Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kerry Moskos v John Rohan Joseph [2022] NSWCATAP 276 Hearing dates: 17 May 2022 Date of orders: 23 August 2022 Decision date: 23 August 2022 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President J Currie, Senior Member Decision: The appeal is dismissed. Catchwords: APPEAL-dividing fence- effect of orders on access to property-whether all circumstances considered-whether decision so unreasonable no reasonable decision would have made it. Legislation Cited: Dividing Fences Act, 1991 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Jiang v Cousins [2019] NSWCATAP118 Texts Cited: None cited Category: Principal judgment Parties: Kerry Moskos (Appellant) John Rohan Joseph (Respondent) Representation: Counsel: V Kerr SC (Appellant) Solicitor: Burridge & Legg (Appellant) File Number(s): 2022/00077068 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil & Administrative Tribunal Jurisdiction: Consumer & Commercial Division Citation: N/A Date of Decision: 04 March 2022 Before: J Alder, General Member File Number(s): COM 21/36355 REASONS FOR DECISION 1. This appeal arises out of a dispute between neighbours concerning a dividing fence. 2. The Respondent to this appeal had commenced an application in the Tribunal for orders for the construction of a new dividing fence between the neighbours' properties. The application was successful, and the Tribunal ordered that the existing dividing metal fence be demolished and a new Colorbond sheet metal fence be constructed. The Tribunal also ordered that the parties share the cost between them with the result that an order was made that the Appellant's contribution payable to the Respondent would be $2,420. The Tribunal was exercising its jurisdiction under the Dividing Fences Act, 1991 (NSW) (the DF Act). 3. The Appellant lodged an appeal on 17 March 2022 seeking to have the Tribunal's orders set aside. Meanwhile, the Respondent had acted in accordance with the Tribunal's orders and arranged for the new fence to be constructed. 4. The Decision under appeal (which we will refer to as the Decision) describes the basic facts in [1] and [2]. Essentially the position is that on the other side of the Respondent's northern boundary is the property of the Appellant as to a portion of the boundary and as to the remaining portion there is another property owner (Mr Loe) who is not a party to this appeal and was not a party at first instance. The Appellant and Mr Loe have an easement through a shared sandstone passageway along the common boundary with the Respondent's property. That passageway gives the Appellant and Mr Loe pedestrian access to Koala Road at the eastern end and to a public reserve at the western end. The easement pathway is approximately 1 metre wide. The previous fence encroached on to the Respondent's property by 240 mm and that without the encroachment the pathway would be approximately 760 mm wide. 5. The facts and findings relevant to this appeal recorded in the Decision, are summarised in the following paragraphs. Summary of the Decision 1. From [26] to [31] the Tribunal described the relevant features of the properties. In particular, the Tribunal described the topography which consisted of "four discrete areas, made up of street frontage, stairs, front pathway and a rock wall" [27]. It was explained to us during the hearing of the appeal that the Koala Road end of the boundary is the high point and that walking along the pedestrian pathway in a westerly direction involves going down sets of stairs. 2. At [34] the Tribunal found that the then existing fence was a dividing fence and at [66] the Tribunal found that the existing fence was not a sufficient dividing fence for the purposes of the DF Act. 3. At [51] the Tribunal recorded that the Appellant (who had opposed the proposed fence) submitted that the proposed fence would restrict access to his property "leaving a gap of only 450 mm between his house and the fence on the survey line". His submission was that emergency access by fire and rescue services and medical services would be prevented. The Respondent ( i.e. the Applicant at first instance) and other neighbours submitted that the Appellant's access from the public reserve at the rear of both properties to the front in his house was his usual method of access and that the Appellant seldom used the Koala Road entrance [52]. The Appellant submitted that access by the public reserve is restricted by boom gates and a council key [53]. 4. The Appellant submitted that the pathway and stairs and retaining wall could not structurally sustain the proposed fence and associated core drilling [57]. The Appellant submitted that a solid foundation could be provided for the proposed Colorbond fence, and the Tribunal recorded that the Respondent had obtained an engineer's report from MPN Group dated 12 September 2021 attesting to the structural integrity of the existing sandstone footpath[58]. 5. The Decision also records issues concerning the New South Wales State Environmental Planning Policy (Exempt and Complying Development Codes) and the Sutherland shire Council Development Control Plan, Residential Fencing as well as issues concerning the effect of the Council's building line on the Respondent's proposal. 6. From [66] the Tribunal set out the key findings. The Tribunal found that the existing fence was not a sufficient dividing fence and that a Colorbond fence of 1.8 metres in height is appropriate in the circumstances. At [68] the Tribunal found that the fence will not "impede the [Appellant's] access as the photograph of the [Appellant's] wife walking along the path illustrates ample access space, even with the fence moving to the boundary, which I consider to be the appropriate position for a dividing fence. I am also satisfied that Koala Road is not the only point of access for the Respondent". 7. At [69] the Tribunal stated that it was satisfied based on the "[Respondent's] engineering report that a Colorbond fence is appropriate and will not cause structural damage to the pathway or surrounds". 8. At [70] the Tribunal found that the Appellant should jointly contribute to the cost of the new fence. The Notice of Appeal 1. The grounds of appeal are summarised in the following paragraphs: 1. Ground 1: the Tribunal erred in law at [68] by finding that a Colorbond fence will not impede the Appellant's access because there was no evidence to support that finding of fact. 2. Ground 2: alternatively, the Tribunal erred in fact by finding that a Colorbond fence will not impede the Appellant's access to Koala Road because the evidence overwhelmingly demonstrated the contrary. 3. Ground 3: the Tribunal erred in law by failing to provide reasons for its finding that Koala Road is not the only point of access for the Appellant. 4. Ground 4: the Tribunal erred in law by finding that Koala Road is not the only point of access for the Appellant because there was no evidence to support that finding of fact. 5. Ground 5: the Tribunal erred in fact by finding that Koala Road is not the only point of access for the Appellant because the evidence overwhelmingly demonstrated the contrary, and in particular demonstrated that: 1. Koala Road is the only point for vehicular access to the Appellant's garages located on Koala Road; 2. Koala Road is the only point of vehicular and pedestrian access to the Appellant's property when the boom gate at the entrance of the public reserve is locked by Council at night. 1. Ground 6: the Tribunal erred in law by failing to consider whether the location of the dividing fence that it ordered complied with: 1. clause 3.7(2) of chapter 36 of Sutherland Shire Council's Development Control Plan, Road Vehicles Access, Parking and Bicycles requiring that paths and steps should be a minimum 1 metre wide within development sites; and 2. clause 2.2(6) of chapter 4 (dual occupancy – E3 Environmental Management Zone) of Sutherland Shire Council's Development Control Plan, Dual occupancies requiring that a side setback be not less than 900 mm in order to ensure unimpeded emergency access as required by subsections 4(e) and (f) of the DF Act. 1. Ground 7: the Tribunal erred in law by making a decision as to the location of the dividing fence that it ordered that was so unreasonable that no reasonable decision-maker would make it. 2. Ground 8: the Tribunal erred in law by having regard to the Respondent's engineering report to find that a Colorbond fence is appropriate and will not cause structural damage to the pathway or surrounds where the report purported to be a report by MPN Group which was false because MPN Group did not provide the report, and where the report was not provided for the purpose of the proceedings but rather was a report provided to the fencing contractor, and where the report did not comply with the Tribunal's direction on 15 September 2021 that it comply with the requirements in NCAT Procedural Direction 3 – expert witnesses. In that respect, it did not contain an acknowledgement of the expert's code of conduct, did not contain the expert's name, address and qualifications and did not include the facts and assumptions of fact on which the opinions in the report were based, and did include the expert reasons. 3. Ground 9: the Tribunal erred in law by failing to find that the Respondent had failed to adduce evidence that demonstrated that the dividing fence he sought will not cause structural damage to the pathway or surrounds. 4. Ground 10: the Tribunal erred in law by failing to find that the Respondent failed to adduce evidence that demonstrated that the dividing fence he sought will not cause structural damage to the stone wall. 5. Ground 11: the Tribunal erred in law by determining that a new fence (of the kind described in the orders) will be a sufficient dividing fence within the meaning of s 4 of the DF Act. 6. Ground 12: the Tribunal erred in law by failing to use its power pursuant to s 14 of the DF Act to make an order for compensation to the Respondent by the Appellant for the occupation of the Respondent's land. 1. In addition, the Tribunal sought leave to appeal upon the basis that the decision was not fair and equitable because the proposed fence reduced the width of the path to 450 mm for approximately 2.5 m at a point on the path where there is a steep set of stairs adjacent to a balustrade. A handrail needs to be attached to the fence for a further 5 metres approximately to ensure safe use. Such a path is too narrow to provide the occupants of the Appellant's house with adequate pedestrian access. The finding of the Tribunal that, without the encroachment, the pathway would be 760 mm is erroneous because it did not take into account the existence of an easement to drain surface water (235 mm in width) and the reduction in width caused by moving the proposed fence to the exact boundary line. 2. The Appellant also contended that the decision was not fair and equitable because the path failed to comply with the Council codes referred to earlier or take into account that the access via the public reserve is limited by being locked at night. The Appellant contended that the current fence provides a width of approximately 900 mm at the stairs less 235 mm which is used for the open dish drain. The narrow width is adequate due in part to the open form of fence and handrail previously dividing the properties. 3. In addition, the Appellant contended that the Decision was not fair and equitable because there was no evidence that the common property boundary provided the foundation or support necessary for the support and maintenance of the proposed fence. The report from MPN should be disregarded for the reasons previously referred to. 4. The Notice of Appeal referred to significant new evidence which the Appellant sought to rely upon. This fresh evidence consisted of a statement from a director of MPN group. The Appellant also relied upon a letter from Sutherland Shire Council dated 30 March 2001 concerning restrictions on vehicular access over the public reserve. Thirdly, the Appellant relied upon a letter from Cooper & Richards Engineering dated April 1997 recording that it was a condition of the Council that the footway be 1 metre wide. Reply to Appeal 1. The Respondent has filed a Reply to Appeal. We will summarise the Reply when recording the Respondent's submissions in opposition to the appeal. The Appellant's Submissions 1. The Appellant's submissions acknowledge that the Appellant does not challenge certain findings made by the Tribunal, including that: 1. the previous fence was a dividing fence within the meaning of the DF Act; 2. the previous fence was not a sufficient dividing fence within the meaning of the DF Act; 3. a Colorbond fence of 1.8 metres high to run from the masonry pool wall for 28.5 metres is appropriate for the area and addresses the privacy of the parties; 4. the Respondent did not deliberately or negligently damage the previous fence. 1. The Appellant challenges the findings made by the Tribunal at [68] and [69] of the Decision. Paragraph 68 contains the finding that the Tribunal did not find that a Colorbond fence would impede the Appellant's access as the photograph of the Appellant's wife walking along the path the illustrates ample access space, even with the fence moving to the boundary, which the Tribunal considered to be the appropriate position for the dividing fence. The Tribunal also found that it was satisfied that Koala Road is not the only point of access for the Appellant. At [69] the Tribunal stated that it was satisfied, based on the Respondent's engineering report, that a Colorbond fence is appropriate and will not cause structural damage to the pathway or surrounds. 2. In respect of the grounds of appeal 1, 2 and 6, the Appellant submits that there are three errors of law and an error of fact in [68] to the effect that a Colorbond fence will not impede the Appellant's access to and from Koala Road. The Appellant contends that there was a failure to provide proper reasons. The only reason given concerned the photograph of the Appellant's wife. The Appellant's submission (including at first instance) was that installing a solid fence on the common boundary line would leave a gap of only 450 mm between the existing balustrade (which is erected on the northern edge of the top half of the stairs to protect pedestrians falling into the open drain) and a solid fence with no handrail. 3. The Appellant's contention was that the narrowing of the pathway would be "devastating". The Appellant's legal access to his home is from Koala Road where he has his garage and adjacent parking space. That is also where he has his mailbox and garbage bins. Narrowing of the pathway would affect emergency services including health and fire emergency services. The Decision failed to deal with the evidence or submissions concerning the fact that the proposed fence will leave a gap of only 450 mm in the stairs area. The photo relied upon by the Tribunal is not relevant because it was not taken in the stairs area. It was taken where the path is significantly wider. 4. The Tribunal failed to explain why it considered the boundary line to be the appropriate position for a dividing fence. If that was intended to be a principle of law, then it was an error. While it may be desirable that a fence be on the common boundary the Appeal Panel in Jiang v Cousins[2019] NSWCATAP118 at [69] stated that that may be impractical in some cases as is recognised by s 11(2)(a) of the DF Act . 5. The Tribunal failed to take into account relevant considerations. Under s 4 of the DF Act the Tribunal is required to consider all the circumstances of the case when determining the standard for a sufficient dividing fence, including any relevant environmental planning instrument. The Appellant had referred to planning instruments and the Tribunal was required by s 4(f) of the DF Act to consider those instruments. It failed to do so. Had it done so, it should have considered the fact that the width in the stairs area of 450 mm was less than the minimum width permitted by the relevant planning instrument. There was also an issue which the Tribunal failed to consider concerning the necessity for a handrail where a pathway gradient exceeds 20%. There is a requirement for a handrail and its installation would have reduced the width of the path by some 100 mm. 6. The evidence demonstrated that the effect of moving the fence to the common boundary would be to narrow the pathway at the stairs area to a width that was impracticable for ordinary pedestrian use, let alone for carrying goods or for emergency access. 7. Grounds of appeal 3, 4 and 5 concern the Tribunal's finding that Koala Road is not the only point of access for the Appellant. The Tribunal's findings involve two errors of law and an error of fact. First, there was a failure to provide proper reasons. Access via the public reserve is denied from 10 pm to 4 am because the Council has the practice of shutting and locking the entry boom gates. The public reserve access does not permit the Appellant to park within his own property and, rather, he must park on public parking space. Thus, Koala Road is the only point for vehicular access to the Appellant's garage and parking easement. These matters were not addressed by the Tribunal. There was no evidence to support the finding that Koala Road is not the only point of access for the Appellant as that finding must be taken to mean that the Tribunal found that access is available at all times and for all purposes. 8. In respect of appeal grounds 8 to 10 concerning the finding that the Colorbond fence will not cause structural damage to the pathway or surrounds, the Appellant submits that that finding was based upon a report purported to have been issued by MPN Group Pty Ltd. That report is referred to at [58] and it can be inferred that the reference in [69] to the engineering report is a reference to the MPN report. 9. The Tribunal erred in law by failing to give reasons for accepting the report as expert evidence. In the proceedings, a member of the Tribunal had made a direction that any expert report is to comply with the requirements in NCAT Procedural Direction 3 - Expert Witnesses. The MPN report did not comply with the requirements of procedural direction 3. 10. However, more importantly, the Appellant seeks to rely upon fresh evidence obtained after publication of the Decision to the effect that the author of the MPN report (namely "D Hatchett") was not an employee of MPN at the relevant time. An affidavit of Viktor Mateffy (a director of MPN) dated 18 March 2022 was sought to be relied upon in support of the Appellant's contention that the MPN report was issued by a person having no authority from MPN. 11. That evidence supports the Appellant's contention that the MPN report should not have been relied upon at all by the Tribunal with the result that there was no evidence to support the conclusion that the Colorbond fence would not cause structural damage. 12. Ground of appeal 7, 11 and 12 contend that the Decision was so unreasonable that no reasonable decision-maker would have made it. The issue concerning the narrowing of the width of the pathway referred to earlier and the issue concerning the fact that Koala Road is the only public street access to the Appellant's property is relied upon for the Appellant's contention that the Decision was so unreasonable that a reasonable decision-maker would not have made it. 13. To the extent that the grounds of appeal require leave, the Appellant referred to and relied upon the principles set out in Collins v Urban [2014] NSWCATAP 17. The Appellant contended that the Decision produced a clear injustice and that the findings as to the fence not impeding access were findings unreasonably arrived at and clearly mistaken. The same contention is made with respect to the finding that Koala Road is not the only point of access. Respondent's Reply and Submissions 1. The following paragraphs summarise the submissions of the Respondent both contained in the Reply to Appeal and in the submissions subsequently filed. 2. The Reply to Appeal may be summarised as follows: 1. The new fence has moved approximately 5 cm from the position of the old fence. 2. The quotation relied upon by the Respondent came from Jim's Fencing. The report from MPN was only an "installation opinion" and a "supplementary support document" intended to offer support for the installation of a Colorbond fence. The Respondent submitted that he was unaware that the author (D Hatchett) was not associated with MPN. In any event, there was no evidence from the Appellant to the effect that a Colorbond fence could not or should not be constructed on the dividing boundary. 3. In relation to emergency access, the length of the pathway and its steepness make Koala Road impractical for emergency access. 4. The boom gate has since been removed by Council and therefore access via the reserve is unrestricted. We divert to note that at the appeal hearing the Appellant's counsel submitted that there was evidence that this was a temporary measure whilst the boom gate was being repaired. 5. Generally, the Respondent's submissions oppose the appeal and submit that the orders made by the Tribunal at first instance should stand. 6. The Respondent's written submissions (and oral submissions) contest the factual assertions made by the Appellant and in particular that there has been a substantial reduction in the width of the pathway. Submissions in Reply 1. The Appellant contends that the Respondent is inaccurate in stating that the new fence has moved only 5 cm from the old fence position. The Tribunal found that the old fence encroached on to the Respondent's property by 250 mm in the stairs area. By moving the fence to the common boundary, the result was a move of between 150-260 mm. Consideration 1. The key argument contended for by the Appellant relates to the width of the pathway. The Tribunal found that the Colorbond fence will not impede the Respondent's access and relied upon a photograph said by the Appellant to have been taken at a point in the path wider than the narrowest point and therefore not relevant to the assessment of the path at the narrowest point. The Appellant's contention is that the path has been reduced to approximately 450 mm and that that width is inadequate. The dimension of the width is contested by the Respondent who argues that the actual width is wider. 2. We are of the opinion that, assuming the Appellant's assertion that the width is 450 mm, there was insufficient evidence to support the proposition contended for by the Appellant that such width was inadequate for pedestrian access. The fact that a width of 450 mm may be narrower than the width available prior to the construction of the new fence does not in our view result in the conclusion that the effect of the Tribunal's orders was to deny the Appellant reasonable access along the pathway. We will return to this issue later. 3. Under the DF Act, the Tribunal is required to take into account "all the circumstances of the case as required by s 4". Section 4 is in the following terms: 4 Determination as to "sufficient dividing fence" In any proceedings under this Act, the Local Court or the Civil and Administrative Tribunal is to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of this Act, including the following: (a) the existing dividing fence (if any), (b) the purposes for which the adjoining lands are used or intended to be used, (c) the privacy or other concerns of the adjoining landowners, (d) the kind of dividing fence usual in the locality, (e) any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated, (f) any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated, (g) in the case of a dividing fence affecting land the subject of a lease under the Western Lands Act 1901 , any order in force under section 18A of that Act immediately before the repeal of that Act. 1. It is evident from [51] of the Decision that the Tribunal was aware of the Appellant's contention that the proposed fence would leave a gap of only 450 mm and of the submissions made by the Appellant as to the consequences for emergency access by fire and rescue services and medical services. However, the Appellant's contention that 450 mm is inadequate is not supported by any objective evidence. There is no evidence from a person responsible for fire or rescue, and who is independent of the Appellant that 450 mm is, in the circumstances, inadequate to provide reasonable access. Nor is there evidence from a tradesman as to the practical consequences of the 450 mm width. 2. The Appellant contended that the photo referred to at [68] of the Decision should not have been relied on because it was not taken at the narrowest point. However, in our view it was evidence of adequate width at the point it was taken, and it was reasonable, in the absence of a photo taken at the narrowest point for the Tribunal to have inferred that the width elsewhere along the path would not lead to a different conclusion concerning the adequacy of the width. 3. In our view given the state of the evidence it was open to the tribunal to not find that the proposed fence would impede access. In this context the issue is not whether the width is reduced but rather whether the resulting width following construction of the new fence rendered access impracticable. 4. Ground 1 of the appeal contends that the Tribunal erred in law in finding that the proposed fence will not impede access because there was no evidence to support that finding. In our view for the reasons described above there was evidence to the effect that the narrower width will not deny the Appellant access and there was evidence upon which the Tribunal was entitled to decide not to find that the proposed fence will impede access. Ground 1 is rejected. 5. Ground 2 is to the same effect as ground 1 except that it is contended that the Tribunal erred in fact in circumstance where the evidence overwhelmingly pointed to a contrary conclusion. For the same reasons that applied to our rejection of ground 1, ground 2 is also rejected. In addition, this is a ground requiring leave and we reject the contention that the decision demonstrates a clear injustice. For the reasons earlier described the Tribunal had before it evidence that made it open to make the findings it made. There is no basis to grant leave. 6. Ground 3 contends that there was a failure to provide reasons for the finding that Koala Road is not the only point of access. The Appellant's evidence was that he had access to his property via the public reserve but that that access was restricted in a number of ways. This contention must be therefore understood to mean that the Appellant contends that the restricted access via the reserve should not have been taken into account by the Tribunal as evidence of reasonable access. It was uncontested that the Appellant in fact accesses his property via the reserve. This is referred to at [52] of the Decision. At [53] the Tribunal records the evidence of the Appellant that access via the reserve is restricted. Accordingly, there is no error in the Tribunal's finding at [68] that Koala Road is not the only point of access given the evidence of access via the reserve. The Appellant contends that the Tribunal's finding must be taken to be finding that access via the reserve is available at all times and for all purposes. We do not agree. We are of the view that the Tribunal was aware of and gave consideration to the evidence concerning the nature and extent of both the pathway access and the reserve access as it was required to do by s4 of the DF Act. There is no error of law and nor has the Appellant demonstrated a ground requiring leave. 7. For the above reasons we are the view that the tribunal's reasons are adequate and that ground 3 is therefore rejected. Ground 4 is also rejected. There was evidence to support the finding that Koala Road is not the only point of access. 8. Ground 5 is to the effect that the Tribunal erred in fact in finding that Koala Road is not the only point of access when the evidence was that Koala Road was the only point for vehicular access and the only point of any access when the access via the reserve was locked. The DF Act does not give any special status to vehicular access or to the nature of restrictions in access to a property. The Tribunal considered relevant circumstances as required by s4 of the DF Act. Ground 5 is rejected. 9. Ground 6 contends that the Tribunal erred in failing to consider whether the location of the proposed fence complied with certain local council requirements. The Tribunal referred to the Appellant's contentions concerning the council's requirements for fencing at [59] and [60] and a requirement for the height of the fence to be lower near the building line. This requirement was in fact built into the Tribunal's order: see 2(b). The Appellant also contended that the Tribunal should have given consideration to the requirements imposing minimum setbacks for dual occupancies on the basis that the Appellant's property is a dual occupancy with the property of his neighbour, Mr Loe. The Appellant did not contend that those requirements were a code which the Tribunal was obliged to work within. Rather the Appellant's contention was that the dual occupancy requirements were matters for guidance. The fact that the Tribunal did not consider this aspect does not constitute an error of law and we are of the view that any basis to grant leave on this ground has not been established. Ground 6 is rejected. 10. Ground 7 concerns the contention that the Tribunal erred in law by making a decision as to the location of the fence that was so unreasonable that no decision maker would have made it. This contention relies upon the argument that effect of the orders is to narrow the path to a width too narrow for convenient access particularly for emergency services or the carrying of goods. We have already dismissed the Appellant's contentions concerning the adequacy of the width of the path. For the same reasons this ground is rejected. 11. Grounds 8 to 10 concern the assertion that the Tribunal was in error in being satisfied that the Respondent's engineering report constituted evidence that the proposed fence will not cause structural damage to the pathway or the stonewall. An aspect of these grounds concerns the MPN report. 12. The Appellant has sought to adduce evidence concerning the MPN report which is fresh evidence and requires leave for it to be considered on appeal. Generally, such evidence will be permitted if it was not reasonably available at the time of the first instance hearing. It is not necessary for us to formally grant or refuse leave. We are of the opinion that the MPN report, although expressly relied upon by the Tribunal, would, had it been ignored entirely, not have changed the outcome. 13. The reason that we have come to the conclusion expressed in the above paragraph is that the Tribunal had before it the Jim's Fencing quote. The Tribunal was entitled to infer that Jim's Fencing warranted that the work would be done in a manner which would produce a properly constructed fence and not cause damage to the surfaces upon which it was installed. Secondly, there was no evidence put forward by the Appellant contesting such an inference . There were concerns expressed by the Appellant as to whether the installation might cause damage, but concerns are not evidence which would shift the onus back to the Respondent requiring the Respondent to rebut the alleged lack of safety of the proposed installation. There was no evidence that Jim's Fencing relied upon the MPN report and the evidence from the Respondent was that Jim's Fencing gave his quotation independently of MPN. 14. Accordingly, even if we were to accept the fresh evidence and thereby accept the Appellant's proposition that the MPN report should have been given no weight at all, we are of the opinion that the remaining evidence, in particular the evidence from Jim's Fencing, would have resulted in the Tribunal making the same decision and the same orders. 15. Both parties sought to introduce fresh evidence on other matters in support of their respective positions. That evidence was reasonably available prior to the first instance hearing and there was no adequate explanation as to why such evidence was not relied upon at first instance. We decline to allow such evidence to be considered in the appeal. 16. For the above reasons, appeal grounds 8 to 10 are rejected. 17. Ground 11 is to the effect that the Tribunal erred in law by making the orders that the proposed fence to be constructed will be a sufficient dividing fence within the meaning of s14 of the DF Act. The submissions in support of this ground repeat the criticisms earlier described concerning the width of the path and the restrictions concerning access via the reserve. This ground falls away following the dismissal of the other grounds. 18. Ground 12 contends that the Tribunal erred in law by failing to order that the fence be built on the Respondent's land and also ordering compensation be paid to the Respondent under s14. Again, given that we have rejected the other grounds of appeal it would follow that there was no basis for the Tribunal to depart from making the usual order that the fence be built on the boundary line. The question of compensation does not arise. 19. Accordingly, the Appeal Panel makes an order that the appeal be 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 08 September 2022 - Numbering amended 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: 08 September 2022