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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Blackshaw & Evans v Campbell

Details

AGLC: Blackshaw and Evans v Campbell (Civil Dispute) [2016] ACAT 80
Case: [2016] ACAT 80
Decision Date: 21 July 2016

CaseChat Overview and Summary

Blackshaw & Evans, the applicants, brought proceedings against Campbell, the respondent, in the Civil and Administrative Tribunal, regarding a boundary fence dispute. The applicants sought an order for a fence to be constructed between the properties of the applicants and the respondent and for the removal of trees that were obstructing the path of the fence. The applicants also sought an order that contractors may enter the respondent's property to conduct the work.

The legal issues that the Tribunal was required to determine included whether the applicants were entitled to have the fence constructed and the trees removed and whether the contractors should be allowed to enter the respondent's property to carry out the work. The Tribunal had to consider the relevant provisions of the Common Boundaries Act 1981 and the orders of Senior Member Corby dated 14 May 2014.

The Tribunal found that the applicants were entitled to have the fence constructed and the trees removed. The Tribunal considered that the orders of Senior Member Corby, which were annexed to the reasons for the decision, provided a suitable basis for the construction of the fence. The Tribunal also found that the contractors should be allowed to enter the respondent's property to carry out the work. The Tribunal considered that the applicants had made sufficient arrangements to ensure that the work was carried out in a reasonable manner and that the respondent had not demonstrated any valid reason why the contractors should not be allowed to enter her property. The Tribunal ordered that the fence be constructed by Fosters Tradies and that the removal of trees be undertaken by Specialized Arbor Pty Ltd. The Tribunal also ordered that the contractors, their servants and agents, were authorised to enter the respondent's property to carry out the work.

The Tribunal made orders dismissing the respondent's applications and directing the construction of the fence and the removal of trees. The Tribunal also ordered that the applicants were responsible for arranging for the work to be undertaken and that the contractors were authorised to enter the respondent's property to carry out the work. The Tribunal further ordered that the costs of the work were to be shared equally between the applicants and the respondent and that any monies paid by the applicants on behalf of the respondent were to be repaid within seven days.

Orders

Orders of the court

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.

10.

The applicants must give the respondent two days’ email advice of the intended commencement of the work referred to in these orders.

11.

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.

12.

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.

13.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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