Australia, Sept. 8 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 8:

1. Mr Ross Stringer and Ms Diane Stringer ("the Appellants") seek leave to appeal against the order of the Tribunal made on 28 November 2024 dismissing their application for orders against the then adjoining owner of their land, 22 Kapital Pty Ltd t/as 22 Kapital Pty Ltd ("the Respondent") under the Dividing Fences Act 1991 ("the Act") for fencing work involving the removal of a fence that is on top of a wooden structure, part of which is a retaining wall, removal and replacement of the retaining wall, and reinstallation of the existing fence on the retaining wall.

2. The Respondent opposed that application.

3. A preliminary issue arose for determination by the Tribunal, namely, whether what was said to be a retaining wall between the parties' adjoining land, to which a Colorbond fence is attached, forms part of the "dividing fence" for the purposes of the Act.

4. That preliminary issue was dealt with in the reasons of the Tribunal published on 3 December 2024 ("the Decision"). In short, the Tribunal held that the wooden structure part of which served as a retaining wall, the subject of the dispute was not a "fence" as defined in the Act as the retaining wall was not a foundation or support necessary for the support and maintenance of the fence attached to it. Accordingly, the dispute as framed by the Appellants did not come within the scope of the Act and the Tribunal could not make any of the orders sought.

5. In the absence of a finding that there was a "dividing fence" between the parties' properties the Tribunal had no jurisdiction to make any order under the Act.

Preliminary Issue

6. This matter initially came on for appeal on 22 May 2025. We were informed and there was evidence to this effect that the Respondent is no longer the legal owner of the adjoining land, having sold that property to a third party.

7. We were concerned about the potential impact on the current owners who had not been served with the papers and may have a legitimate interest in the outcome of the appeal.

8. Accordingly, the appeal was adjourned to 4 July 2025 and the Appellants were required to serve the appeal papers on the current owners with a direction that they advise the Tribunal in the event that they sought to be heard on the hearing of the appeal.

9. The Appellants subsequently provided evidence to us that such service had been effected. The current owners did not advise the Tribunal that they wished to be heard. Accordingly, the matter proceeded on 4 July 2025 in their absence.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1987dfcb5f9c1f52bbbf838e)

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