MP in Supreme Court over fence
Former Norwood Mayor, Vini Ciccarello and her neighbour Haydn Bunton, are in dispute over the fence line between their properties. It's a curly tale about a wonky fence that has ramifications for swathes of our suburbs.
Dr Bunton's property on the left and Ms Ciccarello's contested driveway next door.
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The Magistrates Court awarded Labor MP Vini Ciccarello, of Norwood, an estimated 23sq m of her neighbour's property without having to pay any compensation.
The court ruled the fenceline had been in the wrong position for such a long time that Ms Cicarello was entitled to the land.
But neighbour Dr Haydn Bunton is now appealing to the Supreme Court over the unusual land swap with the matter to be heard later this month.
He discovered last year that Ms Ciccarello's concrete driveway and their boundary fence overlapped his property when he went to sell the family home, near The Parade.
Dr Bunton, a GP, is the grandson of Haydn Bunton Sr, who won three Brownlow and three WA Sandover medals, and the son of Haydn Bunton Jr, who played for Norwood and coached South Adelaide and Sturt in the SANFL, and twice coached Subiaco to WAFL premierships.
According to court documents, a potential buyer - a builder - requested a survey that found the fenceline had shifted into Dr Bunton's property by about half a metre.
The sale was subsequently made dependent on the fence being moved back to the correct position, which would have widened the narrow driveway on Dr Bunton's property but rendered Ms Ciccarello's driveway largely unusable.
He started court action last May seeking to have the original fence line reinstated plus $40,000 damages.
The court heard when Ms Ciccarello brought her property in 1984, the houses were divided by a corrugated iron fence and she later concreted the gravel driveway and laid pavers up to the fenceline.
Ms Ciccarello submitted sworn affidavits to the court by herself and her brother-in-law Mario Marcuccitti saying the work was done in 1990-91 and a new Colorbond fence put up about the same time.
That date became crucial to the case, as it then emerged Ms Ciccarello's other neighbour, Assunta Porcaro, had alerted her in the mid-1990s that the fences between their properties were significantly misaligned.
In the court case, Dr Bunton produced a birthday video filmed in 1994 that showed the old corrugated iron fence was still in place, as well as aerial photographs that appeared to show Ms Ciccarello's driveway was not concreted and paved until at least September 1999.
In response, Ms Ciccarello, the former mayor of Norwood and Kensington, submitted new affidavits acknowledging the Colorbond fence must have been put up after the 1994 video but that the driveway was concreted at an unknown time prior to this date.
Magistrate Kym Millard accepted Ms Ciccarello's changed testimony because she was a busy person and her explanation was a genuine error of recollection.
He said "on the balance of probabilities the slab was laid some considerable time after the defendant became aware of the potential boundary anomalies".
But the court found that just because Ms Ciccarello was aware of boundary anomalies with Ms Porcaro that did not necessarily mean she knew there was a problem with her other neighbour's boundary.
As the decade-long discrepancy over the boundary unfolded in court, the sale of Dr Bunton's property fell through.
He then sought compensation of $154,500 for the lost strip of land under the Encroachment Act.
But Magistrate Millard ruled the fence should not be moved back to its true boundary, that the disputed land should be transferred to Ms Ciccarello's ownership and that no compensation should be paid to Dr Bunton.
He found Ms Ciccarello was not negligent or intentional in concreting Dr Bunton's land, that she had bought the property in good faith, that the fencelines were correct and that those fencelines had been in place for at least 55 years.
He also warned that if the original fenceline was reinstated it would impact on hundreds of homeowners in older suburbs.
Magistrate Millard was critical of Dr Bunton in his summing up, saying: "He appears more interested in endeavouring to reach the maximum financial return for the sale of his property than a neighbourly resolution of the matter."
Dr Bunton has appealed to the Supreme Court and the case will be heard from February 25. Both he and Ms Ciccarello declined to comment further.