Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Margy L Walsh v R Tomsic [2014] NSWCATCD 118 Hearing dates: 26 June 2014 Decision date: 11 July 2014 Before: R F Buckley, Senior Member Decision: 1.Application COM 14/12650 is dismissed. Catchwords: Retaining wall Legislation Cited: Dividing Fences Act 1991 (NSW) Conveyancing Act 1919 (NSW) Cases Cited: Riggio v The Estate of the Late Phyllis Annette Lockard [2011] NSWLEC 1292 (4 October 2011) Texts Cited: - Category: Principal judgment Parties: Margy L Walsh (applicant) R Tomsic (respondent) Margy L Walsh appeared unrepresented R Tomsic did not appear File Number(s): COM 14/12650 Publication restriction: Unrestricted reasons for decision BACKGROUND 1This is an application seeking orders pursuant to sections 12(2) and 14(1)(c) of the Dividing Fences Act 1991. The applicant is the owner of a property at Prince Albert Street, Mosman. The respondent is the owner of the neighbouring block on Prince Albert Street, Mosman situated on the northern boundary of the applicant's property. Although the applicant seeks an order for contribution to certain works, the significant issue, one going to the Tribunal's jurisdiction, is whether the relief sought relates to a dividing fence or a retaining wall. 2The applicant appeared at the hearing on the 26 June 2014. The respondent neither appeared nor did he lodge any evidentiary documents. The only statement from the respondent is that attached to the applicant's filed material. In a letter from Mr Tomsic to the applicant dated 21 October 2013, he clearly articulates his position, and the jurisdictional issue that is the essence of the dispute. Paragraph 2 of the respondent's letter of 21 October 2013 states:- "What you are proposing in your letter is a retaining wall and not a boundary fence". 3The applicant relies upon a report of 4 June 2013 from AshbyDoble, Consulting Engineers and Development Managers. Its author Mr Stephen Doble, at paragraph 2 on page 2 of his report, states, speaking in the third person:- "SD noted that although this would have been a factor (certain landscaping work carried out by the respondent) in reducing the capacity of the retaining wall, he did not believe that this was the main cause of the failure of the wall. The main issue associated with the wall is likely to be the original design and an undersized footing. Without completing detailed excavation to confirm the exact configuration of the thickness of the wall and foundation width, it is not possible to confirm the exact capacity of the wall, but based on experience, the majority of these walls are significantly under-strength in comparison to current codes". 4The applicant gave evidence that she moved into her home at Prince Albert Street, about 44 years ago and the subject retaining wall, on the northern boundary of her home, was present at that time. 5To clarify issues, there is a boundary timber paling fence which stands on top of a section of the relevant brick retaining wall, approximately 10 metres in length and about one metre in height on the northern boundary of the applicant's home near to the footpath adjoining Prince Albert Street. The fence and retaining wall are depicted in photographs V, W and X tendered by the applicant, taken by her in March 2013. The newly erected paling fence, paid for by the respondent is connected to the retaining wall by metal struts. The applicant's evidence is that after a complaint to Council, the 1.8 metre height of the paling fence was lowered to about 1.2 metres. The applicant said that the level of the land behind the retaining wall, that is on the neighbour's property, stood just below the top of the retaining wall, but appeared slightly above it by reason of mulch placed upon adjoining gardens by the respondent. Further photographs depicting the appearance of the wall, as it now is, are included as photographs 9 and 10 in the Ashby Doble report. 6Mr Doble recommends in his report that the brick retaining wall be repaired by excavation and the insertion of backfill, and further drainage. The applicant has sought tenders for the work and has made a claim under s 14(1)(c) of the Dividing Fences Act 1991 for contribution from the respondent for half of $5,350.00, the lowest tender amount. The respondent has ignored the applicant's claim, reliant no doubt on his previous assertion that the proposed remedial work is not to a dividing fence but to a retaining wall. 7Relevantly, a boundary fence is defined, in relationship to a retaining wall in s 3 of the Dividing Fences Act 1991. "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) any gate, cattlegrid or apparatus necessary for the operation of the fence, and (b) any natural or artificial watercourse which separates the land of adjoining owners, and (c) any foundation or support necessary for the support and maintenance of the fence, but does not include a retaining wall (except as provided by paragraph (c)) or a wall which is part of a house, garage or other building" 8It is the applicant's case that the proposed rectification work to the retaining wall, falls within s 3(c) above, as work in relation to a support or maintenance of the newly erected timber paling boundary fence. 9The Tribunal is given jurisdiction to hear or determine a dispute by s 12(2) of the Dividing Fences Act 1991. Section 14 of the Act gives clarity as to the orders that may be made as to fencing work, and is in the following terms:- 14 Orders as to fencing work (1) The Local Court or the Civil and Administrative Tribunal 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. (1A) Despite subsection (1), no order may be made for the carrying out of fencing work on critical habitat within the meaning of the Threatened Species Conservation Act 1995 without the consent of the Director-General of National Parks and Wildlife. (2) The occupation of land on either side of a dividing fence, as a result of an order determining that fencing work is to be carried out otherwise than on the common boundary of the adjoining lands, is not taken to be adverse possession as against the owner or to affect the title to or possession of the land, except for the purposes of this Act. 10Relevantly for the purposes of this dispute, s.26 of the Dividing Fences Act 1991 is as follows: 26 Act not to affect agreements etc, retaining walls or other Acts Nothing in this Act affects: (a) any covenant or any contract or agreement (other than an agreement arising under this Act) made between adjoining owners in respect of a dividing fence before or after the commencement of this Act, or (b) any law relating to retaining walls, easements of support or other rights of support in relation to land, or (c) provisions relating to fences or fencing work made by or under any other Act. 11The differentiation between a boundary fence and a retaining wall was discussed in a decision of the Land and Environment Court in Riggio v The Estate of the Late Phyllis Annette Lockard [2011] NSWLEC 1292 (4 October 2011) where at [28] and [33] Fakes C stated: "28. In response to Mr Riggio's rejection of his client's offer to pay 50% of the cost of replacing the retaining wall and the fence, Mr Cabal contends that should I be minded to make an order under the Dividing Fences Act 1991, the amendments to that Act limit the scope of works to which a contribution can be ordered. To support this contention he cites paragraph 4 of the second reading speech of the Dividing Fences and Other Legislation Amendment Bill 2008 made by the Hon. Penny Sharpe and recorded in Hansard. The intention of the scheme set out in this bill is that only fencing work necessary for the immediate support of a fence will be caught within the scope of the power to order a contribution for fencing work. This will mean in practice that a contribution will not be available for the work that is necessary for repairing a retaining wall when those funds are spent purely on the maintenance of the retaining wall for its principal purpose as a retaining wall and not as part of a dividing fence. An example of the sort of fencing work that will be the subject of a contribution is work on the fence footings on top of a retaining wall. No expenses for the construction of the retaining wall itself are intended to be claimable. The operation of section 26 of the Dividing fences Act as amended by this bill means that the Dividing Fences Act does not affect the operation of laws that affect the rights of persons to support a retaining wall. This means that the duty to preserve support for neighbouring land created by section 177 of the Conveyancing Act 1919 is preserved. 33. Pursuant to s 34(2) of the Interpretation Act 1987 , the Court is entitled to have regard to a limited range of extrinsic material that may assist in the determination of the meaning of a provision of an Act. In this matter I refer to the second reading speech on the introduction into parliament of the Dividing Fences and Other Legislation Amendment Bill 2008 quoted in [28] of this judgment. In the light of this explanation of the intent of the amendment, I consider that the power of the Court under the Dividing Fences Act is limited to only ordering compensation for fencing work necessary for the immediate support of a fence and not to the entirety of the retaining wall. In this case, the fence is supported by posts set onto and partially into the retaining wall, and onto the ground at the eastern end of the wall. Therefore, any orders made will be limited to shared costs for the adequate support of the fence. As the survey sketch plan shows that the majority of the wall is on the applicant's property, another survey will be required to accurately locate the boundary and therefore the appropriate location of the fence and any necessary supports which may/ may not involve the retaining wall as part of that support system." For completeness, s 177 of the Conveyancing Act 1919 is set out below. (1) For the purposes of the common law of negligence, a duty of care exists in relation to the right of support for land. (2) Accordingly, a person has a duty of care not to do anything on or in relation to land (the "supporting land" ) that removes the support provided by the supporting land to any other land (the "supported land" ). (3) For the purposes of this section, "supporting land" includes the natural surface of the land, the subsoil of the land, any water beneath the land, and any part of the land that has been reclaimed. (4) The duty of care in relation to support for land does not extend to any support that is provided by a building or structure on the supporting land except to the extent that the supporting building or structure concerned has replaced the support that the supporting land in its natural or reclaimed state formerly provided to the supported land. (5) The duty of care in relation to support for land may be excluded or modified by express agreement between a person on whom the duty lies and a person to whom the duty is owed. (6) Any such agreement: (a) has effect in relation to any agent of the person on whom the duty lies, and (b) has effect in relation to any successor in title of the supported land if the agreement is embodied in a registered easement for removal of support relating to that land. (7) The right to agree to the removal of the support provided by supporting land to supported land is a right of the kind that is capable of being created by an easement. (8) Any right at common law to bring an action in nuisance in respect of the removal of the support provided by supporting land to supported land is abolished by this section. (9) Any action in negligence that is commenced after the commencement of this section in relation to the removal of the support provided by supporting land to supported land may be wholly or partly based on something that was done before the commencement of this section. However, this subsection does not operate to extend any period of limitation under the Limitation Act 1969 . (10) This section extends to land and dealings under the Real Property Act 1900 . (11) This section does not apply in relation to any proceedings that were commenced before the commencement of this section. (12) A reference in this section to the removal of the support provided by supporting land to supported land includes a reference to any reduction of that support. (13) This section binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities. 12The applicant's land is the "supporting land" within the terms of s 177 of the Conveyancing Act. Without the benefit of a survey it is difficult to be certain, however the presumption would be that in the construction of the house on the applicant's property at Prince Albert Street, Mosman, the northern alignment retaining wall would be entirely within the boundary of that property, and not be a shared liability with the neighbouring "supported land". 13In the circumstances outlined above, I determine that the proposed rectification work to the front section of the retaining wall on the northern boundary of the applicant's property adjoining the respondent's property, is not "fencing work" as defined in s 3 of the Dividing Fences Act 1991. 14The proposed work relates solely, in my view, to the maintenance of a retaining wall which falls within the purview and responsibility of the applicant as provided for in s 177 of the Conveyancing Act 1919. 15On the basis of the reasons set out above, the Tribunal does not have jurisdiction. The application is therefore dismissed. (signed) R F Buckley Senior Member Civil and Administrative Tribunal of New South Wales 11 July 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: 04 September 2014