This is an application for leave to appeal from a decision of the Tribunal dismissing the appellant's application for various orders under the Dividing Fences Act 1991 (NSW) (the "DFA") relating to an existing fence located on the boundary between properties owned by the appellant and the respondents.
The appellant contends that she suffered a substantial miscarriage of justice because the Tribunal's decision was not fair or equitable because it was against the weight of evidence.
In our opinion that the appellant does not satisfy the applicable tests for the granting of leave to appeal and her application should be dismissed. Our reasons for that opinion are set out below.
[2]
Background
The appellant and the respondents own adjoining properties in the Central Coast region of New South Wales.
There is a fence of about 52m in length along the boundary between their properties. One part of the fence is constructed as a steel post and chain wire fence, and the remaining part as a post and rail fence attached to chain link.
The fence was constructed in 2014 and does not encroach on to the appellant's property.
The parties have, regrettably, been in conflict over the fence for some years. The latest iteration of their conflict was the appellant's application to the Tribunal (from which this application for leave to appeal comes) for orders under the DFA.
In her application to the Tribunal below the appellant contended that the existing fence was not a "sufficient dividing fence" within the meaning of that term in the DFA. The appellant sought orders that the existing fence be replaced by a 1.2m high post and rail fence. The cost was estimated at $6,000, with the appellant seeking orders that the respondents pay for half the cost of the work.
In a carefully reasoned decision the Tribunal examined the relevant facts placed before it, applied the relevant law, and dismissed the appellant's application.
The first issue the Tribunal was required to determine was whether the existing fence was a "sufficient dividing fence" for the purposes of the DFA and in particular s 4. The Tribunal found that the fence met that description.
It is apt to set out the terms of s 4. Section 4 says:
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 immediately before the repeal of that Act.
The appellant correctly accepts that the Tribunal below correctly identified the circumstances for consideration on the question whether the fence was a sufficient dividing fence by reference to the terms of s 4.
However, the appellant submits that the Tribunal erred in its consideration of the facts falling within sub-s (d), (e) and (f) of s 4.
The appellant submitted that the evidence before the Tribunal disclosed that the existing fence did not comply with the applicable State Environmental Planning Policy ("SEPP") due to its height and the materials used in its construction.
The appellant submitted that the evidence before the Tribunal was that the local government Development Control Plan stipulated that the "desired" character for the area included fences of a post and rail construction.
The appellant submitted that she gave unchallenged evidence that fences in the area, including adjoining properties, were all of a post and rail construction.
The appellant submitted that the cumulative effect of that evidence, when assessed pursuant to s 4 of the DFA and particularly sub-s (d), (e) and (f), was that the Tribunal's finding that the existing fence was a sufficient dividing fence was against the weight of evidence and resulted in an unfair and inequitable decision. The appellant submitted that the Tribunal ought to have found the existing fence was not a sufficient dividing fence and should have granted the orders she sought.
[3]
The Appeal
In relation to seeking leave to appeal the appellant, again correctly, refers to s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act") and Collins v Urban [2014] NSWCATAP 17.
Section 80(2)(b) of the NCAT Act provides that an appellant can seek leave to appeal on a ground other than a question of law.
Clause 12 of Schedule 4 to the NCAT Act sets out the statutory test to be applied to the question whether leave to appeal should be granted. It provides as follows:
12 Limitations on internal appeals against Division decisions
(1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:
(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).
That clause was considered in Collins and the Appeal Panel in that case set out a number of principles to be applied.
In short, there are two stages to the test. The first is that an appellant must satisfy an Appeal Panel that the appellant may have suffered a substantial miscarriage of justice because of one or more of the matters set out in cl 12(1)(a), (b) or (c). The second stage, assuming the first is satisfied, is that an appellant must persuade an Appeal Panel that it is appropriate to grant leave to appeal in the circumstances - see Collins at [80]-[81].
In this appeal the appellant relies upon cl 12(1)(b). That is, the appellant submits that the decision of the Tribunal was against the weight of evidence and therefore she may have suffered a substantial miscarriage of justice.
The appellant also refers to cl 12(1)(a), but only insofar as submitting that the decision was not fair and equitable because it was against the weight of evidence. This reliance on cl 12(1)(a) is misplaced as cl 12(1)(a) and (b) are alternatives, rather than being two parts of one test, and they refer to different things.
If the appellant succeeds in persuading us that she may have suffered a substantial miscarriage of justice because the Tribunal's decision was against the weight of evidence then she will have satisfied stage one of the test and there is no need for her to also prove that the decision was not fair and equitable because it was against the weight of evidence.
Therefore, at least for stage one, we need only consider whether the appellant may have suffered a substantial miscarriage of justice because the Tribunal's decision was against the weight of evidence.
Collins provides guidance on the what is "against the weight of evidence". At [77] the Appeal Panel in Collins said:
"As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that:
1. …
2. The decision under appeal can be said to be "against the weight of evidence " (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41, 42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]."
Was the Tribunal's decision against the weight of evidence? That is, did the evidence, in its totality, preponderate so strongly against the conclusion found by the Tribunal that it could be said that the conclusion was not one that a reasonable Tribunal member could reach?
In our opinion the answer to that question is no.
Turning to the three matters identified by the appellant (see [13] - [17] above), it is correct to say, as the appellant submitted, that the existing fence does not comply with the SEPP. But the Tribunal found that the local council had examined the matter and decided that the fence's non-compliance was immaterial, any encroachment into the flood zone (present in the area) was minor, it was likely that a Building Certificate would be issued in regard to the fence and council decided to take no action in relation to the fence's non-compliance.
The appellant submitted that non-compliance with the SEPP should be regarded as a dominating factor in relation to assessing whether the fence was a sufficient dividing fence. No authority was cited supporting that submission, nor does any consideration to that effect appear in s 4 of the DFA. To uphold the appellant's submission would be to read words into the statute which are not there.
As the Member correctly identified in the reasons, unless it is established that there is no "sufficient dividing fence" the Tribunal does not have jurisdiction under the DFA: Larney v Johannson [2013] NSWCA 409; Purcell v Chadwick [2018] NSWCATAP 250.
In regard to whether a fence is a "sufficient dividing fence", s 4 of the DFA states that the Tribunal is to consider "all the circumstances of the case", including the matters set out in s 4(a)-(g) of the DFA. There is nothing in s 4 of the DFA to mandate the weight to be given to the various factors in s 4(a)-(g) or any other relevant circumstance, or stipulate that one factor is to be given greater weight than any other factor. Whether an existing dividing fence is, or is not, "sufficient" is a matter of degree: Purcell v Chadwick [2018] NSWCATAP 250 at [28].
The Tribunal found, as a fact, that the existing fence was appropriate to restrict unauthorised access and for screening and appeared to adequately meet those needs. This was relevant to s 4(c) of the DFA and this finding is not challenged on this appeal (nor do we think it could have been the subject of a successful challenge).
The Tribunal accepted that there was a council policy that it was "desirable" for fences in the are to be of post and rail construction, but, in an implied rejection of the appellant's evidence (see [16] above), found that there were a range of fences i.e. a range of materials and construction, in the area. In making this finding the Tribunal accepted the evidence of experts called by both the appellant and the respondents. This finding of fact was not challenged on the appeal (nor do we think it could have been the subject of a successful challenge).
Taking those matters into consideration, in our opinion it cannot be said that the evidence, in its totality, preponderated so strongly against the conclusion found by the Tribunal that it could be said that the conclusion was not one that a reasonable Tribunal member could reach. Rather, in our opinion, the Tribunal's decision was correct. The Member considered the relevant factors in s 4 (a)-(g) of the DFA in the context of considering whether, in "all the circumstances of the case" the fence was, or was not, a "sufficient dividing fence". The reasons of the Member demonstrate that she weighed up the circumstances relevant to whether the existing fence was a "sufficient dividing fence" (including the fact that the fence was non-compliant with the local Council SEPP), and concluded that the appellant had failed to establish the existing fence was not a "sufficient dividing fence". The reasoning process of the Member was clear, logical and coherent.
It follows that we are not of the opinion that the appellant may have suffered a substantial miscarriage of justice because the decision was against the weight of evidence, and thus the appellant has not persuaded us that she meets stage one of the test for successfully seeking leave to appeal.
It is unnecessary for us to decide whether the appellant would have satisfied stage two of the test, but for completeness we would have found she did not. Stage two requires the appellant to persuade us that the appeal (if leave was granted) raised an issue of principle, a question of public importance or a matter of administration or policy which might have general application, or concerned an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or involved 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 - see Collins at [84].
In our opinion none of those matters are present in this case.
[4]
Conclusion
1. Leave to appeal is refused and the appeal is dismissed.
[5]
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: 19 March 2020