Grose v Bolton; Bolton v Grose [2019] NSWCATCD 42

Grose v Bolton; Bolton v Grose [2019] NSWCATCD 42

Where there is currently no sufficient dividing fence between neighbouring residential properties, it is appropriate for the Tribunal to order that a fence be constructed in accordance with a valid local council development approval (a lapped and capped timber fence with specified maximum heights), particularly where both parties agree the applicant will bear the full cost, and there are no compelling reasons to depart from the development consent; access and procedural arrangements are to be made to facilitate completion of the fencing work.

Parties
Applicant (com 18/40191), Respondent (com 18/49990): Rebecca Grose; Respondent (com 18/40191), Applicant (com 18/49990): Rika Bolton
Jurisdiction
Australia
Judgment Date
03 May 2019
Procedural Posture
Dividing Fence Dispute (consumer and Commercial) / Principal Judgment After Special Fixture Hearing
Outcome
Orders made determining type, height, and construction of new dividing fence with access and notice conditions; costs reserved for further application if sought.
Legal Topics
Dividing Fences, Sufficient Dividing Fence, Fencing Work Orders, Cost Apportionment in Fencing Disputes, Access to Neighbouring Land, Development Approval Compliance
Property Law Civil Procedure Dividing Fences Sufficient Dividing Fence Fencing Work Orders Cost Apportionment in Fencing Disputes Access to Neighbouring Land Development Approval Compliance

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 12 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Rebecca Grose

Applicant (com 18/40191), Respondent (com 18/49990)

Rika Bolton

Respondent (com 18/40191), Applicant (com 18/49990)

Procedural Posture

Dividing Fence Dispute (consumer and Commercial) / Principal Judgment After Special Fixture Hearing

Legal Issues

  1. 1 Whether Tribunal has jurisdiction under Dividing Fences Act 1991 (NSW) when only one party pays for fencing work
  2. 2 Whether there is a sufficient dividing fence between the properties
  3. 3 What is the appropriate type, height, and position of the dividing fence

Ratio Decidendi

Where there is currently no sufficient dividing fence between neighbouring residential properties, it is appropriate for the Tribunal to order that a fence be constructed in accordance with a valid local council development approval (a lapped and capped timber fence with specified maximum heights), particularly where both parties agree the applicant will bear the full cost, and there are no compelling reasons to depart from the development consent; access and procedural arrangements are to be made to facilitate completion of the fencing work.

Court Disposition

Orders made determining type, height, and construction of new dividing fence with access and notice conditions; costs reserved for further application if sought.

Orders

  • Ms Rebecca Grose to perform fencing work on the boundary between her property and Ms Rika Bolton's property in Annandale NSW on or before 8 weeks from the date of the decision, as stipulated in the orders.
  • Fencing work to be performed on the common boundary as identified in the survey certificate dated 20 December 2017.