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What happened

Nicholls v Fortmann [2020] NSWCATAP 52 concerned an internal appeal about a boundary fence between adjoining properties in the Central Coast region of New South Wales. The appeal was determined by an Appeal Panel of the NSW Civil and Administrative Tribunal, comprising Senior Members G Curtin SC and G Sarginson. The decision was made on 19 March 2020.

The fence was about 52 metres long and had two forms of construction: part steel-post and chain-wire, and part post-and-rail attached to chain link. It had been constructed in 2014 and did not encroach on the appellant's property. The parties had been in conflict about the fence for some years.

The appellant, Melinda Nicholls, applied to the Tribunal under the Dividing Fences Act 1991 (NSW) (DFA). She argued that the existing fence was not a “sufficient dividing fence” and sought an order for its replacement with a 1.2-metre post-and-rail fence. The estimated cost was $6,000, and she sought an order that the respondents, Louis and Margaretha Fortmann, pay half.

The Tribunal at first instance dismissed the application, finding that the existing fence was sufficient. Nicholls sought leave to appeal. Her case was that the decision was against the weight of the evidence, particularly because of the fence's non-compliance with a State Environmental Planning Policy, the local council's policy favouring post-and-rail construction, and her evidence that nearby fences were of that type.

The Appeal Panel refused leave and dismissed the appeal. The judgment text supplied does not display numbered paragraph references, so the discussion below identifies passages by their headings and subject matter rather than assigning paragraph numbers.

Why the court decided this way

The Appeal Panel applied the leave test in cl 12 of Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). It described that test as having two stages, drawing on Collins v Urban [2014] NSWCATAP 17. First, the appellant had to satisfy the Panel that she may have suffered a substantial miscarriage of justice because of one or more of the grounds in cl 12(1). Second, if the first stage was met, she had to persuade the Panel that granting leave was appropriate in the circumstances.

Nicholls relied on cl 12(1)(b), which concerns a decision being “against the weight of evidence”. The Panel explained this threshold by adopting the formulation in Collins: the evidence, considered as a whole, must preponderate so strongly against the Tribunal's conclusion that the conclusion was not one a reasonable Tribunal member could reach. This is not simply a question of whether another decision-maker might have weighed the evidence differently.

The Panel also clarified the relationship between cl 12(1)(a), concerning a decision that was not fair and equitable, and cl 12(1)(b). The two grounds are alternatives, not parts of one combined test. Nicholls' reliance on unfairness was based on her contention that the decision was against the weight of the evidence. The Panel therefore focused on whether the evidence met the cl 12(1)(b) threshold.

The substantive assessment concerned s 4 of the DFA. That provision directs the Tribunal to consider “all the circumstances of the case” when deciding what constitutes a sufficient dividing fence. The listed considerations include the existing fence, the uses of the adjoining land, privacy or other concerns, the kind of fence usual in the locality, relevant council policy or codes, and relevant planning instruments. The Panel noted that the section does not say that one factor must outweigh the others or prescribe a particular weight for any of them.

The Panel accepted that the existing fence did not comply with the applicable planning instrument. But the Tribunal had considered the council's treatment of that non-compliance: the council regarded it as immaterial, considered any encroachment into the flood zone minor, considered a Building Certificate likely, and took no action. The Panel rejected the argument that non-compliance should therefore dominate the sufficiency assessment. It said there was no authority supporting that proposition and no such direction in s 4. Treating non-compliance as controlling would, in the Panel's view, add words to the statute.

The other evidence did not establish the required appellate threshold either. The Tribunal had found that the fence was appropriate for restricting unauthorised access and screening, and appeared to meet those needs. The Panel treated that as relevant to the owners' concerns under s 4(c), and observed that the finding was not challenged on appeal. The Tribunal had also accepted that council policy described post-and-rail fences as “desirable”, but found there was a range of fence types and materials in the locality. The Panel said that factual finding was supported by expert evidence called by both sides and was not challenged.

Considering these matters together, the Panel concluded that the evidence did not preponderate so strongly against the Tribunal's finding that no reasonable Tribunal member could have reached it. It regarded the Tribunal's reasoning as clear, logical and coherent. The appellant therefore did not satisfy the first stage of the test, and there was no need to grant leave.

Before and after state of the law

The decision applied, rather than announced a new statutory framework. Before this appeal, s 4 of the DFA already required a contextual assessment of all relevant circumstances in deciding whether a dividing fence was sufficient. The provision included matters such as the fence usual in the locality, council policy, and relevant planning instruments. The Appeal Panel's contribution was to explain how those matters operate together: the statute requires consideration, but does not set a ranking between them.

The appeal also applied the two-stage test for leave under cl 12 of Sch 4 to the NCAT Act, as stated in Collins. The first stage asks whether the appellant may have suffered a substantial miscarriage of justice because of a specified statutory ground. The second asks whether leave is appropriate. The Panel did not decide the second stage as a necessary part of its reasoning because the first stage was not met.

For the “against the weight of evidence” ground, the Panel used the demanding formulation drawn from Collins, which in turn referred to Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 and Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266. The formulation is concerned with whether the evidence as a whole makes the outcome one that no reasonable Tribunal member could reach, not whether the Appeal Panel would itself have reached the same finding.

The judgment also reiterated the jurisdictional point stated by reference to Larney v Johannson [2013] NSWCA 409 and Purcell v Chadwick [2018] NSWCATAP 250: the Tribunal's jurisdiction under the DFA depends on it being established that there is no sufficient dividing fence. The Panel referred to Purcell as authority for the proposition that sufficiency is a matter of degree.

After the decision, the statutory provisions it applied remained the same as set out in the judgment. The decision supplies an application of those provisions to a dispute where planning non-compliance was one factor among several. It does not establish that planning non-compliance is irrelevant; rather, it rejects the proposition that such non-compliance automatically controls the statutory assessment.

Key passages with plain-English translation

The Appeal Panel adopted the Collins formulation that a decision is against the weight of the evidence where “the evidence in its totality preponderates so strongly against the conclusion” that it was not one a reasonable Tribunal member could reach. In plain English, the appeal threshold is not met merely because a party considers their evidence more persuasive. The evidence overall must point so strongly the other way that the Tribunal's conclusion falls outside the range a reasonable decision-maker could reach.

The Panel said s 4 does not “mandate the weight to be given” to the listed factors or stipulate that one factor must receive greater weight than another. In plain English, the Act requires the Tribunal to consider the relevant circumstances, but leaves the relative importance of those circumstances to be assessed in the particular case. That assessment remains bounded by the statutory requirement to consider all the circumstances.

The Panel also stated that sufficiency “is a matter of degree”, relying on Purcell v Chadwick. In plain English, there is no single feature, such as one particular material or construction style, that necessarily determines whether a fence is sufficient. The answer depends on the overall circumstances considered under s 4.

On planning non-compliance, the Panel said that giving it a “dominating” role would read words into the statute that were not there. In plain English, the existence of a planning issue had to be considered, but the Panel found no basis in s 4 for treating it as automatically decisive. The council's response and the other evidence formed part of the context.

Finally, the Panel described the Tribunal's reasoning as “clear, logical and coherent”. In context, that observation supported its conclusion that the evidence did not meet the demanding against-the-weight threshold. It did not mean that every possible Tribunal assessment would have been the same; it meant that the finding made was one a reasonable Tribunal member could reach on the record described.

What fact patterns trigger this precedent

The decision is relevant to disputes under the NSW DFA where an owner challenges an existing boundary fence as insufficient and relies on several factors that point in different directions. That may include a dispute in which the existing fence performs practical functions, while a planning instrument, council policy, or the character of nearby fences is said to favour a different design.

Its reasoning is particularly pertinent where a party argues that one consideration must dominate the s 4 assessment. Nicholls v Fortmann indicates that the statutory text does not rank the listed factors. The Tribunal must consider all circumstances, including the existing fence, land use, privacy or other concerns, local practice, council policy and relevant planning instruments. The case does not say that all factors must receive equal weight; it says the Act does not prescribe a hierarchy.

The decision is also relevant where leave to appeal is sought because a party says the Tribunal preferred the wrong evidence. The applicable threshold is not a fresh merits hearing. The appellant must show that the evidence in totality so strongly contradicts the Tribunal's conclusion that a reasonable Tribunal member could not have reached it, and must connect that ground to the statutory requirement of a possible substantial miscarriage of justice.

The decision should not be read as resolving every fence dispute involving planning non-compliance or a local design preference. The Panel's conclusion depended on the Tribunal's findings about the particular fence, the council's response, expert evidence about fence types in the locality, and the unchallenged finding about screening and restricting unauthorised access. Different evidence or circumstances could produce a different assessment under s 4. The judgment itself stresses the contextual character of sufficiency.

How later courts have treated it

The materials supplied contain no subsequent judgments or citations showing how later courts or tribunals treated Nicholls v Fortmann. Accordingly, no claim can be made here that it has been followed, distinguished, applied, or questioned in later decisions.

The judgment itself relied on earlier authorities. It treated Collins v Urban as guidance on the two-stage leave test and on the meaning of an “against the weight of evidence” ground. It referred to Larney v Johannson and Purcell v Chadwick for the jurisdictional proposition that there must be no sufficient dividing fence before the Tribunal can exercise jurisdiction under the DFA. It also relied on Purcell for the description of sufficiency as a matter of degree. The Collins passage quoted the formulation with references to Calin and Mainteck.

Those are the relationships apparent from the decision itself. Establishing how the case has subsequently been treated would require later source material not included in the judgment provided here.

Still-open questions

The judgment does not set out a formula for assigning weight to the individual factors in s 4. It says that the Act does not mandate a hierarchy, while leaving the Tribunal to assess all circumstances. How particular considerations should be weighed will therefore remain dependent on the evidence and context of each case.

The decision also does not define the circumstances in which planning non-compliance might carry substantial weight, or when it might affect the practical or legal assessment of a fence in a different way. In Nicholls, the council had considered the non-compliance immaterial, regarded any flood-zone encroachment as minor, anticipated a likely Building Certificate, and took no action. The Panel's reasoning is tied to that account of the council's response.

Nor does the decision explain in detail what evidence would be enough to establish that a fence is not sufficient in a different setting. It confirms that the question is one of degree and that the listed statutory factors must be considered. The outcome will depend on the evidence about the existing fence, land use, owner concerns, local practice, policy and planning instruments.

Finally, the Panel did not need to determine the second stage of the leave test. Its statement that the appellant would not have satisfied that stage was expressly made “for completeness”. The decision identifies the kinds of matter relevant to that stage by reference to Collins, including an issue of principle, a question of public importance, a matter of general application, a reasonably clear injustice, or a plain and central error. But it does not further elaborate on how those considerations would apply in other cases.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.