Elwell v Chav

Notice of Appeal and history of appeal proceedings

1. The Notice of Appeal was filed on 11 June 2024. In the Notice of Appeal, the appellant says that the decision was received by her on 16 May 2024. There is no challenge to these facts. Consequently, we are satisfied the appeal was filed in time.
2. The Notice of Appeal states the grounds of appeal as follows: 1. There was sufficient evidence for the Tribunal Member to make a finding that the paling fence was not on the boundary and was in the wrong position. 2. [The appellant] was not given procedural fairness by the Tribunal Member at the hearing on 14 May 2024.
3. The appellant sought an order for the removal of the whole fence and that a new dividing fence be "build on the boundary line between the two properties from the front line to the back line". The fence proposed was a treated pine lapped and capped with boards on the appellant's side. The appellant said the cost of the new fence should be shared between the parties. However the respondent should "pay for any increases in the fencing costs and the costs of clearing the boundary of any plants roots, vegetations, objects, drillings, etc". The appellant also said the respondent should be required to move "the corner colorbond panel of the property and leave the boundary free for the new fence".
4. The appellant sought leave to appeal. The basis for seeking leave was set out in her Notice of Appeal.
5. First, she said the decision was not fair and equitable as she had "difficulty expressing [herself] at the hearing and answering the Tribunal Member's questions". She also said the Member did not give her time to say what she wanted to say regarding the case. This included the Member ignoring her when she raised her hand a few times to speak. She says she was denied an opportunity to provide more information, having been told to write down what she wanted to say but not being given a chance to read out what she had written.
6. The appellant also challenged the Tribunal's statement in paragraph 5 of the Reasons that she tolerated the line of the paling fence. She said this was not correct, having sought to have the matter dealt with by the Community Justice Centre (CJC). The attempt to have the matter dealt with by the CJC was raised with the previous owner. However, the appellant said the previous owner "didn't want to fix the problem and sold the property in late 2021 to the respondents". In this regard the appellant noted the "paling fence has been there for about 10 years". She says before that time there was no dividing fence between the properties which had common gardens.
7. As to when she found out about the fence not being built on the boundary, this occurred following a car accident in 2019 "which destroyed the front section of the fence, approximately 3 metres". At this time she obtained a quote from a fencing contractor to repair the damage who informed her the fence was not on the boundary line.
8. There was no dispute in this appeal that when the respondents purchased the property, they installed a colorbond panel gate and fencing at the front of the property in about September 2023, part of which now forms the fence which is the subject of this dispute. The respondents installed this section of fence, the original paling fence section having been destroyed in the circumstances described in the previous paragraph, to secure their property and prevent their children from being able to get out.
9. The second challenge was that the decision of the Tribunal was against the weight of evidence. On this aspect the appellant said that her survey diagram prepared by C&A Surveyors (appellant's survey) showed the fence was not on the boundary and that the Tribunal was in error in determining the appellant had failed to prove this fact. She also referred to photographs of the paling fence and colorbond section and said that these photographs showed gaps and dilapidation.
10. The appellant says the Tribunal should have concluded that the paling fence was not on the boundary, the appellant's survey evidence being sufficient to prove this fact and that her photographic evidence showed that the existing fence was not sufficient.
11. Thirdly, the appellant sought leave to rely on new evidence (found at Tab 3 of her bundle of documents filed 25 July 2024 Appellant's Bundle/AB). This included a covering letter to the appellant's survey diagram, photographs (some of which were found in other parts of evidence) and documents recording communications after the original hearing.
12. In relation to the new evidence, we do not admit this material in the appeal because it was reasonably available to the appellant and could have been provided at the original hearing: see Sch 4 cl 12(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act); Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 (Al-Daouk).
13. The respondents filed a Reply to Appeal dated 26 June 2024. In short, they contended that the Tribunal was correct to dismiss the application because of the current fence was "good, stable and sufficient condition" as shown by evidence at the hearing. As to the location of the fence and whether or not it was on the boundary, the respondent said: There was insufficient data from appellant's survey report to indicate that our dividing fence is not on the boundary line/position incorrectly and encroaching over her property side by 20 cm.
14. Further, the respondents said the appellant was afforded procedural fairness as she was given the opportunity "to speak uninterrupted when bringing forward her case". Contrary to the appellant's assertion, the respondents say there was sufficient time to conclude the hearing which was conducted in "a timely manner".
15. Following the filing of the Notice of Appeal, the proceedings were listed for callover before the Appeal Panel at which directions were made for the filing and service of evidence and submissions.
16. The appellant subsequently filed a bundle of documents, which we have referred to as "AB" above, which included submissions.
17. The directions included a requirement for the parties to file a copy of the sound recording and a transcript of those parts of the proceedings upon which they sought to rely if what happened at the hearing was being relied upon. While the appellant provided a narrative as to what she says happened at the hearing, (see the document entitled "Transcript" which is part of AB Tab 2), a complete transcript was not provided by either party. All that was provided was a USB drive which was said to contain the sound recording. We will return to this matter below.
18. The appeal was heard on 27 August 2024.
19. The parties appeared in person, the appellant being assisted by an interpreter.
20. At the commencement of the hearing we identified the documents upon which each party sought to rely. We also explained to the parties that there was a right to appeal on a question of law. Otherwise leave to appeal was required. We explained Sch 4 cl 12(1)(a)-(c) regulated the circumstances in which leave could be granted and that the case of Collins v Urban [2014] NSWCATAP 17 set out the principles applicable to the grant of leave.
21. We also drew to the parties' attention the decision of the Appeal Panel in Purcell v Chadwick [2018] NSWCATAP 250 (Purcell) which dealt with the meaning of "sufficient dividing fence" under the Act
22. We noted that the issue of whether the appellant was afforded procedural fairness appeared to be a question of law. Otherwise the appellant appeared to challenge the factual findings of the Tribunal and therefore leave to appeal was required.
23. In answer to our question about whether the documents were complete, the appellant handed up and sought to rely on various documents which we marked as follows: 1. MFI 1 - a bundle of photos, the first of which showed bricks on the ground near some fencing. 2. MFI 2 - a second bundle of photos, the first of which will showed a surveyors peg. 3. MFI 3 - a further bundle of emails between the parties, the first of which was an email from the appellant to the respondents dated 24 July 2024.
24. At this point we note that MFI 1 and 2, to the extent they are photographs not already in the Appellants Bundle, constitute new evidence reasonably available at the time of the hearing and should be rejected: see Al-Daouk above. MFI 3 contains documents generally irrelevant to a determination of this appeal and are rejected on this basis. To the extent MFI 3 contained any statements relevant to a determination of the proceedings at first instance, this evidence should have been provided to the Tribunal at the original hearing and should not be admitted in the appeal.
25. In relation to the legal issues which we identified and in connection with the failure to provide the transcript, we asked the appellant whether she wished to seek an adjournment to obtain legal advice and/or to provide a complete transcript. The adjournment application was made by the appellant but was opposed by the respondents.
26. After hearing submissions from each party, we dismissed the adjournment application and provided oral reasons. In short, we were not satisfied the appellant had established grounds warranting an adjournment.
27. In relation to the transcript, we indicated that if the parties made submissions about what was said at the hearing, they could renew any request to provide the transcript after the hearing. If no such request was made, we indicated we would proceed on the basis it had not been provided. In this regard we explained to the appellant that, without the transcript, each party would not know precisely what the other was referring to nor would we be able to make rulings about what happened at the original hearing. In doing so we noted that it was inappropriate for us to listen to the sound recording and make rulings in the absence of the parties about matters which they had not raised during the hearing of the appeal.
28. Subsequently, each party made oral submissions concerning their respective positions. We will refer to these submissions as necessary below.
29. However, no request was made by either party to provide a full transcript to us.
30. Finally, in addition to dealing with new evidence and identifying the substantial issues raised by the appellant, we discussed with the parties the appellant's survey and the surveys provided by the respondents. Those surveys are found at AB Tab 8. Following those discussions, the parties agreed the following facts: 1. The appellant's survey did show the boundary fence, the subject of this dispute, was 0.24m (or 240 mm) inside her boundary at the Victoria Road end of the fence and 0.18 m (or 180 mm) inside her boundary at the "Lane" end of her property; 2. the respondents' survey, while showing the paling fence the subject of this dispute, did not record its position by reference to the boundary; and 3. the Tribunal was therefore incorrect in concluding the appellant failed to prove the existing fence was not constructed on the boundary line.
31. However, in making these concessions, the respondents did not accept that these facts alone meant the fence was insufficient. Rather, they maintained their position that the fence was sufficient, both in terms of position and physical attributes, and no order should be made under the Act. Consequently, the Tribunal was correct to dismiss the application. The respondents also relied on the fact that the fence on the other side of the appellant's property was not built on the boundary line which operated as a benefit to the appellant as the fence encroached upon that neighbour's land.

Consideration

1. As noted above, there is a right of appeal on a question of law or otherwise leave to appeal is required.

Question of law

1. The question of law is whether the appellant was denied procedural fairness.
2. The issue of procedural fairness was raised in two ways. First in written submissions the appellant said she was not afforded an opportunity at the hearing to provide additional information, despite being told she would be provided an opportunity to do so.
3. We have not been provided with a complete copy of the transcript to be able to decide whether or not the hearing process miscarried in connection with this matter. We were told by the respondents that the appellant had an uninterrupted opportunity to present her case.
4. The issues raised by the appellant for the Tribunal at first instance and on appeal related to the position and physical properties of the fence. Relevant evidence had been provided prior to the original hearing. There was, apparently, no witnesses other than the parties.
5. In the absence of a sound recording, we are not satisfied there has been any relevant denial of procedural fairness. Further, as the appellant had an opportunity in her case in chief to explain to the Tribunal why order should be made, it is difficult to see how the failure to allow a reply (if such a failure occurred) had any impact on the outcome of these proceedings. Certainly our attention was not drawn to any particular evidence or material which the appellant was deprived of presenting. As to any difficulty in expressing herself, again no relevant factual matters were identified by the appellant that might demonstrate miscarriage of the hearing process.
6. Secondly, the appellant said in oral submissions to the Appeal Panel that the Member had treated her unfairly by not requiring the respondents to provide a written report. This complaint was said to arise because the Member had raised with her the fact that she had not provided a written report from her surveyor, other than the survey diagram.
7. In the absence of a full transcript, and understanding what, if anything had been said on this topic in the proceedings at first instance, we are not satisfied the appellant has established any relevant unfairness. In any event, this issue only goes to how each of the parties' survey should be interpreted. As this issue has been agreed (as set out above), any injustice that may have arisen will be addressed by our consideration of the now agreed survey evidence, a matter to which we will return below.
8. Consequently, the appeal on the question of law fails.

Leave to appeal

1. As to the other grounds raised by the appellant, these are challenges to factual findings and require leave. They go to the Tribunal's conclusion the fence was sufficient.
2. In order to determine this aspect of the appeal it is appropriate to first set out the applicable principles concerning what is a sufficient dividing fence and the Tribunal's jurisdiction to make an order.
3. The Tribunal has jurisdiction to make a fencing order only where there is no sufficient dividing fence: see Act s 6 ; Alwiah v Watts & Anor [2004] NSWSC 948 approved in Larney v Johannson [2013] NSWCA 409.
4. As to what is a sufficient dividing fence, s 4 of the Act provides: 4 Determination as to "sufficient dividing fence" 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
5. In Purcell, at [25]-[28], the Appeal Panel said of s 4: 25 The section provides a list of factors as part of an inclusive definition, and otherwise requires the Tribunal "to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of [the Act]". It is inappropriate to attempt to prescribe all the circumstances which might be relevant. 26 However, as is evident from the list of factors in the Act, they include a consideration of the existing fence, the purposes for which "the adjoining lands are used or intended to be used", and the "privacy or other concerns of the adjoining landowners". 27 Taken together, it is clear that the nature of the adjoining land, and how a landowner wishes to use and enjoy their land, are relevant factors in determining the sufficiency of a fence. 28 The question of whether a particular fence is sufficient is one of degree. As recognised by Adams J in Larney v Johannson [2012] NSWSC 1297 at [11], a fence might be sufficient "but some fences might be more sufficient than others". While his Honour was considering what might be a sufficient fence for the purpose of an order under s 14 of the Act, his Honour's comments are nonetheless relevant to examining the sufficiency of an existing fence.
6. These principles are relevant in determining the present appeal.
7. The Tribunal's findings can be summarised as follows: 1. The appellant had not established the existing fence was not on the boundary line as there was no evidence from a surveyor to establish this fact. 2. Even if the existing fence was not on the boundary line, it had been there for a period of 10 years, a matter which she had tolerated "for about 5 years". 3. While there was some gaps and palings on the fence which had become dislodged, these matters were "easily rectifiable by simply securing the paling against the crossbeam by knocking in the nails". The fact repairs were required did not mean the fence was insufficient.
8. Having regard to the agreement on appeal that the Tribunal was in error concerning its conclusion the appellant failed to prove the fence was not on the boundary line, it is appropriate to grant leave to appeal as the decision was against the weight of evidence and the appellant may have suffered a substantial miscarriage of justice. Consequently, we will grant leave on the question of whether the existing fence is sufficient.
9. Two matters were raised by the appellant to support her claim that the existing fence was not a sufficient dividing fence.
10. First was that the fence was not on the boundary line.
11. In making this submission, the appellant referred to various photographs depicting her driveway and access to her property from Victoria Road. While she submitted that the photographic evidence discloses the fence was bowed in some locations, we were not referred to any evidence that would suggest that the use of her property was adversely affected. In this regard, the photographs show the driveway was accessible and unimpeded by the existing fence.
12. In Purcell at [33]-[35]. At [36] the Appeal Panel said: 36 Whether a particular encroachment is such as to render the fence insufficient, within the meaning of the Act, requires a consideration of the nature and extent of any encroachment. In this regard, it seems to us that some deviations from the boundary line are permissible and would not justify a conclusion that any existing fence, in a good state of repair, was otherwise insufficient. For example, it is self-evident that minor deviations from the boundary line or deviations from the boundary line due to the varying width of fencing materials would not usually render a fence insufficient.
13. While there might be an encroachment, in our opinion the evidence does not establish that the position of the fence off the boundary meant the fence was not a sufficient dividing fence. The fence had been in its current position (save for the section at the front which had been replaced by the respondents) for a period in excess of 10 years. It operated satisfactorily as a dividing fence, a matter which the appellant did not seek to challenge at any time from when the fence was built up until she found that the fence was not on the boundary line.
14. The second matter which the appellant raised was the state of the fence. We were presented with various photographs provided to the Tribunal at the original hearing. The appellant did not provide all evidence from the proceedings at first instance concerning the physical features of the fence. The missing evidence included the full transcript and the video referred to by the Tribunal originally provided by the respondents.
15. It is clear from the Tribunal's reasons that, while the Tribunal is satisfied some repairs or maintenance work was required to the fence, when examining the fence as a whole it was not in a state of disrepair that would warrant a conclusion that it was insufficient and/or that it should be demolished and rebuilt.
16. Our examination of the evidence does not lead to a different conclusion. While there is a gap at the point where the existing paling fence abuts the colorbond fence installed by the respondent, as necessary, the existing paling fence could be made vertical at this point in any gap appropriately filled. Otherwise, as the Tribunal concluded, individual palings could be re-nailed to appropriate crossbeams. The fence is not otherwise in a state that warrants demolition.
17. It follows that, while the Tribunal was incorrect in its conclusions concerning the survey evidence, no error has been established in connection with its ultimate conclusion that the existing dividing fence is sufficient.
18. In light of this finding of fact, the Tribunal had no jurisdiction to make an order as to fencing work under s 14 of the Act. Consequently, the Tribunal was correct to dismiss the application and the appeal against that order should also be dismissed.

Orders

1. In their reply to appeal, the respondents sought costs.
2. A substantial portion of those costs were for their personal time. As we explained to the respondents, they are not entitled to recover personal costs relating to the time spent in attending the Tribunal and preparing their evidence: see eg Levy v Mercedes-Benz Australia/Pacific Pty Ltd (No 2) [2024] NSWCATAP 155 at [12]. While the respondents also claimed a small amount for disbursements, they ultimately decided not to pursue any claim for costs.
3. As such, the orders of the Appeal Panel are as follows: 1. The appellant has leave to appeal the question of whether the existing fence is sufficient but the appeal on that question is dismissed. 2. The appeal is otherwise dismissed. 3. No order as to costs.

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: 03 September 2024