Hill v Vicars

The plaintiffs appeal pursuant to s 39, as of right, or alternatively s 40, by leave, of the Local Court Act 2007, from the decision of the Local Court made on 19 October 2021. On that day, after a hearing of the application by the plaintiffs for orders pursuant to the Dividing Fences Act 1991, to which I will refer as “the Act”, the Local Court dismissed the application and ordered that the plaintiffs in this Court, who were the applicants in the Local Court, pay the respondents’ costs of that application up until 23 September 2021.

The plaintiffs appealed on the basis that there had been an error of law by the magistrate in determining that there was in existence in October 2021 a “sufficient dividing fence”, as that term is used in the Act.

Earlier today, leave was granted to file an amended summons in this Court, which added to the statutory appeal, a claim for relief under s 69 Supreme Court Act 1970, in particular a claim that the decision of the Local Court should be set aside for want of jurisdiction or error of law on the face of the record.

A third defendant, the Local Court of NSW was joined. It was granted leave to file a submitting appearance. It took no further part in the proceedings.

The active defendants in this Court resisted the appeal and the grant of any relief pursuant to s 69 Supreme Court Act and sought that the proceedings be dismissed.

A little factual background is necessary. The plaintiffs were and are the joint owners of a terrace house property in Paddington. The defendants are the owners of a terrace house which adjoins the house of the plaintiffs. Their land is contiguous. One issue which seems to have occupied some attention is that the plaintiffs were entitled to exercise a right of way over part of the defendants’ land to enable access from the rear yard of their terrace house to the street. For that purpose, there was in existence in the original fence a gate permitting such access to occur.

The subject of the application to the Local Court by the plaintiffs was a fence at the rear of the adjoining properties, 13m long with a timber gate in it.

The application to the Local Court was made on 3 February 2021. It was made pursuant to s 45 of the Local Court Act and sought orders for fencing work to be carried out pursuant to s 14 of the Act. The application certified that the requisite procedures required by ss 11 and 12 of the Act had taken place.

When the matter came on for hearing in the Local Court there was a great deal of uncontested fact. Those matters which were not contested were recorded in the Local Court’s reasons and include the following:

The issue then posed for the Local Court’s decision was whether the fence which had been newly constructed in or about September 2021, to which I will refer as “the new fence”, was a sufficient dividing fence for the purposes of the Act.

It is necessary to draw attention to the legal exercise upon which the Local Court was engaged. It was being asked to make an order under s 14 of the Act requiring that the defendants undertake fencing work, which was described in the Application in the following way,

It is to be observed that no order was sought specifically with respect to a contribution as between the adjoining owners pursuant to s 7 of the Act.

In order for the Local Court to have the jurisdiction to make an order under s 14, it first needed to be satisfied that at the time of making the order there was no sufficient dividing fence, as that term is defined in s 4 of the Act.

It is clear that unless the Court determined that threshold question and concluded that there was no sufficient dividing fence, it did not have the jurisdiction to make orders under s 14. In these circumstances, in my view, that threshold fact can properly be described as a fact going to the jurisdiction of the Court to make the relevant orders: see Larney v Johansson [2013] NSWCA 409 at [54]; and Alwiah v Watts [2004] NSWSC 948.

It is apparent from the decision of the Local Court that it accepted the defendants’ submission that the new fence was a sufficient dividing fence. The Local Court consequently held that it did not have jurisdiction to make the orders sought by the plaintiffs for fencing work to be carried out pursuant to s 14 of the Act. I note in this respect the term “fencing work” does not include the removal or demolition of an existing dividing fence, except to the extent that its removal may be necessitated by the replacement, repair or maintenance of the existing fence: see Larney at [69] per Emmett JA.

In their submissions that the Local Court should refuse to make the orders in the application, the defendants drew the Local Court’s attention to and relied upon Subdiv 17 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, which I will refer to as “the 2008 SEPP”, and in particular cl 2.34 as being the standard applicable to the plaintiffs’ application. No other environmental planning instrument, policy or code was drawn to the Local Court’s attention.

At this point I note that s 4 of the Act provides the following in relation to the meaning of “sufficient dividing fence”:

In drawing the Local Court’s attention to the 2008 SEPP, neither party drew the Local Court’s attention to the following undoubted circumstances:

The Local Court proceeded to determine the threshold fact relevant to its jurisdiction, namely whether there was a sufficient dividing fence, on a wholly inadequate basis, because it was misled by omission, namely the lack of referral to the 2014 LEP and mistakenly as to the applicability of the 2008 SEPP.

These are matters made specifically relevant by ss 4(e) and (f) of the Act and were required to be addressed by the Local Court when determining the existence of a sufficient dividing fence. It follows that by reason of the conduct of the parties, the Local Court was invited to undertake a flawed exercise in the determination of the relevant jurisdictional fact. Thus, an error of law has been established because the Local Court’s consideration of that relevant fact wholly miscarried.

This Court, in the event that such error of law is established, does not have the power to make primary findings of fact, nor does it have the power to make findings of mixed fact and law: see Lesley-Swan v Owners of SP 32735 [2013] NSWSC 1635 at [71]; Pearson v Jamaica Blue Pty Ltd [2019] NSWSC 1737 at [25]. It is not a matter for this Court on an appeal pursuant to the Local Court Act to engage in the determination of facts which may be relevant to the merits of the proceedings below.

It follows that I am satisfied the plaintiffs' appeal must be upheld.

I note that the plaintiffs also sought to agitate relief pursuant to s 69 of the Supreme Court Act. It is unnecessary to determine that application because the same result would apply, and no greater relief can be obtained by an order under s 69 than is obtained on a successful appeal.

I make the following orders: