Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 79

Common Boundaries Act 1981 ss 2, 5, 11

Cases cited: Bishop & Anor v Sakkara & Anor [2020] ACAT 45

B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar [2013] ACTSC 219

Connelly v Allan [2011] ACTSC 170

De Flumeri v Canberra Discount Chemicals Pty Ltd & Anor [2016] ACAT 50

Fox v Percy [2003] HCA 22

House v R [1936] HCA 40

Krown Living Pty Ltd v Lando [2016] ACAT 149

Mansour v Dangar [2017] ACAT 49

Minister for Immigration and Citizenship v Li [2013] HCA 18

The Legal Practitioner v The Council of the Law Society of the ACT [2011] ACTSC 207

Theodorelos v Nexus Projects Pty Limited [2009] ACTSC 149

APPEAL TRIBUNAL: Presidential Member H Robinson

1. This is an appeal against a decision by the original tribunal in relation to a fence dispute under the Common Boundaries Act 1981 (the Act).
2. I delivered brief oral reasons on the day of the hearing. The appellant subsequently requested that I provide a statement of reasons. This is that statement.

1. The parties agree that their common fence requires replacement. The appellant suggested a 1.8 metre high Colorbond fence, and the respondents agreed to this proposal. That remained the common position at the hearing. The only matter in contention as at first instance, and on appeal, was the colour of the fence.
2. The appellant wants the fence to be in the colour "jasper" to match her existing boundary fences. The respondents requested "rivergum" to match a fence that was replaced on the other side of their property. The fence on the other side of the respondent's property was replaced during the period that the appellants and the respondents were in communication over their common fence. The appellant approached the third neighbour to try to reach a compromise but was not successful.
3. After being filed with the Tribunal, the application in this matter was set down for a 'conference and immediate determination' (CID). Under the CID process, standard directions are made for the filing of evidence and submissions prior to hearing. On the date of the hearing the parties first attend a preliminary conference, and, if they do not reach agreement, the matter proceeds to hearing later that day.
4. As is usual for CID matters, the hearing before the original tribunal was expeditious and informal. After hearing from the parties and considering the evidence before it, including photographs, the original tribunal ordered that the fence be the respondents' choice of "rivergum".
5. The hearing member gave brief, conversational style reasons, and recorded those reasons, including answering the appellant's questions about her reasoning. She then recorded her reasons more comprehensively on the bench sheet.
6. I summarised the original tribunal's reasons for the parties at the commencement of the appeal and have also done so below.

1. The nature of an appeal in the Tribunal has been discussed in numerous cases, and I will only briefly summarise them here.
2. The right to an appeal in the Tribunal is found in section 79 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). As was observed by Burns J in B & T Constructions (ACT) Pty Ltd v Construction and Occupations Registrar,[1] summarising Refshauge J in The Legal Practitioner v The Council of the Law Society of the ACT:[2]

...the effect of s 79 is to give a party to any original application (except those specified in s 79(2), not presently relevant) a full right of appeal within the ACAT. The ACAT is then empowered by s 82 effectively to elect to deal with the appeal as a hearing de novo [s 82(a)] or as a rehearing [s 82(b)].[3]

1. The appellant cited errors of law and errors in the exercise of discretion as the basis for the appeal. No relevant issues of credibility arose. The matter was dealt with as a rehearing.
2. A 'rehearing' is a thorough review of the original decision, on the original evidence and any fresh evidence that is 'exceptionally'[4] admitted, to determine whether the original tribunal fell into an error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong.[5]
3. In De Flumeri v Canberra Discount Chemicals Pty Ltd & Anor Presidential Member McCarthy summarised the overall approach to such an appeal as follows:

It is not sufficient for the appellant to persuade the Tribunal that it might have (or would have) decided the matter differently had it been the decision-maker. The appellant must first show error (or a mistake) in the original decision. Only if that occurs may the Tribunal on appeal set aside the original decision. It may then substitute its own decision by reference to the facts and law that applied to the claim before the original tribunal, save for circumstances where leave is granted for further evidence to be received as was given.[6]

1. As was observed by the High Court in House v R,[7] at least in the case of discretionary decisions, it may be open to infer an error where the outcome is clearly unreasonable or unjust. However, the appeal tribunal should not interfere with a discretionary decision unless satisfied that there has been an error in the exercise of discretion.[8]
2. However, to be a basis for setting aside the original decision, an error must be one that can make a material difference to the outcome.[9]
3. Consequently, the question before me is whether there was a material error, either manifest in the decision, or capable of being inferred from a plainly unjust outcome.

1. In her notice of appeal, the appellant submitted that that the original tribunal erred in finding that:

The decision to give the respondents their colour of choice (Rivergum) was made purely on the basis that they have the 'ugly' side of the fence.

With a Colorbond fence there is no 'ugly side'. All posts have channels into which the railing and panels are secured, in other words the posts and railings are central and visible to both neighbours, the view is equal to both neighbours.

1. In support of her case, the appellant sought to admit new evidence, including that only a portion of the respondents' fence is visible to the respondents, whereas the whole of the 22 metres of the fence is visible to the appellant. I considered this latter point in the appeal, without the need for leave, because it was evident from an examination of the material before the original tribunal.
2. She also alleged that the original tribunal erred in the exercise of discretion by giving disproportionate weight to who had the 'ugly side of the fence'.

1. Section 5 of the Act provides the power for the Tribunal to make an order for the repair or replacement of an existing fence. Section 11(2) provides that, at such a hearing, the tribunal must determine whether the fence is in need of repair or replacement, and section 11(3)(b) provides that, if the fence does need to be replaced, the Tribunal may also determine "the nature of the replacement fence that should be erected."
2. Section 11(3) and (4) of the Act deal with who pays. Broadly, the Tribunal must not require a party to contribute more than "1/2 the cost of erecting a basic fence" between the properties, unless satisfied that it is it is not practicable for a basic fence to be erected between the parcels of land; or that there are special circumstances that require a fence, other than a basic fence, to be erected. A 'basic fence' is 1.5 metres high, with precast concrete posts, wooden rails, and wooden palings nailed to the rails.[10]
3. Sections 11(3) and (4) of the Act are primarily relevant to deciding who pays for the fence, or the difference between a standard fence and a more expensive one. However, a standard fence may well be the default position where the parties cannot reach agreement on the nature of the fence and there is a satisfactory basis to order an alternative.
4. Other than subsections (3) and (4), the Act is silent on how the Tribunal may exercise its discretion. The colour or type of the replacement fence is, as the original tribunal said, a discretionary decision.
5. That is not to suggest that the discretion is unfettered. As with any Tribunal decision, there must be a reasonable and rational basis for making it. What those reasons are will vary from case to case.
6. In Bishop & Anor v Sakkara & Anor Senior Member Anforth usefully set out some of the matters that may be relevant to deciding a new fence application. A new fence determination is where there is no existing fence, but the factors still provide a useful guide to the kind of considerations that are relevant when considering a replacement fence:

Sections 4 and 10 of the Act do not impose any specific criteria upon the Tribunal's decision making in relation to a new fence. Hence the Tribunal's evaluative judgement is constrained only by those facts that are taken to have formed part of the legislative intent of the Act. A common boundary is important for various reasons, including:

(b) constraining children and pets to their yards;

(e) abating noise nuisances from adjacent properties; and

Owners of land come and go, but the block and fences remain. The fence has to continue to serve the above purposes notwithstanding changing ownerships. For this reason, the personal views of the present owners cannot be fully determinative of the Tribunal's decision.[11]

1. Factor (f), aesthetics, will usually play the most significant role in the choice of colour. Unfortunately, however, what is 'aesthetic' is a highly subjective choice, upon which reasonable people will often strongly disagree.

1. The original tribunal took evidence from both parties and then made findings about the nature and colour of the fences on the properties and the reasons for the parties' respective choice of colour. The presiding member noted that the appellant had two new fences in the colour "Jasper", and the wooden common fence. The respondents had one fence in Rivergum, and wooden fences that were painted green. The alignment of the poles on the common fence put them on the respondents' side of the fence. The presiding member noted that the side of the fence with the poles is typically considered the "ugly side of the fence."[12]
2. Noting that the parties were still in disagreement over the colour, the presiding member then asked the parties if they "just want me to pick the colour?" It appears they did.
3. Hence, the presiding member observed that:

It's a completely arbitrary decision. I'm going to pick green. I'm picking green because, Ms Kaufhold, you don't have to look at the poles.[13]

1. When asked for further clarification, the original tribunal clarified that the respondents had had the "ugly" side for a period of time, and the orders were therefore a way of "sharing":

MS KAUFHOLD: Okay. May I ask you what swayed you to decide on the Rivergum, given that I have two fences in one colour and the Huangs only have one fence in the Rivergum.

PRESIDENTIAL MEMBER: Because yours are in a different material as well, and because the other party has had the ugliness of the poles for their [sic] period of time and it's actually just a way of sharing.[14]

1. In the reasons recorded on the bench sheet, the presiding member gave further reasons, recording that:

[The respondent] had all 3 fences a different colour, different materials, and has the poles on [their] side of the fence.

1. While words to the effect of the above were not clearly stated to the parties during the hearing, the presiding member had gone through the evidence as to the appearance of each party's fences carefully and made findings. Further, I set out these reasons for the parties at the commencement of the hearing.
2. At the conclusion of the hearing, the original tribunal made a series of facilitative orders, Order 3 of which states:

The replacement fence is to be made of 1.8 metre high Colorbond in Rivergum (green); oriented so that any poles are visible from the respondents property.

1. After the presiding member had explained her decision, and pronounced her orders, the appellant suggested a two-tone fence. The presiding member suggested the applicant get a quote and discuss it with the respondents, and confirmed that she could amend the orders if they agreed.

1. It is not is dispute, on appeal, that on a Colorbond fence the poles that connect the panels are equally visible on both sides and there is no 'ugly side'.
2. The appellant says the original tribunal fell into error in assuming that the respondents would continue to have the 'ugly side' of the fence when they would not.
3. Having considered both the transcript of the original hearing and the words used in the presiding member's orders, I am not convinced that the appellant's reading of the original tribunal's decision and orders is correct. The presiding member's orders clearly state that any poles would be oriented so as to be visible from the respondents' side of the fence. The wording suggests she did not know whether the replacement fence would continue to have the poles but wished to ensure that status quo would continue if they did.
4. Further, even assuming for the moment that the presiding member did fall into error in relation to the placement of the poles on the replacement fence, I am not satisfied that the error was a material one. I am satisfied that the member's exercise of discretion was more strongly influenced by the respondents having had 'the ugliness of the poles' for 'some time'.
5. For completeness, I note that the appellant says the presiding member made another error here. She submits that until recently trees, foliage and other material would have obscured much of the respondents' view of their fence, such that they would not have had to look at the poles at all. However, even if I accept this as correct (and I have no reason not to), it does not establish an error in the presiding member's finding that the respondents had, at that time, the less desirable side of the fence.
6. The original tribunal also had a second reason for deciding as it did. At the time of the hearing, the respondents had three differently coloured fences, and the appellant two. The original tribunal appears to have considered that the fair decision was one that resulted in both parties have one mismatched fence, thus sharing the inconvenience. The appellant did not contest the original tribunal's factual findings about the fence colours, but the exercise of discretion that followed upon them.
7. As set out above, I am not satisfied that there no material error of fact in the first instance decision. However, even assuming the original tribunal did err in assuming that the status quo in relation to the poles would continue, the tribunal member still had two other reasons for exercising her discretion the way that she did. Consequently, I am not satisfied that the factual error had a material effect on the original decision such that I should set it aside or substitute an alternative decision.
8. The second issue is whether the presiding member otherwise erred in the exercise of her discretion.
9. It is important to be again clear about the Appeal Tribunal's role when reviewing discretionary decisions. This is an appeal by way of rehearing, not a first instance or de novo hearing. In these circumstances, the appeal tribunal is obliged to conduct a full and proper review of the evidence before the original tribunal, with a view to determining whether the original tribunal has fallen into error, but it is not permitted to simply rehear the matter and offer a second opinion - after all, were it to do that, what would be the point of the original hearing?
10. In considering whether there was an error in the exercise of discretion, the question is whether, having regard to the scope of the legislative regime, the original tribunal made some error, such as acting on wrong principle or taking an irrelevant matter into account[15] or making a decision outside bounds of justice or reason, having regard to the legislative scheme[16]. The appellant identified a number of issues that she argued the presiding member should have given greater weigh to, but that a different tribunal may have balanced the considerations differently is not sufficient to find an error in the legal sense. I am satisfied that the reasons the presiding member articulated for the exercise of that discretion were reasonable having regard to the legislative framework and no error in the exercise of exercise of discretion error was identified.
11. Accordingly, the appeal must be dismissed.
12. That said, it was clear that the appellant feels very strongly about the colour of her fence. I accept her evidence that the colour of her fence has an impact on her wellbeing. She sees more of her fence then the respondents do theirs, both because of the alignment of her property, and probably (on her evidence) because, as a garden-proud retiree, she spends more time in her yard. She was obviously distressed by the decision of the original decision, and by this decision. Accordingly, at the end of the hearing of the appeal, I attempted to conciliate an outcome whereby the respondents would agree, in the name of good neighbourly relations, to a different coloured fence, or to a two-colour fence. The respondents declined to do so. They cited the appellant's conduct throughout this process, including unnecessarily personal comments she made about them during the hearing, as a reason for refusing to compromise. That is their right. Still, it is most unfortunate that the relationship between these neighbours have come to this over the colour of a fence.

[1] [2013] ACTSC 219

[2] [2011] ACTSC 207

[3] B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar [2013] ACTSC 219 at [12]

[4] In Fox v Percy [2003] HCA 22 at [22]-[23] per Gleeson CJ, Gummow and Kirby JJ

[5] E.g. Connelly v Allan [2011] ACTSC 170, Refshauge J at [12]-[13]; Cited in De Flumeri v Canberra Discount Chemicals Pty Ltd & Anor [2016] ACAT 50 at [16]; also Fox v Percy [2003] HCA 22

[6] [2016] ACAT 50 at [27]

[7] [1936] HCA 40; cited with approval in In the Matter of AB [2018] ACAT 18

[8] Mansour v Dangar [2017] ACAT 49 at [22]; Theodorelos v Nexus Projects Pty Limited [2009] ACTSC 149 at [78], House v R [1936] HCA 40

[9] See Krown Living Pty Ltd v Lando [2016] ACAT 149

[10] See section 2, definition 'basic urban fence'.

[11] [2020] ACAT 45 at [5]-[6]

[12] Transcript of proceedings 10 February 2021, page 11, line 7

[13] Transcript of original proceedings 10 February 2021, page 11, line 18

[14] Transcript of original proceedings 10 February 2021, page 17, lines 16-23

[15] House v R [1936] HCA 40

[16] See Minister for Immigration and Citizenship v Li [2013] HCA 18