Fyffe & Anor v Holbeck & Ano
[2013] QCAT 199
•22 April 2013
| CITATION: | Fyffe & Anor v Holbeck & Anor [2013] QCAT 199 |
| PARTIES: | Andrew Fyffe Jacqueline Fyffe (Applicants) |
| v | |
| Adrian Holbeck Carmel Dawn Harris (Respondents) |
| APPLICATION NUMBER: | MCDO2383-12 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 14 February 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | William LeMass, Adjudicator |
| DELIVERED ON: | 22 April 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is dismissed. |
| CATCHWORDS: | Dividing Fences – Easements Neighbourhood Disputes Resolution Act 2011 Tran & Anor v Cowan & Ors [2006] QSC 136 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | In person |
| RESPONDENT: | In person |
REASONS FOR DECISION
This matter concerns residential neighbours and the fencing of an easement, which gives access to a rear allotment owned and occupied by the applicants and their children.
A fence of 1.8 metres on the easement boundary of Lot 2, owned and occupied by the respondents since 2007, has been in existence for over a decade.
The respondents have recently removed sections of this fence in order to provide light to a garden and accommodate their vehicle at the rear of their allotment, which is achieved with some difficulty due to the meagre dimensions of the access. The applicants want the fence replaced.
The applicants seeks the following;
§an order that the dividing fence is a sufficient dividing fence;
§an order requiring that the fence, demolished without authorisation to be rectified, and
§costs.
The Neighbourhood Disputes Resolution Act 2011 is succinct in s 26, requiring restoration of any unauthorised removal or deliberately damaged dividing fence.
The respondents contend that the existing fence is not a dividing fence. Their written submissions are;[1]
12(1) a dividing fence means a fence on the common boundary of adjoining lands.
By definition under the Act, the paling fence in question entirely on lot 1 is not a dividing fence, therefore Fyffes claim should be dismissed.
[1] Re Fyffes claim No. 0002383/12.
Background
Annexed is the easement plan SP158114 which will assist in understanding the physical location of the properties and right of way easement.
The respondents own Lot 1, the applicants own Lots 2 and 3. The plan shows that Lot 1 is the servient tenement to the extent of easement B and Lot 2 is the servient tenement to the extent of easement A. This means that the owner of Lot 3, the dominant tenement may pass over, obtain access and exercise some other rights over the easement area but for ALL other purposes it remains the absolute property of the servient tenement. Easement document 70799445 is also annexed here and is the only document to which I have had reference.
Each servient tenement is also a dominant tenement by the description of the easement upon item 2 of the easement document.
The common boundary of the lots is the solid line representing the dividing line between Lots 1 and 2. I am satisfied this is self evident, and not disputed by the parties. A procedure for a surveyor to identify a common boundary is set out in the Act.[2] However this concerns lost or disputed boundary pegs. A surveyor could in this instance do no more than identify that line which is the common boundary.
[2] Section 40.
The Easement
The adjudication of easement terms is specifically provided for in s 97A of the Land Title Act 1994 and following s 97DA Land Title Act 1994 and s 181 Property Law Act 1974, which is for a superior court and not a matter for which this Tribunal has jurisdiction. Nevertheless it was and I considered it appropriate to understand the covenants when considering this dispute.
The document is curious because:
a)Whilst the document on its face is described as being for “ITEM 6 Access and Public Utilities” there is not in the body of the document the usual form of words describing the right of way i.e. pass and repass at all times etc.
b)Rather, the operative clause is as follows
“2 GRANT OF EASEMENT
2.1 To provide for the supply of utility services.....”
and then continues in some detail about wires, cable, media, repair and public utility.
The description could not be more succinct with respect to utilities but is singularly absent as to any access description. I will assume that because of its title it grants access rights as was intended.
The Law
Against this background I will examine the law.
The Neighbourhood Disputes Resolution Act 2011 commenced in November 2011 and regulates dividing fences. The Act applies to freehold land, recorded in the freehold land register.[3] This is such land. Adjoining owners are defined as “owners of land on either side of a common boundary.” These persons are Adjoining owners.
[3] Section 8(1)(a).
QCAT is specifically given jurisdiction to deal with disputes[4] but for such jurisdiction to be enlivened the dispute must concern a “dividing fence”. This may be a structure, ditch, embankment or a hedge.[5] It can not be a retaining wall or a wall that is part of a house.[6] It must be:
[4] Section 7(4) and s 33.
[5] Section 11(1).
[6] Section 11(2).
12 Meaning of dividing fence
(1) A dividing fence means a fence on the common boundary of adjoining lands.
(2) A fence separating the land of adjoining owners constructed on a line other than the common boundary is also a dividing fence if—
(a) it is impracticable to construct a fence entirely on the common boundary of the adjoining lands because of natural physical features; or
(b) the adjoining land includes 1 or more parcels of pastoral land separated by a watercourse, lake, or other natural or artificial feature insufficient to stop the passage of stock at all times.
The definition above in the 2011 Act is a substantial departure from the 1953 Act which it replaced. This is not such a fence because it is not on the common boundary and it is not upon any plain reading of the section “impractical to construct because of natural physical features”. The fence can not be constructed on the common boundary because the parties agreed as much in the easement document referred to above.
“5.1 The grantor shall not erect any permanent fixture or building on the Servient Tenement which will materially and adversely affect the grantees use and enjoyment …”
There are also detailed repair covenants and methods of dealing with any dispute. This is an agreement between the parties and their successors in title for the purposes of s 36(g) of the Act.
I have previously touched on the law relating to easement covenants pursuant the Land Title and Property Law Acts, for which this Tribunal does not have jurisdiction but which could well deal with matters of fencing in the easement.
I am satisfied that the rights and obligations of dominant and servient owners of freehold land the subject of a right of way easement are properly for the consideration of a tribunal with the jurisdiction to determine what are the reasonable extent of the easement covenants, the intention of the parties and the effect of the statutes referred to above.[7]
[7] Land Title Act 1994, s 97A, s 97DA; Property Law Act 1974, s 181.
This is well considered by Brereton J in Trewin v Felton [2007] NSWSC 851 (7 August 2007) which also concerned the destruction of a fence upon an easement boundary. This case makes clear that the issue of fencing, when not dealt with specifically in the grant requires consideration of the whole of the covenants of the easement at [19]:
In the case of such an easement running alongside a boundary of the dominant land, so that the length of it contiguous to the dominant land is greater than necessary for a single point of access, questions may arise as to the number and extent of access points to which the dominant owner is entitled on the one hand, and the entitlement of the servient owner to fence the easement on the other. In my view, the prima facie position is that (1) the servient owner is entitled to fence the right of way in order to secure its property along the whole boundary, but not so as to interfere with reasonable user of the right of way by the dominant owner through gates at such points as meet the dominant owner’s reasonable requirements; and (2) the dominant owner may have access through gates at a number of places, and may determine from time to time the points of access, which may vary over the years; but (3) the dominant owner is not entitled to have the easement remain unfenced.
Ultimately in that matter mandatory and restraining injunctions were required to give effect to the orders.
In Queensland Chesterman J considered the reasonableness of fencing of an easement (albeit with a statutory right of user) from a safety position.[8]
[8] Tran & Anor v Cowan & Ors [2006] QSC 136.
It draws too long a bow to describe the above easement terms as a natural physical feature and because the issue of fencing of an easement is properly to be considered with reference to the easement covenants, I conclude that this fence being erected other than on the boundary is not a dividing fence.
I can not look for some practical or other outcome because the words of the statute are clear on their face, they are not ambiguous. No further assistance is gained from the Dictionary Schedule as it seems to follow the pastoral land provisions of s 12(2)(b).
Because of the counter intuitive nature of this conclusion, I have looked in the balance of the Act for any assistance.
Section 13 seems to allow QCAT to decide “in any case” whether a fence is a sufficient fence but in sub clause (2) a fence which is not a dividing fence is specifically excluded.
Section15 envisions that adjoining owners could be on either side of a road, but this is limited to agricultural or pastoral land only.
Section 35 speaks about what orders QCAT can make and specifically at s 35(a) says “the line on which the fencing work is to be carried out, whether or not that line is on the common boundary of the adjoining land.” Whilst this would seem to imply the ability to make such an order it does not because it would first be necessary to establish a head of power for making such an order and the accompanying jurisdiction. In absence of this, it does not assist.
Accordingly, I dismiss the applicants’ application and find that the application by the respondents in matter 2428/12 to “fence the boundaries of the easement” is also outside the jurisdiction of this Tribunal and accordingly is dismissed.
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