NSW Fences Dispute with a Housing Property - What to Do?

[Marceline]

Our property shares a boundary fence with a Housing NSW owned property. We only found out recently when our tenant advised our agent that the fence is falling apart and the Housing tenant's dog next door keeps pulling the fence palings down and coming into the yard. They stated that this has been ongoing for a while now. They have patched the fence multiple times but does not stop the dog for long to dig up again and enter the property. We took photos and sent a fencing notice to FACS Housing to pay for full cost of replacing the fence.

FACS Officer went inspect the fence and decided that it is a half cost as it appears that the fence is just old and needs replacing.

If the fence was in disrepair solely because of its age and required replacing, we would agree that paying half the cost of its replacement would be correct. We think that in this instance the entire cost should be borne by the owner of the dog or the landlord of the property. In this case, the fence has been destroyed through the wilful destruction caused by the Housing tenant's dog resident attempting to gain access to our property.

Under the Dividing Fences Act, is the Housing exempt from any liability even if it's clear that the damage was wilfully done by the resident dog of their tenant? If it were reverse, the Act states that we would have to pay the full cost. It's not fair that Housing is not liable for the damage. Do we have a case if we take it up to Court to demand the full cost of replacing the fence?

 

[Scruff]

The relevant law here is Section 25 of the NSW Dividing Fences Act 1991 - "Application of Act to Crown and local authorities etc". The important bits are:

25(1) "This Act does not operate to impose any liability, or to confer any rights, with respect to dividing fences on: (a) the Crown, ..."

25(2) "However, nothing in this Act prevents the Crown or any such council, trustee, person or body from entering into arrangements (other than those arising under this Act) to contribute to fencing work in respect of dividing fences."

25(3) "In this section, Crown includes a statutory body representing the Crown."

In this case, Housing NSW is only a government agency that manages the tenancies - no different to a real estate agent. It is the actual owner of the property however, that is responsible for maintanence and repairs - and that is the NSW Land & Housing Corporation, which is a "statutory body representing the Crown".

So when you break all of this down, the owner is exempt from liability by s25(1), but they may enter into private arrangements themselves under s25(2).

Given that they are offering to pay 50% when they don't have to, that's probably the best deal you'll get. If you take this to NCAT, I don't think you'll do any better unless you can show that the dog is solely responsible for the fence needing replacement or repair, which is unlikely if it's old.

The NSW Dividing Fences Act 1991 can be found here: NSW Legislation

 

[Marceline]

Photos clearly show that the dog is responsible for the damage over time. If it were not for the tenant's dog, the fence would still be intact and fits its purpose. Is this just a case of bad luck that the property is owned by LAHC and we can't hold them responsible for their tenant's damage?

IMG_8806.jpg

 

[Scruff]

If you have images taken over time that show that the only damage is because of the dog and the fence is now "not fit for purpose" solely because of that, then you would certainly have a strong argument. The problem is that because LAHC is a statutory body, they are not automatically liable under the Act - not even for 50%.

You can try to convince LAHC to pay 100% based on the evidence you have, and they might even agree. If not, you can still try NCAT and if you win, great - but if you lose, you might end up having to pay 100% yourself. So there is definately a risk if it gets that far. So it's best to keep at LAHC and see if you can convince them to be reasonable and come to the party.

If you show LAHC the evidence, you should also point out to them that you are aware that the tenant is in breach of their Tenancy Agreement, specifically, Section 51 of the NSW Residential Tenancies Act 2010 ("RTA") - "Use of premises by tenant":

In relation to the dog entering your property and damage to the fence:
51(1)(b) A tenant must not "cause or permit a nuisance".
51(1)(c) A tenant must not "interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of any neighbour of the tenant".

In relation to damage to the fence:
51(1)(d) A tenant must not "intentionally or negligently cause or permit any damage to the residential premises".

And if the tenant failed to notify the landlord of the damage, then:
51(2)(b) A tenant must "notify the landlord of any damage to the residential premises as soon as practicable after becoming aware of the damage".

(If the tenant had reported the damage themselves, then LAHC more than likely would have repaired the fence on their own and if necessary, recovered the costs from the tenant by installments. It's highly unlikely that this would not have incurred you any expense at all.)

If you are dealing with FACS staff, then I would insist that the damage be inspected by someone appropriately qualified from either LAHC directly or from Broadspectrum, which is their current maintenance/property management contractor. Your argument here is that since the actual cause of the damage is in dispute, it should be inspected by a professional who is appropriately qualified. If they still don't admit that the dog is the cause after that, then arrange for someone qualified to inspect the damage yourself and get a written report from them.

Another thing is that as the landlord, LAHC has every right to apply to NCAT for an order for compensation against the tenant on the grounds that the damage is a direct result of breaching the tenancy agreement. NCAT can make such an order for the full cost of the repairs under s187 of the RTA. Remind LAHC that the tenant is ultimately responsible for the damage and if LAHC acts appropriately, then this matter will not cost them or you anything. Tell them that their current course of action is essentially holding you financially liable for their tenant's breach of the RTA and that you will not accept this.

Submit all of that to LAHC and see if they finally concede.

If you still don't get anywhere after all of that, then I guess it's off to NCAT. If you lose, then other than appealing, the only other course of action that I can see would be a civil claim against the tenant directly to recover the full costs.

The NSW Residential Tenancies Act 2010 can be found here: NSW Legislation

FYI, you can't upload files to this site directly. If you want to post images, you will need to upload them to a 3rd-party site somewhere and then paste the URL(s) here. Full URL's are automatically converted to links when you post any question or reply.

 

[Rod]

In my opinion, if it was me, I'd:

Short answer: Go to NCAT asking for 100%.

Longer answer: I do not know the answer as it requires someone who is already familiar with the legislation and cases to know if statutory immunity applies to LAHC. It is not worth obtaining legal advice on a complex matter for so little money so take pot luck at NCAT and hope you win.

Scruff: I do not know the answer to the question but do note the issue of crown immunity is much more complex than saying ' ... NSW Land & Housing Corporation, which is a "statutory body representing the Crown".'

From LAHC website: Under the Housing Act 2001 (NSW), the NSW Land and Housing Corporation (LAHC) is a statutory body under the portfolio and direction of the Minister for Family and Community Services. The NSW Land and Housing Corporation operates as a Public Trading Enterprise, and it owns and is responsible for the management of some 144,000 social housing dwellings across New South Wales.

Gibbs J in the High Court case TOWNSVILLE HOSPITALS BOARD v. TOWNSVILLE CITY COUNCIL (1982) 149 CLR 282 said:

All persons should prima facie be regarded as equal before the law, and no statutory body should be accorded special privileges and immunities unless it clearly appears that it was the intention of the legislature to confer them​

So a full analysis of legislation preferably backed with some case law is needed before deciding if LAHC has immunity. Sorry, I do know the specific answer and do not have time to conduct proper research.

 

[Tripe]

The situation you describe, the NSW housing property, would be a private property subject to the dividing fences act.

If you can satisfactory show the dog caused above average wear and tear, NSW housing would be liable for greater than pro rata contribution.

 

[Scruff]

Okay, the full explanation.

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NSW Dividing Fences Act 1991: (Link: Dividing Fences Act 1991 No 72 - NSW Legislation)

25 - Application of Act to Crown and local authorities etc

(1) This Act does not operate to impose any liability, or to confer any rights, with respect to dividing fences on:
. (a) the Crown, or
. (b) a council of a local government area, or any trustee or other person or body, in respect of land vested in (or under the care, control and management of) the council, trustee, person or body for the purposes of a public reserve, public park or such other public purposes as may be prescribed, or
. (c) a roads authority (within the meaning of the Roads Act 1993) with respect to any public road, or
. (d) an irrigation corporation within the meaning of the Water Management Act 2000, or
. (e) an Aboriginal Land Council with respect to land reserved under Part 4A of the National Parks and Wildlife Act 1974, or
. (f) Water NSW, but only with respect to the exercise of its functions in the Sydney catchment area (within the meaning of the Water NSW Act 2014).

(2) However, nothing in this Act prevents the Crown or any such council, trustee, person or body from entering into arrangements (other than those arising under this Act) to contribute to fencing work in respect of dividing fences.

(3) In this section, Crown includes a statutory body representing the Crown.
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NSW Housing Act 2001: (Link: Housing Act 2001 No 52 - NSW Legislation)

6 - Establishment of New South Wales Land and Housing Corporation

(1) There is constituted by this Act a body corporate with the corporate name of the New South Wales Land and Housing Corporation.
(2) The affairs of the Corporation are to be managed by the Secretary.
(3) Any act, matter or thing done in the name of, or on behalf of, the Corporation by the Secretary, or with the authority of the Secretary, is taken to have been done by the Corporation.
(4) The Corporation is, for the purposes of any Act, a statutory body representing the Crown.
(5) The Corporation is subject to the direction and control of the Minister.
(6) (Repealed)
(7) The Corporation may exercise any of its functions, and may otherwise act, in the name of the Department.
(8) The Corporation and the Department are, to the maximum extent possible, to act in a complementary manner, so as to achieve a unified administration of this Act
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NSW Interpretation Act 1987: (Link: https://legislation.nsw.gov.au/~/view/act/1987/15/whole#/part2/sec13a)

13A - NSW Government agencies and statutory bodies representing the Crown

(1) If an Act provides that a body is:
. (a) a NSW Government agency, or
. (b) a statutory body representing the Crown,
the body has the status, privileges and immunities of the Crown.

(2) If an Act provides that a body:
. (a) is not or does not represent the Crown, or
. (b) is not a NSW Government agency or a statutory body representing the Crown,
the body does not have the status, privileges and immunities of the Crown.

(3) This section extends (without limiting its operation):
. (a) to a provision that is expressed to be made for the purposes of any Act or more generally, and
. (b) to privileges and immunities conferred by law expressly or as a matter of construction.

(4) In any Act or instrument:
. (a) a reference to a NSW Government agency includes a reference to a body that is declared to be a statutory body representing the Crown, or
. (b) a reference to a statutory body representing the Crown includes a reference to a body that is declared to be a NSW Government agency.

(5) In this section, the Crown includes the State and the Government of the State.
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The law is very clear in that the NSW Land & Housing Corporation, which is a statutory body, does not have any liability or rights with respect to dividing fences under the NSW Dividing Fences Act.

This is why I recommended that the OP gather as much evidence as possible and try to convince LAHC to come to the party on their own. NCAT is a last resort, because the OP doesn't have the backing of the legislation in regard to liability in this case.

The intention of the law couldn't be any clearer in my opinion.

 

[Tripe]

From NSW family and community services.


Legislation and compliance
Dividing fences with adjoining private properties will be managed in accordance with:

• Residential Tenancies Act 2010
• Dividing Fences Act 1991
• Protection of the Environment Operations Act 1997
• Environmental Offences and Penalties Act 1989
• LAHC Asset Performance Standards

Last updated: 28 Aug 2017


QED Tripe

 

[Scruff]

Good for the OP that they have that policy - because they don't have to.

Since they do, I recommend the OP read the full document here: Dividing Fences Policy

Take particular notice under the section "Cost of dividing fencing" where FACS acknowledges in their own policy that "an owner will have to pay the full cost if they damaged the existing dividing fence (either deliberately or negligently)."

 

[Marceline]

Hi Everyone
Firstly, thank you for the all the replies.

Good for the OP that they have that policy - because they don't have to.

Since they do, I recommend the OP read the full document here: Dividing Fences Policy

Take particular notice under the section "Cost of dividing fencing" where FACS acknowledges in their own policy that "an owner will have to pay the full cost if they damaged the existing dividing fence (either deliberately or negligently)."

After reading their Dividing Fences Policy, initially I thought they are liable as the word "owners" would mean the private owner and LAHC. If I can prove that the damage was caused deliberately by the tenant's dog, then they should pay for the full cost. That section does not specifically state " private owner," rather "owners" meaning us and LAHC.