Lukac and Lukac v Tran [2014] NSWCATCD 149

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lukac and Lukac v Tran [2014] NSWCATCD 149 Hearing dates: 21 July 2014 Decision date: 06 August 2014 Before: M Eftimiou, General Member Decision: 1.The application is dismissed Catchwords: Dividing fence - development application - local council Legislation Cited: Dividing Fences Act 1991 Category: Principal judgment Parties: Anton Lukac and Ivanka Lukac (applicants) Anthony P Tran (respondent) File Number(s): COM 14/15351 Publication restriction: Unrestricted

reasons for decision

BACKGROUND 1The Applicants are the owners of land at 9a **************, Carramar (called in these Reasons for Decision "the Applicants' land"). 2The Respondent is the owner of 9 *************, Carramar (called in these Reasons for Decision "the Respondent's land"). 3The Applicants' and the Respondent's lands adjoin and they share a common boundary. 4Along part of the common boundary there is a brick and steel post wire and metal panel fence and then no fence for the rest of the boundary. 5The applicants want to build a fence on the remaining boundary property. The respondent shares in their desire to build a dividing fence on the remaining of the boundary. 6The parties have been in dispute for many years. Their dispute has involved the Fairfield Council, the NSW Ombudsman and the NSW Police. The applicants complain that the vegetation from the respondent's land overhangs and overgrows onto their land. The respondent complains that the applicants have built part of a brick dividing fence onto his side of the boundary. The parties are entrenched in their positions and are not able or not prepared to compromise with each other to reach a common goal of building a dividing fence. 7On 17 March 2014 the applicants filed an application with the Tribunal seeking orders for a dividing fence; and that the respondent be ordered to remove a Macadamia tree that overhangs onto their property and bamboo and other vegetation that encroaches on the boundary line be removed. 8On 21 March 2014 the Applicants served on the Respondent a notice pursuant to s 11 of the Dividing Fences Act 1991 (called in these Reasons for Decision "the Notice"). 9The Notice proposed that fencing work be carried out as follows: 1. The fencing work to be carried out on the common boundary of the adjoining lands described above 2. The removal of the bamboo, banana, macadamia tree and debris is required on 9....Carramar prior to commencement of fencing as it is obstructing the boundary line and is/will cause future damage. 3.The fencing work is to start and be adjoined from the front last post of 9A....Carramar fence. 4.The fencing work consists of Building a 46m long, 1.8m high colourbond fence. Treated pine retaining under the fence. The fence is to be built by Habib Handy Man. 5.The estimate cost of the fencing work of $6407.50 to be born in equal proportions..........; 10The Respondent does not agree to the proposed fencing work as set out in the Notice.