Hill v Vicars

[2022] NSWSC 828

Supreme Court

New South Wales

Medium Neutral Citation:

Hill v Vicars [2022] NSWSC 828

Hearing dates:

16 June 2022

Date of orders:

16 June 2022

Decision date:

16 June 2022

Jurisdiction:

Common Law

Before:

Garling J

Decision:

See [24]

Catchwords:

APPEALS — appeal from Local Court to Supreme Court — application for judicial review — decision not to exercise jurisdiction under Dividing Fences Act 1991 — failure to draw Local Court’s attention to jurisdictional fact — error of law established — appeal upheld

Legislation Cited:

Dividing Fences Act 1991 ss 4, 6, 7, 11, 12, 14

Local Court Act 2007 ss 39, 40, 45

Supreme Court Act 1970 s 69

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Subdiv 17

Woollahra Local Environmental Plan 2014 cl 5.21

Cases Cited:

Alwiah v Watts [2004] NSWSC 948

Larney v Johansson [2013] NSWCA 409

Lesley-Swan v Owners of SP 32735 [2013] NSWSC 1635

Pearson v Jamaica Blue Pty Ltd [2019] NSWSC 1737

Texts Cited:

Not applicable

Category:

Principal judgment

Parties:

Thomas Hill (P1)
Rachael Lantry (P2)
Claire Vicars (D1)
Peter Daniel (D2)
Local Court of New South Wales (D3)

Representation:

Counsel:
J Ireland QC (P1, P2)
A Cornish (D1, D2)
A Polden (D3)

Solicitors:
McGirr Lawyers (P1, P2)
Carmody Lawyers (D1, D2)
Crown Solicitor for New South Wales (D3)

File Number(s):

2021/00325201

Publication restriction:

Not applicable

 Decision under appeal 

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

21 October 2021

Before:

Hosking LCM

File Number(s):

2021/00031328

EX TEMPORE Judgment

Summons

1. The plaintiffs appeal pursuant to s 39, as of right, or alternatively s 40, by leave, of the Local Court Act 2007, from the decision of the Local Court made on 19 October 2021. On that day, after a hearing of the application by the plaintiffs for orders pursuant to the Dividing Fences Act 1991, to which I will refer as “the Act”, the Local Court dismissed the application and ordered that the plaintiffs in this Court, who were the applicants in the Local Court, pay the respondents’ costs of that application up until 23 September 2021.

2. The plaintiffs appealed on the basis that there had been an error of law by the magistrate in determining that there was in existence in October 2021 a “sufficient dividing fence”, as that term is used in the Act.

3. Earlier today, leave was granted to file an amended summons in this Court, which added to the statutory appeal, a claim for relief under s 69 Supreme Court Act 1970, in particular a claim that the decision of the Local Court should be set aside for want of jurisdiction or error of law on the face of the record.

4. A third defendant, the Local Court of NSW was joined. It was granted leave to file a submitting appearance. It took no further part in the proceedings.

5. The active defendants in this Court resisted the appeal and the grant of any relief pursuant to s 69 Supreme Court Act and sought that the proceedings be dismissed.

Background

6. A little factual background is necessary. The plaintiffs were and are the joint owners of a terrace house property in Paddington. The defendants are the owners of a terrace house which adjoins the house of the plaintiffs. Their land is contiguous. One issue which seems to have occupied some attention is that the plaintiffs were entitled to exercise a right of way over part of the defendants’ land to enable access from the rear yard of their terrace house to the street. For that purpose, there was in existence in the original fence a gate permitting such access to occur.

Local Court Proceedings

7. The subject of the application to the Local Court by the plaintiffs was a fence at the rear of the adjoining properties, 13m long with a timber gate in it.

8. The application to the Local Court was made on 3 February 2021. It was made pursuant to s 45 of the Local Court Act and sought orders for fencing work to be carried out pursuant to s 14 of the Act. The application certified that the requisite procedures required by ss 11 and 12 of the Act had taken place.

9. When the matter came on for hearing in the Local Court there was a great deal of uncontested fact. Those matters which were not contested were recorded in the Local Court’s reasons and include the following:

1. First, a matter which was not in dispute was that the original fence, which existed in February 2021, to which I will refer as “the old fence”, was dilapidated and was not a sufficient dividing fence for the purposes of the Act; and

2. Secondly, a matter that was not in contest was that about three weeks or so before the hearing, the defendants had caused to be constructed a 2.1m paling fence, supported by metal poles, along the boundary line.

10. The issue then posed for the Local Court’s decision was whether the fence which had been newly constructed in or about September 2021, to which I will refer as “the new fence”, was a sufficient dividing fence for the purposes of the Act.

11. It is necessary to draw attention to the legal exercise upon which the Local Court was engaged. It was being asked to make an order under s 14 of the Act requiring that the defendants undertake fencing work, which was described in the Application in the following way,

“The Court makes [an order] for the following dividing fence to be erected[:] 2.1m high x 13.0m long lapped and capped fence with timber gate located in the fence approximately halfway along the fence line. The fence is a replacement for the existing dilapidated wooden timber fence with timber gate located on the boundary line between [the applicants’ property] and [the respondents’ property].”

12. It is to be observed that no order was sought specifically with respect to a contribution as between the adjoining owners pursuant to s 7 of the Act.

13. In order for the Local Court to have the jurisdiction to make an order under s 14, it first needed to be satisfied that at the time of making the order there was no sufficient dividing fence, as that term is defined in s 4 of the Act.

14. It is clear that unless the Court determined that threshold question and concluded that there was no sufficient dividing fence, it did not have the jurisdiction to make orders under s 14. In these circumstances, in my view, that threshold fact can properly be described as a fact going to the jurisdiction of the Court to make the relevant orders: see Larney v Johansson [2013] NSWCA 409 at [54]; and Alwiah v Watts [2004] NSWSC 948.

15. It is apparent from the decision of the Local Court that it accepted the defendants’ submission that the new fence was a sufficient dividing fence. The Local Court consequently held that it did not have jurisdiction to make the orders sought by the plaintiffs for fencing work to be carried out pursuant to s 14 of the Act. I note in this respect the term “fencing work” does not include the removal or demolition of an existing dividing fence, except to the extent that its removal may be necessitated by the replacement, repair or maintenance of the existing fence: see Larney at [69] per Emmett JA.

16. In their submissions that the Local Court should refuse to make the orders in the application, the defendants drew the Local Court’s attention to and relied upon Subdiv 17 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, which I will refer to as “the 2008 SEPP”, and in particular cl 2.34 as being the standard applicable to the plaintiffs’ application. No other environmental planning instrument, policy or code was drawn to the Local Court’s attention.

Relevant Legislative Provision

17. At this point I note that s 4 of the Act provides the following in relation to the meaning of “sufficient dividing fence”:

“In any proceedings under this Act, the Local Court... 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...”

Discernment

18. In drawing the Local Court’s attention to the 2008 SEPP, neither party drew the Local Court’s attention to the following undoubted circumstances:

1. the fact that Subdiv 17 of 2008 SEPP did not actually apply to the issue of a dividing fence between the properties of the parties;

2. the provisions of the Woollahra Local Environmental Plan 2014, to which I will refer as the “2014 LEP”, which had the effect of prohibiting any development, including the construction of a dividing fence on the adjoining lots relevant to this application without first obtaining a development consent, to which at least cl 5.21 of the 2014 LEP applied; and

3. the fact that the new fence had not been the subject of any application for development sent to Woollahra Council or the grant of any consent by the Council.

19. The Local Court proceeded to determine the threshold fact relevant to its jurisdiction, namely whether there was a sufficient dividing fence, on a wholly inadequate basis, because it was misled by omission, namely the lack of referral to the 2014 LEP and mistakenly as to the applicability of the 2008 SEPP.

20. These are matters made specifically relevant by ss 4(e) and (f) of the Act and were required to be addressed by the Local Court when determining the existence of a sufficient dividing fence. It follows that by reason of the conduct of the parties, the Local Court was invited to undertake a flawed exercise in the determination of the relevant jurisdictional fact. Thus, an error of law has been established because the Local Court’s consideration of that relevant fact wholly miscarried.

Relief

21. This Court, in the event that such error of law is established, does not have the power to make primary findings of fact, nor does it have the power to make findings of mixed fact and law: see Lesley-Swan v Owners of SP 32735 [2013] NSWSC 1635 at [71]; Pearson v Jamaica Blue Pty Ltd [2019] NSWSC 1737 at [25]. It is not a matter for this Court on an appeal pursuant to the Local Court Act to engage in the determination of facts which may be relevant to the merits of the proceedings below.

22. It follows that I am satisfied the plaintiffs' appeal must be upheld.

23. I note that the plaintiffs also sought to agitate relief pursuant to s 69 of the Supreme Court Act. It is unnecessary to determine that application because the same result would apply, and no greater relief can be obtained by an order under s 69 than is obtained on a successful appeal.

Orders

24. I make the following orders:

1. Appeal upheld.

2. The decision of the Local Court on 21 October 2021 is set aside.

3. The orders of the Local Court with respect to the payment of the defendant's costs by the plaintiffs is set aside.

4. Remit the matter to the Local Court to be dealt with in accordance with the law.

5. Order the defendants to pay the plaintiffs' costs of the proceedings in this Court.

6. Otherwise dismiss the claims in respect to which leave to file is granted today.

**********

Decision last updated: 22 June 2022