The_Fence_Part

Moved into 22a Albion Street November 1982 and were welcomed by a number of our new neighbours. They were all very friendly with bottles of champagne from some and good wishes and small gifts from others.
In the early days got to know Jack and Roselea at #22 and had initial discussions about the title with respect to the RoC easement and the provisions in the title for fencing along the common boundary of the battle-axe handle (South Eastern corner of #22 block of land). Jack was a keen gardener and asked if we would be happy to leave the driveway unfenced such that he could more easily tend to his lemon trees, vegie patch and flower garden. We readily agreed as it was early days since we moved in and we were happy to leave the status quo and wait and see how things worked out.
It was not clear how access was achieved to the rear garden of #22 post tennis court and pre the provision of the driveway to #22a that was built in line with the requirements of the subdivision. The subdivision plans show a steep gradient, falling away North to South, with a sizeable gum tree at a point approximately in the centre of the current driveway just to the south of the original house (see title plans).
The original subdivision plans submitted to council allowed for fencing along the entire length of the battle-axe handle on both sides with a restriction imposed on the type of fencing permitted closest to the street to be in line with the style of fence appropriate to the area. At the last moment, just prior to registration of the subdivision, a request was made to council to alter the fencing provisions to allow #22 the use of their existing driveway to access the garage under the South East corner of the original house (refer letter to council requesting changes to access provisions). This was bought about due to the fact that insufficient width was left in the remaining land allocated to #22, post subdivision, to allow vehicular entry without encroaching on #22a access handle. In this way the title for #22a had a limitation imposed to restrict the placement of any fence along the common boundary of the battle-axe handle closer than 16m from Albion Street. (16m is the point just past the Southern wall of #22 and roughly the point where the retaining wall falls sharply away to the South). The present and future occupiers of #22 could therefore still make full use of their driveway and gain access to their garage. Provision was also included in the subdivision deposited plans to allow certain use of the Southern section of the Right of carriage way to permit the owners of lot 21 to access the garage under the SE corner of the original house by means of driving from Albion Street in a forward direction in order to park. Subsequent exit from the garage was by means of reversing out of the garage, and reversing further down Lot 22 (22a) access handle (greater than 16m from Albion Street) prior to driving forward out to Albion Street. It was clear at that time that the fact the restriction to user clause allows for a fence to be erected along this Southern section of the handle that this was the intended use. An argument was put forward in 2010 that the intention of the easement was to allow vehicular access into the rear of Lot 21 but this would be in contradiction with the restriction to user clause and clearly doesn't make sense. How could access be achieved when a fence is constructed in this area according to the restriction to user clause?
At the time that the agreement was reached in the early eighties, the planning laws would have prohibited further development of #22 and in any case the terrain prevented vehicular access except to the very Southmost limit of the plot. With reference to this point about the terrain it is worth noting that court rulings relating to easements and Right of Carriageways conclude …use of an easement cannot be extended, beyond the scope of the grant, to impose a burden greater than that which the servient owner [that is, the owner of the burdened land] agreed to accept. Reference (Harris v Flower) - http://www.stewartau.com/PUBLIC/multimedia/EasementsCovenantsCLESeminarPaper.pdf. See also Westfield V Perpetual trustee

As time went on and friendships developed the need for a fence and the resultant privacy was far from our thoughts. After Jack passed away thoughts went back to the issue of privacy and the first post was erected in our front garden to the East, approximately 2 meters in from the existing fence. See photo

Started to put money aside to re-locate the water meter and concrete the remaining driveway section at the top (North East section) of the drive. The work involving re-locating the driveway lights, digging up the flower bed and other landscaping tasks were left to yours truly. Even a chance to do my own concreting - I get to control the concrete mixer shute!!!!

What a shock when we received the letter from council regarding the intended development, by our new neighbour Monica Thom, of the rear of #22. No prior discussion to ask how it might impact us or what future plans we might have. How would our retirement dreams for the future layout of our front yard be taken into account if this proposed development took place? How upsetting especially noting the following situation. We were gathered at a BBQ (25th Jan) on the Australia day long weekend a few days before the DA went to council (2nd Feb) at the house of our neighbour to the SE. At that BBQ, I was enthusiastically prattling on about the impending installation of our roof mounted solar panels following the receipt of the applicable government grant in the 6th October 2009 (Ref AGO255105 ). I recall our neighbours to the South, who were long time friends with Monica’s brother, asked in front of us if Monica had any plans for alterations / extensions. Monica for some reason chose not to discuss the issue. In hindsight we realise that our neighbours to the South (friends of Monica’s brother) must have known what was about to happen, with the imminent submission of the DA, and wanted to give us an opportunity to discuss the impact on our house and garden (Yes Solar access is IMPORTANT for solar panels and a passive solar house). Imagine all this at a time when my mother had just passed away in the UK and we were making plans to return to the UK to pay our respects. At least we received a lot of support from the neighbours at the Australia day BBQ. How hard for us to have to deal with the DA, with its huge impact on our house and our way of life, while our thoughts were obviously with the family in the UK.
On our return from the UK, Robyn and I went to talk with Monica about her approved plans. Our recollection of the discussion was that received lots of re-assurance, she told us that she may never go ahead, or she might sell and in any case she didn't intend to do anything until August / September. We talked about the significant shadow impact and recall Monica advised it was never her intention to take away sunlight. Talked with Monica about the possibilities of changing the roof line to minimize shadowing impact. Recall that Monica said she would talk with Jeremy. I later asked her about both drainage concerns (she said she would consider improving the easement capacity) and driveway access (I recall she stated she had no need for additional access). Suggested Monica talked to owners at #20 to gauge their opinion on the impending loss of view - said to Monica it would be a good idea if she asked if she could take a look from the next door deck to see the possible impact for herself. As the weeks and months passed it became apparent that the extension was going ahead no matter what. Detailed design drawings up on council web site, survey and mark outs on site. Started to realise that we were left with no option but to erect the fence. How could we justify the clause in the title regarding the fence after the extension was built and the access from our driveway was changed by means of the major earthworks and topographical transformation!!!
My understanding is that "No alteration can be made in the use or purpose of the easement that goes beyond that contemplated by the parties at the time of the grant; see generally the 1994 judgment of the High Court of Australia Gallagher v Rainbow and in particular the judgment of McHugh J Westfield / perpetual". Reference http://www.fig.net/pub/fig2012/papers/ts02j/TS02J_rendel_5711.pdf
See video of initial fence cutting and our subsequent letter to Monicas first solicitor

I have a copy of the survey report that my neigbour commisioned which clearly states "the erection of the recent timber paling fence"... "in accordance with the restriction as to user".

How is it acceptable after having this survey report completed to ask a solicitor to write a letter alleging that the fence was not installed correctly along the boundary. Wouldn't this be an offence in it's own right? Surely the surveyors report is the only document with legal standing. A personal opinion surely has no weight in law. I could say in my opinion some of the other fences are to far over on our property and ask a solicitor to write a similar letter.

We of course asked the solicitor to provide evidence that the fence was not located correctly. (Please would you supply a copy of your surveyors report such that I may fully understand the issue in question) The video shows how our neighbour responded.

Just to clarify the reference to the restriction as to user clause as noted above by the surveyor. This clause came about because Hornsby council under direction from R. K. Woodward, the shire clerk, imposed the following restriction on the subdivided land (now our property)-

"A restriction being imposed to ensure that any fence erected along common boundary of front lot and access corridor to rear lot is of park rail type for at least 10m from the road." In other words we could fence along the entire length of the boundary so long as the first part was post and rail.

However when the original owners of #22 (the house where our new neighbour now lives) relealized that they would not be readily able to access their existing garage the clause was reworded to prevent any fencing in the section closest to the street. This is why the fence shown in the video does not extend right up to the street. We complied with the restrictive clause as confirmed by the surveyor. So by trying to be a good citizen and being willing to accommodate the original neighbours request we opened up this unfolding can of worms.

Again I have to say how shocked I am that this was done by someone who I am reliably informed, was a Catholic nun and subsequently a senior teacher (Department head) at a reputable & well respected Sydney catholic college.

Just wanted to follow up on my original comments in light of a disturbing turn of events that occurred over the last few weeks.

Now that our new grandchild is living with us and now that we look after our other 2 grandchildren at our house rather than us travelling to their place, we wanted to ensure that we maintain ongoing driveway safety. To that end in November 2019 we wrote to our neighbour (She won't talk to us so we drop notes in her letterbox) asking if she would please be diligent with respect to driveway safety. We asked if she could please ensure entry and exit speeds were kept to a minimum. Also that the envelope specified for the extents of the right of carriageway easement (The footprint of the old driveway) as defined in HER survey report as provided by HER solicitor were respected (In the past she has allegedly taken little notice of such requirements). This would allow us to at least assume that we had a clear pedestrian entry / exit from our house to the street without fear of meeting vehicles coming or going.

We were therefore totally surprised when in early February we found heavy earthmoving vehicles blocking our driveway access. On talking to the contractors in question we soon learnt that they were there to concrete the rear garden of our neighbour’s house. They said they were unaware that the driveway was our property as no-one had informed them that this was the case. We had previously written to our neighbour, at the time when she built her massive extension with extra garage for her second car, requesting that she not direct large and heavy vehicles down our driveway. Our concrete drive is now 40 years old and not suitable for use as a construction site access point. We are retirees with limited financial resources to pay for any major rework required as a result of damage by contractor’s heavy trucks. We always request mini tippers or lightweight commercial vehicles if we are engaging contractors to perform work at our house via our driveway. I don't understand why our neighbour would not afford us the same courtesy. Just because she doesn't own the concrete slabs or doesn't have to pay for their maintenance doesn't relieve her of the responsibility. Surely not too much to ask that she shows respect with reference to our property.

So now as we leave our house we enter a huge area of wall to wall concrete which now resembles a car yard forecourt. This is a big concern for our grandchildren with respect to their safety.

Having worked with a colleague who lost his toddler in a fatal residential driveway incident I am extremely aware of the dangers faced by young children in and around driveways.

To put my concerns into context, I recall in 2016 when I was performing remedial work on the pavers that cover our services trench (power gas telecom) down the East side of the driveway. I had set up tools and wheelbarrow with sand and as I was working, our new neighbour came careering out of her second garage and rammed into my wheelbarrow. She was driving a car with reversing camera and reversing sensors and so should have been totally aware of the obstacles in her path. All I could think of was that if my grandson had been helping me and had been playing with the sand in the wheelbarrow that would have surely been a catastrophic outcome. I have a CCTV video record of the event. Surely asking a neighbour to respect driveway safety, especially noting that our neighbour was a catholic school teacher responsible for student safety, is a fair request. As such, making such a change without discussing the implications or a strategy to maintain our grandchildren’s safety beggars belief.

Lastly in terms Stormwater management we have a problem due to the terrain where, being on a hill, large volumes of stormwater come down the drive and have to either be absorbed or run off to the properties below us. So now we have moved from a situation where the original back garden was grass which readily soaked up large quantities of stormwater. Now with a concrete back garden there is a massive impervious / hard surface area which prevents rain from soaking into the ground. Most of this stormwater is now fed into a drainage easement down the West side of our garden which then discharges into the front yard of our neighbour below. All this in Hornsby "THE BUSHLAND SHIRE"