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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ingram v Unison Projects Pty Ltd

Details

AGLC: Ingram v Unison Projects Pty Ltd [2013] QCAT 200
Case: [2013] QCAT 200
Decision Date

CaseChat Overview and Summary

Ingram and Fraser brought an action against Unison Projects Pty Ltd in the Queensland Civil and Administrative Tribunal (QCAT) concerning a boundary fence between their property and the development site owned by Unison. The applicants sought a determination of the contributions to be made for the erection of a new fence and the addition of Fraser as an applicant. The central legal issues revolved around the nature of the boundary fence, the appropriate contributions for a new fence, and the impact of the development on the necessity for a fence.

The adjudicator concluded that the fence removed by Unison was not a dividing fence because it was wholly on Unison's land and not on the common boundary. However, where the creek crossed the common boundary, it acted as a dividing fence. Therefore, Unison was required to pay for the replacement of the fence where the creek served as a boundary. Unison was also required to contribute to the remaining cost of the new fence as it was agreed that a new fence was necessary due to the removal of the old fence and the creek no longer acting as a dividing fence. The adjudicator decided that Unison should pay for 13% of the new fence based on the creek's length on the boundary and contribute 50% of the remaining cost. The applicants were ordered to contribute the other 50% of the remaining cost.

The final orders were that Carolyn Fraser be added as an applicant, the applicants allow Unison access to erect a fence on the common boundary, Unison erect the fence by 30 June 2013, and the applicants pay $2,697 towards the cost of the new fence.

Orders