Purcell v Chadwick [2018] NSWCATAP 250

Purcell v Chadwick [2018] NSWCATAP 250

Although the Tribunal erred in treating the fence's location off the boundary line as irrelevant to sufficiency, the appellant did not establish that the existing fence was insufficient. The fence was in good condition, ran the full length of the boundary, was not shown to adversely affect use of the appellant's land in a way warranting a finding of insufficiency, and the evidence did not prove the alleged deviations over the whole fence. Because insufficiency was not established, the Tribunal had no jurisdiction to order fencing work and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
19 October 2018
Procedural Posture
Appeal Under the Dividing Fences Act 1991 (nsw) Concerning a Dividing Fence / Appeal to the NSW Civil and Administrative Tribunal Appeal Panel From Dismissal of Application COM 18/14724 in the Consumer and Commercial Division
Outcome
The appeal is dismissed.
Legal Topics
['jurisdiction to Make Fencing Orders' 'meaning of Sufficient Dividing Fence' 'relevant Considerations Under S 4 of the Dividing Fences Act 1991 (nsw)' 'leave to Appeal Findings of Fact' 'boundary Encroachment']
['dividing Fences' 'civil and Administrative Tribunal Procedure' 'property Law'] ['jurisdiction to Make Fencing Orders' 'meaning of Sufficient Dividing Fence' 'relevant Considerations Under S 4 of the Dividing Fences Act 1991 (nsw)' 'leave to Appeal Findings of Fact' 'boundary Encroachment']

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Procedural Posture

Appeal Under the Dividing Fences Act 1991 (nsw) Concerning a Dividing Fence / Appeal to the NSW Civil and Administrative Tribunal Appeal Panel From Dismissal of Application COM 18/14724 in the Consumer and Commercial Division

Legal Issues

  1. 1 ['Whether the Tribunal had jurisdiction to make an order under the Dividing Fences Act 1991 (NSW) where the existing dividing fence was alleged to be insufficient.' 'Whether the location of an existing dividing fence off the boundary line is relevant to determining whether it is a sufficient dividing fence.' 'Whether the appellant established that the existing Colorbond fence was insufficient by reason of encroachment, lack of straightness, being out of plumb, or impact on use of his land.']

Ratio Decidendi

Although the Tribunal erred in treating the fence's location off the boundary line as irrelevant to sufficiency, the appellant did not establish that the existing fence was insufficient. The fence was in good condition, ran the full length of the boundary, was not shown to adversely affect use of the appellant's land in a way warranting a finding of insufficiency, and the evidence did not prove the alleged deviations over the whole fence. Because insufficiency was not established, the Tribunal had no jurisdiction to order fencing work and the appeal was dismissed.

Court Disposition

The appeal is dismissed.

Orders

  • ['The appeal is dismissed.']