Styles v Rowley

1. [1]

   The plaintiff appeals from a judgment and orders made on 22 December 2022 in the Local Court of NSW: Styles v Rowley (Local Court, Dick LCM, 22 December 2022, unrep) (primary judgment or PJ).

2. [2]

   The parties’ dispute relates to the operation of the Dividing Fences Act 1991 (NSW).

3. [3]

   Although the plaintiff purported to appeal under either or both ss 39 and 40 of the Local Court Act 2007 (NSW), given that the plaintiff’s application to the Local Court was one made under s 45 of the Local Court Act, the source of the right of appeal to this Court is s 70(1)(c) of that Act. The effect of that provision is that the plaintiff’s appeal must be made in accordance with Pt 5 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) in the same way as proceedings can be brought in relation to a conviction arising from a court attendance notice dealt with under Pt 2 of Ch 4 of the Criminal Procedure Act 1986 (NSW). The proper source of the right of appeal has some significance, for reasons which will be developed below.

Background facts summarised

1. [4]

   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.

2. [5]

   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).

3. [6]

   It is unnecessary to descend into any detail about the parties’ interactions over several years regarding the height and position of the Colorbond fence, nor any of the other matters which have contributed to their tense relationship.

4. [7]

   By an application dated 8 October 2021, made under s 45 of the Local Court Act, the plaintiff sought the following orders in the Local Court:

5. [8]

   The stated grounds for the application were as follows:

6. [9]

   The matter came before the Local Court on several occasions. It appears that the matter also went to mediation. The NSW Online Registry has the following notation regarding a mention of the dispute in the Local Court on 21 February 2022:

7. [10]

   Ms Rowley’s affidavit below dated 30 May 2022 described rectification works carried out by Mr Nigel Millikin (from N&L Millikin Fencing and Slashing Contractors) on 31 March 2022. Annexed to the affidavit is a document dated 10 April 2022, signed by Mr Millikin and addressed: “To whom it may concern”. He said that he had attended the defendants’ property on 31 March 2022 for the purpose of lowering the height of the boundary fence and that he had “lowered the height of the fence panels to 1750mm”. The document stated that, because of the sloping land, the sleepers were used not to raise the height of the fence but to create a level surface on which the fence was erected and to create an edge to prevent soil erosion. Mr Millikin also referred to discussions he said that he had had with the local Council. He said he was told that, under SEPP 2008, if a fence is erected on a sloping site and is stepped to accommodate the fall in the land, the fence must not be higher than 2.2 metres above ground level (existing) at each step. Mr Millikin attached some photographs which he said demonstrated what had been removed from the height of the fence.

8. [11]

   The plaintiff disputed that the fence had been lowered as claimed by Mr Millikin and the defendants. In the proceedings below, the plaintiff relied inter alia upon a sketch plan dated 26 August 2022 prepared by a registered surveyor, which recorded that, as at that date, the height of the posts in the Colorbond fence varied from 1.9 to 2.07 metres along the length of the Colorbond fence. The survey also suggested that the fence was not erected precisely on the boundary line but the issue of encroachment on both sides of the fence is not pursued on appeal.

The Magistrate’s reasons summarised

1. [12]

   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.

2. [13]

   The reasons are relatively brief and, for convenience, are reproduced below without alteration:

3. [14]

   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

1. [15]

   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:

2. [16]

   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:

3. [17]

   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.

4. [18]

   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.

5. [19]

   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.

6. [20]

   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”.

7. [21]

   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.

Consideration and determination

1. [22]

   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.

2. [23]

   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”.

3. [24]

   Section 4 is an important provision concerning the standard for a sufficient dividing fence. It provides:

4. [25]

   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.

5. [26]

   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]).

6. [27]

   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.

7. [28]

   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:

8. [29]

   SEPP 2008 applies to the entire State except as provided elsewhere in cl 1.4 (it was not claimed that any exception applied here).

9. [30]

   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:

10. [31]

    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).

11. [32]

    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:

12. [33]

    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:

13. [34]

    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.

14. [35]

    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:

15. [36]

    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):

16. [37]

    The Governor may direct that an SEPP applies to either the whole of the State or to special areas of the State.

17. [38]

    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).

18. [39]

    Sections 52 and 53 of the CAR Act (which are in Pt 5) relevantly provide as follows:

19. [40]

    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:

20. [41]

    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”.

21. [42]

    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”.

22. [43]

    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).

23. [44]

    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.

24. [45]

    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.

25. [46]

    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]:

26. [47]

    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]).

27. [48]

    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”.

28. [49]

    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).

29. [50]

    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]:

30. [51]

    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):

31. [52]

    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):

32. [53]

    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.

33. [54]

    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:

34. [55]

    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.

35. [56]

    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.

36. [57]

    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”.

37. [58]

    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.

38. [59]

    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.

39. [60]

    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.

40. [61]

    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.

41. [62]

    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.

42. [63]

    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.

43. [64]

    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).

44. [65]

    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.

45. [66]

    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.

46. [67]

    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.

47. [68]

    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:

48. [69]

    The same observations apply to proposed ground 3 which is merely a corollary of proposed ground 1, as Mr Horowitz correctly acknowledged.

49. [70]

    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.

50. [71]

    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.

51. [72]

    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.

52. [73]

    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.

53. [74]

    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].

54. [75]

    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.

55. [76]

    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.

56. [77]

    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.

57. [78]

    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.

58. [79]

    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:

59. [80]

    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]:

60. [81]

    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]).

61. [82]

    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]).

62. [83]

    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).

63. [84]

    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.

64. [85]

    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.

65. [86]

    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.

66. [87]

    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.

67. [88]

    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.

68. [89]

    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

1. [90]

   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

1. [91]

   The following orders are made:

   1. (1)

      The plaintiff have leave to file the further amended summons;

   2. (2)

      Leave to appeal is refused for proposed grounds 1 and 3;

   3. (3)

      The further amended summons dated 29 August 2023 is otherwise dismissed, with costs.