Babbage v Flaxman [2014] QCAT 455

CITATION: Babbage v Flaxman [2014] QCAT 455 PARTIES: Leanne Babbage (Applicant) v Brendan Flaxman (Respondent) APPLICATION NUMBER: MCDO1466-13 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 17 March 2014; 30 May 2014 HEARD AT: Brisbane DECISION OF: Adjudicator Bertelsen DELIVERED ON: 20 August 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. A new dividing fence be constructed on the common boundary between the properties of the parties as follows. 2. Ms Babbage be responsible for and bear the cost of demolition and removal of an approximate 31 metre section of dilapidated wooden paling fencing on the common boundary between the properties. 3. A new colorbond fence be constructed in accordance with the quote of $2,856.00 from Amazing Fencing (Qld) Pty Ltd dated 26 March 2014 (described in this proceeding as the middle section). 4. The fence construction be arranged and paid for by the applicant, Ms Babbage. 5. The fence construction be completed within 12 weeks of the date hereof. 6. Mr Flaxman pay to Ms Babbage the sum of $1,428.00 within 14 days of the completion of the colorbond fence. 7. A new fence be constructed in accordance with the quote of $1,874.40 from Amazing Fencing (Qld) Pty Ltd dated 17 June 2014 for demolition and removal of existing fencing and -- 1 of 7 -- 2 construction of a 1.8 metre high CCA treated pine posts and rails fence along an approximate 24-26 metre section of common boundary abutting the road frontage of the properties (front section). 8. The fence construction be arranged and paid for by the applicant, Ms Babbage. 9. The fence construction be completed within 12 weeks of the date hereof. 10. Mr Flaxman pay to Ms Babbage the sum of $937.20 within 14 days of the completion of the CCA treated pine posts and rails fence. CATCHWORDS: Dividing Fence – common boundary – sleeper retaining wall – prerequisites to construction of dividing fence on common boundary – sections of fence to be replaced – differing considerations – style of fencing common to area in question – adjustment of contributions to fencing to be constructed APPEARANCES and REPRESENTATION (if any): APPLICANT: Leanne Babbage RESPONDENT: Brendan Flaxman REASONS FOR DECISION Application [1] By application filed 22 July 2013 the applicant Leanne Babbage of 10 Dewrang Drive, Pimpama sought contribution from Brendan Flaxman of 8 Dewrang Drive, Pimpama to the construction of 58.6 metres of timber fencing on the 110 metre common boundary with the respondent Brendan Flaxman’s property at 8 Dewrang Drive, Pimpama. Background and Evidence [2] Ms Babbage and Mr Flaxman share a common boundary of approximately 110 metres between their similarly sized 1.5 acre blocks with Ms Babbage’s land being the more elevated of the two. The common boundary is presently serviced by, from frontage to rear, firstly a metal star picket wire mesh fence for some 24.75 metres (front section), a 1.8 metre timber fence for some 33.85 metres (middle section) and then by colorbond panel fencing generally towards the rear of the common boundary (rear section). [3] For part of the common boundary there is a sleeper retainer wall located on Mr Flaxman’s side of the common boundary. It is some 9 to 10 metres -- 2 of 7 -- 3 long is of a maximum height of some 70 centimetres and is generally located along that portion of the common boundary serviced by the current timber fence (middle section). [4] Mr Babbage was concerned that the sleeper retaining wall was dilapidated and that any new fence constructed immediately adjacent to the sleeper retaining wall located on Mr Flaxman’s side of the common boundary would collapse in concert with what she considered was the failing sleeper retaining wall. [5] The fence quote number 687 by Ashleys Fencing dated 2 April 2013 contained two elements one for replacement of the sleeper retaining wall at $3,141 (which Ms Babbage considered ought to be entirely at the cost of Mr Flaxman) and one for demolition and construction of 58.6 metres of 1.8 metre timber fencing at $3,691.80. Ms Babbage wanted Mr Flaxman to pay for a new sleeper retaining wall and half of the fencing cost at $4,986.90 with herself paying for half of the fencing cost at $1,845.90. [6] Ms Babbage attached a further quote number 688 by Ashleys Fencing dated 2 April 2013 incorporating 24.75 metres hi-lo spear top pool type fencing (front section) and 33.8 metres colorbond fencing (middle section) a total of 58.6 metres stating that she would pay the difference between the more expensive quote and quote number 687. [7] In the interim there was a tree dispute between the parties (NDR112-13) determined on 10 February 2014. That involved the removal/pruning of some trees on the common boundary. An NDR agreement was signed and actioned. [8] Hearing of this application was conducted on 17 March 2014 and 30 May 2014 with parties given a further 21 days to file quotes. [9] It appeared from photographic evidence produced at these hearings that the common boundary/fence line was now uninhibited. According to Mr Flaxman a builder had inspected the sleeper retaining wall and found it to be serviceable. Mr Flaxman stated the sleeper retaining wall was some four inches on his side of common boundary; that its condition was good to fair; that if a sleeper needed replacing then he would do that; that he recognised that any dividing fence must have its own foundation and should not in any way be attached to the sleeper retainer wall; that a dividing fence could be constructed on the common boundary without interfering with the sleeper retaining wall. [10] Ms Babbage asserted the sleeper retaining wall to be immediately adjacent to the common boundary; that the photos produced were affirmative of white ant damage and therefore meant that the sleeper retaining wall should be replaced. -- 3 of 7 -- 4 Conclusion regarding the Sleeper Retaining Wall [11] The sleeper retaining wall even if abutting the common boundary was still entirely within Mr Flaxman’s property. Apart from photos of what appears to be an aging sleeper retaining wall there was no evidence that the wall was dilapidated in disrepair or about to collapse. Two photos of sleepers in poor condition were produced but these depicted only ground level single sleepers the condition of which would not in any event affect the integrity of any fence constructed immediately adjacent. [12] The Tribunal is satisfied that the construction/replacement of a sleeper retaining wall for the purpose of structural integrity of any proposed fence is not necessary and does not form part of any consideration of the cost of a dividing fence here. However it goes without saying Mr Flaxman retains responsibility for the upkeep of the sleeper retaining wall such that any failure of new fencing due to failure of the sleeper retaining wall will be at his risk. The 33.8 Metre of 1.8 Metre Timber Fencing (Middle Section) [13] This section of the common boundary is presently serviced by a timber paling fence. The timber fence was established there initially to create privacy between the two residences which occupy roughly the same set back from the road frontage. Photographs indicate this section of fencing to be in a dilapidated condition. Both parties were amenable to the construction of a 1.8 metre timber post, wales and paling fence. Ms Babbage was prepared to pay the additional cost for a 1.8 metre colorbond fence similar to that constructed towards the rear section of the common boundary and costed at $2,856, construction only, pursuant to Amazing Fencing (QLD) Pty Ltd (Amazing Fencing) quote dated 26 March 2014. [14] Ms Babbage’s Ashleys Fencing quote of 2 April 2013 estimated the length of this section to 33.85 metre. Her quote from Amazing Fencing dated 26 March 2014 estimated the length of this section at 31 metres and quoted $1,612 for the construction only of a 1.8 metre high spaced CCA treated paling fence. That same quote made provision for $600 for the demolition and removal of existing fencing. That figure would, as written on the face of the quote, appear to apply to demolition and removal of existing fencing in both the middle and front sections. [15] Mr Flaxman’s quote from W&H Fencing dated 9 April 2014 estimated the length of this section at 30 metres and quoted $2,795 for removal and disposal of 30 metres of existing fencing and installation of 1.8 metre high CCA timber fencing using ‘hardwood posts, pine rails and pails’. Conclusions [16] Whilst there is only a marginal difference between Amazing Fencing 31 metre colorbond fencing quote of 26 March 2014 at $2,856 and W&H Fencing 30 metre 1.8 metre timber fence quote of 9 April 2014 at $2,795 -- 4 of 7 -- 5 the Amazing Fencing quote does not include demolition and removal. There is already a colorbond fence towards the rear common boundary. Although that colorbond fence is not strictly on the common boundary but within Ms Babbage’s property it does have the effect of forming a fence for the rear section of the common boundary. A colorbond fence in the area between the residences would have the effect of enhancing privacy as opposed to a 1.8 metre high timber fence with spaced palings. There is nothing unusual about colorbond fencing here. The adjoining blocks being 1.5 acres each barely qualify as acreage blocks with colorbond fencing being extensively utilised in suburban and semi-suburban acreages in South East Queensland. The installation of colorbond fencing here would not detract from but would more likely enhance the aesthetic appeal of both properties and would probably last longer. Given the imprecise cost of demolition and renewal of the middle section dilapidated fence and the fact that Mr Flaxman is prepared to contribute half the cost of an adequate wooden fence (demolition and removal inclusive) Ms Babbage ought to bear the cost of demolition and removal of the middle section of dilapidated fencing whatever that may be. [17] Otherwise Ms Babbage and Mr Flaxman ought to share equally the cost of a new colorbond fence for this section of fencing pursuant to the quote of Amazing Fencing dated 26 March 2014 ie $1,428 each. If in the meantime Amazing Fencing cost has increased then each party should bear half of any reasonable increase. The 24.75 Metre Star Picket Wire Mesh Fence (Front Section) [18] This section of the common boundary is presently serviced by a metal star picket wire mesh fence. Ms Babbage’s Ashleys Fencing quote of 2 April 2013 estimated the length of this section at 24.75 metres. Her quote from Amazing Fencing dated 26 March 2014 estimated the length of this section at 26.4 metres and quoted $2,960 for the construction only of a 1.2 metre hi-lo spear top aluminium style fencing common to pool areas and similar to that erected on the frontages of both Ms Babbage and Mr Flaxman’s properties. An additional quote from Amazing Fencing dated 17 June 2014 again estimated 26.4 metres and quoted $422.40 for the demolition and removal of the existing star picket fence and construction of a 1.8 metre high CCA treated pine posts and rails at $1,452 a total of $1,874.40. Mr Flaxman’s quote from W&H Fencing dated 9 April 2014 estimated the length of this portion at 24 metres and quoted $2,200 for removal and disposal of existing fencing and construction of a 1.8 metre CCA timber fence. [19] Ms Babbage complained that in October 2011 one of two dogs owned by tenants of Mr Flaxman’s came through this wire fence and attacked her dog causing damage. She stated that this dog was later declared dangerous; that in October 2012 the same dog came through the ‘now termite ridden fence and attacked her and her dog’. [20] Mr Flaxman argued that the star picket wire mesh fence was in any event sufficient for the area; that it is acreage/rural; that this front section needed -- 5 of 7 -- 6 to be a wire fence; that the tree issues would mean a timber or aluminium fence was not suitable and that the parties would be back with further problems within two years; that construction of a wooden paling fence here effectively formed a sanctuary. [21] It was not disputed that the current wire fence is 1.2 to 1.4 metres high; that there was no top or bottom rail associated with the wire mesh. [22] Mr Flaxman produced photographs stating that there was a similar wire fence ‘on the other boundary of the Babbages’. The fence depicted is of wooden post and wooden top rail with wire mesh to ground level, a far more substantial fence then the front section in question. Mr Flaxman also produced photographs of what he termed ‘similar fencing used in our street’. Once again these were of wooden post and wooden top rail fencing with mesh to ground level or at the least mesh fence with wooden posts. Conclusions [23] This section of fencing serves to divide fairly expansive yard areas only. There is no necessity here for any enhanced degree of privacy nor for the construction of a very much more expensive hi-lo spear top aluminium style fence which might be described as a feature fence rather than a utilitarian fence. [24] Timber and colorbond fences are common everywhere in South East Queensland. To say that there may be problems in the future with trees close to or adjacent to a common boundary does not disentitle an owner from prosecuting the right to have a dividing fence constructed at any given time. The purpose of a dividing fence is not necessarily to create a sanctuary as suggested by Mr Flaxman but rather to create a physical boundary such that each owner has unfettered privacy and utility within their land ownership. The star picket mesh fence might be adequate to restrain some animals (but not dogs it appears) but is not in the nature of a fence providing privacy and ensuring utility to an owner. [25] The common 1.8 metre timber fence serves well as a typical common boundary fence in most instances. There is no reason to suggest that would not be the case here. [26] The Amazing Fence quote of 17 June 2014 for demolition, removal and construction at $1,874.40 is the lesser of two otherwise similar quotes and ought to be adopted. Ms Babbage and Mr Flaxman ought to share equally the cost of Amazing Fencing quote of 17 June 2014 for demolition removal and construction of a 1.8 metre high CCA treated pine posts and rails fence at $1,874.40 ie $937.20 each. Orders 1. A new dividing fence be constructed on the common boundary between the properties of the parties as follows. -- 6 of 7 -- 7 2. Ms Babbage be responsible for and bear the cost of demolition and removal of an approximate 31 metre section of dilapidated wooden paling fencing on the common boundary between the properties. 3. A new colorbond fence be constructed in accordance with the quote of $2,856.00 from Amazing Fencing (Qld) Pty Ltd dated 26 March 2014 (described in this proceeding as the middle section). 4. The fence construction be arranged and paid for by the applicant, Ms Babbage. 5. The fence construction be completed within 12 weeks of the date hereof. 6. Mr Flaxman pay to Ms Babbage the sum of $1,428.00 within 14 days of the completion of the colorbond fence. 7. A new fence be constructed in accordance with the quote of $1,874.40 from Amazing Fencing (Qld) Pty Ltd dated 17 June 2014 for demolition and removal of existing fencing and construction of a 1.8 metre high CCA treated pine posts and rails fence along an approximate 24-26 metre section of common boundary abutting the road frontage of the properties (front section). 8. The fence construction be arranged and paid for by the applicant, Ms Babbage. 9. The fence construction be completed within 12 weeks of the date hereof. 10. Mr Flaxman pay to Ms Babbage the sum of $937.20 within 14 days of the completion of the CCA treated pine posts and rails fence. -- 7 of 7 --