Erratt v Local Land Board Armidale [2008] NSWSC 959

Erratt v Local Land Board Armidale [2008] NSWSC 959

The summons was dismissed because the Local Land Board's 13 February 2007 determination was final and had not been appealed, the fence line had since been marked and agreed by the parties, the Grills were not pursuing the further applications, existing fences should remain until the new fence was constructed, there was no evidentiary basis for ordering a cattle and rabbit proof fence, the proposed cost-sharing was not disputed, the ownership of land was not altered by the give and take fence, and the Grills required continued access to the southern waterhole for domestic water and horse exercise purposes.

Jurisdiction
Australia
Judgment Date
18 September 2008
Procedural Posture
Administrative Law Summons Seeking Prerogative Relief Concerning a Dividing Fence / Principal Judgment
Outcome
The summons filed 29 February 2008 was dismissed, with each party to pay their own costs.
Legal Topics
['mandamus' 'prohibition' 'dividing Fences' 'give and Take Fence' 'local Land Board Orders']
['administrative Law' 'property Law'] ['mandamus' 'prohibition' 'dividing Fences' 'give and Take Fence' 'local Land Board Orders']

Case Brief

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Procedural Posture

Administrative Law Summons Seeking Prerogative Relief Concerning a Dividing Fence / Principal Judgment

Legal Issues

  1. 1 ['Whether orders in the nature of mandamus or under s 19(3) of the Dividing Fences Act 1991 should be made requiring the Local Land Board to identify and mark the dividing fence location.' "Whether the Local Land Board should be restrained from hearing or determining the second and third defendants' further application under s 12 of the Dividing Fences Act 1991." 'Whether the second and third defendants should be ordered to dismantle existing fences before the new fence is constructed.' 'Whether the plaintiff should be permitted to erect a cattle and rabbit proof dividing fence and recover half the cost from the second and third defendants.' 'Whether the plaintiff should have exclusive occupation and use of land and parts of Tilbuster Ponds lying on the eastern side of the give and take fence.' "Whether the second and third defendants should be restrained from interfering with the plaintiff's use of land and parts of Tilbuster Ponds on the eastern side of the proposed fence."]

Ratio Decidendi

The summons was dismissed because the Local Land Board's 13 February 2007 determination was final and had not been appealed, the fence line had since been marked and agreed by the parties, the Grills were not pursuing the further applications, existing fences should remain until the new fence was constructed, there was no evidentiary basis for ordering a cattle and rabbit proof fence, the proposed cost-sharing was not disputed, the ownership of land was not altered by the give and take fence, and the Grills required continued access to the southern waterhole for domestic water and horse exercise purposes.

Court Disposition

The summons filed 29 February 2008 was dismissed, with each party to pay their own costs.

Orders

  • ['The summons filed 29 February 2008 is dismissed.' 'Each party is to pay their own costs.']