Facer v Rosenberg - [2021] NSWCATCD 144

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Facer v Rosenberg [2021] NSWCATCD 144
Hearing dates: 23 July 2021
Date of orders: 22 November 2021
Decision date: 22 November 2021
Jurisdiction: Consumer and Commercial Division
Before: R Notley, Senior Member
Decision:
The applicants are to cause the performance of fencing work between the residential property of the applicants and the residential property of the respondents by 31 March 2022 with such work to be performed as follows:
(a) demolish the existing timber paling fence between the respective properties;
(b) remove any plants or shrubs along the existing fencing line only to the extent necessary to construct a new fence;
(c) construct a 17.65 metre x 1.8 metre treated pine timber paling fence with 50mm galvanised steel posts as set out in the scope of works contained in the quotation of Active Fencing & Access Timbers dated 3 February 2021 and detailed in the Fencing Notice dated 3 February 2021;
(d) the new timber paling fence is to be constructed on the common boundary line, or as close to the common boundary line as possible, as defined on the survey dated 2 August 2019 and prepared by Matthew Cooper and, where appropriate, incorporate both the posts for the retaining wall constructed on the applicants’ property and the Colorbond fence constructed on the respondent’s property;
(e) the new timber paling fence is to be 1.8 metres from existing ground level and not 1.8 metres from the height of the retaining wall on the applicants’ property;
(f) the applicants are to give the respondent three (3) clear business days written notice of the date the fencing work will occur. Notice by email is sufficient;
(g) the fencing work is to be performed by a person or business who holds a current and valid contractor licence permitting them to perform fencing work;
(h) the respondent is to give reasonable access to his property to the licensed tradesperson performing the fencing work so that the existing fence can be demolished and a new fence be constructed in accordance with these orders; and
(i) within 28 days of the issuing of any invoice(s) by the licensed tradesperson performing the fencing work set out in these orders, the respondent is to pay the applicants an amount equivalent to 50% of the invoice(s).

Catchwords:
DIVIDING FENCES — Whether existing fence sufficient — Should Tribunal exercise discretion to order replacement of fence — Contribution to new fence

Legislation Cited:
Civil and Administrative Tribunal Rules 2014 (NSW)
Dividing Fences Act 1991 (NSW)
Hornsby Local Environmental Plan 2013
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Cases Cited:
Nicholls v Fortmann [2020] NSWCATAP 52
Purcell v Chadwick [2018] NSWCATAP 250

Texts Cited:
Nil

Category: Principal judgment
Parties: Jonathan Facer (First Applicant)
Christina Facer (Second Applicant)
David Rosenberg (Respondent)
Representation: First and Second Applicant (Self-represented)
Respondent (Self-represented)

File Number(s): COM 21/10595
Publication restriction: None

REASONS FOR DECISION

INTRODUCTION

These proceedings involve a dividing fence dispute under the Dividing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Facer v Rosenberg

Details

AGLC: Facer v Rosenberg [2021] NSWCATCD 144
Case: [2021] NSWCATCD 144
Decision Date: 22 November 2021

CaseChat Overview and Summary

Facer v Rosenberg was a matter in the Victorian Civil and Administrative Tribunal (VCAT) concerning a dispute between neighbours over the adequacy of an existing fence and the obligation to replace it. The applicants, the Facers, sought an order for the respondents, the Rosenbergs, to replace a timber paling fence between their properties. The Rosenbergs argued that the existing fence was sufficient and should remain. The Tribunal was required to determine whether the existing fence met the requirements for a dividing fence under the relevant legislation, and if not, whether it should exercise its discretion to order the replacement of the fence and, if so, how any costs should be shared.

The Tribunal examined the evidence regarding the existing fence, including its height, construction, and visibility, and compared it to the legislative standards for dividing fences. The Tribunal noted that while the existing fence was of a reasonable height and material, it was not entirely opaque and did not fully meet the statutory requirements. The Tribunal then considered whether it should exercise its discretion to order the replacement of the fence, taking into account the parties' contributions to the cost. The Tribunal ultimately concluded that the existing fence did not meet the statutory requirements and ordered the applicants to replace it. The Tribunal further determined that the Rosenbergs should contribute 50% of the cost of the new fence.

Facer v Rosenberg serves as a reminder of the importance of ensuring that dividing fences meet the relevant legislative standards and that neighbours work together to maintain and replace fences as necessary. The case also highlights the discretion of the Tribunal to order the replacement of a dividing fence and the factors it may consider in determining how to allocate the costs of such work. The Tribunal's decision in this case provides guidance on the standards for dividing fences and the factors that may be relevant in determining whether to order their replacement and how to allocate the costs of doing so.

Orders

Orders of the court

The applicants are to cause the performance of fencing work between the residential property of the applicants and the residential property of the respondents by 31 March 2022 with such work to be performed as follows:

(a) demolish the existing timber paling fence between the respective properties;

(b) remove any plants or shrubs along the existing fencing line only to the extent necessary to construct a new fence;

(c) construct a 17.65 metre x 1.8 metre treated pine timber paling fence with 50mm galvanised steel posts as set out in the scope of works contained in the quotation of Active Fencing & Access Timbers dated 3 February 2021 and detailed in the Fencing Notice dated 3 February 2021;

(d) the new timber paling fence is to be constructed on the common boundary line, or as close to the common boundary line as possible, as defined on the survey dated 2 August 2019 and prepared by Matthew Cooper and, where appropriate, incorporate both the posts for the retaining wall constructed on the applicants’ property and the Colorbond fence constructed on the respondent’s property;

(e) the new timber paling fence is to be 1.8 metres from existing ground level and not 1.8 metres from the height of the retaining wall on the applicants’ property;

(f) the applicants are to give the respondent three (3) clear business days written notice of the date the fencing work will occur. Notice by email is sufficient;

(g) the fencing work is to be performed by a person or business who holds a current and valid contractor licence permitting them to perform fencing work;

(h) the respondent is to give reasonable access to his property to the licensed tradesperson performing the fencing work so that the existing fence can be demolished and a new fence be constructed in accordance with these orders; and

(i) within 28 days of the issuing of any invoice(s) by the licensed tradesperson performing the fencing work set out in these orders, the respondent is to pay the applicants an amount equivalent to 50% of the invoice(s).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Facer v Rosenberg [2021] NSWCATCD 144
Hearing dates:	23 July 2021
Date of orders:	22 November 2021
Decision date:	22 November 2021
Jurisdiction:	Consumer and Commercial Division
Before:	R Notley, Senior Member
Decision:	The applicants are to cause the performance of fencing work between the residential property of the applicants and the residential property of the respondents by 31 March 2022 with such work to be performed as follows: (a) demolish the existing timber paling fence between the respective properties; (b) remove any plants or shrubs along the existing fencing line only to the extent necessary to construct a new fence; (c) construct a 17.65 metre x 1.8 metre treated pine timber paling fence with 50mm galvanised steel posts as set out in the scope of works contained in the quotation of Active Fencing & Access Timbers dated 3 February 2021 and detailed in the Fencing Notice dated 3 February 2021; (d) the new timber paling fence is to be constructed on the common boundary line, or as close to the common boundary line as possible, as defined on the survey dated 2 August 2019 and prepared by Matthew Cooper and, where appropriate, incorporate both the posts for the retaining wall constructed on the applicants’ property and the Colorbond fence constructed on the respondent’s property; (e) the new timber paling fence is to be 1.8 metres from existing ground level and not 1.8 metres from the height of the retaining wall on the applicants’ property; (f) the applicants are to give the respondent three (3) clear business days written notice of the date the fencing work will occur. Notice by email is sufficient; (g) the fencing work is to be performed by a person or business who holds a current and valid contractor licence permitting them to perform fencing work; (h) the respondent is to give reasonable access to his property to the licensed tradesperson performing the fencing work so that the existing fence can be demolished and a new fence be constructed in accordance with these orders; and (i) within 28 days of the issuing of any invoice(s) by the licensed tradesperson performing the fencing work set out in these orders, the respondent is to pay the applicants an amount equivalent to 50% of the invoice(s).
Catchwords:	DIVIDING FENCES — Whether existing fence sufficient — Should Tribunal exercise discretion to order replacement of fence — Contribution to new fence
Legislation Cited:	Civil and Administrative Tribunal Rules 2014 (NSW) Dividing Fences Act 1991 (NSW) Hornsby Local Environmental Plan 2013 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Cases Cited:	Nicholls v Fortmann [2020] NSWCATAP 52 Purcell v Chadwick [2018] NSWCATAP 250
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Jonathan Facer (First Applicant) Christina Facer (Second Applicant) David Rosenberg (Respondent)
Representation:	First and Second Applicant (Self-represented) Respondent (Self-represented)
File Number(s):	COM 21/10595
Publication restriction:	None