Styles v Rowley

Supreme Court of NSW|2023-08-29|Before: Griffiths AJ

Background facts summarised

The parties are next door neighbours on the South Coast of NSW. The defendants have lived at their property for many years. The plaintiff has lived next door since April 2018. A dividing fence was erected between the two properties some years earlier, in approximately 2013. The fence comprises approximately 38 metres of black Colorbond panels erected on sleepers, which joins towards the rear of the properties with approximately 30 metres of a chain link fence.
There is a significant downhill slope towards the rear of both the properties and the plaintiff's property is lower than the defendants' property. The plaintiff alleged that the Colorbond fence exceeded the 1.8 metre height limit, which she claims applies to the properties under Pt 2 Div 1 Subdiv 17 cl 2.34 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (SEPP 2008).

The Magistrate's reasons summarised

In oral address below, the plaintiff's solicitor said that a main issue for determination was whether the fence breached SEPP 2008. After reviewing the file which included the materials referred to above and hearing from the parties' legal representatives, Magistrate Dick delivered ex tempore reasons for judgment and dismissed the plaintiff's application.
The reasons are relatively brief and, for convenience, are reproduced below without alteration: HIS HONOUR: As promised, I have reduced my judgment in part to notes which will make it a lot easier to deliver, but of course it is still ex tempore which is always a challenge. I was helped by the written summaries which were provided by both the applicant and the respondent and I appreciate the same. What the Court is faced with today is an application by Lynette Styles and the respondents Georgie Rowley and Brendan Faulkner. The application which was initially filed was for a dividing fence which separates the properties of the applicant and the respondents to be dismantled, to be erected on the correct surveyed boundary and to be reduced in height. The matter has dragged through the Court and that is not necessarily any reflection on the parties because clearly we had COVID issues as well. But in the document submitted by Ms Styles she claims that the Court made certain orders whereas that is factually incorrect. The Court made a number of notations as to what was planned in attempts to settle the matter. Quite detailed undertakings were given at times and were in many respects regarded by Ms Styles as orders of the Court. Of course undertakings are not given to the Court lightly. The existing fence that had been erected by the respondents had been erected with the previous owner of the land now owned by Ms Styles, and that fence was in place at the time the applicant purchased her property. Ms Styles lives on the low side of the sloping terrain, the land slopes not only from side to side but also from back to front, and currently the properties are separated by a fence that has been altered on occasions at request and by agreement. But the fence also is not an entirely full fence for the length of the properties. In fact it is a fence of two construction materials. The fence subject of these proceedings is 38 metres long made of Colorbond steel set upon timber sleepers, and it joins a 30 metres long chain link fence. Looking at the history the respondents initiated a dialogue with the applicant seeking contribution to replace the chain link fence with a matching Colorbond fence. That proposal was rejected and Ms Style's position was why replace a perfectly good chain link fence, and it was not long after that the relationship between the neighbours started to sour. The Dividing Fences Act regulates neighbours' responsibilities towards fences and it is designed to settle contentious aspects for sharing a fence. There is nothing in the Act which prevents neighbours from coming to their own agreement about a fence. The Act does however have some shortcomings. In relation to the Act it applies where a landowner wants an adjoining landowner to contribute to the costs of constructing, replacing, repairing or maintaining a fence. It covers issues such as cost sharing, location and standards of dividing fences, and sets out procedures for carrying out the work and resolving disputes. The general principle in the Act is for the liability of costs of a fence to be shared equally by adjoining landowners, and under the Act a dividing fence is a fence separating the land of adjoining landowners whether or not that fence is erected on the common boundary. The evidence filed by both parties gives a very lengthy history of neighbour dispute. But I do need to reference them, even though the claims and counter claims are not relevant to my determination as to what is a sufficient fence. I do have to have regard to how the matter has grown into a defended hearing today. I note in that in the past complaints have been made, and I am not singling any person out here, to council and police. There has been allegations of harassment and intimidation, offensive language, personal trespass, property trespass, excessive noise, dog attacks and defamation. So the parties have attended more than one dispute resolution mediation. Quotes and counter quotes have been exchanged. The legislation does not help the Court when it comes to measuring a fence, but I can take some judicial notice that a stepped fence is not a raked fence. As the name implies a stepped fence looks like stairs steps when complete. The rails of the fence remain horizontal and the posts are extended to accommodate a variance in terrain. A raked fence on the other hand simply follows the ground level, and for the most part not always will have a reasonably consistent ground top height. Aesthetically a raked fence may appear more pleasing to the eye. But it may also be a matter of personal choice or topography that determines the final construction. Erecting a fence is not a precise exercise. On occasions terrain may impact on the height or position of a fence. I have the benefit of photos of the existing fence and I am not satisfied that the existing fence breaches the Fencing Code. While it is clearly not stepped, the measurements made of the fence refer to post height. On the information provided in the statements filed the existing fence to my mind is substantially compliant with planning policy. I am further satisfied that any deviation of the fence from the common boundary line separating the property is within allowable margins and that rectification works undertaken by the respondents have brought the fence within permissible limits.
After hearing from the parties, the plaintiff was ordered to pay the defendants' costs in the amount of $5,800 (including GST).

The appeal to the Supreme Court

The plaintiff sought to appeal the Local Court's orders by filing a summons on 19 January 2023. Subsequently, an amended summons was filed on 16 May 2023. Then, at the commencement of the hearing of the appeal, the plaintiff was granted leave to file a further amended summons. This document amended the relief sought by the plaintiff as well as some of the grounds, including abandoning ground 2. The grounds were stated as follows: 1 The Magistrate erred in fact and law or in the alternative in fact and law by failing to find that the height of the Diving Fence was unlawful by reason of: i. the measurements recorded in the Rygate & West report dated 26 August 2022; ii. the definition of a 'fence' as defined by section 3 of the Act; and iii. regulation 2.34 of the Code. 2 The Magistrate erred in fact and law by failing to find that the Dividing fence was not a sufficient dividing fence by reason of i. the measurements recorded in the Rygate & West report dated 26 August 2022; ii. the definition of a 'fence' as defined by section 3 of the Act; and iii. regulation 2.34 of the Code; and iv. s 4(e) of the Act. 3 The Magistrate should have found that: i. the height of the Dividing Fence exceeded 1.8 meters; ii. the Dividing Fence was unlawful by reason of the definition of a 'fence' as defined by section 3 of the Act and regulation 2.34 of the Code; and iii. the Dividing Fence was not a sufficient dividing fence as defined by s 4 of the Act. Note: the Plaintiff reserves her rights to amend this Summons upon receipt of the transcript from the Court below. 4 The Magistrate erred in law because: i. there was no evidence to support a finding that the height of the Dividing Fence was compliant with the Code and the Act; or ii. the finding that the height of the Dividing Fence was not in breach of the Code and the Act was not reasonably open on the whole of the evidence. 5 The Magistrate erred in law by failing to take into account that a post, falls within the meaning of a 'fence' as defined by section 3 of the Act. 6 The Magistrate erred in law because his Honour failed to provide sufficient reasons: i. why the posts did not form part of the 'fence' as defined by s 3 of the Act; ii. why the height of the posts were not in breach the Code and the Act; and iii. why the Dividing Fence was 'substantially compliant with planning policy', and by inference, the Code and the Act.
Also at the commencement of the hearing, the plaintiff handed up a document entitled "Plaintiff's Questions of Law" which purported to identify the questions of law raised by grounds 1 and 3 to 6: Ground 1 In determining the threshold fact relevant to its jurisdiction, namely whether there was a sufficient dividing fence, did the Court fail to find that the fence was unlawful because it misconstrued the definition of a 'fence' as defined by s 3 of the Act? Ground 3 In determining the threshold fact relevant to its jurisdiction, should the Court have found that the fence was in breach of regulation 2.34 of the Code? Ground 4 In determining the threshold fact relevant to its jurisdiction, was it open to the Court to find, with the evidence that it had before it, that the fence was not in breach of regulation 2.34 of the Code? Ground 5 In determining the threshold fact relevant to its jurisdiction, and finding that the fence was not in breach of the Code, did the Court fail to take into account that a post falls within the definition of a fence as defined by s 3 of the Act? Ground 6 In determining the threshold fact relevant to its jurisdiction, did the Court provide sufficient reasons in determining: a) that the height of the fence was not in breach of the Code; and b) why the fence was 'substantially compliant' with the Code?
The plaintiff filed an outline of written submissions (prepared by counsel) dated 26 June 2023, as well as two sets of submissions in reply dated 8 and 23 August 2023 respectively. Those submissions claimed that the appeal was brought under s 39(1) of the Local Court Act in relation to grounds 4 to 6 and under s 40(2)(c) in relation to grounds 1 to 3. The plaintiff also contended that there is "no difference" between s 52 of the CAR Act and s 39 of the Local Court Act because both should be construed as referring to a question of law alone, citing DJ & LJ Norman Pty Ltd v Sheather [2022] NSWSC 1299 at [87] per Walton J.
In support of proposed grounds 1 and 3 the plaintiff submitted that the Magistrate erred either in law or alternatively in fact and law, being respectively that the fence height measured up to 2.07 metres and, in law, by failing to find that the fence height breached SEPP 2008. Reliance was placed upon the survey report dated 26 August 2022 regarding the height of the fence posts.
In support of ground 4, the plaintiff contended that there was no evidence to support the Magistrate's finding that the fence height complied with SEPP 2008 and the Dividing Fences Act, or, alternatively, that that finding was not reasonably open on the whole of the evidence.
In support of ground 5, the plaintiff contended that the Magistrate had failed to take into account a mandatory relevant consideration, namely that the fence posts fell within the definition of "fence".
In support of ground 6, the plaintiff contended that the Magistrate had not given adequate reasons for concluding that the fence was substantially compliant with planning policy. The plaintiff contended that it was not clear whether this conclusion stemmed from the fact that the Magistrate considered that a fence post did not form part of a fence generally or that the particular posts here did not form part of the fence. The plaintiff contended that if the Magistrate took the latter view, he failed to give sufficient reasons for that approach.

(a) An outline of the Dividing Fences Act

The legislation provides for the apportionment of the cost of dividing fences. It was enacted following a detailed report by the NSW Law Reform Commission in 1988 entitled Dividing Fences (Report LRC 59) (LRC Report), the primary recommendations of which were adopted in the legislation.
Section 6 of the legislation specifies a general principle to the effect that an adjoining owner is liable, in respect of adjoining lands where there is no sufficient dividing fence, to contribute to the carrying out of "fencing work" that results or would result in the provision of a dividing fence "of a standard not greater than the standard for a sufficient dividing fence".
Section 4 is an important provision concerning the standard for a sufficient dividing fence. It provides: 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.
There are several points to note about this provision. First, the relevant decision-maker is required "to consider" all the circumstances of the case when determining the standard for a sufficient dividing fence. Secondly, there is a non-exhaustive list of some relevant circumstances set out in paragraphs (a)-(g). Thirdly, an important issue which will be discussed further below, is what is meant by the requirement "to consider" and whether any of the specified criteria in paragraphs (a) to (g) are determinative in the sense that non-compliance with any individual criterion necessarily means that the subject fence is not of a standard for a sufficient dividing fence for the purpose of the legislation.
Part 3 contains the procedure for determining the existence and extent of an adjoining owner's liability to contribute to the carrying out of fence work, including the requirement under s 11 to serve a notice in writing on the adjoining owner. Significantly, s 12 provides for adjoining owners to attend a Community Justice Centre with a view to reaching an agreement regarding the carrying out of fencing work and associated contributions. This and other relevant provisions give effect to the Law Reform Commission's view that the "overriding objective for any proposed reforms" should be "to encourage the settlement of disputes over fencing costs between neighbours by agreement rather than by litigation" (LRC Report at [3.1]). It was envisaged that judicial determination should be seen only as a last resort after attempts by the parties to achieve an agreement have failed. The Commission envisaged that the remedy and procedure for settling remaining disputes by curial adjudication "should be simple, inexpensive and readily accessible to both parties" (LRC Report at [3.1]).
Thus, as the Dividing Fences Act provided at the relevant time, where adjoining owners do not agree within one month after the service of a s 11 notice as to the fencing work to be carried out, either owner may apply to either the Local Court or the NSW Civil and Administrative Tribunal (NCAT) for an order determining the manner in which the fencing work (if any) is to be carried out (s 12(2)). Jurisdiction to hear and determine any matter arising under the Local Court Act is conferred upon the Local Court and NCAT under s 13. Both bodies are empowered by s 14 to make various orders in respect of a dispute under the Dividing Fences Act.

(b) SEPP 2008

It is common ground that Subdiv 17 of Pt 2 Div 1 of SEPP 2008, which is addressed to fences, applied to the relevant fence. The aims of SEPP 2008 are particularised in cl 1.3: 1.3 Aims of Policy This Policy aims to provide streamlined assessment processes for development that complies with specified development standards by - (a) providing exempt and complying development codes that have State-wide application, and (b) identifying, in the exempt development codes, types of development that are of minimal environmental impact that may be carried out without the need for development consent, and (c) identifying, in the complying development codes, types of complying development that may be carried out in accordance with a complying development certificate as defined in the Act, and (d) enabling the progressive extension of the types of development in this Policy, and (e) providing transitional arrangements for the introduction of the State-wide codes, including the amendment of other environmental planning instruments.
SEPP 2008 applies to the entire State except as provided elsewhere in cl 1.4 (it was not claimed that any exception applied here).
Subdiv 17 specifies various development standards that must be met for a development to qualify as an exempt development. In the case of fences in the particular residential zone in which the relevant properties are located, in 2013, Subdiv 17 provided as follows: 2.33 Specified development The construction or installation of a fence or gate behind the building line of the primary road frontage is development specified for this code if it is: (a) constructed or installed on land in any zone other than Zone RU1, RU2, RU3 or RU4, and (b) not constructed or installed on or in, or adjacent to, a heritage item or a draft heritage item, and (c) not constructed or installed on a flood control lot, and (d) not constructed or installed on land in a foreshore area. Note - If the fence is a dividing fence, the Dividing Fences Act 1991 also applies. 2.34 Development standards (1) The standards specified for that development are that the development must: (a) if it is constructed of timber, metal or light weight materials - be not higher than 1.8m above ground level (existing), and (b) if it is constructed of masonry materials or chain wire - not be higher than: (i) 1m above ground level (existing), if for domestic purposes only, or (ii) 1.8m above ground level (existing), in any other case, and (b1) if it is a boundary fence on land in Zone R5 - be constructed using post and wire or post and rail, and (c) if it is constructed of metal components - be of low reflective, factory pre-coloured materials, and (d) not be an electrical fence or use barbed wire, and (e) if it is on a sloping site and stepped to accommodate the fall in the land - be not higher than 2.2m above ground level (existing) at each step, and (f) not redirect the flow of surface water onto an adjoining property, and (g) if it is located in core Koala habitat, key Koala habitat or a Koala movement corridor - be constructed or installed in accordance with any relevant council policy, and (h) if it is located on bush fire prone land - be constructed of non-combustible material or hardwood. (2) If the development is constructed or installed on a secondary road frontage, it may be constructed up to a point that is level with the building line for the primary road frontage.
There are two things to note about this provision. First, the Note to cl 2.33 makes specific reference to the Dividing Fences Act as also applying. As has been observed elsewhere, the purposes of the legislative regimes under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and the Dividing Fences Act are "completely different" (see Inner West Council v Kontellis [2017] NSWLEC 57 at [129] per Sheahan J).
Secondly, SEPP 2008 did not contain any definition of the phrase "ground level (existing)". It is evident, however, that the phrase was defined in the Dictionary of the Eurobodalla Local Environmental Plan 2012 (LEP) at the relevant time as: …the existing level of a site at any point.
In this Court, neither party made any reference to the Eurobadalla LEP as being relevant to the proceeding. Mr Horowitz of counsel, who appeared for the plaintiff, confirmed that the LEP had not been raised below. Nor was (or is) any evidence raised to indicate whether or not: 1. the dividing fence had been erected in 2013 with development consent; and/or 2. whether any planning law deficiency relating to the dividing fence could be regularised by the issue of a Building Information Certificate pursuant to Div 6.7 of the EPA Act.
It appears that the proceedings were conducted below on the basis that SEPP 2008 was relevant to the proceeding because it was a "relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated" within the meaning of s 4(f) of the Dividing Fences Act. Although the Magistrate referred in his reasons for judgment to the "Fencing Code" and to "planning policy", the parties agreed on appeal that these should be understood as references to SEPP 2008.
Part 3 of the EPA Act applies to environmental planning instruments (comprising State environmental planning policies (SEPPs) and local environmental plans). Section 1.4 of the EPA Act defines environmental planning instrument as meaning: an environmental planning instrument (including a SEPP or LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force.
I doubt that SEPP 2008 was a matter which fell for consideration under s 4(e) of the Dividing Fences Act (which applies to any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated). This is because the operation of SEPP 2008 did not depend upon its adoption by the Eurobodalla Shire Council. Rather, it has the status of delegated legislation (see 4nature Inc v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 at [57] per Basten JA and [106] per Leeming JA; Huntlee Pty Ltd v Sweetwater Action Group Inc [2011] NSWCA 378 at [75] per Sackville AJA (Beazley JA and Tobias AJA agreeing)) and operated by force of s 3.29 of the EPA Act (see also the Note to s 3.24 of that Act): 3.29 Governor may make environmental planning instruments (SEPPs) (1) The Governor may make environmental planning instruments for the purpose of environmental planning by the State. Any such instrument may be called a State environmental planning policy (or SEPP). (2) Without limiting subsection (1), an environmental planning instrument may be made by the Governor to make provision with respect to any matter that, in the opinion of the Minister, is of State or regional environmental planning significance or of environmental planning significance to a district within the meaning of Division 3.1.
The Governor may direct that an SEPP applies to either the whole of the State or to special areas of the State.

As noted above, s 70 of the Local Court Act governs the bringing of an appeal in relation to any order arising from an application notice under the Dividing Fences Act. There is an appeal as of right under s 52(1) of the CAR Act, but only on a question of law alone. A ground of appeal which involves a question of fact or a question of mixed law and fact may only be brought with the leave of the Supreme Court (see s 53(1) of the CAR Act).
Sections 52 and 53 of the CAR Act (which are in Pt 5) relevantly provide as follows: 52 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone. (2) An appeal must be made within such period after the date of the conviction or sentence as may be prescribed by rules of court. 53 Appeals requiring leave (1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves - (a) a question of fact, or (b) a question of mixed law and fact, but only by leave of the Supreme Court. … (4) An application for leave to appeal must be made within such period after the date of the conviction, sentence or order as may be prescribed by rules of court.
The language of ss 52 and 53(1) is to be contrasted with that of ss 39 and 40 of the Local Court Act, which relevantly provide: 39 Appeals as of right (1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law. … 40 Appeals requiring leave (1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court. …
The following points should be noted. First, the appeal as of right conferred by s 52 of the CAR Act relates to an appeal "only on a ground that involves a question of law alone" (emphasis added). This contrasts with the appeal as of right under s 39 of the Local Court Act, which confers a right of appeal "but only on a question of law".
Secondly, in relation to appeals requiring leave, there are also significant differences between the two statutory regimes. It is made explicit in s 53(1) of the CAR Act that there is a right of appeal to the Supreme Court with leave on a ground that involves "a question of fact"; as well as "a question of mixed law and fact". This is to be contrasted with the different language in s 80 of the Civil and Administrative Tribunal Act 2017 (NSW), which simply provides for a right of appeal to the Appeal Panel with leave on "any other ground" apart from a question of law where there is an appeal "as of right".
Thirdly, there are differences where an application for a fencing order is brought in NCAT as opposed to the Local Court. In the former case, there is a right of appeal as of right to the Appeal Panel on any question of law and a right of appeal with the leave of the Appeal Panel on any other ground (see s 80 of the Civil and Administrative Tribunal Act). Although both statutory regimes provide for an appeal as of right on a question of law, the statutory language differs. In particular, s 52(1) of the CAR Act explicitly states that an appeal to the Supreme Court may be brought as of right "but only on a question of law alone" (emphasis added).
The plaintiff relied on the fact that in Hill v Vicars [2022] NSWSC 828, Garling J proceeded on the basis that ss 39 and 40 of the Local Court Act provided jurisdiction in the Supreme Court to hear an appeal from a decision of the Local Court in relation to the Dividing Fences Act. Mr Horowitz fairly conceded however that the Court's attention was not drawn there to s 70(1)(c) of the Local Court Act and the jurisdiction under Pt 5 of the CAR Act. In my respectful view, those latter provisions provide the source of jurisdiction and not ss 39 and 40 of the Local Court Act.

(d) Questions of law

Although there have been many attempts to define what is a question of law, as the High Court observed in Director of Public Prosecutions (Cth) v JM (2013) 250 CLR 135; [2013] HCA 30 at [39] (echoing what was said previously in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 at [16]), no satisfactory test of universal application has yet been formulated.
For example, much ink has been spilt as to whether a question of law is raised where the issue is whether the facts, as fully found by a decision-maker, fall within the provision of a statutory enactment properly construed. It is apposite to note the following observations of Gleeson CJ, Gummow and Callinan JJ in Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 at [24]: Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way, indeed, as it was put by Priestley JA in his judgment, whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law. However, not all questions involving mixed questions of law and fact are, or need to be susceptible of one correct answer only. Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation. That is why the test whether legal criteria have been met has been expressed in language of the kind used by Jordan CJ in The Australian Gas Light Co v Valuer-General: "[I]f the facts inferred ... from the evidence ... are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law".
There may be some differences between the position under Federal and State law as to the ambit of the phrase "question of law". Ultimately, however, the matter needs to be resolved by paying close attention to the language of the particular statute (see Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [89]).
In Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 (when dealing with the Federal Court's jurisdiction under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) to hear an appeal on a question of law from any decision of the AAT), the Full Court concluded at [62] that s 44 should not be read as if the words "pure" or "only" qualified the phrase "question of law". The Court added that "[n]ot all so-called "mixed questions of fact and law" stand outside an appeal on a question of law".
The position may be different at a State level. That is so for at least two reasons. First, in contrast with the wording of s 44 of the Administrative Appeals Tribunal Act, s 52(1) of the CAR Act contains explicit words which qualify the ambit of an appeal as of right on a question of law, as is reflected in the phrase "but only on a ground that involves a question of law alone" (emphasis added).
The scope of s 52(1) of the CAR Act was considered by Beech-Jones CJ at CL in White v Director of Public Prosecutions [2021] NSWSC 1629. His Honour said at [10]-[13]: First, s 52(1) confers a right of appeal on a ground that "involves a question of law alone". Section 53(1) extends the scope of the appeal to include grounds that involve a question of fact or a question of mixed fact and law. However, they may only be raised with the leave of the Court. The concept of a "question of law" was comprehensively described by Bathurst CJ and Bell P in Orr v Cobar Management Pty Limited [2020] NSWCCA 220 at [3] to [61]. To similar but more limited effect in JP I observed (at [47]): "….It suffices to state that "… there is 'a question of law alone' if the question of law can be stated and considered separately from the facts with which it may be connected in a given case" (Williams v R [1986] HCA 88; 161 CLR 278 at 287 per Gibbs CJ and 314 per Wilson and Dawson JJ; "Williams"). Further an appeal on a ground that involves a question of law alone does not include a ground that involves a mixed question of fact and law (R v PL [2009] NSWCCA 256 at [25] per Spigelman J ("PL (No 1)") and thus a mere complaint of error in the application of a legal principle does not raise a question of law alone (PL (No 1) at [26]). Nevertheless a conclusion of mixed fact and law can be challenged in an appeal restricted to questions of law alone if it can be determined that the conclusion "proceed[ed] from a misdirection of law" (Williams at p 287 per Gibbs CJ). To similar effect in PL (No 1) at [27] Spigelman CJ stated that a contention that the presiding judicial officer erred may involve a question of law alone if a stand alone legal proposition can be identified which was a "distinct and separate step in the reasoning process" (Pl (No 1) at [27])." Second, the appeal as of right conferred by s 52(1) is restricted to grounds that "involve" questions of law. As suggested by the extract from PL (No 1) set out in this passage, for the appeal to "involve" a question of law alone the question cannot simply be raised by an appellant. Instead it must be capable of being identified as a "distinct and separate step in the reasoning process" of the court below although the court's reasons may reveal that it proceeded on an assumption as to the relevant law rather than expressly addressed it. Third, these two points raise a related question of what follows from the Court answering a question of law alone raised by a particular ground in a particular way. On that topic, in Bimson at [41] I stated: "If that task [of identifying a question of law in abstract terms] is undertaken, then the consequential questions that will arise are whether the lower court or tribunal either answered that question or proceeded on an assumption concerning that answer, whether its answer or assumption was correct or incorrect, and whether that answer or assumption was material to the outcome, in the sense that it could have affected the outcome (citing Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 per Mason CJ; and Mark Aronson and Matthew Groves Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013, at [4.270]))." It may be necessary to reconsider the last part of this statement in light of the subsequent developments in the High Court concerning the concept of "materiality" in the context of proceedings contending that an administrative decision was affected by jurisdictional error (Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3; and MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17), however that is not presently relevant. For the present it suffices to note that in a given case, and as explained below this is one of them, a ground may raise a question of law alone the answer to which is obvious. The appeal will only "involve" that question of law alone if the answer was a "distinct and separate step in the reasoning process" of the court below (PL supra) although, as noted, that step may be implicit in the court's reasoning. The answering of that question will only of itself lead to the conclusion that the decision should be set aside if the court either addressed that question wrongly or proceeded on an assumption as to that answer which was incorrect and that was material to the outcome. If the Court did not proceed on that misapprehension as to the law, then at most its decision will only be affected by an error of mixed fact or law (or fact) and leave to raise a ground to that effect will be required (see JP at [55] and [65] to [66]).
More recently, the issue of the scope of the phrase "question of law alone" arose in Commissioner of Police (NSW Police Force) v Adam [2022] NSWSC 789. (which related to an appeal as of right against an order for costs made by the Local Court against the prosecutor in any summary proceedings under s 56(1)(e) of the CAR Act), "but only on a ground that involves a question of law alone". Beech-Jones CJ at CL made the following observations at [18]-[21] (emphasis added): As for s 56(1), "[a] question of law alone" as distinct from a question of law or a complaint about error of law, is a question that "can be stated and considered separately from the facts with which it may be connected in a given case" (see Williams v The Queen (1986) 161 CLR 278 at 287; [1986] HCA 88 per Gibb CJ at [314] per Wilson and Dawson JJ). Even so, a conclusion of mixed fact and law can be challenged on an appeal restricted to a question of law alone if it can be determined that that conclusion "[p]roceed[ed] from a misdirection of law" (Williams at 287). In R v PL [2009] NSWCCA 256 at [27], Spigelman CJ stated that a contention that a presiding judicial officer erred may involve a question of law alone if a stand alone legal proposition can be identified which was a "distinct and separate step in the reasoning process". In Bimson, Roads and Maritime Services v Damorange Pty Limited [2014] NSWSC 734 at [41], I stated as follows: "If that task [of identifying a question of law in abstract terms] is undertaken, then the consequential questions that will arise are whether the lower court or tribunal either answered that question or proceeded on an assumption concerning that answer, whether its answer or assumption was correct or incorrect, and whether that answer or assumption was material to the outcome, in the sense that it could have affected the outcome..." Leaving aside the approach to materiality that is referred to in this passage, the end result is that an appeal on a question of law alone may raise a question of law, the answer to which is obvious. Further, the appeal will only "involve" that question of law alone if that answer was a "distinct and separate step in the reasoning process" of the court below (PL supra), even accepting that such a step may only be implicit in the lower court's reasoning. Answering that question will only of itself lead to a conclusion that a decision should be set aside if the court either addressed that question incorrectly or proceeded on an assumption as to the answer which was incorrect and it was material to the outcome. If the court did not proceed on a misapprehension as to the law, then, at most, its decision will only be affected by an error or mixed fact of law and no question of law alone will ultimately either arise or be involved in the proceedings (see White v DPP [2021] NSWSC 1629 at [13]).
There is one further important matter which warrants particular emphasis. It concerns the requirement for a party who seeks to appeal as of right on a ground that involves a question of law under s 52(1) of the CAR Act clearly to identify the question of law which is the subject of the appeal. This was emphasised by the Court of Appeal (Meagher, Payne and White JJA) in Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13] (albeit in a different statutory context): Although an appeal to the Supreme Court only lay as of right on a question of law, the respondent did not identify the questions of law that were the subject matter of the appeal, but rather asserted the magistrate erred in law in various ways. This was wrong (TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178; [1988] FCA 119; B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187; Colby Corporation Pty Ltd v Federal Commissioner of Taxation (2008) 165 FCR 133; [2008] FCAFC 10 at [13]; Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 at [21]; Hoe v Manningham City Council [2011] VSC 37 at [3]-[4]; Smalley v Secretary, Department of Health and Ageing [2011] FCA 302 at [10] ff); Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6], [22]) ("Feralla"). As Leeming JA said in Ferella at [6]: "Obviously, it is not possible, merely by the device of asking whether the Tribunal erred in law in doing something or failing to do something, to circumvent the statutory limitation on the scope of the appeal."
The necessity of identifying with precision the question of law for the purposes of s 52 of the CAR Act is all the more important having regard to the continuing authority in this State of the majority view in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156-157 per Glass JA (with whom Samuels JA agreed) to the effect that a claim that a particular finding is "perverse" or "unreasonable" or "not reasonably open" does not ordinarily raise a question of law. I will return to address this matter below.
I attempted to summarise the position (with reference to the phrase "a question of law" in s 83 of the Civil and Administrative Tribunal Act) in Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33], the relevant parts of which are as follows: There are several important points to make about this provision: (1) There is no appeal to this Court from a decision of the Appeal Panel as of right. The applicant must persuade the Court that leave should be granted. (2) An appeal is limited to "an appeal on a question of law". (3) As was recently emphasised in Thomas and Naaz at [32], "it is not sufficient merely to assert that the Tribunal erred in law in order to satisfy the limited conferral of jurisdiction". (To similar effect, see Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; (2014) 96 ATR 875 at [6] and [22]; and Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]). Accordingly, it is well-settled that a challenge which is wholly or partly factual cannot be converted into a question of law merely by asserting that a question of law is involved or merely by asserting error itself. (4) What constitutes a question of law is "vexed and context dependent" in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises (see Thomas and Naaz at [52] and Da Costa v The Queen (1968) 118 CLR 186 at 194; [1968] HCA 51). (5) Although there is no clear test of what constitutes a question of law for the purposes of s 83 of the CAT Act, it is important not to lose sight of the continuing binding authority in this State of the Court of Appeal's decision (by majority) in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139… … (7) It is unnecessary to decide for the purposes of this appeal whether a "question of law" encompasses a mixed question of fact and law (see generally, at the federal level, the decisions of the Full Court of the Federal Court in Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 and May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397; [2015] FCAFC 93 and contrast the position at the State level, which is reflected in cases such as Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [44]; Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [60]; and Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265 at [45] per Chen J). (8) The existence of a question of law is not merely a qualifying condition to the statutory right of appeal; rather, the question of law alone is the subject matter of the appeal (see Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 at [21] per French CJ, Gummow and Bell JJ and Davis v NSW Land and Housing Corporation [2016] NSWCA 325; (2016) 18 BPR 36,459 at [77] per McColl JA, with whom Meagher and Leeming JJA agreed). (9) Whether or not an appeal is on a question of law should be approached as a matter of substance and not merely form. As the Full Court of the Federal Court said in Haritos at [107], if, as a matter of substance, there exists a question of law, the Court has "a procedural discretion, to be exercised judicially and where it is in the interests of justice to do so, to direct its formal identification in an amended notice of appeal even where the question of law has not been identified before the primary judge". It is notable that the Court there viewed this approach as consistent with that of the Court of Criminal Appeal in R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108 at [57]-[69] per Spigelman CJ (with whom Mason P, McClellan CJ at CL, Hidden and Howie JJ agreed). Where an appellant is unrepresented, it may be appropriate to adopt a more generous or benevolent approach in assessing whether the notice of appeal identifies a question of law (see, for example, Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 at [75]-[77] per Mortimer J, as approved in Haritos at [104] and see also Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]). (10) …

(e) The grounds of appeal

The plaintiff acknowledged that, if appeal grounds 1 and 3 did not raise questions of law, she needed leave to appeal to the extent that these grounds raise an alleged error of mixed fact and law. It is desirable to set out some general principles before determining whether or not leave to appeal should be granted.
Unsurprisingly, there was substantial agreement regarding the relevant legal principles. They were recently reaffirmed by the Court of Appeal in Cheng v Motor Yacht Sales Australia Pty Ltd t/as the Boutique Boat Company [2022] NSWCA 118 at [15]ff, where Bell CJ (with whom Ward P and Basten AJA agreed) stated that a grant of leave to appeal generally requires the identification of an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable.
Where small claims are involved (as is the case here), it is also relevant to consider that "there must be an early finality and determination of litigation otherwise the costs which will be involved are likely to swamp the money sum involved in the dispute" (Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69). The importance of there being proportionality between the monetary amount at issue in a proceeding and the costs of the proceeding was noted in Cheng at [20]. Section 60 of the Civil Procedure Act 2005 (NSW) requires that consideration be given to the cost of litigating a matter or issue and the Court's practice and procedure should be implemented with the object of resolving the issues between the parties in such a way that the cost is proportionate to the importance and complexity of the subject-matter. As Leeming JA observed in Burrows v Macpherson & Kelley Lawyers (Sydney) Pty Ltd [2021] NSWCA 148 at [44], where the costs of litigation exceed the amount in issue, "[s]uch litigation is a poor candidate for a grant of leave".
For the following reasons, leave should not be granted in respect of proposed grounds 1 and 3. First, I do not accept that these grounds raise a question of law. Rather, they raise at best mixed questions of fact and law and thus require leave.
Secondly, contrary to the plaintiff's submissions, neither of these proposed grounds raises an issue of principle or is of general public importance. Moreover, the modest sum of money involved weighs against granting leave to appeal: the plaintiff estimated the cost of replacing the existing fence was $4,050.
Ground 1 relevantly asserts that the Magistrate erred in fact and law by failing to find that the height of the Colorbond fence was unlawful by reason of the three matters particularised therein.
There are several difficulties with this claim. First, there is the pejorative use of the term "unlawful". It appears from the particulars that the plaintiff's claim is that the fence is "unlawful" because it does not comply with cl 2.34 of SEPP 2008. Implicit in that view are two assumptions. First, that the Magistrate erred in finding that there was no breach of the "Fencing Code" and that the fence was substantially compliant with "planning policy" (which presumably is a reference in both cases to SEPP 2008). These are factual findings, for which there was some evidence, as will be developed further below.
Secondly, the proposed ground overlooks the fact that, in coming to these findings, the Magistrate took into account the various "statements" regarding the height of the fence which were before him, which must have included Mr Millikin's report to the effect that he had reduced the height of the panels to below 1.8 metres. It was a matter for the Magistrate to choose between the conflicting evidence regarding the height of the fence.
Thirdly, to assume that, after the rectification works, the height of the fence still did not comply with cl 2.34 does not mean that the height is "unlawful", with the consequence that the Magistrate was obliged to find that there was not a sufficient dividing fence. For example, it may have been open to the defendants in those circumstances belatedly to seek development consent, which may or may not be forthcoming depending upon a wide range of circumstances, including but not limited to the fact that the fence has been in place for approximately a decade. Alternatively, they may have been able to obtain a Building Information Certificate under Div 6.7 of the EPA Act. Since neither of these possible options was addressed by the parties in their submissions, it is undesirable to say anything definitive about them.
Fourthly, and perhaps most fundamentally of all, the plaintiff's assertions misrepresent the nature of the Local Court's task in determining what is a "sufficient dividing fence". Under s 4 of the Dividing Fences Act the Local Court is obliged "to consider" all the circumstances of the case when determining the standard for a sufficient dividing fence including the seven matters specified therein. There are numerous cases which have addressed the content of a statutory duty "to consider" particular matters, including Parramatta City Council v Hale (1982) 47 LGRA 319; Tickner v Chapman (1995) 57 FCR 451; Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167; Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 and Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188. Some of those cases support the proposition that a decision-maker's obligation "to consider" particular matters requires that "real and genuine consideration" be given to the relevant matter. It is, of course, well settled that in a judicial review context such an epithet should not be allowed to encourage an impermissible review of the merits of such an assessment (see e.g., Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 at [23]-[40] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Bruce v Cole (1998) 45 NSWLR 163 at 186E per Spigelman CJ).
The meaning of the phrase "to consider" will largely depend upon the particular statutory context in which the phrase is used. In the context of s 4 of the Dividing Fences Act, it may be accepted that the relevant decision-maker is required to address and give real and genuine consideration to all relevant circumstances of the case, including but not limited to any of the seven specified criteria which are relevant in a particular proceeding. What is involved, however, is a normative or evaluative judgment by the decision-maker as to whether or not in any particular case a fence meets the standard for a sufficient dividing fence. In my opinion, no particular relevant circumstance or criteria is likely to be determinative. Indeed, as is evident from the terms of the particular criteria in s 4, some may well be in conflict. For example, an existing fence may be non-compliant with a policy or code relating to dividing fences that has been adopted by the local council or with SEPP 2008, but nevertheless, be a fence of a kind which is usual in the locality or addresses privacy or other concerns of the adjoining landowners.
As noted above, the plaintiff's claim that the height of the fence was "unlawful" glosses over the fact that the Magistrate was faced with conflicting evidence regarding the height of the fence after the rectification works were carried out. On the one hand, there was Mr Millikin's evidence that he had lowered the fence on 31 March 2022 to 1.75 metres. In contrast, the plaintiff relied upon the survey document dated 26 August 2022 which recorded the height of the posts in the Colorbond fence as varying between 1.9 metres and 2.07 metres. The evidence was unclear as to whether those measurements were made on the plaintiff's side of the fence or the defendants' side. This could be important, noting that it was common ground that the slope of the land meant that the plaintiff's side was lower than the defendants' side.
Even if there was undisputed evidence (and there was not) that the fence (including the posts which supported it) was higher than 1.8 metres, this does not mean that the Local Court was obliged to find that the fence was unlawful and therefore was not a "sufficient dividing fence" for the purposes of the legislation.
As noted above, the individual considerations in s 4 of the Dividing Fences Act are not necessarily determinative in their own right. The decision-maker is required to engage in an evaluative judgment, involving the consideration and weighing of various matters which may not all point in the same direction. This is what the Magistrate did here, as is reflected in his conclusion that he was satisfied that the fence was "substantially compliant" with planning policy. This finding was based on the Magistrate's: 1. view that erecting a fence is not a precise exercise; and 2. assessment of the photos, the measurements of the height of the posts and the information provided in the statements before the Court, presumably including Mr Millikin's statement.
The same observations apply to proposed ground 3 which is merely a corollary of proposed ground 1, as Mr Horowitz correctly acknowledged.
Turning now to grounds 4 to 6, which the plaintiff asserts raise one or more questions of law for the purposes of s 52(1) of the CAR Act, the following points should be made. First, the language of each of these grounds attracts the criticism made in cases such as Schwartz (which is set out at [52] above) concerning the requirement to identify with precision the question of law which is the subject of the ground of appeal. This requirement is not met by using the language of all these grounds, namely that the Magistrate "erred in law". That is a bald assertion of an error of law, without identifying a question of law as required by s 52(1) of the CAR Act.
This fundamental difficulty is not overcome by the plaintiff's belated attempt to formulate a question of law in respect of ground 4. To ask whether it was "open to the Court to find, with the evidence that it had before it, that the fence was not in breach of regulation 2.34 of the Code" simply attracts the criticism of such a formulation in the majority judgments in Azzopardi.
Putting all this to one side, and assuming in the plaintiff's favour that ground 4 is a no evidence ground, it may be accepted that there is authority for the proposition that a factual finding which is unsupported by any evidence at all presents a question of law (see e.g., Fortune Food Manufacturer Pty Ltd v K Young Trading Pty Ltd [2010] NSWSC 407 at [43] per Davies J and Sheather at [71]-[73] per Walton J). In circumstances, however, where there was some evidence before the Magistrate, including in the form of Mr Millikin's statement that the height of the fence had been lowered to below 1.8 metres, the plaintiff's assertion that there was no evidence at all to support that finding must necessarily fail.
Ground 5 also fails because the plaintiff has not precisely identified a question of law (see again the majority view in Azzopardi). No sufficient question of law is identified merely by asserting that the Magistrate erred in law by failing to take into account what presumably the plaintiff submits to be a mandatory relevant consideration.
The deficiency is not overcome by the formulation of the question of law in the plaintiff's separate document handed up at the commencement at the hearing. That formulation confuses a number of separate concepts, including the proposition that the Local Court's finding that the fence was not in breach of SEPP 2008 was a jurisdictional fact, and whether it was reasonably open on the evidence to find that fact. I do not accept that the Court's finding that there was no breach constitutes a jurisdictional fact in the sense described in cases such as Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [43]ff per Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ. Correctly employed, it is an expression which is used "to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question". It may be accepted that the decision-maker's determination under s 4 of the Dividing Fences Act that a particular fence is not a "sufficient dividing fence" for the purposes of that legislation is a jurisdictional fact, which enlivens the decision-maker's power under s 14. That is the sense I understand Garling J to have used the phrase "jurisdictional fact" in Hill at [20], particularly when reference is also had to his Honour's earlier observations at [14].
Moreover, this ground must fail because, on a fair reading of the Magistrate's reasons, he did not proceed on the basis that the posts which supported the Colorbond fence were not within the meaning of "fence" as defined in s 3 of the Dividing Fences Act. The Magistrate said that he had had the benefit of photos of the existing fence. They clearly show that the fence had supporting posts. Moreover, in the preceding paragraph in the ex tempore judgment, the Magistrate made express reference to there being posts in drawing a distinction between a stepped fence and a raked fence.
Ground 5 is also predicated on an acceptance of the plaintiff's argument that the Magistrate ought to have preferred and acted upon the surveyor's statement regarding the height of the posts. As noted above, however, that evidence was inconsistent with Mr Millikin's statement that he had lowered the height of the fence to below 1.8 metres. Neither the surveyor nor Mr Millikin was called as a witness. It was a matter for the Magistrate to determine which evidence should be preferred, taking into account other relevant evidence such as the photos. The Magistrate was not obliged to prefer the surveyor's evidence, particularly in circumstances where the land sloped and it was unclear whether the surveyor's measurements had been taken on the plaintiff's lower land or on the defendants' higher land. Ground 5 is rejected.
As to ground 6, it may be accepted that the adequacy of the Magistrate's reasons presents a question of law. For the following reasons, however, this ground is rejected.
First, it is relevant to take into account that the reasons were given ex tempore, which is understandable given the workload of the Local Court. Thus, as was observed by Bell P (as the Chief Justice then was) in NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [70], the sheer volume of work may be such that a more relaxed standard of review of reasons together with corresponding compensation for linguistic infelicities may be appropriate where an appellate court is hearing an appeal from a busy tribunal such as NCAT. I consider that similar restraint is also appropriate when reviewing decisions of an inferior court with a notoriously heavy workload, as is the case with the Local Court.
Similar considerations underpinned Kirby P's observations in Acuthan v Coates (1986) 6 NSWLR 472, when in rejecting a submission that a magistrate had failed to adopt the correct approach in awarding costs in a committal proceeding, his Honour said at 478-479: It is also to fall into the error of examining this unedited and unpunctuated record of ex tempore remarks in a busy magistrate's court, as if the transcript were a document to be construed strictly. It is the substance of what the magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on magistrates. When that substance is examined, it is sufficiently clear that the magistrate held the correct tests in mind and properly approached the exercise of the discretion reposed in him by the section.
Secondly, it is well settled that the content of the obligation to provide reasons must take into account a range of practical considerations. As Bell P said in Orr at [65]: One may begin with the observation that the quality of a court or tribunal's reasons can vary immensely, of course, depending upon a range of considerations including the experience and skill of a judicial officer or tribunal member, the complexity of the subject matter, the quality of the submissions made before the court or tribunal, the availability of transcript, the urgency of the matter and the time the judicial officer or tribunal member has to compose his or her reasons. Further, good judgment writing is an art not a science (see TF Bathurst, "Writing Better Judgments", speech delivered to the COAT NSW Annual Conference "Efficient, Informal and Fair: Tribunals Delivering Under Pressure").
Thirdly, in determining the adequacy of reasons in the context of appellate review, the Court's function "is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard" and the "standard is not one of perfection" (see Orr at [66]).
Fourthly, the standard or detail of reasons depends not only on the nature of the decision-maker (such as whether it is a court - and, if so, where it stands in the judicial hierarchy - or a tribunal) but also on the nature of the question being determined and the parties' submissions (see Orr at [68]).
Finally, while it may be accepted that the Magistrate was required to address the parties' submissions to the extent that it was necessary to explain his conclusion, it is well settled that the obligation to give reasons does not require reference to every piece of evidence or every submission (see Strbak v Newton [1989] NSWCA 202 at 3 per Samuels JA, with whom Gleeson CJ and Priestley JA agreed).
Applying these principles, I am not satisfied that the Magistrate's reasons are inadequate. Focusing upon the Magistrate's reasons, in the context of the parties' submissions, it is plain that the Magistrate preferred to adopt Mr Millikin's evidence over that of the surveyor. He did so in circumstances where the parties had presumably made a forensic choice not to call either the surveyor or Mr Millikin as a witness. Necessarily, therefore, there was no opportunity to cross-examine them. Moreover, the Magistrate was given limited assistance by the parties' legal representatives in determining which evidence should be preferred. The plaintiff's solicitor urged the Magistrate not to prefer Mr Millikin's document because it did not refer to the height of the fences and the document was stated to be for "private use only". The defendants' solicitor drew attention to the significance of the sloping land and that the surveyor's report focused upon the height of the posts and not the actual panels themselves.
The transcript records the Magistrate saying that he had "read the entire file" before the hearing on 22 December 2022. The Magistrate referred in his reasons to the relevant evidence concerning the height of the fence after the rectification work had occurred, which included "the statements" before the Court, as well as the photographs.
It may well be that ideally the Magistrate should have specifically identified those statements and explained why he preferred one rather than the other. It may reasonably be inferred, however, that the statements included both the surveyor's document as well as Mr Millikin's letter. As noted above, the Magistrate's attention was drawn to both of those documents in oral address and the Magistrate was urged by the parties to prefer one document over the other. But, as noted above, somewhat limited submissions were made in support of those contentions.
It was made clear to the Magistrate in the parties' submissions that the height of the fence was a significant issue in dispute. The Magistrate was satisfied that the existing fence did not breach the "Fencing Code" and was "substantially compliant with planning policy", which reflected the defendants' submission that Mr Millikin's letter and the photos should be preferred over the survey report.
It may reasonably be inferred that the Magistrate approached the issue of the height of the fence on the basis that strict compliance with planning policy (i.e., SEPP 2008) was not required for the objective of forming an evaluative judgment as to whether there was a "sufficient dividing fence" for the purposes of s 4 of the Dividing Fences Act. It is also evident that the Magistrate was mindful of the fact that a sloping terrain may affect the height or position of the fence and in concluding that there was substantial compliance with the "Fencing Code", the Magistrate took into account not only the photos, but also the various statements filed in the proceedings concerning the height of the fence and the posts.
The Magistrate's reasons, although relatively brief, were sufficient in substance to enable the parties to understand that the plaintiff's application was dismissed because the Magistrate preferred Mr Millikin's evidence to that of the surveyor. Ground 6 is also rejected.

Conclusion

For these reasons, leave to appeal is refused for proposed grounds 1 and 3 in the further amended summons. The further amended summons is otherwise dismissed, with costs.

Orders

The following orders are made: 1. The plaintiff have leave to file the further amended summons; 2. Leave to appeal is refused for proposed grounds 1 and 3; 3. The further amended summons dated 29 August 2023 is otherwise dismissed, with costs.

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: 01 September 2023

Civil and Administrative Tribunal Act 2017(NSW)ss 80, 83

(LEP) Local Court Act 2007(NSW)ss 13, 14, 39, 40, 45, 70

Dividing Fences Act 1991(NSW)ss 3, 4, 6, pt

ading Pty Ltd [2010] NSWSC 407 Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 Hill v Vicars [2022] NSWSC 828 Huntlee Pty Ltd v Sweetwater Action Group Inc [2011] NSWCA 378 Inner West Council v Kontellis [2017] NSWLEC 57 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 Parramatta City Council v Hale (1982) 47 LGRA 319 Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 Strbak v Newton [1989] NSWCA 202 Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 Tickner v Chapman (1995) 57 FCR 451 Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 White v Director of Public Prosecutions [2021] NSWSC 1629 Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 Texts Cited: NSW Law Reform Commission, 'Dividing Fences' (1988) Report LRC 59 Category: Principal judgment Parties: Lynette Styles (Plaintiff) Georgie Rowley (First Defendant) Brendan Faulkner (Second Defendant) Representation: Counsel: J Horowitz (Plaintiff) L D Corbett (Defendants)

(2019) 100 NSWLR 578

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (75)

Cited By (11)