Nicholls v Fortmann [2020] NSWCATAP 52

Nicholls v Fortmann [2020] NSWCATAP 52

Leave to appeal was refused because the appellant did not establish that she may have suffered a substantial miscarriage of justice. The evidence did not preponderate so strongly against the Tribunal's conclusion that the existing fence was a sufficient dividing fence that no reasonable Tribunal member could reach that conclusion. The Tribunal considered all relevant circumstances under s 4 of the Dividing Fences Act 1991 (NSW), including SEPP non-compliance, council's decision to take no action, the fence's suitability for access restriction and screening, council policy, and the range of fences in the area. Non-compliance with the SEPP was not shown to be a dominating factor and s 4 did...

Jurisdiction
Australia
Judgment Date
19 March 2020
Procedural Posture
Application for Leave to Appeal Concerning Orders Under the Dividing Fences Act 1991 (nsw) / Appeal Panel From a Consumer and Commercial Division Decision Dismissing the Appellant's Application
Outcome
Leave to appeal refused; appeal dismissed.
Legal Topics
['sufficient Dividing Fence' 'fences and Boundaries' 'leave to Appeal' 'against the Weight of Evidence' 'substantial Miscarriage of Justice']
['environment and Planning' 'dividing Fences'] ['sufficient Dividing Fence' 'fences and Boundaries' 'leave to Appeal' 'against the Weight of Evidence' 'substantial Miscarriage of Justice']

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Procedural Posture

Application for Leave to Appeal Concerning Orders Under the Dividing Fences Act 1991 (nsw) / Appeal Panel From a Consumer and Commercial Division Decision Dismissing the Appellant's Application

Legal Issues

  1. 1 ['Whether leave to appeal should be granted under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) and cl 12 of Sch 4 to that Act.' "Whether the Tribunal's finding that the existing fence was a sufficient dividing fence under s 4 of the Dividing Fences Act 1991 (NSW) was against the weight of evidence." 'Whether non-compliance with the applicable State Environmental Planning Policy required a finding that the fence was not a sufficient dividing fence.']

Ratio Decidendi

Leave to appeal was refused because the appellant did not establish that she may have suffered a substantial miscarriage of justice. The evidence did not preponderate so strongly against the Tribunal's conclusion that the existing fence was a sufficient dividing fence that no reasonable Tribunal member could reach that conclusion. The Tribunal considered all relevant circumstances under s 4 of the Dividing Fences Act 1991 (NSW), including SEPP non-compliance, council's decision to take no action, the fence's suitability for access restriction and screening, council policy, and the range of fences in the area. Non-compliance with the SEPP was not shown to be a dominating factor and s 4 did...

Court Disposition

Leave to appeal refused; appeal dismissed.

Orders

  • ['Leave to appeal is refused and the appeal is dismissed.']