Franchi v Yazdani
[2014] QCAT 529
•16 October 2014
| CITATION: | Franchi v Yazdani & Anor [2014] QCAT 529 |
| PARTIES: | Tracey Franchi (Applicant) |
| v | |
| Hameed Yazdani Shohreh Yazdani (Respondent) |
| APPLICATION NUMBER: | MCDO1295-14 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 26 June 2014 and 4 August 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Adjudicator Bertelsen |
| DELIVERED ON: | 16 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. A new dividing fence is to be erected on the common boundary between the properties of the parties. 2. The fence is to be constructed in accordance with the quotation (invoice) of Fencing Guys dated 11 August 2014 (a copy of which is attached to this order) and in the manner that steel posts and wales are on Ms Franchi’s Lot 109 side of the fence and palings only are on Mr and Mrs Yazdani’s Lot 108 side of the fence. 3. The fence construction is to be arranged and paid for by the respondents. 4. The fence construction is to be completed within 60 days. 5. The applicant pay to the respondents the sum of $739.20 within 14 days of completion of the fence. |
| CATCHWORDS: | Dividing fence – existing fence – correct common boundary – interference with existing fence – removal of portion of fence – condition of existing fence – varied contribution – style of fence to be erected Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) |
APPEARANCES:
| APPLICANT: | Tracey Franchi |
| RESPONDENT: | Hameed Yazdani Shohreh Yazdani |
REASONS FOR DECISION
Application
On 17 June 2014 Ms Franchi the owner of 12 Musgrave Street, Toowong filed her dividing fence application directed to Hameed and Shohreh Yazdani (Mr and Mrs Yazdani) of 10 Musgrave Street, Toowong. She sought:
(i)An order about the kind of material to be used in fencing work;
(ii)An order about the amount the parties have to contribute or pay for fencing work;
(iii)An order about which part of the dividing fence is to be constructed or repaired;
(iv)An order about when the fencing work is to be done;
(v)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 $3,350;
(vi)Another order: ensure fence is not removed without permission of no 12, replaced pool fence as required as a matter of urgency.
Additionally the same day Ms Franchi filed an application for interim order to stop Mr and Mrs Yazdani from removing the existing dividing fence between 10 and 12 Musgrave Street, Toowong asserting that Mr Yazdani had communicated his intention to remove the fence. On 18 June 2014 the Tribunal granted Ms Franchi the interim order sought.
Background and Evidence
By letter of 19 November 2013 Mr Yazdani’s lawyers Lember and Williams notified Ms Franchi that a survey indicated that the existing fence running the length of the common boundary was
Fully contained within our client’s property, 300mm from the boundary. As such you have no ability or right to rely on any part of that fencing to form part of any pool barrier that you have an obligation to construct to secure your pool area … As you are aware our client is currently undertaking a significant development on his property. As part of that development our client gives you notice that he is removing that fence that runs the length of his property and presently has temporary construction fencing installed.
The existing fence is an approximately 1.8 metre high timber post timber wales and timber palings fence serving as a dividing fence between Ms Franchi’s 12 Musgrave Street (Lot 109) and Mr and Mrs Yazdani’s 10 Musgrave Street (Lot 108).
The development referred to was the construction of two small lot houses on what had hitherto been a single dwelling site.
The survey referred to was based on conclusions in a letter to Mr Yazdani from Clem Jones Wright & Associates dated 13 November 2013. That letter in turn relied on an identification survey by Urban & Rural Surveys completed on 30 October 1995 and two surveys by Axis Surveys firstly a contour and feature survey dated 26 July 2011 and an identification survey dated 10 August 2011. Based on these prior surveys Clem Jones Wright & Associates concluded that the existing fence was located some 262 mm within the Yazdani’s property.
Based on Clem Jones Wright & Associates conclusions Mr and Mrs Yazdani asserted their right for the existing fence ‘to be removed and a new fence to be erected on the common boundary’. Mr Yazdani ‘contacted the BCC and discussed the matter with a member from Council’.
The surveys relied upon by Mr and Mrs Yazdani were only furnished to the Tribunal on about 24 June 2014 and to Ms Franchi ‘some 24 hours’ prior to initial hearing on 26 June 2014. Ms Franchi asserted interference with the existing fence particularly that portion serving as a pool fence for her backyard pool.
Mr Yazdani in his counter-claim filed 24 June 2014 asserted
The applicant has been given sufficient time since November 2013 to resolve the matter as the construction on property 10 Musgrave Street, Toowong is completed now.
At hearing on 26 June 2014 Ms Franchi asserted the existing fence had always been compliant as a dividing/pool fence and as far as she was aware on the correct common boundary.
On 26 June 2014 the Tribunal ordered Ms Franchi to file and serve
A survey plan prepared by a licenced surveyor delineating the true boundary and identifying the position of the currently constructed fence between the properties 10 and 12 Musgrave Street, Toowong.
Ms Franchi provided an identification survey of her Lot 109 by O’Rielly Nunn Favier dated 23 July 2014. The survey identified the existing fence to be on the common boundary at Musgrave Street and slightly offset into Lot 108 towards the rear of the common boundary to the extent of 100 mm part way along and 160 mm at the rear boundary.
That survey also identified the block retaining wall on Lot 109 to be entirely within Lot 109.
The now complete small lot house construction on Lot 108 includes a block garage wall extending some nine metres adjacent to but recessed from the common boundary and located part way along the common boundary. The common boundary here runs immediately beside the block retaining wall (on 108’s side) constructed within Lot 109.
The block garage wall is recessed approximately the length of one besser block (250 mm and is depicted in photos provided) from the exact common boundary.
Mr Yazdani stated he thought the recess was only 150 mm with the downpipe externally attached to the block garage wall being of 100 mm diameter. Ms Franchi thought the downpipe to be of a smaller diameter.
Other photos of similar downpipe lying beside the block garage wall appeared to take up approximately one third of the 250 mm space leaving approximately 180 mm clearance.
Mr Yazdani suggested that rather than construct a fence in such a confined area that a return be constructed front and rear of the garage thus leaving the block garage wall effectively serving as a boundary for some nine metres. The Tribunal indicated that such would not constitute a singular continuous boundary fence which ought to be the case here.
Both Ms Franchi and Mr and Mrs Yazdani agreed the fence as it stands is inadequate and that a totally new fence is required. Ms Franchi asserted that Mr and Mrs Yazdani should pay fully for a new fence. She stated that a front section of the existing fence was removed to accommodate construction particularly of the garage on the proviso that the fence would be replaced upon completion of the garage. She said this front section needed some work but that the back section was in good repair. She said she got a quote some 12 months ago for repairs at $350. She felt that though the fence was some 15 years old it had 10 years life left in it.
16.5 metres of the existing fence served as a pool fence for Ms Franchi’s backyard pool. She said that this portion had recently been inspected by Brisbane City Council and was considered adequate; that this portion of fencing was required to be over 1.2 meters high and not climbable; that the existing fence satisfied those requirements in that horizontal beams (wales) were on her side of the fence ie Mr and Mrs Yazdani’s side of the fence was characterised by vertical palings only.
Ms Franchi asserted that Mr Yazdani had deliberately removed palings from that part of the fence forming the pool fence thus exposing her to a risk of liability. She asserted interference with the existing fence on two occasions. Despite repairing the damage she was required to install temporary fencing to secure the pool area in accordance with pool safety standards. The temporary fencing is still there. She referred to material from Brisbane City Council indicating its opinion that the fence had been deliberately interfered with; that it was not a matter of fence age or deterioration. She said the condition of the fence had deteriorated significantly in the last 12 months due to construction and machinery on Lot 108; that the poor current state of the fence was not due to normal wear and tear.
Mr Yazdani stated that he did not deliberately interfere with the existing fence in the pool area; that rather it was a case of deterioration of an old fence. Mr Yazdani agreed he did pull palings off but only to demonstrate the inadequacy of the fence. He said he did not object to replacement of the fence but rather the cost ie that he should pay fully for a new fence as suggested by Ms Franchi. Mr Yazdani continued to assert the remaining back portion of the fence where the pool is to be on his property.
Both Ms Franchi and Mr Yazdani agreed that a 1.8 metre high metal post timber wales pine paling fence be constructed for the whole of the approximately 43 metre common boundary. Based on the evidence of Ms Franchi the Tribunal is satisfied that the fence as proposed is acceptable in terms of Brisbane City Council pool safety compliance.
At hearing on 4 August 2014 both Ms Franchi and Mr and Mrs Yazdani were ordered to furnish the Tribunal with before and after photos upon which they intended to rely (there being some discrepancy as to whether all photos had been exchanged) together with quotes for fencing the entire true boundary.
Conclusions
The position of the existing fence has been an issue since November 2013 when lawyers for Mr and Mrs Yazdani stated the existing fence was in fact on Mr and Mrs Yazdani’s land and not subject to Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘NDR Legislation’).
Neither party took any positive action to bring matters to a head until Ms Franchi filed her application on 17 June 2014.
Irrespective of the location of the existing fence both parties agreed that the existing fence is inadequate and that a new fence is required.
The common boundary as asserted by Mr and Mrs Yazdani was based on older surveys referenced by Clem Jones Wright & Associates to determine the existing fence to be 262 mm within Lot 108.
The up to date survey ordered by the Tribunal to be furnished indicated the existing fence to be generally on the common boundary and within acceptable tolerances.
The up to date survey by O’Rielly Nunn Favier constitutes the best evidence of the common boundary and hence the line on which construction of a new dividing fence is to be effected.
The Tribunal does not consider that the confined space between the block garage wall and the true common boundary precludes the construction of a singular continuous boundary fence. The evidence disclosed that there was adequate room for the construction of the style of fence proposed.
The totality of photographic evidence indicates the existing fence prior to construction to be aging, just adequate and by any measure nearing the end of its life. But still it was functional and accepting the evidence of Ms Franchi was still Brisbane City Council complaint in terms of pool safety standards.
The Tribunal accepts Ms Franchi’s evidence that the portion of fence removed to allow for construction of the garage and construction generally was to be replaced in the normal course of events. No clear indication to the contrary was ever asserted by Mr Yazdani.
The Tribunal is not satisfied that palings pulled off the existing fence in the pool portion of the fence was solely to test the adequacy of the fence but rather was more than likely done in the mistaken belief that Mr and Mrs Yazdani owned the fence it being thought by them to be on their land at the time.
Either way the existing fences limited life expectancy has been reduced to the point where a new fence is now necessary.
Given that Mr Yazdani was to replace that portion of fence removed and interference with the portion of existing fencing serving as a pool fence and taking into account the fences age and condition the Tribunal concludes that the cost of demolition of the existing fence and construction of a new fence ought to be apportioned 80 per cent payable by Mr and Mrs Yazdani and 20 per cent by Ms Franchi.
The Tribunal’s order of 4 August 2014 provided that the parties furnish to the Tribunal quotes for demolition and construction of a metal post, treated timber pine wales and palings 1.8 metre high fence for the whole of the approximately 43 metre common boundary within 21 days.
The only quote produced that strictly complies with the Tribunal’s order is the quote by Fencing Guys for $3,696 dated 11 August 2014 (proffered as an invoice).
The dividing fence is to be built in accordance with that quote (invoice) with Mr and Mrs Yazdani to pay for the fence and for Ms Franchi to pay her contribution upon completion of the fence construction.
Orders
1. A new dividing fence is to be erected on the common boundary between the properties of the parties.
2. The fence is to be constructed in accordance with the quotation (invoice) of Fencing Guys dated 11 August 2014 (a copy of which is attached to this order) and in the manner that steel posts and wales are on Ms Franchi’s Lot 109 side of the fence and palings only are on Mr and Mrs Yazdani’s Lot 108 side of the fence.
3. The fence construction is to be arranged and paid for by the respondents.
4. The fence construction is to be completed within 60 days.
5. The applicant pay to the respondents the sum of $739.20 within 14 days of completion of the fence.
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