Larney v Johannson

The appeal concerned a dispute between adjoining landowners, Larney (appellant) and Johannson (respondent), regarding a fence erected by the respondent. The appellant sought to have the fence removed under the *Dividing Fences Act 1991* (NSW). The matter came before the Court of Appeal of New South Wales.

The primary legal issues before the Court were whether the *Dividing Fences Act 1991* conferred power to order the removal of a fence, and whether the definition of "fencing work" under the Act encompassed the removal of a fence. Additionally, the Court considered whether the appellant had served proper notice under section 11 of the Act, requiring the respondent to contribute to the removal of the fence, particularly in circumstances where the respondent had initially served notices for contribution but then proceeded to erect the fence without seeking the appellant's contribution. The respondent's fence had been determined to be a sufficient dividing fence.

The Court of Appeal determined that the *Dividing Fences Act 1991* did not grant power to order the removal of a fence. It reasoned that the Act's provisions, including the definition of "fencing work," were directed towards the construction, repair, and replacement of dividing fences, not their demolition. The Court found that the appellant's application to remove the fence did not fall within the scope of the Act. Consequently, the Court held that the appellant had not served a proper notice under section 11 for the removal of the fence, as such an action was not contemplated by the Act.

Leave to appeal was granted, but the appeal was ultimately dismissed with costs.