Ward v Herkelman [2023] NSWCATCD 146

Ward v Herkelman [2023] NSWCATCD 146

There is no sufficient dividing fence between the properties within the meaning of the Dividing Fences Act 1991, and having considered all the relevant circumstances, the Tribunal orders demolition of the existing fence and replacement with a Colorbond fence of 1.8m (tapering to 1.2m as per council regulations), to be constructed on the common boundary as per the survey, with costs shared equally between the parties.

Parties
Applicant: Philip Ward; Respondent: Wilma Herkelman
Jurisdiction
Australia
Judgment Date
01 September 2023
Procedural Posture
Dividing Fence Dispute / Principal Judgment
Outcome
Orders made for demolition and replacement of the dividing fence, specifying construction, cost sharing, and procedural requirements.
Legal Topics
Dividing Fences, Neighbour Disputes, Contributions to Fence Costs
Property Law Civil Procedure Dividing Fences Neighbour Disputes Contributions to Fence Costs

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Parties

Philip Ward

Applicant

Wilma Herkelman

Respondent

Procedural Posture

Dividing Fence Dispute / Principal Judgment

Legal Issues

  1. 1 Whether the Tribunal has jurisdiction under the Dividing Fences Act 1991
  2. 2 Whether there is currently a sufficient dividing fence between the parties' properties
  3. 3 What constitutes a sufficient dividing fence in the circumstances

Ratio Decidendi

There is no sufficient dividing fence between the properties within the meaning of the Dividing Fences Act 1991, and having considered all the relevant circumstances, the Tribunal orders demolition of the existing fence and replacement with a Colorbond fence of 1.8m (tapering to 1.2m as per council regulations), to be constructed on the common boundary as per the survey, with costs shared equally between the parties.

Court Disposition

Orders made for demolition and replacement of the dividing fence, specifying construction, cost sharing, and procedural requirements.

Orders

  • The existing dividing fence between the applicant's and the respondent's adjoining lands is to be demolished and removed and the fence line cleared sufficiently to allow the fencing work to be carried out as part of the fencing work the subject of these orders.
  • A new Colorbond dividing fence 1.8 meters high in "ironstone" colour is to be erected on the common boundary line (as identified in the survey report of Daly Smith dated 4 May 2018) between the applicant's and the respondent's adjoining lands; the fence is to taper down to 1.2 meters height as per council...