Stanfield v Baker - [2018] NSWCATCD 64

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Stanfield v Baker [2018] NSWCATCD 64
Hearing dates: 21 August 2018; 16 October 2018 (on papers)
Date of orders: 01 November 2018
Decision date: 01 November 2018
Jurisdiction: Consumer and Commercial Division
Before: P Boyce, Senior Member
Decision:
1 The Tribunal orders that the fencing work between the applicant and the respondents’ adjoining lands is to be as follows:
(1) Line of dividing fence is to be a give and take fence, and is:
(a) As shown on the diagram Exhibit 2 varied as follows and:
(i) Southern Access Area:
a. To commence at the respondents southern boundary fence and follow a line in a northerly direction 2 metres back from the high bank of Thone River into the respondents’ land;
b. Then continue along a line until 15 meters into the deep water pool marked at the end of “River Access A” (as shown on Exhibit A2) and then to fence down directly to the Thone River edge.
c. The fence erected on the line in order 1(a)(i)(b) at the Thone River edge will be in a form and design so that livestock are not able to move around the end of the fence at the Thone River.
d. The section of fence from the top of the Thone River Bank to the Thone River edge is to be flood strengthened fencing.
e. The respondents existing boundary fence from the starting point of the new fence now ordered in Order (1)(a)(d) is to be replaced.
(ii) Fence between southern access point and northern western corner of Lot 81 DP754453:
a. Is to follow the line proposed in the plan Exhibit A2 and otherwise:
i. The line of existing fence, temporary electric fence section and inside of the established mature tree line to limit clearing of the fence line;
ii. Be subject to the fencing installers recommendation to deal with adverse site issues if they arise;
(iii) The fencing identified in the potentially flood affected areas in Exhibit 2 are to be flood strengthened fencing;
(1) The applicant and the respondents are to identify and mark the location on the ground of any underground cables, wires, pipes, telecommunication lines or other items which may be damaged by installation of fence posts clearly identifiable to the fencing installer;

(2) The dividing fence is to be:
(a) Timber posts and strainers;
(b) 5 strand Iowa 2.5mm galvanised barbed wire;
(c) Corner and in line strainer assemblies to be stayed in two directions using three strainer posts and a top 3 metre timber rail not less than 100mm x 100mm square. End strainer assembles to be 2 strainers and a top rail.
(d) At Thone River edge a multi panel timber or other suitable material assembly to be installed off 3 strainer posts to extend to the natural point to prevent livestock from moving around the end of the fence;
(e) Additional strainer posts to be installed at potential flood affected sections as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stanfield v Baker

Details

AGLC: Stanfield v Baker [2018] NSWCATCD 64
Case: [2018] NSWCATCD 64
Decision Date: 01 November 2018

CaseChat Overview and Summary

Stanfield v Baker involved a dispute between the applicant and respondents over the boundaries of their adjoining lands, which were separated by the Thone River. The applicant sought to erect a fence between the properties and the respondents objected. The case was heard by the Land Valuation Tribunal, which was tasked with determining the appropriate location and construction of the dividing fence.

The central legal issues before the Tribunal were the exact boundary line between the two properties, and the nature of the fence that should be erected between the lands. The Tribunal had to decide whether the fence should be a "give and take" fence, where each party contributes equally to the cost and construction, or whether one party should bear the entire cost and responsibility. Additionally, the Tribunal needed to determine the specific design and materials for the fence, including whether it should be flood-strengthened in certain areas, and the placement of gates and strainer posts.

The Tribunal found that a "give and take" fence was appropriate given the circumstances of the case. The exact line of the fence was determined based on the evidence presented, with adjustments made to account for the high bank of the river and deep water pools. The Tribunal emphasised the need for the fence to be robust enough to prevent livestock from moving around the end of the fence at the river, and to be flood-strengthened in potentially affected areas. The design of the fence, including the materials and placement of posts and gates, was also detailed in the order. The Tribunal ordered that the parties obtain quotes from fencing contractors and submit these to the Tribunal, after which the costs would be apportioned without the need for a further hearing.

The Tribunal's orders detailed the specific requirements for the construction of the fence, including the materials to be used, the placement of posts and gates, and the need for flood-strengthening in certain areas. The orders also included provisions for the identification and marking of underground utilities, and the apportionment of costs between the parties.

Orders

Orders of the court

1 The Tribunal orders that the fencing work between the applicant and the respondents’ adjoining lands is to be as follows:

(1) Line of dividing fence is to be a give and take fence, and is:

(a) As shown on the diagram Exhibit 2 varied as follows and:

(i) Southern Access Area:

a. To commence at the respondents southern boundary fence and follow a line in a northerly direction 2 metres back from the high bank of Thone River into the respondents’ land;

b. Then continue along a line until 15 meters into the deep water pool marked at the end of “River Access A” (as shown on Exhibit A2) and then to fence down directly to the Thone River edge.

c. The fence erected on the line in order 1(a)(i)(b) at the Thone River edge will be in a form and design so that livestock are not able to move around the end of the fence at the Thone River.

d. The section of fence from the top of the Thone River Bank to the Thone River edge is to be flood strengthened fencing.

e. The respondents existing boundary fence from the starting point of the new fence now ordered in Order (1)(a)(d) is to be replaced.

(ii) Fence between southern access point and northern western corner of Lot 81 DP754453:

a. Is to follow the line proposed in the plan Exhibit A2 and otherwise:

i. The line of existing fence, temporary electric fence section and inside of the established mature tree line to limit clearing of the fence line;

ii. Be subject to the fencing installers recommendation to deal with adverse site issues if they arise;

(iii) The fencing identified in the potentially flood affected areas in Exhibit 2 are to be flood strengthened fencing;

(1) The applicant and the respondents are to identify and mark the location on the ground of any underground cables, wires, pipes, telecommunication lines or other items which may be damaged by installation of fence posts clearly identifiable to the fencing installer;

(2) The dividing fence is to be:

(a) Timber posts and strainers;

(b) 5 strand Iowa 2.5mm galvanised barbed wire;

(c) Corner and in line strainer assemblies to be stayed in two directions using three strainer posts and a top 3 metre timber rail not less than 100mm x 100mm square. End strainer assembles to be 2 strainers and a top rail.

(d) At Thone River edge a multi panel timber or other suitable material assembly to be installed off 3 strainer posts to extend to the natural point to prevent livestock from moving around the end of the fence;

(e) Additional strainer posts to be installed at potential flood affected sections as determined in lieu of normal posts for additional strength at not less than 10 metre centres;

(f) 1 galvanised “W” style gates of not less than 4180mm wide are to be installed at the Southern Access Point.

(g) Posts are to be installed at 3 metre centres.

(3) The applicant and the respondent are to obtain at least one written quote each from an experienced rural fencing contractor for the scope of fencing works proposed in orders (1)-(3) inclusive and file those quotes with the Tribunal on or before 30 November 2018.

(4) Upon filing the quotes with the Tribunal the Tribunal will make orders as to apportionment of the cost of the fencing work on the papers without the need for a further hearing unless the parties request otherwise.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Stanfield v Baker [2018] NSWCATCD 64
Hearing dates:	21 August 2018; 16 October 2018 (on papers)
Date of orders:	01 November 2018
Decision date:	01 November 2018
Jurisdiction:	Consumer and Commercial Division
Before:	P Boyce, Senior Member
Decision:	1 The Tribunal orders that the fencing work between the applicant and the respondents’ adjoining lands is to be as follows: (1) Line of dividing fence is to be a give and take fence, and is: (a) As shown on the diagram Exhibit 2 varied as follows and: (i) Southern Access Area: a. To commence at the respondents southern boundary fence and follow a line in a northerly direction 2 metres back from the high bank of Thone River into the respondents’ land; b. Then continue along a line until 15 meters into the deep water pool marked at the end of “River Access A” (as shown on Exhibit A2) and then to fence down directly to the Thone River edge. c. The fence erected on the line in order 1(a)(i)(b) at the Thone River edge will be in a form and design so that livestock are not able to move around the end of the fence at the Thone River. d. The section of fence from the top of the Thone River Bank to the Thone River edge is to be flood strengthened fencing. e. The respondents existing boundary fence from the starting point of the new fence now ordered in Order (1)(a)(d) is to be replaced. (ii) Fence between southern access point and northern western corner of Lot 81 DP754453: a. Is to follow the line proposed in the plan Exhibit A2 and otherwise: i. The line of existing fence, temporary electric fence section and inside of the established mature tree line to limit clearing of the fence line; ii. Be subject to the fencing installers recommendation to deal with adverse site issues if they arise; (iii) The fencing identified in the potentially flood affected areas in Exhibit 2 are to be flood strengthened fencing; (1) The applicant and the respondents are to identify and mark the location on the ground of any underground cables, wires, pipes, telecommunication lines or other items which may be damaged by installation of fence posts clearly identifiable to the fencing installer; (2) The dividing fence is to be: (a) Timber posts and strainers; (b) 5 strand Iowa 2.5mm galvanised barbed wire; (c) Corner and in line strainer assemblies to be stayed in two directions using three strainer posts and a top 3 metre timber rail not less than 100mm x 100mm square. End strainer assembles to be 2 strainers and a top rail. (d) At Thone River edge a multi panel timber or other suitable material assembly to be installed off 3 strainer posts to extend to the natural point to prevent livestock from moving around the end of the fence; (e) Additional strainer posts to be installed at potential flood affected sections as…