Lozano v Gentle

[2023] NSWCATCD 152

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Lozano v Gentle [2023] NSWCATCD 152

Hearing dates:

7 July 2023

Date of orders:

12 September 2023

Decision date:

12 September 2023

Jurisdiction:

Consumer and Commercial Division

Before:

S Hanstein, General Member

Decision:

(1) The following fencing work is to be carried out, on or before 11 March 2024, on the boundary between the applicant's land and the respondent’s land:

(a)the common boundary line is to be defined by a registered surveyor;

(b)vegetation is to be removed (only to the extent necessary for construction of a fence on the boundary line), and disposed of;

(c)a treated pine post and black coated chain wire fence is to be installed, 1.2m high and approximately 110m long, with posts every four metres.

(2)The applicant is to engage the surveyor and contractors to undertake the fencing work, and is to pay the surveyor and each contractor the whole of the cost of the fencing work, on or before the completion of each stage of the fencing work.

(3)The respondent is to pay the applicant a contribution of 50% of the cost of each stage of the fencing work within seven days of the respondent advising the applicant that each stage of the fencing work has been completed and providing a copy of the receipt for payment from the surveyor and each contractor.

Catchwords:

ENVIRONMENT AND PLANNING — Fences and boundaries — “Dividing fence” — Whether sufficient dividing fence — Order for fencing work

Legislation Cited:

Dividing Fences Act 1991

Category:

Principal judgment

Parties:

Lisa Lozano (applicant)
Robyn Gentle (respondent)

Representation:

Nil

File Number(s):

COM 23/13553

Publication restriction:

Nil

Reasons for decision

1. The applicant and the respondent are adjoining owners of land in a rural residential area. The applicant seeks orders under the Dividing Fences Act 1991 (“Act”) in respect of part of the boundary between the parties’ properties.

Background

2. The parties share a boundary of approximately 222m. Along the boundary there is currently a hard wood post and wire fence approximately 70m long, running up from the waterfront reserve, which adjoins a newly constructed chain wire fence of 42m in length. This new fence was constructed following the order made by the Tribunal in previous proceedings on 22 March 2023, and is on the section of the boundary that runs between the parties’ houses. Those previous orders required that section of fence to be 1.2m high, constructed of black coated chain wire with 50mmx50mm steel posts every four metres.

3. The current application concerns the shared boundary from the end of the newly constructed chain wire fence to the road at the front of the properties, being approximately 110m.

4. I am satisfied this is a claim which the Tribunal has jurisdiction to hear and determine. In particular, I am satisfied that a fencing notice was served, and that the application was lodged at least a month after the notice was served.

5. Both parties participated in the hearing. I have had regard to the oral evidence and the detailed documentary material provided by the parties in reaching my decision.

Legislation

6. The phrase “fencing work” is defined in section 3 of the 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,

...

7. Section 4 of the Act provides, relevantly:

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...

8. Section 6 of the Act provides:

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.

9. Section 7(1) of the Act provides:

7 Contribution as between adjoining owners—generally

(1) Adjoining owners are liable to contribute in equal proportions to the carrying out of fencing work in respect of a dividing fence of a standard not greater than the standard for a sufficient dividing fence.

...

10. Section 14(1) of the Act provides, relevantly:

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) …

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

...

11. Section 18 of the Act provides:

18 Procedure for defining boundary line

(1) An adjoining owner may give notice in writing to the other adjoining owner of his or her intention to have the common boundary line defined by a registered surveyor if the owners do not agree on the position of the common boundary line for the purposes of carrying out fencing work.

(2) The owner receiving the notice may, within 7 days after service of the notice:

(a) define the position of the common boundary line by pegs if satisfied as to its position, or

(b) employ a registered surveyor to define the common boundary line,

and in either case is to inform the other adjoining owner in writing of what has been done.

(3) The owner giving the notice may have the common boundary line defined by a registered surveyor if the owner to whom the notice is given has, within 1 month after service of the notice, defined the common boundary line by pegs or failed to have the common boundary defined by a registered surveyor.

(4) If the common boundary line as defined by a registered surveyor is ascertained to be in the same position defined by pegs placed there by the owner receiving the notice, that owner is entitled to recover from the owner giving the notice any costs incurred.

(5) In any other case when a registered surveyor has been employed, all reasonable expenses are to be paid in equal shares by the adjoining owners.

(6) In this section, registered surveyor means a person registered under the Surveying and Spatial Information Act 2002 as a surveyor.

Applicant’s case

12. The applicant’s evidence and submissions included the following.

13. The applicant wants a fence that is 1.2m high, constructed of timber posts (no more than 3m apart) and top and bottom rails, with black chain mesh wire in between. She is content with either treated pine or hardwood, although has a preference for hardwood.

14. The applicant seeks a fence that is capable of containing, and is safe for, children (the applicant’s children have special needs), dogs and other animals; and that also provides security and privacy for the applicant’s property. She notes the respondent has four dogs, and the respondent has previously expressed concerns about safety of her grandchildren and wants to prevent the applicant’s dog and children going onto the respondent’s property without permission. The applicant also wants a fence so as to clearly define the boundary between the properties, and to enable her to secure her road access to prevent other local dogs and animals from entering her property. The applicant intends to progressively fence all sides of her property to a similar standard.

15. The post and rail fence can be constructed to closely follow the surface of the land, with only a small gap underneath to prevent the bottom rail rotting but not sufficiently large for a dog to be able to get under. The fence would require little maintenance, and the posts and rails could be stained or painted. It would be reasonably priced for what is provided. The bottom rail is required to ensure dogs cannot push the bottom of the fence and get through, and it is safest for the children.

16. Industry standard for post spacing is now 2.4m but private owners tend to choose 3m, usually to reduce cost, and with rails attached for additional strength and to support slightly wider span. The applicant wants a fence that is not going to bend, sag or lose shape.

17. The fence would be seen from the street. A timber post and rail fence would be attractive and in keeping with the rural setting. It is not out of character.

18. The proposed fence is not inconsistent with Council or NSW State Environment Planning Policy.

19. The fence suggested by the respondent – 1.2m high, with metal posts and chain wire, without top or bottom rails – would not be sufficient to contain the parties’ dogs, or safe for small children. Hinged joint wire has sharp edges and is not suitable.

20. The existing trees and other vegetation do not provide a sufficient dividing fence. There are gaps all the way through which means that dogs and children are not contained.

21. A survey should be carried out to ensure the fence is installed on the boundary line between the parties’ properties. A survey is needed as it is not clear where the boundary line is. There are no survey pegs. The newly constructed fence – constructed following the previous Tribunal order – went up on a line different to what the applicant was expecting.

22. The applicant has a number of quotes for a fence. The work should be carried out by a licensed and insured contractor, and the contractor proposed by the respondent is not.

23. The applicant’s proposed contractor to remove trees and other vegetation from the fence line is Aerial Trees Group Pty Ltd, who has provided a quote of $2,900 incl GST. And the applicant’s proposed surveyor is either MJM Surveying or Earth Surveying.

24. The applicant contends that the total cost of the fencing work should be shared equally between the parties.

Respondent’s case

25. The respondent opposes an order for fencing work. Her evidence and submissions included the following.

26. There is currently a sufficient dividing fence in the form of a vegetative barrier.

27. Constructing a fence on the boundary line would require removal of some vegetation that is on or very close to the boundary line. This includes a number of established and substantial trees and bushes. The vegetation currently provides useful screening and privacy, and is more visually appealing than looking onto neighbour’s property. The vegetation provides an attractive entrance to the properties and approach to the residences, and provides food and habitat for native animals and birds. This would be lost if a fence were to be erected on the boundary line.

28. An extension of the existing fence by 30m (along the boundary towards the road) would adequately provide areas for the parties to fence in yard spaces, and then the vegetation can remain on the rest of the boundary.

29. The respondent does not require this area to be dog proof as she has a fully enclosed dog proof yard within the property.

30. If an order were to be made for a fence to be constructed, it should be a post and wire fence, without rails. This would be in keeping with the balance of the fence on the boundary and with other fences in the area. The majority of dividing fences in the area are post and wire fences, some lined with mesh for some or all of their length. The applicant’s proposed fence is out of character with the neighbourhood.

31. Rural post and rail fences do not generally have rails at the bottom, and the applicant’s proposed fence is not consistent with Council’s fencing policy. A bottom rail would be prone to rotting, and maintenance costs would therefore be increased. Railed timber fences require regular maintenance in the form of painting or oiling to prevent drying, splitting and cracking. There is also difficulty if the land is not perfectly flat as there would be gaps underneath some of the bottom rails. High tensile wire can be strained to hold the fence down. This would not stop a dog from digging underneath but neither would having a rail.

32. A 1.2m high post and wire fence is sufficient to contain and exclude livestock and, when lined with dog mesh (or stronger welded mesh), is sufficient to contain and exclude dogs and small children. It would be cost effective, durable, require little maintenance and can be installed so as to closely follow the topography of the land, thus avoiding gaps underneath.

33. The recently constructed 42m section of fence is a post and chain wire fence, and that is sufficient to satisfy the need of being dog resistant. This was a specific requirement the respondent had for that 42m section of fence.

34. Spacing of 4m for posts in a post and wire fence is acceptable.

35. Any fencing work should be carried out by John Halliday and Brenda Lee trading as Norfolk Fencing.

36. If fencing work is required, the respondent would contribute half the cost of a sufficient fence.

37. No survey is needed. The boundary line is shown on the survey plan drawn in 1992, and some posts from an old dividing fence that existed on the boundary remain in place. This is supported by a statement from the previous owner of the applicant’s property.

Consideration

38. The first issue that I need to consider is whether there a sufficient dividing fence. The Tribunal cannot make orders under the Act unless satisfied that there is not a sufficient dividing fence.

39. I am satisfied, on the balance of probabilities, that there is not a sufficient dividing fence. A dividing fence can be constituted by a hedge or similar vegetative barrier but I am not satisfied that is the case here. There is some vegetation on parts of the boundary line but not so as to fully enclose the land. I am satisfied there is no existing dividing fence.

Sufficient dividing fence

40. In determining what would constitute a sufficient dividing fence, I have considered the matters set out in section 4 of the Act.

Purposes for which the adjoining lands are used or intended to be used

41. The lands are residential rural. The applicant intends to use the whole of the land as space for her children and dog, as well as potentially for livestock. The respondent has a enclosed dog yard, and does not require this section of the fence to be dog proof.

Privacy or other concerns of the adjoining land owners

42. As well as containing dogs, other animals and children, the applicant also seeks security and privacy. The respondent does not want a fence that will require a lot of maintenance, and also wants to prevent (or at least minimise) the need to remove vegetation.

Kind of dividing fence usual in the locality

43. There are a range of fences in the locality, including timber post and wire fences, with dog mesh.

Council policy or code, environmental planning instrument

44. I am satisfied that the fence that will be a sufficient dividing fence is not contrary to any of these regulatory requirements.

45. After consideration of all relevant factors, I am satisfied a fence should be installed on the boundary line between the parties’ lands. This would promote the reasonable use and enjoyment of the land by the parties.

46. I am satisfied that a sufficient dividing fence would be a 1.2m high fence, constructed of treated pine posts at 4m intervals, with black coated chain wire. This is similar to the recently constructed fence, on the 42m section of the boundary, that was sufficient to restrain dogs and children. The applicant’s evidence was that she had sought advice from contractors as to the type of fence that would be appropriate to meet her concerns, but no report has been provided. I am not satisfied on the evidence before me that the post and chain wire fence would not adequately meet the needs of restraining dogs, other animals and small children, and the applicant’s other concerns. I am satisfied that black coated chain wire, rather than hinged joint wire, should be used as that is consistent with the recently constructed section.

47. I am satisfied this type of fence is not out of character with the area, and is not contrary to Council or other regulatory requirements.

48. This type of fence is to be preferred to a post and rail fence, and to one of hardwood, as it is cheaper and still meets the requirements of a sufficient dividing fence.

49. The applicant has not provided a quote for a fence of this type, and therefore no order is made as to specific contractor to carry out the work. The contractor chosen should be licensed and insured.

Other fencing work

50. I am not satisfied, on the evidence before me, that the boundary line is sufficiently clearly marked to enable a fence to be installed on the boundary line. I note in particular the applicant’s evidence that the fence that has already been installed is on a line other than what she understood to be the boundary line. I am satisfied a survey should be conducted to mark out the boundary line so that the fence can be installed on that line.

51. Section 18 of the Act provides a procedure for defining the boundary line, of which the parties have not availed themselves. I am satisfied in the circumstances that the cost of the surveyor should be shared equally between the parties, in accordance with section 18(5).

52. Some vegetation will be required to be removed for the construction of the fence. This is unfortunate, and should occur only to the minimum extent necessary for the fence to be constructed. It is recommended that the parties both consult with the contractor to ensure no vegetation is unnecessarily removed or damaged.

53. The Tribunal notes that the applicant agrees for the work to be carried out from her land. If the surveyor or any contractor requires access from the respondent’s land, that should be provided as necessary upon notice being given.

54. The cost of all the fencing work should be shared equally between the parties in accordance with the general position under the Act.

Conclusion

55. The following orders are made.

1. The following fencing work is to be carried out, on or before 11 March 2024, on the boundary between the applicant's land and the respondent’s land:

1. the common boundary line is to be defined by a registered surveyor;

2. vegetation is to be removed (only to the extent necessary for construction of a fence on the boundary line), and disposed of;

3. a treated pine post and black coated chain wire fence is to be installed, 1.2m high and approximately 110m long, with posts every four metres.

2. The applicant is to engage the surveyor and contractors to undertake the fencing work, and is to pay the surveyor and each contractor the whole of the cost of the fencing work, on or before the completion of each stage of the fencing work.

3. The respondent is to pay the applicant a contribution of 50% of the cost of each stage of the fencing work within seven days of the respondent advising the applicant that each stage of the fencing work has been completed and providing a copy of the receipt for payment from the surveyor and each contractor.

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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: 03 January 2024