Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Grabowskyj v Ryan [2020] NSWCATAP 270 Hearing dates: 7 December 2020 Date of orders: 17 December 2020 Decision date: 17 December 2020 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member Dr J Lucy, Senior Member Decision: (1) Leave to appeal is refused; (2) The appeal is allowed in part; (3) Order 4(c) made in proceedings COM 20/25440 is varied by omitting "and/or preparation" and "(including the trimming, lopping or removal of vegetation)"; (4) the appeal is otherwise dismissed. Catchwords: ENVIRONMENT AND PLANNING — Fences and boundaries — "Dividing fence" – Definition of fence – Replacement of retaining wall and dividing fence - Whether retaining wall was "any foundation or support necessary for the support and maintenance of the fence" – Whether there was a constructive failure to exercise jurisdiction by not determining whether the tree or trees on or near the common boundary should be removed – Whether the contribution required from the adjoining owner includes engineering costs for the retaining wall Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 80, Sch 4, cl 12 Civil and Administrative Tribunal Rules 2014 (NSW), r 25 Dividing Fences Act 1991 (NSW), ss 3, 11, 14 Cases Cited: C G Constructions Pty Limited v Hanson Constructions Materials Pty Limited [2017] NSWCATAP 130 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Fallon v Croese [2016] NSWCATCD 40 Inacio v Luckose [2020] NSWCATAP 149 Nham v Hayes [2018] NSWCATCD 17 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: None cited Category: Principal judgment Parties: Paul John Grabowskyj (Appellant) Amanda Lee Ryan (Respondent) Representation: Appellant (Self Represented) Respondent (Self Represented) File Number(s): AP 20/39414 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 19 August 2020 Before: J Rose, General Member File Number(s): COM 20/25440 REASONS FOR DECISION Introduction 1. This is an internal appeal from the decision of the Consumer and Commercial Division of the Tribunal made on 19 August 2020 (the Tribunal decision) in which it made orders in relation to a dividing fence on the common boundary between the properties of the appellant Paul John Grabowskyj and the respondent Amanda Lee Ryan under the Dividing Fences Act 1991 (NSW) (DF Act). 2. We have decided to refuse the appellant leave to appeal, to allow the appeal in part, vary order (4)(c) of the Tribunal decision, and to otherwise dismiss the appeal. The background 1. The appellant is one of the owners of a property at Glen Alpine (the appellant's property), while the respondent is the owner of the adjoining property (the respondent's property). 2. The two properties are situated on sloping land, with the respondent's property slightly more elevated than the appellant's property. The common boundary between the two properties is about 40.21 metres in length. There was a treated pine retaining wall along the boundary between the two properties, varying between 300 mm and 1.2 metres in height (the retaining wall). At the top of the retaining wall, and immediately behind it on the same side of the wall as the respondent's property was a timber paling fence that was held in place by timber posts set into concrete foundations in the retained ground (the timber fence). The timber fence was constructed between the front building alignment of the houses on the two properties and the back end of the common boundary of both properties and was about 32 metres in length. 3. In early February 2020, the part of the retaining wall that was located between the houses on the two properties had started to collapse and was leaning heavily towards the house on the appellant's property. The earth behind the retaining wall had collapsed into the void left by the collapsing wall, causing the timber fence to roll towards the house on the respondent's property. 4. On 26 February 2020, Campbelltown City Council sent a letter to the appellant and the other owner of the property giving notice that it proposed to give them a development control order requiring them to repair or replace the retaining wall and provide a report from a structural engineer certifying the structural adequacy of the wall. 5. On 19 April 2020, the appellant gave the respondent a "notice to carry out fencing work" under s 11 of the DF Act, proposing to share the cost of a 40 metre long fence and retaining wall along the common boundary between the two properties (the fencing notice). 6. On 22 April 2020, the respondent advised the appellant that she did not agree with his proposal. The Tribunal proceedings 1. On 12 June 2020, the appellant commenced proceedings COM 20/25440 against the respondent by filing an application in which he claimed orders: 1. determining the fencing work to be carried out (including the kind of dividing fence involved); 2. determining the manner in which contributions for the fencing work are to be apportioned or re-apportioned between the parties or the amount that each adjoining owner is liable to pay for that work; 3. determining the time within which the fencing work is to be carried out. 1. On 27 July 2020, the hearing of the proceedings took place. The appellant and the respondent each tendered a bundle of documents. There was no oral evidence. 2. The Tribunal relevantly noted that the parties disagreed on whether the costs of trimming the nearby tree on the applicant's property and the costs of the engineering report that the applicant had obtained should be shared as part of the costs of the fencing work. 3. The appellant's bundle of documents relevantly included: 1. a tax invoice dated 14 May 2020 of D&M Consulting Pty Ltd (D&M), Consulting Engineers, for $1,100.00 for inspecting the site and designing a retaining wall (the engineering costs); 2. a plan and a detail diagram each dated 26 May 2020 of D&M for a retaining wall between the two properties (the 26 May 2020 D&M plan and detail diagram); 3. quotation no 4006a of Sutherland Shire Landscapes dated 26 June 2020 for $36,080.00 inclusive of GST which relevantly included the following works (the SSL quotation): "Demolition and removal of failed sleeper retaining walland timber paling fence on boundary. Excavation of boundary, removal of excess soils and overburden. Removal of 2 trees on boundary line and removal of stumps. … …… NOTE: Works for tree removal and stump removal listed in quotation have an itemised price of $880.00" 1. The respondent's bundle of documents relevantly included a quote BellBuilt Construction Services dated 15 June 2020 for $38,060.00 to construct a retaining wall along the boundary, and a colour bonded or treated pine fence running between the front of the two dwellings and the rear boundary fence, which did not contain any allowance for the removal of obstructions such as trees (the BCS quotation). The Tribunal decision 1. In the Tribunal decision, the Tribunal: 1. reviewed the relevant provisions of the DF Act and principal legal authorities as to their application including Fallon v Croese [2016] NSWCATCD 40 (Fallon), Nham v Hayes [2018] NSWCATCD 17 (Nham) and Inacio v Luckose [2020] NSWCATAP 149 (Inacio), held Inacio was binding, and distilled the following legal principles: 1. each case is considered on its own facts; 2. the extent to which a retaining wall is considered to provide "foundation or support necessary for the support and maintenance of the fence" is considered narrowly. It may just be limited to the fixings attaching the fence to the wall; 3. lateral support given by a retaining wall to a dividing fence constructed behind the wall, that is not part of the wall, is not enough to constitute "foundation or support necessary for the support and maintenance of the fence"; 1. relevantly made the following findings: 1. the retaining wall subject to the fixings or mountings necessary to attach the replacement for the paling fence to that wall is not part of the dividing fence (at [88]-[91]): "[88] A retaining wall is expressly excluded from the definition of "fence" unless it falls within "any foundation or support necessary for the support and maintenance of the fence". The retaining wall in this case does not of itself enclose or bound land. Its primary purpose is to retain the ground at [the respondent's property] behind it, to prevent it sliding or falling onto [the appellant's property]. The fence constructed behind the retaining wall encloses or sets out the bounds of the land owned by the applicant and the respondent, and it is that fence which separates those lands. [89] The retaining wall is therefore not part of the dividing fence. I am not satisfied that any of the matters raised by the applicant establish otherwise, or that the retaining wall provides foundation or support for the dividing fence. To the contrary, for the reasons set out in Inacio, I am satisfied the retaining wall does not provide foundation or support for the support and maintenance of the timber fence within the intent of the amendment that was made in 2008. Lateral support to prevent the foundations of the fence from moving sideways is not enough to fall within the exception provided by paragraph (c) of the definition of "fence" in s 3 of the DF Act. [90] In my view, the only work associated with replacing the retaining wall that will fall within the scope or a "fence" within the meaning in s 3 of the DF Act is the work associated with supplying and installing any fixings or mountings necessary to attach the replacement for the paling fence to that wall in order to provide foundation or support necessary for the support and maintenance of that new fence. [91] I am therefore satisfied that, subject to that exception, the retaining wall between the appellant's property and [the respondent's property] is not part of a "fence" within the meaning of that term in s 3 of the DF Act, and it is also not part of a "dividing fence" within the meaning of that section." 1. the timber fence is not a sufficient dividing fence and should be replaced with a colour-bonded sheet metal fence (at [93]-[94]); 2. it is appropriate to treat the engineering costs incurred by the appellant as costs associated with the retaining wall, and not as costs associated with the fencing work. Even if that were not the case, the respondent should not be liable to contribute to the engineering costs, applying the principle in s 11(5) of the DF Act, as they had been incurred before the Tribunal decision (at [102]); 3. "any work" that is undertaken in surveying or preparing the land along or on either side of the common boundary between the two properties for the replacement of the timber fence with the proposed colour bonded metal sheet fence - as distinct from the work of the nature that is associated with replacing the retaining wall - should be considered part of the fencing work including "any work or costs" incurred in trimming, lopping or removing vegetation for that purpose (at [103]). 1. made the following orders: "(1) The Tribunal determines that: (a) the dividing fence between the appellant's property and the respondent's property (the adjoining lands) does not include the retaining wall constructed on the common boundary of the adjoining lands; and (b) the Tribunal does not have jurisdiction under the Dividing Fences Act 1991 (NSW) to make orders in respect of that retaining wall. (2) The Tribunal is satisfied that: (a) the notice to carry out fencing work was served on the respondent in accordance with s21 of the Dividing Fences Act 1991 (NSW); (b) the application for an order of the Tribunal was made not less than 1 month after the date of service of the Notice to carry out fencing work; (c) there is no sufficient dividing fence separating the adjoining lands; and (d) it is appropriate to make the following orders for fencing work to be carried out to demolish and replace the existing timber paling fence that is separating the adjoining lands (the fencing work). (3) The line on which the fencing work is the boundary of the adjoining lands, generally along the line of the existing timber paling fence separating the adjoining lands and at the top of the embankment and/or any retaining wall on the common boundary of the adjoining lands, from the point where that line meets the front building alignment between the dwellings on the adjoining lands to the rear boundary of the adjoining lands, estimated to be approximately 32 metres. (4) The fencing work to be carried out is: (a) the demolition and removal of the existing timber paling fence between the adjoining lands; (b) the replacement of that fence with a new colour bonded sheet metal fence, to be supplied and installed on the line described above, approximately 32 metres in length and 1.8 metres in height as measured from the surface level of the respondent's land, with the fence posts, framing and sheeting to be in the colour "Jasper®" shown on the Colorbond® colour chart for fencing (unless the parties agree on another colour or colours for the fence posts, framing and/or sheeting, in which that colour or those colours shall be used); and (c) the surveying and/or preparation of the land (including the trimming, lopping or removal of vegetation) along or on either side of the common boundary of the adjoining lands for the purpose of constructing that new fence. (5) The fencing work shall include the supply and installation of any brackets or mountings necessary to support the fence on the top or back of a retaining wall that is constructed along the boundary of the adjoining lands, but does not include the construction, repair or replacement of any such retaining wall. (6) The fencing work is to be carried out in a good and workmanlike manner using new materials. (7) The fencing contractor who is to conduct the work for the parties is to be selected by the following method: (a) Each party is to obtain at least one (1) quote from a licensed fencing contractor for the fencing work set out in these orders within two (2) weeks of the date of these Reasons for Decision. The quotes must quote for supplying and erecting approximately 32 metres of 1.8 metre high colour bonded sheet metal fence as specified in these orders. (b) The parties are to exchange their respective quotes with each other within four (4) days of receipt of their quote. (c) The parties are to agree on the quote to be accepted. (d) If a quote is not obtained by the respondents within two (2) weeks of the date of these Reasons for Decision, then the quote obtained by the applicants will be the quote to be accepted; (e) If both parties obtain a quote within the time allowed under these orders and there is absence of agreement between the parties within 4 weeks of the date of these Reasons for Decision as to which quote is to be accepted, the quote or quotes are to be referred to the Tribunal Member for their decision as to which quote will be selected. In making their decision, the Tribunal Member:- (i) will not consider submissions made by either party in respect of the acceptability or otherwise of the quotes submitted; (ii) is not bound to select the lowest quote submitted by the parties; (iii) is not obliged to satisfy themselves as to the bona fides or license status of the proposed fencing contractors; (iv) will not provide reasons for their decision; and (v) their decision will be final and in their absolute discretion. (8) Subject to availability of the fencing contractor, the fencing work is to be completed within four (4) weeks of acceptance of the quote. (9) The parties and the fencing contractor (including the contractor's employees or agents) carrying out fencing work in accordance with these orders may, at any reasonable time, enter on the adjoining lands for the purpose of carrying out the fencing work. (10) The cost of the fencing work shall not include any cost or amount incurred by either party before the date of these orders. (11) Subject to the provisions of the Dividing Fences Act 1991, in these orders where there is a time specified for the doing of an act or thing: (a) The length of time is to be strictly applied in interpreting the order: (b) If a party does not comply with an order for the doing of an act or thing by a date ordered then the right to do that act or thing will lapse without further notice: (c) The Tribunal decision about the time for doing an act or thing in these orders is final. (12) The applicant must pay the cost of the fencing work to the fencing contractor and will be the only party to give instructions to the fencing contractor in relation to the carrying out of the fencing work. (13) The applicant and respondent are to pay for the cost of the fencing work in equal portions, as follows: (a) The fencing contractor is to be paid by the applicant in accordance with the fencing contractor's terms and conditions, with the final payment to be made on the day the fencing work is completed. (b) The respondent is to pay to the applicant her contribution as ordered in these orders by the following instalments, without deduction or allowance: (i) within seven (7) days of the production by the applicant to the respondent of a receipt issued by the fencing contractor for any deposit paid to the fencing contractor, an initial instalment equal to 50% of that deposit; and (ii) within seven (7) days of the production by the applicant to the respondent of a receipt issued by the fencing contractor for any progress payment or final payment paid by the applicant to the fencing contractor, an instalment equal to 50% of that payment. (14) If the respondent does not comply with the above order to pay money, a certified copy of the above money order may be obtained from the Tribunal for the purpose of enforcement action through the Local Court. (15) Each party is to pay their own costs of and relating to these proceedings." The scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. The Appeal Panel relevantly may decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and permit such fresh evidence to be given in the new hearing as it considers appropriate in the circumstances: s 80(3) of the NCAT Act. 3. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law which relevantly includes whether the Tribunal identified the wrong issue or asked the wrong question, whether the Tribunal applied a wrong principle of law, and whether the Tribunal failure to afford procedural fairness. 4. An error of law will also occur where there is a constructive failure to exercise jurisdiction by not making a finding on a material question of fact: C G Constructions Pty Limited v Hanson Constructions Materials Pty Limited [2017] NSWCATAP 130 at [33]-[35]. 5. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered 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." 1. In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated 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" within cl 12(1)(a) of Sch 4 of the NCAT Act; 2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act 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. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. 2. In Collins, the Appeal Panel at [84] stated that 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." 1. Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) relevantly provides that in the case of an appeal from a decision under the DF Act an internal appeal must be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed. 2. In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), the Appeal Panel at [13] stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel proceedings 1. On 15 September 2020, the appellant commenced proceedings AP 20/39414 against the respondent by filing a notice of appeal, in which he: 1. challenges orders (1)(a), (4)(c) and (10) of the Tribunal decision; 2. lists the following grounds of appeal: "* In applying the law to the facts, the case Inacio v Luckose was exclusively referenced as the member has noted its facts are remarkably similar. However, this case involved a fence built next to the retaining wall and the concept of lateral support whilst we are seeking orders for a fence to be built directly onto the retaining walls steel posts {H beams) along the boundary line in accordance with the engineers design report * The above case which was heavily relied upon in the decision was decided on 22 July 2020, a mere 5 days before our hearing, and as far as I am aware was not publicly available for review thus impeding my ability to reference and rebuke it * In light of the reliance on Inacio v Luckrose, no consideration given to concepts from Nham v Hayes and Fallon v Croese regarding sharing of certain components of the retaining wall * Previous costs were excluded notwithstanding an engineers report outlining the urgent nature of the works and thus necessity to incur the costs" 1. seeks the following orders: "* Order requiring the applicant to engage and pay an arborist or equivalent contractor skilled in tree removal and respondant to pay her contribution for this cost * Order sharing the cost of that part of the retaining wall that is responsible for the foundation or support of the fence, principally being the steel H beam posts (including concrete) from which the specially designed fence post will be welded in order to provide sufficient support to the fence * Order requiring the respondent to share costs incurred to date and future costs directly related to the urgent works at hand (engineer report, surveyor, retaining wail contractors, fence contractor, arborist and any contractor related to the removal and reinstate of the fence)" 1. seeks leave to appeal because the Tribunal decision was not fair and equitable, and because significant new evidence is now available that was not reasonably available at the time of the hearing. 1. On 24 September 2020, the respondent filed her reply to appeal in which she supports the original orders made by the Tribunal, opposes leave to appeal being granted, and does not accept that the appeal was lodged within time because she received the notice of appeal 29 days after the Tribunal decision. The hearing of the appeal 1. The appellant and the respondent relied on their written submissions and made oral submissions. 2. The appellant conceded that, if he is not successful in establishing that the retaining wall is part of the dividing fence, he is not entitled to a contribution towards the engineering costs from the respondent. The issues 1. A threshold issue is whether the appellant lodged the notice of appeal within time. 2. Having regard to the principles in Cominos, we have discerned from the orders challenged on appeal and the grounds of appeal in the notice of appeal, the material provided the appellant, and the Tribunal decision the following six grounds of appeal: 1. ground 1: the Tribunal erred in failing to afford the appellant procedural fairness; 2. ground 2: the Tribunal erred in applying a wrong principle of law; 3. ground 3: the Tribunal erred in identifying the wrong issue or asking the wrong question; 4. ground 4: the Tribunal erred in finding that the proposed replacement retaining wall is not part of the dividing fence; 5. ground 5: the Tribunal erred in not determining whether the removal of the two trees on the common boundary was part of the fencing work, and if so in not determining that this part of the fencing work should be carried out by an arborist; 6. ground 6: the Tribunal erred in not requiring the respondent to make any contribution to the engineering costs. 1. If any of these grounds are made out, there will be an issue of whether the appeal should be dealt with by way of a new hearing, and if so any fresh evidence permitted. Whether the appellant lodged the notice of appeal within time 1. The appellant lodged the notice of appeal within the 28 days permitted under r 25(4)(c) of the NCAT Rules. The fact that the respondent did not receive the notice of appeal within this period is not a relevant consideration in determining whether the appeal was commenced within time. 2. Accordingly, we find that the appellant lodged the notice of appeal within time. Ground 1: the Tribunal erred in failing to afford the appellant procedural fairness 1. The appellant contends that he was impeded from addressing Inacio because it was not publicly available at the time of the hearing. We are satisfied that a ground 1 raises a question of law as to whether the Tribunal erred in failing to afford the appellant procedural fairness. 2. The appellant's contention is based upon a false premise. The decision in Inacio was published on the NSW Caselaw website on 22 July 2020 and was publicly available from that date. The fact that the appellant was not aware of Inacio and the Tribunal relied upon this decision does not mean that the Tribunal failed to afford the appellant procedural fairness. Accordingly, we reject ground 1. Ground 2: the Tribunal erred in applying a wrong principle of law 1. The appellant appears to contend that the Tribunal erred by not considering Fallon and Nham and that, relying on Inacio, it did not apply the correct principles in considering whether the proposed replacement retaining wall is part of the dividing fence. We are satisfied that ground 2 raises a question of law as to whether the Tribunal erred in applying a wrong principle of law. 2. The appellant's apparent contention is based upon a false premise. The Tribunal at [54] considered Fallon and at [55]-[56] considered Nham. We are not satisfied that either Fallon or Nham states any different principle to that in Inacio on the issue of whether a retaining wall is part of a dividing fence, and in particular whether a retaining wall provides a foundation or support necessary for the support and maintenance of the fence with para (c) of the definition of fence in s 3 of the DF Act. 3. The Tribunal was correct in stating at [63(a)] that each case is considered on its own facts, and it follows was correct in not finding that the decision in either Fallon or Nham was determinative of the question of whether the proposed replacement retaining wall is part of the dividing fence. Accordingly, we reject ground 2. Ground 3: the Tribunal erred in identifying the wrong issue or asking the wrong question 1. We have identified as a ground of appeal the issue of whether the Tribunal erred in considering whether the retaining wall as built rather than the proposed retaining wall to be constructed provided a foundation or support necessary for the support and maintenance of the fence with para (c) of the definition of fence in s 3 of the DF Act. We are satisfied that ground 3 raises a question of law as to whether the Tribunal erred in identifying the wrong issue or asking the wrong question. 2. Section 14(1)(b) of the DF Act relevantly confers power on the Tribunal to make an order determining "the fencing work to be carried out". Paragraph (a) of the definition of fencing work in s 3 of the DF Act relevantly includes "the … replacement … of the whole or part of a dividing fence". 3. We are not satisfied that the Tribunal identified the wrong issue or asked the wrong question by not considering whether the proposed retaining wall to be constructed provided a foundation or support necessary for the support and maintenance of the fence with para (c) of the definition of fence in s 3 of the DF Act. As set out above the Tribunal at [90] expressly considered whether the work associated with replacing the retaining wall would fall within the scope of a "fence" within s 3 of the DF Act. Accordingly, we reject ground 3. Ground 4: the Tribunal erred in finding that the proposed replacement retaining wall is not part of the dividing fence 1. Notwithstanding the terms of the notice of appeal, the appellant contends that: 1. the Tribunal decision was not fair and equitable because the Tribunal failed to afford him procedural fairness and applied a wrong principle of law; 2. the Tribunal decision was against the weight of evidence because the 26 May 2020 D&M plan and detail diagram depicts that the proposed replacement retaining wall provides a foundation or support necessary for the support and maintenance of the dividing fence; 3. the following significant new evidence has arisen, being evidence that was not reasonably available at the time of the Tribunal proceedings because of the difficulty in obtaining detailed quotations: 1. a plan and a detail diagram each dated 28 August 2020 of D&M for a retaining wall between the two properties (the 28 August 2020 D&M plan and detail diagram); 2. photographs of the replacement retaining wall during construction and as completed with the dividing fence (the photographs). 1. We have already rejected grounds 1 and 2 which deals with the appellant's contentions that the Tribunal failed to afford him procedural fairness and applied a wrong principle of law. Accordingly, we are not satisfied that the Tribunal decision was not fair and equitable within cl 12(1)(a) of Sch 4 of the NCAT Act. 2. We are not satisfied that the Tribunal decision was against the weight of evidence within cl 12(1)(b) of Sch 4 of the NCAT Act because the 26 May 2020 D&M plan and detail diagram was the only relevant evidence. The plan depicts the position of the retaining on the boundary between Nos 48 and 50 and contains the captions "Existing timber retaining wall on boundary has failed and is to be removed" and "provide new conc sleeper retaining wall to sheet 2 detail". The detail diagram depicts a retaining wall which above the ground level on the appellant's property is constructed with concrete sleepers between galvanised H posts with the outline of a dividing fence extending upwards from part of the top horizontal surface of the retaining wall and part of the backfilled area adjacent to the retaining wall in the respondent's property with the caption "Fence by others if applicable maximum 1800 high". There is no indication in the plan or the detail diagram that the retaining wall is intended to provide a foundation or support necessary for the support and maintenance of the dividing fence. In particular, there is no indication whether any fence is to be fixed to the retaining wall. On the contrary, the caption "Fence by others if applicable maximum 1800 high" indicates that D&M were not aware if a dividing fence would be constructed. 3. We are not satisfied that the 28 August 2020 D&M plan and detail diagram and the photographs constitute significant new evidence within cl 12(1)(c) of Sch 4 of the NCAT Act. The 28 August 2020 D&M plan and detail diagram is identical to the 26 May 2020 D&M plan and detail diagram with the exception that timber wales instead of concrete sleepers are to be used. The photographs of the replacement retaining wall during construction depict galvanised H posts which are depicted on the 26 May 2020 D&M plan and detail diagram. The photographs of the replacement retaining wall as completed with the dividing fence do not depict whether the colour bonded metal sheet dividing fence is fixed to the replacement retaining wall. 4. For these reasons we are not satisfied that the appellant may have suffered a substantial miscarriage of justice within cl 12(1) of Sch 4 of the NCAT Act. Accordingly, we reject ground 4. Ground 5: the Tribunal erred in not determining whether the removal of the two trees on the common boundary was part of the fencing work, and if so in not determining this part of the fencing work should be carried out by an arborist 1. We have identified as the first limb of this ground of appeal the issue of whether the Tribunal erred in not determining whether the removal of the two trees on the common boundary was part of the fencing work. This first limb is implicit in the second limb which is expressly raised by the appellant. We are satisfied that the first limb of ground 5 raises a question of law as to whether the Tribunal erred in constructively failing to exercise its jurisdiction by not making a finding on a material question of fact. We are satisfied that the second limb of ground 5, while requiring leave to appeal, does not arise unless the Tribunal erred in relation to the first limb. 2. As set out above, s 14(1)(b) of the DF Act relevantly confers power on the Tribunal to make an order determining "the fencing work to be carried out". Paragraph (b) of the definition of fencing work in s 3 of the DF Act relevantly includes "the … preparation of land (including the trimming, lopping or removal of vegetation) along or on either side of the common boundary of adjoining lands" for the purpose in the context of these proceedings of the replacement of the dividing fence. 3. An issue before the Tribunal was whether the removal of the two trees on the common boundary was part of the fencing work. We do not understand why the Tribunal at [24(3)] referred to the trimming of the nearby tree when the SSL quotation refers to the removal of two trees. There was no evidence adduced by the appellant or the respondent that any work in trimming or lopping as opposed to removing vegetation was required for the purpose of the fencing work. We are satisfied that the Tribunal at [103] did not make a finding on the necessity of the removal of the two trees on the common boundary as part of the fencing work as it referred to "any work … incurred in …removing vegetation for that purpose". This constructive failure to exercise its jurisdiction constituted an error of law. Accordingly, we find that the first limb of ground 5 is made out. 4. As we have held below that the removal of the two trees on the common boundary was part of the works necessary in preparing for the construction of the retaining wall and was not part of the fencing work, the issue of the error in the second limb of ground 5 does not arise for determination. Ground 6: the Tribunal erred in not requiring the respondent to make any contribution to the engineering costs 1. As we have rejected ground 4, in view of the concession of the appellant ground 6 does not arise for determination. Whether the appeal should be dealt with by way of a new hearing, and if so any fresh evidence permitted 1. We have decided to deal with the appeal on the issue raised by the first limb of ground 5 by way of a new hearing. 2. On the hearing of the appeal: 1. the appellant relied on undated quotation no 217 of M&J Fencing Pty Ltd for the supply and installation of a new retaining wall and dividing fence which included an item of $600.00 for "tree removal" (the M&J Fencing quotation); 2. the respondent relied on a series of SMS messages between herself and the appellant between 14 and 24 September 2020, which relevantly included the sending of the M&J Fencing quotation by the appellant to the respondent on 16 September 2020, the advice of the appellant to the respondent on 23 September 2020 "the tree on the boundary is being removed tomorrow at $600 per the quote", and the advice of the appellant to the respondent on 23 September 2020 "tree has been removed and they've cleaned up" (the SMS messages). 1. We have decided not to permit the M&J Fencing quotation and the SMS messages to be received as fresh evidence in the new hearing. The SSL quotation clearly indicates that the removal of the two trees on the common boundary is part of the works necessary in preparing for the construction of the retaining wall as opposed to the dividing fence. The BCS quotation is silent on this question. The M&J Fencing quotation does not specify what is the purpose of "tree removal", and adds nothing to the resolution of the question of the purpose of the removal of the two trees in question. 2. Having regard to the SSL quotation, we are satisfied that the removal of the two trees on the common boundary was part of the works necessary in preparing for the construction of the retaining wall and was not part of the fencing work. Accordingly, it is appropriate that order (4)(c) of the Tribunal decision should be varied by omitting "and/or preparation" and "(including the trimming, lopping or removal of vegetation)". Orders 1. We make the following orders: 1. Leave to appeal is refused; 2. The appeal is allowed in part; 3. Order 4(c) made in proceedings COM 20/25440 is varied by omitting "and/or preparation" and "(including the trimming, lopping or removal of vegetation)"; 4. the appeal is otherwise 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 Amendments 22 December 2020 - Property addresses de-identified. 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: 22 December 2020