7.1 As stated in Chapter 1 of this Discussion Paper, fundamental to each of the issues dealt with in Chapters 2-6 is the general question of how to resolve disputes which arise between neighbours.

THE NATURE OF DISPUTES BETWEEN NEIGHBOURS

7.2 What distinguishes disputes between neighbours from many disputes which come before the courts is that in neighbour disputes the parties are in an ongoing relationship. Commercial or negligence actions for example, will often arise out of a one-off encounter between the two parties concerned. However, the relationship between disputing neighbours will usually be continuous and more broadly based.

7.3 By definition, neighbours live in immediate proximity to each other and are generally forced into frequent interaction. There will often be a personal element in disputes between them. Just as the relationship is ongoing, so the dispute which comes to court is commonly part of an ongoing conflict or is a reflection of the relationship between the neighbours. Thus, a dispute which ends up in court is often simply a by-product or symptom of a more wide-reaching problem in the relationship. Disputes about personalities, interests, manners, lifestyles and values are transformed into disputes about issues which are recognised at law when legal action is taken.

7.4 The reality of this situation is borne out by the experience of those involved in the area of community relations. With respect to dividing fences, Community Justice Centres have noted that “in many of the ‘fence’ disputes, the fence was a convenient way of punishing the other party for earlier real, or imagined wrongs.”¹ Similarly, the New Zealand Property Law and Equity Reform Committee in its report on fencing legislation notes the existence of a problem with “spite” fences.²

EXISTING OPTIONS FOR RESOLUTION OF NEIGHBOURHOOD DISPUTES

7.5 Dispute resolution mechanisms may be generally divided into court-based and non-court-based systems. The non-court-based systems are comprised of many different types of agencies.

Non Court-Based Dispute Resolution

Police and Councils

7.6 The first point of complaint in the case of most neighbourhood disputes, especially about noise, is the police and sometimes the local council. Generally, local councils deal with noise in residential areas in daytime hours and the police deal with evening noise. The State Pollution Control Commission also has the power to issue Noise Abatement Orders to residential occupiers but generally its main task in regard to the Noise Control Act is to regulate industrial noise. Pursuant to recent amendments made by the Environmental Offences and Penalties (Amendment) Act 1990, the police, officers of local councils and other authorised officers are empowered to issue on-the-spot penalty notices to offenders. Although section 40 of the Noise Control Act empowers local councils to serve a Noise Control Notice on an occupier in respect of offensive noise, it is understood that the current practice of local councils is not to take this course of action unless at least three or four complaints about a particular situation are made.

7.7 Although the police and local councils do have some powers in relation to the noise problems and are often contacted in relation to other neighbourhood disputes, they have more of a policing role than a dispute settlement role. However they do act as an active referral source for Community Justice Centres, as do Chamber Magistrates and legal aid providers.³

Community Justice Centres

7.8 The next step on the ladder of the resolution process through non-court-based means is often the Community Justice Centres. These Centres were established by the New South Wales Government in 1980 to provide for the resolution through mediation of minor civil and criminal disputes shown by experience to be unresponsive to conventional legal remedies.

7.9 In essence, mediation involves a third party who intervenes in a dispute to assist the parties to negotiate towards reaching an agreement. Both parties must agree to the intervention of a mediator, who can be appointed by an authority or approached by the parties.⁴

7.10 In the second reading speech on the Community Justice Centres (Pilot Project) Bill 1980 the Hon Frank Walker, QC then Attorney General and Minister for Justice, said:

The key to the concept of Community Justice Centres is mediation .... The mediation services offered by a Community Justice Centre will be available to anyone who seeks to avoid the expense and frustration of court proceedings, or who is simply searching for a way to resolve a dispute, even of an inter-family nature, without suffering the embarrassment of confiding in friends, relatives, or the impersonal countenance of the legal profession.⁵

In the Upper House the Hon Paul Landa said:

The types of disputes which may be dealt with by mediation are virtually limitless, the only necessary criterion being that the disputing parties must have or have had, an ongoing relationship.⁶

7.11 Both speakers identified neighbourhood problems as those most suitable for mediation, because they involve people who must continue to live in close proximity and people who were usually engaged in what was a minor dispute where the “cost and emotional upset” of dealing with the matter in court were “entirely disproportionate to the results achieved in court”.⁷ As predicted, the majority of matters dealt with by Community Justice Centres have been disputes between neighbours. The latest Annual Report of 1989/90 states that “neighbours continue to be represented most frequently in the case load at 57.6%.” In 1988/89 neighbour disputes comprised 61.6% and in 1987/88 67.5% of the total case load.⁸

7.12 The types of mediation services available range from highly specialised services, conducted as part of a court system, to quite unstructured groups based in the community. The aims of the different services also vary from achieving peace to achieving understanding or communication or co-operation or the recognition of differences - to that of encouraging the parties to take responsibility for their own actions.

7.13 However, the 1989/90 Annual Report provides that where a mediation session was held, agreement was reached in 84.6% of sessions.

7.14 Although mediation at a Community Justice Centre offers an inexpensive and speedy means of resolving neighbourhood disputes, there is no guarantee that the dispute in question will not continue or re - emerge since there is no provision to enforce any agreement reached.⁹ While some may regard this as a major drawback, the Community Justice Centres claim that any move to make an agreement legally enforceable would undermine the essential empowering function of mediation and inadvertently create more work for an already overworked justice system.

7.15 Despite the fact that court action often means a time consuming, expensive and sometimes enervating experience with no guarantee of effective resolution of the dispute, some people do resort to court-based dispute resolution with or without prior unsuccessful attempts at mediation.

7.16 The Attorney-General’s Department also offers some basic legal assistance through its Chamber Magistrate service. Chamber Magistrates and clerks of local courts are court officials with legal training who provide general legal assistance. Where mediation breaks down at a Community Justice Centre, the parties are often referred to a Chamber Magistrate.

Court-based Dispute Resolution

7.17 The courts most commonly used for the resolution of neighbour disputes are the Supreme Court, the District Court and the Local Court.

7.18 The Supreme Court is rarely the most appropriate forum for the resolution of neighbourhood disputes, however, even where such disputes qualify to be heard, in view of the cost and delay factors. For instance, if a problem is caused by trees and an action for nuisance does lie, the cost of seeking equitable remedies in the Supreme Court would often be prohibitive.

7.19 The District and Local Courts have the power to deal with civil and criminal matters but have limitations on their jurisdiction. In civil cases Local Courts are limited to hearing disputes in which the claim for damages is not in excess of $10,000, while the District Court limitation is $100,000. The vast majority of disputes come before the Local Courts but even in this court the process may become lengthy and costly. For instance, should a complainant decide to use section 52 of the Noise Control Act and take a matter to the Local Court, a summons will issue to the allegedly noisy neighbour requiring attendance in court to answer the allegations. Should the neighbour seek to defend the allegations the matter will be set down for hearing. The intention of section 52 was to provide an inexpensive method of determining disputes over noise. The two parties would appear before the court and outline details of the dispute with the court making an appropriate determination. However, parties pursuing this section can retain legal counsel and in some instances call acoustic experts to give evidence regarding the noise, which will naturally result in increased costs and delay. A survey by the State Pollution Control Commission in 1985 found that few people tend to use section 52 to take their matters to court, largely due to the anticipated expense of conducting such litigation.

7.20 The Local Courts could, however, become a more suitable forum for the resolution of neighbour disputes when the Local Courts (Civil Claims) Amendment Act 1990 commences later this year. The main aim of this Act is to make special provision for small claims. Introducing the Bill in Parliament the Attorney General the Hon John Dowd QC, MP, said:

This bill is designed to establish in the Local Courts a Small Claims Division which can provide litigants in small civil actions with a fast, cheap, informal, but final resolution of their disputes. The basic principle in the argument for Small Claims Courts is that the full rigours of the adversarial system are neither necessary nor appropriate for small civil actions, and the system is far too expensive in the light of the amounts in issue.¹⁰

The amending Act divides each Local Court, when exercising civil jurisdiction, into a General Division and a Small Claims Division and confers jurisdiction on the latter to determine civil actions in which the amount claimed does not exceed $3,000.

7.21 A court sitting in a Small Claims Division is to be constituted by an Assessor or by a Magistrate sitting alone. Assessors will be recruited from the local profession much like arbitrators. Section 23A of the Local Courts (Civil Claims) Act 1970 (as amended) requires the Assessor or Magistrate to attempt conciliation in the first instance. Section 23B provides that proceedings “are to be conducted with as little formality and technicality as the proper consideration of the matter permits” and the rules of evidence are specifically excluded. No appeal lies except for lack of jurisdiction or denial of natural justice. The thrust of the provisions in the Act is towards assisting and encouraging the litigant in person although lawyers are not excluded from the Small Claims Division.

7.22 An action for $3,000 or less will be in the Small Claims Division from its commencement, unless and until the Court otherwise orders. The criterion likely to be adopted is, unless the Court is of the opinion that the issues likely to arise in the action are so complex or difficult as to law and fact, or that the action is otherwise of such unusual importance, that the action should not be heard and determined in the Small Claims Division.

7.23 Although the Supreme Court, District Court and Local Court provide the majority of the state’s dispute resolution services to the community, there are other courts which have specialised powers to handle certain types of disputes. The Land and Environment Court is one such court which has powers to make determinations in disputes concerning building and development applications, land valuations and environmental matters and this court could perhaps be put to more use in the area of neighbourhood dispute resolution, particularly in relation to trees.¹¹

OPTIONS FOR OTHER DISPUTE RESOLUTION MECHANISMS

7.24 One option is that a completely new tribunal be set up to resolve disputes between neighbours. Such a body could operate using both mediation and, failing that, adjudication. A new tribunal would have the advantage that techniques sensitive to the particular needs of inter-neighbour disputes could be developed and implemented. Since the jurisdiction of the tribunal would be limited to neighbourhood disputes and (approaching the CJC in the first instance could be made a pre-condition), the delays associated with other courts will not necessarily cause a problem.

7.25 On the other hand, a number of disadvantages would exist. One major obstacle is that there would have to be a large number of disputes in order to justify the creation of such a new body. A further problem is that it is unlikely that such a new body would have sole jurisdiction over neighbourhood disputes, since not all areas of New South Wales could be serviced. It is likely that a tribunal dealing with disputes between neighbours would not be able to give extensive coverage outside Sydney. It can also be argued that adding another tier to the judicial system may create more problems than it solves. Setting up a new Neighbour Tribunal is therefore not one of the preferred options of the Commission.

7.26 A second option is that the jurisdiction to resolve disputes between neighbours could be given to an existing tribunal. In this regard, a viable body would appear to be the Land and Environment Court, which already has an expertise in planning matters. Thus, for instance, if consideration is given to the regulation of tree planting in line with the controls that apply in respect of buildings under the Local Government Act 1919 as suggested in Chapter 3, the Land and Environment Court could deal with the disputes arising out of the contraventions of such legislative controls with ease.

7.27 Quite apart from its experience in dealing with planning matters, the mechanism already exists in the Land and Environment Court to call expert witnesses to clarify difficult technical considerations.

7.28 However, adding such matters to the workload of the Land and Environment Court could cause delays within the system and would not alleviate the problem of the expense associated with court-based dispute resolution.

7.29 A third option is that rather than having one tribunal offering both mediation and adjudication, (as is proposed for the Local Courts -Small Claims Division) these functions could be separated. This is the system that exists at present in which the Community Justice Centres offer mediation services and the courts adjudicate disputes.

7.30 While Chamber Magistrates, solicitors and courts could refer neighbour disputes to Community Justice Centres more actively, it is in the area of adjudication that improvements are most necessary. Consequently, rather than create additional dispute resolution mechanisms, it may be worth reviewing the existing structures to make them more cost effective and efficient.

COURT-BASED OR NON-COURT-BASED DISPUTE RESOLUTION FOR NEIGHBOUR DISPUTES?

7.31 There are two alternative bases for determining whether neighbour disputes would be better resolved through court-based or non-court based dispute resolution. One option is to consider the type of dispute, that is, whether the legal issues that arise are better resolved by means of a binding court order. Alternatively, if the parties are amenable to mediation the use of non-court-based dispute resolution mechanisms in the first instance may be advocated, irrespective of the type of dispute or cause of action.

7.32 Type of dispute as determining factor. The nature of disputes between neighbours is such that in many cases the conventional court system may not be able to provide an effective solution. A court may only concern itself with the specific dispute before it and may often ignore any background conflict of which the litigated dispute is a symptom. The adversarial nature of litigation and the winner/loser solutions which courts impose may serve to exacerbate disputes of a personal nature.¹²

7.33 It must be emphasised that the fact that the conventional court system may not be able to deal effectively with many disputes between neighbours does not mean that adjudication is always inappropriate. Many disputes will be purely legal or commercial in nature and will not reflect an ongoing conflict. Further, mechanisms such as mediation will not always be successful and it may often be necessary to fall back on adjudication in order to provide a final, binding resolution to a dispute.

7.34 Consequently, there is need for a flexible approach to neighbour and neighbour disputes. While many disputes may require background issues to be addressed through informal mediation and conciliation processes, some may well be resolved more quickly and effectively by adjudication. This point is appreciated by those most closely involved in the area of mediation. Wendy Faulkes, Director of the Community Justice Centres has written that “clearly, mediation will not work in all cases and some adjudication or arbitration process is needed.”¹³

7.35 The challenge therefore is not merely to provide community mediation facilities, but to identify with some degree of accuracy, those cases which are in fact appropriate for resolution in this manner and those which will more appropriately be resolved by courts or other enforcement agencies.

7.36 Type of parties as determining factor. An alternative basis for determining whether court or non-court based dispute resolution is more appropriate in the particular situation could depend on the type of parties to the dispute. If the dispute concerns access issues that may well be dealt with by a court but may also be capable of resolution by mediation and the parties are amenable to the latter then that could be the deciding factor. Opting to have the dispute resolved by mediation does not mean sacrificing one’s legal rights. Recourse to courts will not be precluded at any stage. On the contrary, if mediation is successful the dispute will be resolved more expeditiosly, cost effectively and often more satisfactorily.

7.37 In the recent case of Hemmes Hermitage Pty Ltd v Abdurahman¹⁴ Kirby P commented:

This case is a good illustration of the need for a mediation procedure to help parties to a reasonable solution to a neighbouring dispute before they become locked into the rigidities of litigation with its attendant risks, costs and inconvenience. Each of the parties to this case could appeal to important but competing principles of law. Each could appeal, as well, to the unreasonableness of the case for the opponent as perceived by them... but it would be no misfortune, if, associated with the court’s procedures, facilities were available to add the authority of the court to attempted consensual resolution, at least for cases between persons such as family or neighbours who must continue to live in relation with one another.

This is the preferred option of the Commission. If the parties are amenable to mediation, non-court-based dispute resolution through the Community Justice Centres should be attempted.

SUITABLE FORUMS FOR THE RESOLUTION OF THE NEIGHBOURHOOD DISPUTES

Noise

7.38 As with trees, the problem of noise may be more appropriately resolved through Community Justice Centres than through the courts as it is possible that the right of a legal challenge could further sour neighbour relations.

7.39 One of the main benefits of seeking resolution through Community Justice Centres is that the mediation process helps to preserve the ongoing relationship. There could, however, be instances where the disputing parties have no ongoing relationship. For instance, the temporary housesitter who is very noisy or the stranger who parks his car with a faulty alarm in the street for the day, would have no ongoing relationship with the aggrieved residents of the neighbourhood. While it is not suggested that such disputes should be rushed into court, they may not be the typical disputes suitable for resolution by the Community Justice Centres.

7.40 If Community Justice Centres are not able to resolve the dispute, judicial relief can be sought in the Local Court, the Land and Environment Court or the proposed Neighbour Tribunal. In this case, procedures presently in place under the Noise Control Act may be adequate.¹⁵

Trees

7.41 As has been pointed out, the cost of taking an action for nuisance in respect of problems associated with trees in the Supreme Court is often prohibitive.

7.42 Consideration could be given to investing the Local Courts or a new Neighbour Tribunal with discretionary powers to make orders concerning disputes between neighbours over trees. One option to achieve this would be to give the nominated courts powers similar to those contained in the Noise Control Act 1975. Section 75 of that Act provides that where a Local Court is satisfied that a noise amounting to a nuisance exists and is likely to continue, it can make orders directing the person responsible to abate the nuisance and/or prevent its recurrence. The Act provides for a right of appeal from an order of a Local Court to the Land and Environment Court.¹⁶

7.43 If consideration is given to the regulation of tree planting in line with the controls that apply in respect of buildings under the Local Government Act 1919, the Land and Environment Court could be given jurisdiction to deal with disputes arising out of contraventions of such legislative controls. This will merely be an extension of its existing jurisdiction in respect of building and development applications.

7.44 Problems associated with trees may often be satisfactorily resolved by Community Justice Centres without recourse to the courts. Most often in these disputes there is a continuing relationship between the parties and there is a balance of negotiating power. According to the 1989/90 Annual Report of the Community Justice Centres, disputes over trees, shrubs and plants is one of the more common categories of complaints. No doubt it will be easier for Community Justice Centres to help resolve differences if the proposals for reform suggested in Chapter Three are implemented as the new remedies provided will offer a better basis for the resolution process. In any event, if the legal issues are only peripheral to the main dispute, the Community Justice Centres would be the more appropriate forum.

Access and Joint Services

7.45 It was suggested in Chapter Four that the United Kingdom Law Commission’s recommendation in relation to access and in Chapter Six that a similar provision to section 180 of the Queensland Property Law Act in relation to joint services should be implemented in New South Wales. This requires the existence of an enforceable court order. Questions of law will also need detailed consideration before the dispute can be resolved. The United Kingdom Law Commission stressed the need for speed, economical cost and accessibility as well as the availability of comprehensive machinery for enforcing the orders and, on balance, concluded that their County Court was best equipped to meet the identified needs. The forum for an application under section 180 of the Queensland Property Law Act is the Supreme Court. It is questionable whether the same forum should be adopted in New South Wales, in view of the cost and delays referred to earlier.

7.46 Although the UK Law Commission proposed the use of the County Court which is equivalent to the District Court in New South Wales, and the Supreme Court is used in Queensland, use of the Local Courts or the Land and Environment Court may be better in New South Wales. Alternatively, a new Neighbour Tribunal could be created, for this purpose.

7.47 There is an argument that if complex legal issues are required to be considered, or if nothing short of a court order would resolve the problem, then mediation through the Community Justice Centres may not be the appropriate forum in those types of disputes.

7.48 However, in the recent case of Hemmes Hermitage Pty Ltd v Abdurahman¹⁷ which was heard in the Supreme Court and which involved consideration of real property issues such as registered title, right of footway and easements, Kirby P, suggested the need for mediation irrespective of the cause of action and type of dispute.¹⁸

CONCLUSION

7.49 There is a need for a flexible, quick, inexpensive and appropriate set of resolution procedures than those that exist at the present time. The Commission favours the option of an attempt at mediation through Community Justice Centres in the first instance before proceeding (in the event of failure to mediate) to use the court based dispute resolution process. Whether mediation is to be employed in the first instance irrespective of the type of dispute or whether the type of dispute will determine the forum in which the dispute will be resolved is still an unanswered question. However, the main objective to be borne in mind is that mediation and the legal process must be employed to achieve what the people in dispute mostly want - an opportunity to enjoy their home and their neighbourhood in peace with others with the least inconvenience.

QUESTIONS FOR DISCUSSION

Dispute Resolution in Access Disputes

• What is the most appropriate forum for dispute resolution in access disputes?

  - Supreme Court

  - Land and Environment Court

  - District Court

  - Local Court

  - Proposed Neighbour Tribunal

  - Other forum: please specify

• Should the procedure commence by the issue of a notice requesting access and if no access is agreed upon should the matters then proceed to a Tribunal?
• If no response is received to a notice should access be exercised without requiring further notice? If not, what alternatives do you suggest?
• Should the court have a discretion to award costs against one of the parties?
• How should the right to access be enforced?
• Should either party have the power to apply for an injunction to stop the work or to enforce the conditions?
• If the application for access can be sought and granted by the Local Court, should the parties be able to apply for an injunction from the Local Court rather than the Supreme Court?

Joint Services

• Should the Supreme Court in New South Wales have jurisdiction to create the right of user similar to the statutory right of user defined in s180 of the Property Law Act 1974 (Qld) and s84J of the Law of Property Act 1984 (Tas)?
• Should the Land and Environment Court have jurisdiction in this area?
• If so, should it be an alternative to Supreme Court jurisdiction?
• Should a Tribunal other than those suggested deal with such applications?

Apportionment of costs for Joint services

• Should the issue of apportionment of costs for repairs, maintenance or establishment of a joint service, be dealt with in the Supreme, District or Local Court or some other Tribunal?

Trees

• Problems with trees are normally only actionable when they cause a nuisance. Legal action is limited to damages, or in some cases injunctions. The Supreme Court has exclusive jurisdiction in this area. Is the Supreme Court an appropriate forum for neighbours to settle their disputes concerning trees?
• If not, what would be a better dispute resolution forum?

Noise

• Is it appropriate that noise disputes between neighbours be dealt with by a court?
• Should there be more emphasis on mediation and regulation through orders and fines?

General

• It has been suggested that neighbours should be encouraged to settle their disputes by negotiation, if necessary with the aid of a mediator. How should this take place
• What is the most appropriate forum?

  - Community Justice Centres

  - local authorities

  - Other forum please specify

• Should the choice of the appropriate dispute resolution forum and process (ie whether through the legal process or mediation) be dependent on the type of disputes?
• Alternatively, should the parties be free to decide on the appropriate forum, irrespective of the type of dispute?
• If the parties are amenable to mediation, should the dispute be resolved by the mediation process even if real property issues are to be resolved?
• Should a Neighbour Tribunal be created? If so should it deal only with disputes relating to

  - Noise

  - Trees

  - Noise and Trees

  - Noise, Trees and disputes concerning access and joint service

  - Other matters

• How would matters be referred to a Neighbour Tribunal?
• Should attendance be compulsory?
• Should the Neighbour Tribunal orders be enforceable?
• Should legal representation be allowed?
• Should hearings be bound by the rules of evidence?

1. Letter to the Commission dated 22 April 1983 from Wendy Faulkes, Director, New South Wales Community Justice Centres.

2. New Zealand Property Law and Equity Reform Committee Report on The Fencing Act 1908 (1972) at 7.

3. Community Justice Centres Annual Report 1989/90 at 10.

4. W Faulkes, “Resolving Disputes: Community Justice Centres; The Mediation Process” (Being a paper presented to the College of Law Continuing Legal Education Seminars on 15 May 1986) (College of Law, Sydney, 1986).

5. NSW Parliamentary Debates (Hansard), Legislative Assembly, 19 November 1980 at 3147.

6. ibid Hon P Landa at 3585.

7. ibid Hon F J Walker QC at 3147 and Hon P Landa at 3584.

8. Community Justice Centres Annual Reports of 1989/90, 1988/89 and 1987/88 respectively.

9. Community Justice Centres Act 1983, s23 (3).

10. NSW Parliamentary Debates (Hansard), Legislative Assembly, 22 November 1990 at 10415.

11. See para 7.26.

12. Kevin Anderson, former Deputy Chief Magistrate of New South Wales, expressed these concerns as follows:

..the conventional justice system (adjudication) is not equipped to provide a lasting resolution of disputes between people in continuing relationships.

A court is required to give a judgment only with regard to the particular issue before it. That may be only a single incident in a continuing conflict. The procedural rules are designed to exclude from consideration any concerns not immediately relevant to the isolated issue being litigated. The parties very often in the course of a hearing will be struggling to discuss the whole conflict. Their efforts are frustrated by the court. This is for a good (conventional justice system) reason - relevance. Adjudication, typically, is concerned with questions of right and wrong, winner and loser, guilt and innocence. The conventional justice system rarely even claims to be dealing with the underlying tensions and conflicts.

Magistrates recognise from experience, the inappropriateness of conventional legal procedures in these disputes.

Quoted in David Williams, Mediation an Alternative to the Courts for the Settlement of Personal Disputes. Unpublished paper 1983.

14. Unreported, Supreme Court of New South Wales, 22 March 1991.

15. See para 7.42.

16. Noise Control Act 1975 s69.

17. Unreported, Supreme Court of New South Wales, 22 March 1991.

18. See para 7.37.