This appeal arises as result of proceedings commenced by the appellants under the Dividing Fences Act 1991 in the Consumer and Commercial Division of the New South Wales Civil and Administrative Tribunal for the construction of a Colorbond fence between their property and the respondents' property in Beecroft.
The appellants are the registered proprietors of a large property in Beecroft. They received approval to subdivide their land into three lots in October 2016. The subdivision is yet to be registered. Their property shares a boundary with, among other parcels of land, land owned by the respondents.
After a hearing on 26 March 2019 the Tribunal Member made the following orders:
'1. The parties are directed to negotiate and seek agreement as to an appropriate registered surveyor to be engaged, who has not undertaken prior work for, or at the direction of, either party, to undertake a Boundary Marking Survey of the boundary between No 88 and No 94 Malton Rd, Beecroft.
2. If agreement as to the identity of a registered surveyor is not reached between the parties by 23 April 2019, the parties are to approach the Board of Surveying and Spatial Information NSW or their nominee to nominate a registered surveyor to undertake a Boundary Marking Survey of the boundary between No 88 and No 94 Malton Rd, Beecroft and such registered surveyor, being a registered surveyor who has not undertaken prior work for, or at the direction of, either party, shall undertake a Boundary Marking Survey of the boundary between No 88 and No 94 Malton Rd, Beecroft.
3. A sufficient fence on the boundary between Nos 88 and 94 for the purposes of the Dividing Fences Act 1991 is a planting of native or other species of low flammability trees to form a hedge to grow to a height of 1.8 metres to the southern extent of the building envelopes on Lots 2 and 3, with a 1 metre gap every 12 metres if the extent of the building envelopes of Lots 2 and 3 exceeds 12 metres.'
Shortly before the hearing of the appeal, the appellants asked that the hearing be adjourned. The respondents opposed any adjournment saying that they wished to have the dividing fence issue resolved as expeditiously as possible. They were concerned that having been unsuccessful in the proceedings at first instance, the appellants were now trying to delay a resolution of the dispute and the building of the type of fence as ordered by the Tribunal.
We heard that application at the commencement of the hearing of the appeal. After hearing argument, we indicated that we were unlikely to grant the adjournment and we proceeded to hear the parties on the appeal itself.
The appellants' Notice of Appeal challenges order 3. Their Grounds of Appeal are:
'1. No 88 Malton Road Beecroft is one parcel of land adjoining 8 other properties.
2. DA320/2015 consent issued by Hornsby Shire Council approved the subdivision of one lot to three, however the land is not subdivided at this stage and it is registered under 88 Malton Rd Beecroft LOT 4 DP 714483.
3. In the approved subdivision plan, the subdivided land is identified as Lots 1, 2 and 3.
4. Proposed lot 3 is neighbouring with No 90, 92A, 94 Malton Rd Beecroft and 8 Argyle Place Cheltenham. Proposed Lot 2 is neighbouring 88, 86, 86A and 10 Argyll Place Cheltenham.
6. Application COM 18/52404 was lodged seeking an order for the erection of a fence on the Boundary with 94 Malton Rd and no other neighbouring property was included in the application.
7. The Tribunal went beyond its power in making a determination on fencing for properties that were not in the applicant's application and not owned by the Respondent.'
In their reply submissions, filed in the Tribunal on 21 June 2019, the appellants state:
'The purpose of seeking a review of the Orders made by M Tibbey Senior Member is not to enable the Appellants to erect a Colourbond fence. The Appellants intent is to obtain orders are that are practical, clear and adequate.'
At the hearing of the appeal, Mr Mehr confirmed that the appellants no longer sought the erection of a Colorbond fence.
In the circumstances, we treat the appellants as having withdrawn the appeal against order 3 of the orders made on 26 March 2019, insofar as the order states what a sufficient dividing fence is.
In these same reply submissions, the appellants made it clear that they maintained their challenge to order 3 to the extent that it made reference to Lots 2 and 3. It did so on the basis that by these references the Tribunal had made orders affecting other boundaries than that between the properties of the appellants and the respondents. This contention was, clearly, misconceived.
More significantly, however, they also made it clear that they challenged order 3 because it was ineffective or inadequate in that it failed to deal with a number of aspects concerning the fence that needed to be dealt with.
[2]
Limited right of appeal
The appellants can appeal as of right if there is an error of law, and with leave, if one of the grounds in cl 12 of Schedule 4 of the CAT Act can be established: to s80(2)(b) of the Civil and Administrative Tribunal Act 2013 (the 'CAT Act').
[3]
Application to adjourn the hearing of the appeal
The application to adjourn the hearing of the appeal is refused for the reasons set out below.
Mr Mehr explained that the reason an adjournment was sought was because he anticipated that there may be a conflict between order 3 and future orders in the Land and Environment Court concerning the approval of the development application the appellants had made in respect of their property.
The particular matter that Mr Mehr focussed upon was a proposed condition of development (Condition 48) that required that all new fencing be non-combustible. Mr Mehr also referred, in general terms, to a landscape plan that it appears will be a condition of development consent.
In support of the adjournment application, Mr Mehr referred us to the decision of Commissioner Gray in the Land and Environment Court on 24 June 2019 concerning the appellants' development application. The decision followed a hearing on 27 and 28 February 2019. The parties to those proceedings were the appellants and Hornsby Shire Council. The proceedings had been commenced before the hearing in the Tribunal at first instance.
The appellants had commenced the application for a dividing fence before the development application had been approved and before the conditions for development consent were known.
The outcome of the decision of Commissioner Gray was that the matter was listed for further submissions about an amended landscape plan and deferred commencement conditions on 16 July 2019. A direction was made for the appellants to provide an amended landscape plan by 8 July 2019. These directions followed the Commissioner's finding that the development application ought to be granted subject to appropriate conditions of consent.
We note that nothing in the decision refers to proposed Condition 48 or to fencing along the boundaries of the property.
During the course of argument on the adjournment application, and in response to our pressing Mr Mehr for evidence about proposed Condition 48 and its status, we heard by telephone from Mr Mehr's solicitor, Mr David Tyrell at McKees Legal. From that telephone conversation, it emerged that proposed Condition 48 had been on the appellants' solicitors file concerning the development application since 26 February 2019 - that is before the hearing in the Tribunal at first instance.
Furthermore, it appears that the proposed conditions of development consent were "largely agreed" between the appellants and the Council by 13 March 2019, nearly two weeks before the hearing in the Tribunal below.
In this regard, we note the following passages from the decision of Commissioner Gray:
84 The conditions of development consent, which were provided to the Court on 13 March 2019, have been largely agreed between the parties.
However, they require the imposition of three deferred commencement conditions. The first requires a registered plan of subdivision to be submitted to the Council, which I accept is appropriate given that the subdivision is required to be effected before development consent for the erection of dwellings can commence.
85 The second proposed deferred commencement condition requires a site-specific tree protection plan to be approved by the Council, and the third requires an amended landscape plan to be approved by the Council….' (Emphasis added)
Despite these matters, Mr Mehr told us that the Tribunal at first instance was not informed of any issue arising out of proposed Condition 48, nor was it told of the existence of such a proposed condition, because he was not aware of it at the time. Clearly, however, his solicitor in relation to the development application was aware of the proposed condition before the hearing in the Tribunal on 26 March 2019.
The Tribunal at first instance was not informed of proposed Condition 48 despite the fact that it was informed of the Land and Environment Court proceedings. This appears from the following passage at [1] of the:
'The Applicant had development consent for subdivision of one block into three lots and seeks to build on those lots. Proceedings have been heard but decision reserved in the Land and Environment Court regarding the structures to be built.'
During the course of the argument, it also emerged that neither the Council not the Land and Environment Court had been informed of the orders made in the Tribunal below.
In all these circumstances, we think it would be unfair to the respondents to delay the resolution of the dividing dispute by an adjournment of uncertain duration whilst the appellants attempt to resolve the problem of the conflict between order 3 and proposed Condition 48. It seems to us that, to a large extent, the appellants have been the authors of their own difficulties.
As to this, the appellants brought the proceedings for an erection of a dividing fence. They did so before the conditions of development consent were known. They did so without referring the Tribunal at first instance to proposed Condition 48, even though relevant evidence about Condition 48 was reasonably available to the appellants at the time of the hearing of the Tribunal at first instance.
As to the question of impact of an amended landscape upon the orders for a dividing fence, the appellants have not supplied any material to show that this will or may be inconsistent with the type of fence the subject of order 3.
For the same reasons, we do not think that these circumstances justify the disruption to the business of Appeal Panel that would be a consequence of an adjournment.
Accordingly, we think the interests of justice and efficiency of the Tribunal are best served by us proceeding to determine the appeal.
[4]
The appeal - consideration
The appellants appeal, as developed in their submissions, is that:
1. The Tribunal's decision was manifestly inadequate as it did not deal with the responsibilities of the parties to carry out the works;
2. The Tribunal failed to give directions as to the manner in which the fencing works will be carried out, namely engaging an ecologist, an arborists and landscape contractors;
3. The Tribunal failed to make affective orders to the extent that the orders are partially ineffective and not usable;
4. The way that order 3 is expressed is not clear since the exact location of the dividing fence is not determined, the references to 'building envelope' by reference to lots 2 and 3 relate to building envelopes which remain to be determined, and the length of the dividing fence including its starting and finishing points are not specified.
We have had regard to the application filed in the Tribunal where the appellants stated in section 4 that the orders they were seeking were:
1. An order determining the Boundary or line on which the fencing work is to be carried out;
2. An order determining the fencing work to be carried out (including the kind of dividing fence involved);
3. An order determining the manner in which contributions for the fencing work are to be apportioned or re-apportioned between the parties or the amount that each adjoining owner is liable to pay for that work;
4. An order determining which portion of the dividing fence is to be constructed or repaired by either owner;
5. An order determining the time within which the fencing work is to be carried out.
The orders made by the Tribunal at first instance as set out at [2] do not address all of the matters raised by the appellants in their application, and in particular those stated in [32] (1), (3), (4) and (5).
In Rathchime Pty Ltd v Willat [2017] NSWCATAP 87 an Appeal Panel explained that a failure to deal with matters before the Tribunal for determination will amount to an error of law: see at [70] and [71]:
Given the Tribunal Member's failure to determine the matters that we have referred to at [32], the appeal must be allowed on the basis of an error of law.
We have decided that the most appropriate course is to remit the proceedings to Senior Member Tibby pursuant to s81(1)(e) of the CAT Act for the Senior Member to determine:
1. the boundary or line on which the fencing work is to be carried out and the length of the boundary fence;
2. which of the parties is to be responsible for implementing the work contemplated by order 3;
3. the manner in which contributions for the fencing work are to be apportioned between the parties; and
4. the time within which the fencing work is to be carried out.
It is apparent from this that we consider that it is appropriate to remit order 3 to the Senior Member for the purposes of making clear just what is to be the length of the dividing fence. We think that the reference to the 'southern extent of the building envelopes on Lots 2 and 3' is unclear in circumstances where there has not been cross referencing to a plan or diagram which, clearly, depicts lots 2 and 3 and the building envelopes referred to. The same can be said in connection to the reference to 'a 1 metre gap every 12 metres if the extent of the building envelopes of Lots 2 and 3 exceeds 12 metres.' It seems to us that the best way to deal with this now would be to use the survey which is to be obtained.
At the appeal hearing the parties informed us that Tribunal orders 1 and 2 had not been completely complied with. It seems clear that the Tribunal Member considered that the survey that was to be carried out pursuant to orders 1 and 2 would result in a survey which would be used to determine the boundary between No's 88 and 94, although that was not stated in those terms.
As we say, we think that a survey of the type contemplated by orders 1 and 2 ought to be used for the purposes of implementing order 3. In order for that exercise to be completed without any further delay, we made the following directions on 2 July 2019 pursuant to s81 of the CAT Act :
'The respondent Miss Tam is to organise the survey referred to in order 1 of the Tribunal's decision dated 26 March 2016 within 14 days of 2 July 2019.
2. Each party to this appeal must pay one half of the total survey costs (including GST).
3. Miss Tam has informed the Tribunal that the surveyor agreed upon by the parties has agreed to bill each party for half of the survey costs (including GST).'
[5]
Orders
For the above reasons, we make the following orders.
1. The application for an adjournment is refused.
2. The appeal is allowed.
3. Proceedings COM 18/54204 are remitted to Senior Member Tibbey to determine :
1. the boundary or line on which the fencing work is to be carried out and the length of the boundary fence;
2. which of the parties is to be responsible for implementing the work contemplated by order 3;
3. the manner in which contributions for the fencing work are to be apportioned between the parties; and
4. the time within which the fencing work is to be carried out.
1. In the remitted proceedings the parties must provide to Senior Member Tibbey the survey which was referred to in orders 1 and 2 of her 26 March 2019 decision.
[6]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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
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Decision last updated: 16 July 2019