Nichol v Fricker

"1. Mr Nichol is to cause the undertaking of the erection of a fence on the dividing line between his property and number 17 on or before 30 August 2023.

The fence/s are to be no greater than 1.8m high from ground level. - take note of the controls that are important to the Local Government authority as provided by Mr Fricker.

The fence is to be 16.9 m for the first section

The fence is to be 11 m for the second section. The height of the fence in the second section is 1.2m (it cannot be more than 1.8 m high.

The fence is to be on the surveyed - dividing line.

The fence can be installed on the existing wall and installed with due care and skill.

The fence is to be a green colour in colorbond raked and stepped as is required by the slope.

The fence is to be installed by Total Landscaping.

Mr Nichol is to pay the contractor 100% of the installation price which is $7660.93.

Mr Fricker is to pay Mr Nichol his 50% share (reimbursement) upon completion of the fence."

1. The appellant filed a renewal application on 12 January 2024 seeking orders for the payment by the respondent of $2,508.93, being half the cost of the fence which the appellant had had installed.
2. The respondent filed his own renewal application on 12 February 2024, alleging that the fence the appellant had had constructed did not comply with the orders of the Tribunal, and seeking orders that the fence be altered to comply with those orders. The respondent took particular objection to the height of the fence in both sections. However, his renewal application identified seven respects in five areas where the respondent alleged the orders had not been complied with.
3. In response to the question "How have the orders not been complied with?", the respondent's renewal application stated:

"1. Height The fence from ground level is 2.3m high not 1.8m.

The fence in the second section is higher than 1.2m.

2.Installation The fence has not been installed on the existing wall.

The existing wall was cut without care and skill and this was not required by the Orders.

3.Colour The fence is not green.

4. Stepping The fence is not stepped as required by the slope.

5. Contractor The fence was not installed by Total Landscaping."

1. The renewal applications were listed for hearing on 3 May 2024 before the member who had made the orders of 11 July 2023. On that occasion the Tribunal reserved its decision and made directions for the parties each to file an expert report measuring the height of the fence from ground level at 1 m intervals for its full length.
2. Both parties provided reports, the appellant provided a report from a builder, the respondent provided a report from a surveyor.
3. The Tribunal published its reserved decision on 4 July 2024 ordering:

"(1) On or before 30 August 2024 Mr Fricker is to pay for the fence to be altered so that it complies with my orders of 11 July 2024 [sic, 2023]. There are to be no sleepers inserted (unless the two parties agree to keep some existing sleepers). This will involve removing panels and posts that are higher than 1.8m from ground level (according to the Surveyors measurements) and replacing with fence panels and posts that result in a fence no higher than 1.8m from ground level. This will require steps to be placed in the fencing. The colour is not an issue that offends either party. Panels and posts that are 1.8m from ground level or lower can be retained.

(2) Mr Fricker is to pay Mr Nichols the 50% share of the cost of the original fence, less the cost to make the relevant changes within 7 days of the repairs being made and the invoice presented to Mr Nichol."

1. The operation of those orders has been stayed pending determination of the appeal.

1. The right to renew proceedings arises pursuant to cl 8 of sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), which provides:

8 Renewal of proceedings in respect of certain Division decisions

(1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal.

(2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with.

(3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act.

(4) When proceedings have been renewed in accordance with this clause, the Tribunal -

(a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or

(b) may refuse to make such an order.

(a) the operation of an order has been suspended, or

(b) the order is or has been the subject of an internal appeal.

"20 I find that the surveyor's ... measurements show that the height of the fence from existing ground level are all above 1.8m save for measurement at posts save for post height (1), (3), (4), and (5).

21 I find that the fence, measured from ground level upon its length as demonstrated by the measurements of both experts is more than 1.8m in parts.

22 I find that Section 2.34(5)(b) of the SEPP (Exempt and Complying Development codes) 2008 provided by Mr Nichol in his documents at page 10, is not relevant because the fence is not stepped.

23 I prefer the evidence of Mr Smart, a surveyor to that of the evidence of the builder because I consider that a surveyor using specialise equipment would be able to more accurately measure the height of a fence from the ground level.

...

25 In any event the experts agree that the fence is higher than 1.8 in a similar degree.

...

27 I find that the fence is too high in places and this is not in compliance with my orders."

1. In respect of the respondent's complaints that the fence had not been built on top of the wall and that the fence was not stepped, the Tribunal found that the fence had not been built on top of the wall, because the respondent had not permitted the contractor to build the fence on top of the wall, but that the orders did not require the fence to be built on top of the wall so that there was not any breach of the orders in that regard, and that the fence was required to be stepped (specifically along section 2) and was not stepped.
2. The Tribunal dismissed an allegation by the appellant that the respondent had moved the "set up" from the dividing line.
3. The Tribunal further held

"41 I find that the installation of sleepers, not raised by the parties but relevant to my orders also amounts to non-compliance.

42 I further find that the installation of the sleepers may also have impacted on the height of this non-stepped fence. "

"60 When Mr Fricker would not let Mr Nichol build the fence on the wall and thus had to be built beside or abutting the wall does - there is no explanation provided to me as to why it could not be stepped.

61 I find that Mr Nichol has installed a fence which is significantly non-compliant with my orders. It is the wrong colour, the wrong height, is not stepped, includes sleepers and the wrong contractor was engaged.

62 Accordingly, for all of the above reasons I make the following orders."

1. An internal appeal to the Appeal Panel does not provide a losing party in the Tribunal at first instance with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
2. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) NCAT Act.
3. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law:

(1) Whether there has been a failure to provide proper reasons;

(2) Whether the Tribunal identified the wrong issue or asked the wrong question;

(3) Whether a wrong principle of law had been applied;

(4) Whether there was a failure to afford procedural fairness;

(5) Whether the Tribunal failed to take into account relevant (ie, mandatory) considerations;

(6) Whether the Tribunal took into account an irrelevant consideration;

(7) Whether there was no evidence to support a finding of fact; and

(8) Whether the decision is so unreasonable that no reasonable decision-maker would make it.

1. The Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25] - [40] provided further guidance in relation to what is a question of law and the categories of questions of law. At [26] - [28] the Appeal Panel stated:

"26 ... great care must be taken in drafting a notice of appeal to ensure that it is apparent, on its face, that the ground of appeal raises a question of law. If not, leave to appeal is necessary.

27 Where, however, there is a question of law in substance, a court (and, it follows, an Appeal Panel) has discretion (to be exercised judicially and in the interests of justice) to direct its formal notification in an amended notice of appeal: Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 at [60]. In appropriate circumstances, the Appeal Panel may elect to waive the requirement to formally lodge an amended notice of appeal, given its mandate to act "with as little formality as the circumstances of the case permit ... without regard to technicalities or legal forms": NCAT Act, s 38(4); Wollondilly at [19]. Where the party is not legally represented, a more generous approach is warranted: Kudrynski at [50]-[51]. This is an aspect of ensuring procedural fairness.

28 When dealing with self‑represented parties, the Appeal Panel has in many instances considered for itself whether a question of law is raised, applying John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) at [12]: Eastman v Nepean Blue Mountains Local Health District [2024] NSWCATAP 94 at [11], FSO v Secretary, Department of Education [2024] NSWCATAP 154 at [34], El‑Mohamad v Lin [2024] NSWCATAP 139 at [31], Johnson v Nachar [2024] NSWCATAP 135 at [14], Batshon v Suttons Motors Homebush Pty Limited [2024] NSWCATAP 114 at [19], Craig v Shallita [2024] NSWCATAP 112 at [16]."

1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 to the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

(a) the decision of the Tribunal under appeal was not fair and equitable; or

(b) the decision of the Tribunal under appeal was against the weight of evidence; or

(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where:

... there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.

1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:

"(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."

1. The Grounds of Appeal attached to the Notice of Appeal extend over 23 paragraphs, many of which raise challenges to findings of fact, and which are generally argumentative rather than stating any question of law, or even specific identified error.
2. If grounds of appeal are prolix, unnecessary or repetitive, the grounds may be summarised by the Appeal Panel to condense the grounds into appropriate issues for consideration: S_ze Tu v Lowe_ [2014] NSWCA 462 at [101]- [106].
3. Applying the approach to grounds of appeal prepared by unrepresented parties suggested in the numerous cases referred to in Unique Commercial Group v Cusumano at [28], we identify the following questions of law arising from the appellant's grounds of appeal:

(1) Whether the Tribunal erroneously determined it had jurisdiction to determine the renewal application without determining whether the fence constructed by contractors retained by the appellant was a sufficient dividing fence for the purposes of the Dividing Fences Act.

(2) Whether the Tribunal failed to apply s 16 of the Dividing Fences Act which provides that "substantial compliance with the terms of any ... order referred to in section 15 is sufficient for the purposes of this Act"

(3) Whether the Tribunal denied the appellant procedural fairness:

(a) In the course of the hearing, by:

(i) Requiring the appellant to present his case first;

(ii) Denying the appellant an appropriate opportunity to present his case;

(iii) Permitting the respondent to present new evidence not submitted before the hearing;

(iv) Refusing to receive evidence tendered by the appellant; and/or

(v) Showing apparent bias

(b) After the hearing by:

(i) Failing to allow the parties the opportunity to cross examine the experts who provided reports regarding the height of the fence; and/or

(ii) Failing to have regard to submissions filed by the parties in relation to the expert reports.

1. The Notice of Appeal also sought leave to appeal on the basis that the decision was against the weight of evidence and that the decision was not fair and equitable. The Notice of Appeal contained four paragraphs in support of the proposition that the decision was not fair and equitable and 37 paragraphs in support of the proposition that the decision was against the weight of evidence.
2. Although the Notice of Appeal did not identify the availability of new evidence as a ground for the grant of leave to appeal, at the hearing the appellant also sought to rely upon further evidence. We will proceed on the basis that the appellant is also seeking leave to appeal on the ground that there is substantial new evidence that was not reasonably available at the time of the hearing.
3. We will deal with the questions of law we have identified, before turning to consider whether leave to appeal should be granted.

1 Failure to consider whether the fence was a sufficient fence

1. The appellant's submissions in respect of this ground are misconceived. The Tribunal has jurisdiction on a renewal application pursuant to cl 8 of Sch 4 to the NCAT Act to determine whether the Tribunal's orders (in this case the orders of 11 July 2023) have been complied with and to make different orders (if appropriate) if the orders have not been complied with. In exercising that jurisdiction, the Tribunal was not required to determine whether there was a sufficient fence on the boundary between the parties' respective properties.
2. The Tribunal's jurisdiction to make orders pursuant to the Dividing Fences Act, requiring the carrying out of work to construct a dividing fence or requiring a party to contribute to the cost of a dividing fence, is contingent upon there not being a sufficient fence at the time a fencing notice is served. However, the Tribunal's jurisdiction to consider a renewal application, where it is alleged that orders requiring the construction of a dividing fence have not been complied with, is not contingent upon a determination whether the fence purportedly constructed in accordance with the orders is a sufficient dividing fence. See Minifie v Maxwell [2020] NSWCATAP 30 at [84] - [85] and [96].
3. Accordingly, the appellant's first ground of appeal must fail.

2 Failure to apply section 16 of the Dividing Fences Act

1. The Tribunal set out the terms of s 16 of the Dividing Fences Act in par [9] of its decision.
2. The Tribunal's finding at [61] was that there was significant non-compliance with the orders.
3. That finding is inconsistent with any suggestion that the fence, as constructed, was substantially compliant with the orders.
4. The appellant's real complaint about the Tribunal's decision in this regard is that the finding of significant non-compliance was incorrect. That is a question of fact in respect of which the appellant would require leave. We will address the appellant's concerns in this regard in considering whether we should grant leave to appeal.

1. As we have outlined above, the appellant submitted that he had been denied procedural fairness in a number of respects.
2. The first respect was that the appellant was required to present his case first. As the respondent submitted, it did not matter which party went first, provided both parties had a fair opportunity to put their case and respond to any matters raised by the other party. The appellant provided a partial transcript of the hearing. A perusal of that transcript does not provide any support to the proposition that the appellant was not given a fair opportunity to present his case and respond to any matters raised by the respondent.
3. The appellant suggested that the conduct of the Tribunal at the commencement of the hearing raised a reasonable apprehension that the Tribunal was prejudiced against the appellant. At the suggestion of the appellant, we have listened to the first five minutes of the recording of the hearing. We do not find in the exchanges between the Tribunal and the parties during that period any basis for a finding that a fair-minded lay observer might reasonably apprehend that the Tribunal member might not bring an impartial mind to the resolution of the parties' respective renewal applications: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]- [7].
4. In the course of a hearing, including a hearing involving unrepresented parties, the Tribunal is entitled to be robust in asking questions in order to get to the crux of the issues requiring determination. Asking questions of the parties does not indicate predetermination of the issues.
5. As we understand the appellant's submissions concerning the respondent being permitted to lead new evidence, the evidence in question was two photographs showing the extent to which fence as constructed blocked the respondent's views from his deck. The appellant did not point to any part of the transcript in which this evidence was addressed. It is not clear whether the appellant objected to the tender of that evidence.
6. It does not appear in any event that the appellant was prejudiced by the tender or receipt of that evidence. As the Tribunal made clear, the evidence of both experts was that the fence was constructed higher than provided for by the orders. The impact of the construction of the fence at that height on the respondent's amenity and enjoyment of his property was not a factor affecting the Tribunal's determination.
7. The evidence which the appellant complained that the Tribunal had failed to accept, consisted of photographs of the appellant's wife standing next to the fence. The Tribunal required the parties to provide expert evidence concerning the height of the fence. Evidence showing a person standing next to the fence, even when that person's height is known, is of substantially lesser weight than the evidence of the experts. We note that the photos show the appellant's wife standing on the concrete footpath adjacent to the fence and not actually on the ground.
8. Again, the appellant did not point the Appeal Panel to any part of the transcript where the evidence was rejected. There is no basis upon which the Appeal Panel can assess the reasons for the rejection of the evidence or the circumstances in which it came to be tendered.
9. In respect of the appellant's claim to have been denied procedural fairness through not being given the opportunity to cross examine the expert surveyor who provided the report relied upon by the respondent, we note that s 38 of the NCAT Act permits the Tribunal to determine its own procedure where the Act or rules do not otherwise make provision and requires the Tribunal to act with as little formality as the circumstances of the case permit.
10. The Tribunal directed the parties to obtain and file expert reports concerning the height of the fence. The evidence required was a measurement of the fence at 1 m intervals. As the Tribunal noted, both parties provided a report and both parties' reports recorded that the fence exceeded 1.8 m height at a number of places.
11. The transcript of parts of the hearing provided by the appellant did not disclose fully what discussion took place between the Tribunal and the parties before the Tribunal made the orders for the filing of expert reports.
12. In those circumstances it is impossible to identify what the expectations of the parties were concerning the treatment of the reports received from the parties' respective experts. The appellant does not suggest that he sought the opportunity to cross examine the expert retained by the respondent.
13. The requirements of procedural fairness in the context of the provision of the opportunity to cross examine witnesses were discussed at length by the Appeal Panel in Body Sculpting Clinics (Bondi Junction) Pty Ltd v Kokkinis [2021] NSWCATAP 362 at [16] - [30].
14. At [19] - [20] the Appeal Panel stated:

"19 In the case of Cheung v Yang [2013] NSWSC 1694, ... Harrison J said that Mr Cheung had not been denied procedural fairness in circumstances where the Consumer, Trader and Tenancy Tribunal had directed that there was to be no cross-examination of any witnesses in the proceedings. His Honour said:

'59. ... The only witnesses that Mr Cheung identified as a potential candidate for cross-examination was Mr Bae, and then only on the question of some relatively small amounts paid to him for plumbing and electrical work. Denying Mr Cheung the opportunity to cross-examine him would not attract a legitimate complaint in the circumstances, as well for the reason that the contest about the quantum of the cost of the works effectively disappeared in the wake of the Tribunal's acceptance of the value of the works performed by Mr Cheung.

60 It was wholly within the legitimate power of the Tribunal to dispense with cross-examination if it thought fit in accordance with the terms of s 28 of the Act. The only limitation upon its power to do so consists in its obligation to conform to the rules of procedural fairness. Refusing to permit Mr Cheung to cross-examine Mr Bae did not offend those rules.'

20 Thus, whilst never doubting that procedural fairness needed to be applied by the Tribunal, his Honour held that no practical injustice had occurred through the Tribunal's refusal to allow Mr Cheung to cross-examine Mr Bae. This underlies the basal point that not only must procedural unfairness be shown, but an appellant also needs to demonstrate that the procedural unfairness caused some practical injustice.

1. As the Appeal Panel held in Raslan v Pan [2015] NSWCATAP 12, at [27] - [28], in holding that the appellant in those proceedings had not been denied procedural fairness where the Tribunal had failed to ask whether she wished to cross examine a witness:

"27 ... [A]s pointed out by Harrison J in Cheung v Yang [2013] NSWSC 1694 at [58], even a direction there is to be no cross-examination may not amount to a denial of procedural fairness. Rather, what must be considered is whether the party complaining has in fact been denied a relevant opportunity in all the circumstances.

28 The focus of the law in any enquiry about procedural fairness is not on fairness in an abstract sense, but rather on avoiding practical injustice (Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam (2003) 214 CLR 1, Gleeson CJ at 13-14 [37])."

1. As those authorities establish, procedural fairness does not require that the parties should always be given the opportunity to cross-examine any witness whose evidence is relied upon by the opposing party. Even if it could be said there had been a failure to afford procedural fairness to the appellant through failing to allow cross-examination of the surveyor, the question would remain whether the appellant suffered some practical injustice through not having the opportunity to cross-examine the surveyor whose report was relied upon by the respondent.
2. In circumstances where both experts found that the fence exceeded the height specified in the orders of 11 July 2023, it cannot be said that the appellant suffered any practical injustice through not being able to cross-examine the surveyor.
3. The Tribunal declined to consider the submissions filed by the parties with their respective expert reports. It did so on the basis that no direction had been made for the filing of further submissions. Again, we do not have a full transcript of the discussion at the hearing at the time the decision was reserved and orders were made for the filing of the expert reports. Clearly, no direction was made for the filing of further submissions. The appellant's submissions do not explain why it is said that the Tribunal's decision not to receive submissions filed without leave involved a denial of procedural fairness.
4. For the foregoing reasons, we are not persuaded that the appellant was denied procedural fairness in any of the respects raised by the appellant in the Notice of Appeal.

1. We have dealt with a number of the matters raised by the appellant as grounds for the grant of leave to appeal in the course of addressing the questions of law raised by the appellant's Notice of Appeal. The essence of the remaining matters raised by the appellant as grounds for the grant of leave to appeal is:

(1) That the Tribunal found that the fence as constructed was too high without recognising:

(a) That there was a substantial difference in ground level between the two blocks, so that where the fence was measured at 2.3 m on the respondent's side it was substantially less on the appellant's side with the result that reducing the height of the fence to 1.8 m on the respondent's side would leave the fence only 1.4 m high on the appellant's side; and

(b) That the council's planning requirements, which the appellant identified as the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (the SEPP) did not require the fence to be less than 1.8 m high for its full length on a sloping block and required the height of the fence to be measured from "existing ground level" rather than the original ground level.

(2) That the Tribunal determined that the fence as constructed is "significantly non-compliant" with the orders in respects which were not significant or relevant.

Paragraph [61] of the decision is set out above. The appellant submitted that: the installation of sleepers was not an issue raised by the respondent; the colour had not been contested by the respondent; that the identity of the contractor engaged to build the fence was not relevant; and that in any event the contractor named in the orders had not been available.

(4) That the decision was not fair and equitable by reason:

(a) That the direction that the parties provide expert reports imposed unreasonable costs on the parties disproportionate to the issues in dispute;

(b) That the Tribunal accepted the report from a surveyor filed by the respondent ["as more expert"] in preference to the builder's report filed by the appellant;

(c) That the outcome of the orders left the appellant paying more than 50% of the overall cost, because the effect of the orders was that the appellant was to bear the whole cost of the changes to the fence.

1. We will deal with each of these issues in turn.

1(a) Failure to acknowledge the difference in height between the two blocks

1. The Tribunal's order required the fence to be constructed at a particular height. The Tribunal had evidence that the fence was built above that height from both of the experts retained by the parties. Based upon that evidence, the Tribunal found that the fence had been constructed too high. That was a finding of fact open on the evidence and cannot be said to be a finding against the weight of evidence.
2. The renewal proceedings were not an opportunity to challenge the terms of the original orders. It appears that the appellant's issue arising from the difference in ground level is one that could have been, but was not, the subject of consideration at the original hearing. Orders having been made, the parties were required to comply with them. The Tribunal found that the orders had not been complied with. It is no answer to that finding that, if the difference in ground level had been taken into account at the time of making the original orders, different orders may have been made.

1(b) Failure to acknowledge the council's planning requirements

1. The requirements of the relevant planning instrument were irrelevant to the question whether the fence as constructed complies with the Tribunal's orders.
2. The orders required the appellant to "take note of the controls that are important to the local government authority as provided by [the respondent]". However, the orders required the fence to be no greater than 1.8 m from ground level. The planning controls might have required the fence to be constructed at less than 1.8 m from ground level and permitted the fence to exceed that height in some circumstances, but they did not require the fence to be constructed at a height greater than that specified in the orders.
3. The Tribunal appears to have accepted, at [49], that, if the fence had been constructed as a stepped fence, "the maximum height of any step could have been 2.2 m". However, as the Tribunal noted, the fence was not stepped.
4. For the same reasons as outlined in the previous section, the Tribunal's treatment of the requirements of the SEPP cannot be said to have been against the weight of evidence or have been not fair and equitable.

1. Although the expression of the Tribunal's reasons is not ideal, it is clear from the reasons and orders that the substantial and sufficient reason for the orders made by the Tribunal was the excessive height of the fence.
2. The Tribunal recognised, at [8] and [9], that substantial compliance with the orders was sufficient for the purposes of the Dividing Fences Act. The Tribunal determined that there was not substantial compliance.
3. It is tolerably clear from the Tribunal's reasons, that that conclusion was not predicated on findings in relation to the use of sleepers, the colour of the fence or the identity of the contractor which had constructed the fence. The Tribunal's decision cannot be said to have been not fair and equitable or against the weight of the evidence.

1. The appellant submits that the orders of 4 July 2024, in requiring the fence to be "altered so that it complies with [the] orders of 11 July 202[3]" were impossible to comply with. Many of the reasons put forward by the appellant in support of this submission have been addressed above.
2. The Tribunal's orders of 4 July 2024 clearly proceed on the assumption that the fence as constructed will not be entirely demolished but rather "altered". The Tribunal made it clear that "the colour is not an issue" and that "[p]anels and posts that are 1.8m from ground level or lower can be retained."
3. It is clear, when the orders are read in conjunction with the Tribunal's reasons for decision, that what the Tribunal required was that the fence, where it was measured by the surveyor at more than 1.8m in height, be reduced in height to 1.8m and that, where appropriate, given the fall of the slope, this should be achieved by having the fence stepping down the slope rather than being raked.
4. As Santow JA, with whom Tobias JA agreed, held in Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317 at [135]:

"135 Ambiguity in orders is resolved primarily by reference to the originating judgment. The premise for doing so is that the judicial officer making the orders must be taken thereby to have intended to give effect to that judgment. However, if the language of the orders proves intractably obscure, then the orders must fail pro tanto."

1. The language of the orders is not "intractably obscure". We are not persuaded that the appellant might suffer a substantial miscarriage of justice by reason of any ambiguity or lack of clarity in the orders.

4(a) The direction that the parties provide expert reports

1. The direction that the parties provide expert reports was an interlocutory order made in the course of the hearing. The appellant did not challenge that order at the time. The appellant provided an expert report in compliance with the order. It cannot be said that the order for the provision of expert reports could have caused the Tribunal to reach a wrong decision.
2. The Tribunal's decision was reached on the basis of the evidence provided. Regardless whether it was objectively reasonable for the Tribunal to require the parties to expend substantial sums of money on the obtaining of expert reports for the purposes for the resolution of a dispute about fencing work costing about $5,000, it cannot be said that the decision itself was not fair and equitable for that reason.

4(b) The Tribunal's preference for the evidence of the respondent's expert

1. The Tribunal expressed the view that "a surveyor is more expert" than the builder in relation to the evidence the subject of the expert reports, that is the measurement of fence.
2. It is not immediately obvious what special qualifications a builder might have to undertake the measurement of the height of a fence. Nevertheless, as the Tribunal noted, both experts reported that the fence exceeded 1.8 m in height at a number of points. Having concluded that the appellant had not complied with the orders of 11 July 2023, the Tribunal had a discretion to mould appropriate orders to put the respondent in the position the respondent should have been in if the orders had been complied with: Minifie v Maxwell at [96]. The requirement in the orders that the fence be altered by removing panels and posts where the surveyor had measured the height to be more than 1.8m from ground level was an appropriate exercise of that discretion.
3. We are not persuaded that the Tribunal's preference for the evidence of the surveyor was not fair and equitable or that the Tribunal's decision was not fair and equitable by reason of that preference. Nor are we persuaded that the appellant may have suffered a substantial miscarriage of justice on that basis.

4(c) The effect of the orders being that the appellant will pay more than 50% of the overall cost

1. The reason why the orders permit the respondent to deduct, from the amount payable to the appellant in respect of the initial construction cost of the fence, the cost of making the changes to the fence to conform to the original orders, is that the appellant, having retained and instructed the original contractor, is responsible for the construction of a fence which did not comply with the orders and, for that reason, appropriately responsible for the whole cost of rectification.
2. The orders requiring the appellant to pay more than 50% of the overall cost cannot be said to be not fair and equitable and will not cause the appellant to suffer a substantial miscarriage of justice.

1. As noted above, although the appellant did not, in his Notice of Appeal, identify that he sought leave to appeal on the basis that there was significant new evidence that was not reasonably available at the time of the original hearing, the appellant did include in his bundle of documents provided for the appeal 20 pages of evidence which had not been before the Tribunal at the original hearing.
2. A number of those pages constitute the photographs which the appellant sought to tender at the hearing. As such they are clearly not new evidence. We have addressed the appellant's submissions regarding the rejection of that evidence above.
3. A further document included in those pages is the manufacturer's installation guidelines for Colorbond steel fencing. It is clear that that document would have reasonably been available at the time of the original hearing and that the only reason it was not provided to the Tribunal was that the appellant did not consider that it might be relevant.
4. The remaining pages constitute correspondence relating to the appellant's seeking a fee proposal from a surveyor for the preparation of a report concerning the height of the fence and email communications with the Tribunal. Although that evidence was not available at the time of the hearing, it is not significant new evidence as it has no apparent relevance to any issue arising on the appeal.
5. The appellant also attached to his submissions in reply an exchange of correspondence with the Lake Macquarie City Council concerning whether the fence as constructed was deemed exempt development in accordance with the SEPP. We are not satisfied on the basis of the material put before us that the appellant could not have obtained a letter in those terms before the hearing. Evidence which could have been obtained if sought before the hearing does not qualify as evidence which was not reasonably available: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111; Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 at [114].
6. Accordingly, we are not persuaded that any of the new evidence which the appellant seeks to rely upon was significant new evidence which was not reasonably available at the time of the hearing.
7. For the foregoing reasons, leave to appeal will be refused and the appeal dismissed. The appeal is finalised by the publication of these orders and the stay of the orders the subject of the appeal is thereby lifted.

(1) Leave to appeal is refused.

(2) The appeal is dismissed.

(3) Note that the stay of the orders the subject of the appeal, granted by the Appeal Panel on 7 August 2024, is lifted upon the publication of these orders.

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.