Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lau v Mehr [2021] NSWCATAP 26 Hearing dates: 16 November 2020 Date of orders: 9 February 2021 Decision date: 09 February 2021 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President D Robertson, Senior Member Decision: (1) The appeal is upheld and the orders which follow are made. (2) Order 1 made in the First Decision (being the decision published on 11 August 2020) is set aside. (3) Orders 2 to 9 (inclusive) made in the First Decision are affirmed except as modified below. (4) Order 2 is amended so that the works are to be initiated within five weeks of the making of these orders. (5) Orders 1 and 2 made in the Second Decision (being the decision published on 9 September 2020 are affirmed. (6) The order made by the Appeal Panel on 9 September 2020 staying the operation of order 2 made in the First Decision is lifted. Catchwords: PRACTICE AND PROCEDURE – Remittal of proceedings from an Appeal Panel of the Tribunal – Finality principle – Tribunal exceeded jurisdiction by making orders inconsistent with terms of remittal. Legislation Cited: Dividing Fences Act 1991 (NSW) Civil & Administrative Tribunal Act 2013 Cases Cited: Mohammad Oboodi Mehr and Samiheh Aboodi Mehr v John Lau and Carina Tam [2019] NSWCATAP 177 Oboodi v Hornsby Shire Council [2018] NSWLEC 1512 Oboodi v Hornsby Shire Council [2019] NSWLEC 1287 D'orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 Texts Cited: None cited Category: Principal judgment Parties: John Lau (First Appellant) Carina Tam (Second Appellant) Mohammad Oboodi Mehr (First Respondent) Samiheh Oboodi Mehr (Second Respondent) Representation: Solicitors: First Appellant (Self-Represented) Second Appellant (Self-Represented) First Respondent (Self-Represented) Second Respondent (Self-Represented) File Number(s): AP 20/38317 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil & Administrative Tribunal Jurisdiction: Consumer & Commercial Division Citation: Not applicable Date of Decision: 11 August 2020 Before: Senior Member M Tibbey File Number(s): COM 18/52404; COM 19/32762 REASONS FOR DECISION Background 1. This appeal arises from a decision made on 11 August 2020 (the First Decision) and a further decision made on 9 September 2020 (the Second Decision) in the Consumer & Commercial Division of the Tribunal. 2. Those decisions involved the exercise by the Tribunal of its powers under the Dividing Fences Act, 1991 (NSW). The Appellants (who we will refer to as Mr Lau and Ms Tam) were the Respondents in the Consumer & Commercial Division and the Respondents to this appeal (Mr & Mrs Mehr) were the Applicants. 3. The parties were involved in earlier proceedings in the Consumer & Commercial Division of the Tribunal and those proceedings resulted in a decision of the Tribunal published on 26 March 2019. Orders 1 and 2 made on 26 March 2019 made provision for the nomination of a surveyor to undertake a survey of the boundary between the parties' respective properties. Order 3 provided: "3. A sufficient fence on the boundary between Nos 88 and 94 for the purposes of the Dividing Fences Act 1991 is a planting of native or other species of low flammability trees to form a hedge to grow to a height of 1.8 metres to the southern extent of the building envelopes on Lots 2 and 3, with a 1 metre gap every 12 metres if the extent of the building envelopes of Lots 2 and 3 exceeds 12 metres." 1. There was an appeal from that decision and the decision of the Appeal Panel was published on 16 July 2019 (see Mohammad Oboodi Mehr and Samiheh Aboodi Mehr v John Lau and Carina Tam [2019] NSWCATAP 177). Mr & Mrs Mehr were successful in their appeal. A summary of the orders made by the Appeal Panel is as follows: 1. Order 3 made by the Tribunal on 26 March 2019 was partly set aside. However, the Appeal Panel affirmed Order 3 insofar as it referred to the type of fence found to be sufficient. The Appeal Panel found: 2. A sufficient fence on the boundary between numbers 88 and 94 for the purposes of the Dividing Fences Act, 1991 is a planting of native or other species of low flammability trees to form a hedge to grow to a height of 1.8 metres. 3. The proceedings were "otherwise remitted" to the same member to determine: 1. the precise boundary or line on which the fencing work is to be carried out and the length of the boundary fence (order 4(a)); 2. which of the parties is to be responsible for implementing work contemplated by order 3 (order 4(b)); 3. the manner in which contributions for the fencing work are to be apportioned between the parties (order 4(c)); and 4. the time in which the fencing work is to be carried out (order 4(d)). 1. The Appeal Panel stated that Mr & Mrs Mehr had withdrawn the appeal against order 3 of the orders made on 26 March 2019 insofar as that order states what is a sufficient dividing fence. 2. It was the view of the Appeal Panel ([32] and [33]) that the Tribunal at first instance had not adequately addressed all of the matters raised by Mr & Mrs Mehr in their initiating application. The particular matters not dealt with concerned an order determining the boundary or line on which the fencing work is to be carried out, an order determining the manner in which the contributions for the fencing work are to be apportioned, an order determining which portion of the dividing fence is to be constructed or repaired by either owner and an order determining the time within which the fencing work was to be carried out. Accordingly, the Appeal Panel determined that the proceedings were to be remitted to the Consumer & Commercial Division for the purposes of determining the matters described in orders 4(a), (b), (c) and (d) which are recorded above. 1. The Proceedings on Remittal 1. Following the remittal, the proceedings were heard on 30 October 2019 and 9 April 2020, when the decision was reserved. In the First Decision the Tribunal made 10 orders which may be summarised as follows: 1. A sufficient dividing fence between 88 and 94 XXXX is to be constructed, made of chain wire or wire mesh fence 1.8 metres high with 1.8 metre high steel or other metal posts securely fixed at intervals of approximately 2 metres, with the entire fence to have a minimum length of 23 metres and a maximum length of 23.5 metres (depending on the topography). 2. That the works be initiated by the applicants (ie. Mr & Mrs Mehr) with the contractors chosen by the applicants within five weeks of making these orders. 3. That the fence be located on the boundary as determined by the survey of Warren Eldridge & Associates dated 25 July 2019 and in accordance with the diagram on page 27 of the submissions of the applicants filed on 21 August 2019. 4. That the works be completed within four months. 5. That the cost of building the dividing fence is to be shared equally between the applicants and the respondents. 6. The applicants are to pay the invoice or invoices of the contractors and then seek reimbursement from the respondents. 7. Reimbursement for an invoice issued by the contractors becomes payable as to 50% by the respondents after the expiry of 28 days from the date on which it is sent to the respondents by post or email. 8. The applicants are responsible for keeping the fence in good repair. 9. Within three days of the date of these orders each party is to provide the other with a postal address and an email address at which that party can be contacted and, if those details change, to immediately provide updated contact details to the other party for postal and email contact. 10. Both parties have leave to approach the Tribunal to relist the matter for any consequential or ancillary orders on providing at least seven days' notice. 1. Subsequently, and presumably because the parties took advantage of order 10 above, the Tribunal published the Second Decision on 9 September 2020. That decision contained two orders namely: 1. Three quotations for the proposed dividing fence are to be obtained by the applicants and presented to the respondents. 2. The fence is to be built to ground level. 1. Before we describe the basis of the appeal, we note that the First Decision appears to go beyond the terms of the remittal in that order 1 made on 11 August 2020 would appear to have had the effect of setting aside order 3 made by the Appeal Panel on 16 July 2019. We are of the view that the Tribunal at first instance was not able, given the terms of the remittal, to set aside or vary the order of the Appeal Panel. It is our view that the Tribunal at first instance did not have jurisdiction to make order 1 (ie. the order for a chain wire fence). We will come back to this matter later in these reasons. 2. The Decisions at First Instance 3. The First Decision may be summarised as follows: 1. At the hearing on 9 April 2020 Mr & Mrs Mehr submitted that a sufficient dividing fence would be a raised garden bed to facilitate planting hedges to a length of 23.5 metres [8]. This appears to be inconsistent with what is recorded in paragraph 10(2) below. Mr Lau and Ms Tam now argue that the decision of the Tribunal of 26 March 2019 should be maintained and that the length should be 14 metres [9]. 2. Mr & Mrs Mehr told the Tribunal that they now opposed a hedge fence notwithstanding that they had told the Appeal Panel at the hearing of the earlier appeal on 2 July 2019 that they no longer opposed a hedged fence [12]. Mr & Mrs Mehr also submitted at the hearing on 9 April 2020 that a hedge fence would not accord with condition 38 of a development consent issued by the local council [12]. 3. The First Decision referred to evidence given at a hearing before the Land & Environment Court. The Tribunal found that there was evidence that the Commissioner constituting the Land & Environment Court said that there was "no problem with the NCAT orders for building a vegetative barrier between 88 and 94" [17]. 4. The Tribunal then found that it was a condition of the development consent expressed in condition 48 that all fencing should be non-combustible. The Tribunal found that a limited planter box with plantings will be combustible and that "low flammability trees" are not non-combustible [18]. 5. The Tribunal referred to other evidence contained in the applicant's submissions from third-party experts to the effect that a vegetative barrier was not non-combustible. 6. The Tribunal referred to s 4 of the Dividing Fences Act which requires the Tribunal to consider certain "circumstances" when determining the standard for a sufficient dividing fence. These circumstances include any "policy or code relating to dividing fences adopted by the council in which the adjoining lands are situated". 7. The Tribunal found that the development consent was settled after the appeal to a Commissioner of the Land & Environment Court [23]. 8. The Tribunal found that it was appropriate to take into account the relevant condition (now numbered condition 38 and previously numbered condition 48) requiring a fence to be of non-combustible material [24]. The Tribunal appears to have made an inconsequential error in that the previous condition was 38 and the later condition 48. 9. At paragraph 28, the Tribunal recorded that Mr & Mrs Mehr submitted that a sufficient dividing fence would constitute a raised garden bed to facilitate planting hedges along the boundary. This appears to be inconsistent with the proposition referred to earlier that Mr & Mrs Mehr had revived their opposition to a hedged fence [12]. 10. The Tribunal recorded that Mr Lau and Ms Tam preferred no fence or a chain wire mesh fence (being a less preferred option) [31]. This appears to be inconsistent with the stance they now take as appellants before us. 11. At [37], the Tribunal found that the judgment of the Land & Environment Court of 5 August 2019 required a non-combustible barrier and the Tribunal went on to hold that the appropriate fence should be a wire mesh fence with steel posts because it will not be obtrusive, will be reasonably durable and is non-combustible. 12. The Tribunal considered the length of the fence and the evidence concerning the appropriate length. The Tribunal found that the fence should be 23.5 metres in length. 13. The balance of the First Decision dealt with the contribution to the cost of the fence to be made by the parties and then set out the orders. Those 10 orders have been set out earlier in this decision. 1. It is not necessary to summarise the Second Decision. 1. The Appeal Panel Decision of 16 July 2019 1. It is clear from the Appeal Panel decision that the Appeal Panel was made aware of proceedings in the Land & Environment Court (the LEC) and of "proposed condition of development" (Condition 48) that required that all new fencing be non-combustible [15]. 2. At [26], the Appeal Panel stated that it would be unfair to the respondents to that appeal (Mr Lau and Ms Tam) to delay resolution of the dividing fence dispute by an adjournment of uncertain duration whilst Mr & Mrs Mehr attempted to resolve the problem of the conflict between order 3 (being the order stating that a sufficient dividing fence is a fence of low flammability trees to form a hedge) and proposed Condition 48 [27]. The Appeal Panel found that there was no evidence that a proposed amended landscape plan to be considered by the LEC would be inconsistent with the type of fence the Tribunal had approved (a hedge fence). 3. It is necessary to clarify that the LEC published a judgment on 4 June 2019. That is the judgment to which the Appeal Panel referred. The LEC noted that the Respondent was required to obtain Council approval to a site-specific tree protection plan and to an amended landscape plan ([35] of the LEC judgment). The LEC made directions for the parties to exchange material on these matters and heard submissions on 16 July 2019. On 5 August 2019, the LEC published an "Addendum". It noted that the Respondent had obtained Council approval to a further amended landscape plan and a tree protection plan. The LEC granted development consent subject to the conditions of consent in Annexure A (which included Special Condition 48). 4. Notice of Appeal 5. Mr Lau and Ms Tam lodged a Notice of Appeal on 7 September 2020. The Notice can be summarised as follows: 1. Order 1 was identified as the order that they wanted the Appeal Panel to change (ie. the order for a chain wire fence). 2. The form of the Notice of Appeal requires the Appellants to identify grounds of appeal. Here Mr Lau and Ms Tam stated that: 1. 1 the maximum length of the fence should be 20.5 metres and that they should have the right to provide a quote with the lower cost of two quotes to be used. 2. 2 Because the area is in a heritage and biodiversity area a "fauna, wildlife-friendly fence should be adopted". 3. 3 The "type of fence is not in contention and must stand because the only issues for the Tribunal to determine on remittal were those remitted by the Appeal Panel". 1. The Notice of Appeal stated that the orders that the Appeal Panel should make, if the appeal is successful, are: 1. The original order of the Appeal Panel to be retained. 2. The maximum length of the fence is to be 20.5 metres. 3. That the Respondents should provide a quote for costs comparison purposes and an order made that the lower quote is to be used. 4. That there be an order that the fence comply with "wildlife friendly requirements with minimum 50 cm gap between ground level and the first rail or strand for the local native wildlife corridor, with open space on the top". 1. In addition, the Notice of Appeal stated that Mr Lau and Ms Tam sought leave to appeal upon the basis that the decision was not fair and equitable, was against the weight of evidence and that significant new evidence is now available. These grounds are set out in further detail below. 2. The submission of Mr Lau and Ms Tam was that the decision was not fair and equitable because the Tribunal went beyond the remittal of the Appeal Panel and instead ordered a chain wire fence. 3. In support of the submission that the decision was against the weight of the evidence Mr Lau and Ms Tam made submissions to the effect that Mr Mehr had misled the Tribunal and the LEC. 4. The submissions go on to say that there was evidence that the Land & Environment Court was "happy" for the planting of a hedge and that the Member's finding that that Court had imposed a requirement for a non-combustible fence was a finding against the weight of evidence. 5. Reply to Appeal 6. Mr & Mrs Mehr filed a Reply to Appeal which may be summarised as follows: 1. They support the orders made in the First Decision and in the Second Decision. 2. The submission of Mr Lau and Ms Tam to plant "tube hedges" is contrary to the State Environmental Planning Policy, the orders of the LEC dated 5 August 2019 and contrary to the "requirements of RFS" and the evidence of expert witnesses. 3. Appellants' Submissions 1. The thrust of the submissions of Mr Lau and Ms Tam was to argue in favour of the order made on 26 March 2019 that a sufficient fence is a planting of low flammability trees to form a hedge. In addition, the submissions may be summarised as follows: 1. The decision of the LEC in Oboodi v Hornsby Shire Council [2018] NSWLEC 1512 (the First LEC Judgment) approved the conditions for the boundary fence: see condition 38. That condition provides: 1. "The exact location, design and costing for the erection of boundary fencing are to be the subject of negotiation and agreement in accordance with the relevant requirements of the Dividing Fences Act 1991." 1. In a later decision of the LEC in Oboodi v Hornsby Shire Council [2019] NSWLEC 1287 (the Second LEC Judgment) published on 5 August 2019 condition 48 was approved. That condition provided that all new fencing shall be non-combustible. That judgment concerned the design and construction of the proposed dwelling to the north of the subdivided property. 2. The current orders of the LEC contained in the Second LEC Judgment impose conditions protecting the existing vegetative barrier between properties at numbers 88 and 94. Those conditions are 4(b), 20, 30, 31, 42(b), 24(b) and 43. 3. Condition 38 still stands and condition 48 only applies to the construction of a new dwelling. Condition 48 does not include boundary fencing. 4. The relevant boundary is under a Heritage Conservation Area and fencing must be wildlife friendly. 5. Submissions were made concerning the appropriate length of the fence. At the hearing of the appeal, Mr Lau and Ms Tam said that if the fence is to be a vegetative fence then they accept that the approximate length of the fence should be 23.5 metres. 1. The Respondents' Submissions 2. The submissions of Mr & Mrs Mehr may be summarised as follows: 1. The Second LEC Judgment issued an order to the effect that all new fencing shall be non-combustible. Dividing fences are required to comply with the State Environmental Planning Policy, the order of the LEC contained in the Second LEC Judgment, the requirements of the RFS and the evidence of expert witnesses. 2. It is not possible to plant vegetation along the boundary of the two properties because it is a rocky area. 3. The decision of the LEC supports the conclusion that the only permissible fence is a non-combustible fence. 4. Attached to the submissions was material from the RFS and the views of various consultancy services expressing opinions that the appropriate dividing fence in this case should be made of non-combustible material. 1. Consideration 2. Appeals from decisions made in the Consumer & Commercial Division of the Tribunal are regulated by s 80 of the Civil & Administrative Tribunal Act 2013 (NCAT Act) and by the provisions of cl 12 sch 4 of the NCAT Act. In essence this means that an appeal lies as of right concerning any question of law and with leave on the grounds contained in clause 12. 3. In our view two matters in this appeal are quite clear: 1. The jurisdiction of the Tribunal at first instance was limited to the terms of the remitter contained in the order of the Appeal Panel published 16 July 2019. The Appeal Panel declared that a sufficient fence between the two relevant properties for the purposes of the Dividing Fences Act is a planting of native or other species of low flammability trees to form a hedge to grow to a height of 1.8 metres. That was in substance an affirmation of the order made by the Tribunal at first instance on 23 March 2019. In addition, the Appeal Panel "otherwise remitted" the proceedings to the Tribunal at first instance to determine the specific matters set out in order 4 of the Appeal Panel's decision. In our view the Tribunal at first instance had no jurisdiction to make an order for a fence in terms inconsistent with the order made by the Appeal Panel. 2. The reason that the Tribunal made the order for a chain wire fence was because it took the view that the LEC had made the "decision" (see para 17 of the First Decision) to impose condition 48 (which required all new fencing to be non-combustible) and that therefore it was necessary to reconsider what should constitute a sufficient fence for the purposes of the Dividing Fences Act. 1. As stated above we are of the view that the Tribunal had no jurisdiction to make a determination inconsistent with the order of the Appeal Panel or a decision beyond the scope of the terms of the remittal. In acting beyond the scope of the remittal, the Tribunal, at first instance has: 1. Created confusion in that the parties would appear to be obliged to comply with both order 3 made by the Appeal Panel (which has not been set aside) and order 1 made in the First Decision (which stated that a sufficient dividing fence is to be made of chain wire or wire mesh fence). 2. Permitted the dispute to continue between the parties rather than have due regard to the finality principle, which would provide that generally speaking, proceedings should proceed to determination, be decided and finalised (subject to appeal rights). 3. In D'orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 the High Court said the following at paragraphs 34 and 35: "34 A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding. 35 The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called "fresh evidence rule") are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe (1986) 162 CLR 1 at [7]: "[I]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial". 1. The Tribunal at first instance appears to have taken the view that after the publication of Addendum to the Second LEC Judgment, the circumstances between the parties were different to those applying when the Appeal Panel made its decision, and that it would not be appropriate to make an order inconsistent with condition 48. Such a view is not, in our opinion, justifiable for the reasons which we set out in the following paragraphs. However, before doing so we should state that in our view condition 48 did not warrant the status the Tribunal appears to have given to it. Our reasons are set out in the following paragraphs. 2. The First LEC Judgment was an appeal against a deemed refusal of a modification application to modify the Development Consent for a subdivision of number 88 XXX Road. The judgment was published on 2 October 2018 and the Court found it appropriate to grant consent to the amended proposal in Exhibit A which contained the conditions of consent. Condition 38 stated that the "location, design and costing for the erection of boundary fencing are to be the subject of negotiation and agreement in accordance with the relevant requirements of the Dividing Fences Act". Condition 38 also stated that alternative fencing may be erected subject to written consent of the adjoining property owner. The Second LEC Judgment concerned a development consent sought by Mr Mehr for the erection of a two storey dwelling. Over the objections of the Council and neighbours the Court gave consent. At paragraph 42, the Court described the matters for its determination. These concerned the scale and site coverage of the proposed dwellings, whether there is adequate solar access, whether there is an acceptable visual impact to a third party neighbour, whether there would be a better access outcome and finally the adequacy of replacement plantings. At paragraph 84, the Court recorded that the conditions of development consent "have been largely agreed between the parties". The Court referred to Mr Mehr submitting an amended landscape plan (paragraph 86) and the Court made directions (paragraph 91) for the exchange of submissions on the amended landscape plan. At paragraph 92, the Court recorded that the amended landscape plan and a tree protection plan, were acceptable to the Council. Accordingly, the Court gave development consent for the construction of a two storey dwelling subject to the conditions of consent in Annexure A. That annexure included condition 48. Condition 48 provides: "The intent of measures is that buildings are designed and constructed to withstand the potential impacts of bushfire attack. To achieve this, the following conditions apply: (a) All new fencing shall be non-combustible." 1. The balance of condition 48 is not relevant to this appeal. 2. We are of the view that it is not clear that condition 48 rendered unlawful the Tribunal orders already in place concerning a fence of native or other species of low flammability trees for the following reasons: 1. First, the order for a fence of low flammability trees was first made on 26 March 2019 and affirmed by the Appeal Panel on 16 July 2019 before the date of publication of the LEC judgment on 5 August 2019. The dispute between the parties concerning the nature of the boundary fence had been resolved before 5 August 2019. The judgment of the LEC cannot bind Mr Lau and Ms Tam as they were not parties to the LEC proceedings. 2. to the extent that there is an inconsistency between the orders of the Tribunal and condition 48 the position may be that Mr and Mrs Mehr may be forced to seek modification to the conditions of development (specifically modification to condition 48), or at worst, from their perspective not proceed with the proposed development. 3. Thirdly, it is our view that it is not clear that special condition 48 will inexorably impose a prohibition on the construction of a fence of the kind affirmed by the Appeal Panel. Mr Lau and Ms Tam point out in their submissions that the conditions of development consent contain provisions which appear to be designed to preserve vegetation. Special condition 4(b) requires approval of Council before trees can be removed other than those described in special condition 4(a). Special conditions 8 and 18 refer to the need to monitor tree protection. Special conditions 30 and 31 require vegetation not to be altered during construction and to be protected. Special condition 42 require steps to be taken to ensure "regeneration of bushland". 4. Fourthly, the first LEC judgment published on 2 October 2018 (which predated the Tribunal decisions) gave approval to a proposed subdivision on certain conditions. One of those, namely condition 38, did not impose any prohibition on boundary fencing being constituted by trees or other vegetation. 1. In our view, the LEC judgment does not contain any determination or finding that the erection of a fence of the kind ordered by the Appeal Panel (prior to that judgment) would be unlawful or inconsistent with a matter required to be considered by the Tribunal under s 4 of the Dividing Fences Act namely "any policy or code relating to dividing fences adopted by the Council of the local government area in which the adjoining lands are situated" (s 4(e)) or with "any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated on "s 4(f). 2. Accordingly, we are of the view that the Tribunal has made an error of law in determining that it should make order 1. This is because it had no jurisdiction to do so and also because its reasoning appears to have been based upon the mistaken premise that it was only lawful for a non-combustible fence to be erected. 3. It is therefore necessary to set aside order 1 contained in the First Decision. 4. As to the other orders in the First Decision and the orders made in the Second Decision, we see no error of law, nor a ground available to Mr Lau and Ms Tam warranting the grant of leave under cl 12 sch 4. 5. Accordingly, we make the following orders: 1. The appeal is upheld and the orders which follow are made. 2. Order 1 made in the First Decision (being the decision published on 11 August 2020) is set aside. 3. Orders 2 to 9 (inclusive) made in the First Decision are affirmed except as modified below. 4. Order 2 is amended so that the works are to be initiated within five weeks of the making of these orders. 5. Orders 1 and 2 made in the Second Decision (being the decision published on 9 September 2020 are affirmed. 6. The order made by the Appeal Panel on 9 September 2020 staying the operation of order 2 made in the First Decision is lifted. 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 February 2021