Duthie v Prince [2014] QCAT 177

CITATION: Duthie v Prince [2014] QCAT 177 PARTIES: Mr Gavin Duthie and Mrs Ruth Duthie (Applicants) v Mr Scott Prince and Mrs Kristy Prince (Respondents) APPLICATION NUMBER: MCDO438/13 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 20 August 2013 HEARD AT: Southport DECISION OF: Adjudicator Trueman DELIVERED ON: 20 January 2014 DELIVERED AT: Southport ORDERS MADE: 1. The Applicants application is dismissed. 2. The Applicant pays to the Respondents the sum of $2,138.00 being one half of the cost of the dividing fence within fourteen days. CATCHWORDS: Dividing Fence Dispute – Notice to Fence issued to Respondents – where agreement reached about construction of dividing timber fence – where dividing fence built on retaining wall – where fence height more than 2 metres as agreed – where orders sought to reduce height of fence or replace with brick fence – Counter application by Respondents Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 Queensland Civil and Administrative Tribunal Act 2009 Queensland Civil and Administrative Tribunal Rules 2009 APPEARANCES and REPRESENTATION (if any): APPLICANT: Gavin and Ruth Duthie RESPONDENT: Scott and Kristy Prince REASONS FOR DECISION -- 1 of 8 -- 2 Application [1] By application filed 4 June 2013 the applicants Mr Gavin and Mrs Ruth Duthie are the owners of 4 Garden Grove Carrara and seek orders that the current dividing fence be modified by Mr and Mrs Prince by removing part of the wooden fence so as to reduce the height, or in the alternative the fence be removed and a new fence be constructed from bricks. [2] Mr and Mrs Prince are the owners of 6 Garden Grove Carrara. They filed a Response and counter application on 8 August 2013. They seek orders that Mr and Mrs Duthie pay them the sum of $2,138.00 being one half of the cost of the newly constructed timber dividing fence. They also seek orders that Mr and Mrs Duthie pay the costs for a qualified builder to reinstate timber palings on the fence that they cut and removed. Facts and Evidence [3] Mr and Mrs Prince demolished an existing house on their land at Garden Grove by way of Gold Coast City Council (“Council”) approval on or around February 2012. At the time there was already an existing brick boundary fence. The Prince’s intended to construct a new home on their land. The Council provided conditional approval to build subject to raising the level of the land so as to comply with new Flood Level Policies. This required raising the level of the height of their land by around 880 mm. As a result of raising the level of the land Mr and Mrs Prince were required to construct a retaining wall on the western boundary side of their property, the side that adjoins Mr and Mrs Duthie’s property. [4] Mr and Mrs Prince claim that their builder inspected the existing brick boundary fence and noted that it was defective and needed replacement. They allege that the builder informed them that a new retaining wall would benefit both properties. A quote was given to them for the works at a cost of $5,470.00. [5] Mr Prince said on or around October 2011 he and his builder approached Mr and Mrs Duthie and explained to them that there was a need to demolish the existing fence due to its defective state, that council required Mr and Mrs Prince to raise the level of their land by 840mm and that there was a need to construct a retaining wall along the boundary and build a new fence. During the discussion Mr Prince said that Mr Duthie requested that the builder should construct a brick core filled retaining wall and brick fence along the boundary line. Mr Prince said that the quote for such a fence was approximately $30,000.00 being $13,610.00 for the retaining wall and $16,390 for the brick fence. Mr Prince said he gave those quotes to Mr and Mrs Duthie. [6] Mr Prince said that the Builder gave detailed information to Mr and Mrs Duthie about the height required for the retaining wall. Mr Prince said at the meeting Mr and Mrs Duthie advised him that they would not be contributing to the cost of the retaining wall and they would only contribute to half the cost of a new fence. Mr Prince said Mr and Mrs Duthie also advised him that if during construction that if the builder caused damage to their property they would seek damages. -- 2 of 8 -- 3 [7] Mr Prince said after the threat by Mr Duthie of damages he instructed his Solicitor to issue a Notice of Fence to ensure the procedures were followed correctly with his neighbours. [8] Mr Prince stated that on or around 30 November 2011 his solicitor sent a letter1 advising that Mr and Mrs Prince withdrew any previous unaccepted offers regarding the retaining wall and fencing and issued a Notice to fence2 to Mr and Mrs Duthie. [9] The Notice to Fence states that the fence would be constructed of “pine palings 1800mm high..rail capping…fixed to the top of the retaining wall.” Mr Prince stated that Mr and Mrs Duthie were always informed and well aware of the fence height and construction methods. [10] On or about 27 December 2011 Mr and Mrs Duthie signed and returned the Notice to Fence and wrote in their own hand at page 3 “1.8 timber fence as quoted to be erected above retaining wall”. [11] Mr Prince said that Mr and Mrs Duthie did not want to proceed with a brick fence due to the high costs. He said that at all times they were aware of the fence height and materials to be used and consented to the erection of the fence pursuant to the quotation. [12] Mr Prince said that “on or around February 2012 his Builder demolished the existing fence” and later informed him that there were “pipes and other material under the footings and removal would likely cause damage to the Duthie’s property and that the existing footings were in substantial disrepair as they were only 200mm deep which were not deep enough to support an 800mm retaining wall plus fence on top of that”. [13] Mr Prince said he then informed Mr and Mrs Duthie of the builders’ findings and his opinion regarding the footings. Mr Prince said he then agreed to construct the footings for the retaining wall on his land and not on the boundary fence line so as to minimise any potential damage to the Duthies’ property and sacrificing some of the use of his land. [14] Mr Prince said Mr Duthie wrote to his solicitor in an email on 5 March 20123. In that email Mr Prince said effectively that Mr Duthie withdrew his consent to the proposed works. Mr Prince said that his solicitor telephoned Mr Duthie regarding his email and as a result of an agreement that was reached his solicitor wrote a letter on 27 March 20124 to the Duthie’s confirming their proposal and agreement. That correspondence specifically refers to Mr Duthie agreeing “with the proposed construction of the retaining wall and boundary fence as suggested by our clients and the Adenbrook Homes and that you withdrew your email of 5 March 2012.” 1 Annexure ‘SP2’ to Affidavit of Mr Prince sworn 15/8/2013 contained in bundle of documents marked “Exhibit 1”. 2 Annexure ‘SP2’ to Affidavit of Mr Prince sworn 15/8/2013 contained in bundle of documents marked “Exhibit 1”. 3 Annexure ‘SP3’ to Affidavit of Mr Prince sworn 15/8/2013 contained in bundle of documents marked “Exhibit 1”. 4 Annexure ‘SP3’ to Affidavit of Mr Prince sworn 15/8/2013 contained in bundle of documents marked “Exhibit 1”. -- 3 of 8 -- 4 [15] Mr Prince said that the retaining wall was constructed and completed on or about mid April 2012. A timber fence was then erected in accordance with the agreement reached between the parties. [16] Mr Prince said that he was informed that Mr Duthie had contacted the Council some time in July 2012 and had requested the Council demand the Princes reduce the fence height to be no more than 1800mm measured from the ground level on Mr Duthie’s property. Mr Prince stated that he was served with a Show Cause Notice5 issued to him by Council [17] Mr Prince said as a result of the Notice he entered discussion and negotiations with Council, an architect and the Duthie’s in an attempt to resolve the dispute. Mr Prince said that it was at this stage that the Duthie’s trespassed by entering upon their land and cut down fence palings. [18] Mr Prince said that Mr Duthie cut the fence palings down despite being warned by his solicitor in a letter dated 30 March 2012 not to cut the fence or enter upon their land. Mr Prince said that Mr Duthie caused wilful damage to his property. [19] Mr Duthie stated that he initially agree to the construction of a dividing fence but withdrew his consent and issued his own Form 2 Notice to Fence dated 27 March 2012.6 He conceded that he and his wife did sign a From 2 Notice to Fence issued by the Princes and dated 27 December 20117. [20] Mr Duthie said that he was presented with a quote from the Princes’ builder for the cost of a brick fence and that his cost would have been about $15,000.00. He said he preferred a brick fence and was not happy with the timber paling fence. [21] Mr Duthie agreed that he did sign a Form 2 Notice to fence that the Princes sent to him, “in good faith”. He said he did not know how high the retaining wall would be and that he thought the timber paling fence would be 1.8 metres high. Mr Duthie said that he did not require a retaining wall on his land as he was not required to “fill his property”. [22] Mr Duthie conceded that when the original brick fence was demolished it was “found that the fence footings were under our property” and the removal of the footing would have caused damage to their property. Mr Duthie said that as the retaining wall had to be moved away from the boundary onto the Princes’ property that there had been a “material change” to the original agreement and that Mr Duthie said “the agreement was no longer valid”. Mr Duthie said he had not consented to the change of the location of the retaining wall and after attempts to contact the Princes they issued their own Notice to Fence requesting the erection of a brick fence to be erected on the boundary. 5 Annexure ‘SP4’ to Affidavit of Mr Prince sworn 15/8/2013 contained in bundle of documents marked “Exhibit 1”. 6 Form 2 dated 27 March 2013 attached to Application for minor civil dispute–Dividing Fences on 4 June 2013. 7 Form 2 dated 27 December 2011attached to Application for minor civil dispute–Dividing Fences on 4 June 2013. -- 4 of 8 -- 5 [23] Mr Duthie said he was shocked at the height of the fill that was used to build up their neighbours’ property and estimated it to be around “1 to 1.2 metres over the whole site”. He said “with a 1.8 metres high timber fence on top of the retaining wall the overall height is 2.8 metres.” Mr Duthie said that the fence is “highly visible from the street, devaluing out home.. not in keeping with fences in the area…is not aesthetically pleasing…gives the feeling of being imprisoned and ….is affecting our state of mind”. [24] Mr Duthie said he has been in “constant contact with the council and after 15 months they advised they can not assist.” Mr Duthie said that the Council advised him that “if the Prince’s applied for a relaxation it would most likely be approved on the grounds of privacy and the original fencing agreement.” [25] Mr Duthie said he was only requesting a section of fence, of “approximately 14 metres, be lowered in height to be in keeping with the area and to give him and his wife peace of mind”. [26] Mr Duthie said the original fencing agreement was “void” and that he seeks the fence be “lowered to be in line with Councils own policy of a fence to be no higher than 2 metres above natural ground level”. Relevant Considerations [27] In this case I must consider the powers under the relevant legislation and the orders that can be made. The relevant legislation is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. That states that a dividing fence means a fence on the common boundary of adjoining lands.8 However a dividing fence can be a fence constructed on a line other than the common boundary if it is impracticable to construct a fence entirely on the common boundary of the adjoining lands because of natural physical features.9 [28] The tribunal must consider if the dividing fence is a sufficient dividing fence. A dividing fence is a sufficient dividing fence if it is between a minimum of 0.5m and a maximum of 1.8m in height and consists of substantially prescribed material.10 [29] The tribunal may find that the adjoining owners agree that the dividing fence is a sufficient dividing fence or the tribunal can deem that the fence is sufficient.11 The fence must be constructed with prescribed materials12. [30] The tribunal can order that fencing works are performed and that includes design, construction, modification, replacement, removal or repair.13 [31] When making orders for the construction of a dividing fence the tribunal must have regard to and consider that adjoining owners are each liable to contribute equally to carrying out fencing work for a sufficient dividing fence.14 8 Neighbourhood Disputes ( Dividing Fences and Trees) Act 2011 s 12(1). 9 Ibid s 12(2)(a). 10 Ibid s 13(1). 11 Ibid s 13(1)(c). 12 Ibid s 13(3). 13 Ibid s 16. -- 5 of 8 -- 6 [32] The tribunal must also have regard to any Agreement reached between the parties for fence works including any Agreement to contribute for fencing works.15 [33] The tribunal can make orders preventing unauthorised modification or demolition of a dividing fence16 or for a dividing fence to be reinstated, modified or rectified after unauthorised works have been performed to the fence.17 Respondents Counter Application [34] This is a minor civil dispute matter and a claim that is the subject of a dispute under the Neighbourhood Dispute (Dividing Fences and Trees) Act 2011.18 A respondent to a claim may make a counter application except for minor debt claim matters.19 The counter application made by the Princes must be made in the approved form and served upon the Duthies.20 Findings [35] Having considered all of the evidence I find that Mr Duthie did not withdraw his consent to construct the dividing fence subject to an agreement reached between the parties on 27 December 2011. I find that events occurred whereby: a) On 27 December 2011 the parties reached agreement for a dividing fence and an agreement was signed by Mr and Mrs Duthie; b) In February 2012 the fence was demolished; c) In February 2012 disrepair of footings were discovered; d) On 5 March 2012 the Duthies wrote to the Princes’ solicitors and withdraw their offer to pay half the cost of a wooden paling dividing fence; e) On 7 March 2012 the Princes’ solicitors telephoned the Duthies to discuss fence issues in response to the 5 March 2012 email; f) On 27 March 2012 the Princes’ solicitors wrote to the Duthies confirming discussion by telephone and that agreement had been reached to complete the fence construction as proposed by Adenbrook Home Builders and Mr Duthie withdraws his email of 5 March 2012; g) Mid April 2012 the retaining wall was completed and the fence erected in accordance with the Agreement between parties. I find that while Mr Duthie did send an email to the Princes’ lawyer withdrawing consent on 5 March 2012 the correspondence trails after that date leads me to conclude that Mr Duthie withdrew his email of 5 March 2012 14 Ibid s 21. 15 Ibid s 31. 16 Ibid s 38. 17 Ibid s 39. 18 Queensland Civil and Administrative Tribunal Act 2009 s 12(4)(g). 19 Queensland Civil and Administrative Tribunal Rules 2009 s 48. 20 Queensland Civil and Administrative Tribunal Rules 2009 s 50. -- 6 of 8 -- 7 and conceded the fence construction to continue and his agreement to contribute to the costs. [36] I find that the Fence Agreement of 27 December 2011 is not void and is therefore valid. I find that the dividing fence can be on a line other than the boundary and in this case the fence was constructed on the Princes’ land, being a line other than the boundary, and was constructed in that location, with the consent of all parties. I find that some fences in the area are constructed of timber, that the parties agreed to the fence being constructed from timber and I find that a timber paling fence is a “sufficient dividing fence”. [37] I find that Mr and Mrs Duthie’s claim is unmeritorious. I am not satisfied that the evidence would support a finding that the Princes’ be required to undertake fencing works to modify the current fence to reduce the height. I find that the Duthies agreed to the type of fence, the method of construction and the height of the fence. I find that there was no evidence presented to the tribunal by them that would warrant an order that the Princes be required to reduce the height of the fence. I am not persuaded it would be appropriate, having deemed the fence sufficient, that there is no need to have the timber fence removed and replaced with a brick fence. [38] I find that the Gold Coast City Council has investigated the fence dispute between the parties and whilst a Show Cause notice was initially issued to the Princes, it was later withdrawn by way of letter dated 16 August 201321. [39] In cases where a counter application is made for a minor debt claim the application would be dismissed as a counter claim cannot be made in response to an application for such claims.22 However, in this case, the response or counter claim by the Princes is made to a claim relating to a dispute regarding a dividing fence. The Princes counter claim is nothing more than a request for payment of funds that are equal to one half of the cost of the dividing fence, which was agreed too in any event. I find that the counter application meets the relevant requirements in that it was made in the approved form and served upon the relevant persons in relation to whom the counter-application was made. [40] While I am satisfied the paling dividing fence has been constructed in accordance with an agreement reached between the parties, I am not persuaded that the Duthies have provided evidence that would require an order that the Princes cut their timber fence palings to a reduced height. I find that the fence was constructed at the requisite height and materials pursuant to the parties agreement dated and signed by the Duthies on 27 December 2011. [41] I find that the application by the Princes to require the Duthies to replace the fence palings they unilaterally removed from their side of the fence has some merit. The Duthies agreed to the height of the fence, they signed an agreement to contribute to fencing works and the works were completed. The Duthies have made unauthorised works and the Princes are entitled to 21 Annexure ‘SP5’ to Affidavit of Mr Prince sworn 15/8/2013 contained in bundle of documents marked “Exhibit 1”. 22 Queensland Civil and Administrative Tribunal Rules 2009 s 48(3). -- 7 of 8 -- 8 seek orders from the tribunal that the Duthies rectify the fence to the original condition it was in after initial construction. The photographic evidence23 is clear that the palings removed by the Duthies do not significantly impact on the Princes property. The removed palings do cause some privacy issues in that there are large gaps in the fence. It is also noticeable that the fence at the front of the parties’ property is different from the fence along the rest of the boundary. The fence has been built as a neighbour friendly fence and by the Duthies removing palings on their side has resulted in large gaps along the fence line. I find that the missing palings and gaps in the fence are more an aesthetic issue and do not effect the structural integrity of the fence. I find that if the Princes object to the way the fence currently looks they would be at liberty to place more palings on their side over the gaps and reduce the privacy issue. [42] I find it unreasonable to order that Mr and Mrs Duthie reinstate the palings on their side of the fence. I find that Mr and Mrs Duthie must make payment for one half of the cost of the paling fence to Mr and Mrs Prince. [43] I am persuaded that in this case there be no order as to costs. Orders That the Applicants application is dismissed. That for the Respondents Counter Application the Applicant must pay to the Respondents the sum of $2,138.00 being one half of the cost of the dividing fence within fourteen days. 23 Annexure ‘SP7’ & ‘SP8’ to Affidavit of Mr Prince sworn 15/8/2013 contained in bundle of documents marked “Exhibit 1”. -- 8 of 8 --