NSW "Insufficient" fence definition under the Act in NSW

Discussion in 'Property Law Forum' started by Renovator11, 7 February 2019.

  1. Renovator11

    Renovator11 Active Member

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    I am considering pursuing a fencing dispute through NCAT and would appreciate some advice. The situation is quite involved.

    We moved into the house only 1 year ago. During that time I have gently raised the issue of the 45 year old asbestos fence separating our properties that is in a poor state of repair. On 3 occasions I got verbal agreement to the effect that the neighbour would be happy to contribute half of the costs of removing the old fence and putting up a new one. We agreed that a 1.8m colorbond fence would be appropriate. This matches the fence that is on the opposite side of his block. I started to get some quotes for asbestos removal and replacement fence (separately). The neighbour saw the contractors measuring up and a couple of days later, the man approached me to tell me that his partner did not agree to contributing. Here argument is that the fence was there when we bought the property.

    Relevant parts of the Dividing Fences Act seem to be (bolded):

    Definition of Fence:
    (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.

    Definition of Fencing Work:
    (a) the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence,

    Part 2, Section 6:
    (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.

    Part 1, Section 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) 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 immediately before the repeal of that Act.

    Part 2, Section 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.

    I have spoke to Council, NCAT and LawAccess. None could could me any real information surrounding a clear definition of sufficient in NSW beyond the above. They said it would come down to the merits of my argument that the current fence is insufficient.

    The current fence is 45 year old asbestos "Super 6" fencing. It is 500mm high between the street and the building line, and then between 950mm and 1500mm along the rest of the side boundary.

    Our arguments for considering the current fence insufficient include:

    1. Not economical to safely maintain, repair or extend the current fence which is asbestos and reaching the end of its life. There are pieces of capping broken off in quite a few places. It is leaning slightly in areas. Unsealed in parts.

    It is also quite weathered. One quote for removal from a licensed removalist stated "The current asbestos fence is severely weathered and shows signs of previous repair. Given the age and condition of the fence I consider it to be a health hazard. It is my recommendation that the fence to be removed for the safety of the residents of both property." Not sure whether this holds any weight given their motivations though.

    2. Privacy
    The current fence affords no privacy to our property. The neighbours block is 200-300mm higher than ours meaning that the already low fence as seen from our side is significantly lower when standing on their side. Even at the highest point this means that it only comes up to around waist height for them. They stare in at us quite a lot.

    3. Child safety.
    This is not legislation, but the section of the fence that runs along the side of our house only stands 1035mm high from our side of the fence. This is lower than minimum height requirements’ for pool safety fencing (1200mm) and we are concerned that our children could climb over. Neither of us has a pool but we both border a canal. We have 3 children under 5. The neighbours block has no fence whatsoever along the canal frontage (we do) and so once over the fence the children would have unfettered access to the water. Only we would benefit from this improved safety.

    There are a couple of complicating factors.

    The neighbours (they are the original owners) chose to fill their block when building the house 45 years ago as we are in a flood zone. This has resulted in the 200-300mm height difference along most of the 36m boundary. The current fence has been acting as a retaining wall, but a replacement fence eg. colorbond cannot be used for this purpose and so must have a base which holds back the soil. This might be a simple plinth for the majority of the 36m.

    However, as the land drop to the canal this height difference becomes much more significant. The neighbour has a 1.6m high retaining wall along their canal boundary but the return wall only comes back 2 blocks long (about 400mm). Then the wall just stops. The current fence is acting to hold back a significant amount of fill here. It is about a 5m section that will require a retaining wall ranging from 300mm to 1200mm high. The short return wall is on their side of the boundary (assuming the fence is built on the property line). I'm not sure where liability rests in this unusual case but from reading previous posts, benefit is 100% theirs (there has been no cutting from my property, only filling of theirs) and therefore responsibility for maintianing this should be theirs. If the wall was extended, the fence would go next to it but then i'm not sure if it is considered as part of the fence under the Act (includes 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.)

    Also, I believe that under the Conveyancing Act 1919, section 177, a person has a duty of care not to do anything on or in relation to land that removes the support to any other land. This includes tampering with the soil surface, the subsoil, any part that is reclaimed land and even the water beneath. So even if I get permission to replace the fence, do I need to get separate permission from a different regulatory body to get the neighbour to either go halves, or pay 100% for the extension of the retaining wall?

    Another issue is that due to this all being formalised, I have been told by council that I would need a DA due to the fact that exempt development (which standard height fences usually are) does not apply to a Flood Control Map. I'm quite sure I would be the first person in the entire suburb to be getting a DA for a standard fence. The retaining wall would also require to be engineered I guess due the height and so would also require approval.

    So replacing the fence has become quite an involved and costly process:

    1. Quotes for:
    a. removing asbestos fence,
    b. replacement fence with plinths,
    c. retaining wall (doesn't come under the scope of the fencing contractors I have spoken to so far) + engineer sign off.
    2. Fencing order for neighbour. Taking to NCAT.
    3. Retaining wall order??
    3. Getting DA for 3 parts listed in 1. This includes drawing site plans, environmental impact statement etc.

    It would be much easier and cheaper forme to built a new fence on our side but unfortunately we have limited side access as it is.

    Basically I am wondering whether my arguments for replacing the fence are likely to have merit in the eyes of NCAT. I posted a similar question a few days ago on a general (non-law) forum and the discussion largely turned into a debate around whether what I am asking is morally right. I am just interested in exploring my rights under the Act.

    Has anyone been through something similar? Does anyone know if the tribunal put more emphasis on a particular argument for deeming an existing fence insufficient?
     
  2. Rod

    Rod Lawyer
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    I suspect this is the important bit of info that may make the process easier. Get a licensed person (not sure who - ask your local council) and see if a certificate can be issued condemning the fence on safety grounds (loose and flaky asbestos). Once you get a certificate or whatever term is used, the other issues, retaining wall, fence etc flow from there.
     
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  3. Renovator11

    Renovator11 Active Member

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    Thanks Rod. I have looked into this including speaking to Council. Although Council have a statement on their website to the effect that they can do this, I was told by the head of the environmental unit that they cannot. I also spoe to an asbestos hygeinist.

    It seems that sealing up the fence with an appropriate product would mitigate the risk of fibres being released. This does not mean that it is economical to do on a fence in such a poor state of repair, and does not address my other concerns with the fence but it does likely address the safety aspect.

    The other thing that concerns me is that the current fence is acting as a retaining wall. I'm not sure what legislation (if any) defines what is acceptable as far as a retaining wall, but I am quite sure that corrugated fibre cement sheeting would not be considered "sufficient" in this regard (holding back up to 1m+ of soil). In practice it has done a reasonable job until now but that doesn't mean that it is safe). I'm not sure whether this type of assessment would come down to a structural engineer report, and if so whether one would actually be interested in producing a document to that nature as part of a fencing dispute. When determining "sufficient" it does states that a factor is "the existing dividing fence" but no more detail than that. This was written long before retaining walls were considered part of the fence which I think was added around 2008. Do you think this is a valid argument for insufficency?
     
  4. Rod

    Rod Lawyer
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