Griffiths v Waugh
[2012] QCAT 654
| CITATION: | Griffiths v Waugh [2012] QCAT 654 |
| PARTIES: | Andrew Griffiths (Applicant) |
| v | |
| John Waugh (Respondent) |
| APPLICATION NUMBER: | MCDO264-11 (Brisbane) |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | J Bertelsen, Adjudicator |
| DELIVERED ON: | 3 December 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondent to obtain two (2) quotes from professional qualified fencers within 42 days to fence the driveway boundary between the applicant's and the respondent's properties less that portion of the driveway boundary from the Dudley Street entrance to the southern end of the art deco feature wall forming part of the existing boundary barrier in a style similar to the opposite driveway fence. 2. The respondent to deliver these quotes by mail and email to the applicant within 56 days. 3. The applicant to instruct either fencer within 70 days to complete the quoted fencing. 4. The applicant will pay to the respondent one half of the lesser quote within 14 days of the completion of the work. 5. In the event of non compliance liberty to apply. |
| CATCHWORDS: | Minor civil dispute – dividing fence – picket and wire fence – amendment of orders following non-compliance Dividing Fences Act 1953 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This is an application brought under the now repealed Dividing Fences Act 1953. The applicant, Mr Griffiths, sought to build a 1.95 metre picket and mesh fence.
The applicant, Mr Griffiths, is the owner and occupier of 37 Dudley Street, Bardon. The respondent, Mr Waugh, is an owner of 35a Dudley Street, Bardon. 37 Dudley Street is a small frontage elongated parcel that fans out to a degree towards the rear. 35a Dudley Street could be described as a battleaxe parcel with long access driveway abutting the western boundary of 37 Dudley Street and having a common boundary with the rear of 37 Dudley Street. Part way along the western boundary of 37 Dudley Street is what may be described as an art deco feature wall which encroaches .29 metres onto the 35a Dudley Street driveway. The western driveway boundary of 35a Dudley Street has been fenced with a picket and wire fence.
The application came before the Tribunal on 26 July 2011. The respondent, Mr Waugh, did not object to a picket and wire fence similar to that already constructed on the driveway’s western boundary.
Tribunal orders were made on 26 July 2011 as follows:
1.The Applicant to obtain two (2) quotes from professional qualified fencers within fourteen (14) days to fence the driveway boundary between the Applicant and the Respondent’s property in a style similar to the opposite driveway fence.
2.The Applicant to deliver these quotes by mail and email to the Respondent within twenty-one (21) days.
3.The Applicant to instruct either fencer within twenty-eight (28) days to complete the quoted fencing.
4.The Respondent will pay to the Applicant one half of the lesser quote within fourteen (14) days of the completion of the work.
5.In the event of disagreement either party may on seven (7) days notice to the other re-apply for directions.
The respondent subsequently filed on 31 August 2011 an application seeking a further order from the Tribunal directing the applicant to follow the order of QCAT dated 26 July 2011 and obtain quotes to fence the entire boundary and not a lesser part of it. The application asserted that quotes obtained by the applicant in accordance with orders of 26 July 2011 were, for the quote from Fencing Com, to construct 15.5 metres of driveway fencing and for the quote from Aotea Fencing, to construct 7.7 metres of driveway fencing. It is clear these quotes fall well short of the quotes envisaged by the 26 July 2011 orders.
No further quotes were submitted by either party at hearing on 27 August 2012 or as part of submissions subsequently filed.
The respondent stated at hearing and confirmed in his submissions that he sought erection of the fence for some 7 metres of the rear or back boundary ie part of the east-west boundary the parties have in common and which constitutes part of the driveway. The 2 quotes obtained by the applicant described the “rear fencing” to be erected as 10 metres (Fencing Com) and “back fence” to be erected as 9 metres (Aotea Fencing). Whatever the distance it is clear the fence to be erected at the top of the driveway is intended to extend to the physical wall of the respondent's courtyard ie to the end of the driveway.
The respondent also stated at hearing and confirmed in his submissions that he sought erection of the fence on the driveway boundary proper (69.786 metres) less the entry wall at the Dudley Street entrance, the embankment area forming a natural barrier and the boundary wall being the art deco feature wall; that he only sought the fencing of the boundary from the top of the driveway ie from the southern most point of the 69.786 metre boundary line to the point such boundary abuts the applicant’s “art deco wall”. The respondent calculated this distance at approximately 37 metres.
The applicant asserted that having erected his own fence 200ml within his own boundary that there was no need for any further fencing at all. Such a fence is not a dividing fence and has no bearing on the respondent correctly seeking to fence the surveyed boundary line. That is also clear from the Tribunal’s orders of 26 July 2011.
The orders of 26 July 2011 provided for 2 quotes from “professional qualified fencers” to fence the driveway boundary between the applicant's and respondent's properties. As the 2 quotes provided only for 15.5 and 7.5 metres of fencing for the driveway proper (69.786 metres) they are useless and in contravention of the 26 July 2011 orders.
It is appropriate in these circumstances that orders of 26 July 2011 be amended, a possibility anticipated by order number 5 providing that either party, in the event of disagreement, to reapply for directions.
The Tribunal considers that 2 quotes for the now reduced metreage of fencing ought be obtained by the respondent and that the respondent ought make arrangements for the erection of the fence. The 2 quotes shall be for fencing of the rear boundary ie the east west driveway boundary extending only to the physical wall of the respondent’s courtyard and the driveway boundary proper as described less the entrance wall, the embankment and the art deco feature wall.
The Tribunals orders as amended are as follows:
1.The respondent to obtain two (2) quotes from professional qualified fencers within 42 days to fence the driveway boundary between the applicant's and the respondent's properties less that portion of the driveway boundary from the Dudley Street entrance to the southern end of the art deco feature wall forming part of the existing boundary barrier in a style similar to the opposite driveway fence.
2.The respondent to deliver these quotes by mail and email to the applicant within 56 days.
3.The applicant to instruct either fencer within 70 days to complete the quoted fencing.
4.The applicant will pay to the respondent one half of the lesser quote within 14 days of the completion of the work.
5.In the event of non compliance liberty to apply.
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