Falantin v Keys [2025] QCAT 479

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Falantin v Keys [2025] QCAT 479 PARTIES: DOROTA FALANTIN (applicant) v WILLIAM KEYS (respondent) JACQUELINE KEYS (respondent) APPLICATION NO/S: NDR170-23 MATTER TYPE: Other civil dispute matters DELIVERED ON: 17 November 2025 HEARING DATE: 1 October 2025 HEARD AT: Brisbane DECISION OF: Member McLean-Williams ORDERS: A new boundary fence and associated retaining wall are to be constructed on the surveyed boundary between Number 7 Atlas Place Chapel Hill, and Number 130 Fig Tree Pocket Road Chapel Hill, in accordance with an engineering design specification obtained from a licensed engineer, to be engaged by the Applicant. Obtaining any necessary certification or Council approval for those works is the responsibility of the Applicant. The associated retaining wall is to be constructed in accordance with the engineering design required by Order (1) above, using concrete sleepers and galvanised steel posts, and is to be constructed in accordance with the requirements of the Applicable Australian Standard(s). The boundary fence is to be constructed in timber (comprised by hardwood posts and rails, with treated pine palings with a gap between palings of no more than 5mm), to a height of 1.8 metres. Palings are to be placed on the Eastern-facing side of the new fence. The new boundary fence and associated retaining wall is to be constructed on, or as near to the surveyed boundary as is practically achievable, but no less than 500mm further to the West of the existing timber fence. -- 1 of 17 -- 2 All vegetation necessary for the construction of the new boundary fence and associated retaining wall is to be removed as part of the fencing works required by these orders. Removal of the existing timber wooden fence on the land at Number 7 Atlas Place and removal of the existing cold-formed steel retaining wall on the land at Number 130 Fig Tree Pocket Road are also fencing works for the purposes of these orders. The costs of any engineering design, council certification, as well as the costs for necessary materials and construction/labour costs for the fencing works, including foundation and drainage, as now required by Orders (1)–(5) above, are to be borne equally (i.e. 50:50) by the Applicant and the Respondents. The costs that must be shared by the Respondents are confined to that portion of fencing works along the shared boundary between the properties and do not extend to any fencing costs beyond either the Northern or Southern boundary of the land at 130 Fig Tree Pocket Road at Chapel Hill. The costs of any necessary preliminary works beyond those contemplated by Orders (4) and (5) above, (including but not limited to any relocation of sheds, garden beds, pool fences, paving, etc), and post-construction remediation or landscaping costs arising after the fencing works required by Orders (1)–(5) above, are to be borne on the basis that the Applicant will pay for any such costs arising at Number 7 Atlas Place, and the Respondents will pay for any such costs arising at Number 130 Fig Tree Pocket Road. Any replacement planting in the vicinity of the new boundary fence and associated retaining wall at the conclusion of the ordered fencing works is to be confined to low shrubbery, or ground covering plants that do not have a root structure that is capable of detrimentally affecting either the new fence, or the associated retaining wall. Within six (6) weeks of obtaining an engineering design (Order (1), above) the Applicant will provide the Respondents with two (2) quotes for the necessary works (Orders (2), (4) & (5) above), and the Respondents are at liberty to select between the provided quotes within 14 days after provision of the quotes. In the event of no response from the Respondents to the provided quotes the Applicant is -- 2 of 17 -- 3 at liberty to determine which of the two quotes will be accepted. The parties will provide all necessary access upon their land for trades and/or designing engineers to do any works ancillary, necessary or incidental to the performance of these orders. In the event of any non-compliance with these orders by the Respondents the Applicant and her contractors are at liberty, pursuant to s 94 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), to enter upon the land at Number 130 Fig Tree Pocket Road to carry out the necessary works upon the giving of at least seven (7) days’ written notice to the Respondents. Any costs incurred by the Applicant in the performance of any works caused by non-compliance with any of these orders by the Respondents is a sum that may be recovered, in full, by the Applicant from the Respondents. The Applicant will bear all of the costs associated with the erection and certification of a fire-rated wall, wholly within the land at 7 Atlas Place Chapel Hill. CATCHWORDS: DIVIDING FENCE DISPUTE – circumstances wherein adjoining neighbours unable to reach agreement – circumstances wherein existing fence no longer sufficient – further circumstances in which fence constructed with an adjacent retaining wall – arguments regarding who has the benefit of (and hence responsibility for the costs of replacing) the retaining wall – Tribunal finding that retaining wall necessary for boundary fence for purposes of s 35(1)(f) Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 13, s 15, s 16, s 20, s 21, s 35, s 46, s 94 Battiato v Clifton [2025] NSWLEC 1391 Yared v Glenhurst Gardens Pty Ltd [2002] NSWSC 11 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondents: Self-represented -- 3 of 17 -- 4 REASONS FOR DECISION [1] The Applicant and the Respondents (‘the parties’) are adjoining owners1 who share a rear boundary in Chapel Hill. The Applicant resides at Number 7 Atlas Place (‘Number 7’), and the Respondents reside at Number 130, Fig Tree Pocket Road (‘Number 130’). [2] On 16 September 2023 the Applicant commenced an ‘Application for a tree dispute’ pursuant to the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ‘Act’), seeking orders from the Tribunal in relation to a number of trees, located within the boundary of the Respondents’ land. Therein, the Applicant makes various complaints about the Respondents’ vegetation, for purposes of submitting that Number 7 qualifies as ‘land affected’ by those trees, for purposes of s 46 of the Act. [3] Although originally commenced by the Applicant specifically as a Form 51 tree dispute, the Application makes clear that the Applicant’s concerns extend to the condition of “the Respondents’” disintegrating retaining wall,2 and the leaning boundary fence, which the Applicant contends “cannot be replaced until the Respondents’ retaining wall is rebuilt, and all the trees and vegetation are removed”.3 [4] Ultimately, the parties have finally agreed that the dividing fence and the retaining wall that are the subject of these proceedings have each reached the stage at which neither are sufficient,4 and need to be replaced.5 For practical reasons, the parties also agree that the trees that are the subject of these Tribunal proceedings need to be removed,6 as a necessary preliminary for fencing works. [5] Because the subject trees will now become the subject of specific fencing work orders made by the Tribunal pursuant to s 16 of the Act, it becomes otiose for the Tribunal to make further determinations regarding the trees pursuant to s 46 of the Act, or any consequential orders, under s 66 of the Act. [6] Prior to the commencement of these proceedings there had been an extensive and unsuccessful history of efforts between the parties to reach an agreement, particularly in relation to whom should bear the costs associated with the removal and replacement of the retaining wall. Situational Appreciation [7] Number 7 is land more properly described as Lot 19 on Registered Plan 133975 within the Brisbane City Council local government area. Number 130 is land that is more properly described as Lot 8 on that same registered plan. [8] Topographically, Number 130 sits physically below—and immediately to the West of—Number 7, with the house at Number 7 facing to the East and constructed at the watershed of a ridge that falls away to the West, in the direction of Chapel Hill Road. The frontage of Number 130 then faces Westwards, towards Fig Tree Pocket Road. 1 Act s 15(1). 2 Form 51, answer given in response to Questions 22, 25, 51. At the time of commencing her Application, the Applicant was of the understanding that the retaining wall was wholly owned by the Respondents. 3 Form 51, answer given in response to Question 37. 4 Act s 13. 5 Transcript p 26, line 16, p 81, lines 9–13. 6 Act s 16(b). -- 4 of 17 -- 5 [9] The shared rear boundary between the two properties runs generally North-South, over a length of about 19 metres. Number 7 also shares its rear boundary with Number 128, and Number 132 Fig Tree Pocket Road, which are, respectively, to the immediate North, and South, of the Respondents’ home at Number 130.7 All three of the Fig Tree Pocket Road properties are lower down the slope from Number 7, although it is the case that this section of Fig Tree Pocket Road also gently climbs, as it proceeds further towards the North. [10] Number 130 was constructed a number of years prior to the house at Number 7, and sits on a house pad partly cut into the land on the lot. There is a low retaining wall immediately behind the house at Number 130, with a set of concrete stairs set into that retaining wall, leading up to a higher back yard, that continues to slope upwards until it meets the cold-formed steel retaining wall at the real centre of this dispute. [11] The cold-formed steel retaining wall is approximately 750 millimetres high and runs approximately North-South, in parallel with the boundary, with the land behind the cold-formed steel retaining wall then climbing again, albeit even more steeply, up to meet the base of a dilapidated 1.8 metre wooden boundary fence shared with Number 7, that is set upon one wooden sleeper, approximately 200mm high. [12] When standing in the back yard at Number 130, the height differential between the top of the cold-formed steel retaining wall and the base of the wooden fence above it is somewhere between about 1.3–1.5 metres. The lineal distance between these two appurtenances is then about one metre. Once on the other side of that fence, the rear wall of the house at Number 7 is within about 3 metres of the fence. There is also a paved patio area, approximately 2.5 metres wide, with an associated roof structure coming off the back of the house at Number 7. Originally, this patio was about 4 metres long, yet for reasons that will be elaborated further below, the patio and its roof were subsequently extended by the Applicant, by about another 3 metres. [13] The Applicant informed the Tribunal that she had purchased the house at Number 7 about 25-years ago, and that she has now lived in the house for the past 21 years. [14] Although the Applicant had always (until recently) assumed the wooden fence to constitute the rear boundary between her house and Number 130, a survey conducted in 2024—as part of this dispute—has confirmed that the legal boundary is actually located approximately 500 millimetres further to the West, beyond the existing wooden fence, running in a generally North-South line, that transects the approximately one metre gap between the wooden fence and the cold-formed steel retaining wall further down the slope. [15] In light of the recent survey, the parties are now in agreement in relation to the location of their common boundary. [16] The Respondents have lived in the house at Number 130 since long before the arrival of the Applicant at Number 7. [17] During their oral evidence given on 1 October 2025—and although now accepting8 of the fact that the cold-formed steel retaining wall has been erected wholly within their 7 The total length of the rear boundary for 7 Atlas Place is 36.361 metres. 8 Transcript p 23, line 26. -- 5 of 17 -- 6 land—the Respondents endeavoured to explain the history of the current boundary arrangements, advising the Tribunal in these terms: • When the area was developed for housing in the 1970s, the original developer had constructed retaining walls on the boundary, from Koppers logs, in order to retain the land at Number 7. Remnant artefacts of the original retaining wall may still be found along the line of the boundary in the undergrowth. • Over the years, the former occupants of Number 7 had failed to adequately maintain the Koppers log retaining wall, such that it degraded, and parts of it slumped and encroached onto Number 130. • The Respondents purchased their home at Number 130 in 1988. In about 1993– 94, the former owner of Number 7, with the permission of the Respondents, rebuilt the retaining wall, this time using cold-formed steel ‘C’ sections: [W]e didn’t interfere with what he did. He took the cheapest option. He only came and advised us of what he was doing, and all access was actually from his land. He took the fence down; that fence was removed. The fence was removed, and then he bought in – he worked for a steel company right? So, he got these steel sleeper[s]. We have very young children. We were too busy to even pay attention to what he was doing, but we can tell you that the original Koppers logs are still there, and in many places I have photographic evidence where the Koppers logs are about that far within the boundary on the applicant’s property. He just put a fence, a steel structure, in front of it.9 • Mr Keys helped the former owner at Number 7 bring materials onto the land at Number 130 to construct the cold-formed steel retaining wall, but did not otherwise aid in the construction. “We also paid for half the things”.10 • After the retaining wall had been re-constructed in cold-formed steel, the Respondents also contributed to the cost of a new timber dividing fence. This was also built by the former owner of Number 7 in about 1993–94, and was positioned further up the hill: [B]ecause that land had degraded so much, the land on her side, slippage had happened so much, they could not put the fence back on the boundary. It was actually moved, to higher ground, which is what her – closer to, you know, into her land. And they only did that, I believe, although I didn’t discuss it with at the time, but I believe they did that because there was too much slippage to build the fence lower.11 Matters that are now agreed [18] Ultimately, by the conclusion of the hearing, the parties were able to reach substantial agreement regarding the following: • There is definitely a need for a new boundary fence; • Desirably, the new fence should be erected on the surveyed boundary. Any new retaining wall should also be located on the boundary; 9 Ibid pp 22–23, lines 44/22–06/23. 10 Ibid p 62, line 40. 11 Ibid p 24, lines 35–41. -- 6 of 17 -- 7 • For practical reasons associated with construction of the new fence, all of the vegetation that is the subject of these proceedings will need to be removed; • The new boundary fence should be a timber fence 1.8 metres high with a very narrow paling gap (so as to maximise privacy), with the palings fixed on the same side as the palings on the current fence; • In order to rectify the timber boundary fence, the lower retaining wall needs to be rectified, as well. These two property appurtenances, together, are really part of a system.12 [19] The parties remain at odds regarding who should bear the financial responsibility for the costs associated with removing and then replacing the cold-formed steel retaining wall. Respondents’ Contentions [20] Mr and Mrs Keys contend that the cold-formed steel retaining wall was built by the former owner of Number 7, and entirely for the benefit of the owner of Number 7, and should now become the sole financial responsibility of the current owner of Number 7. Although the Respondents agree that the cold-formed steel retaining wall was never built properly, and that it has since failed and must be replaced, they claim that these proceedings are, in large measure, an attempt by the Applicant to try and shift responsibility13 for the costs of this task onto the Respondents: Over decades, the applicant and her predecessors have failed to maintain it. The result is that the wall degraded, slumped, and parts of it now encroach on my property. That is not where it was original [sic] built. It is a result of collapse and neglect. Her predecessor then built a sleeper wall, without engineering, in front of the collapsing land to try and hold the slippage up.14 [21] The Respondents further contend that rainwater runoff from Number 7 (particularly from the roof over the patio at the back of Number 7) has always been a big part of the problem;15 causing scouring of the land on the slope between the two properties, and for the land to erode and then slip, further down the hill, towards their house at Number 130; and for the wooden fence (already re-constructed once, further uphill from its original location), only to have it to fail again because of continuing rainwater erosion.16 [22] Mr and Mrs Keys also assert that the already very parlous state of the wooden fence has been further exacerbated by tradesmen, recently employed by the Applicant, who cut through the rails of the fence to gain access to the underside of the patio slab, whilst doing some repair works to that slab: We thought it was unfair that damage that is caused by her water damage… and the scouring, and the fact that she cut [the fence] in four places without our 12 Ibid p 92, lines 34–47. 13 Ibid p 21, line 35. 14 Ibid p 22, lines 08–11. 15 Ibid p 25, lines 31–47. See also Transcript, p. 29–30, lines 22/29–03/30. 16 Although not articulated as such, the position taken by the Respondents’ is consistent with Leakey v National Trust [1980] 1 QB 485 (‘Leakey’s Case’). -- 7 of 17 -- 8 permission – she did not contact us about that at all. We just came out and said, “Oh, my God, she’s cut the fence”.17 [23] In response to the Respondents’ contentions, the Applicant said that, originally, her patio roof was only 2.5 metres by 3 metres, and it did not require any gutters, by reason that it did not harvest any rainwater from the main house roof (which has its own gutters), and no complaints about rainwater runoff had been received from any of her lower neighbours. [24] Mrs Falantin next said that she took the extra step of enlarging the roof and installing gutters with rainwater discharge out onto Fig Tree Pocket Road via pipes laid at Number 132 Fig Tree Pocket Road (with the consent of that neighbour) only after these proceedings had already been commenced in the Tribunal: MEMBER: All right. Why did you enlarge the roof over the pergola, the patio? MRS FALANTIN: Only because – that was the only reason, because, like, the respondent was saying that, well, we have – that was when we already lodged their complaints. They said, well, it’s because of the water. So, I said, “God, if that’s what the case, if there having too much water even from that,” so we just extended this little roof 3 metres, get the gutters. That’s what I’ve put.18 [25] Regarding the contention that her actions had exacerbated the state of the fence by her tradesmen having cut the rails in four places, Mrs Falantin says that the fence was, by that stage, already in a parlous condition; these proceedings were already underway; and the repairs to the patio foundation were required urgently. [26] A further point of relevance to the Tribunal’s reasons is to note that the Applicant’s recent additional efforts to mitigate the rainwater runoff complaints raised by the Respondents (by way of her extending the patio roof at Number 7) have now created a consequential problem for the Applicant: by reason that the extended roof structure over the patio is now much too-close to the boundary fence; such that the Brisbane City Council now requires that the Applicant install a fire-rated boundary wall along an approximately 3 metre section of the patio that abuts the fence. However, until such time as the wooden fence is first moved further to the West (and thus closer to the actual boundary), there is just not the room for the Applicant to be able to erect the Council-mandated firewall. Evidence heard before the Tribunal Engineering Evidence [27] At the Tribunal hearing conducted on 1 October 2025, the Tribunal received evidence from a consulting structural and civil engineer, a Mr Josef Balanag of ‘JBSE Engineering & Design Pty Ltd’. Mr Balanag has also provided a report dated 12 May 2023, based on a site inspection that he had conducted on 24 April 2023. 17 Transcript p 28, lines 30–37. 18 Ibid p 31, lines 19–25. -- 8 of 17 -- 9 [28] Mr Balanag’s report and oral evidence (given by telephone) indicates that the purpose of his inspection was primarily an effort to determine the causes for the failure of the cold-formed steel retaining wall. In relation to his findings, Mr Balanag reported: • The (lower) retaining wall structure is 19 metres in length and approximately 750 millimetres high, constructed of ‘C250.19’ cold-formed steel purlins, with C250.19 cold-formed steel purlins also used as soldier piles, set at approximately 2 metre centres, running parallel with the common boundary between 130 Fig Tree Pocket Road and 7 Atlas Place, Chapel Hill, yet at least one metre wholly within the boundary of 130 Fig Tree Pocket Road. • The retaining wall had ‘disintegrated,’ with sleepers either misaligned, or no longer in resting on their soldier piles. The soldier piles have rotated—by an average of 17 degrees—along their vertical plane. At least one sleeper and one soldier pile appear to be missing. No fixings, of any type, were evident at any of the joints between soldier piles and sleepers. • There are trees of varied diameter both above, and below, the retaining wall. These trees are situated much too close to the boundary wall and fence (within 200 mm). Trees increase ‘active pressure’ against the retaining wall. • Two tree stumps of at least 400-millimetre diameter are situated at the Northern end, and towards the middle of, the retaining wall. These trees appear19 to have contributed to the disintegration of the retaining wall as they grew. • The wooden boundary fence (set on a single 200mm high wooden sleeper) between 7 Atlas Place and 130 Fig Tree Pocket Road is located above the lower retaining wall, and now leans at an angle of approximately 20 degrees, towards 130 Fig Tree Pocket Road. Mr Balanag opines that many years of poor maintenance of the cold-formed steel retaining wall below the wooden fence has ultimately caused the wooden fence to collapse. “It appears the excessive rotation of the C250.24 soldier piles below have caused the ground on 7 Atlas Place to loosen causing the 200mm high [upper] retaining wall to sink and [for the] boundary fence to lean 20 degrees”. [29] Mr Balanag concludes his written report by stating that the failure of the lower retaining wall is attributable to: • Active pressure against the wall, caused by the large trees with only stumps now remaining. • Inadequate soldier pile footings, able to be undermined by tree roots. • An inadequate retaining wall design, with soldier piles placed too far apart, and an overall wall height that was insufficient in the circumstances, which really necessitated a retaining wall of at least 1.3 metres height, rather than the observed 750 millimetres. • The cold-formed steel retaining wall now needs to be removed, and replaced by a concrete sleeper or concrete masonry wall, of at least 1.3 metres, designed by a 19 It was put to Mr Balanag during cross examination by the Respondents that the cold-formed steel wall had been constructed with deliberate gaps in it, in order to accommodate these trees. That extra information did not change his conclusions regarding the adverse influence caused by the trees. -- 9 of 17 -- 10 qualified engineer in accordance with the specifications of AS 4678-2002 (Earth Retaining Structures), and other relevant Australian standards. [30] During his oral evidence, Mr Balanag additionally informed the Tribunal that: • Even if the lower retaining wall had been originally constructed with a deliberate break in it to accommodate for the fact of the presence of a tree (or trees), as was now put to him as being the case by the Respondents, subsequent growth by those same trees has still caused adverse influence on the retaining wall;20 • Although unable to entirely exclude the possibility of rainwater runoff from Number 7 and associated ‘ground creep’ having contributed to the observed poor condition of the (upper) timber fence, he was unable to determine whether it was rainwater runoff that had caused this fence to fail.21 • The fact of the soldier piles for the lower retaining wall having rotated 17 degrees is a finding of particular significance. It suggests that the footings for the soldier piles were never adequate.22 • From an engineering perspective, the condition of the upper wooden fence cannot be rectified until such time as the lower retaining wall has first been remediated, and work on the lower retaining wall really necessitates preliminary demolition of the wooden fence, by reason that the wooden fence represents a danger to those who will be required to work below it, when remediating the retaining wall.23 Evidence of the Tribunal Appointed Tree Expert [31] Pursuant to directions issued by the Tribunal on 4 July 2024, an expert tree assessor, Mr Steven Richards, was appointed to prepare a report. [32] Mr Richards attended on site at 130 Fig Tree Pocket Road on 16 July 2024 and prepared a report on that inspection which is now dated 15 August 2024. Mr Richard’s report deals with six (6) trees, each located in the area near to the (upper) timber fence constructed on a retaining wall one sleeper high and the (lower) cold-formed steel retaining wall that are now the subject of these proceedings. [33] In some parts of his report Mr Richards purports to give opinion evidence, well beyond the scope of his acceptable expertise as an arborist, in relation to engineering issues including stormwater scouring, and the adequacy of construction methods used in both the upper fence, and the lower retaining wall. Insofar as Mr Richards strays into engineering territory, his report will not be relied upon by the Tribunal. [34] Unfortunately, Mr Richards has also since retired, and did not make himself available to give oral evidence on 1 October 2025, such that the adequacy of any of the conclusions expressed by him in his report were issues that were unable to be explored by the Tribunal. However, so far as is relevant (and with the aforementioned caveats in mind), Mr Richards does opine that: 20 Transcript pp 44–45, lines 10(44)–13(45). 21 Ibid p 45, line 22–23. 22 Ibid p 46, lines 1–6. 23 Ibid p 46, lines 35 and continuing until p 46, line 25. -- 10 of 17 -- 11 It is unquestionable that both retaining walls require a complete rebuild which necessitates the removal of all the vegetation which renders any other further complaints of [vegetation] encroachment or future pruning moot. Survey Evidence [35] The Tribunal has also received written evidence of the results of a boundary survey conducted on 7 June 2024 by Mr Allan McLoughlin, licensed surveyor, of ‘A&T Surveying’. [36] A&T Surveying have placed survey pegs on the actual boundary between 7 Atlas Place and 130 Fig Tree Pocket Road, and these pegs were able to be observed by the Tribunal during a site visit conducted as part of the proceedings on 1 October 2025. [37] The boundary survey reveals that the (upper) boundary fence is wholly within the land at 7 Atlas Place, whereas the lower cold-formed steel retaining wall—constructed approximately one metre further to the West—is situated wholly within the land at 130 Fig Tree Pocket Road, with the shared boundary located approximately equidistant between these two appurtenances. [38] The parties accept24 the validity of the survey findings, and each now agrees that it would be preferable for the dividing fence to be erected on the surveyed boundary.25 The Relevant Law [39] Relevantly, the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) provides: 16 Meaning of fencing work Fencing work, for a dividing fence, means— (a) the design, construction, modification, replacement, removal, repair or maintenance of the whole or part of the dividing fence; and (b) the surveying or preparation of land, including the trimming, lopping or removal of vegetation, along or on either side of the common boundary of adjoining lands for a purpose mentioned in paragraph (a); and includes— (c) the planting, replanting and maintenance of a hedge or similar vegetative barrier as the dividing fence; and (d) the cleaning, deepening, enlargement or alteration of a ditch, embankment or watercourse that serves as the dividing fence; and (e) obtaining an approval required for fencing work. (Emphasis not in the original, yet included here by the Tribunal) 20 Liability for fencing work (1) If there is no sufficient dividing fence between 2 parcels of land consisting of adjoining land, an adjoining owner is liable to contribute to carrying out fencing work for a sufficient dividing fence. 24 Transcript p 12, lines 9–30; p 38 lines 39–41; p 65, lines 35–36. 25 Ibid p 80, lines 9–10; p 82, lines 25–26. -- 11 of 17 -- 12 Note— An adjoining owner may contribute by a payment of an amount or provision of labour or materials. (2) If carrying out fencing work includes construction or replacement of a sufficient dividing fence, the fence must be constructed or replaced on the common boundary other than to the extent it is impracticable to do so because of natural physical features. (3) However, other than for urgent fencing work, subsection (1) is only enforceable if— (a) the adjoining owners have agreed under this chapter about carrying out the fencing work; or (b) QCAT has ordered that the fencing work be carried out. (4) To remove any doubt, it is declared that subsection (1) applies even if— (a) there is already a dividing fence other than a sufficient dividing fence; or (b) one or both parcels of land are vacant land. 21 Contribution between adjoining owners—generally (1) Adjoining owners are each liable to contribute equally to carrying out fencing work for a sufficient dividing fence. (2) An adjoining owner who wants to carry out fencing work for a dividing fence to a standard greater than the standard for a sufficient dividing fence is liable for the fencing work to the extent that it is greater than the standard for a sufficient dividing fence. 35 Orders about carrying out fencing work (1) QCAT may, for an application in relation to fencing work for a dividing fence, decide and order any 1 or more of the following— (a) the line on which the fencing work is to be carried out, whether or not that line is on the common boundary of the adjoining land; (b) the fencing work to be carried out, including the kind of dividing fence involved; (c) the way in which contributions for the fencing work are to be apportioned or reapportioned or the amount that each adjoining owner is liable to pay for the fencing work; (d) the part of the dividing fence to be constructed or repaired by either adjoining owner; (e) the time by which the fencing work is to be carried out; (f) any other work to be carried out that is necessary to carry out the fencing work ordered under this section including work for a retaining wall; (g) that, in the circumstances, no dividing fence is required for all or part of the boundary of the adjoining lands; -- 12 of 17 -- 13 (h) that a fence has been used, or could reasonably be used, as a dividing fence under section 15; (i) the amount of compensation payable to an adjoining owner for damage or destruction to a dividing fence caused by another adjoining owner or a person mentioned in section 26(1)(b); (j) that an adjoining owner remove a thing attached to a dividing fence and restore the dividing fence; (k) the amount of compensation payable to an adjoining owner for the removal of a fence under section 33(3). (2) The occupation of land on either side of a dividing fence, as a result of an order that fencing work is to be carried out on a line other than on the common boundary of the adjoining lands, does not affect the title to, or possession of, the land. (Emphasis not in the original, yet included here, by the Tribunal) Tribunal Consideration [40] On the basis of the photographs, the site visit conducted by the Tribunal, and the positions now expressed by the parties during their evidence and in their final submissions, it is readily apparent that the wooden fence and the lower cold-formed steel retaining wall are completely inadequate, and that these appurtenances are in dire need of replacement. [41] On the basis of the evidence given by each of the Applicant and the Respondents, and the evidence from the Engineer Mr Balanag, and the views now formed by the Tribunal from the photographs, as aided by the situational appreciation afforded by the site inspection, the Tribunal determines—for purposes of ss 13(1)(c)(ii) and 20(1) of the Act—that there is not, at present, any ‘sufficient fence’ between Number 7 and Number 130. Section 21(1) of the Act is thus enlivened. [42] Although the Respondents contend26 that scouring of the land caused by rainwater runoff from Number 7 has been the primary cause for the observed poor condition of the wooden fence and the cold-formed steel retaining wall, there is scant evidence in support of that, beyond speculation and assertion. The state of the evidence is insufficient to allow any specific finding by the Tribunal in relation to the contribution that may have been made by rainwater runoff. [43] The Tribunal accepts the engineering evidence of Mr Balanag, which is to the effect that the failure of both the wooden fence and the cold-formed steel retaining wall arise primarily as a consequence of the inadequate construction of the cold-formed steel retaining wall, as then exacerbated over time by the adverse influence of the trees growing near to it. [44] Although the Respondents contend that the original Koppers log retaining wall and its cold-formed steel replacement were constructed entirely for the benefit of Number 7—and accordingly should now be the sole responsibility of the Applicant—the Tribunal is unable to accept that contention. There are a number of reasons for that. 26 Leakey’s Case, supra, n 16. -- 13 of 17 -- 14 [45] Firstly, other than the opinion expressed by the Respondents, there is no specific evidence that the original Koppers log wall was constructed entirely for the benefit of Number 7. When viewed via the lens of the house and land at Number 130 having been developed prior to the house at Number 7, the original Koppers log wall was an appurtenance that was more likely to have been erected as part of enabling the development of the land at Number 130, rather than at Number 7. [46] Secondly, Leakey’s Case and the notion that the owner of land above a retaining wall assumes responsibility for it is not necessarily reflective of current Australian law, which considers retaining walls as able, in site-specific circumstances, to provide mutual benefits to adjoining land owners, above and below the wall. In this regard, in Yared v Glenhurst Gardens Pty Ltd [2002] NSWSC 11 Austin J has observed: In my opinion, however, the principle in Leakey's case does not lead to the conclusion that in the present case, the defendant has a duty to take all necessary steps at its own expense to retain its land, after the collapse of the retaining wall. There is an analogy with Leakey's case, in that in the present case the defendant's land now overhangs the plaintiff's land and there is a real risk of slippage and consequently further damage to the plaintiff. But the present state of affairs has arisen because of the collapse of the retaining wall, which retained the defendant's land adequately for the whole of the time that the defendant and the plaintiff had been owners and occupiers of their respective properties, until August 1998. The retaining wall was not, as I have said, wholly on the defendant's land. It benefited the defendant by retaining the defendant's soil, and it benefited the plaintiff by maximising the plaintiff's use of her land and protecting the plaintiff from landslip. The problem has arisen because the wall is no longer there to confer these mutual benefits. These considerations suggest that while the defendant has a relevant duty under the Leakey principle, it is not a duty to replace the retaining wall or otherwise retain its land wholly at its own expense. As Megaw LJ said (at 524) in the passage quoted above, it is a duty to do that which is reasonable in the circumstances, and no more or less than that. Citing a passage from the Privy Council's advice in Goldman v Hargrave, his Lordship contemplated (525) that where the hazard arises on a small parcel of land, threatening a neighbour with substantial interests, the owner of the small property should not have to do so much as one with larger interests of his own at stake and greater resources to protect them: if the small owner does what he can and promptly calls on his neighbour to provide additional resources, he may be held to have done his duty. In my opinion those observations, while not directly applicable to the present case, suggest that in an appropriate case the landowner's duty may be to contribute to the cost of remedial work, rather than to pay the whole of the cost. In my opinion this is such case. Here the defendant's duty with respect to the risk of further landslip might be discharged by contributing an appropriate portion to the cost of remedial work, and by allowing access to contractors so that the work can be carried out. Therefore, in my view the plaintiff is not entitled to the mandatory quia timet injunction that she seeks, because the defendant has no duty to carry out the whole of the remedial work alone. Even if the law as stated in Leakey's case required me to recognise such a duty, I would decline for discretionary reasons to make the mandatory order that the plaintiff seeks. The leading authority on final mandatory injunctions is Redland Bricks Ltd v Morris [1970] AC 652 (cf Lawlor v Johnston [1905] VLR 714). The Redland Bricks case indicates that the -- 14 of 17 -- 15 granting of a mandatory injunction is always a discretionary matter (at 655 for Lord Upjohn).27 [47] Finally, it bears observing that the parties are now in agreement that the new fence should be erected on their common boundary. Here, the topography is such that the erection of fence on the common boundary will not be possible unless a new retaining wall is also constructed on the boundary. This is consistent with the usual expectation expressed in the Act that boundary fences should ordinarily be erected on the common boundary;28 as well as the power conferred on the Tribunal by way of s 35(1)(f) of the Act to order ‘any other work to be carried out that is necessary to carry out the fencing work ordered under this section including work for a retaining wall’. Tribunal Determination: [48] The Tribunal determines on the basis of the evidence given by Mr Balanag that the existing cold-formed steel retaining wall is an associated appurtenance, by reason that it was always necessary for the support of the fence,29 yet by reason of its dilapidation through age, adverse influence over time caused by surrounding trees, and an inadequate original construction, the cold-formed steel retaining wall has not achieved that intent. For purposes of s 35(1)(f) of the Act it is necessary to order the replacement of the cold-formed steel retaining wall as part of any fencing works now ordered by the Tribunal. [49] The Tribunal further determines that a timber paling fence is appropriate for the replacement fence, being a style of fence desired by the parties, and that is consistent with a style of fence commonly used in Chapel Hill, and throughout greater Brisbane. [50] Given the evidence before it, the Tribunal determines that the associated retaining wall should be constructed using concrete sleepers and galvanised steel posts, and should be constructed to the relevant Australian standard, which Mr Balanag informs is AS 4678 – Earth Retaining Structures. The Tribunal will order that there be an engineering design specification for the replacement retaining wall. Tribunal Orders [51] Pursuant to the powers conferred on the Tribunal by s 35 of the Act, the Tribunal orders as follows: 1. A new boundary fence and associated retaining wall are to be constructed on the surveyed boundary between Number 7 Atlas Place, Chapel Hill, and Number 130 Fig Tree Pocket Road, Chapel Hill, in accordance with an engineering design specification obtained from a licensed engineer, to be engaged by the Applicant. Obtaining any necessary certification or Council approval for those works is the responsibility of the Applicant. 2. The associated retaining wall is to be constructed in accordance with the engineering design required by Order (1) above, using concrete sleepers and galvanised steel posts, and is to be constructed in accordance with the requirements of the Applicable Australian Standard(s). The boundary fence is to be constructed in timber (comprised by hardwood posts and rails, with treated 27 [2002] NSWSC 11, [107]–[109]. 28 Act ss 12(1), s 20(2). 29 Battiato v Clifton [2025] NSWLEC 1391. -- 15 of 17 -- 16 pine palings with a gap between palings of no more than 5mm), to a height of 1.8 metres. Palings are to be placed on the Eastern-facing side of the new fence. 3. The new boundary fence and associated retaining wall is to be constructed on, or as near to the surveyed boundary as is practically achievable, but no less than 500mm further to the West of the existing timber fence. 4. All vegetation necessary for the construction of the new boundary fence and associated retaining wall is to be removed as part of the fencing works required by these orders. 5. Removal of the existing timber wooden fence on the land at Number 7 Atlas Place and removal of the existing cold-formed steel retaining wall on the land at Number 130 Fig Tree Pocket Road are also fencing works for the purposes of these orders. 6. The costs of any engineering design, council certification, as well as the costs for necessary materials and construction/labour costs for the fencing works, including foundation and drainage, as now required by Orders (1)–(5) above, are to be borne equally (i.e. 50:50) by the Applicant and the Respondents. The costs that must be shared by the Respondents are confined to that portion of fencing works along the shared boundary between the properties and do not extend to any fencing costs beyond either the Northern or Southern boundary of the land at 130 Fig Tree Pocket Road at Chapel Hill. 7. The costs of any necessary preliminary works beyond those contemplated by Orders (4) and (5) above, (including but not limited to any relocation of sheds, garden beds, pool fences, paving, etc), and post-construction remediation or landscaping costs arising after the fencing works required by Orders (1)–(5) above, are to be borne on the basis that the Applicant will pay for any such costs arising at Number 7 Atlas Place, and the Respondents will pay for any such costs arising at Number 130 Fig Tree Pocket Road. 8. Any replacement planting in the vicinity of the new boundary fence and associated retaining wall at the conclusion of the ordered fencing works is to be confined to low shrubbery, or ground covering plants that do not have a root structure that is capable of detrimentally affecting either the new fence, or the associated retaining wall. 9. Within six (6) weeks of obtaining an engineering design (Order (1), above) the Applicant will provide the Respondents with two (2) quotes for the necessary works (Orders (2), (4) & (5) above), and the Respondents are at liberty to select between the provided quotes within 14 days after provision of the quotes. In the event of no response from the Respondents to the provided quotes the Applicant is at liberty to determine which of the two quotes will be accepted. 10. The parties will provide all necessary access upon their land for trades and/or designing engineers to do any works ancillary, necessary or incidental to the performance of these orders. 11. In the event of any non-compliance with these orders by the Respondents the Applicant and her contractors are at liberty, pursuant to s 94 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), to enter upon the land at Number 130 Fig Tree Pocket Road to carry out the necessary -- 16 of 17 -- 17 works upon the giving of at least seven (7) days’ written notice to the Respondents. Any costs incurred by the Applicant in the performance of any works caused by non-compliance with any of these orders by the Respondents is a sum that may be recovered, in full, by the Applicant from the Respondents. 12. The Applicant will bear all of the costs associated with the erection and certification of a fire-rated wall, wholly within the land at 7 Atlas Place Chapel Hill. -- 17 of 17 --