Allan Jeffrey Brown v James F Doyle & Ors [2010] NSWSC 1269

Allan Jeffrey Brown v James F Doyle & Ors [2010] NSWSC 1269

The local land board erred in law because the ordered retaining edge was solely to contain dirt from the mound and was therefore a retaining wall, not a fence within the Dividing Fences Act 1991, so the board had no jurisdiction to order it. The board also failed to make the required finding about the sufficiency of the existing vegetative barrier and failed to evaluate relevant matters advanced by Mr Brown. The denial of an opportunity to cross-examine Mr Doyle amounted to a denial of procedural fairness. Because the appeal was limited to error of law and factual findings remained to be made, the matter had to be remitted to a differently constituted local land board rather than...

Jurisdiction
Australia
Judgment Date
05 November 2010
Procedural Posture
Appeal Against Decision of Local Land Board Under S 19(2) of the Dividing Fences Act 1991 / Supreme Court of New South Wales Common Law Division Judgment on Appeal
Outcome
Appeal allowed; matter remitted to a differently constituted local land board; Doyles ordered to pay the plaintiff's costs of the appeal with Suitors' Fund Act certificates granted to each of them.
Legal Topics
['dividing Fences' 'local Land Board Jurisdiction' 'retaining Wall Excluded From Statutory Definition of Fence' 'sufficient Dividing Fence' 'procedural Fairness' 'remittal After Appeal on Error of Law' "suitors' Fund Certificate"]
['property Law' 'administrative Law' 'civil Procedure'] ['dividing Fences' 'local Land Board Jurisdiction' 'retaining Wall Excluded From Statutory Definition of Fence' 'sufficient Dividing Fence' 'procedural Fairness' 'remittal After Appeal on Error of Law' "suitors' Fund Certificate"]

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Procedural Posture

Appeal Against Decision of Local Land Board Under S 19(2) of the Dividing Fences Act 1991 / Supreme Court of New South Wales Common Law Division Judgment on Appeal

Legal Issues

  1. 1 ['Whether the local land board had jurisdiction under the Dividing Fences Act 1991 to order construction of a retaining edge consisting of railway sleepers.' 'Whether the board was required to determine the sufficiency of the existing vegetative barrier before making orders.' 'Whether the conduct of the board proceedings denied procedural fairness, including by denying an opportunity to cross-examine Mr Doyle.' 'Whether the Supreme Court should determine the merits or remit the matter to the local land board.' 'Whether the remitted land board should be differently constituted.']

Ratio Decidendi

The local land board erred in law because the ordered retaining edge was solely to contain dirt from the mound and was therefore a retaining wall, not a fence within the Dividing Fences Act 1991, so the board had no jurisdiction to order it. The board also failed to make the required finding about the sufficiency of the existing vegetative barrier and failed to evaluate relevant matters advanced by Mr Brown. The denial of an opportunity to cross-examine Mr Doyle amounted to a denial of procedural fairness. Because the appeal was limited to error of law and factual findings remained to be made, the matter had to be remitted to a differently constituted local land board rather than...

Court Disposition

Appeal allowed; matter remitted to a differently constituted local land board; Doyles ordered to pay the plaintiff's costs of the appeal with Suitors' Fund Act certificates granted to each of them.

Orders

  • ['The appeal is allowed.' 'The matter is remitted to the local land board for determination according to law. For the purpose of that determination the land board must be differently constituted from that which made the decision the subject of the appeal.' "The Doyles must pay the plaintiff's costs of the appeal,...