Harrison v Thompson

[2015] QCATA 150

CITATION:		Harrison v Thompson [2015] QCATA 150
PARTIES:	Jason Lee Harrison (Applicant/Appellant)
v
Glen Charles Thompson (Respondent)

APPLICATION NUMBER: APL104 -15

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM

DELIVERED ON: 26 June 2015

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Leave to appeal granted.

2.    Appeal allowed.

3.    The decision of 27 January 2015 is set aside.

4.    The proceeding is remitted to the tribunal for rehearing.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – FENCING – where notice to fence – where proposed fence not agreed – where fence erected – where fence contrary to estate covenants – where order of tribunal also contrary to estate covenants  - whether grounds for leave to appeal

Pickering v McArthur [2005] QCA 294

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 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Jason Harrison and Glen Thompson own adjoining blocks in the Bushland Beach residential estate. In August 2014, Mr Harrison sent Mr Thompson a proposal to fence the common boundary. He wanted to erect a 1800mm high powder coated aluminium picket fence (picket fence). He acknowledged that the common fencing for the area was a 1800 mm timber fence, so he asked Mr Thompson to contribute 50% of the cost of a timber fence. That cost was $1,809.22.

2. Mr Thompson did not agree to that proposal, so, on 14 September 2014, Mr Harrison sent a notice to fence. The notice proposed the picket fence and called for a contribution of $2,899.56. Mr Thompson did not agree. Mr Harrison filed an application in the tribunal. In the meantime, Mr Harrison built the picket fence. Mr Thompson filed an application for the removal of the fence.

3. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, dismissed Mr Harrison’s claim. They ordered the removal of the picket fence at Mr Harrison’s expense and that the parties contribute equally to a timber fence.

4. Mr Harrison wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

   [1]QCAT Act s 142(3)(a)(i).

   [2]Pickering v McArthur [2005] QCA 294 at [3].

5. Mr Harrison wants the appeals tribunal to amend its order for the erection of a timber fence in two ways. Firstly, he wants to exclude “any fencing to the side boundary in front of one metre back from the front of the house”. Secondly, he wants the existing fencing to remain.

Should the tribunal amend the order to exclude any fencing to the side boundary in front of one metre back from the front of the house?

1. The Bushland Beach residential estate has a set of covenants which bind purchasers in the estate. Clause 9.5 states that side fences must be CCA treated timber or equivalent good neighbour type. It also has this proviso:

   These fences cannot extend beyond 1.0m back from the frontage of the house. Any fencing to the side boundary in front of this position must be consistent in design and materials to the front fence.

1. The covenants require the front fencing to be constructed of materials and finishes similar to the allotment house construction, of approved material and is 75% transparent.

1. The tribunal understood that it could not make an order that were contrary to the covenant[3]. Unfortunately, in the course of the hearing, that’s exactly what the tribunal has done. It ordered a timber fence the length of the boundary. A timber fence the length of the boundary will not comply with the estate covenants. Leave to appeal should be granted and the appeal allowed.

   [3]Transcript page 1-7, lines 12 – 13.

1. It is not necessary to consider Mr Harrison’s second ground of appeal but the actual application of the covenant should be informed by all the circumstances and, perhaps, evidence from the developer.

1. I note that Mr Harrison built his house well up the block and behind a substantial carport. The picket fence starts behind the carport. The boundary from the road to the rear of the carport is unfenced. Is it the true intention of the covenant that this boundary be a picket fence? What if Mr Thompson, or a subsequent purchaser, builds forward on his block. Will he be denied the privacy of a good neighbour fence?

1. Further, the picket fence does not comply with the covenant, even in those sections of the boundary where a timber fence is not the preferred type of fencing. It is not consistent with Mr Harrison’s front fence in design and materials. The front fence is aluminium fencing between rendered concrete posts. The boundary fence does not have rendered concrete posts. Should Mr Harrison be required to change the construction to suite the covenant?

1. Both parties have filed fresh evidence about whether a portion of the picket fence should remain. Mr Harrison has filed photographs and a “mud map”, which is not to scale. Mr Thompson also filed photographs. There is conflicting evidence about whether the picket fence will affect value. There is conflicting evidence about whether the developer has consented to the picket fence. The conflicts of evidence should be determined by the tribunal at first instance, not the appeals tribunal.

1. Leave to appeal should be granted and the appeal allowed. The decision of 27 January 2015 is set aside. The proceeding is remitted to the tribunal for rehearing.