Moore v Lawrie

[2025] NSWDC 97

District Court

New South Wales

Medium Neutral Citation:

Moore v Lawrie [2025] NSWDC 97

Hearing dates:

13 March 2025

Date of orders:

13 March 2025

Decision date:

13 March 2025

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

Orders at para [24]; Appeal allowed in part

Catchwords:

APPEALS – Appeal from Local Court decision under Dividing Fences Act – Appeal to criminal jurisdiction of District Court

DIVIDING FENCES ACT – Proper construction of s 4 “sufficient dividing fence” in light of defined term “fence” in s 3

COSTS – Interrelationship between ss 7(1) and 14(c) of the Dividing Fences Act as to orders as to cost of building a fence

Legislation Cited:

Dividing Fences Act 1991 (NSW) s 3, s 4, s 7, s 13, s 14

Crimes Appeal and Review Act 2001 (NSW) s 18, Pt 3

Local Court Act 2007 (NSW) s 70, Pt 4

Cases Cited:

Huang v Nazaran [2021] NSWCA 243; 106 NSWLR 219

Styles v Rowley [2023] NSWSC 1053

Category:

Principal judgment

Parties:

Michael Moore (Appellant 1)
Jeffrey Lees (Appellant 2)

Carmen Lawrie (Respondent 1)
Dale Thompson (Respondent 2)

Representation:

Counsel:
B Haines ( Appellants)
D Yakenian (Solicitor) (Respondents)

Solicitors:
McAuley Lawyers ( Appellants)
Juris League Consultancy (Respondents)

File Number(s):

2023/346694

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Special Jurisdiction

Date of Decision:

09 February 2024

Before:

Khoo LCJ

File Number(s):

2023/346694

JUDGMENT; ex-tempore

1. This is an appeal from a decision of the Local Court sitting in its special jurisdiction arising out of an application under the Dividing Fences Act 1991 (NSW) (“the Act”).

2. The parties are neighbours. The Appellants live at Number 4 and the Respondents at Number 6. The Respondents have recently demolished their house to build a new one, which has only recently been completed, although it seems that the landscaping and other leveling work is not yet either started or completed.

3. The reason the matter came to Court is because the parties do not like each other at all. They do not get on in the way that ordinarily society expects neighbours to coexist. Indeed, I have evidence before me of significantly serious conduct by the Respondents, including evidence of assaults and there are applications for Apprehended Violence Orders and the like floating around. No doubt these allegations are contested, and I do not need to decide whose fault the situation is. Suffice to say, they do not like each other.

4. The matter has an unfortunate procedural history. It commenced in the NSW Civil and Administrative Tribunal (“NCAT”) where it seems it almost settled by way of an agreement, substantially in the terms of the orders the Appellant presses for, which agreement was resiled from by the Respondent and abandoned by the Appellant. The matter was then transferred to the Local Court and determined by Magistrate Khoo of that Court on 8 February 2024.

5. Essentially, what the Appellants sought were orders for a new Colourbond fence to be erected between the properties to a height sufficient so as to alleviate privacy type concerns. In substance, the Magistrate gave the Appellants what they wanted. There are two issues upon which the Magistrate’s orders are challenged. This being an appeal, they might be branded as errors, but that would be very unfair on the Magistrate, because, in relation to the first issue, it was not even brought to the attention of the Magistrate and therefore the Magistrate did not consider it. As to the second, whilst it involves a question of law, I think it is fair to say about the lawyers who appeared before the Magistrate, none of whom are still involved in the matter, the Magistrate received no proper assistance in resolving that issue.

6. The first issue is described as the height of the fence, but that is not actually the issue. The question is where that height should be measured from. This is important because as part of the proposed landscaping work at number 6, the land on number six is going to be built up so that it will be higher than the land on number 4. The fence, if it is measured from the land upon which it is to be built would therefore not rise to the height ordered by the Magistrate above the level of ground on number 6. The Magistrate ordered that the fence should be of a height of 1.8 metres in relation to the first aspect of the fence and 900 millimetres in relation to the second. I think if the Magistrate had understood this to be an issue, the intention was for those heights to be measured from the height of the ground at number 6 and I am prepared to make orders clarifying that intention. If that was not the Magistrate’s intention, my own view is that is the appropriate order to be made.

7. The second issue is whether what are described as railway sleepers which form part of the proposed landscaping work to be carried out by number 6, form part of the fence for the purpose of the Act. The Magistrate dealt with this issue by posing the following question:

“Does a sufficient fence as defined in s 4 of the Act require a retaining wall, as sought by number 4?”

8. The Magistrate answered that question, no, and then did not go on to deal with the evaluative judgment required by subs 4 of the Act as to whether what was proposed was a “sufficient dividing fence.”

9. It is not entirely clear to me why the Magistrate came to that conclusion. A review of the transcript suggests the Magistrate was not directed to the relevant provisions in the Act at all. I also think that the question posed was probably the wrong question, which might have led to some confusion of thought by those making submissions to the Magistrate. The real question is whether what was being proposed was a “fence” as defined by the Act. If it was a fence, the second and distinct question involves an evaluative judgment as to whether what is being sought is a “sufficient dividing fence” for the purpose of subs 4. They are different concepts.

10. Fence is defined as follows in the Act:

“Fence means 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.”

11. It will be seen that there is as carve out at the conclusion of the definition – “But does not include a retaining wall” – however that carve out itself is qualified by the following words “(except as provided by paragraph (c)).”

12. Sub-paragraph (c) makes it clear that any foundational support necessary for the support and maintenance of the fence is a fence for the purpose of the Act regardless of whether that support might otherwise be described as a retaining wall.

13. In my view, based on the evidence before me in relation to the particular fence being proposed by the Appellant, the structure whether it be described as a retaining wall or not, to be formed by the railway sleepers is a foundational support that is necessary to support the fence. Therefore, the Magistrate did have jurisdiction to make orders concerning the railway sleeper component of the fence, and once satisfied of that jurisdiction, the only sensible answer to the next question, which is whether what is proposed is a sufficient dividing fence for the purpose of s 4, is to include the sleepers. I propose to amend the orders made by the Magistrate to give effect to this conclusion.

14. There is then a question as to who should pay the costs of the sleeper component of the fence. Section 7(1) provides that generally adjoining owners are liable to contribute in equal proportions to fencing work in respect of dividing fences of a standard form not greater than the standard for a sufficient dividing fence. The obvious purpose of that section is that if one neighbour wants to have a particularly fabulous fence over and above what others might consider to be a sufficient fence, then the usual requirement that each parties pays half falls away and the neighbour who wants the more elaborate fence has to pay the extra cost. So much makes sense.

15. Section 14, which is the power of the Court to make orders as to fencing work, has its own provision for contributions for the fencing work in the following terms:

“(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”

16. Whilst at first glance there does seem to be some sort of tension between s 14(c) and s 7(1), I think the way they operate together is s 7(1) deals with the situation I have just described, that is one side wanting a more elaborate fence than might be reasonable, and s 14(c) gives to the Court a discretion to apportion the costs of the work generally. In this case the Appellant accepts that he should pay 50% of the fencing work but says that the Respondents should pay for the cost of the sleepers for the simple reason that on the approved plans for the development of number 6, the sleepers are a component and therefore, so the argument goes, the Respondents are going to have to pay for them anyway. I think that is a sound proposition and propose to make orders to that effect.

17. I am a little concerned that the order I am about to make assumes that the Respondents will carry out the foreshadowed landscaping work and the sleeper work as a component of that work. On the evidence before me there must be some doubt that will actually happen, in which case these orders will be close to impossible to implement. For that reason, I will grant to the Appellant liberty to apply on any question of the implementation of or need to vary these orders as circumstances transpire. I will grant that liberty to me in the appeal so that the matter does not have to go back to another Magistrate to work out the background.

18. Before leaving the matter, I should record that as counterintuitive as it seems, I am satisfied that this appeal is properly brought in the criminal jurisdiction of this Court under the Crimes Appeal and Review Act 2001 (NSW) (“Crimes (Appeal and Review) Act”). This is because of the combined operation of s 13 of the Act which gives the Local Court jurisdiction. Part 4 of the Local Court Act 2007 (NSW) (“Local Court Act”), which allocates such disputes to proceed in the Local Court’s “special jurisdiction”, and the fact that special jurisdiction applications procedurally are commenced in the Local Court’s criminal jurisdiction, even though they are not criminal matters. Section 70(1)(b) of the Local Court Act mandates that an appeal from a fencing dispute, ie from a special jurisdiction, may be made to the District Court “in accordance with pt 3 of the Crimes (Appeal and Review) Act. Section 70 of the Local Court Act continues stating that such an appeal is to be made:

“in the same way as such an application or appeal may be made in relation to a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986.”

19. Section 18(1) of the Crimes (Appeal and Review) Act provides that an appeal against conviction (which by operation of s 70 of the Local Court Act, is taken to be:

“by way of rehearing on the basis of evidence given in the original Local Court proceeding.”

20. The interrelationship of those various sections has recently been considered by the Court of Appeal in Huang v Nazaran [2021] NSWCA 243; 106 NSWLR 219 and Styles v Rowley [2023] NSWSC 1053. In both matters, it was confirmed that the statutory road map requires this appeal to be heard in the criminal jurisdiction of this Court.

21. Accordingly, I am satisfied that this Court had jurisdiction to hear this appeal. The nature of the appeal is a rehearing based on the material before the Magistrate with such extra material as I have given leave to. Whilst the starting point is the orders of the Magistrate must be demonstrated to be wrong, it is not to be treated as an appeal as if in the Court of Appeal where it is necessary to identify error, rather I need to consider the matter for myself, and if I come to a different conclusion then the Magistrate then it follows that I should enter different orders. None of that really matters though in this case because if have identified at least one legal error made by the Magistrate.

22. For all those reasons I will make orders in terms of the document that was handed up by Mr Haines of counsel who has appeared for the Appellant, as amended by me in hand on that document. I will initial that document and date it today and, Mr Haines, we will send to you hopefully later today but no later than tomorrow, and the actual orders will be made.

23. That brings me to the question of costs of the Appeal. I must say I cannot think of any reason why costs would not just follow the event, other than neither party argued the matter before the Magistrate consistent with how it has been put to me. Any mistake I have identified were a consequence of the case not being properly presented to the Magistrate. This was both parties’ responsibility. Nonetheless, the costs of the appeal once commenced are a consequence of the Respondents not consenting to what was sought, and I am satisfied that that was unreasonable. In all the circumstances, I will make an order for costs in favour of the Appellant.

24. For these reasons, my orders are as follows:

1. The appeal is allowed in part.

2. The Local Court orders made on 9 July 2024 are set aside.

3. Upon the earlier of the landscaping at [REDACTED], where it adjoins [REDACTED], being completed or 1 May 2025, the parties are to:

1. Remove and dispose of the dividing fence between [REDACTED], with each paying 50% of the costs; and

2. Take the steps set out in these orders to erect a new dividing fence on the boundary between the properties, where the boundary is as identified on in the survey plan of Simon P Cheng dated 29 November 2022 (Survey Plan).

4. The boundary fence is to be made of Colourbond and in the colour 'dune' (being a colour name utilised by Colourbond for its materials).

5. The boundary fence is to have 2 sections of differing heights

1. Firstly, the boundary fence from the rear of the properties to the front yards of the properties is to stand 1.8m in height, measured from the level of the land immediately adjacent to the boundary fence on the [REDACTED] side of the fence as contemplated by the landscaping works described in the plan annexed to these orders.

2. Secondly, the remainder of the fence, being the section dividing the front yards, is to stand 900mm in height, measured from the level of the land immediately adjacent to the boundary fence on the [REDACTED] side of the fence as contemplated by the landscaping works described in the plan annexed to these orders.

6. There is to be a barrier wall immediately under the fence of not less than 300mm along the boundary between [REDACTED] to support the fence

7. The barrier wall is to be made of concrete sleepers.

8. The owners of [REDACTED] must pay for the cost of the barrier wall, but the parties are to otherwise share the cost equally of the boundary fence, including the cost of the disposal of the current boundary fence.

9. Within 1 month of the earlier of the landscaping at [REDACTED], where it adjoins [REDACTED], being completed or 1 May 2025, the parties are to each obtain a quote from a licensed and insured fencing contractor to construct a dividing fence in accordance with these orders and if the landscaping has not been completed, to quote by reference to the landscaping works described in the plans annexed to these orders.

10. The parties are to engage the contractor with the lowest quote, but if one party wishes to engage the contractor with the higher quote, then that party is to pay the difference between the 2 quoted amounts.

11. The parties are to do all things reasonably necessary to ensure that fencing work is to be completed within 4 months of the of the landscaping on [REDACTED] (as referenced above) being complete but by no later than 1 September 2025.

12. The Respondents are to pay the Appellants 50% of the costs the Appellants paid in obtaining the Survey Plan.

13. The Respondents are to pay the costs of these proceedings as agreed or assessed, such costs to be paid within 14 days of agreement or assessment.

14. Grant leave to the Appellant to make application to Newlinds SC DCJ for those costs to be assessed on a gross sum basis, provided 7 days’ notice.

15. Liberty to restore the matter before Newlinds SC DCJ on 7 days' notice, in the event that there is any issue as to the implementation or interpretation of these orders.

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Decision last updated: 28 March 2025