Bolton v Grose

Submissions and evidence

1. The Appeal Panel received the following documents from the parties:

• On 10 May 2019 the appellant lodged the 'Notice of Appeal' and made an application for stay of the original decision together with submissions and documents.
• On 24 May 2019 the respondent lodged a 'Reply to Appeal',
• On 13 May 2019 the respondent provided submissions in relation to the stay application and on 14 May 2019 the appellant provided submissions and documents in relation to the stay application. The stay application has been dealt with and on that basis we have not considered those documents.
• On 14 June 2019 the appellant provided submissions and documents in relation to appeal.
• On 17 June 2019 the appellant provided further submissions and documents which they intended should supersede the documents provided on 14 June 2019.
• On 24 June 2019 the appellant provided further submissions and documents.
• On 27 June 2019, the respondent provided further submissions.
• On 2 July 2019 the appellant provided documents in reply.

1. The Appeal Panel also had before it a copy of the directions that have been made by the Appeal Panel and a copy of the original applications that were made by the parties to the Tribunal.
2. By letter dated 2 September 2019, the appellant sought to correct errors contained in submissions as follows: It has come to my attention that two references to clause 2.34 of the SEPP (Exempt & Complying Developments) Code 2008 were mistyped as "4.34" in paragraphs 16 and 24 of the Submissions. While I expect that the Appeal Panel would have detected this error, I would be grateful if you would bring this letter to the attention of Senior Member Simon, or the President, as appropriate.
3. We have also taken into consideration that amendment to the submissions.

Notice of Appeal

1. The Notice of Appeal was lodged on 10 May 2019, which is within the 28-day time period specified in cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (the Rules).
2. The appellant appeals on the basis of errors of law and seeks leave to appeal the decision pursuant to section 80 (2) (b) of the NCAT Act.
3. Although the parties were represented, the Appeal Panel went to some lengths to identify the grounds of the appeal. In the notice of Appeal, the appellant raises 14 grounds of appeal and raised further grounds at the appeal hearing. Many of the issues being raised as grounds of appeal were matters that were raised before the Tribunal and are simply dissatisfaction with the decision rather than a ground of appeal founded in an error of law or on which the appellant should be granted leave to appeal. After questioning of the solicitor for the appellant during the appeal hearing and consideration of the material available on the appeal, the Appeal Panel has distilled the grounds of appeal and relevantly addressed them according to the issues they raise.
4. We note that the reasons for decision provided by the Tribunal were lengthy, detailed and carefully considered. The Tribunal went to some effort to address the many issues raised by the parties at the hearing and in the documents. Many of those issues are now being raised by the appellant as alleged grounds of appeal even though they were adequately addressed by the Tribunal in its reasons for decision.

Jurisdiction

1. The appellant submits that the Tribunal made an error of law in relation to the exercise of the Tribunal's jurisdiction. We accept that if such error was made it would amount to an error of law. In the reasons for decisions, the Tribunal carefully considered whether the Tribunal had jurisdiction to decide the matter, including consideration of the time for commencing the proceedings, the fencing notice and the sufficiency of the fence.
2. At the Tribunal hearing, Ms Bolton had raised a jurisdictional issue in relation to defects in the notice, in particular that the notice did not seek contributions. The Tribunal dealt with the alleged defect in the notice and found that the mere fact that a fencing notice does not seek contribution does not deprive the Tribunal of jurisdiction (paragraph 62). That finding was not challenged on appeal and we are satisfied that the Tribunal was correct on that point.
3. The appellant now submits that the Tribunal failed to take into consideration the matters contained in s 4 of the Dividing Fences Act in determining whether there was a sufficient dividing fence or in the alternative, erred in how it applied the discretion in relation to those matters.
4. Section 4 of the Dividing Fences Act relevantly provides: In any proceedings under this Act, the Local Court or the Civil and Administrative Tribunal is to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of this Act, including the following: (a) the existing dividing fence (if any), (b) the purposes for which the adjoining lands are used or intended to be used, (c) the privacy or other concerns of the adjoining land owners, (d) the kind of dividing fence usual in the locality, (e) any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated, (f) any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated, (g) in the case of a dividing fence affecting land the subject of a lease under the Western Lands Act 1901, any order in force under section 18A of that Act immediately before the repeal of that Act.
5. At paragraphs 65-66 of the reasons for decision the Tribunal found: 65. In this matter, it is clear that there is no dividing fence for a significant proportion of the boundary between the two properties. This is not a situation, such as in Purcell v Chadwick where there was an existing dividing fence between properties which an owner sought to demolish and replace because it was not on the boundary line between the two properties. 66. The Tribunal is satisfied that there is currently no sufficient dividing fence between the neighbouring properties.
6. The appellant submits that the Tribunal deferred to the recommendation of Council in the Assessment report and failed to undertake its own assessment of the sufficiency of the fence pursuant to s 4 of the Dividing Fences Act. It is not entirely clear as to whether the appellant mean in its assessment of the sufficiency of the current fence or the sufficiency of the fence to be constructed. In any case the finding of the Tribunal as extracted above does not demonstrate that the Tribunal simply deferred to the Development Approval when making the determination in relation to sufficiency of the present fence, instead it referred to the lack of existence of a fence and in particular that there was no dividing fence for a significant portion of the property. There is no jurisdictional error in that regard and we find no error of law on this basis. The sufficiency of the fence to be constructed shall be dealt with in greater detail below.

The Development Assessment Report and the Development Application

1. The appellant submits that the Tribunal fell into error when it deferred to the recommendation of Council in the Assessment report and failed to undertake its own assessment of the sufficiency of the fence that was to be erected.
2. The appellant raises this as a jurisdictional issue. This does not raise a jurisdictional issue, rather it relates to the fence which the Tribunal ultimately ordered and whether the Tribunal took into consideration the relevant matters in making the orders about the fence that was to be erected.
3. Attached to the appellant's Notice of the Appeal are a series of alleged errors relating to the Development Assessment report and Development Application. Those alleged errors can be summarised as follows:

• The Tribunal found that an order for a fence lower than the maximum height in the Development Approval would be inconsistent with the Development Approval.
• The Tribunal found that the appellant opposed the height of the fence in "Section D".
• The Tribunal had regard for the length and content of the appellant's objection to the Development Application ("Objection"). The Tribunal fell into error when it found that the appellant had submitted that the fence in Section D would be excessively high.
• The Tribunal had regard to discussions about privacy, ventilation and overshadowing in the Development Assessment Report when these matters related solely to Section D.
• The Tribunal noted that the Development Assessment Report explained why timber palings were appropriate when the Development Assessment Report stated they were only preferable to fibre-cement sheets and made no reference to replacing brick and slats with timber palings as occurred due to Council errors during the assessment of the development application.
• The Tribunal did not accept a Development Approval that previously had been agreed to by both neighbours.
• The Tribunal fell into error in relation to how it considered the Development Approval.
• The Tribunal decided that the fence should be constructed on the boundary despite the Development Approval requiring the fence to be constructed wholly within the boundaries of the respondent's property.

Consideration

1. Section 14 of the Dividing Fences Act deals with orders in relation to fencing work as follows: (1) The Local Court or the Civil and Administrative Tribunal may, in respect of an application under this Act, make an order determining any one or more of the following: (a) the boundary or line on which the fencing work is to be carried out, whether or not that boundary or line is on the common boundary of the adjoining lands, (b) the fencing work to be carried out (including the kind of dividing fence involved), (c) the manner in which contributions for the fencing work are to be apportioned or re-apportioned or the amount that each adjoining owner is liable to pay for that work, (d) which portion of the dividing fence is to be constructed or repaired by either owner, (e) the time within which the fencing work is to be carried out, (f) the amount of any compensation (in the form of an annual payment to either of the adjoining owners) in consideration of loss of occupation of any land, (g) that, in the circumstances, no dividing fence is required in respect of all or part of the boundary of the adjoining lands. (1A) Despite subsection (1), no order may be made for the carrying out of fencing work on a declared area of outstanding biodiversity value under the Biodiversity Conservation Act 2016 without the consent of the Environment Agency Head (within the meaning of that Act). (2) The occupation of land on either side of a dividing fence, as a result of an order determining that fencing work is to be carried out otherwise than on the common boundary of the adjoining lands, is not taken to be adverse possession as against the owner or to affect the title to or possession of the land, except for the purposes of this Act.
2. Section 6 of the Dividing Fences Act sets out the general principal for liability for fencing work and relevantly states: (1) An adjoining owner is liable, in respect of adjoining lands where there is no sufficient dividing fence, to contribute to the carrying out of fencing work that results or would result in the provision of a dividing fence of a standard not greater than the standard for a sufficient dividing fence.
3. The Tribunal considered the competing views of the parties in relation to the type of fencing work to be carried out and made the following finding: 79. The Tribunal is satisfied that a lapped and capped timber fence is appropriate. This is the type of fence that was recommended in the Development Assessment Report of Inner West Council. It is also the type of fence that approved by Inner West Council in the Development Approval.
4. The list of matters a Tribunal may consider as to what constitutes a sufficient fence pursuant to s 4 to the Dividing Fences Act is non-exhaustive.
5. The Tribunal properly considered Ms Bolton's submissions that the type of fence recommended in the Development Assessment Report would result in a fence different to the type approved in the Development Approval and properly found that there was no provision of the Dividing Fences Act which states that the Tribunal must adopt the type of fence approved in a Development Approval by a Local Council (paragraph 80).
6. The Tribunal found that it must give significant weight to the type of fence approved in a Development Approval by a Local Council, and that if it were to order a different type of fence there would need to be compelling reasons to do so. It made that finding on the basis that: 81. … it not in the interests of the parties or of public policy if there is inconsistency between Development Approvals issued by a Local Council regarding fencing work; and decisions of the Tribunal regarding the same fencing work; unless there are clear and compelling reasons (paragraph 81)
7. In relation to the inconsistencies with the Development Approval the Tribunal stated in its reasons for decision: 82. It is also not the role of the Tribunal in a Dividing Fences dispute to provide a forum for the parties to re-agitate disagreements regarding renovations of residential premises that have been previously considered by Local Councils under the Environmental Planning & Assessment Act 1979 (NSW), other than in the limited context of the Dividing Fences Act. 83. In the circumstances of this matter, Inner West Council considered the objections of Ms Bolton; the Development Application was referred to a Referral Panel; a detailed Development Assessment Report was prepared (comprising of 35 pages) and Ms Bolton made further objections to the Local Council regarding the Development Application of Ms Grose, before it was approved on 16 April 2016. 84. The Development Assessment Report discusses in detail the appropriate fence to be constructed, including the issues of privacy; overshadowing and ventilation, which are the same issues raised by Ms Bolton before the Tribunal. The Development Assessment Report gives a detailed explanation as to why a timber paling fence is appropriate rather than the original type of fence proposed by Ms Grose in the Development Application. 85. Ms Bolton has not provided any clear evidence as to the reasons why a timber paling fence would be inappropriate, or why a brick pier and slat fence along part of the boundary with an additional component of fibre cement sheeting along another part of the boundary is a more appropriate outcome than a lapped and capped timber fence.
8. The Tribunal considered Ms Bolton's submissions in relation to the height of the fence and issues about privacy and overlooking and came to the following conclusion: 103. Regarding the height of the fence, having considered all of the issues raised by Ms Bolton in this application, the Tribunal is satisfied that the maximum height of the fence should be at the heights set out in the Development Approval by Inner West Council. Inner West Council, as part of the process of issuing the Development Consent, provided detailed reasons explaining why it had approved the height of the fence (including the 'Section B' and 'Section D' areas) and no satisfactory reasons have been advanced by Ms Bolton as to why the Tribunal should not adopt the same approach.
9. In those circumstances it cannot be said that the Tribunal simply deferred to the Development Assessment Report or Development Approval in making its decision. The Tribunal examined the documents and considered the submissions made by the appellant and come to the relevant conclusions on its own assessment. The Tribunal properly considered what would constitute a sufficient fence in the circumstances and what type of fence should be constructed. The Tribunal has made an independent assessment and it was open to the Tribunal to consider the Development Assessment Report as one of the matters in coming to those conclusions. Further. The Tribunal has identified why it gave the report and the approvals the weight it did and we find that was a proper exercise of the discretion.
10. Having considered the alleged grounds of appeal contained at paragraphs 2-11 of the Notice of Appeal (summarised at para 24 above) and the grounds of appeal raised in relation to unreasonableness and jurisdiction, the Appeal Panel finds no ascertainable error of law in regards to the findings made by the Tribunal or issues raised by the appellant. The appellant does not demonstrate the actual alleged errors of the Tribunal with reference to the transcript or other material, rather they are generally a restatement of the appellant's case as it was put before the Tribunal.

Durability of the Colourbond fence

1. The appellant submits that the Tribunal did not consider the durability of the former Colourbond fence in making its determination about the type of fence. It is clear from the reasons of the Tribunal that the Tribunal was aware of the former Colourbond fence. The Colourbond fence is referred to at para 8 of the reasons for decision and at para 92 the Tribunal states: Page 9 of the Development Assessment Report shows that the 'drying deck' of Ms Bolton's property is a raised area. At page 9 of the Development Assessment Report, there are photographs of the area showing the 'drying deck' from the perspective of each property, including the brick retaining wall and the previous Colourbond fence that was in place in this section of the boundary.
2. It is clear from the reasons that the Tribunal has come to its findings about the type of fence, knowing that the former fence was Colourbond. The Tribunal gave reasons as to why it selected the timber paling fence. In that regard there can be no error of law on the basis asserted by the appellant.

The Type of Fence

1. The appellant submits that the Tribunal did not consider the type of timber which should be used to construct the fence at section B. In the material provided by the appellant to the Tribunal she included a brief document from "Martin" at Crescent Timber and Hardware Pty Ltd addressed "to who it may concern". It states that: In our opinion, a hardwood paling fence would outlast a treated pine paling fence under normal conditions and installation practices.
2. The appellant also included a quotation from Mr Demetriou of Sydney Fencing and Gates dated 9 November 2018. The quote gives various prices for treated pine, hardwood and 15mm FC sheets.
3. The Tribunal subsequently ordered a capped timber fence. Clearly the Tribunal was aware of the proposals regarding hardwood. As is demonstrated in the Tribunal's reasons for decision extracted at paragraph 26 above, the Tribunal ordered a timber paling fence consistent with the Development Assessment report and made that order on the basis of the findings in the report. It was open to the Tribunal to make that finding and not go beyond it. The Appeal Panel finds no error of law arising out of that finding and we also dismiss that part of the appeal.

Procedural Fairness

1. The appellant submits that she was denied procedural fairness because the Tribunal did not grant leave for consideration of her further written submissions provided after the hearing. In that regard the Tribunal stated: 73. In addition to the above oral submissions that were made at the hearing by Mr Bolton, Mr Bolton also sent through further additional written submissions and purported further evidence (which is in substance constitutes further submissions, not fresh evidence) in January and February 2019. The principles applicable to the granting of leave to re-open a case and adduce further evidence are discussed by the Appeal Panel of the Tribunal in Wassef v Panagiotopolous [2019] NSWCATAP 101. However, the further submissions did not in substance introduce new evidence, but further legal argument. 74. At the conclusion of the hearing on 19 December 2018, the Tribunal did not make directions regarding further written submissions, nor were such directions sought. Ms Grose has not responded to the further submissions. 75. It is inappropriate for a party to send to the Tribunal further written submissions in circumstances where no directions have been made providing a timetable for submissions and without having sought leave to do so. It is surprising and disappointing that a Solicitor would adopt this course of action. In any event, much of the further submissions of Mr Bolton simply repeat, in slightly different terms, the same oral submissions made at the hearing on 19 December 2018. 76. In circumstances where there has been no application for leave to adduce further submissions, and the Tribunal has not made any orders regarding a timetable for both parties to file and serve further submissions, it would be procedurally unfair to Ms Grose to consider such submissions. The Tribunal has only considered the submissions made orally and in writing by the parties up to and including the hearing date of 19 December 2018.
2. No leave was granted for the further submissions. The appellant has not demonstrated to the Appeal Panel how the submissions would have made any difference to the outcome of the proceedings in circumstances where they repeat much of what had previously been stated to the Tribunal. On that basis, the Appeal Panel rejects the ground of appeal.

Leave to Appeal

1. The appellant seeks leave to appeal on the grounds that the decision was not fair and equitable and against the weight of evidence because the Tribunal placed little or no weight on the Council Referral Panel Minutes and an inordinate amount of weight on the Council Approval.
2. Pursuant to cl 12 to Sch 4 of the NCAT Act, in order to grant leave the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
3. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
4. In Collins v Urban, the Appeal Panel went on to list at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
5. The Appeal Panel must also consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
6. We are of the opinion that leave to appeal should not be granted. The appellant has not demonstrated that there is a significant possibility that she was deprived of a chance that was fairly open of achieving a better outcome than occurred. Nor do we exercise the discretion to grant leave to appeal under s 80(2)(b).
7. The appellant's assertions that the decision was not fair and equitable and against the weight of evidence raises many of the same issues that were raised in the submissions on errors of law and which we do not accept. We do not find that the Tribunal did not reach a reasonable conclusion on the evidence that was before him. We are satisfied that the appellant did not suffer a substantial miscarriage of justice as a result.
8. The appellant also seeks to rely on new evidence in relation to mould which has allegedly arisen since the Tribunal hearing. That evidence is in the form of a statement of the appellant dated 14 June 2019. Ms Bolton asserts that since the installation of the temporary fence, mould has grown in her front room. She includes one photo of a piece of furniture allegedly showing mould. The appellant asserts that such evidence was not reasonably available at the time the proceedings under appeal were being dealt with.
9. In the reasons for decision the Tribunal noted: 13. On 29 January 2016, Ms Bolton lodged an objection to the Development Application. The objection comprised of 16 pages. In respect of the proposed fence, Ms Bolton objected to the height of the proposed fence for reasons that including that it would unreasonably restrict "solar access"; "air circulation" and vegetation growing on Ms Bolton's property. It was also asserted that "any solid fencing materials adjacent to No 12's boundary brick wall at the rear of No 12 is not necessary or desirable" as it would "reduce sub-floor ventilation, potentially increasing dampness, and be quite impracticable to maintain". Ms Bolton further asserted that there were no real privacy or overlooking concerns sufficient to justify the proposed fence.
10. Ms Bolton had always raised concerns about ventilation and it was always open to her to provide evidence about how the fence would affect ventilation and whether it would cause mould. The evidence the appellant is now seeking to rely on is supported by a photograph. There is no correlating independent evidence about the cause of any mould (if indeed what is in the photo is mould). We are not satisfied that not allowing the evidence would result in the appellant suffering a substantial miscarriage of justice. Accordingly, we do not grant leave to appeal on that basis.
11. In relation to leave, we are of the opinion that there are no issues of principle, no questions of public importance or matters of administration or policy which concern this appeal. Nor are we satisfied that the appellant has suffered a substantial miscarriage and leave to appeal is refused.

Costs

1. Both parties have indicated that they seek costs. The relevant costs rule appears in s 60 of the NCAT Act.
2. Rule 38 of the Rules modifies the application of s 60 in proceedings before the Consumer and Commercial Division of the Tribunal and Rule 38A modifies the position in respect of appeals. The effect of Rule 38 is that where what is claimed or in dispute in the proceedings before the Consumer and Commercial Division exceeds $30,000, an award of costs can be made in the absence of special circumstances. The effect of Rule 38A is that on appeal, the same costs provisions apply as applied in the Tribunal below. The amount claimed in this appeal does not exceed $30,000 so s. 60 applies, unmodified by Rules 38 or 38A. The parties would need to establish special circumstances for the awarding of costs. We have made provision for the exchange of documents in relation to any costs application.

Orders

1. In light of the above, the appropriate orders are: 1. Leave to appeal is refused 2. The appeal is dismissed 3. The stay order made 14 May 2019 is lifted 4. The respondent is to provide to the Appeal Panel and the appellant, either in person or by post, any submissions and documents in relation to any application for costs by 16 October 2019. 5. The appellant is to provide to the Tribunal and applicant, either in person or by post, submissions and documents on costs by 30 October 2019. 6. Costs will be determined on the papers. If either party seeks to be heard in person, they should advise the Registry prior to 30 October 2019 setting out the reasons why and the registry will advise in due course.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 October 2019