Erratt v Local Land Board Armidale [2008] NSWSC 959 (18 September 2008)

Last Updated: 19 September 2008

NEW SOUTH WALES SUPREME COURT

CITATION:
Erratt v Local Land Board Armidale [2008] NSWSC 959


JURISDICTION:
Common Law

FILE NUMBER(S):
30019/2008

HEARING DATE(S):
1 & 2 September 2008

JUDGMENT DATE:
18 September 2008

PARTIES:
Gillian Wren Erratt (Plaintiff)
Local Land Board for the District of Armidale (First Defendant)
Abbott John Grills (Second Defendant)
Phillipa Maree Grills (Third Defendant)

JUDGMENT OF:
Harrison AsJ

LOWER COURT JURISDICTION:
Local Land Board for the District of Armidale

LOWER COURT FILE NUMBER(S):


LOWER COURT JUDICIAL OFFICER:
The Chairman

LOWER COURT DATE OF DECISION:
13 February 2007


COUNSEL:
J O'Connor (Plaintiff)
J Turnbull (Second & Third Defendants)

SOLICITORS:
Patterson Byfield & Bryan (Plaintiff)
Legal Services Department of Lands (First Defendant)
Moin & Associates (Second & Third Defendants)


CATCHWORDS:
MANDAMUS - Dividing fence

LEGISLATION CITED:
Dividing Fences Act 1989
Dividing Fences Act 1991

CATEGORY:
Principal judgment

CASES CITED:
Landale v Menzies [1909] HCA 48; [1909] 9 CLR 89

TEXTS CITED:


DECISION:
(1) The summons filed 29 February 2008 is dismissed.
(2) Each party is to pay their own costs.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

ADMINISTRATIVE LAW LIST

ASSOCIATE JUSTICE HARRISON

THURSDAY, 18 SEPTEMBER 2008

30019/2008 - GILLIAN WREN ERRATT v LOCAL LAND

BOARD FOR THE DISTRICT OF ARMIDALE

JUDGMENT (Mandamus - dividing fence)

1 HER HONOUR: These proceedings have had an unfortunate history. The issue relates to the location of a dividing fence between the rural farming neighbours. The dispute has occupied a large amount of court time. To date the parties adopted the approach of interpreting the court orders in a way that best suits their own interests. This type of conduct is most unsatisfactory particularly as it is the parties themselves that know the land better than anyone else and are in the best position to articulate the orders upon which they agree.

2 The plaintiff is Gillian Wren Erratt. The first defendant is Local Land Board for the District of Armidale (the Land Board). It did not play any role in these proceedings for reasons that will become apparent shortly. The second defendant is Abbott John Grills and the third defendant is his wife Phillipa Maree Grills (the Grills). For convenience I will refer to the parties by name. Mrs Erratt relies on her own affidavits dated 26 February 2008 and 5 June 2008, the affidavit of James Levingston dated 25 March 2008 and the affidavits of Noel Hoy dated 26 February 2008 and 5 June 2008. Mr Hoy is the farm manager on the Erratt property. The Grills rely on the affidavit of Abbot John Grills dated 29 May 2008 and the affidavit of Glenn Edward Fittler also dated 29 May. All deponents were cross examined.

3 Normally I would comment on the demeanour of the witnesses. As it turns out, there are no factual disputes that need to be resolved in order to decide the outcome of these proceedings, except for one, which I shall refer to later in this judgment. I have said all I want to about the behaviour of the litigants in the opening paragraph.

4 Mrs Erratt is the owner of the property known as “Araluen East” situated on the eastern side of the creek known as Tilbuster Ponds on the New England Highway at Armidale. Her property is about 200 acres. She runs a couple of hundred cattle on her property. The Grills own the adjoining property, known as “Richetta”, to the western side of the creek. It is about 20 acres. The Grills have between six to eight horses and 40 sheep on the property. They are neighbouring rural farming properties.

5 In about February 2006 a dispute arose between Mrs Erratt and the Grills as to the location of a dividing fence ('the dividing fence') that separated the two properties along Tilbuster Ponds 15 metres onto “Richetta”.

6 On 31 March 2006 the Grills made an application (the first application) to the Land Board pursuant to the Dividing Fences Act 1989 (“the Act”) for an order that fencing work be carried out along the creek. It sought the following fencing work to be carried out “Tilbuster Ponds is the boundary and we would appreciate Mrs G Erratt to fence her side of it. Lots 3 & 4 DP 565793 and Mrs Erratt’s Lot 6 of DP 717734.” In the application, it was noted that the fencing work consisted of steel posts and wire.

The earlier Supreme Court proceedings

7 Before the Land Board determined the first application, Mrs Erratt filed a summons in the Supreme Court of New South Wales seeking an interim order that the pre-existing fence line was to be re-erected; secondly, an injunction preventing the dismantling of that fence; and thirdly, a determination as to the location of the boundary between the two properties were sought. On 23 June 2006 Campbell J made the interim orders sought by Mrs Erratt. These were varied by Gzell J in September 2006.

8 On 2 December 2006, Mrs Erratt filed an amended summons seeking a declaration and orders that the fence line was located on the Grills property, 15 meters from the creek and that a fence be erected in that position. On 7 December 2006, interim consent orders were entered into including the construction of a fence with a gate by the Grills. The handwritten orders read:

“By Consent

1. The plaintiff agrees to allow the defendants to erect a fence along the topside of the western border of Tilbuster Ponds.

2. The defendants are permitted to install a gate in the existing fence and the new fence to be erected pursuant to order 1 above.”

3. The existing fence is to remain in place until the proceedings are finalized.

4. The existing fence, and the fence running along the defendants’ northern boundary are to be rebuilt in such a way that they become lamb proof.

5. The defendants are not to drive any vehicles through the new fence onto the bed of Tilbuster Ponds.

6. The defendants and their children and the defendants’ parents are the only persons permitted to use the creek (Tilbuster Ponds) for general purposes.

7. The defendants are allowed to continue using Tilbuster Ponds to water and exercise horses.

8. The gate installed in the new fence is to be locked at all times, when not in use.

9. If the defendants need to move the pump, due to lack of water in existing hole, the defendants are to notify Mr Hoy and Mr Hoy is to provide assistance to move the pump.

10. The defendants are not permitted after the erection of the new fence, to gain access to plaintiff’s property through the existing gate in the northern boundary of the defendants’ property.”

9 Both parties obtained surveys. They were then able to agree that the location of the common boundary was the middle line of the creek known as Tilbuster Ponds.

10 On 29 June 2007 terms of settlement were filed. They read:

“The parties agree to settle this matter on the following basis:

1. The parties agree that the western boundary of the portions of the plaintiff’s property comprised within original Crown Grant Vol 438 Fol 167 and Crown Grant Vol 4047 Fol 95 and now included in part Folio Identifier 6/717734 is the middle line of the creek known as Tilbuster Ponds.

2. The parties agree that the eastern boundary of the portions of the defendants’ property comprised within the original Crown Grant Vol 1616 Fol 33 and now included in Folio Identifier 3/565793 and Folio Identifier 4/565793 is the middle line of the creek known as Tilbuster Ponds.

3. The parties are to comply with the orders in paragraph 10 of the determination by the Armidale Land Board dated 13 February 2007.

4. The existing fence located adjacent to the western bank of Tilbuster Ponds is to remain in situ until 24 August 2007 or, in the event that the Land Board must make a ruling pursuant to order 10(c) of its determination dated 13 February 2007, 8 weeks from the date of that ruling or until the new fence is erected, whichever is the earlier.

5. The proceedings are dismissed.

6. Each party is to pay its own costs of the proceedings.”

11 It is necessary to refer to Order 10 of the decision of the Local Land Board dated 13 February 2007. Order 10 reads:

a) The Board makes an Order that the give and take fence be erected on the site depicted on the aerial photograph marked Exhibit 3, except that the fence is to be located on high bank of the adjoining owner’s property, and not as depicted on the aerial photograph. The fence is to be centred on the boundary between Lots 3 and 4 in DP 565793 and to enable the applicants to use 50% of the creek frontage to Lots 3 and 4. The Board takes the views that the fence should be angled across the creek to reduce the damage to the fence during flood events. The fence should also be angled at the northern end to provide practical access to the creek for the horses. A gate is to be provided in the fence for the applicants’ to gain access to other sections of the creek as provided by the Orders of the Supreme Court.

b) The fence is to consist of at least one barb wire, hinge joint and such other plain wires necessary to make it stock proof.

c) Where the fence crosses the water, the fence will consist of drop chains that are electrified.

d) Both parties are to obtain fresh written quotes within one month of this Order, from independent reputable fencing contractors for the construction of the fence.

e) If the parties are unable to agree within a further 7 days as to which quotation should be accepted then each party may within a further 7 days, send their preferred quotation to the Registrar, with a request that the Chairman make the selection. The Chairman in making that selection will not make any independent enquiries in relation to the bona fides or licence status of the proposed fencing contractors.

f) The party whose quotation is accepted/selected, is to arrange for and enter the contract with the fencing contractor, for the fencing work to be carried out, and to advise the other party of the day on which the fencing work will be carried out.

g) When the quotation has either been accepted or determined by the Chairman, the parties are then required to contribute equally to the amount stated in this quote for the work specified in paragraph (a). Both parties are to pay their contribution for the cost of the fencing work to the fencing contractor on the day of completion of that fencing work.

h) Subject to the availability of the fencing contractor, the fencing work is to be completed within two months of the acceptance of the quotation.

i) There is no order as to costs.”

12 Neither party had seen Ex 3 referred to in Order 10 (Ex E in these proceedings) at the time the earlier Supreme Court proceedings were settled. It was some time before the parties obtained a copy of the Land Board’s Ex 3.

13 By paragraph 3 of the terms of settlement, both parties agreed to comply with the orders in [10] of the determination by the Armidale Land Board dated 13 February 2007. Paragraph 10(a) states “...A gate is to be provided in the fence for the applicants’ to gain access to other sections of the creek as provided by the Orders of the Supreme Court.” Order 10(a) has not been varied or set aside. In my view, Order 10 says that a gate is to be provided in the fence.

14 Remembering that the boundary is defined as being the middle line of the creek known as Tilbuster Ponds, the type of fence was to be what is known as “a give and take fence”. The rationale for a give and take fence has been explained by Barton J in Landale v Menzies [1909] HCA 48; [1909] 9 CLR 89 at 105. If a fence was:

“placed in the creek bed, ad medium filum aquaue, the first flood would sweep most of it away. These are the conditions which in all similar cases give rise to the erection by adjoining holders of what is called a “give and take fence”. The very name imports the thing that happens, namely, an adjustment of the direction of the fence by way of compromise. Each holder gives some country and some water, and takes – that is receives – some of each from his neighbour. Thus a less tortuous line is achieved, to the great benefit of both parties in the saving of first costs and upkeep....”

15 The parties now agree that the give and take fence is to be constructed on the pink line that appears in Ex A. A copy is reproduced below. This agreement came about after the 18 April 2008 site meeting when a surveyor and the Chairman of the Lands Board pegged the fence and created this diagram.

[<img src="/scjudgments/2008nswsc.nsf/files/Erratt.jpg/$file/Erratt.jpg" alt="Exhibit A with image of agreed fence line">]

16 The pink line follows a fairly straight line from the north (the northern portion) with a flat bottomed “U” shape (also known as the middle portion) and then a straight portion known as the southern portion. The northern and southern portions are both about 70 metres in length and the U shape is about 140 metres in length.

17 On 13 February 2007 the Local Land Board, following an onsite visit, had issued a determination as to where the fence was to go. It also ordered that, if the parties were unable to agree as to who should carry out the fencing work then the Chairman of the Lands Board would make that decision. On 19 September 2007, the Chairman appointed GE & LM Fittler to do the work.

18 On 9 July 2007, Mr Fittler attended the site and prepared a quote. He considered that it was an unusual job because there were no survey pegs or other markers in place to indicate the exact location of the fence. Mr Fittler read the Land Board determination dated 13 February 2007 together with a black and white photocopy of a photograph, that outlined were the fence was to be built. Mr Fittler was told by Mr Grills that he was to quote for the U section of the fence only. After examining the photograph and the determination, Mr Fittler concluded that the position of the fence was roughly as depicted as shown in the photograph. While at the site, he observed there were existing fences along the northern and southern portions.

19 Mr Grills gave evidence that he understood that Order 10 referred only to the U portion of the proposed fence. He took this view, because he says, that the orders did not cover the northern and southern portions of the boundary. Thus, he says that he believed he was entitled to erect fences on the northern and southern portions. This view is reflected in the contents of the next letter.

20 On 17 September 2007, Mr and Mrs Grills wrote to Mrs Erratt’s solicitor in the following terms:

“1. The boundary dividing the two properties is the centreline of the Creek.

2. We have not entered onto Ms Erratt’s property, and have erected a fence on our own property.

3. The Land Board made no mention of any fence on the northern or southern end of the ‘V’ fence in the centre of the two portions. Therefore the fence we have erected has no bearing on the Land Board order.

4. We do not believe that we have done anything wrong we are just trying to finalize the fencing, so when the Land Board decide on a quote for the ‘V’ fence, in the centre of the portions, the fencing will be of a stock proof standard.”

21 On 18 December 2007, the Registrar, Central Region Land Boards wrote to the parties and stated:

“Reference is made to your correspondence dated 5 December 2007 regarding compliance with the orders of the Local Land Board which sat in Armidale on 13th February 2007. The Chairman has asked me to respond to your enquiries as follows.

A request was made by Patterson, Byfield & Bryen, solicitors for Mr & Mrs Erratt, for an inspection to be conducted of a fence that had been erected between their client’s and your client’s properties. The purpose of this inspection was to ascertain if the fence had been constructed in accordance with the Local Land Boards’ orders of 13th February 2007. A Department of Lands officer attended the Erratt’s property on 22nd November 2007 and a report was prepared for the Chairman’s consideration.

The Chairman has determined from the information provided in this report that the fence has not been constructed in accordance with the orders of the Local Land Board. Accordingly, the fence as ordered by the Board is to be constructed within 28 days of the date of this letter by the fencing contractor selected by the Chairman (GE & LM Fittler). As previously advised both parties are required to contribute equally to the amount stated in the quotation for the work specified in section (a) of the order. Both parties are to pay their contribution for the cost of the fencing work to the fencing contractor on the day of completion of that fencing work. Any costs associated with the fencing work already completed that is deemed not to be in compliance with the Board’s order are to be paid by your client.

The Chairman has also advised that the agreement as to the boundary between the properties as filed in the Supreme Court did not alter the earlier agreement as to the maintenance of the fence on the western side of the creek.”

22 Mr Grills has now conceded that the fencing he constructed on the southern and northern portions of the fence line are not in the correct position. Mr Fittler was also under the misapprehension that he had only to construct the fence in the U section and he had only quoted for this portion.

23 On 10 January 2008, Mr Fittler returned to the property to put in markers in anticipation of doing the work. He planned to commence the work the next day. That evening Mr Fittler had a conversation with Mr Grills. Mr Grills said words to the effect “If Mrs Erratt wants the fence moved within reason, I’m not worried. I’m also happy for netting to be used. We just want to get the fence up.” Later that night, Mr Fittler rang Mrs Erratt and said words to the effect “Would it be ok to meet you on your property to discuss the fencing that I had quoted on. Can I have permission to have access to your property to do the job?” Mrs Erratt said, “Yes, we’ll meet tomorrow.”

24 Between 8.10 am and 8.40 am on 11 January 2008, Mr Fittler met with Mrs Erratt and her farm manager Mr Noel Hoy. Mr Fittler showed them the markers he had placed and informed them “John and Pip are happy to move the fence within reason from where I’ve pegged if you thought there may be a problem for your stock. They’re also happy for netting which wasn’t quoted.” Mrs Erratt said, “Where the pegs are is totally wrong. If the fence is constructed there I’d have to go back to the Land Board and get the fence pulled down and get it put up in the right spot.” While Mr Hoy agreed that Mr Fittler did ask those questions, he did not agree that Mrs Erratt gave those answers.

25 As there was no agreement between the parties as to the location of the fence, he did not proceed with the job. Mr Fittler still does not wish to return to erect the fence.

26 On 11 January 2008, Mr and Mrs Grills filed a further application in the Local Board seeking “Fence from halfway between lot 3 down on Erratt property to halfway between lot 4 – as per diagram, using the rest of the new fence as the rest of the fence.” In other words, the Grills were seeking to alter the boundary to recognise the fences they had constructed on the northern and southern part of the boundary.

27 On 20 February 2008, Mr and Mrs Grills lodged a further application (the third application) to the Local Land Board seeking an order for the Land Board to determine the manner in which the fencing work between the adjoining properties as follows. “Fence both Grills and Erratt sides of the creek with flood gates at either end.”

The current relief sought

28 By summons filed 29 February 2008, the plaintiff seeks firstly, an order in the nature of mandamus or secondly and in the alternative an order pursuant to s 19(3) of the Dividing Fences Act 1991, that the first defendant arrange for a suitably qualified representative to attend the plaintiff’s property, “Araluen East” (Lot 6 of DP 717734), and the second and third defendants’ property, “Richetta” (Lots 3 and 4 of DP 56793), to identify, mark peg and record using Global Position System technology, the exact location of the diving fence as determined by the first defendant at paragraph 10(a) of the first defendant’s determination dated 13 February 2007; thirdly an order in the nature of prohibition that the first defendant be restrained from hearing and or determining the application submitted pursuant to section 12 of the Dividing Fences Act 1991 on behalf of the second and third defendants dated 20 February 2008; fourthly an order that the second and third defendants immediately dismantle any existing fence that is currently erected along, adjacent to or near the creek known as Tilbuster Ponds, being the western boundary of Araluen East and the eastern boundary of Richetta. The plaintiff further seeks orders that they be permitted to immediately erect a cattle and rabbit proof dividing fence along the entire boundary separating Araluen East and Richetta at the location determined by the first defendant in its determination dated 13 February 2007, the second and third defendants pay the plaintiff half the cost of erecting such a fence and an order that until further order of the Court, the dividing fence that is erected is to remain at that location and that the second and third defendants, their servants and or agents be restrained from dismantling the dividing fence that is to be erected by the plaintiff. Further the plaintiff seeks an order that until further order of the court, the second and third defendants, their servants and or agents be restrained from erecting any fences on the eastern side of the dividing fence that is to be erected by the plaintiff at the location determined by the first defendant in its determination dated 13 February 2007; a declaration that the plaintiff has exclusive occupation and use of all land and parts of the creek known as Tilbuster Ponds which lie on the eastern side of the dividing fence that is to be erected by the plaintiff at the location determined by the first defendant in its determination dated 13 February 2007; an order that the second and third defendant's are not to interfere with the plaintiff's exclusive occupation and use of the land and parts of the creek known as Tilbuster Ponds which lie on the eastern side of the dividing fence that is to be erected by the plaintiff at the location determined by the first defendant in its Determination dated 13 February 2007.

29 Since the filing of this summons, the Chairman of the Local Land Board at Armidale ('the Land Board') attended the plaintiffs and the second and third defendant's properties on 21 April 2008, at which time the Chairman of the Land Board and a qualified surveyor marked the location of the dividing fence that is to be erected along the common boundary between the plaintiffs and the second and third defendant's properties as determined by the Land Board in its determination dated 13 February 2007. As a result of this Mrs Erratt no longer seeks the first, second or third orders.

The events of 21 April 2008

30 On 21 April 2008, the Chairman of the Land Board attended the Grills’ property. Also present were Mrs Erratt, Mr Hoy, Mr O’Connor barrister, Mr Grill, Mrs Grill, Mr Moin the Grills’ solicitor, a surveyor, the surveyor’s assistant and a sound recordist. The Chairman together with the surveyor marked out the fence line in accordance with the Chairman’s understanding of the give and take fence as set out in his determination of 13 February 2008. During the next half hour or so the registered surveyor marked the fence line using GPS equipment.

31 At about 4.50 pm a dispute occurred over whether there should be a gate in the fence. There is conflicting evidence on this topic that has to be resolved. The evidence of Mr Grills, Mrs Grills and Mr Moin is similar. Mrs Grill’s evidence is that on site at the southern end of the U shape on the Grills side of the river, she asked the Chairman “Is this where I put the gate?”. He replied, “you can put if any where you like.” Mrs Erratt then said, “You are not putting a gate on my property” to which the Chairman replied “It’s not your land”. At this time Mrs Erratt was standing about five metres away from the Chairman on the Grills’ side of the creek. Mrs Erratt then threw herself to the ground in a “childlike” manner, thrashed about and shouted that she wanted to kill herself. She tried to pick up a piece of wood. She got up and walked off. This version of events largely accords with the evidence of the Grills and their solicitor Mr Moin who was also present at the site inspection and I accept it.

32 Mrs Erratt’s evidence is that she was present at the on site meeting on 21 April 2008 but she did not cross the creek, nor did she speak to the Chairman. She did not hear the Chairman ask Mrs Grills were she wanted the gate to go. When asked in cross examination “When the Chairman said “Put it there for the gate” you then said to him “You are not putting a gate into my property”, didn’t you.” Mrs Erratt replied “I cannot remember.” She said, “I did not have a conversation with the Chairman for the day, I talked across the creek because he was on the other side, their side, as they are speaking, and so I did not know what went on the other side of the creek.” (t 28-29). I do not accept Mrs Erratt’s version of events.

33 Mr Hoy’s evidence was that he did not witness the incident because he had left to take Mr O’Connor to the airport.

34 Mrs Grills indicated the position that she wanted the gate located as being a position where she could drive a vehicle down to the gate. The Chairman then had the location of the gate pegged out. I do not accept Mrs Erratt’s version of events.

35 It is now necessary to briefly refer to ss 14 and 19 of the Dividing Fences Act 1991.

36 They read:

“14 Orders as to fencing work

(1) A Local Court or local land board may, in respect of an application under this Act, make an order determining any one or more of the following:

(a) the boundary or line on which the fencing work is to be carried out, whether or not that boundary or line is on the common boundary of the adjoining lands,

(b) the fencing work to be carried out (including the kind of dividing fence involved),

(c) the manner in which contributions for the fencing work are to be apportioned or re-apportioned,

(d) which portion of the dividing fence is to be constructed or repaired by either owner,

(e) the time within which the fencing work is to be carried out,

(f) the amount of any compensation (in the form of an annual payment to either of the adjoining owners) in consideration of loss of occupation of any land,

(g) that, in the circumstances, no dividing fence is required in respect of all or part of the boundary of the adjoining lands.

...

(2) The occupation of land on either side of a dividing fence, as a result of an order determining that fencing work is to be carried out otherwise than on the common boundary of the adjoining lands, is not taken to be adverse possession as against the owner or to affect the title to or possession of the land, except for the purposes of this Act.

And

19 Appeals etc

(1) Any order made by a Local Court or local land board under this Act is final.

(2) However, a party to proceedings under this Act who is dissatisfied with the order of a Local Court or local land board as being erroneous in point of law, may appeal to the Supreme Court.

(3) Any person may apply to the Supreme Court for an order directing a Magistrate of a Local Court or a local land board to perform any of the functions of the Court or board under this Act (other than under section 13 (2)).”

37 The plaintiff has not appealed pursuant to s 19(2) of the Act. Therefore the decision of the Lands Board dated 13 February 2007 is final (s 19(1)). The plaintiff seeks prerogative relief.

38 The parties have entered into an agreement, which in effect deals with who is to fence along the pink line. So far as the order the plaintiff is seeking that the Grills immediately dismantle any existing fence that is currently erected along, adjacent to or near the creek known as Tilbuster Ponds, being the western boundary of Araluen East and the eastern boundary of Richetta, it has been acknowledged by both parties that the fences erected on the northern and southern portions need to remain in place until the new fence is constructed otherwise the animals on both sides can roam free. The parties are also in agreement that as soon as the new fence is erected the northern and southern portions of the existing fences will be dismantled.

39 Turning now to the rest of the relief sought by Mrs Erratt. So far as the order seeking that the first defendant be restrained from hearing and or determining the application submitted pursuant to s 12 of the Dividing Fences Act 1991 on behalf of the second and third defendants dated 20 February 2008, the Grills have stated that they are not proceeding with those applications. The plaintiff also seeks an order that she be permitted to immediately erect a cattle and rabbit proof dividing fence along the entire boundary separating Araluen East and Richetta at the location determined by the first defendant in its determination dated 13 February 2007. There is no evidence to support the need for a cattle and rabbit proof fence. In any event, that order should have been sought at the Local Land Board or Local Court.

40 So far as the plaintiff seeks orders that the second and third defendants pay the plaintiff half the cost of erecting such a fence there has never been a dispute between the parties as to payment for the fencing costs. They are to pay half each which is in accordance with s 7 of the Act. The Court will not be minded to make the orders sought in paragraphs 7 and 8 of the summons as the fence at the location determined by the first defendant in its determination dated 13 February 2008 has not yet been built. Further the plaintiff seeks an order that until further order of the court, the second and third defendants, their servants and or agents be restrained from erecting any fences on the eastern side of the dividing fence that is to be erected by the plaintiff at the location determined by the first defendant in its determination dated 13 February 2007. As I understand the situation, the Grills are not proposing to build any additional fences.

41 Next Mrs Erratt seeks a declaration that the plaintiff has exclusive occupation and use of all land and parts of the creek known as Tilbuster Ponds, which lie on the eastern side of the dividing fence. The Grills, in the application before the Land Board, stated that this section of the creek had steep banks and could not be used. Further, this was the shallowest section of the creek and had been dry for significant periods of time since they purchased the property. The Board inspected the banks and took the view that there was a section where the horses could access the creek for water. The Board was also mindful of the fact that if the bed of the creek was dry in the section of the creek allotted to the Grills, the orders of the Supreme Court would permit the Grills to use that section of the creek where the horses are exercised and provide them with water. As the fence is a give and take one it is not always placed on the common boundary. According to s 14(2) of the Act, the ownership of the land does not change. It remains as set out in the survey.

42 Lastly Mrs Erratt seeks an order that the Grills are not to interfere with the plaintiff's exclusive occupation and use of the land and parts of the creek known as Tilbuster Ponds which lie on the eastern side of the dividing fence that is to be erected by the plaintiff at the location determined by the first defendant in its Determination dated 13 February 2007. Both parties agree that the creek can dry up in parts. Mrs Erratt’s evidence is that there are large water holes lying within the U shape (that is the part of the creek that falls on the Grills’ side of the fence). Mr Grills disagrees. He says that the water that flows in the U is only about 2 feet deep. Both Mrs Erratt and the Grills agree that there are large water holes at the southern end. On the issue of access to water, Mr Grills says that the give and take fences must take into account the realities that he and his family face by living in the country and having access to water.

43 Mr Grills pumps the water from the creek to his house for the family to use for domestic purposes. There is a pipe which runs from the pump about 300 metres up to the house. The pump is connected to the main water supply for the house. He says that the creek boundary between the two properties sometimes “fouls up” and this means that water cannot be pumped from certain parts of the creek for domestic purposes. For these reasons the Grills say they need to have access to the southern end of the creek to ensure that in circumstances were the middle of the creek fouls up they have another location from which to pump water from a deep water hole. Mr Grills says that by having access to the southern section of the creek he will be able to move his pump to the position which offer his family the best supply of good water. Other than rainwater tanks and the creek they have no other water supply. Mr Grills is a horse breeder and polocrosse player and he often has horses which require veterinary care because of injuries to their legs. He says that the water at the southern section of his boundary is much deeper than any other section of the creek along his boundary and it is ideal for exercising his horses in the water for veterinary purposes. I accept that for Mr and Mrs Grills to have access to appropriate domestic water supply and to be able to properly exercise their six to eight horses they must continue to have access to the southern waterhole of the creek. In those circumstances I decline to make this order. I have already declined to make any of the earlier orders sought by Mrs Erratt. The summons filed 29 February 2008 is dismissed.

Costs

44 There were three letters exchanged between the solicitors dated 30 April 2004, 12 May 2008 and 14 May 2008 (Ex 2).

45 In the end, this matter proceeded to hearing for four reasons firstly, Mrs Erratt maintained that the Supreme Court orders meant that there was no gate to be inserted in the diving fence; secondly, Mrs Erratt wanted access to all the water in the southern end of Tilbuster Ponds; and thirdly, prior to 18 April 2008, Mr and Mrs Grills held the incorrect view that the earlier orders did not cover the southern and northern portions of the boundary but only the U portion and lastly Mr and Mrs Grills had lodged further applications to the Land Board. Both parties had misconceptions that could have been resolved if they had been diligent about obtaining a copy of the diagram (Ex 3) attached to the Land Board’s decision and if this did not make the fence line clear, they could have approached the Chairman and requested him to peg out the fence line at an earlier time. The plaintiff’s summons may have prompted the Chairman to peg out the fence line but after 18 April 2008, there was no utility in the plaintiff pursuing the other orders. She did so without any success.

46 Costs are discretionary. It is my view that the appropriate order for costs in these circumstances is that each party pay their own costs.

The Court orders

(1) The summons filed 29 February 2008 is dismissed.

(2) Each party is to pay their own costs.

**********

LAST UPDATED:
18 September 2008