Griffiths v The Owners - Strata Plan No 11097

[2025] NSWCATCD 125

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Griffiths v The Owners – Strata Plan No 11097 [2025] NSWCATCD 125

Hearing dates:

29 April 2025

Date of orders:

18 August 2025

Decision date:

18 August 2025

Jurisdiction:

Consumer and Commercial Division

Before:

R Collins, Senior Member

Decision:

(1)   The parties are to jointly engage a contractor to demolish section A and Section B of the masonry wall as identified in the survey prepared by Beyond Measure Surveys dated 16 December 2024 within 60 days of these orders and remove all debris and vegetation on the line of the existing fence and cavity floor. The cost is to be shared equally between the parties.

(2)   The applicant may remove all remnant moss, debris and vegetation on its external house wall adjacent to Sections A and B, within 70 days after these orders. These works are to be borne by the partes in equal shares.

(3)   The applicant may repaint its external house wall the same colour as the rest of the house within 80 days of these orders, at the Applicant’s cost.

(4)   After the painting is complete, and within 90 days of these orders, the parties are to construct a timber lapped and capped boundary dividing fence on a concrete kerb with footing as shown on architectural plans Figures 20, 21 and 22 prepared by Llewela Griffiths Architects. The cost is to be borne equally by the parties.

(5)   The fencing work in orders 1 and 4 is to be carried out in a good and workmanlike manner using new materials. If it holds a currents contractors license to carry out the work in Orders 1 and 4, then the work in Orders 1 and 4 is to be carried out by Jensons Projects in accordance with its quote dated 19 March 2023, except that items 2.3 and 2.5 on the quote are excluded from the scope of work.

(6) If development consent is required for any of the works at orders 1-4 (including by application of clause 5.10 of the Woollahra Local Environmental Plan 2014):

(a)   the respondent is to lodge development application seeking consent for the timber lapped and capped fence as described at order 4, within 4 weeks of the orders;

(b)   the costs of the development application are to be borne by the parties in equal shares; and

(c)   the timing of the works at orders 1-4 is to run from the date of any development consent granted by the council.

(7)   Any application for an order in respect of costs is to be made in writing to the Tribunal and provided to the other party within 14 days of the date of this order.

(8)   Any submissions in opposition to an application for a costs order is to be sent to the tribunal and the other party within 28 days of the date of these orders.

(9) The Tribunal intends to determine any application for costs without a hearing under s 50(2) of the NCAT Act. Any submission in respect of a costs order should address whether the parties consider that the matter can be determined on the papers, or if it disagrees, why. Submissions should not exceed 3 pages in length.

Catchwords:

ENVIRONMENT AND PLANNING — Fences and boundaries — “Dividing fence”

Legislation Cited:

Dividing Fences Act 1991 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2015 (NSW)

Cases Cited:

Purcell v Chadwick [2018] NSWCATAP 250

Alwiah v Watts [2004] NSWSC 948

Muggeridge v Hackney [2016] NSWCATCD 65

Texts Cited:

Nil.

Category:

Principal judgment

Parties:

Llewela Tegan Griffiths (applicant)
The Owners – Strata Plan No SP11097 (respondent)

Representation:

Counsel:
Farrell (applicant)
Hanscomb (respondent)

Solicitors:
Marsdens Law Group –(respondent)

File Number(s):

2024/331924

Publication restriction:

Nil.

REASONS FOR DECISION

1. This is an application by a lot owner against the adjacent lot owner in respect of the length and type of a proposed replacement dividing fence between a home and a carpark in Paddington.

2. The application was filed in the Tribunal on 8 September 2024 in the name of the applicant’s husband, against the neighbouring property’s strata manager. The proceedings were listed for conciliation and group list hearing on 2 October 2024, where the parties were amended to the current parties. A procedural decision to refuse leave to amend the applicant’s claim was appealed, however leave to appeal was refused. On 31 January 2025 procedural orders were made for the exchange of evidence including access to the respective parties’ experts.

3. The matter was listed for contested hearing on 29 April 2025.

Orders sought

4. The dispute is in relation to replacement of the dividing fence between the properties. Both parties agree one section of the fence is to be replaced. They differ as to whether the remaining fence should be replaced, and what the replacement fence should

5. The applicant also seeks orders in relation to the removal of vegetation, painting of the applicant’s wall and if development consent is required for the replacement of the fence, orders in relation to the lodgement of the consent.

6. Fencing Notice

7. The Applicants served a Notice to Carry Out Fencing Work on the respondents pursuant to s 11 of the DF Act on 5 August 2024 (“Fencing Notice”). There is no dispute that the Fencing Notice was properly served, and the Tribunal finds it was served on 4 August 2025.

8. The Fencing Notice proposes:

1. the location of the proposed fencing work be the existing boundary line;

2. the fencing work to be carried out is:

“as per the recommendations of the Structural Investigation and Assessment Report prepared by Dunnings Consulting Engineers dated 7 June 2024, the owners of 21 Duxford Street need to complete (at their cost):

1. Demolish and rebuild (it is their decision to rebuild it) the section of masonry wall that has bowed and is defective. All new cavity construction shall be in accordance with the requirements of AS 3700 and the recommendations of a suitably qualified Builder and/or Structural Engineer.

2. Undertake the maintenance and cleaning to remove all biological growth and debris build up within the cavity space for the full extent of the wall.

4. Retrofit weepholes at the base of the existing masonry wall in accordance with AAS 3700 clause 4.7 to allow adequate drainage and ventilation.

5. Remove the existing tree and its root system to ensure no further impact to the existing masonry wall and the surrounding structural elements. Additional other trees within proximity of the existing masonry wall for the full extent of the boundary to 11 Duxford Street should also be removed.

The owners of 11 Duxford Street need to complete (at their cost)

6. Retrofit a flashing element to the top of the wall in accordance with AS 3700 Clause 4.7to provide a barrier against the downward passage of moisture within the cavity space.”

9. The Fencing Notice attached a copy of the report of Dunnings Consulting Engineers. It also estimated the total cost of the works as $20,000.

10. The Tribunal is satisfied that the Fencing Notice contains sufficient information to comply with requirements of s 11 of the DF Act.

11. The respondents did not agree to the fencing work proposed in the Fencing Notice.

Legal Principles

12. Section 6 of the DF Act sets out its general principle. It states:

“6   General principle—liability for fencing work

(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.”

13. Turning to what constitutes a “fence”, s 3 of the DF Act defines a “fence” as:

“… a structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land, whether or not continuous or extending along the whole of the boundary separating the land of adjoining owners, and includes:

(a)  any gate, cattlegrid or apparatus necessary for the operation of the fence, and

(b)  any natural or artificial watercourse which separates the land of adjoining owners, and

(c)  any foundation or support necessary for the support and maintenance of the fence,

but does not include a retaining wall (except as provided by paragraph (c)) or a wall which is part of a house, garage or other building.”

14. Also in section 3 of the DF Act, “dividing fence means a fence separating the land of adjoining owners, whether on the common boundary of adjoining lands or on a line other than the common boundary.”

15. “Fencing Work” is also defined in s 3 of the DF Act as follows:

“fencing work means:

(a)  the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence, and

(b)  the surveying or preparation of land (including the trimming, lopping or removal of vegetation) along or on either side of the common boundary of adjoining lands for such a purpose,

and includes:

(c)  the planting, replanting and maintenance of a hedge or similar vegetative barrier, and

(d)  the cleaning, deepening, enlargement or alteration of a ditch, embankment or watercourse that serves as a dividing fence.”

16. Section 4 of the DF Act requires the Tribunal to make a determination as to what is a sufficient dividing fence. It states:

“4   Determination as to “sufficient dividing fence”

In any proceedings under this Act, the Local Court or the Civil and Administrative 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 immediately before the repeal of that Act.”

17. The factors listed in s 4 of the DF Act are not exhaustive, and the Tribunal must “consider all the circumstances of the case when determining the standard for a sufficient dividing fence”: Purcell v Chadwick [2018] NSWCATAP 250.

18. Section 14 of the DF Act specified the orders that the Tribunal may make in relation to an application under the DF Act. It states:

“14   Orders as to fencing work

(1)  The Local Court or the Civil and Administrative Tribunal may, in respect of an application under this Act, make an order determining any one or more of the following:

(a)  the boundary or line on which the fencing work is to be carried out, whether or not that boundary or line is on the common boundary of the adjoining lands,

(b)  the fencing work to be carried out (including the kind of dividing fence involved),

(c)  the manner in which contributions for the fencing work are to be apportioned or re-apportioned or the amount that each adjoining owner is liable to pay for that work,

(d)  which portion of the dividing fence is to be constructed or repaired by either owner,

(e)  the time within which the fencing work is to be carried out,

(f)  the amount of any compensation (in the form of an annual payment to either of the adjoining owners) in consideration of loss of occupation of any land,

(g)  that, in the circumstances, no dividing fence is required in respect of all or part of the boundary of the adjoining lands.

(1A) Despite subsection (1), no order may be made for the carrying out of fencing work on a declared area of outstanding biodiversity value under the Biodiversity Conservation Act 2016 without the consent of the Environment Agency Head (within the meaning of that Act).

(2)  The occupation of land on either side of a dividing fence, as a result of an order determining that fencing work is to be carried out otherwise than on the common boundary of the adjoining lands, is not taken to be adverse possession as against the owner or to affect the title to or possession of the land, except for the purposes of this Act.”

Jurisdiction

19. The Tribunal has jurisdiction to hear and determine applications in relation to dividing fences pursuant to section 13(1) of the DF Act.

20. Section 12 (2) of the DF Act states that either owner may apply to the Tribunal for an order to determine the manner in which the fencing work is to be carried out:

“If adjoining owners do not agree (within 1 month after one of them has served a notice under section 11) as to the fencing work to be carried out…”

21. The DF Act does not specify a time limit for applications to be commenced in the Tribunal. Accordingly, the time limit is that which is set out in Rule 23(3)(b) of the NCAT Rules, which requires applications to be lodged within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application.

22. In this case, the Fencing Notice was served on 5 August 2024 and the application was filed on 8 September 2024. The tribunal is satisfied that the application was submitted within time.

23. The Tribunal is otherwise satisfied that it has jurisdiction to hear and determine this application pursuant to the DF Act.

Evidence

24. At the contested hearing, the applicant relied on bundles of documents filed with the Tribunal on 25 September 2024, 5 November 2024 and 24 March 2025, and an email from 7 April 2025 marked Exhibit 4. These documents relevantly included photographs, a Fencing Notice dated 5 August 2024, expert report of Ms Webster dated 28 April 2025, a letter from Core Consulting Engineers dated 24 July 2024, Hydromedial expert report dated 7 March 2025, report of Kyle Katt dated 7 June 2024, J & M Group Hydraulic stormwater assessment dated 19 March 2025, correspondence and photographs.

25. At the contested hearing, the respondent relied on a bundle of documents filed with the Tribunal on 23 April 2025 which relevantly included an expert report dated 23 April 2025 from Mr Kameas, a quotation from National Building maintenance Remedial Builders dated 3 January 2025, photographs and correspondence. This bundle was entered into evidence subject to weight and relevance, and, subject to paragraphs 1.3.2, 1.3.3, the first sentence in 2.6.8(c) and the first sentence in 2.6.14(b) of the report of Mr Kameas dated 23 April 2025 being not read.

26. At the hearing, the Mr Kameas gave evidence and was asked by questions by both parties’ representatives.

27. Both parties relied on written submissions provided at the hearing.

Consideration

28. To make orders for fencing work under s 14 of the DF Act, the Tribunal must first be satisfied that there is not a sufficient dividing fence in place.

29. Malpass M stated in Alwiah v Watts [2004] NSWSC 948 that:

“The content of the Act demonstrates that jurisdiction to make orders is dependent upon finding that there is an insufficient dividing fence between the adjoining lands. Unless that finding is made, no orders can be made. Such a finding gives rise to the liability referred to in s 6 and enables the making of orders pursuant to s 14.”

30. The current dividing fence is of unknown age. I find the fence is at least 58 years old, and in 1976 was described as “a very old brick wall”. It can be viewed as three separate sections:

(1) Section A – a 1.23m high brick wall of 230mm wide, separating the respondent’s carpark from the applicant’s house wall. There is a gap between the back of the brick wall and the applicant’s brick house wall ranging between 1cm and 11cms in this section. The length of this section is 15.38m running along the boundary line from Duxford Street. It is covered with mature vines on the respondents’ side of the fence. The applicants submit this is not a sufficient dividing fence. The respondent does not agree.

(2) Section B – the same brick wall, which has suffered damage. This section connects to Section A and is 1.385-1.490m high. It runs rearward at a length of 10.84m. It also separates the respondent’s carpark from the applicant’s house wall and courtyard wall. It is not covered in vines. The distance between the back side of the fence and the applicant’s house wall ranges from 11cm to 0cm, where the fence is leaning against the applicant’s house. It is common ground that the existing fence is not a sufficient dividing fence. The parties differ as to the fencing work required.

(3) Section C – this continues form section B rearwards to Suffolk Lane, being a distance of 4.47m in length and is 1.490m high. It is the same type of brick wall, and is covered with vines. The parties agree the fence in this section is a sufficient dividing fence and neither party seeks to have fencing work occur in this area.

Is there a sufficient dividing fence?

31. It is common ground that the fence is not a sufficient dividing fence in Section B. The Tribunal is satisfied that the fence, which leans against the applicant’s house wall in Section B, is not a sufficient dividing for the purposes of the DF Act.

32. The Tribunal is therefore satisfied that it has jurisdiction to order that fencing work occur under s 14 of the DF Act. The issue that remains is the scope and extent of the fencing work, in particular:

(1) should the fence in Section A be replaced?

(2) whether the fencing work should be a timber lapped fence or brick fence;

(3) what ancillary orders are appropriate (including orders with respect to development consent, cleaning and painting);

(4) what apportionment of cost of the fencing work.

What fencing work is required?

33. The applicant seeks an order that Sections A and B are demolished, and replaced with a lapped and capped timber fence, with ancillary orders. Specifically she seeks orders that:

(1) the Respondent is to demolish section A and Section B of the masonry wall as identified in the survey prepared by Beyond Measure Surveys dated 16 December 2024 (Survey) within 60 days of these orders.

(2) the parties are to arrange a contractor remove all remnant moss, debris and vegetation on the external wall of the applicant’s home adjacent to Sections A and B, to occur within 90 days after these orders. These works are to be borne by the partes in equal shares.

(3) The applicant may repaint its external house wall within 100 days of these orders, at the Applicant’s cost.

(4) After the painting is complete, and within 120 days of these orders, the Respondent is to construct a timber lapped and capped boundary dividing fence on a concrete kerb with footing as shown on architectural plans A-08, A-09 A-10 prepared by Llewela Griffiths Architects, at its cost.

(5) If development consent is required for any of the works at orders 1-4 (including by application of clause 5.10 of the Woollahra Local Environmental Plan 2014):

(a) the respondent is ordered to lodge development application seeking consent for the timber lapped and capped fence as described at order 4, within 4 weeks of the orders;

(b) the costs of the development application are to be borne by the parties in equal shares; and

(c) the timing of the works at orders 1-4 is to run form the date of any development consent granted by the council.

34. The applicant submits that the replacement of Section A is necessary as the fence itself is causing damage to the applicant’s property. It particularly relies on the report of Mr Morris of Hydromedial Consulting Group Pty Ltd dated 7 March 2025 (“Hydromedial Report”).

35. The Hydromedial Report states that the fence in Section B has been damaged by:

“what appears to be vehicle impact all the vegetation growing on the wall the boundary fence is leaning over and touch the external wall of number 11 Duxford Rd.

….

3.7.3 The combination of touching walls the debris in the wall cavity the lack of drainage and the exposed cavity is allowing water to become trapped between the boundary wall and the external wall.

3.7.4 This is causing damage to the internal side of the terrace at number 21 Duxford St Paddington.

….

3.7.6 The construction off the wall is also not allowing the occupant of 11 Duxford St to carry out maintenance and rectification works to comply with current building codes and standards.

3.7.7 The wall presents with what is assumed to be mould an algae and as such testing should be carried out to determine if the internal areas of number 11 Duxford Street have been contaminated form by mould spores.

3.7.8 The wall has a coating that appears to have been applied circa 1970. The costing should be tested for lead to determine if it is a risk to human health and also the environment.”

36. It further recommends replacing Sections A and B on the basis that

(a) the cavity between the fence and the applicant’s house wall has inadequate grade allowing water to enter the cavity with no way of escaping;

(b) the existing wall cracking in Section B is severe. The existing wall does not have lateral support and is not designed to support the fence.

(c) the existing fence coating is flaking and may contain lead paint.

(d) moisture from bridging cavities has caused the paint coating to flake off on the interior wall of the applicant’s property adjacent to her pool. Vines are also growing through the applicant’s wall which will cause the wall to fail over time. High moisture readings along the applicant’s wall show moisture entering the wall from missing capping and potentially the wall coating above.

37. The respondent submits that the Tribunal should limit any order to the rebuilding of Section B. It submits that Section B is the sole area of the existing fence that is not a sufficient dividing fence, and as such the Tribunal has no jurisdiction to order fencing work in Section A. It submits that there is insufficient evidence to establish that Section A is not a sufficient dividing fence.

38. The respondent particularly relies on the expert report of Alexander Kameas dated 23 April 2025 (“Kameas Report”). It states that:

“2.4.3 The out-of-plane shear deformation exists only at the 6m damaged section of the wall.

….

2.4.5 The damaged section seems to be maintaining its axial (vertical) transfer to self-weight to the base of the Dividing Masonry Fence. Therefore, it is my opinion that the Dividing Masonry Fence is not inducing an imposed lad on to the Adjoining Boundary Wall of the building at 11 Duxford Street.

…

This means that if the Adjoining Boundary Wall did not exist, the Dividing Masonry Fence would be abele to freely stand by itself in its existing structural condition.”

The Kameas Report further concludes “the Dividing Masonry Fence appears to be structurally adequate, except for one section of wall (approx. 6m in length) which appears to be touching the Adjoining Boundary Wall of the neighbouring building.”

…

“I recommend that this section of wall be deconstructed and rebuilt in the same place, using M3 mortar.

I do not recommend any remedial course of action for the Dividing Masonry Fence other than the removal and reconstruction of the 6, length of wall that is touching.”

39. The respondent also makes jurisdictional submissions in relation the applicant’s proposed orders. It submits that the Tribunal has no jurisdiction to order the demolition of Section A of the wall on the basis that it is a sufficient dividing fence. It submits the demolition and replacement of the fence would require development consent, and orders in relation to such development consent is beyond the Tribunal’s jurisdiction. It submits that orders for the submission of development consent to council is not contained within s 14 of the DF Act, and is thus not within jurisdiction, and further that such an order would result in an uncertain outcome, offending the principle that orders should be certain.

40. The respondent also submitted that the Tribunal lacks jurisdiction to make orders as to the cleaning of vegetation and the painting of the applicant’s walls, on the basis that such a power is not contained in s 14 of the DF Act.

41. Finally the respondent also opposes the lapped and capped fence on the basis that it is not in keeping with fences in the local area.

Is Section A a sufficient dividing fence?

42. The Tribunal must only order Fencing work that results in the provision of a dividing fence of a standard not greater than the standard for a sufficient dividing fence (s6 – DF Act). Therefore the Tribunal should only consider an order to replace Section A of the existing fence if it is satisfied that the fence in this location is not a sufficient dividing fence, or that there are other circumstances that warrant the fencing work in this section in conjunction with fencing work in Section B, which is agreed to not be a sufficient dividing fence.

43. Section 4 of the DF Act sets out a range of factors that can be considered when determining whether a structure is a sufficient dividing fence, however these are not exhaustive.

44. The Tribunal has considered the evidence of Mr Kameas, including his oral evidence. The evidence of Mr Kameas aligns with the report of Mr Catt dated 7 June 2024, in that both recommend the replacement of Section B only. Both Mr Kameas and Mr Carr are structural engineers. Mr Catt acknowledges the limitations of his inspection of Section A, as it is covered by vine growth. Both parties have relied on surveys, each which support that the existing fence in Section A has not significantly shifted.

45. The best evidence before the Tribunal, where neither party has inspected Section A beneath the vines, is that the fence has not significantly shifted on its foundations.

46. The Tribunal will now consider whether other factors establish that the existing fence in Section A is not a sufficient dividing fence. These include the lack of weepholes, debris build up, vegetation in the cavity, lack of coating on the interior face and whether it is causing damage to the applicant’s property.

47. The applicants particularly rely on the Hydromedial Report, as well as the report of Heather Webster, façade engineer, dated 16 March 2025 (“Webster Report”).

48. The respondents rely on the report of Mr Kameas.

49. The applicant submits that the cavity between the existing fence and the applicant’s exterior wall has insufficient grade. The Hydromedial Report does not provide measurements to support this. It bases its view on the build up of debris in the cavity, observation of vines growing through the wall into the cavity, and moss and algae growing in the cavity.

50. Mr Adams used an inspection camera to observe and take photographs of the cavity. He includes in the Hydromedial Report photographs of significant collections of leaves, sticks, vines and other debris in the cavity. He also provides photographs of moss and algae in the cavity.

51. Mr Kameas did not observe debris inside the cavity, and stated in oral evidence that this was because the cavity is dark.

52. The Hydromedial Report also states there is mould present. I am satisfied that the cavity contains moss and other organic growth. I am not satisfied that this organic growth is mould.

53. I am satisfied that there are sporadic cracks in the mortar and brickwork of the existing fence. I am satisfied that there are intrusions of vegetation, being vines, through the existing fence through these cracks and into the cavity.

54. In consideration of all the evidence, I am satisfied that the cavity contains debris build up and vegetation.

55. The Webster Report notes that the vertical façade of the applicant’s house will capture approx. 1-2% of the rain water of an equivalent horizontal surface. She also observes that “there is no visible waterproofing or drainage to the cavity.”

56. The Webster Report also states that “there is no building element to prevent water ingress into the cavity and no visible drainage or means of water to escape from the cavity. As a result there are visible signs of water damage, biological growth and root system penetration at the top of the cavity to the 11 Duxford Street boundary wall, and there is there is likely unseen damage to the walls on both sides within the cavity.”

57. I am find there is no flashing or other waterproofing treatment to the wall or the cavity. I find that there is degradation including loose mortar and cracks in the existing wall caused by water and degradation due to the wall’s age.

58. I am satisfied based on the existence of moss and algae in the cavity that it is a moist environment. I find that the vines on the respondent’s side of the existing fence are growing through cracks in the fence and into the cavity. I find that the existing fence does not contain weep holes.

59. I prefer the evidence of Mr Adams and Ms Webster that the cavity does not adequately drain, based on Mr Adams’ inspection of the cavity and Ms Webster’s observation of water damage. I therefore find the cavity does not drain adequately as a result of both the lack of weepholes in the existing fence and the growth of vines through cracks in the existing fence into the cavity.

60. The cavity is between 0cm and 11cm wide, but typically around 4cm wide. I am satisfied that the design of the existing fence significantly inhibits the applicants from performing maintenance to the side of their house behind the dividing fence. It also prevents the parties from performing maintenance on the fence itself.

61. I am satisfied based on the Hydromedial Report and photographs that the vines are growing through the existing fence in Section A and underneath the exterior paint on the applicant’s house wall. I am satisfied that in Section B, the vines also then grow through the exterior wall into the applicant’s courtyard.

62. I am not satisfied that the existing fence in Section A is causing water ingress into the applicant’s property. Moisture readings in the Hydromedial Report were limited to the applicant’s courtyard, adjacent to Section B. I find that the existing fence in Section B is trapping additional moisture in the cavity as a result of the fence bridging the cavity in that area. I am not satisfied that if the original design is rebuilt in section B, that it would result in water ingress into the applicant’s property.

63. In relation to the Core Engineers Report dated 24 July 2024, it was submitted that this was unfavourable to the respondent’s case. The report is brief, comprising only two pages of text and five photographs. The report observes some loose masonry units along the top section of the wall but does not state which part of the wall that these units were observed. I do not find this report to be of assistance as to whether rebuilding section B alone would result in a fence to the standard of a sufficient dividing fence.

64. In relation to whether the paint is potentially toxic and contains lead, I find there is insufficient evidence to establish this as a relevant consideration. Mr Adams bases his opinion that marine grade paint containing lead was sometimes used in the 1970s in residential applications. There is no evidence that marine grade paint or other lead paint is on the wall and no testing is in evidence.

65. Therefore in consideration of all the factors in relation to the existing fence, I find that the existing fence design does not allow for adequate drainage of the cavity. I find that the existing fence in Section A contains cracks caused by water damage and aging, which are enabling vine growth through the fence and onto the applicant’s wall. I find the vines are causing damage to the applicant’s wall paint and ingress into the applicant’s courtyard. I find that the wall design does not enable the applicant to perform maintenance to prevent such damage.

66. I will now turn to consideration of the specific factors set out in s 4 (b) to (g) of the DF Act.

67. In relation to the purposes for which the adjoining lands are used or intended to be used, the applicant’s side of the dividing fence is a cavity between her house and the dividing fence. The respondent’s side is use as a car park. I am satisfied that there are no relevant standards that apply to the dividing fence next to a car park. In relation to the cavity on the applicant’s side, I find that the use is an air gap between the fence and the external wall of the applicant’s house. I find that the space should not enable ponding of water, as such ponding may damage the fence itself and the applicant’s house. I therefore find that the use of the space on the applicant’s side includes that the space should enable water to drain from the space to the street.

68. In relation to privacy, I am not satisfied that there are relevant privacy considerations. The respondent’s side of the fence is a car park. The sole windows in the applicant’s house on that side of the property are at a height that privacy from the respondents is not a relevant consideration.

69. In relation to the kind of dividing fence usual in the locality, I am satisfied that lapped and capped fences and, by its very presence, the existing brick wall fence, are both used in the locality.

70. In consideration of all factors set out above, I am satisfied that the existing fence in sections A and B is not a sufficient dividing fence.

What fencing work should occur

71. The applicant submits that a lapped and capped fence is appropriate, with a spoon drain between the fence and the applicant’s home and at a height of approximately 1.5m (following the same height as the applicant’s front fence). The applicant submits that this design:

(1) is in keeping with the area;

(2) would enable the water to drain away;

(3) would enable the applicant to perform required maintenance to its side of the fence; and

(4) would permit the respondent to grow vines if it desires.

72. The respondent submits that the existing wall should be rebuilt and repaired. They submitted:

(1) the applicants have failed to establish that lapped and capped fences are of a kind usual in the area;

(2) that development consent is required for the applicant’s proposed fence; and

(3) jurisdictional objections.

73. The Tribunal may order the demolition of the existing fence where it is a part of fencing work ordered under s 14 of the DF Act.

74. The parties agree there is a likelihood that the demolition will require development consent as it will not fall within “minor works” within the Woollahra Local Environment Plan. The respondent submits that the Tribunal does not have jurisdiction to make orders with respect to development consent.

75. Section 29(2)(a) of the NCAT Act gives the Tribunal “the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings.”

76. I am satisfied that the Tribunal may make an order that a party submit development consent for the purposes of fencing work that it is otherwise empowered to order, on the basis that such an order is an ancillary order (see Muggeridge v Hackney [2016] NSWCATCD 65 at 56-57).

77. I am therefore satisfied that the Tribunal has jurisdiction to make an order for demolition of the existing fence.

78. I find that there is a lapped and capped fence facing Duxford Street at a different property. I am satisfied that the applicant’s proposed lapped and capped design is of the kind of dividing fence used in the locality.

79. I am satisfied that the applicant’s proposed lapped and capped fence is appropriate for the respondent’s adjacent use to the fence as a car park. I am also satisfied that it will enable water to drain away from the cavity, and maintenance of the cavity and the applicant’s wall as required by the applicant.

80. I am not satisfied that the existing wall, even if it were rebuilt, would be a standard of a sufficient dividing fence since it cannot overcome the lack of drainage and maintenance issues inherent in its design. Whilst the introduction of flashing would reduce the water ingress into the cavity, the extent of vine penetration and lack of structural drainage remain.

81. I do not consider that there are relevant privacy considerations with either of the applicant or respondent’s proposed fencing work.

82. In relation to the council’s codes or policies, I find that the Woollahra Development Control Plan 2015 (“WDCP”) is applicable. I find both the applicant and respondent’s proposed fencing work complies with the requirement for fencing to be under 1.8m and consistent with traditional fence, forms and materials, as required by the WDCP.

83. In relation to any relevant environmental planning instrument, the Tribunal is satisfied that the Woollahra Local Environmental Plan 2014 (“WLEP”) is relevant. As stated above, it is likely that the demolition works are not “minor works” and as such development approval shall be required for fencing work requiring demolition of the existing fence.

84. Whilst the Tribunal is satisfied that no development consent is required for the respondent’s repair proposal, the ease of implementing the respondent’s proposal does not outweigh the deficiencies in the approach, specifically that such fencing works will not result in a fence at the standard of a sufficient dividing fence.

85. Therefore the Tribunal finds that need for a dividing fence which enables drainage, maintenance of the cavity and does not cause water and vine penetration damage to the applicant’s house far outweighs the inconvenience of the parties seeking a development consent. The Tribunal is therefore satisfied that the fencing work should include the demolition of the existing fence in sections A and B.

86. The applicant’s side of the fence is the external wall of the applicant’s house, then the external wall to its courtyard. I am not satisfied that the external wall of the terrace would be a sufficient dividing fence to a carpark on the respondent’s side.

87. The applicant’s proposed fence is a lapped and capped design which includes a spoon drain on the applicants side of the fence, and a new kerb to support the fence. I find that the spoon drain and new kerb elements of the proposed fence are the foundation or support necessary for the fence in the location in which it is situated, in consideration of the drainage requirements on both sides of the fence. I am satisfied that the fence design in Architectural Plans A-01, A-08, A-09 and A-10 is the standard of a sufficient dividing fence in this location.

88. The Tribunal is satisfied that the location of the fence should be in accordance with the drawings set out in Architectural Plans A-01, A-08, A-09 and A-10, on the basis that this would situate the whole of the fence and cavity within the existing fence and cavity’s approximate 270mm footprint, and enable drainage on the applicant’s side of the fence.

89. The applicant seeks an order pursuant to s 8 of the DF Act that the respondent is to both demolish and construct the new fence at its cost on the basis that the damage to the wall has resulted from vehicle impact on the respondent’s side or the respondent’s failure to maintain the vine roots.

90. Under s 8 of the DF Act, one adjoining owner is liable for up to the whole cost of the fencing work where a dividing fence has been damaged or destroyed by a negligent or deliberate act of the owner or a person who has entered the land concerned with the express or implied consent of the owner.

91. The Tribunal is satisfied that the lean of the dividing fence in Section B against the applicant’s house wall is the result of vehicular impact.

92. However, the determination that the entirely of the existing fence in Sections A and B is not a sufficient dividing fence as set out above relies on factors unrelated to the respondent’s maintenance of its side of the fence. The existing fence design is inadequate for the ongoing maintenance. The requirement to replace the existing fence has not arisen as a result of the respondent’s sole actions.

93. The Tribunal finds that the top layer of bricks on the existing fence is loose, the mortar is cracked, it has no protective coating, is not waterproofed and has suffered damage due to water. The design is further inadequate for ongoing maintenance. The Tribunal is not satisfied that the vehicular impact or factors relating to the presence of vines outweigh the defects with the existing fence that are not caused by the respondent. In consideration of the circumstances, the tribunal is not satisfied that the requirement to replace the existing fence has arisen as a result of the respondent’s negligence or deliberate act.

73. The Tribunal therefore orders that the costs to demolish and replace the existing fence be shared equally between the parties.

The cleaning order

95. The applicant seeks an order that the parties are to equally share the cost of a contractor to remove “all remnant moss, debris and vegetation on the external wall of Number 11…”

96. The Tribunal is satisfied that a cleaning order with respect to the cavity floor is appropriate. However the Tribunal is not satisfied that any vegetation growth on the applicant’s house wall is the responsibility of the parties equally.

97. The Tribunal is satisfied that an order that the applicant, may, if it wishes, clean all remnant moss, debris and vegetation on the external wall is within the jurisdiction of the Tribunal to make ancillary orders under s 29 of the NCAT Act, as the physical limitations of the site make such work impractical when a fence is in situ. The tribunal is satisfied that an order that such cleaning work may be carried out within a 14 day period after the demolition of the existing fence, and prior to the erection of the new fence is warranted in the circumstances. The Tribunal finds that this is maintenance work on the applicant’s property. Therefore such a cost is to be born solely by the applicant.

98. I am not satisfied that 30 days is required for this cleaning. I consider that a 10 day period is adequate to clean the wall.

The painting order

99. The applicant also seeks an order that it may repaint the external wall at its cost, and provides timing for such. I am satisfied that there is a sufficient nexus between the painting order sought and the fencing work as the physical limitations of the site make such painting impractical when the fence is in situ. The practical sequence of works is that the painting occur between demolition of the existing fence and the erection of the new dividing fence. Therefore the Tribunal is satisfied that the painting order is an ancillary order for the purposes of s 29 of the NCAT Act. The Tribunal is further satisfied that the painting order is justified in the circumstances.

The development consent order

100. As set out at paragraph 76 above, I am satisfied that the Tribunal has jurisdiction to order that a party submit a development application. I am satisfied that the costs of a development application ought to be shared equally, as it forms a necessary part of the fencing work.

101. The applicant proposes that the respondent submits the development application. This was not opposed by the respondent. I therefore am satisfied that the respondent is to submit the development application.

Orders

102. The Tribunal orders:

(1) the parties are to jointly engage a contractor to demolish section A and Section B of the masonry wall as identified in the survey prepared by Beyond Measure Surveys dated 16 December 2024 within 60 days of these orders, and remove all debris and vegetation on the line of the existing fence and cavity floor. The cost is to be shared equally between the parties.

(2) the applicant may remove all remnant moss, debris and vegetation on its external house wall adjacent to Sections A and B, within 70 days after these orders. These works are to be borne by the partes in equal shares.

(3) The applicant may repaint its external house wall the same colour as the rest of the house within 80 days of these orders, at the Applicant’s cost.

(4) After the painting is complete, and within 90 days of these orders, the parties are to construct a timber lapped and capped boundary dividing fence on a concrete kerb with footing as shown on architectural plans Figures 20, 21 and 22 prepared by Llewela Griffiths Architects. The cost is to be borne equally by the parties.

(5) the fencing work in orders 1 and 4 is to be carried out in a good and workmanlike manner using new materials. If it holds a currents contractors license to carry out the work in Orders 1 and 4, then the work in Orders 1 and 4 is to be carried out by Jensons Projects in accordance with its quote dated 19 March 2023, except that items 2.3 and 2.5 on the quote are excluded from the scope of work.

(6) If development consent is required for any of the works at orders 1-4 (including by application of clause 5.10 of the Woollahra Local Environmental Plan 2014):

(a) the respondent is to lodge development application seeking consent for the timber lapped and capped fence as described at order 4, within 4 weeks of the orders;

(b) the costs of the development application are to be borne by the parties in equal shares; and

(c) the timing of the works at orders 1-4 is to run from the date of any development consent granted by the council.

(7) Any application for an order in respect of costs is to be made in writing to the Tribunal and provided to the other party within 14 days of the date of this order.

(8) Any submissions in opposition to an application for a costs order is to be sent to the tribunal and the other party within 28 days of the date of these orders.

(9) The Tribunal intends to determine any application for costs without a hearing under s 50(2) of the NCAT Act. Any submission in respect of a costs order should address whether the parties consider that the matter can be determined on the papers, or if it disagrees, why. Submissions should not exceed 3 pages in length.

**********

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

Decision last updated: 27 October 2025