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NB: This was originally attached to another similar discussion. I’ve moved it here to avoid confusion – JimmyT.
We have had an ongoing boundary fence issue within our OC.
Our adjacent neighbour and us have agreed to replace our deplidated wooden paling boundary fence.
Our neighbour wants to replace with colorbond.
Within our 6 Lot scheme (NSW) three favours colorbond and the other three favours a wooden paling fence. All UE is the same if it goes to poll voting.
Adjacent owner’s SM refuses to serve us a Fencing Notice to take us to Tribunal. She wants us to sort it out internally.
DoFT mediation failed.
Where do we go next? Tribunal? Is so under what order?
Thank you!
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If utterly dead-locked and if no objective reason to prefer one over the other, perhaps all would agree to deciding the matter by the toss of a coin?
Ha! That would require an agreement to a coin-toss.
Section 232 (1)(a) allows an NCAT adjudicator to make a ruling on a dispute related to a function of the Act.
My reading of the Act is that this would probably come under Section 111 – major renovations – because, although changing the fence is actually a minor renovation (section 110), technically it may come under major renovation rules requiring a special resolution by-law, because it affects the external appearance of the scheme.
Interestingly, if I am right, replacing the fence with like for like would be a simple process that wouldn’t require approval while changing its appearance would require a 75 percent vote.
Anyway, that gives you your avenue for an NCAT decision, but I would put money on them saying “no change” simply because the owner in favour of change doesn’t have the required votes.
There is probably also a by-law requiring owners to maintain the appearance of their lot. You could use that to drive the issue to NCAT and get a definitive result.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
I like your thinking SH!
For the deadlock in the strata scheme this could boil down to the definition of ‘maintenance’ v the definition of an ‘improvement’. Technically, the replacement of the timber paling fence with another timber paling fence would be maintenance i.e. replacing like for like. This is a relatively simple matter.
However, if colorbond was used it would be an ‘improvement’ and as such would require a special resolution rather than a simple majority. This is unlikely to be achieved given the 50/50 split in the strata up to this point in time. A timber paling fence would likely be the winner.
Now we move on to the issue with the neighbour …..
With regard to the neighbouring property deadlock, usually it is the adjoining neighbours that each pay for half of the cost of the fence replacement. Speaking from a QLD perspective (and I believe that NSW is relatively similar) if there was a deadlock with the neighbour about the type of fence it is generally the case that the dividing fence only need to be a sufficient dividing fence. If the existing fence was a timber paling fence and most fences in the neighbourhood are timber paling fences then timber paling fences would probably be deemed to be a ‘sufficient fence’.
If the neighbour wanted a colorbond fence and the colorbond fence was more expensive than the paling fence then the neighbour would be liable for the fencing work to the extent that it is greater than the standard for a paling fence i.e. the neighbour would pay a higher proportion of the cost if colorbond was used as the fencing material.
If the neighbour was agreeable to this then colorbond would probably be the winner. If arguments still exist then its off to the Tribunal ….
I hope this makes sense!
( Apologies JT – we must have been responding at the same time – most of my commentary is similar to yours.)
Can I just clarify – is it a dividing fence between two lots in the same scheme?
And if so, is it shown on the plan as a solid line or a dotted line?
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Hi Jimmy,
It is the boundary fence between two neighbouring properties.
Most of the fences in the neighbourhood are in colorbond. We are in the minority with a timber paling fence.
Our neighbour already has a colorbond boundary fence on the other side of their property.
The issue is a deadlock within our OC.
On the plan it appears as a solid thick line.
After advising the owners of their responsibility to maintain the fence, the type of fencing used in our neighbourhood, and our neighbour’s request for colorbond, the number of quotes that I have provided to them shows the same costings for both timber & colorbond (local fencing specialists prefers colorbond)….there is still no compromise.
It is very difficult to effectively managed this scheme at times. ????
If the cost for Colourbond was higher AND cost was the only issue, then a sensible compromise would be the party (your neighbour) who wants Colourbond to pay the difference.
But it sounds like cost isn’t the issue – the issue is appearance?
Your neighbour COULD – if they have the readies and the attitude for it, just build a Colourbond and pay for it all themselves and damn you all….. and then those of you who want the paling fence could build it on your side of the boundary line, to shield their eyes from the awfulness of the Colourbond.
I think your only option is to try to tip the votes in favour of the option you are after.
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