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. APPLICANTS EVIDENCE 11The Applicants extensive evidence is contained in the evidence provided to the Tribunal and includes the following relevant documents: * Title Search for both properties dated 20 May 2014; * Fencing Notice dated 21 March 2014; * Quotation of Habib Handy Man dated 11 February 2014; * Numerous complaints made by the applicants to Fairfield Council commencing around 2009 about overgrown vegetation on the respondent's land; * Letters from Community Justice Centre; * Correspondence from Fairfield Local Council; * Correspondence from NSW Ombudsman; * Fencing Quotes; * Correspondence with the respondent; * New Way Surveying dated 30 March 2010; * Report from Maxwell Smith Civil Engineer and Development Consultant; * John S McDonald, Survey Report; * Arborist Report; and * Receipts and photographs. RESPONDENTS EVIDENCE 12The Respondent provided the following evidence to the Tribunal * A notice of determination of Development Application no 1430.2003 from Fairfield Council in relation to the applicants land. 13Prior to the hearing of the matter the respondent summonsed documents from Fairfield Local Council and also the Proper Office Fairfield Police Station. There was compliance with the Summons issued to Fairfield Local Council. However, there was no compliance with the Fairfield Police. The return of summons was adjourned on three occasions to give the NSW Police an opportunity to comply. The respondent advised the Tribunal that he had served the summons and had also given conduct money to the Proper Officer Fairfield Police. The Tribunal considered the relevance of any documents that may be contained in the Summons request to Fairfield Police. The summons asked for the production of the following documents: "The records of incidents that Police were called by Anthony Lukac, Ivana Lukac and Anita Luckac and any other member of the Lukac's Family who reside at number 9...Carramar in the period from 1-a-2008to 6-6-2014." The respondent told the Tribunal that the documents were relevant as they deal many incidents of dispute between the two parties. The respondent then gave an example of an incident that occurred in 2010 where the respondent alleges that the applicants assaulted his wife. The respondent told the Tribunal that the evidence from the police will show that the applicant continues to use intimidation and tactics to force the respondent to give up his land for them. 14The Tribunal assured the respondent that any order for a dividing fence if it was determined that it needed to be built would be built on the common boundary of the property and not on his side of the boundary. 15The respondent did not press the summons to the NSW Police. The Tribunal is satisfied that there would be little of relevance in the documents requested under summons in determining the issue of whether there is a sufficient dividing fence. TRIBUNAL'S FINDINGS Jurisdiction 16The jurisdiction to hear and determine applications under the Dividing Fences Act 1990 was given to NCAT commencing 1 January 2014. 17For the Tribunal to have jurisdiction to hear and determine the matter the Tribunal must be satisfied of the following: (a)The Tribunal must be satisfied that the Notice to carry out fencing work was served on the adjoining owner in accordance with section 21 of the Act, and (b)The application for an order of the Tribunal was made not less than 1 month after the date of service of the Notice to carry out fencing work, and (c)The Tribunal is satisfied there is no sufficient dividing fence 18The general principles of the Dividing Fences Act are set out in s 6, which states: (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. 19Section 4 of the Act sets out the requirements to make a determination of what is a sufficient dividing fence as follows: In any proceedings under this Act, the Local Court or the Tribunal 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, (g)in the case of a dividing fence affecting land the subject of a lease under the Western Lands Act 1901 , any order in force under section 18A of that Act. 20Section 4 requires the Tribunal to consider all the circumstances of the case in making a determination as to the standard of a sufficient dividing fence. 21If the Tribunal finds that there is no sufficient dividing fence then the jurisdiction granted by the Act to make fencing orders is triggered. This finding is fundamental to making any orders under s 14 of the Act. 22If the Tribunal finds that there is no sufficient dividing fence for the subject of an application before it, it is then open to the Tribunal to determine the standard of a sufficient dividing fence for which adjoining land owners should contribute in accordance with the Act. 23As stated elsewhere before the Tribunal is able to turn its mind to the question of whether there is no sufficient dividing fence, the Tribunal must be satisfied that a Notice to Carry out Fencing Work has been served on the respondent in accordance with the Act. 24Secton11 of the Act provides the following: 11 Notice to carry out fencing work (1) An adjoining owner may require the other adjoining owner to contribute, under this Act, to the carrying out of fencing work by serving a notice in writing to that effect on the other owner. (2) The notice is to specify the following: (a) the boundary line on which the fencing work is proposed to be carried out or, if it is impracticable to carry out fencing work on the common boundary of the adjoining lands, the line on which it is proposed to carry out the work, (b) the type of fencing work proposed to be carried out, (c) the estimated cost of the fencing work. (3) The owner serving the notice may propose that the cost of the fencing work is to be borne otherwise than in equal proportions. In such a case, the notice is to state the proposed proportions. (4) The description of land in a notice need not particularly define the land if it allows no reasonable doubt as to what land is referred to in the notice. (5) An adjoining owner is not liable to contribute to the cost of any fencing work in respect of a dividing fence: (a) carried out before a notice under this section is served on the adjoining owner (unless section 9 applies or the notice is served in accordance with section 22), or (b) carried out after the service of the notice on the adjoining owner and before agreement is reached by the adjoining owners concerning the fencing work (including the contributions to be made in respect of the work) or before the matter has been determined by the Local Court or the Civil and Administrative Tribunal. 25Section 9 relates to Urgent Fencing Work. There is no evidence before the Tribunal that the work is urgent or that an application has been made in accordance with section 9 of the Act. 26Section 22 relevantly provides that the Tribunal may grant leave to a party to make an application if they have not complied with section 11 once the work has been carried out. There is no evidence that the fencing work has been carried out and section 22 is not relevant to this dispute. 27The evidence before the Tribunal is that the application to seek an order under the Dividing Fences Act was made by the applicants on 18 March 2014. Attached to the application were a number of documents setting out the long standing dispute between the parties. No Notice to carry out fencing work was included in the application. 28On 19 March 2014, the Tribunal wrote to the applicants advising them that the matter could not be listed for hearing until the requirements of the legislation that a Fencing Notice be served by the applicants on the adjoining owner, 1 month before the lodging of the application to the Tribunal. On 23 March 2014 the applicant emailed the Tribunal advising that they would be placing a Fencing Notice in the respondent's letter box on 21 March 2014. The applicant sought an extension of time to provide this evidence. This extension was granted to the applicant. A Fencing Notice dated 21 March 2014 was then forwarded to the Tribunal by the applicants on 22 April 2014. 29The Tribunal finds that the Fencing Notice provided by the applicants to the respondent does not meet the provisions of the Act. 30Section 12 provides that if no agreement is reached between the parties, then 1 month after a Fencing Notice is served, the applicant may apply to the Tribunal to have the matter heard and determined according to law. 31It is clear that the applicants have not complied with the provisions of the Act. The application was filed with the Tribunal on 18 March 2014. The Fencing Notice was served upon the respondent on 21 March 2014. The Act requires the Notice to be served, then after one month if no agreement is reached, the applicant may file an application with the Tribunal. 32There is no evidence that the provisions of section 9 or 22 apply in this matter and the Tribunal has no jurisdiction to grant leave to extend the time for the serving of the Fencing Notice. 33If the Tribunal is wrong in this finding, the Tribunal has gone on to consider the substantive merits of the application. The Tribunal has determined that this is a matter where Fairfield Local Council requires a Development Application be lodged and approved for a fence to be built. This is because the properties are located in a Flood Risk Precinct and there are special requirements for fencing. Both parties gave evidence that they have not sought to lodge a Development Application with Fairfield Local Council. This is despite being aware from numerous correspondences that a Development Application is necessary before a fence can be built. 34In making a determination as to a sufficient dividing fence in accordance with section 4 of the Act, the Tribunal must consider amongst other things, any policy or code relating to dividing fences adopted by the Council of the Local Government Area in which the adjoining lands are situated and any relevant environment planning instrumental relating to the adjoin lands or to the locality in which they are situated. 35The evidence provided by both parties indicates that a Development Application must be lodged for the building of the fence. The Tribunal declines to make an order until the Development Application is determined by the Council, as this will affect the type of fence that is able to be built as a dividing fence. 36There is no dispute between the parties that there is no sufficient dividing fence. The parties have been entrenched in a long and protracted dispute with each other over many years. The dispute has involved Fairfield Local Council and the NSW Police. From the applicant's point of view the dispute is about overhanging vegetation including a Macadamia Tree and Bamboo that is on the respondent's property. The Tribunal has explained to the applicant that the Tribunal can make no order for the removal of the Macadamia Tree that is on the respondent's property. In relation to the Bamboo the only order the Tribunal can make is that the area where the dividing fence is built is prepared ( including the trimming, lopping or removal of vegetation) along or on either side of the common boundary of adjoin lands for the building of the fence. 37 From the respondent's point of view there is a long standing dispute about the existing fence which has been built on the respondent's property. The respondent is also adamant that any fence that is built is built on the boundary and that it be made of suitable material by his own tradesperson. 38As stated earlier that until the Development Application is determined by the Council we do not know what material is appropriate. The respondent has failed to provide any quotation as a compromise for the work. The parties also need to consider obtaining a Survey Report that clearly sets out the Boundary of the property. The Survey Report provided by the applicant clearly states that it is not to be used for boundary definition purposes. 39It is difficult to see that without compromise and cooperation between the two parties how this matter will ever resolve itself. 40The application must fail as the applicants have failed to comply with Section 11 of the Act. The Tribunal has no discretionary to extend the time for the serving of the Fencing Notice. There is no evidence as to the Urgency of the Application. There is no evidence that the provisions of section 21 have been met. 41If the Tribunal is wrong in its finding, the Tribunal finds that there is a requirement for a Development Application to be determined by Fairfield Council as the properties are located in a Flood Risk Area. The Tribunal is not able to make a determination in accordance with section 4 of the Act until that determination is made by the Local Council. The Tribunal is not satisfied that the fence proposed by the applicant is a complying fence. 42Accordingly the application is dismissed. M Eftimiou General Member Civil and Administrative Tribunal of New South Wales 6 August 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: 14 October 2014