Harper v Kennedy
[2014] QCAT 166
| CITATION: | Harper v Kennedy [2014] QCAT 166 |
| PARTIES: | Michael Harper and Darlene Harper (Applicant) |
| v | |
| Deanna Kennedy (Respondent) |
| APPLICATION NUMBER: | MCDO1324/13 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | On the Papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member McDonald |
| DELIVERED ON: | 21 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Applicant is directed to file in the Tribunal and serve on the respondent 1 written quotation relating to any fencing work to be done on the common boundary, nominating the size, of the fence and materials to be used by 4pm on 5 May 2014. 2. The Respondent is directed to serve a copy of the email of 25 March 2014 pertaining to her application for costs on the applicants, and any further submissions as to her application for costs shall be filed and served on the other party by 4pm on 5 May 2014. 3. The Applicants shall file in the Tribunal and serve on the applicant any submissions in reply to the respondent’s application for costs on or before 19 May 2014. 4. The matter is adjourned to a hearing on the papers on a date to be fixed after 19 May 2014. 5. If the applicant fails to comply with the procedural obligations noted above, their application shall be dismissed. 6. If the respondent fails to comply with procedural obligations noted above, her application for costs shall be dismissed. |
| CATCHWORDS: | Fencing dispute – existing fence only partially on common boundary; insufficient dividing fence – Retaining wall on the applicant’s property affecting fence Neighbourhood Dispute Resolution Act (Dividing Fences and Trees) Act 2011 ss 7, 12, 13, 16 |
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
The order of 25 November 2013 as amended at the applicant’s request by the order of 17 February 2014 required the parties to provide evidence of the common boundary between the respective properties of the parties.
In compliance with the order, the applicants, Mr and Mrs Harper filed a cadastral survey of the common boundary.
The survey of the common boundary of lots 2 and 3 on Registered Plan 16483 Parish of Drayton, County of Aubigny, was performed by Byrne Surveyors on 12 March 2014. Mr and Mrs Harper are owners of Lot 2, and Ms Kennedy is owner of Lot 3.
The survey indicated that where the retaining wall has failed lies on Lot 2, Mr and Mrs Harper’s property, 220mm north of the boundary. It notes there is are two bends in the fence and the fence deviates 220m north of the boundary on Lot 2 toward the rear of the blocks, and the fence is coincident with the boundary from the corner to the first bend. The Collapsed sections of the fence are noted to be 80mm north of the boundary in the middle section of the block between the two bends in the fence.
The conclusion drawn from this that the damaged sections of the fence are not on the Ms Kennedy’s property and she has no liability in relation to rectifying disrepair of that fence. The retaining wall supporting the fence is not on the Ms Kennedy’s property and she has no liability to rectify this wall. The existing fence which is located 15.92m and a further 7.298m to the mid- section of the Lots is not a dividing fence and the Tribunal has no jurisdiction to make orders in relation to the existing fence or retaining wall.
Section 7 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 provides that:
(1)A sufficient dividing fence is required between 2 parcels of land if an adjoining owner requests a dividing fence.
(2)Generally, neighbours must—
(a)contribute equally to the building and maintaining of a sufficient dividing fence;
According to Section 12 of this Act a dividing fence means a fence on the common boundary. Section 13(1) provides that a sufficient dividing fence is between .5 and 1.8 metres and consists of substantially prescribed materials noted at section 13(3).
The dividing fence which does exist on the boundary in the front 12.31m of the block is considered sufficient, being intact, within the prescribed size and timber, which is a prescribed material noted at section 13(3). For the balance of the common boundary, there is no dividing fence. On the survey this is noted at the rear 15.92 m and 7.298m of the midsection of the properties. In this section there is an insufficient dividing fence.
Section 16 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 and Fencing work can include the construction of a new dividing fence.
Section 31 of this Act specifies the process parties must follow to resolve disputes, and requires a Notice to contribute for fencing work to issue.
(1)An owner may require the adjoining owner to contribute, under this chapter, to the carrying out of fencing work for a dividing fence by giving a notice to the adjoining owner.
(2)The notice must be in the approved form and state the following—
(a) a description of the land on which the fencing work is proposed to be carried out and, if the fencing work is to construct or replace a dividing fence, the line on which it is proposed to construct or replace the fence;
Note—
A dividing fence must ordinarily be constructed on the common boundary—see section 12.
(b)the type of fencing work proposed to be carried out;
(c)the estimated cost of the fencing work to be carried out including the cost of labour and materials.
(3)The notice must be accompanied by a copy of at least 1written quotation stating the estimated cost of the fencing work to be carried out.
The Notice to fence that has been issued and quotes of 26 November 2012, 27 November 2012, 10 January 2013, 20 May 2013 relate to the existing fence and retaining wall. Mr and Mrs Harper have not issued a notice to fence regarding the dividing wall. It also therefore does not provide an accurate reflection of the costs of a new dividing fence on the common boundary. The applicants will be given the opportunity to submit accurate quotes for the specific area to be fenced along the common boundary. The Tribunal cannot make orders for a dividing fence without these fresh quotes.
Ms Kennedy submits that the existing fence is in need of repair due to the applicant’s lack of maintenance on the retaining wall. She argues the fence should be moved to the boundary line and she refuses to make payment for this because she argues the applicants have contributed to the damage by not maintaining their retaining wall. Given the conclusion noted above that the existing fence is not a dividing fence, in conjunction with section 7 of the Act, which states adjoining neighbours are jointly responsible for the costs of a dividing fence, the Tribunal does not accept Ms Kennedy’s submissions.
Ms Kennedy further makes submissions that she should have her costs compensated. It is not evident that she has served this submission on the applicants since the email of 25 March 2014 containing these submissions is directed only to the Tribunal. Should the Tribunal be minded to order costs in this matter, the Applicants need to be afforded procedural fairness and have an opportunity to respond to these submissions. Accordingly, while the Tribunal waives the procedural requirements, in accordance with section 61 of the Queensland Civil and Administrative Tribunal Act 2009, in relation to a formal application from Ms Kennedy for costs, Ms Kennedy should serve these submissions on Mr and Mrs Harper, who will be afforded an opportunity to respond.
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