Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mac Anally v Roper [2014] NSWCATCD 38 Decision date: 02 April 2014 Jurisdiction: Consumer and Commercial Division Before: G Bassett, General Member Decision: 1) The parties are to replace the unrepairable 24 metres of old existing wooden boundary fence with wooden fencing. 2) The cost of the fencing work is to be shared equally between the parties. Catchwords: Colourbond, Timber, Sufficient, Dividing Fence Legislation Cited: Sections, 4, 6, 7, 14 Dividing Fences Act 1991 Cases Cited: He v Hecker [2013] NSWSC 1219 Larney v Johannson [2012] NSWSC 1297 Category: Principal judgment Parties: Martin Mac Anally and Michelle Mac Anally (applicants) Gai Roper (respondent) Representation: M Martin Mac Anally for the applicants G Roper (in person) File Number(s): COM 13/60688 reasons for decision APPLICATION 1The originating application was to the Local Land Board for an order for fencing work. In a letter dated 12 December 2013, the Senior Chairperson for the Local Land Board indicated fencing matters were to be determined by the NSW Administrative Tribunal (NCAT) from 1 January 2014. 2On 17 January 2014 the matter came before General Member Simon. Directions were made in relation documents to be relied on at hearing. Those documents indicated a surveyor or export report could be provided. 3The order sought in the notice of fencing work dated 9 September 2013 under Section 11 of the Dividing Fences Act 1991 ("the Act") was: "Replace unrepairable 24 meters of old existing wooden boundary fence, with Colourbond fence that matches the existing 9 meters of newly erected Colourbond fence from the Council boundary." 4The estimated cost totalled $2,404.00. The extra cost for colourbond as opposed to timber was stated as $204.00 which the applicant agreed to pay. The respondent was asked to pay $1,100.00. JURISDICTION 5NCAT has jurisdiction under the Dividing Fences Act 1991 to make orders about dividing fence disputes and any order can cover what the fence should be made of. 6Section 13 of the Dividing Fences Act 1991 states: Jurisdiction of Local Court or Civil and Administrative Tribunal (1) The Local Court or the Civil and Administrative Tribunal has jurisdiction to hear and determine any matter arising under this Act. (1A) ..... (2) An application under this Act that is pending in the Local Court or in the Civil and Administrative Tribunal may be transferred from the Court to the Tribunal, or from the Tribunal to a Court, if it appears to the tribunal to which the application was made that, having regard to the subject-matter of the application and the composition and nature of the other tribunal, it is more appropriate for the application to be determined by that other tribunal. (3) The Local Court or the Civil and Administrative Tribunal which has an application transferred to it under subsection (2) is to determine the application. 7The Act creates liability between the parties: 6 General principle-liability for fencing work (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. 8Section 7 of the Act also allows for contribution orders to be made between parties: 7 Contribution as between adjoining owners-generally (1) 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. (2) An adjoining owner who desires to carry out fencing work involving a dividing fence of a standard greater than the standard for a sufficient dividing fence is liable for the fencing work to the extent to which it exceeds the standard for a sufficient dividing fence. 9The Act allows for orders as sought in this matter and states: 14 Orders as to fencing work (1) The Local Court ... may, in respect of an application under this Act, make an order determining any one or more of the following: (a) .... (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. 10The Tribunal has jurisdiction to hear this matter. EVIDENCE OF THE APPLICANT 11Documents supplied by the applicant included: (1)Various emails; (2)Photos of fencing at surrounding properties with street plan; (3)Photos of fencing work to be replaced; (4)An email sent to the Tribunal after the hearing date opining that the respondent was not moving back into her property. 12The parties agreed that 24 metres of wooden fence was to be replaced. The applicant wished to replace it with colourbond. There was already a line of 9 metres of colourbond existing. 13In giving reasons for why the existing timber should be changed to colourbond, the applicant said it would be more practical to complete the current 9 metres already existing. He asserted the area was swamp land and that this increased termite activity in wooden fences. He claimed the colourbond fencing would have a life span well in excess of the 20 years of a timber fence. He provided photos of other properties in the vicinity that had colourbond fence. None of these bald assertions were supported by any documents or an expert report. 14It was common ground between the parties that the difference in cost to replace the fence with either timber or colourbond was minimal. In any event, the applicant had offered to pay the difference if colourbond should be more expensive. EVIDENCE OF THE RESPONDENT 15Documents supplied by the applicant included: (a)Various tax invoices and quotations; (b)Council information access request; (c)Written submissions. 16The respondent let the property but said she intended to return to live in it soon. She said that solid metal would restrict the air flow between the properties. In cross-examination she said gaps between timber slats would allow airflow and stated such slats were necessary for expansion. She said she walked around the neighbourhood and that on her count over 80% of the properties in neighbouring streets had timber fences. She said colourbond corrodes and that there was no certainty that its life span was greater than timber. There were also costs in recoating Colourbond. She said that when the house is lived in one cannot see the current colourbond fence. She denied that neighbours at the other duplex said they wanted colourbond. APPLICATION OF RELEVANT LAW 17The issue is whether the 24 metres of existing timber fence should be replaced with timber or colourbond. 18A 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. Fencing work includes the replacement, repair or maintenance of the whole or part of a dividing fence, 19Section 4 provides for the determination of what is a sufficient dividing fence: 4 Determination as to sufficient dividing fence In any proceedings under this Act, the Local Court ...is to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of this Act, including the following: (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. 20In He v Hecker [2013] NSWSC 1219 an application was made for a colourbond fence to replace an existing brick fence and that parties pay respective costs of the fencing work. At paragraph 23 the Court said: "The Dividing Fences Act s 4 provides that Local Court is to consider all the circumstances of the case when determining the standard for a sufficient dividing fence which includes the existing dividing fence if any, the purposes for which the adjoining lands are used. Privacy or other concerns of the adjoining landowners, the kind of dividing fence used in the locality, any policy or code relating to dividing fences adopted by the council of the local government area, any relevant environmental planning instrument. So the Act presumes that there is to be a dividing fence between the properties. " 21On the evidence before the Tribunal I find that the adjoining lands are used for residential purposes. There was no evidence other than bald assertion that colourbond had a longer life span than timber. There was no evidence other than bald assertion that the area was prone to termites. The evidence as to other fences used in the locality was equivocal with use of both colourbond and timber. I accept Ms Roper's claim that timber was more commonly used for side fences. The issue of privacy was not raised in relation to the respective fence options. No policy or Council codes were relied on. 22The applicant bears the onus of proving his case on the balance of probabilities with evidence put before the Tribunal. There was scant evidence, just assertions. The claims were not substantiated by any documentary evidence or an expert report. The procedural direction of General Member Simon specifically referred to the possibility of such a report being provided. CONCLUSION 23It would not be proper to simply dismiss the application. Case law supports the contention that the Act requires a positive decision to be made. 24In Larney v Johannson [2012] NSWSC 1297 at [10] the Court said: "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. It 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". To 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. Furthermore, 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." 25The timber fencing is to be preferred as the applicant has not been able to prove his case that it should be replaced with colourbond because it is more sufficient than timber. G Bassett General Member Civil and Administrative Tribunal of New South Wales 2 April 2014 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: 20 June 2014