Forostenko v Lloyd
[2015] QCAT 196
•20 May 2015
| CITATION: | Forostenko & Anor v Lloyd [2015] QCAT 196 |
| PARTIES: | Phillip Forostenko Bronwyn Donnelly (Applicants) |
| v | |
| Sue Lloyd (Respondent) |
| APPLICATION NUMBER: | MCDO2168-14 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 27 January 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Adjudicator Bertelsen |
| DELIVERED ON: | 20 May 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The approximate 14 metre wooden paling fence be repaired in accordance with the quote by Mr Hermann number 691 dated 29 October 2013 for $450.00 or as reasonably updated to reflect current costs. 2. The backyard fence section be added to in accordance with the quote by Mr Hermann number 739 dated 28 October 2014 for $50.00 or as reasonably updated to reflect current costs. 3. The fence in the area of the car parking area be repaired in accordance with the quote by Mr Hermann number 740 dated 28 October 2014 for $636.36 or as reasonably updated to reflect current costs. 4. The remainder of the fence up to 170 metres be repaired in accordance with the quote by Mr Hermann number 739 dated 28 October 2014 for $250.00 or as reasonably updated to reflect current costs. 5. Fence repairs, additions and replacement shall all be arranged by the respondent and paid for by the respondent. 6. Fence repairs, additions and replacement shall be completed within 60 days. 7. The applicants shall pay to the respondent one half of the costs incurred in respect of orders 1, 2 and 4 as well as the total cost incurred in respect of order 3. 8. The respondent shall give 48 hours notice to the applicants of the carrying out of fencing works. |
| CATCHWORDS: | DIVIDING FENCE – adequacy of existing fence – appropriateness of existing fence to area – purpose of dividing fence in semi-rural conditions – necessity for fence repair or replacement |
APPEARANCES:
| APPLICANT: | Phillip Forostenko Bronwyn Donnelly |
| RESPONDENT: | Sue Lloyd |
REASONS FOR DECISION
Application
On 23 September 2014 Phillip Forostenko and Bronwyn Donnelly of 480 Mt Crosby Road, Anstead made application to the Tribunal for the construction of a dividing fence on the approximate 200 metre common boundary with Sue Lloyd’s property at 476 Mt Crosby Road, Anstead and sought contribution from Ms Lloyd of $8,825 being 50 per cent contribution towards the total quoted cost of $17,650.
Ms Lloyd filed a counter application asserting that the fence as constructed was generally adequate requiring only some repairs, additions and replacements.
Background and Evidence
At issue is whether it is necessary to fully replace the whole of the common boundary fence or only repair, add to and replace parts of that fence to bring it back up to a fully serviceable state.
The existing fence falls generally into four portions A, B, C and D:
a) Portion A – approximately 14 metres of wood paling fence 1.8 metres high running east west at the rear of Mr Forostenko and Ms Donnelly’s property;
b) Portion B – approximately 27 metres of three wire (strand) and mesh on metal posts 0.7 of a metre to 1 metre high (backyard fence);
c) Portion C – approximately 83 metres of three wire (strand) on wood and metal posts with mesh 1.1 metres high.
d) Portion D – approximately 90 metres of four wire (strand) on hard wood posts 1.4 metres high (front yard fence).
The existing fence is a collection of what could be termed rural style fencing some 22 years old. It was not disputed however that it was properly on the common boundary.
In January 2013 during Cyclone Oswald a gumtree on Mr Forostenko and Ms Donnelly’s property fell over and damaged part of the backyard fence. Mr Forostenko stated he made some rudimentary repairs to the damaged section of fence using chicken wire and cable ties. He said Ms Lloyd’s pony lent over the fence to munch on grass on his side of the fence effectively lowering the fence line to some 30 centimetres only. He produced five photos which he asserted confirmed the minimal height of the fence. Ms Lloyd produced photos with measurements which depicted the fence height to be substantially higher than 30 centimetres. As a result of the impact of the fallen gumtree it appeared the affected fencing required repair or replacement.
Initially there was some discussion about repair, replacement or upgrading of the backyard fence but it was inconclusive.
Mr Forostenko complained that hens and chickens escaped from Ms Lloyd’s property into his and Ms Donnelly’s property through the backyard and front yard fences; that one of Ms Lloyd’s horses had come onto the front yard of their property. Ms Lloyd asserted Mr Forostenko’s two Husky dogs have come onto her property where they have killed hens and chickens, chased horses and been a threat to her child. She produced a notice to remedy from Brisbane City Council directed to Mr Forostenko requiring him to provide an adequate enclosure for his dogs and to prevent them from ‘escaping over, under or through any fence’. Mr Forostenko stated he had taken steps to construct an animal enclosure within 480 Mt Crosby Road and further stated he was contesting the Council’s remedy notice.
An issue arose as to whether fence Portion B constituted a dividing fence/pool barrier. There was no evidence to suggest this to be the case. A swimming pool installed on Mr Forostenko and Ms Donnelly’s property is serviced by a temporary fence within their property. Whether their temporary fence is adequate or inadequate is their concern, lookout and responsibility.
Parts of both properties are in an overland flow path area. There was no evidence nor does any photograph confirm that Pullen Pullen Creek runs through either property. Despite a good deal of discussion about a gateway over what was described as a creek bed area the Tribunal does not consider that any additional compliance issues of any consequence arise.
An issue arose as to whether some of the existing fence was in fact an electric fence due to attached electric wiring and porcelain insulators. It transpired that the electrical wiring was attached to some of the existing fence but that it had fallen into disuse some years prior. The disused electrical wiring and porcelain insulators have since been taken off the existing fence.
Ms Lloyd asserted some of Portion C fencing was damaged due to a Bougainvillea being overgrown and pushing the fence over. Mr Forostenko stated there was no report to state that it was the Bougainvillea that was pushing this portion of the fence over. Ms Lloyd produced photos which appeared to make it clear that the Bougainvillea has interfered with this portion of fencing.
Ms Lloyd produced extensive photographic evidence of some 43 properties in the immediate and nearby vicinity depicting fencing to be constructed of wire, barbed wire, mesh, wooden and metal posts with most approximately 1 metre high. Mr Forostenko said most of these photos depicted fencing in much better condition than that currently existing at 476/480 Mt Crosby Road.
Some discussion was had and evidence given with respect to Ms Lloyd’s use of her land as a vegetable patch and for horse stables and Mr Forostenko and Ms Donnelly’s use of their land for a swimming pool and children’s play area all in those areas towards the rear of the common boundary. There is nothing unusual about the use the land here is being put to in what is clearly a semi-rural environment and nothing in that use that would necessitate a style of fence over and above what is common to the vicinity.
The extensive photographic evidence produced by Ms Lloyd confirms that the style of fence now forming a dividing fence between the properties (apart from the wood paling fence) is consistent with the style of fence common to the area.
Mr Forostenko and Ms Donnelly produced a statement by Shane Paroz registered builder and called him as a witness at hearing. Mr Paroz stated that he considered the whole of the common boundary fence required replacement. He also considered the existing dividing fence to be well below the standard of fencing seen in the area. He was of opinion that the backyard dividing fence which he described as the section of fencing running from the backyard gate of 480 Mt Crosby Road to the back of the property to be of a poor standard being only some 30 centimetres to 1 metre high and curled over and bent towards the property of 480 Mt Crosby Road. He considered the front yard section being that section which runs from the backyard gate of 480 Mt Crosby Road to the front of the property to be deteriorated beyond repair. He considered the wooden stumps to be deteriorated beyond repair and the fence to be inadequate for the purpose of stopping horses residing at 476 Mt Crosby Road.
It became apparent during the course of Mr Paroz’s evidence that he had had relatively little experience in fences in the immediate vicinity. Whilst Mr Paroz made a number of assumptions in his written statement e.g. his expertise in fencing in the Anstead area and six horses residing at 476 Mt Crosby Road he seemed to have difficulty correlating his oral evidence to his written statement. He was a poor tentative witness with a vested interest in the construction of a lengthy fence at substantial cost.
Ms Lloyd produced a statement by Bryan Hermann fencer. Mr Hermann’s statement stated that he had been fencing in the area of Anstead for some 30 years. He stated that in 1992 he fenced the property of Ms Lloyd at 476 Mt Crosby Road and that since that time he had maintained the fence. He referred to fencing work carried out in 1992. He stated that on 1 October 2014 he visited Ms Lloyd’s property. He removed 30 metres of white tape from metal posts adjacent to a vegetable garden. He removed chicken wire. That same day he made observations about the state of the dividing fence at 476/480 Mt Crosby Road.
Vegetable Garden
The boundary fence in that section of fencing was three strands of 4 millimetre steel wire on metal posts with welded metal mesh and chicken wire. He said such type of fencing was common in the area. He stated the top fence wire was 70 centimetres at its lowest point. He stated that if extra height was required he would recommend another strand of 4 millimetre steel wire strung on the metal posts.
The Car Park Fencing
He observed the boundary fence in the car park area had metal posts with dog wire mesh 1200 millimetres high. He said such type of fencing was common in Anstead. The weight of the vegetation growing from the property at 480 Mt Crosby Road onto the fence had pushed the fence over towards 476 Mt Crosby Road. He recommended that the vegetation be cut and pushed back for 25 metres and the fence straightened. In this regard Mr Hermann quoted $636.36 to cut and push back vegetation on 480 Mt Crosby Road side of the dividing fence line for an approximately length of 25 metres of fence line. His quote indicated that he would straighten the metal posts and mesh using existing materials.
The Driveway Fence
The boundary fence for the remainder of the common boundary of up to 170 metres was serviced by four wire/strand on hardwood posts with round end posts and stays. He said the fence was 1100 millimetres high and confirmed his opinion that this type of fence was the most common in the Anstead area particularly for horse paddocks. He stated that he considered the fence to be in good condition with straight posts and tight wire. However there were three posts though still serviceable but worn that if replaced would extend the life of the fence for another 20 years.
Conclusions
There was no evidence produced to suggest that the wooden paling fence could not be repaired nor any reason for the cost of approximate 14 metre repair to be other than equally divisible. Mr Forostenko and Ms Donnelly’s notice to contribute for fencing work refers to ‘repair of damaged back fence palings with new wooden palings’. Mr Hermann in his quote number 691 dated 29 October 2013 indicated that the paling fence could be repaired at a cost of $450.00 plus GST. This quote probably needs to be updated to reflect current costs.
Mr Hermann fencer stated that the backyard fence adjacent to Ms Lloyd’s vegetable patch could be raised by adding another wire strand to the existing three-strand wire on metal post fence at a cost of $50.00 as per quote number 739 dated 28 October 2014. The photographic evidence produced to the Tribunal would indicate that the posts are in reasonable condition and that three strands of wire presently existing with the addition of a fourth strand of wire would bring the height of this fence to at least a metre and possibly a little more.
Mr Hermann stated the existing fence in the area of Mr Forostenko and Ms Donnelly’s car park area is comprised of metal posts with dog wire mesh 1200 millimetres high; that such type of fence is common in the Anstead area. He stated the weight of vegetation growing (bougainvillea) from Mr Forostenko and Ms Donnelly property onto the fence had pushed the fence over toward Ms Lloyd’s property. He recommended that the vegetation be cut out and pushed back for 25 metres and the fence straightened. It is abundantly clear from the photographic evidence that the bougainvillea has impacted on the purpose and serviceability of the fence.
Mr Hermann provided a quote for the clearing of a fence line for 25 metres and the straightening of metal and mesh using existing materials. Mr Hermann’s quote number 740 dated 28 October 2014 is for a cost of $636.36. It is reasonable to conclude that but for the bougainvillea infestation this portion of the fence would have remained serviceable. In the circumstances the cost of repair to this portion of the fence ought be borne by Mr Forostenko and Ms Donnelly.
The remainder of the fence of up to 170 metres is serviced by three or four wire/strand on wood or metal posts.
Photographic evidence suggests this portion of the fence is in reasonable condition but for some posts which appear old and weathered. Mr Hermann stated that this type of fencing was the most common in the area for horse paddocks. Indeed from the photographic evidence generally it would appear that this type of fencing is common in the immediate vicinity. Mr Hermann stated that this fence was in good condition with straight posts and tight wire; that replacement of three posts serviceable but worn would extend the life of the fence for another 20 years. The cost involved as per Mr Hermann’s quote 739 dated 28 October 2014 was for $250.00. This portion of fence can be repaired at minimal cost extending its serviceability for some years.
Orders
The approximate 14 metre wooden paling fence be repaired in accordance with the quote by Mr Hermann number 691 dated 29 October 2013 for $450.00 or as reasonably updated to reflect current costs.
The backyard fence section be added to in accordance with the quote by Mr Hermann number 739 dated 28 October 2014 for $50.00 or as reasonably updated to reflect current costs.
The fence in the area of the car parking area be repaired in accordance with the quote by Mr Hermann number 740 dated 28 October 2014 for $636.36 or as reasonably updated to reflect current costs.
The remainder of the fence up to 170 metres be repaired in accordance with the quote by Mr Hermann number 739 dated 28 October 2014 for $250.00 or as reasonably updated to reflect current costs.
Fence repairs, additions and replacement shall all be arranged by the respondent and paid for by the respondent.
Fence repairs, additions and replacement shall be completed within 60 days.
The applicants shall pay to the respondent one half of the costs incurred in respect of orders 1, 2 and 4 as well as the total cost incurred in respect of order 3.
The respondent shall give 48 hours notice to the applicants of the carrying out of fencing works.
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