BISHOP & ANOR v SAKKARA & ANOR (Civil Dispute)
[2020] ACAT 45
•22 June 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BISHOP & ANOR v SAKKARA & ANOR (Civil Dispute) [2020] ACAT 45
XD 1566/2019
Catchwords: CIVIL DISPUTE – fence dispute – relevant consideration for replacement of a fence – dispute between neighbours – where aesthetics, construction, and materials are in dispute
Legislation cited: Common Boundaries Act 1981 ss 2, 4, 10
Cases cited:Cherian v Roy [2017] ACAT 106
Tribunal: Senior Member A Anforth
Date of Orders: 22 June 2020
Date of Reasons for Decision: 22 June 2020
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL XD 1566/2019
BETWEEN:
BEN BISHOP
First Applicant
KAREN LANCASTER
Second Applicant
AND:
IAN SAKKARA
First Respondent
CAROLYN SAKKARA
Second Respondent
TRIBUNAL: Senior Member A Anforth
DATE:22 June 2020
ORDER
The Tribunal orders that:
The applicants are to construct a 1.8m Colorbond fence of ‘paperbark’ colour along the common boundary line, at the applicants’ cost.
- The fence is to have a treated wooden base along its length to elevate the Colorbond above the soil line, in either a stepped or continuous configuration.
If there are any other matters that are outstanding, the parties may seek further directions on or before 1 July 2020.
………………………………..
Senior Member A Anforth
REASONS FOR DECISION
The parties are neighbours in an ACT suburb. The applicants are an owner builder of a new house adjacent to the respondents’ house. The Development Approval (DA) from ACT Planning and Land Authority (ACTPLA) provided that the applicants would construct the common boundary fence between the parties’ blocks, at the applicants’ cost. The DA nominated a 1.8m timber lapped and capped fence, which is more than the ‘basic urban fence’ in accordance with the definition in section 2 of the Common Boundaries Act 1981 (the Act).
A dispute has arisen between the parties. The applicants want to construct a 1.8m Colorbond fence in a ‘monument’ colour. The applicants contend that this fence would be more durable, strong, fire resistant, rot proof and maintenance free than a wooden fence. The fences on the applicants’ other boundaries are already Colorbond and the applicants seek to match them.
The respondents contend that Colorbond is ‘unattractive’ and has heat reflective properties that will make it difficult for plants to survive along the fence line.
Unfortunately, relationships between the neighbours have deteriorated over the fencing dispute and allegations of bullying and other improper motives have spilled over into the Tribunal. Beyond noting this fact, the Tribunal does not propose to address these issues. An owner may have any lawful motive they choose for the position they adopt on a common boundary dispute, including aesthetic and personality facts. These considerations may be relevant to the Tribunal’s decision, but they are not exhaustive of the relevant considerations under sections 4 and 10 of the Act.
Sections 4 and 10 of the Act do not impose any specific criteria upon the Tribunal’s decision making in relation to a new fence. Hence the Tribunal’s evaluative judgement is constrained only by those facts that are taken to have formed part of the legislative intent of the Act. A common boundary is important for various reasons, including:
(a)accurately delineating the boundary line;
(b)constraining children and pets to their yards;
(c)excluding trespassing persons or animals;
(d)promoting visual privacy;
(e)abating noise nuisances from adjacent properties; and
(f)enhancing the aesthetics of the block.
Owners of land come and go, but the block and fences remain. The fence has to continue to serve the above purposes notwithstanding changing ownerships. For this reason, the personal views of the present owners cannot be fully determinative of the Tribunal’s decision.
In Cherian v Roy [2017] ACAT 106 at [20] I made a similar point which I see no reason to diverge from:
The right of one neighbour to insist on a common boundary fence is consistent with the common law duty of a landowner to fence in all things or effects that may emanate from their land and adversely affect the neighbours land. For example, any injuries to the applicants’ children caused by a dog gaining access to their back yard via the respondent’s unfenced property may result in liability on the part of the respondent. The common boundary fence is the mechanism for this problem.
The Tribunal accepts the applicants’ arguments in favour of a Colorbond at paragraph 2 above; and also accepts the respondents’ arguments against Colorbond at paragraph 3 above. It is a question of where the balance falls.
The ‘unattractiveness’ of the Colorbond can be ameliorated to some degree by how the respondents choose to dress their side of fence. There are various inexpensive options available including, for example, meshes that already have artificial climbers or those which facilitate the growth of natural climbers. The heat problem caused by the Colorbond can be ameliorated in the same way or by painting the fence a different colour on the respondents’ side, or by inserting different panels on the respondents’ side.
On the other hand, the applicants have children and pets which must be able to be constrained to their yard. Wooden fences deteriorate and palings fall off; cricket balls etc break palings. The applicants are paying for the whole of the fence.
On balance, the Tribunal is of the view that the lesser inconvenience will be caused to the present and future owners if a Colorbond fence was constructed.
The parties discussed the colour of the fence. The respondent was not attracted to ‘monument’. The applicants said they could live with ‘paperbark’ and the respondents accepted this colour if a Colorbond fence was to be constructed.
It was common ground that any Colorbond fence should have treated wooden foundations along the length of the fence to raise the fence above ground level.
It may be that the Colorbond fence can be constructed in a continuous manner along its whole length or may need to be constructed in ‘steps’ depending on the gradient of the fence line. This matter is left to the judgement of the builder provided the cost differential is not more than 10%.
The respondents raised the issue of the height of the fence. The applicants’ house is at a higher elevation than that of the respondents and so ‘overlooks’ the respondents’ property. The respondents initially sought a 2.1m fence to partly ameliorate this privacy concern. The Tribunal can see the merits in the respondents’ contention, but the respondents ultimately did not press the issue.
Orders
The applicants are to construct a 1.8m Colorbond fence of ‘paperbark’ colour along the common boundary line, at the applicants’ cost.
The fence is to have a treated wooden base along its length to elevate the Colorbond above the soil line, in either a stepped or continuous configuration.
If there are any other matters outstanding, the parties may seek further directions on or before 1 July 2020.
………………………………..
Senior Member A Anforth
HEARING DETAILS
FILE NUMBER: | XD 1566/2019 |
PARTIES, APPLICANT: | Ben Bishop & Karen Lancaster |
PARTIES, RESPONDENT: | Ian Sakkara & Carolyn Sakkara |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | N/A |
TRIBUNAL MEMBERS: | Senior Member A Anforth |
DATES OF HEARING: | 27 May 2020 |