Craig Stokeld and Kim Janelle Stokeld v Stephen Simpson and Charmaine Simpson [2014] NSWCATCD 213

Craig Stokeld and Kim Janelle Stokeld v Stephen Simpson and Charmaine Simpson [2014] NSWCATCD 213

Having considered the s 4 factors, the Tribunal found that the existing timber slat and post fence was in good order, served residential adjoining lands, provided some privacy to the respondents, was not shown to be unusual in the locality, was treated by Gosford City Council as exempt development, and did not breach any relevant policy or code. The existing structure was therefore a sufficient dividing fence, so the respondents were not required to remove, alter or lower it, and the applicants were not required to contribute to its cost.

Jurisdiction
Australia
Judgment Date
26 November 2014
Procedural Posture
Application Under the Dividing Fences Act 1991 Concerning Removal or Lowering of an Existing Dividing Fence / Hearing and Final Decision
Outcome
The application is dismissed.
Legal Topics
['sufficient Dividing Fence' 'removal or Lowering of Existing Fence' 'adjoining Owners' 'privacy and Amenity' 'local Council Policy and Exempt Development']
['property Law' 'dividing Fences'] ['sufficient Dividing Fence' 'removal or Lowering of Existing Fence' 'adjoining Owners' 'privacy and Amenity' 'local Council Policy and Exempt Development']

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Procedural Posture

Application Under the Dividing Fences Act 1991 Concerning Removal or Lowering of an Existing Dividing Fence / Hearing and Final Decision

Legal Issues

  1. 1 ['Whether the existing 27 metres of fencing should be removed or replaced on the basis that it was not a sufficient dividing fence within the meaning of the Dividing Fences Act 1991.' 'Whether, in the alternative, the existing fencing should be reduced in height to something not exceeding 1.5 metres for the 9 metre section and 1.2 metres for the 18 metre section east of the Norfolk pine and stretching towards the beachfront.']

Ratio Decidendi

Having considered the s 4 factors, the Tribunal found that the existing timber slat and post fence was in good order, served residential adjoining lands, provided some privacy to the respondents, was not shown to be unusual in the locality, was treated by Gosford City Council as exempt development, and did not breach any relevant policy or code. The existing structure was therefore a sufficient dividing fence, so the respondents were not required to remove, alter or lower it, and the applicants were not required to contribute to its cost.

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.' 'The respondents are not required to remove the existing structure or alter it.' 'The applicants are not required to contribute towards the cost of the two sections of existing fencing erected in 2008 and 2014.' 'The respondents are not required to lower the fence as sought by the...