Body Corporate for Victoria Gardens CTS 19272 v Banner & Ors [2014] QCAT 246

CITATION: Body Corporate for Victoria Gardens CTS 19272 v Banner & Ors [2014] QCAT 246 PARTIES: Body Corporate for Victoria Gardens CTS 19272 (Applicant) v Bradley Banner Lisa-Maree Broadby Cecil Dahl Sharon Dahl Gary Howard (Respondents) APPLICATION NUMBER: MCDO1493-13; MCDO1494-13; MCDO1496-13; MCDO1497-13 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 11 October 2013; 24 January 2014; 3 March 2014 HEARD AT: Brisbane DECISION OF: Adjudicator Bertelsen DELIVERED ON: 4 June 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The four applications are dismissed. CATCHWORDS: NEIGHBOURHOOD DISPUTE – wooden paling fence – adequacy of fence – serviceability and appearance of a dividing fence – construction of dividing fence on other than true common boundary – liability of adjoining owners to contribute – identification of true common boundary Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) APPEARANCES and REPRESENTATION (if any): APPLICANT: Variously Matthew Joosen, body corporate manager; Brett Towner, chairperson; and Cherryl Lanyon-Owen, committee person -- 1 of 7 -- 2 RESPONDENT: Bradley Banner, Lisa-Maree Broadby, Cecil and Sharon Dahl and Gary Howard REASONS FOR DECISION Application [1] By applications MCDO1493-13, MCDO1494-13, MCDO1496-13 and MCDO1497-13 the Body Corporate for Victoria Gardens CTS 19272 of 51- 61 Bowen Street, Capalaba (‘the Body Corporate’) sought contributions from a number of adjoining neighbours for the construction of a colorbond fence encompassing part of the Body Corporates perimeter in the aggregate sum of $8,263.33. The applications consolidated for the purpose of hearing came before the Tribunal on 11 October 2013, 24 January 2014 and 3 March 2014. Background and Evidence [2] The Body Corporate is comprised of 64 lots on a large parcel of land with frontages to Old Cleveland Road East, Capalaba and Bowen Street, Capalaba. By reference to the Body Corporate complex lot plan produced to the Tribunal the four adjoining owners and contributions sought are: a) Application MCDO1493-13 - Bradley Banner. Mr Banner is the owner of 259 Old Cleveland Road East, Capalaba (Lot 3). His rear boundary of 17 meters and his side boundary of 36.6 meters abut the Body Corporate boundary for a total of 53.6 meters. The Body Corporate attached a fencing quote dated 24 April 2013 from Coastal Metal Fencing in the sum of $51,390 to its notice to contribute to fencing. That quote included a breakdown of costs calculating Mr Banners half share of 53.6 metres at $3,417.59. b) Application MCDO1494-13 – Lisa-Maree Broadby. Ms Broadby is the owner of 261 Old Cleveland Road East, Capalaba (Lot 2). Her rear boundary of 17 meters abuts the Body Corporate boundary. The Body Corporate attached the same fencing quote dated 24 April 2013 from Coastal Metal Fencing in the sum of $51,390 to its notice to contribute to fencing. The same breakdown of costs calculated Ms Broadby’s half share of 17 meters at $1,083.92. c) Application MCDO1496-13 – Cecil and Sharon Dahl. Mr and Mrs Dahl are the owners of 263 Old Cleveland Road East, Capalaba (Lot 3). Their rear boundary of 17 meters abuts the Body Corporate boundary. The Body Corporate attached the same fencing quote dated 24 April 2013 from Coastal Metal Fencing in the sum of $51,390 to its notice to contribute to fencing. The same breakdown of costs calculated Mr and Mrs Dahl’s half share of 17 meters at $1,083.92. d) Application MCDO1497-13 – Gary Howard. Mr Howard is an owner of 8 Denison Court, Capalaba (Lot 2 Denison Court). His rear -- 2 of 7 -- 3 boundary of 42 meters abuts the Body Corporate boundary. The Body Corporate attached the same fencing quote dated 24 April 2013 from Coastal Metal Fencing in the sum of $51,390 to its notice to contribute to fencing. The same breakdown of costs calculated Ms Howard’s half share of 42 meters at $2,677.92. [3] The Body Corporate asserted its concern that: a) there be aesthetic appeal and uniformity of fencing for Victoria Gardens; b) the replacement with colorbond fencing was part of the Body Corporates upgrade program; c) white ant infestation of the existing wooden paling fence erected some 18 years prior was apparent and needed to be addressed (rotten in the opinion of the Body Corporate committee and caretaker); d) however it was conceded that in the case of some fencing the need for upgrade was not as immediate as in other cases; e) some adjoining neighbours had already agreed to contribute to a colorbond fence; f) no work had been undertaken in line with the Body Corporates attempt to gain a uniform appearance. [4] The quote from Coastal Metal Fencing did not contain any indication of the state of the existing fencing. There was no quote for a like timber-paling fence forthcoming from the Body Corporate the reason according to the Body Corporate being that a timber fence would attract the same white ant problem that beset the existing timber fence and that a colorbond metal fence would be relatively maintenance free. [5] Messrs Banner, Broadby and Dahl between them argued that: a) their existing wooden rear paling fence was not on the true boundary between their properties and the Body Corporate land; b) the existing fence was at least some 300 mm inside Body Corporate land; c) the block wall variously some four to five feet high and on which the existing fence sits were both built at the time of construction of Victoria Gardens in about 1994; d) the level of the land as it affected these three rear boundaries was built up so as to level the land for the Victoria Gardens complex; e) the block wall was built entirely for the benefit of Victoria Gardens; f) the developer did not consult anybody at the time; g) the four to five foot drop on their side effectively formed a fence anyway; -- 3 of 7 -- 4 h) the existing paling fence served its purpose in any event and it was not rotting away as suggested by the Body Corporate. [6] As it was apparent to the Tribunal at the hearing on 11 October 2013 that the block wall and paling fence may well not be on the true common boundary the applications were ‘adjourned for eight weeks for the Body Corporate to obtain a survey of the boundary line’. [7] Neither at hearing subsequently on 24 January 2014 nor on 3 March 2014 did the Body Corporate produce any survey. However Ms Broadby produced a survey of her rear boundary Lot 2, 261 Old Cleveland Road East. That survey identified Ms Broadby’s true rear boundary as well as identifying that the besser brick wall (block wall) was inside Body Corporate land by 350 mm at the southern end and by 540 mm at the northern end of her Lot 2. Additionally the survey stated that the ‘besser brick wall appears to continue offline in both directions’. [8] The Body Corporate produced a statement from Reflex Fencing and Patios dated 15 February 2014 stating an inspection of the existing fence as it affected all of Messrs Banner, Bradley, Dahl and Howard found the timber to have termite damage throughout, that incorrect nails had been used and that the fence was unstable in many places. The statement suggested that repair was not an option. [9] Ms Broadby produced a statement from Subdivision & Construction Management with respect to the existing rear boundary fence of 261 Old Cleveland Road East. That statement indicated the fence to be in good order absent rot or termite damage; that the fence was secure and intact; that while the top of the fence palings may have been weathered it was only cosmetic; that the fence being sound replacement was not warranted anytime soon. Rear Boundary 259, 261, 263 Old Cleveland Road East (approximately 51 meters) [10] The Body Corporate, Mr Banner, Ms Broadby and Mr and Mrs Dahl all produced photographs in abundance in support of their contentions as to the state of the existing fence. [11] The Body Corporate asserted that the statement from Reflex Fencing and Patios together with photos in support made it clear that a new fence was warranted. No evidence was produced by the Body Corporate as to whether the existing fence was or was not on the true common boundary. [12] Mr and Mrs Dahl pointed to two large photos looking south from the common corner of Mr and Mrs Dahl’s and Mr Howard’s properties. These photos depict a steel post which Mr and Mrs Dahl asserted was correctly on the common boundary (and confirmed by Mr Howard), such steel post being some 800 mm from the existing wooden paling fence at what otherwise ought to be a seamless juncture between Mr Howard’s property, Body Corporate land (unit 56) and Mr and Mrs Dahl’s property. -- 4 of 7 -- 5 [13] Mr and Mrs Dahl also produced a batch of 16 large photos depicting in particular what they asserted was the reasonable state of the existing rear paling fence. [14] Ms Broadby produced her survey from Site Surveys of Redhill as well as a batch of some 32 photos (some repetitive) one of which depicted a steel post with a marker peg adjacent to it on which were printed the words ‘corner is steel post’. These are located at the northern end of Ms Broadby’s rear boundary. The concrete edging depicted in photos was historically thought to be the true boundary. Ms Broadby asserted that the existing paling fence was adequate and served its purpose. [15] Mr Banner asserted the block wall and paling fence at the rear of his property were well within Body Corporate land. He did not think the paling fence needed replacing producing photographs in support of his contention that the paling fence was in serviceable condition. Mr Banner also produced a quote from Bay Fencing for both colorbond replacement of his 17 meters rear boundary at a total cost of $1,764 and for timber at $1,404.50. Conclusions [16] The survey plan produced by Ms Broadby makes it clear that the block (besser brick) wall is variously 350 mm at the southern end to 540 mm at the northern rear end of her property within the Body Corporates land. From the totality of photographic evidence it is clear the block wall itself is straight. By the time the wall reaches the northern end of Mr and Mrs Dahl’s property it is some 800 mm within Body Corporate land. The totality of photographic evidence depicts the paling fence as perhaps not the most aesthetically pleasing but certainly serviceable ie it is upright, generally intact though weathered. [17] Messrs Banner, Broadby and Dahl did not consider that they should have to contribute to a new colorbond fence where the proposed colorbond fence is on Body Corporate land well inside the true common boundary. In this they are right. If the Body Corporate wants to construct a new colorbond fence on its own land (and by any measure in this instance well within its own land) then it is quite entitled to do so. However there is no basis then for demanding any contribution from these three owners. There was never any proposal by the Body Corporate to place the fence on the true common boundary. Without taking the block wall out to the true common boundary the construction of any fence of any sort to the maximum of 1.8 meters on the true common boundary would be superfluous for the reason that any such fence would barely rise above the level of the existing block wall. From the Body Corporates perspective there would not be a fence in reality. The Body Corporate has no right to claim contribution to a new colorbond fence that is not a dividing fence. -- 5 of 7 -- 6 Mr Banner side boundary – 259 Old Cleveland Road East (approximately 40 meters) [18] Mr Banner additionally shares a common side boundary of roughly 40 meters with the Body Corporate. It runs east/west on his southern side boundary to Old Cleveland Road East. This boundary is serviced by a chain wire fence originally constructed according to Mr Banner at the time his house was built. He asserted his chain wire fence to be in line with an existing surveyors peg; that the paling fence running parallel to the chain wire fence for the length of the common boundary bar 10 to 12 meters where it stops short of the Old Cleveland Road East frontage, was only constructed at the time the Victoria Gardens development was undertaken. A batch of photos produced by Mr Banner depicted immediately next to the chain wire fence on the Body Corporates side and abutting the Body Corporate paling fence a 150 mm diameter storm water pipe running almost the length of his boundary but simply stopping and fully exposed approximately some 10 meters from the Old Cleveland Road East frontage and some two meters beyond where the Body Corporate paling fence stops. [19] The Body Corporate contended that the chain wire fence was in disrepair. Mr Banner contended at final hearing that some repairs were necessary and that same had been attended to. Mr Banner’s photos depicted a chain wire fence in reasonable repair. There were no photos produced by the Body Corporate specifically identifying the Body Corporate paling fence as failing. Conclusions [20] A chain wire fence was originally constructed at the time Mr Banner’s house was built prior to development of Victoria Gardens. The chain wire fence aligns with a marker peg identifying the common boundary. The Body Corporate paling fence appears to have been erected in the same manner as the paling fence at the rear of Mr Banner’s property, 261 and 263 Old Cleveland Road East properties namely that it was convenient to simply construct within the Body Corporate land an acceptable fence at the time. This appears to be particularly so given the installation of the storm water pipe with the paling fence simply erected next to it. If it were to be argued that the paling fence was erected by the Victoria Gardens developer on the true boundary that means the storm water pipe has been installed on Mr Banner’s land and would undoubtedly constitute an encroachment. [21] The Tribunal is satisfied that on balance the chain wire fence is on the true boundary and that it adequately serves its purpose. There is no obligation for Mr Banner to contribute to any change at this point. Mr Howard rear boundary 8 Denison Court (approximately 42 meters) [22] Mr Howard shares a common boundary of some 42 meters with the Body Corporate. It runs east/west as his southern side rear boundary. -- 6 of 7 -- 7 Mr Howard has a pool in his backyard and his pool fence on the common boundary he asserts serves as a dividing fence and is in good condition. He considered the existing paling fence to be in reasonable repair; that some work and paling replacement was necessary but that such could be attended to as minor repairs; that he was willing to contribute to any such repairs. He produced some 12 large photos in support of his contention that the current paling fence is adequate and that with some attention could continue to serve its purpose. [23] The 12 photos produced depicted the paling fence running the length of this common boundary and constructed immediately adjacent to the besser block wall Mr Howard asserted to be on the true common boundary (block wall and posts with spear topped palings in the pool area). [24] No survey or other identifier of the true common boundary was produced by either Mr Howard or the Body Corporate. Seven large photos produced by the Body Corporate depicted the paling fence in need of some repair but generally upright and intact. Conclusions [25] The paling fence is in generally the same condition as the paling fence presently servicing 259, 261 and 263 Old Cleveland Road East though perhaps in need of some repair. As it appears to be of the same style and age it also was probably constructed at the time the development of Victoria Gardens was undertaken. Once again the paling fence appears to have simply been constructed behind and adjacent to Mr Howard’s rear boundary block wall. It is reasonable to infer that the Body Corporate paling fence was probably erected in the same manner as the paling fence servicing the rear of 259, 261 and 263 Old Cleveland Road East and the southern boundary of 259 Old Cleveland Road East namely that it was convenient to simply construct within the Body Corporate land an acceptable fence at the time. Even if it could be construed with certainty that this paling fence is on the common boundary the Tribunal is satisfied that the paling fence does not require replacement at this point. Particularly by reference to the photographic evidence the Tribunal concludes it requires some minor repairs only. -- 7 of 7 --