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District Court 13 March 2025

Moore v Lawrie

[2025] NSWDC 97

Other
APPEALS DIVIDING FENCES ACT COSTS

Citation: Moore v Lawrie [2025] NSWDC 97
Court: District Court of NSW
Date: 13 March 2025
Judge(s): Newlinds SC DCJ

Background

The parties are neighbouring property owners who share an acrimonious relationship. The respondents demolished their home to construct a new dwelling and, as part of that work, proposed landscaping that would raise the ground level on their side of the boundary above the level of the appellant's land. Railway sleepers featured in the approved landscaping plans as a foundational component along the boundary.

The appellants applied under the Dividing Fences Act 1991 (NSW) for orders requiring a new Colourbond fence to be erected between the properties at a height sufficient to address privacy concerns. The matter had an involved procedural history, passing through NCAT before being transferred to the Local Court, where Magistrate Khoo made orders broadly in the appellants' favour on 8 February 2024.

Two aspects of those orders were challenged on appeal. First, whether the fence height should be measured from the ground on the respondents' side. Second, whether the railway sleepers forming part of the proposed landscaping constituted part of the "fence" under the Act, and which party should bear their cost.

Legal Issues

  • Whether the District Court had jurisdiction to hear the appeal, given that fencing disputes proceed in the Local Court's criminal jurisdiction.
  • Whether fence heights ordered by the Magistrate should be measured from the ground level on the respondents' side of the boundary, accounting for the proposed raising of that land.
  • Whether railway sleepers, as part of the proposed landscaping, constitute a "fence" within the meaning of the Dividing Fences Act 1991 (NSW), including the interaction between the definition of "fence" in s 3 and the concept of "sufficient dividing fence" in s 4.
  • Which party should bear the cost of the sleeper/barrier wall component, and how ss 7(1) and 14(c) of the Act interact on the question of cost apportionment.

Decision

Issue 1: Jurisdiction

The District Court confirmed it had jurisdiction to hear the appeal, even though the underlying dispute is not a criminal matter. Fencing disputes are allocated to the Local Court's special jurisdiction, which is procedurally commenced in that court's criminal jurisdiction. Section 70(1)(b) of the Local Court Act 2007 (NSW) mandates that an appeal lies to the District Court in accordance with Part 3 of the Crimes (Appeal and Review) Act 2001 (NSW). This statutory framework was confirmed by the Court of Appeal in Huang v Nazaran [2021] NSWCA 243 and the Supreme Court in Styles v Rowley [2023] NSWSC 1053 (at [18]-[20]).

Issue 2: Measurement of fence height

The Magistrate had not been directed to the height measurement issue at all, so it was not an error on the Magistrate's part. On appeal, the court found that the fence heights of 1.8 metres (rear section) and 900 millimetres (front yard section) should be measured from the ground level immediately adjacent to the fence on the respondents' side, accounting for the proposed raising of that land by landscaping works (at [5]-[6]). The court made orders clarifying this measurement point.

Issue 3: Railway sleepers as part of the "fence"

The court identified that the Magistrate posed the wrong question. The correct analysis requires two distinct steps: first, whether the structure constitutes a "fence" as defined in s 3 of the Act; and second, if so, whether what is proposed constitutes a "sufficient dividing fence" under s 4 (at [9]). The definition of "fence" in s 3 excludes retaining walls, but that exclusion is itself qualified by paragraph (c), which includes any foundational support necessary for the support and maintenance of the fence, regardless of whether it might otherwise be called a retaining wall (at [11]-[12]). On the evidence before the court, the railway sleepers constituted foundational support necessary to support the fence. Accordingly, the Magistrate had jurisdiction to make orders about them, and the only sensible conclusion was to include the sleepers as part of the sufficient dividing fence (at [13]).

Issue 4: Cost of the sleeper/barrier wall

The court considered the interrelationship between s 7(1), which allocates equal contributions for standard fencing work and adjusts where one party wants a more elaborate fence, and s 14(c), which gives the court a general discretion to apportion costs of fencing work. Read together, s 7(1) addresses situations where one party seeks a fence above the sufficient standard, while s 14(c) confers a broader apportionment discretion (at [14]-[15]). Because the sleepers already appeared as a component in the respondents' approved development plans, meaning the respondents would have borne that cost in any event, the court ordered that the respondents pay the full cost of the barrier wall, with the remaining fence costs shared equally (at [16]). The court noted some uncertainty about whether the respondents would actually carry out the landscaping work and granted liberty to the appellants to apply for variation if circumstances changed (at [17]).

Orders Made

  • Appeal allowed in part.
  • Local Court orders set aside.
  • Upon completion of the respondents' landscaping adjoining the boundary, or by 1 May 2025 (whichever is earlier), the parties are to remove the existing dividing fence at equal cost and erect a new Colourbond fence (colour: "dune") on the surveyed boundary.
  • The new fence is to have two sections: 1.8 metres high (rear to front yards), and 900 millimetres high (front yard section), both measured from the ground level on the respondents' side as contemplated by the approved landscaping plans.
  • A concrete sleeper barrier wall of not less than 300mm is to be installed immediately under the fence; the respondents are to bear its full cost.
  • The parties are otherwise to share the cost of the boundary fence equally, including disposal of the current fence.
  • Each party is to obtain a quote from a licensed and insured fencing contractor within one month of the trigger date; the contractor with the lowest quote is to be engaged (with any party electing the higher quote bearing the difference).
  • Fencing work is to be completed within four months of the trigger date, but no later than 1 September 2025.
  • The respondents are to pay the appellants 50% of the survey plan costs.
  • The respondents are to pay the costs of the appeal as agreed or assessed, within 14 days of agreement or assessment.
  • Leave granted to the appellants to apply for gross sum costs assessment on 7 days' notice.
  • Liberty to restore before Newlinds SC DCJ on 7 days' notice for any issue of implementation or interpretation.

Key Takeaways

  • Under the Dividing Fences Act 1991 (NSW), the question of whether a structure (such as railway sleepers) forms part of a "fence" requires two distinct steps: first, whether it falls within the s 3 definition of "fence" (including the paragraph (c) carve-in for foundational supports); and second, whether the overall structure constitutes a "sufficient dividing fence" under s 4. Conflating these steps risks jurisdictional and analytical error.

  • The definition of "fence" in s 3 expressly includes any foundational support necessary for the support and maintenance of a fence, even if that support might otherwise be characterised as a retaining wall. The "retaining wall" exclusion is itself qualified by paragraph (c), and courts must apply that qualification before concluding a structure falls outside the Act's reach.

  • Sections 7(1) and 14(c) of the Act operate distinctly: s 7(1) addresses cost adjustment where one party seeks a fence above the sufficient standard, while s 14(c) grants the court a broader discretion to apportion the costs of fencing work generally, including allocating the cost of a barrier wall entirely to the party whose development plans already required it.

  • Fence heights ordered under the Act may be measured from a specific reference point, and where one party's landscaping will raise the ground level, orders should specify from which side of the fence the height is measured to give practical effect to the court's intention.

  • Fencing disputes determined in the Local Court's special jurisdiction proceed in that court's criminal jurisdiction and, on appeal, are heard by the District Court under Part 3 of the Crimes (Appeal and Review) Act 2001 (NSW), as confirmed by the Court of Appeal in Huang v Nazaran and the Supreme Court in Styles v Rowley.

Legislation and Cases Referenced

Legislation
- Dividing Fences Act 1991 (NSW) s 3, s 4, s 7, s 13, s 14
- Crimes Appeal and Review Act 2001 (NSW) s 18, Pt 3
- Local Court Act 2007 (NSW) s 70, Pt 4

Cases
- Huang v Nazaran [2021] NSWCA 243; 106 NSWLR 219
- Styles v Rowley [2023] NSWSC 1053