Blackshaw & Evans v Campbell - [2016] ACAT 80

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BLACKSHAW & EVANS v CAMPBELL (Civil Dispute) [2016] ACAT 80

XD 323/2014
Catchwords: CIVIL DISPUTE – fencing dispute – direction that contractors may enter premises to conduct work

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 74

Common Boundaries Act 1981 ss 4, 22,

Tribunal: Senior Member C Chenoweth

Date of Orders:  21 July 2016
Date of Reasons for Decision:         21 July 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          XD 323/2014

BETWEEN:
ADAM BLACKSHAW
ROBYN EVANS
Applicants

AND:
MARYANNE CAMPBELL
Respondent

TRIBUNAL: Senior Member C Chenoweth

DATE:21 July 2016
ORDER

The Tribunal Orders that:

The application of the respondent dated 12 February 2016 is dismissed.
The application of the respondent dated 22 June 2016 is dismissed.
A fence is to be constructed on the boundary between the properties of the applicants and the respondent.
The fence referred to in order 3 is to be constructed in accordance with the orders 2, 3, 4, 5 and 7 of the orders of Senior Member Corby dated 14 May 2014, a copy of which is annexed to these reasons.
The fence is to be constructed by Fosters Tradies for the sum of $3,814.80, in accordance with their quotation dated 28 June 2016.
The removal of trees necessary to enable the construction of the fence is to be undertaken by Specialized Arbor Pty Ltd for the sum of $3,322.00, in accordance with their quotation dated 30 June 2016.
The removal of trees necessary to construct the fence shall be undertaken in a manner consistent with the decision of a delegate of the Conservator of Flora and Fauna of 24 December 2014.
The applicants are responsible for arranging for work to be undertaken in accordance with these orders.
The Tribunal directs that the contractors referred to in orders 5 and 6, their servants and agents are authorised pursuant to section 22 of the Common Boundaries Act 1981 to enter on to the land of the respondent at 181 Mouat Street, Lyneham for the purposes of carrying out the work specified in these orders. Entry is authorised pursuant to subsection 22(4) of the Act at any time between Monday and Friday inclusive in any week between the hours of 8am and 5pm.
The applicants must give the respondent two days’ email advice of the intended commencement of the work referred to in these orders.
The respondent must ensure that access to her property to undertake the work specified in these orders is at all times available to the contractors referred to in these orders.
All amounts payable for the work specified in these orders is to be paid in equal shares by the applicants on the one hand and the respondent on the other. If upon completion of the work, the respondent fails to pay to the applicant or to the contractors her share of the costs, then the applicants may pay those costs on the behalf of the respondent.
Any monies paid by the applicants on the behalf of the respondent pursuant to these orders must be repaid by the respondent to the applicants within seven days. If the respondent fails to pay the whole amount within seven days, interest will accrue on that debt calculated on a daily basis at the rate payable from time to time on judgments in the Magistrates Court of the Territory. Unpaid interest may be capitalised and added to the principal sum outstanding at the end of each month.

………………………………..
Senior Member C Chenoweth

REASONS FOR DECISION

This matter is a long-running dispute between neighbours concerning the replacement of a dividing fence. The applicants live at 179 Mouat Street Lyneham, and the respondent owns the property at number 181. The respondent lives elsewhere. There is a timber dividing fence between the two properties. The fence is in very poor repair, with rotted timber rails and some timber palings falling off. In the part of the fence closer to the road, the respondent has placed some lattice timber work to increase the height of the fence, and has also used some additional posts as support. Around 10 metres from the road, and proceeding to the rear of the block, this part of the fence diverges onto the respondent’s land because of the presence of a large tree. The fence continues on the respondent’s land around some other trees and angles back to the boundary. The surveyed boundary at the Mouat Street end is marked by a white peg about 30 centimetres onto the applicants’ land from the existing fence line.
Along the line of the fence closer to the road, the respondent had previously planted or allowed to grow a number of cypress trees, which have grown to a substantial height and now overhang the applicants’ property. Some of those cypress trees and other vegetation are on the boundary line between the properties. The boundary line has been surveyed, and is clearly marked.
The Tribunal conducted a view of the property on 24 June 2016. Notwithstanding the earlier orders of Senior Member Corby of 14 May 2014 as amended, the fence remains in the same state of disrepair that it was at the commencement of proceedings in 2014. It is clearly in a state which requires replacement.
The applicants have instituted proceedings under section 4 of the Common Boundaries Act 1981 (‘CB Act’) for the replacement of the boundary fence. They want the replacement fence to be built on surveyed boundary line between the properties. In order to do this, one or more of the trees that have been allowed to grow up by the respondent on the boundary line will need to be removed.
The applicants filed an application for a determination under the CB Act on 7 March 2014. In that application they proposed the replacement of the fence, and set out the breakdown of the costs involved. A preliminary conference was called to seek to resolve the matter by agreement, but this was unsuccessful.
On 14 May 2014, Senior Member Corby heard the application. She ordered that a new fence was to be constructed on the boundary line between the applicants’ and the respondent’s properties. The orders described in detail the form of fence which was to be constructed, and its location on the surveyed boundary line. The orders also made provision for each party to obtain two quotations for the construction of the fence and exchange them. The cheapest quotation was to be accepted. The order also provided that the costs of engaging a tree surgeon to remove trees and undertake the work required to construct the fence on the boundary were to be part of the joint expense. The advice of the Conservator of Flora and Fauna was to be sought in relation to the trees which may be impacted or were required to be pruned or removed to arrange for the construction of the fence.
The order provided that the applicants were responsible for arranging for work to be done in accordance with lowest quote, and each party was directed to pay half of the costs. This order remains in place and the applicants are entitled to the benefit of it.
There was dispute about the quotations for the work, and the respondent seems to have wanted to try to negotiate a different outcome to the orders. On 31 July 2014 the matter came back before Senior Member Corby. She made further orders directing that the quote of a particular fencing contractor [Jeremy Fosters Fencing] was to be accepted. The quotation had two alternatives, depending upon whether trees were removed or were to remain in place with the construction of a retaining wall. There is nothing in the file or in the orders that suggests that the respondent either had, or wanted to have accepted, a quote from PlaceAce Pty Ltd for the fencing work.
On 8 January 2015, the respondent wrote to the tribunal proposing an alternative method of resolving the dispute by building the fence where it is. This was not satisfactory to the applicants.
In On 14 January 2015, the applicants sent to the tribunal advice that they had received a decision from the Conservator, advising that they could go ahead with the orders for the new fence without concern for any tree damaging activity. The Conservator’s advice was that none of the trees were protected. One tree was registered but it could be removed as it was planted inappropriately near the storm water drain on the applicants’ property.
The applicants also indicated that they proposed to institute proceedings in the tribunal for nuisance, in relation to solar overshadowing and property structural issues. This is not a matter for the current proceedings, which is limited to the question of the original application for a replacement fence.
On 19 October 2015, the applicants wrote to the respondent advising her that they proposed the complete removal of these trees along the boundary. They also indicated that they proposed to make an application to the tribunal for both damages in nuisance, and an interim order under section 74 of the ACT Civil and Administrative Tribunal Act 2008 (‘ACAT Act’) on the grounds of failure to comply with previous orders.
The applicants made an application for a further order with the tribunal on 3 December 2015. This application sought an order for enforcement of the tribunal’s earlier order under section 74 of the ACAT Act, or in the alternative an order varying the determination. The grounds for the application were that the respondent’s alternative proposal did not comply with the previous orders of the tribunal. This application was set down for hearing on 22 January 2016.
In a file note recording a discussion with the registry of 12 January 2016, the respondent advised the tribunal that she would be leaving the ACT for Queensland and would not be back until 30 January. She denied that she had received the notice of hearing for 22 January 2016. By an order in chambers on 13 January 2016, the date of 22 January 2016 was vacated, and the application was to be relisted for 15 February 2016.
Prior to 13 January 2016, the applicants had lodged a separate application in the tribunal claiming damages for nuisance as a result of the growth of the trees on the boundary. In an order in chambers of 13 January 2016, the General President ordered that these two matters (XD 323/2014 and XD 1362/2015) be dealt with together. The General President also made orders relating to the service of documents on the respondent.
On 12 February 2016, the respondent lodged an application for interim or other orders with the tribunal. The application sought a variation to the orders made by Senior Member Corby. The grounds given in the application were as follows:
Order number one to be varied and substituted with an order that the fence is be constructed by PlaceAce Pty Ltd, as the company provided the cheapest of the quotes on 5 June 2014 which was served on the Respondents [sic] at the time, in accordance with the ACAT order 6(c).
On 12 February 2016, the applicants lodged a further application with the tribunal, in same terms as the application of 3 December 2015.
The previous decision of the tribunal that the fencing dispute and the nuisance case should be heard together required that the respondent should have access to the applicants’ property, to inspect the alleged damage resulting from the overshadowing of the applicants’ property by the trees, damage to the building and the blockage of drainage in the applicants’ drive.
The matter came before Senior Member Anforth on 15 February 2016. Senior Member Anforth made orders stating that if the respondent intended to make an application for an order that the applicants had not complied with the tribunal’s orders, she was to do so by 20 February 2016. The applicants were also ordered to file and serve by 3 March 2016 details and supporting witness statements to support the application in nuisance that they had made. The respondent was also ordered to file and serve by 17 March 2016 a response to the applicants’ claim in nuisance, together with statements of all witnesses to be relied on and reports from any experts and tradespeople relied upon. The matter was set down for hearing on 18 April 2016. The hearing date was subsequently deferred to 16 May 2016.
There then followed a substantial number of communications between the parties about dates for access of tradesmen and building inspectors onto the applicants’ property for the purposes of assessing the extent that the respondent’s trees had caused damage to the applicants’ property.
The matter was relisted for an interlocutory hearing on 10 March 2016. Senior Member Lunney granted the respondent an extension of time from the original date for the filing of witness statements from 17 March 2016 until 10 April 2016. The applicants applied for an extension in relation to their filing of documents to the same date.
On 29 April 2016, Senior Member Anforth made orders that the hearing of both matters was to proceed on 16 May 2016. The parties were to meet on site at 10am for a view. On 16 May 2016, the matter was listed but the respondent advised the tribunal by telephone that she was unable to attend because of the need to go interstate. The respondent advised that her mother was very ill in hospital. The matter was accordingly adjourned to 24 June 2016, commencing with a view on site at 10am. The parties were directed to file and serve any further reports proposed to be used by 6 June 2016. Senior Member Anforth ordered that the matter was not to be further adjourned “except in extreme and unforeseen emergencies to be independently corroborated.”
On 21 June 2016, the solicitor for the respondent sent an email to the tribunal advising that his client was suffering from serious problems affecting her cognitive skills. A medical certificate was provided with an indication that the respondent was not fit for work and may need to be referred interstate for specialist treatment. The email also indicated that the respondent would be seeing a specialist medical practitioner on 24 June 2016, the date of the hearing. A letter from the specialist medical centre was also provided, indicating that the respondent had an appointment for a preliminary consultation on that date.
The email sought to adjourn the hearing further until “sometime in the August.” The email noted that due to the respondent’s health issues, the solicitor had been having difficulties taking instructions and that further time would be required to do this. The email proposed that the matter be set down for directions sometime in July, when the solicitors considered that they would be in a better position to advise the tribunal about the above matters.
I directed that any application for adjournment should be made in formal fashion rather than via email. An application was filed by the respondent on 22 June 2016. The application annexed the email, together with a copy of a medical certificate. That medical certificate was dated 20 June 2016, and advised that the respondent was suffering from “serious abnormal liver functions affecting her cognitive skills”, and that the respondent had been referred for further medical care. Also provided as part of the application, was a medical certificate from the same doctor dated 16 June 2016, certifying that the respondent was suffering from “a medical condition and is unable to resume her usual duties.” This certificate was from 16 June until 23 June 2016. An earlier medical certificate was also provided dated 9 June 2016, certifying that the respondent was suffering from liver disorder and was unfit to carry out her usual duties on 9, 10 and 13 June. A further certificate was provided dated 11May 2016, certifying that the respondent was suffering from a medical condition and was unfit to resume her usual duties on 11, 12, 13, 16 and 17 May 2016. A further certificate was provided certifying that the respondent was suffering from a medical condition and was unfit to resume her usual duties from 8 to 29 April 2016. This appears to have been dated 2 April 2016, although the copy was not clear.
The final document annexed to the application was a letter from Canberra Gastroenterology Centre dated 20 June 2016 to the respondent, concerning an initial consultation appointment on 24 June 2016. The letter set out that this was a consultation, with no reference to an actual procedure on that date. There was no explanation as to why this appointment had to be held on 24 June, which was the date set down for hearing by Senior Member Anforth.
I proceeded with a view at the premises on 24 June 2016. The respondent was not present. The applicants were present, as was the solicitor for the respondent and a number of people who said that they were advising her about aspects of the matter, principally in relation to the nuisance claim. One of these people claimed to be an expert on the question of tree removal, and indicated that the respondent ought to overturn or challenge the decisions of the Conservator of Flora and Fauna concerning the removal of trees on the boundary between the properties. I declined to engage in discussion about this matter on the view. After the completion of the view, the matter returned to the tribunal where I opened the hearings on both matters.
The solicitor for the respondent sought to adjourn both matters, due to his client’s condition. He was unable to explain what steps the respondent had taken to comply with the original orders of Senior Member Corby, or what further reports and written statements were likely to be required by his client in relation to the nuisance matter.
I determined that the nuisance claim should be further adjourned to a date to be fixed by the General President, and before a member to be nominated by her. Notwithstanding her earlier decision that these two matters should be determined together, it seemed to me that the nature of the evidence that would have to be given on that case, and the desirability of the respondent being present outweighed the inconvenience both to the applicants and the tribunal of the matter being further adjourned. I considered that it would not be possible to do justice to the respondent to proceed with this matter in her absence, notwithstanding that she had not complied with the orders of the tribunal to file reports and witness statements upon which she might propose to rely.
In the absence of these, I was not prepared to hear evidence from those people who had attended the view, and who seemed to want to give evidence on behalf of the respondent. To have allowed this where witness statements had been not been filed would have been unfair to the applicants, and would be impeded the tribunal in properly dealing with the matter.
In relation to the fencing matter, I determined that the matter should go ahead and I refused the application to adjourn.
I noted that the respondent had produced the medical evidence referred to above. The respondent appears to operate a personal counselling business under the name of “Funnybone Counselling”. The website indicates that the respondent provides counselling services, using humour and meditation. In the absence of any other evidence I take this to be the ‘work’ which the opinions in the medical certificates indicated she was unfit to perform.
While the tribunal is in no position to rebut the medical opinion, it is not clear that the medical opinion that she is presently unfit to engage in the skilled business of interpersonal counselling (as the medical reports indicate) would prevent her from giving evidence, or instructions to her solicitor, about a long-standing dispute with limited parameters. I was not prepared to accept the argument from the bar table that because the medical reports referred to her not being able to carry out her normal duties, she would have been prevented from giving instructions on a dispute with which she was very familiar. There was no indication that she was in hospital, and indeed the appointment from the Gastroenterology Centre indicated that she was not. There was no satisfactory explanation as to why the appointment at the Centre on the same date as the hearing date [which it appeared she had made] could not have been adjourned. Nor was there any indication as to whether the respondent had had regard to the comments from Senior Member Anforth about the importance of the matter proceeding on 24 June 2016. The letter indicated that the appointment was for a preliminary discussion in relation to a certain procedure, rather than the procedure itself, and in the ordinary course one can presume that this could have been easily altered to another date.

The application of the respondent dated 12 February 2016 seeking to substitute another quotation from the one that was the subject of the orders of Senior Member Corby, was also dismissed. There is no evidence beyond the respondent’s assertion that she had either obtained another quotation or provided it to the other party or the tribunal. The applicants denied that they had seen such a quotation and there is no evidence provided to the tribunal that it existed. The tribunal does not accept the credibility of this claim by the respondent, in the absence of compelling evidence that the quotation had been obtained and provided to all parties, as required by the earlier orders.
The failure to comply with the tribunal’s earlier orders, and repeated delays in this matter caused by the respondent require that the applicants should have the benefit of the earlier orders. It would be a denial of justice to them if they should not be given that. The applicants have filed applications on 3 December 2015 and 12 February 2016 to enforce the tribunal’s orders. The email correspondence between the parties which has been provided to the tribunal indicates that the respondent has been seeking to get the applicants to agree to something other than the provisions of the orders of Senior Member Corby, in order to preserve the trees on the boundary. Senior Member Corby’s orders remain in force. The applicants are entitled to the benefit of them and the respondent is not entitled to further delay their implementation.
It is necessary to consider those original orders further because of the time that has elapsed since they were made. The amount of time that has elapsed between the original quotations and the present such that one could not expect the quotation of the fencing contractor referred to in the order of Senior Member Corby of 31 July 2014 to be current. Further, no fencing contractor or tree removal contractor would be likely to undertake the work in circumstances where there is concern as to whether they would be paid. This situation would arise where each party was directed to pay half the costs to the contractor. The contractor is entitled to certainty of payment when engaged.
As noted previously there is no evidence before the Tribunal that a quotation was obtained from PlaceAce Pty Ltd and exchanged with the applicants. I therefore will make orders to dismiss the application of the respondent of the 12 February 2016 to substitute the alternative fencing quotation, if it exists.
In order to get a current figure for the cost of the fencing including the removal of trees necessary to undertake the work I ordered that the applicants should obtain an updated quote from the fencing contractor referred to in the previous orders of Senior Member Corby. On 1 July 2016 Jeremy Fosters Fencing quoted the sum of $3,814.80 for the construction of the new fence. There was a separate quotation for the removal of trees 4 and 5 [referred to below] by Specialized Arbor Pty Ltd, a professional tree services used by Jeremy Fosters Fencing. The cost of removal of these two trees will be $3,322.00.
A matter which has caused considerable contention between the parties relates to the question of whether the Conservator of Flora and Fauna would agree to the removal of the trees on the boundary under the Tree Protection Act 2005. The trees are numbered 4 to 9 on a survey plan of Mail McDonald Barnsley, surveyors of 13 May 2014.
By a notice of decision, dated 24 December 2014, the delegate of the Conservator approved felling or removal of tree number 4 on the plan. This tree is of a size that required specific approval to remove, and this approval has been granted by the delegate of the Conservator. The delegate of the Conservator also determined that trees 1 to 3 and 5 to 9 on the survey plan, are not covered by the Tree Protection Act, and therefore work undertaken on or removal of the trees does not require approval.
It should be noted that trees 1, 2 and 3 on the survey plan referred to are not on the boundary of the properties. Accordingly, they are not required to be removed for the purposes of replacing the fence although the question of the encroachment over the boundary and the effect on the applicants’ property is a matter that is the subject of the nuisance application. It is not necessary to make a decision in relation to that matter for the purposes of this hearing.
There must be an end to litigation at some point, and is clear from the decision of the delegate of the Conservator that the fencing contractor and tree removal contractor may go ahead with the removal of these trees in order that the fence may be built on the boundary. The respondent may be unhappy about this situation but it has come about through her decision to plant or maintain these trees in this position, and to fail to keep them trimmed.
Bearing in mind the difficult relations between the parties, it is necessary that directions be given under the CB Act, to ensure that people may enter on the land of the respondent to undertake the work necessary to construct the new fence. Accordingly, I propose to make a direction under section 22 of the CB Act that the fencing contractor, the tree removal contractor engaged and their employees and agents be authorised to enter upon the land of the respondent during business hours for the purpose of removing trees and constructing the fence, upon giving the respondent by email at least two days notice.
As indicated above, the question of payment is a matter that the tribunal should turn its mind to. The original order of Senior Member Corby provided for payment by the parties in equal shares to the relevant contractor. Bearing in mind the difficulties between the parties, I will order that the applicants are to engage the fencing and tree removal companies. If the respondent does not pay her half share of the costs within seven days of being provided by the applicants with the contractors’ accounts on completion, then the applicants may pay the whole amount and recover half of the cost from the respondent.
I will make this order to ensure that the removal of the old fence and trees, and the construction of the new fence is not impeded by the respondent refusing to pay her share. I will also provide that if one party has paid the contractors and seeks to recover the balance from the other, then if that half share is not paid in full within 14 days, interest will accrue at the rate from time to time applicable to judgments in the Magistrates Court, calculated on a daily basis. Accrued interest will be added to the outstanding sum and be capitalised at the end of each month, and interest will continue to accrue on that capitalised sum until paid.

………………………………..
Senior Member C Chenoweth

HEARING DETAILS

FILE NUMBER:	XD 323/2014
PARTIES, APPLICANT:	Adam Blackshaw & Robyn Evans
PARTIES, RESPONDENT:	Maryanne Campbell
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	Elringtons
TRIBUNAL MEMBERS:	Senior Member C Chenoweth
DATES OF HEARING:	24 June 2016