(1) The plaintiff has leave to file the further amended summons.
(2) Leave to appeal is refused for proposed grounds 1 and 3.
(3) The further amended summons dated 29 August 2023 is otherwise dismissed, with costs.
Catchwords:
APPEALS — Right of appeal — Source of right – Whether right to appeal under ss 39-40 or 70(1)(c) of the Local Court Act 2007 (NSW) and the jurisdiction under Pt 5 of the Crimes (Appeal and Review) Act 2001 (NSW)
APPEALS — Leave to appeal — Principles governing – No issue of principle or question of public importance – Lack of proportionality between the monetary amount at issue and costs of the proceeding – Leave refused
APPEALS — Right of appeal — Scope of right —Where subject matter did not raise question of law alone – Where failure to precisely identify questions of law – Whether factual findings unsupported by any evidence – Whether alleged failure to take into account mandatory relevant consideration constitutes a question of law – Whether finding of no breach of Pt 2 Div 1 Subdiv 17 cll 2.33 and 2.34 SEPP 2008 constitutes a jurisdictional fact – Whether reasons of Magistrate inadequate
STATUTORY INTERPRETATION – Meaning of the phrase “to consider” in the context of s 4 of the Dividing Fences Act 1991 (NSW), where the decision-maker is required “to consider” all the circumstances of the case, including the seven specified criteria set out therein regarding what is the standard for a “sufficient dividing fence”
Legislation Cited:
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Civil and Administrative Tribunal Act2017 (NSW) ss 80, 83
Civil Procedure Act 2005 (NSW) s 60
Crimes (Appeal and Review) Act 2001 (NSW) pt 5, ss 52, 53, 56(1)(e)
Criminal Procedure Act 1986 (NSW) pt 2, ch 4
Dividing Fences Act 1991 (NSW) ss 3, 4, 6, pt 3, ss 11, 12
Environmental Planning and Assessment Act 1979 (NSW) s 1.4, pt 3, s 3.29, div 6.7
Eurobodalla Local Environmental Plan 2012 (LEP)
Local Court Act 2007 (NSW) ss 13, 14, 39, 40, 45, 70
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) cll 2.33, 2.34
In the case of Styles v Rowley, the appeal was brought before the Local Court of New South Wales, concerning a dispute between the parties over the adequacy of a dividing fence. The appellant, Styles, contested the decision of the Local Court, which found that the fence did not breach certain clauses of the Sub-Divisional Environmental Plan 2008. The respondent, Rowley, argued that the fence met the statutory requirements under the Dividing Fences Act 1991. The core issue revolved around the interpretation of the phrase “to consider” in the context of section 4 of the Dividing Fences Act, which outlines the criteria for a “sufficient dividing fence.” Specifically, the case addressed whether the Local Court had adequately considered the specified criteria and whether the reasons provided were sufficient to justify the decision.
The court was required to determine the appropriate legal avenues for appeal and whether the Local Court had correctly applied the statutory criteria when assessing the adequacy of the fence. Additionally, the court needed to ascertain if the appeal was grounded in a question of law alone, or if it involved a combination of factual and legal considerations. The appeal also questioned whether the findings of the Local Court were unsupported by evidence and if the alleged failure to consider mandatory relevant considerations constituted a question of law. The court was tasked with evaluating whether the Local Court's failure to take into account certain mandatory considerations was indeed a question of law, and whether the finding of no breach constituted a jurisdictional fact. Finally, the adequacy of the reasons provided by the Local Court was scrutinized to determine if they were sufficient to support the decision.
The court held that the right to appeal was under sections 39-40 and 70(1)(c) of the Local Court Act 2007, and the jurisdiction was under Part 5 of the Crimes (Appeal and Review) Act 2001. The court emphasised that an appeal based on a question of law alone was limited and did not automatically confer a right to appeal. The court found that the appeal did not present a question of principle or public importance, and the costs of the proceeding outweighed the monetary amount at issue. Consequently, the application for leave to appeal was refused. The court determined that the Local Court had adequately considered the statutory criteria and that the reasons provided were sufficient. The interpretation of the phrase “to consider” in section 4 of the Dividing Fences Act was held to require the decision-maker to take into account all relevant circumstances and criteria, which the Local Court had done. Therefore, the appeal was dismissed.
The court did not issue any further orders beyond dismissing the appeal and denying leave to appeal.