Landers v Holmes

In the matter of Landers v Holmes, the applicant contested the construction of a chain wire fence on the boundary line between their properties. The dispute was heard and determined in the Civil and Administrative Tribunal of New South Wales. The applicant argued that the proposed fence was unreasonable due to the creation of a void of approximately 30 centimetres between the fence and a 3.3m high structural retaining wall and garden screen on the respondents’ property, which they claimed was not maintainable. The respondents contended that the retaining wall was not a dividing fence and that the tribunal was not permitted to consider it as such. Additionally, the respondents argued that maintenance of the fence was not a mandatory discretionary factor and that the applicant had failed to demonstrate any vitiating error warranting the grant of leave.

The court was required to determine whether the retaining wall and garden screen could be considered a dividing fence for the purposes of the dispute. It was also necessary to ascertain whether the maintenance of the fence was a mandatory discretionary factor and to assess whether there had been any vitiating error that warranted the grant of leave. The court held that the retaining wall and garden screen did not constitute a dividing fence, and therefore, the tribunal was not required to consider it in its decision. Furthermore, the court found that the maintenance of the fence was not a mandatory discretionary factor, and the applicant had not demonstrated any vitiating error that would warrant the grant of leave. Consequently, the application was dismissed.

The tribunal refused the applicant leave to appeal and dismissed the application for leave to appeal or appeal. The court held that the applicant had not demonstrated any vitiating error that warranted the grant of leave, and the retaining wall and garden screen did not constitute a dividing fence. The court also found that the maintenance of the fence was not a mandatory discretionary factor. The tribunal's decision was upheld, and the applicant's appeal was dismissed.