Creighton v Skull [2012] QCAT 652

CITATION: Creighton v Skull [2012] QCAT 652 PARTIES: Anette Robyn Creighton v Michael Skull APPLICATION NUMBER: MCDO177-11 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 20 November 2012 HEARD AT: Ipswich DECISION OF: Paul Favell, Member DELIVERED ON: 16 December 2012 DELIVERED AT: Brisbane ORDERS MADE: The respondent is ordered to pay the applicant $2,200 by 4pm 30 January 2013. CATCHWORDS: Minor civil dispute – dividing fence claim – dividing fence removed without authorisation – whether jurisdiction – order for damage done as a result of fence removed Neighbourhood Disputes Resolution Act 2011 APPEARANCES and REPRESENTATION (if any): APPLICANT: Anette Robyn Creighton RESPONDENT: Michael Skull REASONS FOR DECISION [1] Anette Creighton and Michael Skull are neighbours. Mrs Creighton travelled overseas in October 2011. When she returned she found that an existing chain wire boundary fence ranging in height from 4 foot on 60 percent of the boundary to 6 foot on the remaining 40 percent of the boundary had been removed. [2] A 1.8 metre new wooden fence had been constructed on the land owned by Mr and Mrs Skull. Mrs Creighton regards the new fence as inferior and claims she was stunned and traumatised by the erection of the new fence behind her back and the realisation that someone trespassed on her -- 1 of 5 -- 2 property. She also complains of what she describes as extensive damage to her property. [3] In her application Mrs Creighton has set out the following as the orders she seeks from the Tribunal: a) An order about the line on which fencing work is to be carried out; b) An order that the fencing work be carried out; c) An order about the kind of material to be used in the fencing work; d) An order about the amount the parties have to contribute or pay for fencing work; e) An order about which part of the dividing fence is to be constructed or repaired; f) An order about when the fencing work is to be done; g) An order for compensation for damage to or destruction of a dividing fence caused by the respondent or someone on their land with their consent; h) An order for payment of the filing fee for this application. [4] The applicant also seeks orders: a) requiring a dividing fence that was constructed or demolished without authorisation to be removed, modified or rectified; b) the respondent pay the costs of any removal, modification or rectification of an unauthorised dividing fence. [5] Both sides have provided full explanations and submissions. [6] The applicant complains of extreme damage done to property which she set our in her application. The damage included a trampled garden, uprooted bromeliads, pots relocated, creepers hacked, and a damaged watering system. There was also a 28cm gap between the fence and the garden and nails sticking through the fence. Plastic strips which had been placed to keep dogs out of the applicant‟s yard had been removed. [7] The applicant provided a quote in the sum of $2,200.00 to fix much of the damage complained of and to rectify defects. [8] There was photographic evidence provided of some other matters complained of. The applicant also provided a quote for $2,398.00 to paint the newly constructed fence. -- 2 of 5 -- 3 [9] An identification survey was provided. It shows the location of the newly constructed fence as being on the respondent‟s property. It also shows a timber framed shade structure on the applicant‟s land partly overhanging the respondent‟s land. A letter from the surveyors confirms the fence has been built slightly away from the boundary. [10] No notice to fence was given by any party. [11] The Neighbourhood Disputes Resolution Act 2011 („the Act‟) is applicable. [12] Section 7 provides that, “a sufficient dividing fence is required between 2 parcels of land if an adjoining owner requests a dividing fence.” [13] Section 7 further provides, “generally neighbours must contribute equally to the building and maintaining of a sufficient dividing fence.” [14] The Act encourages neighbours to attempt to resolve the dividing fence issue informally but if it can not be so resolved the dispute may be taken to QCAT. [15] Section 11 defines the meaning of a “fence” and section 12 defines the “dividing fence” as a fence on the common boundary of adjoining properties. [16] Section 13 defines “sufficient dividing fences for 2 parcels of a residential land” as between a minimum of 0.5m and a maximum of 1.8m in height and consisting substantially of a prescribed material, or if QCAT decides the dividing fence is a sufficient dividing fence. [17] Section 13 provides that in Chapter 2 (the dividing fences chapter) the existence of a fence other than a dividing fence on adjoining land must not be taken into account in deciding whether there is a sufficient dividing fence. Here, as no notice to fence has been given the Tribunal does not have the jurisdiction to order the construction of a dividing fence. [18] “Prescribed material” is set out in section 13 and includes “wood, including timber palings and lattice panels”. [19] Sections 14 and 15 defines “owner of land”, “adjoining land owner” and “adjoining owners”. There is no issue in this application concerning these matters. [20] Section 20 provides that “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.” [21] Section 20(2) provides that if carrying out fencing work (defined in section 16) includes construction of a sufficient dividing fence the fence must be constructed on the common boundary other than to the extent it is impractical to do so because of natural physical features. -- 3 of 5 -- 4 [22] However, section 30(2) requires the owner to give the adjoining owner a notice to contribute under Division 2, if the owner wants an adjoining owner to contribute. [23] I find that prior to removal there was a sufficient dividing fence. It was removed without consent. [24] Section 39 allows the applicant to apply to QCAT for orders because the sufficient dividing fence was removed. In my view, however, it does not give me jurisdiction to order the removal of a fence which is not a dividing fence. [25] A dividing fence on the common boundary is owned equally by the adjoining owners (section 19) and as such should not have been removed without consent or an order. [26] Section 26 applies if a dividing fence is destroyed by a deliberate act of an owner of land or a person who has entered the owner‟s land with the express consent of the owner. In my view a dividing fence has been destroyed by a deliberate act of the respondent. That being so, section 26(2) requires the respondent to restore the dividing fence to a reasonable standard having regard to its state before the damage or destruction. [27] The respondent has not so restored the fence but rather constructed a fence (which by definition is not a dividing fence) on their land. [28] In such circumstance the adjoining owner (the applicant here) may give the owner a notice under section 31 or carry out urgent fencing work. That has not occurred here. [29] If a notice under section 31 had been given by the applicant the jurisdiction of the Tribunal would have been enlivened. [30] However, because no such notice was given there is, in my view, no jurisdiction in the Tribunal to make orders requiring the now demolished dividing fence to be constructed under section 31 or section 30(3) and 31. [31] However section 35(1)(i) allows QCAT “for an application in relation to fence work for a dividing fence“ to decide and order “the amount of compensation payable to an adjoining owner for damage caused by another adjoining owner or a person mentioned in section 26(1)(b).” [32] Further section 39 allows an application to be made to QCAT when a dividing fence has been demolished without authorisation and QCAT has a discretion to make an order requiring the owner (here the respondent) to rectify the fence and bear the costs of the removal or rectification. [33] I have been made aware of the reasoning of the respondent in removing the dividing fence and building a new fence and at least in part that reasoning is reasonable. However, the respondent did remove a dividing fence without consent and caused some damage to his neighbour. The dangerous aspects of the fence should be fixed and the protruding nails -- 4 of 5 -- 5 removed. It is unfortunate the neighbours did not co-operate to resolve the concerns of both sides. [34] Taking into account all of the evidence provided and the submissions made, in my view it is not reasonable to order a dividing fence to be replaced. [35] It is, however, reasonable and just to order the respondent to pay the applicant the amount of the quote produced to rectify damage to her property and rectify some aspects of the deficiencies in the new fence. [36] The respondent is ordered to pay the applicant $2,200 by 4pm 30 January 2013. -- 5 of 5 --