Ingram v Unison Projects Pty Ltd
[2013] QCAT 200
| CITATION: | Ingram & Anor v Unison Projects Pty Ltd [2013] QCAT 200 |
| PARTIES: | Mr John Ingram Ms Carolyn Fraser (Applicants) |
| v | |
| Unison Projects Pty Ltd (Respondent) |
| APPLICATION NUMBER: | MCDO3078-12 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 27 March 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Jeremy Gordon, Adjudicator |
| DELIVERED ON: | 22 April 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Ms Carolyn Fraser is added as an applicant to the claim. 2. The Applicants shall on receiving reasonable notice allow the Respondent access to erect a 1800mm galvanised pipe and wire mesh fence on the common boundary between their respective properties to replace the current temporary fence, (such boundary having been identified and marked by development consultants). 3. The Respondent shall erect the said fence by 30 June 2013. The parties may apply to QCAT for more time if this is required. 4. The Applicants must pay the sum of $2,697 to the Respondent as their contribution towards the erection of the fence. |
| CATCHWORDS: | FENCING DISPUTE – existing fence removed: whether a dividing fence – creek remodelled and moved: whether creek a dividing fence – correct contributions to sufficient fence where need for fence is caused by development – equal contributions are only a starting point Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 Cox v Lashmar and Anor [2011] QCAT 708 Vasseur v Wright [2011] QCATA 20 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | John Ingram and Carolyn Fraser |
| RESPONDENT: | Shannon Down |
REASONS FOR DECISION
Where a developer removes an existing fence and a creek between two properties so that there is no longer a sufficient fence between the properties, can the developer insist on a 50% contribution from the adjacent owners towards the cost of a new sufficient fence?
Background and issues
The respondent owns a large piece of land which formerly was part of a clay mine in Oxley. This piece of land is being developed for housing.
The applicants live in a dwelling situated on land which they own and which is adjacent to the development site. This is Lot 29, a property fronting on to Douglas Street. Between the housing development and Lot 29 is a boundary of just over 204 metres which runs in a straight line in a north easterly direction from Douglas Street. The boundary is known and agreed having been found by development consultants.
Back in the early 1990’s there was no fence between the properties. Then the owner of the clay mine was directed to erect a fence capable of keeping out intruders. The clay mine owner erected a galvanised pipe and chain wire fence with two coils of barbed wire on top.
The positioning of this pipe and wire fence was complicated by the existence of a creek which meandered along the boundary between the two properties. At a point mid way along the boundary and possibly also in the north eastern corner, the creek meandered well into Lot 29, but mostly it was outside the lot. I accept that the course of the creek was roughly as drawn by Mr Down in biro on Exhibit R2 and roughly as drawn on Exhibit R3. This appears to be right because the creek as drawn follows the contour lines on R2. In the way of things, the width of the creek, its course and the height of water varied from time to time.
When the fence was erected by the owners of the clay mine, there was a discussion between them and the applicants about where it should be placed. The clay mine owner’s main interest was to keep out intruders, and the applicants regarded the creek as part of the amenity of their land. They had also planted trees to act as a natural boundary on that side of their property. So it was agreed that the fence would be erected on the side of the clay mine rather than in Lot 29. This work was paid for wholly by the owners of the clay mine.
Where the creek meandered into the side of the clay mine, part of the pipe and chain fence straddled it. At these places, the creek ran under or through the fence.
Nearly 20 years later, the old clay mine is being developed. The respondent has purchased the site and is developing it. As part of the development process, the respondent has removed a large part of the pipe and chain fence, which it says was wholly on its land. The main reason for doing this was that as part of the planning consent, there was a condition that the creek should be remodelled so that it no longer ran into Lot 29 but instead ran wholly on the development land. The idea was that it should form part of a new recreational area on the northern side of the housing development. It would appear that the conditions to the planning consent did not include the reinstatement of the fence at the developer’s expense.
The remodelling of the creek has now finished and because the creek has been moved wholly onto the development land, and away from Lot 29, and because the existing fence has been removed, a new fence is required. At the moment there is only a temporary construction fence erected by the respondent between the two properties and both parties are agreed that this is not a “sufficient fence”.
[10] The phrase “sufficient fence” comes from the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. Under the Act, consequences arise from the absence of a sufficient fence between adjoining properties. Under s 20 of the Act “an adjoining owner is liable to contribute to carrying out fencing work for a sufficient dividing fence”. Under s 21, adjoining owners are each liable to contribute equally to carrying out such work.
The scheme for respective contributions under the Act
[11] The question therefore arises in this case whether (as the developers argue) by reason of the terms of s 20 and s 21 of the Act, the owners of Lot 29 should contribute half the cost of a sufficient dividing fence between the properties, despite the fact that the need for the fence arises from the development itself.
[12] QCAT can resolve disputes between neighbours about dividing fences, and can under s 35(1)(c) decide
the way in which contributions for the fencing work are to be apportioned or reapportioned or the amount that each adjoining owner is liable to pay for the fencing work
[13] It is clear that the equal contribution required by s 21 is only a starting point and QCAT can order such contributions as are fair and just. For example it is often the case that the erection of a sufficient dividing fence is made more expensive due to some feature on the land of one of the adjoining owners, such as the need to remove an existing wall or the need to clear vegetation. In other cases, additional costs arise because of the existence of a retaining wall or water runoff or because of the presence of a pool. In other cases the existing fence has been damaged by some natural event, not covered by the negligence or deliberate act or omission provisions[1] such as tree roots or branches from one side damaging the fence.[2]
[1]In s 26 of the Act.
[2]Found in Vasseur v Wright [2011] QCATA 20 to justify a 20%-80% split in contributions.
[14] Some uncertainty is therefore introduced into the contribution which might be ordered by QCAT. This might be thought to detract from the aim of the Act which is to enable neighbours to resolve questions of the fencing requirements between their properties without the intervention of QCAT at all.[3] But s 7 of the Act is headed “overview” and this provides in s 7(2) as follows:-
Generally, neighbours must – (a) contribute equally to the building and maintaining of a sufficient dividing fence
And the heading to s 21 itself is:-
Contribution between adjoining owners – generally
[3]This is also emphasised in the objects of the Act.
[15] The use of the word “generally” here shows that in the usual case the contributions will be equal but that QCAT may adjust the shares between the parties as would seem appropriate and just.[4]
[4]This was also the finding of Member William LeMass when considering the previous legislation which applied: the Dividing Fences Act 1953: Cox v Lashmar and Anor [2011] QCAT 708 at [13].
Was a dividing fence removed?
[16] This is important to decide because if so, then the provisions of s 26 of the Act apply. Subsection 2 of that section requires that the respondent must restore the dividing fence and pay for the cost of doing so.
[17] If I find that any part of the fence which was removed by the respondent was not a dividing fence, then s 26 does not apply to that part. But I will still need to consider whether it is fair and just to order the applicants to contribute to the new fence which is required because of this removal.
[18] A dividing fence is defined in s 12 of the Act as a fence “on the common boundary of adjoining lands”. “Fence” is widely defined in s 11 and can include a ditch or embankment or a natural or artificial watercourse separating the land of adjoining owners. It can also include a hedge or similar vegetative barrier. By s 12(2) a dividing fence will also include a fence constructed on a line other than the common boundary if it is impracticable to construct a fence entirely on the common boundary because of natural physical features.
[19] In the papers attached to the claim it is accepted by the applicants that the fence erected by the owners of the clay mine was not on the common boundary but was wholly on the land formerly owned by the clay mine. Whilst at the hearing the applicants sought to argue otherwise, all the evidence I have seen and heard indicates that the concession was correctly made. It accords also with the applicants’ evidence that they reached agreement with the clay mine owners that they would place the fence on the clay mine side of the creek. Even then, the evidence shows there were parts of the fence which were erected inside the creek itself, in the area where the creek meandered into the land owned by the clay mine. Since this appears to have been technically possible, I do not accept the applicants’ alternative submissions that the fence erected on the clay mine side of the creek was a dividing fence because it was impracticable to erect it on the common boundary because of the existence of the creek.[5]
[5]Relying on s 12(2) of the Act.
[20] Accordingly I find that none of the fence erected by the owners of the clay mine and now removed by the respondent was a dividing fence. It was wholly on the respondent’s land. And the reason for this is not because it was impractical to place it on the boundary.
[21] I now have to deal with the question whether the creek was a dividing fence. I find that throughout its length it was not a dividing fence between the two properties since it meandered from side to side whereas the boundary was a straight line. So where the creek was either side of the boundary it was not on the common boundary of the adjoining lands as required by s 12.
[22] However, where the creek crossed the common boundary, assisted by trees and other vegetation it was dividing fence because it served as a natural delineation of the boundary of Lot 29, and because there was no other fence on the common boundary at that point.
[23] It follows that in remodelling the creek and moving it so that it ran solely on its land, the respondent has damaged or destroyed the dividing fence at those places. In accordance with the intention of the Act as expressed in s 26, the respondent should pay for a replacement fence at those places.
[24] There is little evidence as to the extent to which the creek followed the common boundary, but the best indication of this appears from exhibit R3. Although this does not show the full length of the boundary between the two properties, it would appear from this plan that the creek crossed the boundary over roughly 10% of its total length, that is a distance of about 20 metres. It is right therefore that the respondent should pay for a length of 20 metres of the new fence. The new fence is not to be over the whole length of boundary: it is to replace the temporary construction fence of 155 metres long. 20 metres is 13% of the new fence.
[25] As for the remainder of the cost of the new fence, whilst it is true that the need for a dividing fence has been caused by the respondent removing the existing fence, that fence was wholly on its own land. Any owner is entitled to do such a thing. The applicants did not contribute to the existing fence and whilst it was present, they were spared the cost of maintaining a dividing fence. So they have had some benefit from the existence of that fence over the years. But they have no right to its continued existence.
[26] The respondent has remodelled the creek and removed it from Lot 29. Had this not been done, there would still have been a need for a dividing fence once the previous fence had been taken down. So this cannot affect the question of who should pay for the dividing fence.
[27] The respondent is in the process of developing its land for housing. If this were not the case, there would still have been a need for a dividing fence once the previous fence had been taken down. Possibly in the 1990’s there would not have been such a need, but in the light of the changing nature of Oxley and the other continuing developments in the area, even if the development site had remained undeveloped there would still have been a need for a dividing fence.
[28] In the light of the above arguments, it is difficult to see why the respondent should have to pay any more than half the cost of a dividing fence once the discount for that part of the creek on the boundary is taken into account.
[29] It is agreed between both sides that there is no sufficient fence at the moment, so it is agreed that a new fence should be erected. The length of the new fence is 155 metres. It is agreed that the fence should be constructed of galvanised pipe and wire mesh. The applicant believes the fence should be 1800 mm high. At the hearing the respondent argued for a 1200mm fence but since the hearing it has obtained a quote for an 1800mm fence, so it would appear to be agreed that the fence should be 1800mm high. If this is not agreed, it would certainly be my finding that a fence of that height is required to provide sufficient security to Lot 29 bearing in mind the new use on the development site. This would also match the height of that part of the existing fence between the two properties which remains.
[30] The quote is for $6,200 including GST. The respondent proposes to organise the erection of this fence, and it would appear likely that the actual net cost of erecting it to the respondent will be $6,200 (ignoring the GST). On that basis, I shall provide in the order that the respective contributions shall be:-
Respondent:-
13% of $6,200 $806
plus ½ of remainder of $5,394 $2,697
Applicant: $2,697
Total: $6,200
[31] I shall add Carolyn Fraser as an applicant because she jointly owns Lot 29 with Mr Ingram who originally brought the claim.
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