Evans and Anor v McNamara [2013] QCAT 80

CITATION: Evans and Anor v McNamara [2013] QCAT 80 PARTIES: Peter Sidney Evans Karen Mary Evans (Applicants) v Leanne McNamara (Respondent) APPLICATION NUMBER: MCDO53-12 MATTER TYPE: Other minor civil dispute matters HEARING DATE: On the papers HEARD AT: Wynnum DECISION OF: John Bertelsen, Adjudicator DELIVERED ON: 14 February 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. A new 31 metre section of colour bond fencing shall be erected on the common boundary between the properties of the parties. 2. The colour bond fence is to be constructed in accordance with the quotation of Terry Calderwood for $2,680.00 dated 27 November 2012. 3. The fence construction is to be arranged by Ms McNamara for the construction of the colour bond fence and is to be completed within three months. 4. Peter and Karen Evans are to pay Ms McNamara the sum of $1,031.00 within 14 days of being notified in writing by Ms McNamara of completion of and payment for the fence. 5. In the event of non compliance liberty to apply. CATCHWORDS: Neighbourhood dispute – dividing fence – trees adjacent to property’s boundary – rural land – -- 1 of 6 -- 2 current state of fence section – jurisdiction of Tribunal in its minor civil dispute capacity Neighbourhood Disputes Resolution Act 2011 APPEARANCES and REPRESENTATION (if any): Applicant: Daryl Robert Evans (Son) for applicants Respondent: Leanne McNamara This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION Applications [1] By application filed 23 December 2011 Peter and Karen Evans sought orders pursuant to the Neighbourhood Disputes Resolution Act 2011 (NDR Act) for: i) An order that an existing fence is a sufficient dividing fence; ii) An order preventing the construction or demolition of a dividing fence without authorisation; iii) An order requiring a dividing fence that was constructed or demolished without authorisation to be removed, modified or rectified. iv) An order that Ms McNamara pay the costs of any removal, modification or rectification of an unauthorised dividing fence. [2] By counter application filed 2 October 2012 Ms McNamara sought orders pursuant to the NDR Act for: i) An order preventing the construction or demolition of a dividing fence without authorisation. ii) An order requiring a dividing fence that was constructed or demolished without authorisation to be removed, modified or rectified. iii) An order that Peter and Karen Evans pay the costs of any removal, modification or rectification of an unauthorised dividing fence. iv) An order for Peter and Karen Evans (initial applicants) to incur all costs to repair the dividing fence and incur all costs for the removal of all vegetation in inappropriate locations too close to the dividing fence to prevent any damage to the dividing fence in the future. -- 2 of 6 -- 3 Background and evidence [3] Peter and Karen Evans are the owners of 127 Fleming Road, Hemmant and Ms McNamara of 131 Fleming Road, Hemmant. The properties have frontages of in excess of 30 metres with a front to rear common boundary of some 120 metres. The dividing fence is of chain wire construction beginning at the frontage for approximately 15 metres then some 30 metres of colour bond fencing followed by chain wire construction for approximately 75 metres to the rear boundary. Peter and Karen Evans property is heavily vegetated with more than 100 species of small and large trees and shrubs all planted and grown in recent years. The mass of vegetation on their property particularly that close to the 120 metre common boundary on the western side abutting Ms McNamara’s open paddock property has been a source of constant friction between the parties at least since 2009 in the context of Ms McNamara’s loss of amenity i.e. leaves and debris spilling over onto Ms McNamara’s property and in terms of this application damage to fencing. The parties have recently been involved in proceedings in the Planning and Environment Court. The conduct of the Brisbane City Council has been called into question with that leading to the involvement of the Ombudsman. [4] On 12 July 2011 the parties entered into an agreement (the agreement) with a view to at least stabilising the ongoing friction between them. Relevantly, pursuant to that agreement, Peter and Karen Evans would collect debris from Ms McNamara’s yard, negotiate in relation to trees too close to the fence line and progressively maintain vegetation along the common boundary over a 12 month plan. Ms McNamara would, once the maintenance plan had started, remove corrugated sheets attached to the existing fence on the common boundary at the time. Both parties would try to resolve any issues first verbally then by putting them in writing. Peter and Karen Evans asserted compliance with the agreement. Ms McNamara asserted non compliance and therefore no requirement to remove the corrugated sheets. [5] In early 2012 Ms McNamara applied to the Tribunal under the NDR Act for an order for the removal or pruning of trees on her neighbours (Peter and Karen Evans – the tree keepers) property. (NDR020-12) [6] It is not necessary to delve into that application or decision in detail. Suffice to say the Tribunal found the Evans’ land to be rural for the purposes of the NDR Act and therefore QCAT had no jurisdiction to hear the application. That is so insofar as the NDR Act applies to trees. [7] The agreement was primarily about a concentration of trees and vegetation on one property and the effect on the adjoining property. The corrugated sheets attached to the chain wire fence at the time were, on Ms McNamara’s assertion, a defensive or containment measure against encroachment. [8] It is not within the jurisdiction of the Tribunal sitting in its minor civil dispute fencing jurisdiction to determine whether that agreement has or has not -- 3 of 6 -- 4 been initially carried into effect. That agreement might well be prosecuted by either party in jurisdictions other than either the Tribunal exercising its ‘tree keeper jurisdiction’ or sitting in its minor civil disputes fencing jurisdiction. The issues of corrugated sheets removal cannot now be severed and determined in this jurisdiction as a stand alone issue. [9] A good deal of time and argument revolved around the agreement and the vegetation issue. Despite the numeracy of orders sought the only other burning fencing issue between the parties was the state of the 30 metre colour bond section of fencing, the need to repair/replace same and at whose cost. [10] The chain wire fence, front and back, was constructed in 2002 replacing a stump and wire fence and is on the correct boundary line. The 30 metre section of colour bond fencing was erected some 20 years ago approximately 4 inches inside Ms McNamara’s property and is adjacent to Ms McNamara’s residence. [11] The chain wire fence, other than the issue of corrugated sheets attached or adjacent to it, at no time featured in terms of repair, replacement or realignment. [12] Ms McNamara asserted that the colour bond section was out of alignment, the bottom rail bowing into her property and with that section otherwise leaning backwards and forwards. She asserted that this was caused by the roots of the trees planted too close to the boundary line by Peter and Karen Evans; that this section was ‘ok’ when constructed. Peter and Karen Evans asserted that there was no evidence the trees were causing this fence section to bow and produced photographic evidence indicating the nearest tree trunk to be 50cm from the colour bond fence at the frontage end and 84cm at the rear end of that fence section; that even taking into account the frontage end gap between the chain wire fence and the colour bond fencing i.e. 17cm it still left a considerable gap; that the colour bond fence was poorly constructed in the first instance and if there was a cause for its current poor state it was that. [13] This assertion was supported by Treescene’s report dated 15 October 2012. Three holes were dug by hand by that entity ‘adjacent to the subject trees/dividing fence footings to remove speculation and identify the presence of tree roots’. Attached photos indicated an absence of tree roots interfering with footings and some footings not being concreted into the ground. [14] Peter and Karen Evans asserted that three colour bond panels out of some 12 were out of alignment; that the majority of panels did not require replacement. Ms McNamara asserted that there were 12 panels, two of which were erected by her and relatively new and that one panel had been damaged by her such that she did not expect Peter and Karen Evans to bear the cost of that panel. -- 4 of 6 -- 5 [15] At the conclusion of the hearing on 22 November 2012 the parties were ordered to furnish one quote each for the repair/replacement of the panel section of fence; to make submissions with respect to the number of panels to be repaired/replaced; that all such material be filed within 21 days; that the application would be finally determined on the papers thereafter. [16] Ms McNamara filed submissions attaching a quote from one Terry Calderwood for the replacement of 13 colour bond panels approximately 31 metres on the boundary line. Mr Calderwood in his correspondence accompanying the quote concluded that to disassemble and reassemble the colour bond section, ‘would not be worth doing due to the age of the material of approximately 20 years’ – that to ‘use this fence again would result in it needing replacing within the next couple of years…’. [17] No submissions were received from Peter and Karen Evans. Conclusions [18] The Tribunal in its minor civil dispute jurisdiction is not empowered to deal with the vegetation issues in dispute between the parties in terms of the agreement of 12 July 2011. Nor is the Tribunal able to adjudicate on the corrugated sheets the subject of further dispute in terms of the same agreement. [19] A new approximately 30 metre section of colour bond fencing ought to be constructed on the correct boundary line between the properties for the following reasons: (i) The existing colour bond fencing is bowing and leaning backwards and forwards. The Tribunal accepts Peter and Karen Evans’ evidence of poor construction in the first instance. (ii) It is approximately 20 years old and nearing the end of its utility. (iii) The third party fencing contractor’s correspondence accompanying his quote makes it clear that it would not be worthwhile fixing the fence. If it was removed, repaired and reinstalled its life expectancy would be ‘a couple of years’. That would most likely result in costs being incurred on two occasions rather than one. (iv) The replacement now represents an opportunity to have the colour bond fencing section constructed on the correct boundary bringing it into alignment with the two sections of chain wire fence which are both on the correct boundary line. Proper fencing on correct boundaries is the primary thrust of the NDR Act appropo dividing fences. (v) There is no reason why new fencing should not be colour bond fencing. That has been the case for 20 years and neither party has -- 5 of 6 -- 6 objected to such construction style on that portion of the boundary line in that time. Apportionment of cost [20] Ms McNamara added two panels in 2010. That was her choice. For the new colour bond fencing to be constructed in an aesthetically pleasing consistent colour it is necessary for all 13 panels to be identical in shape, style and colour. There is no reason why Peter and Karen Evans should now be obliged to contribute to the cost of these two panels. Ms McNamara also admitted liability in respect of damage to one panel. This replacement results primarily from damage on the part of Ms McNamara. [21] The cost of three panels therefore ought be borne by Ms McNamara fully and the remaining 10 panels paid for half and half by each of the parties. The quote at hand is for $2,680.00. The cost of three panels is $618.00. The balance of the quote (10 panels) is $2,062.00. Peter and Karen Evans shall contribute half that cost i.e. $1,031.00. Ms McNamara shall contribute half that cost $1,031.00 plus the cost of three panels i.e. $1,649.00. Orders [1] A new 31 metre section of colour bond fencing shall be erected on the common boundary between the properties of the parties. [2] The colour bond fence is to be constructed in accordance with the quotation of Terry Calderwood for $2,680.00 dated 27 November 2012. [3] The fence construction is to be arranged by Ms McNamara for the construction of the colour bond fence and is to be completed within three months. [4] Peter and Karen Evans are to pay Ms McNamara the sum of $1,031.00 within 14 days of being notified in writing by Ms McNamara of completion of and payment for the fence. [5] In the event of non compliance liberty to apply. -- 6 of 6 --