Lau v Mehr [2021] NSWCATAP 26

Lau v Mehr [2021] NSWCATAP 26

The Tribunal at first instance made an error of law because, on the remittal from the Appeal Panel, it had no jurisdiction to determine a different type of sufficient dividing fence from that already affirmed by the Appeal Panel. Order 1 of the First Decision, which required a chain wire or wire mesh fence, was inconsistent with the Appeal Panel's order for a hedge fence and was also based on a mistaken premise that only a non-combustible fence could lawfully be erected. No error of law or basis for leave was identified in relation to the remaining orders, subject to modifying the timing for initiation of works.

Jurisdiction
Australia
Judgment Date
09 February 2021
Procedural Posture
Appeal From Decisions of the Consumer & Commercial Division Concerning Orders Under the Dividing Fences Act 1991 (nsw) / Appeal Panel Decision on Appeal From Decisions Dated 11 August 2020 and 9 September 2020
Outcome
Appeal upheld in part; Order 1 of the First Decision set aside and remaining relevant orders affirmed or modified.
Legal Topics
['remittal From Appeal Panel' 'tribunal Jurisdiction' 'finality Principle' 'sufficient Dividing Fence' 'development Consent Conditions']
['practice and Procedure' 'dividing Fences' 'administrative Law'] ['remittal From Appeal Panel' 'tribunal Jurisdiction' 'finality Principle' 'sufficient Dividing Fence' 'development Consent Conditions']

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Procedural Posture

Appeal From Decisions of the Consumer & Commercial Division Concerning Orders Under the Dividing Fences Act 1991 (nsw) / Appeal Panel Decision on Appeal From Decisions Dated 11 August 2020 and 9 September 2020

Legal Issues

  1. 1 ["Whether the Tribunal at first instance exceeded the jurisdiction conferred by the Appeal Panel's remittal by ordering a chain wire or wire mesh fence inconsistent with the Appeal Panel's earlier order for a hedge fence." 'Whether condition 48 of the Land and Environment Court development consent required reconsideration of the type of sufficient dividing fence.' 'Whether any error of law or ground for leave was shown in respect of the remaining orders in the First Decision and the orders in the Second Decision.']

Ratio Decidendi

The Tribunal at first instance made an error of law because, on the remittal from the Appeal Panel, it had no jurisdiction to determine a different type of sufficient dividing fence from that already affirmed by the Appeal Panel. Order 1 of the First Decision, which required a chain wire or wire mesh fence, was inconsistent with the Appeal Panel's order for a hedge fence and was also based on a mistaken premise that only a non-combustible fence could lawfully be erected. No error of law or basis for leave was identified in relation to the remaining orders, subject to modifying the timing for initiation of works.

Court Disposition

Appeal upheld in part; Order 1 of the First Decision set aside and remaining relevant orders affirmed or modified.

Orders

  • ['The appeal is upheld and the orders which follow are made.' 'Order 1 made in the First Decision (being the decision published on 11 August 2020) is set aside.' 'Orders 2 to 9 (inclusive) made in the First Decision are affirmed except as modified below.' 'Order 2 is amended so that the works are to be initiated...