Anthony Allen Tarplee and Ruth Tarplee v Robert Hayes and Bernadette Hayes [2015] NSWCATCD 15

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Anthony Allen Tarplee and Ruth Tarplee v Robert Hayes and Bernadette Hayes [2015] NSWCATCD 15 Hearing dates: 20 January 2015 Decision date: 04 February 2015 Jurisdiction: Consumer and Commercial Division Before: P Boyce Senior Member Decision: 1 The application is dismissed. Catchwords: Jurisdiction to make declarations as to sufficiency of structure as a dviding fence when no application made for fencing work. Legislation Cited: Dividing Fences Act 1991 Cases Cited: Alwiah v Watts and anor [2004] NSWSC 948 Brown v Doyle [2012] NSWSC 1269 Larney v Johannson [2012] NSWSC 1297 Texts Cited: None Category: Principal judgment Parties: Anthony Allen Tarplee and Ruth Tarplee (Applicants) Robert Hayes and Bernadette Hayes (Respondents) Representation: Litigants in person

File Number(s): COM 14/54856 Publication restriction: Unrestricted

REASONS FOR DECISION

BACKGROUND 1. The applicants are the owners of 154 ********* Street, ******* (called in these Reasons for Decision "the applicants' land"). 2. The respondents are the owners of 156 ********* Street, ******* (called in these Reasons for Decision "the respondents' land"). 3. The applicants' and the respondents' lands adjoin and they share a common boundary. 4. The dwellings erected on the adjoining lands have a common party wall for part of the length of the common boundary. This section of common boundary is not the subject of this application. 5. In about September 1994 the applicants and the respondents agreed to replace an existing dividing fence on the common boundary between their respective adjoining lands. They caused to be erected a paling fence to be erected, with posts 1.8 metres high and the palings 1.5 metres high. The parties shared the cost of the dividing fence. 6. On 14 June 2013 the respondents obtained modified development consent to carry out renovations of the dwelling erected on their land. Included in the development consent was permission to erect a wall along, but within their land. 7. The applicants demolished the length of about 7 metres of existing fence to allow for and to then carry out the construction of the wall about 7 metres long. 8. The present common boundary has on it, along that part of the common boundary not occupied by the applicants' and the respondents'' respective dwellings starting at a point about 0.8 metres from the rear of the respondents dwelling there is a recently erected wall about 2.1 metres high and about 7 metres in length ("Hebel Wall"). It is constructed of a material described as a Hebel Power Fence. On the evidence of a product brochure tendered to the Tribunal a Hebel Power Fence is 75mm thick, double mesh steel reinforced panels made from autoclaved aerated concrete supplied in length of 2000mm by 600mm. For the remainder of the common boundary there is the existing timber paling fence about 7 metres long and 1.5 metres high erected in 1994 from the end of the Hebel Wall through to the north eastern corner of a brick water closet erected within the applicants' land.