Woodbridge v Degabrielle

Primary decision and reasons

1. The Tribunal set out the relevant legislative provisions - DFA ss 3, 4 and 7 - and said it had considered the (significant) filed written materials, sworn oral evidence and (lengthy and detailed) submissions of both parties. A recording of the hearing from which a transcript could be typed was unfortunately not available to the parties despite it being requested for the appeal.
2. The Tribunal ordered that the parties share, in addition to the cost of constructing the fence and associated materials, the invoiced cost of $3,750 for demolition and excavation but rejected the respondent's application that the parties share the temporary fencing costs which had not been sufficiently documented. These matters have not been appealed.
3. The Tribunal ordered a fence to be completed in accord with the agreed terms, by 9 August 2021, and ordered that the fence be 1.8m in height as sought by the respondent. It was that height order which was the sole subject of the appeal. The appellants sought a substituted order being 1.5m height from the existing reduced level (RL) of their property, which they said provided greater certainty than did the order.
4. There were no challenges to the following findings of the Tribunal: the previous dividing fence was a 1.5m timber fence approximately 90 years in age and structurally failing at least in several parts; the previous fence was removed during works in March 2020 on the respondent's property; the appellants did not allege deliberate destruction or dispute shared cost or the need for a replacement fence; discussions had been ongoing for over 12 months; in late June and early July 2020 the respondent proposed 1.8m then agreed to 1.5m but after a site meeting resiled and sought a 1.8m high fence; mediation had failed.
5. The Tribunal recorded the appellants' contention that the replacement fence should be the same 1.5m height as the previous fence and the respondent's contention that there was no existing fence and that changed circumstances affecting both properties needed to be taken into consideration.
6. The Tribunal then considered sequentially the requirements in DFA s 4(a)-(f) which were specified as required to be included in the Tribunal's consideration of all the circumstances of the case when determining the standard for a sufficient dividing fence. He took these factors as non-exclusive criteria for a new fence as well as for determining the sufficiency or otherwise of an existing fence.
7. The Tribunal noted that, in addition to the respondent's approved DA, the appellants had obtained development consent on 17 March 2021 to demolish and rebuild. The DA proposal said in respect of side fencing "A 1.8m high fence along the northern side boundary adjoining the rear yard of [the respondent's property] will have a height that rises to over 2.2m". The primary member said it was not clear why there was an "inconsistency" between the DA proposal and the height sought in the proceedings. The appellants were recorded as saying that the development consent had a five-year life and they may not proceed with it.
8. Having noted the common ground on a fencing order, the primary member turned to consider "the privacy or other concerns of the adjoining land owners" which was s 4(c) in the DFA and was at the nub of the appeal as argued at final hearing.
9. Under this requirement he noted the following: 1. The respondent's "primary concern and basis for" the 1.8m fence was "her privacy concerns, particularly as the [appellants] ha[ve] erected a platform in their backyard and thus raising the hard level to the rear of the [appellants'] premises". 2. The respondent's intention under her own development consent was to install a swim spa "and the lower fence line would directly impact on her privacy when using her backyard area". 3. The respondent placed "great weight on these two changed circumstances affecting the adjoining properties in her request for a higher level than the previous fence". 4. "Privacy is an issue that affects both parties to this application as it is reasonable to assume that if the [respondent] has reason to believe the [appellants] would be able to see into her property, the [respondent] would also be able to view the [appellants'] yard." 5. The appellants submitted no privacy concerns in the primary hearing and "prefers to place their concerns of reduced amenity to enjoy the ocean view from their backyard". 6. The "reduced (or potential reduced) view is not a consideration required by" the DFA "in this application" but noted the appellants' proposal in their DA (which may not proceed) of a privacy screen on the proposed rear terrace which had a direct view towards the respondent's spa.
10. The Tribunal said that it accepted "the evidence of both parties" that the kind of dividing fence usual in the locality was pine timber paling between 1.5m and 1.8m in height (being s 4(d) in the DFA).
11. The Tribunal said that it accepted "the evidence of both parties" of a maximum fence height in the locality being 1.8m (being s 4(e) in the DFA). It noted no evidence on any environmental planning instrument being relevant (being s 4(f) in the DFA).
12. Having stressed that it "has given consideration to all points as required by the Act" and taken account of "all the circumstances of the case" as just set out (and as required by the DFA, s 4), the Tribunal said this included the respondent's use of her yard, the removal of trees that previously have offered privacy and the appellants' acknowledgement of the respondent's privacy concerns in their DA proposal.
13. The primary member then concluded "the weight of the [respondent's] privacy concerns outweighs the [appellants'] submissions to replace the fence at the previous height" and "on the evidence and the analysis of the considerations required the balance falls in favour of the [respondent]". He then made the orders previously referred to.

Extension of time not required

1. The appellants' notice of appeal was filed on 9 August 2021, which was within time from the date (12 August 2021) that the appellants said, without contest, that they received the primary decision, under r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW). Accordingly, extension of time for filing the notice of appeal was not required.

Grounds of appeal

1. At the appeal hearing the appellants revised their appeal grounds to accord with their written submissions, for which we granted leave despite the absence of a formal amended notice of appeal. There was then engagement with the amended grounds and some of them were not pressed, including an application to adduce further evidence.
2. We record here those that were pressed, in summary, as follows: 1. Alleged error of law and/or failure to exercise jurisdiction by stating that view or potential reduced view was not required by the DFA, s 4 to be considered. 2. Alleged error of law in taking into account an irrelevant consideration being the appellants' development consent including the proposed conditions in the DA. 3. Alleged error of fact justifying grant of leave to appeal in using the two development consents as a reason to find for the respondent. 4. Alleged error of fact justifying grant of leave to appeal in reaching a decision against the weight of evidence that the usual kind of dividing fence in the locality was between 1.5m and 1.8m in height.

Applicable legal principles governing appeals

1. Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) states: 80 Making of internal appeals (2) Any internal appeal may be made: … (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
2. Clause 12(1) of Schedule 4 to CATA states: 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).
3. A Division decision is a primary decision of the Consumer and Commercial Division (CATA, Sch 4, cl 1). The primary decision here is such a decision.
4. A question of law may include, not only an error in ascertaining or characterising the legal principle or statutory provision or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not taking into account a relevant consideration, which includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578, [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179; [1995] HCA 58.
5. These categories are not exhaustive of errors of law that give rise to an appeal as of right. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel enunciated the following as specifically included: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
6. Turning to errors of fact, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, the Appeal Panel stated at [76]-[79] and [84(2)] as follows: "[76] Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. [77] 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 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 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]. … [78] If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]. ... [84] The general principles derived from these cases can be summarised as follows: … (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
7. In appellate review of the exercise of a discretion, a reviewing court or tribunal must be cognisant that reasonable minds may differ on the correct exercise of discretion from alternatives all of which are within the range of reason. Unless the factors identified in House v The King (1936) 55 CLR 499 at 505, [1936] HCA 40 are satisfied, the fact that the reviewing court or tribunal may have chosen a different alternative is not sufficient to upset the exercise of discretion. Those factors were stated as follows: "It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

No alleged errors of law

1. We discern no error of law or failure to exercise jurisdiction in either way contended for by the appellants.
2. In our view the primary member did the opposite of ignoring view or potential reduced view as a requirement to be considered under the DFA s 4. When saying that "reduced (or potential reduced) view is not a consideration required by" the DFA "in this application", he was referring to its not being an express inclusion but, rather, one of the unnamed "other concerns of the adjoining land owners" that were part of the express inclusions and in any event part of all the circumstances of the case that he was required to consider.
3. He then proceeded expressly to consider amenity in the form of view in this application to conclude that the balance favoured privacy (one of the express inclusions) over amenity.
4. We have already set out the primary member's reasoning. That balance between privacy and amenity and the resolution of the balance in the circumstances of this case in favour of privacy was the heart of the reasoning. It was not, as the appellants submitted, ignored but was at the centre as it should have been on the way the evidence in the case presented the circumstances.
5. In coming to that conclusion on balancing of factors, to the extent that was a discretionary decision it did not fall into the errors identified in House v The King or in the other authority to which we already have referred and was comfortably within the range of decisions in the circumstances of the case. Others may have reached a different conclusion, but that is not the test and we express no personal view on that topic except to say that not expressing a personal view should not be taken as implicitly endorsing a different view of the balance.
6. The dominance of the privacy/amenity considerations left the place of both development consents in a very subordinate situation and the Tribunal's reference to the appellants' development consent reflected that subordination. The primary member simply referred to the proposed privacy screen in the appellants' DA (which it was noted may not be proceeded with) to indicate some element in the appellants' thinking of privacy although it was subordinated to amenity of view. That subordinated reference was clearly within the range of relevant considerations.

No basis for leave to appeal alleged errors of fact

1. That subordinated reference also gave appropriate weight to the two development consents - both approved, the respondent's to be acted on immediately, the appellants' more doubtfully to be acted upon in the next five years. In any event, given the primary member's reference to the direct privacy and amenity concerns expressed by the parties much more directly, even removing the development consents or at least the appellants' altogether from consideration clearly would not have changed the outcome of the balancing exercise. Accordingly, no substantial miscarriage of justice is made out. Further, none of the matters we have set out to enliven exercise of discretion is apparent.
2. In relation to the final ground, in the absence of transcript the appellants strove to find inferences from other evidence that supported the contention that the Tribunal erred in saying it was common ground on the height range of fences in the immediate vicinity, rather than a point the respondent did not establish by sufficient evidence. In the absence of a transcript we cannot make a finding on whether or not there was an error of fact.
3. Assuming solely for the purposes of the argument on this ground of appeal in the appellants' favour that there was an error of fact, again this appears to be incidental to the primary members' conclusions and clearly would not have changed the outcome of the balancing exercise. Accordingly, no substantial miscarriage of justice is made out. Further, none of the matters we have set out to enliven exercise of discretion is apparent.
4. We note for completeness that in the appellants' written submissions in reply a further amendment application to the grounds of appeal was indicated but not formally made, developed or progressed in oral submissions. This was that the finding on fence height in the locality was unsupported by evidence and therefore an error of law or jurisdictional error being on a mandatory criterion to be considered.
5. The indicated application was far too late to have been considered if it had been pressed. However, in the absence of transcript the premise for it - the alleged error and absence of any agreement or evidence on the point - could not be sustained. Even if there was no agreement or evidence made out as contended, leading to an error of law, for reasons we have already canvassed it is clear that such error of law would have had no effect on the outcome, since the focus was on balancing of central considerations of privacy and amenity.

Conclusion

1. We have focused on the appellants' contentions without disrespect to the respondent (on whom we did not call for oral argument) because we have concluded that the appellants' submissions have not sufficiently established the challenges made to the primary decision to go further.
2. That is why we felt sufficiently confident to give the parties an immediate outcome that the appeal was dismissed, with supporting reasons to be formally presented within a short compass.
3. We note for courtesy and completeness that some of the matters in our reasons have resonance in the respondent's written submissions and that the respondent referred to Bolton v Grose [2019] NSWCATAP 251 as support for a development consent having relevant input for the Tribunal to make its own determination in a different statutory environment.

Orders

1. The order we accordingly made at the conclusion of the hearing on 28 October 2021, with reasons to be published subsequently, was as follows: 1. The appeal is dismissed.

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: 09 November 2021