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 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.

Catchwords:

REAL PROPERTY - boundaries of land and fencing - fences and fencing - give and take fence - adjoining lands separated by a river

Legislation Cited:

Civil and Administrative Tribunal Act 2014
Dividing Fences Act 1991

Cases Cited:

Alwiah v Watts [2004] NSWSC 948

Category:

Principal judgment

Parties:

Allison Rebecca Stanfield (Applicant)
Barry John Baker, Patricia Isabel Baker and Deborah Terese Baker (Respondents)

Representation:

Steven Gates with authority and leave (Applicant)
Deborah Baker with authority and leave (Respondent)

File Number(s):

COM18/28334

Publication restriction:

Nil

REASONS FOR DECISION

Application

1. This is an application filed by a land owner of rural land on 6 June 2018 for orders that fencing work be carried out pursuant to the Dividing Fences Act 1991 against an adjoining land owner along their common boundaries that are separated by a permanent creek.

Jurisdiction and legislation

2. S 28 of the Civil and Administrative Tribunal Act 2014 (“NCAT Act”) provides that the NSW Civil and Administrative Tribunal ("Tribunal") has jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.

3. Section 13 of the Dividing Fences Act 1991 (“DFA”) provides:

(1)  The Local Court or the Civil and Administrative Tribunal has jurisdiction to hear and determine any matter arising under this Act.

(1A) Despite subsection (1), only the Civil and Administrative Tribunal has jurisdiction to hear and determine matters affecting land the subject of a Western lands lease within the meaning of Schedule 3 to the Crown Land Management Act 2016.

(2)  An application under this Act that is pending in the Local Court or in the Civil and Administrative Tribunal may be transferred from the Court to the Tribunal, or from the Tribunal to a Court, if it appears to the tribunal to which the application was made that, having regard to the subject-matter of the application and the composition and nature of the other tribunal, it is more appropriate for the application to be determined by that other tribunal.

(3)  The Local Court or the Civil and Administrative Tribunal which has an application transferred to it under subsection (2) is to determine the application.

(4)    (Repealed)

(5) The Local Court may refer the parties to proceedings under this Act to an arbitrator within the meaning of Part 5 of the Civil Procedure Act 2005, but only to the extent to which that Act provides for such proceedings to be so referred.

4. The general principles of the Dividing Fences Act are set out in s 6, which states:

(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.

5. S 4 of the Act sets out the requirements to make a determination of what is a sufficient dividing fence as follows:

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) in the case of a dividing fence affecting land the subject of a lease under the Western Lands Act 1901, any order in force under section 18A of that Act.

6. S 3 of the Act defines the term “fence” as:

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.

7. “Fencing work” is defined in the Act at s3 as:

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,

and includes:

(c)     the planting, replanting and maintenance of a hedge or similar vegetative barrier, and

(d)    the cleaning, deepening, enlargement or alteration of a ditch, embankment or watercourse that serves as a dividing fence.

8. Section 5 of the Act provides:

(1)  The intervention of a road or watercourse between 2 parcels of land does not prevent:

(a)  the owners of those parcels of land from being taken to be adjoining owners for the purposes of this Act, or

(b)  a claim for contribution for fencing work being brought in respect of a fence on either side of the road or watercourse.

(2)  This section applies only if the fence has been used or, in the opinion of the Local Court or the Civil and Administrative Tribunal could reasonably be used, as a dividing fence by the owners of the land on either side of it.

9. Section 12 of the Act provides for the procedure where agreement cannot be reached between adjoining land owners about a proposed dividing fence as follows:

Procedure when agreement not reached

(a)    Adjoining owners may attend a Community Justice Centre in an attempt to reach an agreement concerning the carrying out of fencing work (including the contributions to be made in respect of the work).

(b)   If adjoining owners do not agree (within 1 month after one of them has served a notice under section 11) as to the fencing work to be carried out, either owner may apply to the Local Court or the Civil and Administrative Tribunal for an order determining the manner in which the fencing work (if any) is to be carried out.

10. S 14 of the Act sets out the orders that can be made in respect of an application for fencing work:

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)   the amount of any compensation (in the form of an annual payment to either of the adjoining owners) in consideration of loss of occupation of any land,

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

(1A)   Despite subsection (1), no order may be made for the carrying out of fencing work on critical habitat within the meaning of the Threatened Species Conservation Act 1995 without the consent of the Director-General of National Parks and Wildlife.

(2)   The occupation of land on either side of a dividing fence, as a result of an order determining that fencing work is to be carried out otherwise than on the common boundary of the adjoining lands, is not taken to be adverse possession as against the owner or to affect the title to or possession of the land, except for the purposes of this Act.

Procedural

11. The applicant relies on a letter dated 29 March 2018 as being a notice to carry out fencing work. The proceedings were commenced by application filed on 6 June 2018. A period of more than 30 days has passed at the time of filing the application since the service of the letter purporting to be a notice to carry out fencing work.

12. The proceedings were first listed before the Tribunal for conciliation and hearing at Port Macquarie Court House on 10 July 2018. The parties were unable to resolve the matter between them by conciliation.

13. On 10 July 2018 the Tribunal adjourned the proceedings for hearing and made directions for the filing of documents to be relied upon by the applicant and the respondent respectively at the hearing.

14. Neither the applicant nor the respondents complied with the directions of the Tribunal made on 10 July 2018.

15. The applicant filed documents in support of her application on 6 August 2018.

16. On 21 August 2018 the proceedings were listed for hearing at Port Macquarie Court House.

17. The applicant’s husband, Mr Gates, appeared at the hearing on behalf of the applicant with her authority and leave was granted for Mr Gates to represent the applicant.

18. Mr Kaye Solicitor appeared with Mrs Patricia Baker and Ms Deborah Baker. Mr Kaye appeared for the purposes of providing an explanation to the Tribunal why he was not able to assist the respondents in preparation of the respondents’ documents. The respondents had a folder of documents with them and they informed the Tribunal they relied on.

19. The respondents sought an adjournment of the proceedings which was opposed by the applicant. The adjournment was not granted on the grounds that the respondents had failed to comply with the Tribunal directions and the applicant was ready to proceed with the hearing.

20. The matter proceeded and the hearing commenced. The Tribunal admitted the applicant’s documents into evidence as Exhibit A1 and A2.

21. The Tribunal formed the view that there was utility in carrying out a view of the locality of the proposed site of the dividing fence, particularly where the adjoining lands were separated by a permanent river.

22. The parties and the Tribunal travelled from Port Macquarie Court House to the location of the parties adjoining lands and under took a view of the site of the proposed fencing work. The Tribunal, Mr Gates and Ms Baker on behalf of the respondents walked the length of the common boundary on the applicant’s side of the river and then crossed the river and walked back along the respondent’s side of the river. Thone River is between the applicant’s and the respondent’s lands and the length of river between the lands is approximately 500 metres.

23. On 21 August 2018 the Tribunal made orders for the further conduct of the matter as follows:   

2. The applicant is to file with the Tribunal and serve on the respondents submissions on or before 27 August 2018;

3. The respondents are to file with the Tribunal and serve on the applicant any supplementary evidence relevant to the issues they rely on and any submissions in response to the applicant's submissions on or before 7 September 2018;

4. The applicant is to file with the Tribunal and serve on the respondents any submissions in reply on or before 14 September 2018;

5. Subject to the parties compliance with the directions now made the Tribunal will make its final determination on the papers with (out) the need for a further hearing.

24. On 31 August 2018 the applicant filed documents as required by the directions made on 21 August 2018. The applicant filed amended documents on 31 August 2018 and 3 September 2018.

25. The respondents filed their supplementary evidence and submissions on 6 September 2018.

26. The applicant filed her submission in reply on 21 September 2018, the Tribunal notes that those submissions were late however, leave is granted for the documents to be filed late.

Background

27. The applicant is the registered proprietor of Lot 81 DP754453 and a related entity is the registered proprietor of Lots, 29, 107 and 170 DP754453 and Lot 1 DP520575. Together they form the property known as 43 Thone River Road Byabarra (“applicants land”).

28. The respondents are the registered proprietors of Lot 4 DP598280 known as 571 Bagnoo Road Byabarra (“respondents’ land”).

29. Part of the applicants land, Lot 81 DP754453, and the respondents’ land are separated by the Thone River (“River”). Lands separated by a watercourse are deemed by section 5 of the DFA to be adjoining lands and the provision of the DFA applies.

30. The applicant and Mr Gates conduct a beef grazing enterprise on her land. The applicant lives with her family on her land. Her land has an area of approximately 500 acres

31. The respondents care for and provide a home for retired racehorses on their land. The respondents live on their land. Their land has an area of approximately 18 acres.

32. On the applicants land there is a three tape electric fence along part of the high bank of the River on the applicants land. The River bank starts at its southern point from a low bank, part way along the applicant draws water from the River by means of pipes and pump, then rises steeply, with thick undergrowth (some recently cleared) before descending to the northern end of the common boundary from where the respondents draw household water and stock water by means of pipes and pump.

33. The respondent’s land is less steep that the applicants land. From the land in front of their house there is a bank undulating about 2-3 metres above water level in part. The respondents submit that when the River is in flood the water level can nearly reach the respondents dwelling. The horse paddocks/day yards are set back from the high bank by a width of land between the high bank and the yards sufficient to allow a vehicle to pass. They are fenced with high posts and multiple strands of electric fence tape. There are no other fences along the River on the respondents’ side of the River. At the view, the Tribunal observed some old posts and wire remnants of a former fence on the applicants side of the River.

34. On 29 March 2018 the applicant sent to the respondents a letter proposing “we would like to discuss with you both the apportionment of costs and the manner of construction [of a dividing fence]. We propose as follows:

1. Repair or Replace- we propose replacement is the most cost effective option of the existing partial fence, and then new installation of other sections.

2. Cost-the cost of the proposed fencing works be shared equally. We are in a position with experience and equipment, to undertake all works and do not intend to utilise external contractors. It is unclear how you would prefer to meet the shared cost of the fencing, perhaps one of the following arrangements may be workable, subject to further written agreement:

a. Equal supply of labour, equipment and materials;

b. You purchase and supply all materials and we will complete the fencing works (excluding clearing works costs);

c. You engage your own contractor to install half of the fence and we will complete the other half;

d. If neither of these options are suitable and you prefer us to purchase all materials and complete all the fencing we are happy to discuss a financial contribution at 50% of all materials, labour and equipment costs arising out of or associated with the fencing.

3. Line clearing-the fencing line needs to be cleared first to allow the existing fence to be removed and the new fence installed.

4. Construction method-we propose to install the fence as follows:

a. Aim of Construction-to have a sufficient dividing boundary fence that is effective in limiting cattle and horses movement across properties and be of a consistent design for a perimeter boundary fence across the area namely 5 strand.

i. Provided two access points, 1 per paddock to allow cattle river access for drinking

access points crossing the river to have strainer posts per side to allow solid wire connection and allow removal/lifting of wires during floods.

ii. In all areas with a high flood risk, install more strainer posts at 10m centres to allow wires to be removed and raised for floods.

b. Removal of Existing Fencing Along River-remove any existing posts and/wires and dispose of.

c. Steel or Wooden Posts-option to use either 1800mm galvanised steel posts at 3.5m centres or wooden split posts at 3.5m centres.

d. Wires-install 5 wires, heavy gauge galvanised barbed wire Waratah Iowa Galvanised, with securing clips to posts and galvanised strainers (where used).

e. Strainers-strainers can be wooden or steel posts. All steel posts to be concreted to ground.

i. In-line and Corner-use either wooden 3 posts with interconnected top beam at the top to allow load distribution in both directions, and steel posts with angled braces in each direction.

ii. End Strainers-use either 2 posts with interconnected top beam, or single steel post with single angled brace.

iii. Strainer Positioning-at no more than 100 meters centres. In other areas/closer spacing where ground conditions dictate (such as valleys, changes in angle or gates).

f. Gates- 2 proposed, one at each river access area, not less than 3600mm in length.

g. Location of Fence-we have attached a later in this letter a diagram of the proposed fence, we intend to erect the fence on our property as the ground rises and is in the majority not flood affected.

5. Indicative costs:

a. Clearing the fence line-estimated 2 days for bulldozer plus transport $1,160.00;

b. Removal of existing fence posts and wires-1 day 2 people plus transport and disposal costs $800;

c. Installation of fence-cost dependant on materials chosen:

Fencing Materials-approx. $5,200-$5,600;

Labour, Clearing, Fence Removal and Disposal-approx. $7,100-$9,500.

d. Total between $12,000 to $14,700.

We envisage a total cost of materials and labour between $12,000 to $14,700 or per metre between $21.60 to $26.50 approximately including clearing/disposal costs. As a comparison, we recently had a quotation for 1.2km at approximately $15.60/mete (plus clearing/disposal costs of approximately $7,000 which increased this to approx. $21.43/metre.

35. The applicants rely on the letter of 29 March 2018 as a notice to carry out fencing work in accordance with section 11 of the DFA. The Tribunal is satisfied that the applicant’s letter of 29 March 2018 sets out the matters required under section 11(2) of the DFA and accordingly is a valid notice to carry out fencing work.

36. The respondents did not agree to the fencing work proposed by the notice to carry out fencing work or at all.

37. The Tribunal will consider the content of the submissions, statements and statutory declarations to the extent they address issues required to be decided. As is the case in many disputes about dividing fences, they reflect a sad breakdown in adjoining land owners potentially good neighbourly relationships. The opportunity to file documents, respond and reply allows the parties the opportunity to canvass issues not necessarily relevant to the limited jurisdiction of the Tribunal and determination of the application before it.

38. The respondents have provided multiple statements and statutory declarations and referenced material which they have accessed from the internet to generally support their defence of the application. The material down loaded from the internet is generic in nature and does not specifically address the issues that the respondents contend supports their defence to the application.

39. In any application before the Tribunal the applicant bears the onus of proof, it is for the applicant to support its application with evidence of sufficient weight to prove its case so that the Tribunal can make the orders the applicant seeks.

40. If the applicant proves her case, then the respondents defence to the application must be supported by evidence of sufficient weight to answer the application so that the Tribunal is then in a position to make a determination to the civil standard of proof.

41. Before the Tribunal can consider the application, the threshold test must be undertaken. Master Malpass (as he then was) in Alwiah v Watts [2004] NSWSC 948 at [10]:

The content of the Act [Dividing Fences Act 1991] demonstrates that jurisdiction to make orders is dependent upon a finding that there is an insufficient dividing fence between the adjoining lands. Unless that finding is made, no orders can be made. Such a finding gives rise to the liability referred to in s6 and enables the making of orders pursuant to s14.

42. Is there an insufficient dividing fence between the applicant’s land and the respondents’ land? To make that determination the Tribunal must 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,

43. In that consideration:

1. There is no existing dividing fence;

2. The Tribunal has already noted that the applicant uses her land for the purposes of grazing beef cattle. The applicant’s evidence is that an ability to constrain the natural propensity of cattle to stray is essential in the operation of a cattle grazing enterprise. The respondents land use is for the care of horses. Those horses are already constrained by the respondents’ fenced yards.

3. While the respondents do not support their concerns with other than bold statements and public available generic material down loaded from the internet, the Tribunal takes into account, but must as a consequence limit the weight that can be given to non-specific material in support, the respondents concerns appear to be crystallised into concerns for:

1. the loss of value to their property caused by a fence restricting access to the River;

2. Applicant’s Cattle escaping downstream from the applicants land and proposed River access areas;

3. Applicant’s Cattle contaminating the River, in particular, contaminating their water supply from the River;

4. Environmental damage to the River ecosystem;

5. Barriers across free flowing water that will restrict the use of the River by recreational users of the River, that is, for example, kayakers.

4. The applicant’s concern is that she can constrain her cattle, manage her enterprise and give access to water for her stock when they are using the paddocks adjoining the river.

5. The type of fence proposed by the applicant in the alternative is not addressed by the respondents in their evidence except that they would prefer an electric fence. The applicant’s evidence is by photograph and locality plan as to the type of dividing fence in the locality. The Tribunal’s view of the locality recorded that boundary fences were usually of timber posts 3- 3.5 metres apart and 4 or 5 strand of barbed wire type.

6. There is no local authority policy, code or environmental instrument in either the applicant’s or the respondents’ evidence or submissions and accordingly cannot be taken into account when determining if the existing fencing is insufficient.

44. Notwithstanding the respondent’s genuine concerns as listed, the Tribunal must look to all the circumstances. The lands are in a rural locality where farming enterprises are undertaken. Defining boundaries, using fences as a tool to manage stock, controlling access to water are all benefits a dividing fence can give to land owners. The applicant’s evidence is that without a dividing fence, the applicant’s cattle can escape across the River, through the respondents’ land and onto Bagnoo Road and beyond, as has happened in the recent past.

45. In a rural locality it is to be expected that dividing fences are required for those reasons. The Tribunal has considered all the circumstances of the case and finds that there is no sufficient dividing fence between the adjoining lands and on that basis, the Tribunal has jurisdiction to make a determination on the application.

46. The applicant proposes that the dividing fence follow the highest point on the River bank on her side of the River except for the stock access points at the northern and southern end of the boundary where the fence would cross the River to the respondents’ side of the River, effectively fencing in an area where stock could gain access to water. The two side fences either side of the access point is to constrain the cattle into that area. The southern access point is some 545 metres upstream from the northern access point, with 844.6 lineal metres of fence.

47. The respondents’ draw household water from the area to be fenced into the applicant’s land by the northern access point.

48. While there is only the respondents’ speculation about the effect cattle will have on the waterhole from where their household water is drawn and the implications that the respondents’ ask the Tribunal to draw from the material they rely on, the Tribunal has no evidence of the adverse effects that the respondents fear will take place. The Tribunal takes notice that the likelihood of cattle having access to the River bed at the northern access is more than likely to result in contamination of the water by being churned by cattle standing or wallowing in the River floor and defecating and urinating in the River. While the prospect of the cattle doing the same in the southern access point is the same, that point is more than 540 metres upstream. Water travelling that distance will have a chance to drop its contaminants. In times of low water, the water will be less likely to flow at a rate that will deliver cattle faeces, urine and River bottom churn to the northern access point. In times of high water contaminants will be flushed rapidly.

49. The Tribunal is satisfied that the proposed dividing fence, subject to the Tribunal’s variations set out below, is a sufficient dividing fence for the purpose of the DFA. As such, pursuant to section 5 and 6 of the DFA the respondents’ have liability to contribute to the cost of the dividing fence.

50. The respondents concern about the northern access point must be accommodated in any order. The Tribunal takes into account the respondents’ concern for their existing access to clean water and the proximity of that point to their dwelling house. The Tribunal will order that the there be no access point fenced into the applicants land at this point.

51. The Tribunal accepts that as a result of the intervention of the Department of Primary Industries issuing a notice to remove 2 flood fences across the River at the proposed southern access point and removal of those fences by the applicant, the applicant revised the diagram showing the line of the proposed fencing. The new diagram was tendered to the Tribunal at the hearing and admitted as Exhibit A2. The length of fencing proposed increased from 544 metres to 844.6 metres (if both access point fencing is ordered).

52. The adjoining lands are separated by the River. Both the applicant’s and the respondents’ land have riparian rights for the purpose of watering stock and for domestic consumption. The applicant proposes that the dividing fence be mostly erected on her land except for the access points where the river will be fenced across to allow stock access to water and to constrain their escape from the respondents’ side of the River. The Tribunal has already referred to the northern access point. The Tribunal is satisfied that the applicant’s proposal to install a give and take fence at the southern access point will form part of the dividing fence. The proposed northern access point is not permitted and the dividing fence at this point is to continue on the line above the high bank of the River on the applicant’s side of the River.

53. The applicant contends that the applicant should cause the fencing work proposed on her side of the River and the respondents for the fencing work on their side of the River. Such a proposal is unworkable. The applicant will be responsible for causing the fencing work to be carried out.

54. Neither the applicant nor the respondents’ evidence as to cost of the fencing work is sufficient for the Tribunal to make a determination as to contribution by the respondents of the cost of the fencing work and the parties are required to obtain quotes from fencing contractors. The respondents must obtain a quote for the fencing works to test the applicant’s estimate of the cost of the works. The quote is to be include a total costs and a cost per lineal metre for the fencing work. Obtaining a quote is not an opportunity for the parties to engage in attempting to change the scope of the fencing work now ordered. The extent of any further material to be filed will be strictly limited to quotes complying with the scope of fencing works now ordered.

55. The Tribunal orders as to the fencing work to be carried out. The apportionment of cost of the fencing work will be the subject of further orders after the parties’ have obtained.

Conclusion

56. For the reasons given, the Tribunal orders that the fencing work is to be as follows:

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

1. As shown on the diagram Exhibit 2 varied as follows and:

1. Southern Access Area:

2. 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;

3. 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.

4. 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.

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

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

7. Fence between southern access point and northern western corner of Lot 81 DP754453:

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

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

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

11. The fencing identified in the potentially flood affected areas in Exhibit 2 are to be flood strengthened fencing;

2. 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;

3. The dividing fence is to be:

1. Timber posts and strainers;

2. 5 strand Iowa 2.5mm galvanised barbed wire;

3. 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.

4. 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;

5. 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;

6. 1 galvanised “W” style gates of not less than 4180mm wide are to be installed at the Southern Access Point.

7. Posts are to be installed at 3 metre centres.

4. 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.

5. 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.

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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: 30 January 2019