Delev v Solangaarachchi (Civil Dispute)
[2024] ACAT 97
•18 December 2024
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
DELEV v SOLANGAARACHCHI (Civil Dispute) [2024] ACAT 97
XD 913/2024
Catchwords: CIVIL DISPUTE – fence dispute – application under the Common Boundaries Act 1981 – fence extended without agreement of applicant – extension did not match existing fence –definition of “repair” under the CB Act – determination that the fence be repaired – application of CB Act to exempt development under Planning Act 2023 explained
Legislation cited: Common Boundaries Act 1981 ss 5, 11
Planning Act 2023 s 145
Subordinate
Legislation cited: Planning Regulation 2023
List of
Texts/Papers cited: Macquarie Dictionary
Tribunal:Senior Member R Arthur
Date of Orders: 18 December 2024
Date of Reasons for Decision: 18 December 2024
Date of Publication: 24 December 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 913/2024
BETWEEN:
JOVCE DELEV
Applicant
AND:
DAMINDA THUSHARA SOLANGAARACHCHI
Respondent
TRIBUNAL:Senior Member R Arthur
DATE:18 December 2024
ORDER
The Tribunal finds that:
For the purposes of section 11 of the Common Boundaries Act1981, I determine:
(a)The fence is in need of repair.
(b)The repair is to be effected by the detachment from it of all materials which were not present when the fence was originally constructed (“the repair work”).
(c)The repair is to be undertaken, initially, by the respondent at his own expense within 28 days from the date he is ordered to do so.
(d)If the repair is not undertaken by the respondent within the 28 day period, the applicant may, on giving seven days notice in writing to the respondent of a date and a time between 10:00am and 4:00pm, himself or by a person engaged for the purpose by him, enter onto the respondent’s block to carry out the repair work on that date at that time, leaving the detached materials in the custody of the respondent.
(e)If the applicant incurs expense which is not greater than $50, he is to notify the respondent of the amount together with receipts or other documentation verifying the amount. The respondent is to pay that amount (or $50 if the amount exceeds $50) to the applicant within seven days of notification.
In making the determination with regard to payment of expenses, I have considered the principle that the cost should be borne by the parties in equal proportions, but in this instance, I consider that the respondent, being the party who necessitated that repair, should bear the cost.
The Tribunal orders that:
In these orders, “the repair work” means the detachment from the fence on the common boundary between the applicant’s block and the respondent’s block of all materials, being materials which the respondent attached to the fence and which were not present when the fence was originally constructed.
Within 28 days from the date of these orders the respondent must carry out the repair work at his own expense.
If the repair work is not undertaken by the respondent within the 28 days from the date of these orders the applicant may, on giving seven days notice in writing to the respondent of a date and a time between 10:00am and 4:00pm, himself or by a person engaged for the purpose by him, enter onto the respondent's block to carry out the repair work on that date at that time, leaving the detached materials in the custody of the respondent.
If the applicant thereby incurs expense in an amount not greater than $50, he may notify the respondent in writing of the amount together with receipts or other documentation verifying the amount. The respondent is to pay that amount or, if that amount exceeds $50, the sum of $50 to the applicant within seven days of notification by the applicant.
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Senior Member R Arthur
REASONS FOR DECISION
This is an application for a repair determination under section 5 of the Common Boundaries Act 1981 (CB Act).
The parties are the Crown lessees of adjoining blocks in Casey, bought at around the same time from Lendlease as part of an estate development.
The applicant produced a copy of the purchase contract with Lendlease. After examining it during the hearing, the respondent said that his purchase contract was in the same terms. That is consistent with the nature of the contract as being a standard form contract for the development of an estate.
Original fence
It is common ground that the transfer that each party took from Lendlease was subject to a restrictive covenant requiring boundary fences to be 1.8 m in height and made of hardwood palings. The restrictive covenant was released in respect of each block on the issue of the Certificate of Occupancy and Use in respect of the dwelling constructed on the block. Those certificates have since been issued. The covenant’s relevance remains as evidence of the agreement by the parties that their common boundary fence was to be so constructed.
There is a retaining wall on the boundary, approximately 40–50 cm high, which steps down in sections from the back of the block to the front. The applicant’s block is on the lower side of the boundary.
The fence steps down with the retaining wall, so that it is at all points 1.8 m higher than the ground level on the respondent’s side.
The respondent became concerned about an area, used by him and his family for outdoor dining activity, which he felt needed greater privacy. He proposed to increase the height of the fence adjacent to the area to, initially, 2.5 m (it has since reduced a little to the point where it is now some 2.2 m or 2.3 m high). The increased part was to be about 7 m in length. The respondent discussed the matter with the applicant.
There was dispute as to whether the applicant gave approval to the increase in height. There was no dispute however, that there had been no discussion about the materials and method that would be employed by the respondent.
Extended fence
The portion of the fence where there is an increase in height has been constructed. It consists of treated pine palings which are affixed to the uppermost railing of the fence. A section of the treated pine palings is backed by a 4–5 mm thick sheet of fibro cement, the top of which has a metal capping. One part of the capping has edging which is perceptibly deeper, by perhaps 1 to 1.5 cm than the other.
Although the whole of the extended part steps down at the points where the fence below steps down, the palings are not in the same plane as the existing palings, but present as an articulation of about 30 mm. The result is obviously an addition to the fence which does not harmonise with the existing fence.
The dispute
I do not need to resolve the dispute around the approval of the increase in height by the applicant. Even assuming that the applicant did approve, he would reasonably have assumed, in the absence of discussion on the subject, that the alteration would be done using the same materials and in the same configuration as the existing materials. He clearly would not have agreed with what has resulted.
In 2022, the applicant wrote to the respondent asking for the extension to be removed. Correspondence between them, after investigation of the position on both sides, followed over many months. The respondent consulted the certifier of building works that had been done at about the same time. He was told that the fence extension was not included in the certification because it was exempt from requiring development approval — being less than 2.3 m in height, it was development that would be exempt from approval under the Planning Regulation 2023. The respondent relayed this information to the applicant.
Having made enquiries of his own, in which he was told by an officer of the Planning Authority that this was a private matter which required an application to the ACT Civil and Administrative Tribunal (ACAT) under the CB Act, the applicant brought his application to the ACAT.
Hearing
At the hearing of the application, the applicant and the respondent each represented themselves. I decided not to require either of them to give evidence under oath or affirmation, because in the circumstances I did not think it would assist me. Instead, I asked each in turn to relate to me their version of events. After giving each party an opportunity to indicate any parts related by the other party that they did not agree with, I accepted only evidence which (if not agreed) I considered was objectively supported by other reliable evidence.
Jurisdiction
The applicant seeks relief under the CB Act. The tribunal has jurisdiction under section 5 to make a determination that an existing fence needs repair and, if necessary, replacement. Jurisdiction exists since:
(a)the fence separates adjoining parcels of land;
(b)an occupier of one parcel has asked the occupier of the other parcel to join in repairing the fence and the two are unable to agree on how that should be done;
(c)written notice has been given by the applicant to the respondent which has led to discussion, but no agreement; and
(d)at least 30 days have elapsed before application was made.
“Repair” work
Section 11 requires that I must determine that the fence is in need of repair. The ordinary meaning of “repair”, as a verb, is:[1]
1. to restore to a good or sound condition after decay or damage …
2. to restore or renew by any process of making good …
3. to remedy; make good; make up for …
4. to make amends for …
[1] Macquarie Dictionary, (online at 10 December 2024) ‘repair’ (v)
The object of the CB Act is to ensure that fences on common boundaries are the product of the bilateral agreement of adjoining neighbours. This agreement may be voluntary or through the mechanism provided by the CB Act in the form of the default standard (basic urban fence) and ACAT determinations.
The original nature and configuration of this fence was agreed by the parties, as I have indicated above. The addition, made by the respondent, means that the fence is no longer what it was and what was agreed.
Just as a fence can be restored to what it was by removing an element that has decayed or been damaged, so can it be restored to what it was by the removal of elements added to it. In my view, such a process is contemplated by the CB Act.
Exempt development
Where a party applies to the ACAT for a repair determination, it is open to the other party to argue that the fence does not need to be repaired. The respondent argued that the additions were necessary to provide him and his family with privacy that was not provided by the existing fence. He also said that he was entitled to do what he had done because a fence not exceeding 2.3 m in height did not require development approval, being exempt development under section 145(1) of the Planning Act 2023 and schedule 1 of Planning Regulation 2023.
That is so, but the Planning Regulation 2023 also provides that it does not affect the operation of any other territory law. The CB Act is such a law. Accordingly, although development approval may not be required, any construction or alteration of the fence on the boundary which is not mutually agreed can be done only in accordance with a determination of ACAT under the CB Act. Conversely, while the parties might agree on a fence more than 2.3 m high and the ACAT may make a determination accordingly, development approval would still be required.
Determination
For the purposes of section 11 of the CB Act, I determine:
(a)The fence is in need of repair.
(b)The repair is to be effected by the detachment from it of all materials which were not present when the fence was originally constructed (“the repair work”).
(c)The repair is to be undertaken, initially, by the respondent at his own expense within 28 days from the date he is ordered to do so.
(d)If the repair is not undertaken by the respondent within the 28 day period, the applicant may, on giving seven days notice in writing to the respondent of a date and a time between 10:00am and 4:00pm, himself or by a person engaged for the purpose by him, enter onto the respondent’s block to carry out the repair work on that date at that time, leaving the detached materials in the custody of the respondent.
(e)If the applicant incurs expense which is not greater than $50, he is to notify the respondent of the amount together with receipts or other documentation verifying the amount. The respondent is to pay that amount (or $50 if the amount exceeds $50) to the applicant within seven days of notification.
In making the determination with regard to payment of expenses, I have considered the principle that the cost should be borne by the parties in equal proportions, but in this instance I consider that the respondent, being the party who necessitated that repair, should bear the cost.
Orders
In these orders, “the repair work” means the detachment from the fence on the common boundary between the applicant’s block and the respondent’s block of all materials, being materials which the respondent attached to the fence and which were not present when the fence was originally constructed.
Within 28 days from the date of these orders the respondent must carry out the repair work at his own expense.
If the repair work is not undertaken by the respondent within the 28 days from the date of these orders the applicant may, on giving seven days notice in writing to the respondent of a date and a time between 10:00am and 4:00pm, himself or by a person engaged for the purpose by him, enter onto the respondent's block to carry out the repair work on that date at that time, leaving the detached materials in the custody of the respondent.
If the applicant thereby incurs expense in an amount not greater than $50, he may notify the respondent in writing of the amount together with receipts or other documentation verifying the amount. The respondent is to pay that amount or, if that amount exceeds $50, the sum of $50 to the applicant within seven days of notification by the applicant.
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Senior Member R Arthur
| Date(s) of hearing: | 4 November 2024 |
| Applicant: | In person |
| Respondent: | In person |
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