent an adjoining owner from carrying out fencing work, within the meaning of the Act, on the land of that adjoining owner. There may be requirement under the Local Government Act 1993 for approval to be given by a local council for erection of a dividing fence. However, that has nothing to do with the Act. 65The notices given by Mrs Johannson could have formed the basis of an application by her for contribution to the dividing fence specified in those notices. They could also have formed the basis of an application by Mr Larney under s 12(2) for an order "determining the manner in which the fencing work (if any) is to be carried out". However, that is not the relief Mr Larney seeks. Rather, Mr Larney seeks an order removing a fence that has already been determined to be a sufficient dividing fence. If Mrs Johannson had not served any notice on Mr Larney, there would have been no basis for Mr Larney to make any application under the Act to the Local Court or to a local land board. 66To the extent that any part of the New Fence has been constructed on Mr Larney's land, Mr Larney may have a ground for complaint in trespass, but not under the Act. Further, he may well be entitled to remove that part of the New Fence erected on his land. However, there is nothing in the Act that confers on the Local Court or on a local land board jurisdiction to deal with such a complaint. 67It is clear from the long title of the Act, as well as the scheme of the Act generally, that the Act is concerned with providing for the apportionment of the cost of fencing work involved in the construction of a dividing fence. The liability to contribute to the cost of fencing work is imposed under Part 2. Part 3 then specifies procedures for resolving disputes as to boundary lines, the type of fencing work to be carried out and the cost of the fencing work. 68Specifically, s 11 provides for the giving of a notice by one adjoining owner to another. Section 12 then provides that if the adjoining owners do not agree as to the fencing work to be carried out, either adjoining owner may apply for an order determining the manner in which the fencing work, if any, is to be carried out. Clearly, the point of the qualification "if any" is to prevent the appearance of the Act begging the question that a dividing fence needs, in any given circumstance, to be constructed and contributed to by the other adjoining owner. It may be the case that there is already a sufficient dividing fence, whether natural or man-made, so that a new fence does not need to be constructed. It does not follow that, after a dividing fence has been constructed, an adjoining owner may apply under the Act to remove it and seek contribution for that removal. 69The Act is concerned only with contribution to the carrying out of fencing work. That term does not include the removal or demolition of an existing dividing fence, except to the extent that its removal may be involved in the replacement, repair or maintenance of an existing dividing fence. There is nothing in the Act that is capable of being construed as conferring on either the Local Court or a local land board jurisdiction to require an adjoining owner to remove or demolish a dividing fence except for that purpose. Even if an adjoining owner in Mr Larney's position, who has received a notice under s 11 requiring him to contribute to proposed fencing work, successfully obtains an order under s 12(2) that that proposed fencing work is not required,there is nothing in the Act that would prevent the other adjoining owner who has served the notice from simply building the fence. Of course, that owner may not be able to obtain a contribution to the cost of the fence that was in excess of what was required. However, the owner who had successfully obtained the order saying that the fence is not required would have no remedy under the Act for removal of the fence. 70Whether the decision in Alwiah v Watts is right or wrong, it does not have any application in the present circumstances. This is not a case where Mr Larney sought to add to the New Fence erected by Mrs Johannson. He simply sought an order that it be removed. In one place, he sought contribution to the cost of doing so. In another place, he sought an order that Mrs Johannson bear the entire cost of doing so. 71Mr Larney's application of 10 December 2011 was misconceived. Section 12(2) of the Act authorises either adjoining owner to apply to the Local Court or a local land board for an order determining the manner in which "the fencing work (if any) is to be carried out". Such an application is dependent upon adjoining owners not agreeing within one month after one of them has served a notice under s 11 "as to the fencing work to be carried out". Thus, whether it is the adjoining owner who gives the notice or the adjoining owner to whom the notice is given who makes an application, the only application authorised by s 12(2) is for a determination of the manner in which the fencing work specified in a notice seeking contribution under s 11 is to be carried out. Mr Larney has given no notice that could fairly be characterised as a notice under s 11. 72Section 11(1) provides that an adjoining landowner may require the other adjoining owner to contribute to the carrying out of fencing work by serving a notice in writing to that effect on the other owner. Under s 11(2) the notice must specify the following: (a) the boundary line on which the fencing work is proposed to be carried out; (b) the type of fencing work proposed to be carried out; and (c) the estimated cost of the fencing work. 73While the notices given by Mrs Johannson were said to be "pursuant to s 20 of the Fences Dividing Fences Act 1988", they might fairly be regarded as satisfying s 11. In particular, the notice of 6 November 2011 attaches a survey on which the boundary is highlighted, describes the type of fencing work as "black PVC wire" and attaches a quotation of $2,568 for the cost of the work. The notice would have been sufficient to trigger an application under s 12(2), either by Mr Larney or by Mrs Johannson, for an order determining the manner in which the fencing work described in that notice was to be carried out. 74However, Mr Larney's application of 10 December 2011 quite clearly was not an application for an order determining how the fencing work specified in the notice of 6 November 2011 should be carried out. His application, and the covering letter of 10 December 2011, in so far as they referred to any work, referred only to the removal of the New Fence. The jurisdiction of the local land board was not enlivened by the application dated 10 December 2011. 75Mr Larney's letter to Mrs Johannson of 9 November 2011 does not purport to specify a boundary line. It does not identify a type of fencing work proposed, other than to say that an application had been made to the land board "for the fence to be rebuilt and any damages to natural features restored". The letter purports only to be an objection to the location of the fencing. It clearly does not specify a boundary line on which any fencing is proposed. The letter contains no estimate of the cost of any fencing work. The letter does not refer to any fencing work within the meaning of the Act. In any event, a notice requiring only contribution to the removal of a fence would not satisfy the requirements of s 11. 76The jurisdiction of the Board was not properly invoked by Mr Larney. The Board was correct to dismiss his application. It follows that there was no error on the part of the primary judge in dismissing Mr Larney's appeal to the Supreme Court. Leave to appeal should be granted, but the appeal should be dismissed with costs. ********** 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: 09 December 2013