Applications Under the Common Boundaries Act 1981

Background

The ACT Civil and Administrative Tribunal Act 2008 gives the ACT Civil and Administrative Tribunal (ACAT) the power to hear and determine applications for disputes relating to dividing fences and party walls. Before February 2009 applications under  the Common Boundaries Act 1981 were heard by the Small Claims Court.

Types of Common Boundary Applications

There are five types of dispute that can be brought to the ACAT under the Common Boundaries Act 1981. The Fence Dispute Application is used for all fence dispute applications.

1. Application for a new fence determination

An application for a new fence determination may be made to ACAT by either occupier where:

  • adjoining parcels of land are not separated by a fence, and
  • the occupier of one of the parcels has asked the occupier of the adjoining parcel, to join in building a fence between the parcels, and

either:

  • the occupier of the adjoining parcel has refused to join in building the fence, or
  • the occupiers are unable to agree about a matter relating to the construction of the fence.

Requirement to give notice

An occupier must not apply to ACAT for a new fence determination, unless the occupier has tried to resolve the dispute and talk to the other occupier. The occupier must give the other occupier a Notice to Discuss Fence. The Notice is a template that can be adapted for your circumstances.

IMPORTANT NOTICE: A copy of the Notice must be lodged with the Tribunal with any application for a new fence determination.

2. Application for a repair determination

An application for a repair determination may be made to ACAT by either occupier where:

  • adjoining parcels of land are separated by a fence; and
  • the occupier of one of the parcels of land has asked the occupier of the adjoining parcel to join in repair or replacing the fence, and

either:

  • the occupier of the adjoining parcel has refused to join in repairing or replacing the fence; or
  • the occupiers of the parcels of land are unable to agree about a matter relating to the repair or replacement of the fence.

Requirement to give notice

An occupier must not apply to ACAT for a repair determination, unless the occupier has given the other occupier a Notice to discuss fence. The Notice is a template that can be adapted for your circumstances.

IMPORTANT NOTICE: A copy of the Notice must be lodged with the Tribunal, in addition to your Fence Disupte Application.

3. Application for a repair cost determination

An occupier who repairs or replaces a fence may make an application for a repair cost determination to the ACAT where:

  • a fence between adjoining parcels of land has been damaged or destroyed; and
  • the fence needs to be repaired or replaced without delay, to protect people living in premises on one of the parcels, or to prevent the escape of animals.

4. Application for an unleased land determination

An application may be made to the ACAT for an unleased land determination where:

  • the occupier of a parcel of land has begun building a fence between the parcel and adjoining land that is not a parcel of land for this division; and
  • after the building began, the adjoining land becomes a parcel of land for the purposes of the Common Boundaries Act 1981 (see section 2A of the Common Boundaries Act 1981).

5. Application for variation of a determination

A person who was a party to an application for a determination under the Common Boundaries Act 1981 may apply to the ACAT for a variation of the determination.

Lodgement Fee

All applications are subject to a filing fee. Information about fees is available in this kit, on the ACAT website at www.acat.act.gov.au. or at the ACAT.

Do parties need to be legally represented?

A person appearing at a hearing may be represented at the hearing by a legal practitioner, a person empowered to appear on the behalf of a party by a Power of Attorney, or they may appear on their own behalf.

IMPORTANT NOTICE: Costs are rarely awarded in the ACAT and usually only in cases where one side has caused an unreasonable obstruction or delay in proceedings.

What are the options if a party is not represented but is unable to physically attend the proceedings?

Where a party is unavailable to attend a conference or hearing, arrangements may be able to be made for a teleconference. This is done by telephone hook-up. Parties should contact ACAT prior to the conference or hearing to enable appropriate  arrangements to be made.

Procedure on Receipt of an Application

When an application is lodged the Registrar will decide the best way to progress the matter. The matter may be referred for a conference or mediation or be set down for hearing before a Registrar or Tribunal member. Written notice of the process  adopted will be sent to each party as soon as possible after lodgement. The notice will also include the date and time and location set for the conference or hearing. A full copy of the application will be sent to both parties.

Conference

In appropriate cases, the Registrar may conduct a pre-hearing conference. The purpose of the conference is to:

  • define and limit the relevant issues in dispute;
  • ensure that the parties have used all their endeavours to resolve the dispute;
  • actively assist the parties to resolve the dispute; and
  • assess the time likely to be required for any hearing.

If an agreement between is reached at the conference, the terms of the agreement can be lodged with ACAT. If the matter is not resolved at the conference, the Registrar will refer it to an ACAT member for consideration in a hearing.

Hearings

Applications are listed for hearing depending on the issues in dispute. Parties will receive written notice advising the date, time and location of the hearing.

At a hearing the parties will be asked for any further information or evidence to that already presented in the application or response. Except in exceptional circumstances the Tribunal will proceed to hear and determine the matter there and then.

What happens if a party fails to attend a conference or hearing?

If a party to the dispute fails to attend a conference or hearing ACAT may:

  • order that the matter be again set down for hearing;
  • take other steps that it considers appropriate;
  • adjourn the proceedings;
  • if the party is the applicant - dismiss the application;
  • if the party is the respondent - make orders in favour of the applicant.

If both parties fail to appear, the ACAT may dismiss the application.

Enforcement of a Judgment Made by ACAT under the Common Boundaries Act 1981

Section 71 of the ACT Civil and Administrative Tribunal Act 2008 says that a money order or non-money order made by ACAT is taken as if it has been filed in the Magistrates Court for enforcement on the day the order is made. Enforcement actions must  be taken in the Magistrates Court and not in the ACAT.

What parties can expect from staff of the ACAT

ACAT must facilitate dispute resolution which is quick, simple, inexpensive and which accords with the law.

ACAT staff are unable to offer legal advice or inform parties of their legal rights and obligations. If a party requires legal assistance or advice staff of the ACAT may refer parties to relevant services.

Confidentiality

ACAT hearings are open to the public unless, for exceptional reasons, the ACAT is of the opinion that the proceedings should be closed. The staff however, are unable to provide information concerning applications unless the requesting person is a  party to the proceedings.

What we would like from you

To assist the ACAT to deal with matters in a timely, cost effective and efficient manner; please remember to:

  • ensure that your application is completed in full, including a copy of any notice served on the other occupier;
  • advise staff of times and dates that you may not be available for any conference process or hearing;
  • if you are defending an application, provide a written statement addressing all the issues mentioned in the application at least 5 days before the hearing and ensure that any other documents you wish to rely on are accompany your response.

Contacts

Further information on ACAT can be obtained by contacting:

ACT Civil and Administrative Tribunal
ACT Health Building
Level 4, 1 Moore Street
Canberra City ACT 2601

GPO Box 370, Canberra City, 2601

Telephone: (02) 6207-1740

Facsimile: (02) 6205-4855

Website: www.acat.act.gov.au

Email: tribunal@act.gov.au