[2018] ACTSC 39

CIVIL LAW - APPEAL AND NEW TRIAL - Practice and procedure - leave to appeal - appeal against decision of ACT Civil and Administrative Tribunal - dispute between neighbours - nuisance caused by trees - application for leave to appeal out of time - failure to properly explain delay - limited merit in grounds of appeal - extension of time to appeal not granted - common boundary dispute - consideration of proposed grounds of appeal - leave to appeal not granted

ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 15, 18, 18(3)(a), 22, 82, 86, 86(3)

Common Boundaries Act 1981 (ACT), ss 2D, 4, 5, 8, 10, 10(2), 10(2)(b), 11, 11(3), 14, 22

Magistrates Court Act 1930 (ACT), s 260

Nature Conservation Act 2014 (ACT)

Tree Protection Act 2005 (ACT)

Blackshaw & Evans v Campbell (Civil Dispute) [2016] ACAT 80

Blackshaw & Evans v Campbell (No 2) (Civil Dispute) [2016] ACAT 108

Campbell v Blackshaw & Evans (Appeal) [2017] ACAT 64

Campbell v Blackshaw & Evans (Appeal) [2017] ACAT 95

Hussain v Farhmand [2016] ACTSC 122

Abbey v Mack [2010] ACTSC 140; 244 FLR 324

Legal Practitioner of the Council of the Law Society of the ACT [2016] ACTCA 35; 311 FLR 108

Practitioner D3 v ACT Civil and Administrative Tribunal [2017] ACTCA 62

Robson v Leischke [2008] NSWLEC 152; 72 NSWLR 98

Court/Tribunal: ACT Civil and Administrative Appeal Tribunal

Citation: [2017] ACAT 64

Court/Tribunal: ACT Civil and Administrative Appeal Tribunal

Citation: [2017] ACAT 95

1. The applicant (Ms Campbell) is the owner of a house on Mouat Street in Lyneham which adjoins a house owned by the respondents (Mr Blackshaw and Ms Evans). There are nine cypress trees growing on the applicant's property very close to or on the boundary between the two blocks. The location of these trees with respect to the boundary between the two properties was surveyed in 2014. On the resulting plan they are numbered 1 to 9, tree 1 being furthest into the block and tree 9 being closest to Mouat Street.

2. Two sets of proceedings were brought in the ACAT by the respondents against the applicant. The first sought an order under the Common Boundaries Act 1981 (ACT) (the fence proceedings), the second sought relief from nuisance alleged to be caused by the trees growing on the applicant's property (the nuisance proceedings). The respondents obtained orders in their favour on both applications. Both applications ultimately ended up in the Appeal Tribunal of the ACAT (Appeal Tribunal) and the Appeal Tribunal gave separate decisions in each set of proceedings. The applicant wishes to appeal against those decisions.

3. Section 86 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act) permits a party to an application in the ACAT to appeal "on a question of fact or law" from a decision of the Appeal Tribunal. However, an appeal may be brought only with the leave of the Supreme Court: s 86(3).

4. In the nuisance proceedings the applicant is out of time and must obtain both an extension of time in which to make the application for leave to appeal as well as leave to appeal. In the fence proceedings the applicant needs leave to appeal. I will deal first with the nuisance proceedings and then with the fence proceedings.

5. The applicant has applied for leave to appeal and for an extension of time in which to bring an application for leave to appeal from a decision of the Appeal Tribunal of ACAT.

6. At first instance in ACAT, the Tribunal found that the nine trees close to or on the boundary between the properties constituted a nuisance. The Tribunal made orders requiring their removal: Blackshaw & Evans v Campbell (No 2) (Civil Dispute) [2016] ACAT 108. The applicant's appeal to the Appeal Tribunal was unsuccessful: Campbell v Blackshaw & Evans (Appeal) [2017] ACAT 64. It is that decision in relation to which the applicant seeks an extension of time in which to apply for leave to appeal and, if that is granted, leave to appeal.

7. The decision by the Appeal Tribunal was made on 30 August 2017. An appeal from that decision was required to be brought within 28 days or not later than any further time allowed by the Court: Court Procedure Rules 2006 (ACT), r 5072. The proceedings seeking leave to appeal were commenced on 2 November 2017. Therefore an extension of time is required to permit the filing of an application for leave to appeal.

8. In order to determine whether it is appropriate to extend time, it is relevant to consider the matters summarised in Practitioner D3 v ACT Civil and Administrative Tribunal [2017] ACTCA 62 at [39] (Practitioner D3). Clearly those matters are guides to the exercise of discretion and not rigid rules. So far as leave to appeal is concerned, it is necessary to consider at least whether a question of fact or law has been identified; whether there is at least an arguable case that an error, identified by reference to the question of fact or law, exists; and whether the correction of that error would result in an outcome more favourable to the applicant: Hussain v Farhmand [2016] ACTSC 122 at [43]. It is also necessary to consider whether, having regard to the manner in which the proceedings below were conducted or for other reasons, it is not appropriate to grant leave to appeal.

9. In considering whether an extension of time should be granted, I will give particular consideration to the explanation for the delay and the merits of the application for leave to appeal before returning to the more general discretionary question of whether an extension of time should be granted.

10. The explanation for the delay is that set out in the affidavit of the applicant's solicitor,

2. On 30 August 2017, the ACT Civil and Administrative Tribunal handed down the decision appealed from.

3. Due to my other commitments, I did not receive the decision until a copy was posted to me that arrived on 4 September 2017. I forwarded the decision by email on that day to the Applicant.

4. I am instructed that because she was unwell, and her tenants who reside in property did not pass on notices to her, the Applicant only took action to deal with the decision recently.

5. Annexed hereto and marked "A" is a true copy of a medical report from Dr [Freeman] in relation to the Applicant. Annexed hereto and marked "B" is a true copy of an email about the Applicant from Professor Robyn Slattery.

11. The letter from James Freeman does not expressly state that he is a doctor. Rather it identifies him as Director, GP2U Telehealth Pty Ltd. I infer that he is a doctor of some sort. The letter is undated. The solicitor's affidavit does not identify when it was received. The letter indicates that Ms Campbell has been consulting with Dr Freeman in relation to liver disease since "late 2016". It says that she has been taking six different medications and continues:

Ms Campbell for the last year especially has had a poor quality of life and has experienced times of brain fog, nausea and exhaustion, headache, rigours, fever, myalgia, anxiety, emotional lability.

12. It indicates that cognitive impairment "may be expressed in a large variety of ways" and refers to "depression, fatigue and issues with the central nervous system and sleep disorders". It says "Ms Campbell experienced a particularly difficult time during August, September and October this year when her allergies and asthma also became unmanageable".

13. The letter from Professor Slattery also does not identify her qualifications. It provides that she has "spent 30 years in medical research; 25 years as a Diabetes researcher, and 14 years as an educator in Clinical Immunopathology". It records her observations of Ms Campbell becoming increasingly fatigued and having profound fatigue since the middle of 2015. She appears, however, to defer to the opinion of Dr Freeman.

14. The difficulty with Mr Christensen's evidence is that it is not from the applicant and does not explain, in fact, any causal link between the liver condition or other condition suffered by the applicant and the failure to lodge an appeal within time. Further:

(a) It does not indicate that the solicitor was unaware of the decision being handed down on 30 August 2017.

(b) It does not explain whether any advice was given in the email of

4 September 2017 from the solicitor to the applicant, or whether there was any communication with the applicant following that email.

(c) It does not disclose when the applicant received the email of the solicitor.

(d) It does not explain the relevance of the actions of the tenants or what the "notices" referred to were.

(e) It does not disclose what was meant by the reference to "recently" in paragraph 4.

15. The other evidence about what occurred after the Appeal Tribunal's decision was given was provided in a chronology annexed to the affidavit of the respondents' solicitor.

(a) The appeal period ended on 27 September 2017.

(b) On 30 September 2017, the respondents sent an email to the solicitor for the applicant stating that they now intended to implement the orders of the Tribunal. There was no reply to this communication.

(c) On 18 October 2017, an email was sent to the solicitor for the applicant informing him that a tree felling contractor would be removing her trees on

3 November 2017. It requested confirmation by 30 October that the tenants of the applicant's property were aware of the work to be undertaken. There was no reply to this email.

(d) On 31 October 2017, an email was sent to the solicitor for the applicant informing him that as no reply had been given, a letter would be given to the tenants informing them of the work to be undertaken. On that day there was then some adverse interaction between the applicant and respondents in a telephone call and a confrontation outside the property.

(e) On 2 November 2017, an appeal to the Appeal Tribunal in the fence proceedings was dismissed. On that afternoon an application was made, on an ex parte basis, for an injunction to restrain the removal of the trees pending an application for leave to appeal in the nuisance proceedings and an extension of time in which to appeal.

16. What is significant about these additional facts is that, notwithstanding the notice to the applicant's solicitor of the intention to implement the orders following the expiry of the appeal period, it was more than a month after that the present application was made. There is no evidence to explain what, if anything, Mr Christensen or the applicant did in response to the notice given to them by the respondent.

17. The failure to file an application for leave to appeal within the required time comes against the background recorded in the reasons for decision of the Tribunal and Appeal Tribunal in both the nuisance and fence proceedings of delay, non-compliance and applications for adjournment of proceedings over the years since 2014.

18. The merits of the appeal are a relevant consideration in determining whether to grant an extension of time and whether to grant leave to appeal. I will address the merits of the appeal by reference to the grounds identified in the draft notice of appeal which has been filed with the application for leave to appeal.

19. Although each of the grounds of appeal refer simply to "the Tribunal", I have understood the grounds to refer to the Appeal Tribunal as it is that entity from which any appeal must be brought: ACAT Act, s 86.

Ground 1. The Tribunal erred in law in finding it had jurisdiction to grant an injunction

20. The applicant submitted that there is no power to grant an injunction because the jurisdiction of the ACAT is limited to claims for damages where the amount claimed does not exceed $25,000. The applicant submitted that s 18 of the ACAT Act limited the jurisdiction to "civil dispute applications claiming amounts of not more than $25,000."

21. The applicant also submitted that if an injunction was to be granted this would "require proper consideration of the maxims of equity".

22. The respondent submitted that this matter was not raised before the Appeal Tribunal and that the applicant should not be allowed to raise it now.

23. Section 15 of the ACAT Act includes the definitions of the various types of application that may be made to the ACAT. The definitions of these applications are quite precise. For example, while the wording of the definitions of "contract application" and "damages application" make specific reference to recovery of damages, the definition of "nuisance application" refers to "an application for relief for nuisance".

24. Section 18 of the ACAT Act limits the ACAT's jurisdiction on civil dispute applications to "applications claiming amounts of not more than $25,000". Common boundaries determinations are excluded from this limitation: s 18(3)(a).

25. Section 22 of the ACAT Act provides that the ACAT has the same jurisdiction and powers in relation to civil dispute applications as the ACT Magistrates Court has under the Magistrates Court Act 1930 (ACT). Section 260 of the Magistrates Court Act provides:

(1) The Magistrates Court has the same jurisdiction as the Supreme Court to hear and decide a civil action for nuisance.

(2) In a civil action for nuisance, the Magistrates Court may grant the same relief as the Supreme Court may grant in a similar action in that court.

26. As injunctions are the principal form of relief granted in actions for nuisance, this provision would permit the Magistrates Court to grant injunctions in an action for nuisance.

27. There is an arguable case that the terms of s 18 are such that, in the absence of regulations expressly removing the limitation upon the jurisdiction, the jurisdiction of the ACAT does not extend to the granting of injunctive relief. There are, however, arguments to the contrary arising from the terms of the definition of "nuisance application" and the relationship between ss 18 and 22. Depending upon the interpretation of s 22 adopted it may be that:

(a) the ACAT had no power to make any order other than a monetary one;

(b) the ACAT could make ancillary orders so long as the initial application claimed damages of less than $25,000; or

(c) the limitation did not apply when non-monetary relief was sought in an application for relief from nuisance.

28. The issue is similar to that in Abbey v Mack [2010] ACTSC 140; 244 FLR 324, but that case is not determinative of the current issue.

29. I accept that the applicant's contention is arguable. It is not a matter which was raised at either level below. Although it would be fatal to the proceedings if the first interpretation above was adopted, if the second interpretation above was adopted and the matter had been raised, it would have been open to the respondents to amend their application so as to make a formal claim for damages in an amount of less than $25,000 in order to enliven the jurisdiction of the ACAT. If that was the case, then that fact would tell against a grant of leave to appeal. It is not a case like Abbey v Mack where it was uncontroversial that the monetary limit, if it applied, was clearly exceeded: see Abbey v Mack at [2].

30. So far as the applicant's alternative argument was concerned, the submissions of the applicant gave no indication of what "maxims of equity" might be applicable or the respect in which the application of such maxims might have altered the outcome of the case. I therefore do not consider that this alternative ground provides a basis for a grant of leave to appeal.

Ground 2. The Tribunal erred in law in finding a nuisance where the damage, if any, caused by the Appellant is to the property of a third party, Icon Water

31. The applicant submitted that much of a nuisance complained of was damage to pipes said to be caused by roots of trees growing on the applicant's property. The submission was that the pipes "are the property of Icon Water" which was not a party to the case. The applicant submitted that if damage had been caused because of damaged pipes, then the remedy was against Icon Water and any action against the applicant for damaging pipes would need to have been brought by Icon Water. As a consequence the respondents did not have standing to restrain the applicant.

32. The evidence read in support of the application for leave to appeal did not establish whether the pipes in question were the property of Icon Water or provide any authority in support of the proposition that the respondents were precluded from bringing an action in the circumstances. This was not an argument raised at either level within ACAT.

33. The respondents submitted that the ACAT also found actionable nuisances constituted by periodic flooding and by encroachment which have not been disputed.

34. There was some reference in the decision of the Tribunal to stormwater pipes and a "TAMS stormwater main": see Tribunal decision at [33], [37], and to the involvement of ACTEW and private companies clearing stormwater lines: Tribunal decision at [36]. These references to the evidence before the Tribunal are insufficient to provide a factual basis for the submission made by the applicant.

35. Because the evidentiary basis for the submission was not established and because it was not raised below, it would not provide a suitable basis for a grant of leave to appeal.

Ground 3. The Tribunal erred in law in failing to allow the Appellant the right to be heard on the current situation with the pipes, particularly in circumstances where there [were] no incidents with roots invading the sewer lines for 18 months prior to the original hearing and a further 14 months had elapsed since then

36. The applicant submitted that s 82 of the ACAT Act gave the Appeal Tribunal sufficient flexibility so as to permit it to consider the situation of the parties at the time of the appeal, not just at the time of the original decision.

37. The applicant submitted that there was no evidence that the pipes at the heart of the claim had been subjected to an invasion by roots in the previous 18 months and, by the time of the appeal hearing, there was no evidence that the pipes had been invaded by roots in the previous 32 months. The applicant characterised the injunctions granted as quia timet injunctions and submitted that the granting of such injunctions was precluded because the impending damage was not substantial or almost irreparable: Robson v Leischke [2008] NSWLEC 152; 72 NSWLR 98 at [58], [200].

38. The hearing before the Tribunal occurred on 4 August 2016. The decision was given on 16 September 2016. The hearing before the Appeal Tribunal was on 21 November 2016 and the decision given on 30 August 2017. There was therefore approximately 13 months between the hearing before the Tribunal and the decision of the Appeal Tribunal.

39. The reasons why this ground of appeal would not provide an appropriate basis for a grant of leave to appeal are as follow:

(a) The fact that the evidence disclosed that there was no present proof of root invasion from the cypress trees was a matter which was the subject of a ground of appeal before the Appeal Tribunal and dealt with by the Appeal Tribunal at [52]-[54]. The submissions do not disclose why the applicant says that the approach of the Appeal Tribunal set out there was incorrect.

(b) While the Appeal Tribunal took nine months to deliver its decision, the applicant did not seek to reopen its appeal during that period to put on further evidence about the current state of the drains. In the absences of such an application, the Appeal Tribunal did not deny the applicant procedural fairness by deciding the appeal on the basis of the material before it.

(c) The issue as to whether or not it was open to grant a quia timet injunction was raised in submissions before the Appeal Tribunal but not in any ground of appeal. The Appeal Tribunal addressed the issue at [62] in its reasons. It recorded that the submission misunderstood the basis on which the Tribunal at first instance made its orders, and that it acted because the cause of action was already complete as the nuisance had occurred by way of roots and branches and continued by way of the branches. As a consequence the stricter requirements of "imminent risk of substantial or irreparable damage" applicable to a quia timet injunction was not applicable. The submissions of the applicant failed to address this aspect of the Appeal Tribunal's reasons or demonstrate an arguable basis for contending that those reasons involved any error.

(d) Finally, the orders of the Tribunal at first instance were also based on the existence of a nuisance by reason of the encroachment of the trees upon the property of the respondents. This was a separate and alternative ground for the granting of relief. Hence, even if the ground of appeal was a good one, it would not compel the discharge or variation of the orders that the Appeal Tribunal made.

Ground 4. The Tribunal erred in law in making orders permitting the respondents' representatives to enter the appellant's land to remove the trees, without giving the appellant a right to be heard

40. The applicant submitted that the ACAT made orders that would authorise the respondents to send agents onto the applicant's property. Her submission was "The possibility of these orders does not appear to have been raised at the hearing." It is therefore submitted that she was denied procedural fairness. The affidavit filed in support of the application for leave to appeal did not address this issue.

41. The respondents pointed to the fact that these were orders made after the original hearing before the Tribunal. Therefore, if there was any denial of procedural fairness in relation to those orders, it was a matter which should have been raised upon the appeal to the Appeal Tribunal. It was not raised and should not now be allowed to be raised. In any event the respondent submitted that no procedural unfairness has been or could be demonstrated.

42. I accept the respondents' submission. Had there been a denial of procedural fairness which concerned the applicant then this was remedied by the availability of the appeal to the Appeal Tribunal. However, none of the grounds of appeal raised that issue and hence the Appeal Tribunal did not address that issue. In those circumstances it does not provide an appropriate basis for a grant of leave to appeal.

Ground 5. The Tribunal erred in law in finding that the Appellant's trees constituted a nuisance when they were present when the Appellant and the Respondents purchased their property

43. The submissions made in relation to this ground were directed to a point different to that raised in the ground.

44. The applicant submitted that the ACAT had found that she had adopted the nuisance caused by the root invasion of the pipes due to her failure to act to prevent this damage once it was brought to her attention. The applicant submitted that the ACAT did not make findings as to how the nuisance was communicated to the applicant or when such communication took place. As a consequence the applicant submitted that the finding that she had adopted the nuisance could not be sustained.

45. The respondent submitted that the adoption complained of was part of the decision at the original Tribunal hearing and not subject to any ground of appeal pursued before the Appeal Tribunal.

46. The issue of the applicant's knowledge of the nuisance was specifically addressed in the Tribunal's reasons at [47] where the Tribunal said:

The repeated root invasion over many years and the applicant's communication of the problem to the respondent in different ways satisfy me that the respondent knew that roots in all probability from the cypress trees were encroaching onto the applicant's land and that she did not take reasonable action to prevent either the encroachment or the damage.

47. There was no challenge to this finding in the grounds of appeal to the Appeal Tribunal. In those circumstances the absence of an identified arguable ground of appeal and the failure to raise it in the Appeal Tribunal mean that this ground does not provide an appropriate basis for a grant of leave to appeal.

48. In determining whether to grant an extension of time it is convenient to consider the matters summarised in Practitioner D3.

49. Length of extension sought: The length of delay is slightly more than one month. It is neither trivial nor extensive.

50. Explanation for the delay: While there is uncontested evidence that the applicant suffers from some health conditions which may affect her cognitive ability, the evidence in the form that it was put before the Court is, because of the deficiencies identified above at [14], manifestly inadequate to demonstrate that those health conditions were the cause of the failure to file an application for leave to appeal within the time permitted or at any time prior to 2 November 2017.

51. A matter of general importance: The application for leave to appeal, while raising questions of the jurisdiction of the Appeal Tribunal, cannot really be characterised as raising a matter of general importance. It is fundamentally a dispute between neighbours.

52. Prejudice to the respondents: Any financial prejudice to the respondent is met by the fact that an injunction was granted preventing removal of the trees and that injunction was accompanied by an undertaking as to damages given by the applicant. More significant is the prejudice to the respondents caused by reopening an issue which they were entitled, after almost two years, a large number of appearances before the Tribunal and at least two substantive hearings, to believe had been finally determined by the Appeal Tribunal.

53. Interests of the third parties: The parties did not identify that the interests of third parties would be affected by the grant or refusal of an extension of time.

54. The wider public interest: There are undoubtedly various public interests which would be affected by grant or refusal of an extension of time. There is no particular public interest which would weigh heavily one way or another.

55. Merits of the substantive application: The substantive application is the application for leave to appeal. As will be apparent from what I have said above, the only ground which might provide a basis upon which leave to appeal should be granted is that going to the jurisdiction of the ACAT. I accept that the point raised by the applicant is arguable. Very often matters going to jurisdiction will be matters in relation to which it is appropriate to grant leave to appeal.

56. As will be apparent from the summary below of the history of the proceedings given in relation to the fence proceedings, this is a long running dispute between neighbours. The subject matter of that dispute is nine trees growing along the boundary of the property. It appears to be uncontroversial that the respondents have presently an entitlement to trim all except for the largest of those trees to the extent to which they overhang the property. That is likely to have the effect of killing them. This existing entitlement is relevant to the exercise of discretion here because it indicates that even if leave to appeal was granted and the appeal was successful, that success would be of limited utility.

57. A further matter going to the limited utility of a grant of leave to appeal is the fact that the Appeal Tribunal has authorised the construction of a boundary fence which will require the removal of the largest of the nine trees (tree 4), and will probably require the removal of one other tree (tree 5). For the reasons which appear in the next section of this judgment, I have refused leave to appeal from that decision. The likely loss of those trees in any event further reduces the utility of any appeal.

58. Conclusion: While there is some merit in one of the proposed grounds of appeal, that must be weighed against the lack of any proper explanation for the delay in bringing the appeal. Regard must also be had to the nature of the underlying dispute and the limited utility of an appeal having regard to the existing rights of the respondents and the likely construction of a new boundary fence. On balance, because of the importance of time limits provided upon applications for leave to appeal in order to bring finality to disputes and the absence of any proper explanation for the delay in seeking leave to appeal, I do not consider that it is appropriate to extend the time in which to make the application for leave to appeal.

59. Therefore the order of the Court will be that the amended application for leave to appeal, including the application for an extension of time, dated 14 November 2017 is dismissed.

60. The fence proceedings in this Court are an application for leave to appeal from a decision of the Appeal Tribunal of the ACAT: Campbell v Blackshaw & Evans (Appeal) [2017] ACAT 95. Orders were made by the Appeal Tribunal on 2 November 2017 and reasons were published on 10 November 2017.

61. The applicant has, by application filed 4 December 2017, applied for leave to appeal. In the event that leave to appeal is granted, the grounds of the appeal to be advanced are those set out in a draft notice of appeal filed with the application for leave to appeal. Of those grounds, counsel for the applicant indicated that only three of them were to be pursued. Those grounds are:

3. Did the Tribunal have jurisdiction, in considering a fencing repair matter under the Common Boundaries Act, to make a finding as to the correct boundaries between the two properties.

4. Did the Tribunal err in fact in [determining] the correct boundary was other than the current fence-line between the two blocks.

...

6. Did the Tribunal err in law and in fact in accepting there was evidence from both parties, albeit without reasoning, as to whether tree 5 was required to be removed, in determining by itself that the tree needed to be removed.

62. The first 63 paragraphs of the Appeal Tribunal's decision outlined the history of the proceedings up to the point where the Appeal Tribunal could consider the grounds of appeal that were advanced.

63. A brief summary of that history is as follows.

64. In 2014 the Tribunal heard an application under s 8 of the Common Boundaries Act 1981 (ACT) (CB Act) for orders for replacement of the common boundary fence between the two properties. On 14 May 2014 the Tribunal made orders requiring the construction of a replacement fence. The 14 orders made described the nature of the fence to be constructed, the method of determining which contractor was to undertake any tree removal necessary and which contractor was to undertake the actual fencing work. Unfortunately those orders were drafted so as to require cooperation between the parties in identifying and engaging a fencing contractor. As a result of the respondents communicating to the Tribunal that there had been an apparent lack of cooperation in implementing the Tribunal's orders, the matter was relisted before the Tribunal on

31 July 2014. On that day the Tribunal made further orders specifying by whom the fencing work was to be undertaken and the cost of that work.

65. There has never been any appeal against the orders of the Tribunal made on

14 May 2014 and 31 July 2014. In these reasons they will be referred to as the "2014 orders".

66. The 2014 orders anticipated that advice would be received from the Conservator of Flora and Fauna (a statutory office established under the Nature Conservation Act 2014 (ACT) with duties under the Tree Protection Act 2005 (ACT)) and that the advice may affect the extent of tree damaging activity that could be carried out in the construction of the fence. In December 2014 the Conservator approved the felling or removal of tree 4. The balance of the trees (1-3, 5-9) were found not to be covered by the Tree Protection Act. As a result of the Conservator's decision there was no impediment to the removal of any of the trees.

67. In 2015 the respondents approached the Tribunal again. On 3 December 2015 the respondents filed an application seeking enforcement of the fence orders or, alternatively, variation of those orders so as to effectively implement the 2014 orders. That was the same day when the respondents filed the application which commenced the nuisance proceedings.

68. On 12 February 2016 the applicant filed a response to the variation application that had been filed on 3 December 2015. That response identified an alternative quotation for the fencing work and sought that the orders be varied so as to require the construction of the fence in accordance with the quote.

69. The competing variation applications as well as the nuisance application were listed to be heard together. There were a series of adjournments of the proceedings at the request of the applicant until the matter was to be heard on 24 June 2016. Shortly prior to that hearing, an application was made by the applicant for an adjournment. On

24 June 2016 the Tribunal hearing commenced with a view of the properties. The applicant was not present but her solicitor and the number of other persons who wished to give evidence on her behalf were. Following the view, the solicitor for the applicant sought an adjournment of the proceedings. The Tribunal granted an adjournment in relation to the nuisance proceedings but refused any adjournment in relation to the variation applications in the fence proceedings.

70. The Tribunal rejected the applicant's application for a variation so as to require the work to be carried out by a particular contractor. It did so on the basis that it did not accept that the quote had ever been provided to the respondent in accordance with the earlier orders. There has not been any appeal against that refusal.

71. So far as the respondents' variation and enforcement application was concerned, the Tribunal found that the respondents were entitled to the benefit of the 2014 orders and the applicant was not entitled to further delay their implementation. It therefore made varied orders which identified by whom the work was to be carried out and also clarified the method by which payment was to be effected so as to avoid the necessity for cooperation on the part of the applicant. Those orders were made on 21 July 2016 and written reasons given: Blackshaw & Evans v Campbell (Civil Dispute) [2016] ACAT 80. I will refer to the orders made as "the 2016 orders" and the reasons given as "the 2016 decision".

72. An appeal to the Appeal Tribunal was filed on 12 August 2016. The notice of appeal did not properly identify the orders that were sought if the appeal was successful. The submissions filed on behalf of the applicant identified certain further evidence that was to be relied upon at the hearing of the appeal. The matter was before the Appeal Tribunal on 19 September 2016, 18 October 2016, 24 October 2016 and listed for hearing on

21 November 2016. On the morning of the hearing of the appeal, a new solicitor appeared for the applicant and sought an adjournment of the hearing of the appeal in the fence proceedings as well as the nuisance proceedings. That adjournment was refused. With the leave of the Appeal Tribunal, the applicant filed an amended application and additional evidence which the applicant sought to rely upon. That included:

(a) a quotation from PlaceAce Pty Ltd (Ms Strickland);

(b) a report of PlaceAce Pty Ltd (Ms Strickland);

(c) a report of Resolution Planning (Mr Streatfeild); and

(d) a report of Bevanda Architecture (Mr Bavanda).

73. The respondents did not oppose the Appeal Tribunal taking the further evidence into account.

74. Under s 82 of the ACAT Act, the Appeal Tribunal determined that the appeal should be dealt with as a review of the original decision rather than the hearing of a new application.

75. In order to assess the relevance of the further evidence tendered by the applicant, the Appeal Tribunal considered the scope of the proceedings being heard by the Tribunal on 24 June 2016. It referred to the capacity under s 14 of the CB Act to seek a variation of a determination. It also identified that the power of the ACAT under s 22 of the CB Act to make directions as to the entry of persons onto land was a power available for enforcement of the Tribunal's orders. The Appeal Tribunal identified (at [41]) that the power to vary a determination was one appropriately utilised for the purpose of achieving implementation of the original determination and not a power permitting for an out of time appeal against, or rehearing of, the original matter.

76. The Appeal Tribunal therefore identified (at [45]) that there were three areas in which the fence orders required implementation:

(a) The factual question whether any of the trees required pruning, trimming or removal in order that the fence be constructed on the boundary.

(b) The factual question whether the Conservator had refused permission for the removal of any of those trees, a possibility which had been contemplated by the fence orders.

(c) The currency of the quote for construction which was referred to in the orders of 31 July 2014.

77. The Appeal Tribunal identified that most of the material in the further evidence tendered was directed to issues arising in the nuisance matter (at [48]).

78. The Appeal Tribunal found that the quote provided by PlaceAce Pty Ltd was for a different kind of fence than that required by the fence orders and which was not to be constructed on the common boundary (at [51]). The Appeal Tribunal found that it was not relevant to the issues being considered on 24 June 2016.

79. The same conclusion was reached in relation to the report of Ms Strickland which addressed a number of matters relating to the construction of fences on boundaries (at [50]).

80. The report of the architect (Mr Bevanda) suggested that a fence could be constructed which was built around the trees and did not extend as far forward as that contained in the fence orders. The Appeal Tribunal found that that evidence was irrelevant because the fence orders determined the scope of the fence required to be constructed, including that it extended to the front building line of the properties (at [53]). Further, the possibility of constructing a fence which started and stopped, and hence avoided removing one or more of the trees, might have been relevant to the implementation of the fence orders if the Conservator had advised that the trees must be retained (at [54]). However, the Conservator advised that all relevant trees could be removed and hence that aspect of the evidence was irrelevant.

81. The report of the planner (Mr Streatfeild) went to planning issues relating to construction of a fence. It identified that the fence could be replaced if it commenced back from the relevant trees. The Appeal Tribunal found that these issues were not relevant to the issues which were being considered by the Tribunal on 24 June 2016 (at [56]). The report also expressed the opinion that in relation to tree 5, the tree trunk was 7cm from the boundary and hence the fence could be constructed without removal of that tree. The Appeal Tribunal accepted that this evidence was relevant to the issues raised on the variation application being considered by the Tribunal on 24 June 2016 (at [57]).

82. In the reasons published on 10 November 2017, the Appeal Tribunal considered and rejected each of the grounds of appeal put forward by the applicant except that relating to interest. It varied the order of the Tribunal relating to interest and otherwise confirmed the decision the subject of the appeal (at [103]-[104]).

83. The proposed ground of appeal which were pressed by the applicant are assessed below in order to determine whether they would warrant a grant of leave to appeal.

Ground 3: Did the Tribunal have jurisdiction, in considering a fencing repair matter under the Common Boundaries Act, to make a finding as to the correct boundaries between the two properties

Ground 4. Did the Tribunal err in fact in [determining] the correct boundary was other than the current fence-line between the two blocks

84. While the terms of these grounds of appeal suggest that some findings were made by the Appeal Tribunal about the location of the common boundary, that was not the case. Rather the submissions of the applicant were directed to a somewhat different jurisdictional issue.

85. For the purposes of these grounds it is necessary to understand that the 2014 orders included a requirement that the fence be constructed on the boundary between the properties:

1. That a fence is to be constructed on the boundary between the applicants and the respondent.

...

3. That the fence referred to in order 1 should be constructed on the boundary between the properties as depicted in the Survey drawing attached to the Survey Certificate dated

13 May 2014, prepared by Mail McDonald Barnsley Pty Ltd.

86. Order 3 made as part of the 2016 orders was to the same effect as order 1 of the 2014 orders, and order 4 of the 2016 orders expressly picked up order 3 of the 2014 orders.

87. In relation to these grounds, the argument presented by the applicant has two steps:

(a) First, there is a distinction between a new fence determination (s 4) and a repair determination (s 5) under the CB Act. It is only where an application is made for a new fence determination that there is power, as part of the determination, to determine "the line where the fence should be erected": CB Act s 10(2)(b)). As a consequence, there was no power in this case to determine that the new fence should be constructed on the boundary. Instead, the only power was to permit the construction of a new fence in the position of the existing fence which, the evidence demonstrated, was up to 16cm within the respondents' block.

(b) Second, although in its 2016 decision the Tribunal took the view that s 14 of the CB Act did not empower it to reopen the proceedings, the Appeal Tribunal had power to do so if the orders made were beyond the jurisdiction: Legal Practitioner of the Council of the Law Society of the ACT [2016] ACTCA 35; 311 FLR 108 at [79]- [80]. It therefore should have exercised the power and corrected the jurisdictional error.

88. In assessing this proposed ground of appeal it must be noted:

(a) there was no appeal against the 2014 orders;

(b) these issues were not raised at the time of the application for variation of the orders in 2016; and

(c) the appeal to the Appeal Tribunal did not raise this issue.

Thus this appears to be a point raised for the first time.

89. I accept that there is a distinction between the powers given to the ACAT under ss 10 and 11 of the CB Act. I also accept that the proposition that the powers of the ACAT in making a repair determination are described in a manner which precludes "the determination of the line where the fence should be erected" is, at least, arguable having regard to the distinction drawn between the orders that may be made in relation to a new fence application as opposed to an existing fence application: see ss 10(2), 11(3). The unusual consequence of the acceptance of that argument would be that if, as here, an existing fence which was in need of repair or replacement was built slightly off the common boundary, then any replacement fence would need also to be built off the common boundary. That is an outcome which is unlikely to have been intended having regard to the whole purpose of the CB Act in providing for fences that are on the boundary between properties.

90. Further, it is clear that the CB Act contemplates the necessity for surveys to be undertaken even where what is being done is the replacement of an existing fence. That is made clear by s 2D which provides that the cost of surveying is included in the cost of constructing a new fence in place of an existing fence. There would be no need for such surveying costs if the CB Act compelled the new fence to be erected where the old fence was notwithstanding that the old fence may have strayed from the boundary between the properties.

91. The reference to "the line where the fence should be erected" in s 10(2)(b) appears to contemplate that the fence does not necessarily have to be precisely on the common boundary. There may be physical circumstances where a departure from the actual boundary line is appropriate and this may explain the necessity for such a provision. Such an explanation appears to be consistent with the terms of the New South Wales Act in force at the time of the commencement of the CB Act: see Dividing Fences Act 1951 (NSW) ss 8, 9. However, in the absence of some agreement at the time when the original fence was constructed or some determination that it should be constructed on a line other than the common boundary, the overall purpose of the CB Act tends against an interpretation that would compel that the errors in the location of fences be forever perpetuated by reason of an obligation to replace a fence not located on the common boundary in its existing position.

92. If the applicant's argument was correct, then the only way to remedy the position would be to make an application for a new fence determination to the extent that there was no existing fence precisely on the boundary line. Had the applicant's argument been raised at any previous stage then it would have been open to the respondents to have made an application for a new fence determination to remedy any possible jurisdictional difficulty.

93. There are four reasons why, in my view, leave to appeal on the ground should be refused:

(a) Although the proposition put forward by the applicant is arguable, having regard to the matters referred to above, the argument is weak.

(b) The argument was never raised previously.

(c) There was no appeal from the 2014 decision which permitted construction of a replacement fence along the boundary.

(d) Had the matter been properly raised and been found to be correct, then the respondents could have filed an application to permit the construction of a new fence along the boundary and hence overcome any anomalous jurisdictional impediment to the orders being made.

94. The applicant also advanced the submission that the Appeal Tribunal should not have dismissed the evidence from Ms Strickland concerning the accuracy of the 2014 survey and should have made fresh orders that the replacement fence been erected on the existing fence line. As pointed out above, the Appeal Tribunal had concluded that

Ms Strickland's evidence was not relevant to the issues to be considered at the hearing on 24 June 2016. That conclusion was clearly correct insofar as the proceedings did not extend to a reconsideration of the matters that had been determined by the 2014 orders. However, even if the Appeal Tribunal was in error in finding that the statement of Ms Strickland was irrelevant, the terms of that statement are such that it does not demonstrate that there was any error on the part of the Appeal Tribunal in accepting the accuracy, for the purposes of the proceedings, of the survey plan prepared by a registered surveyor in May 2014. That is because the relevant part of her report involved hearsay statements of a general nature and did not identify any particular error in the 2014 survey plan put before the Tribunal in 2014. It is clear that the best evidence of the location of the trees in relation to the existing fence remained the 2014 survey plan. Therefore, to the extent to which this submission is made in support of ground 4, it does not provide a proper basis for a grant of leave to appeal in relation to that ground.

Ground 6: Did the Tribunal err in law and in fact in accepting there was evidence from both parties, albeit without reasoning, as to whether tree 5 was required to be removed, in determining by itself that the tree needed to be removed

95. The argument of the appellant in relation to ground 6 is that the opinion of Mr Streatfeild, tendered as further evidence before the Appeal Tribunal, should have been accepted so that the Appeal Tribunal ought to have reached the conclusion that the removal of tree 5 was not required in order to construct a replacement fence. The applicant submitted that this evidence should have been preferred to any other evidence that was available to the Appeal Tribunal.

96. The applicant placed significant reliance upon the evidence of Mr Streatfeild, a town planner with experience in development assessment. I note that although Mr Streatfeild does hold a building licence (and was described by the Appeal Tribunal as a "builder"), it is apparent, from the terms of his report which describe his experience and expertise, that his principal area of experience and expertise is town planning and development assessment. The extent of his evidence on this point was:

Survey of other trees - As noted in the survey the remainder of the trees have their trunks fully within block 14 [the applicant's block] and do not impede the construction of the fence.

97. As will be apparent, there are no reasons for this conclusion. There does not appear to be the deployment of any construction expertise in reaching the conclusion that the trees do not impede the construction of the fence. If there is the deployment of that expertise then, because of the absence of any reasons, it is not possible to determine the soundness of the opinion.

98. The reasons of the Appeal Tribunal on this point were as follows:

In relation to tree 5, the Appeal Tribunal is satisfied of the following facts: Tree 5 has a trunk that in May 2014 was 7cm from the boundary. Given the tree is alive and still growing, it can be inferred that the trunk is likely to be closer to the boundary in 2017 and closer again in future years. Tree trunks are not always perfectly circular, they are irregular in shape and can vary in their diameter over the height of the tree. The fence to be constructed will be of hardwood with steel posts, lapped and capped. While the boundary line has no thickness, the fence does - palings are generally about 1cm thick, the posts and rails are several centimetres each. This fence is to be constructed with the palings on the boundary, the posts and rails on the respondents' side. Location of the posts in relation to tree 5 is not specified.

There is no evidence or agreement as to the minimum space required to construct a fence of the kind proposed. Mr Streatfeild, who is a builder but not a fencer, considers that the space between boundary and trunk is sufficient that the fence can be built without removal of tree 5. The evidence of Mr Streatfeild is a bare opinion and does not disclose any reasoning. The respondents, who are not builders or fencers but have been dealing with the fencing contractor who will do the work, say that removal of tree 5 is necessary, but again no reasoning is provided.

When orders for the construction of a fence are varied to enable their implementation, the Tribunal should approach the task with a degree of common sense. Taking into account that competing views have been expressed, the Appeal Tribunal considers that the space available is insufficient in practical terms and that removal of tree 5 is necessary for construction of the fence.

The Appeal Tribunal is satisfied that both tree 4 and tree 5 require removal for construction of the fence. It follows that the Tribunal did not err in fact when making that finding.

99. The 2014 orders and the 2016 orders did not compel the removal of any trees. The 2014 orders permitted "trimming, pruning or removal in order to enable the construction of the fence required by order 1". That was picked up in the 2016 orders which also made express provision as to the identity of the contractor to undertake the "removal of trees necessary to enable the construction of the fence" (order 6). That the trees required to be removed included trees 4 and 5 is made clear by the reasons given for the Tribunal's decision which make express reference to the need to remove trees 4 and 5 (at [38]), the fact that the removal of trees 1, 2 and 3 were not required to be removed for the purpose of replacing the fence in question (at [41]) and the fact that the Conservator had approved the removal of tree number 4, the only tree for which approval was required (at [40]).

100. The basis for the conclusion that trees 4 and 5 were required to be removed appears to be the quotation, referred to in the 2016 orders, provided by the arborist used by the fencer who was to carry out the work (2016 decision at [38]).

101. Both the submissions of the applicant in this Court and the reasons of the Appeal Tribunal approached the matter on the basis that a positive determination by the Tribunal that the trees 4 and 5 had to be removed was required. That is apparent from the Appeal Tribunal's characterisation of the issues that were before it as including "The factual question whether any of the trees required pruning, trimming or removal in order that the fence be constructed on the boundary" (at [45]). As the applicant correctly points out, if that was the case then there was no express finding by the Tribunal in the 2016 decision that tree 5 was required to be removed in order to construct a fence and no reasons given for that conclusion. However, it is apparent from the terms of 2016 decision that the task being undertaken was the enforcement of the 2014 orders in circumstances where time had passed and the decision of the Conservator (to the effect that there was no barrier to the removal of any of the trees) was then known. So far as the trees that were required for removal, that was a matter which was, consistent with the 2014 decision, for the fencer constructing the fence. It is for that reason that the Tribunal in the 2016 decision referred to getting "a current figure for the cost of the fencing including the removal of trees necessary to undertake the work" (at [38]).

102. That is also consistent with what appears in the transcript of the proceedings before the Tribunal on 24 June 2016. The Tribunal had determined to adjourn the proceedings so that an updated quote for the undertaking of the work could be obtained by the respondents and provide a basis for updated figures to be included in varied orders but that "[o]therwise I don't think that order needs to be varied". There was then the following exchange:

MS EVANS: I would like some clarity about the trees and which trees to be removed, or---

MR BLACKSHAW: Well, the order was on the boundary line up to the building line.

HIS HONOUR: Yes.

MR BLACKSHAW: So it's just following that.

HIS HONOUR: It's following that order.

MS EVANS: So you are happy - just to get really good clarity on this, you are happy for me to talk to the fencer, for us as the applicants to talk to the fencer and for him to tell us what would work as a fence.

HIS HONOUR: Yes.

MS EVANS: And - and---

HIS HONOUR: On the boundary line.

MS EVANS: Yes. And as long as it complies with the Conservators report we can go ahead and get a quote for that.

HIS HONOUR: Yes.

MS EVANS: And a quote for an arborist to do the work---

HIS HONOUR: Yes.

MS EVANS:---if it's required.

HIS HONOUR: Because the order is for the tree - for the fence to go on the boundary line.

MS EVANS: Yes, okay.

HIS HONOUR: Okay. Whatever has to be done

MS EVANS: Okay.

HIS HONOUR: All right.

MS EVANS: Okay.

103. The appeal to the Appeal Tribunal asserted that: "The Tribunal erred in law in ordering the removal of trees 4 and 5 in the absence of evidence requiring it." That ground of appeal was misconceived having regard to the permissive nature of the orders, although it is true that the orders were based upon quotations which contemplated the removal of those trees. Given that the removal of those trees was permitted by the 2014 orders and there was no appeal from that decision, it was open to the Tribunal in 2016 to proceed in a manner that it did - which simply enforced the existing orders based upon quotations for that work in the light of the fact that there was no barrier to the removal of trees as a result of the decision of the Conservator.

104. The proposed ground of appeal directed to the consideration of the evidence by the Appeal Tribunal is based upon the manner in which the Appeal Tribunal dealt with the matter. That in turn was based on a misconception, generated by the applicants ground of appeal to the Appeal Tribunal, which asserted that the Tribunal had ordered the removal of trees 4 and 5. Rather, what the Tribunal had done was made an order which contemplated the removal of those trees as part of the process of variation or enforcement of the 2014 orders so as to bring the cost components up to date. The Tribunal did not approach the matter as if it was rehearing of the application from the beginning, but rather accepted that, subject to a decision by the Conservator, the issues had been previously determined by the Tribunal.

105. Because this ground of appeal and the ground of appeal to the Appeal Tribunal were both based on a misconception of the process undertaken by the Tribunal in 2016, I decline to grant leave to appeal in relation to that proposed ground of appeal.

106. The above reasons have explained the reasons why, when considered individually, it is not appropriate to grant leave in relation to each of the proposed grounds of appeal in the fence proceedings. When considered collectively the position is no different. Therefore the application for leave to appeal will be dismissed.

107. For the reasons outlined above, both of the applicant's applications are to be dismissed. The orders of the Court are:

a. The amended application for leave to appeal, including the application for an extension of time in which to appeal, dated 14 November 2017 is dismissed.

b. The injunction granted on 2 November 2017, and continued until further order on 8 November 2017, is discharged.

c. Any application by the respondents to enforce the undertaking as to damages given in relation to the injunction referred to in order 1(b) must be filed and served within 14 days.

2. In proceedings SCA 86 of 2017, the application for leave to appeal dated

3. In both proceedings and subject to order 4, the applicant is to pay the respondents' costs of the proceedings.

4. Any application for a different costs order, including any fixed sum costs order, must be filed and served within 14 days.

I certify that the preceding one hundred and seven [107] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.