James v Portelli
[2011] QCAT 705
•21 March 2011
| CITATION: | James v Portelli [2011] QCAT 705 | |
| PARTIES: | Bruce James | |
| v | ||
| Peter Joseph Portelli | ||
| APPLICATION NUMBER: | REO002-11 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Member |
| DELIVERED ON: | 21 March 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | a) Is the effect of my decision that Mr Portelli is entitled to position the upright posts for the front fence in accordance with this plan? Yes. b) Is the effect of my decision that the upright posts are to be positioned wholly in 89 Lamont Rd hard up against the brick retaining wall? Yes, the upright posts are to be positioned wholly within 89 Lamont St. No, they are not to be positioned hard up against the brick retaining wall. c) If yes to (b), which party should bear the costs of reinstating the brickwork removed by Mr Portelli? Not necessary to answer. |
| CATCHWORDS: | DIVIDING FENCES – clarification of decision – where party commenced fencing without providing quotation to the other owner – where dispute about whether the posts were positioned in compliance with order – where question of whether work affected the structural integrity of retaining wall – where question of whether work affected driveway access |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
On 17 December 2010 I made orders about a protracted fencing dispute between Mr James and Mr Portelli.
I understand from the parties’ submissions that they received notice of my decision in early February 2011. On 11 February 2001, Mr James contacted Mr Portelli by email enclosing copies of quotes for construction of the fence and asking which contractor Mr Portelli would prefer to use.
Mr Portelli chose a more direct response to my decision, commencing construction of the front fence on 12 February 2011 without notice to Mr James. Mr James applied for, and was granted, an interim injunction preventing further work on the fence and the dispute was referred to a compulsory conference.
Despite broad hints from a number of members of the tribunal that this dispute is really a matter for the Supreme Court, the dispute has come back to me for determination of three questions:
a)Is the effect of my decision that Mr Portelli is entitled to position the upright posts for the front fence in accordance with this plan:
b)Whether the upright posts are to be positioned wholly in 89 Lamont Rd hard up against the brick retaining wall;
c)If yes to (b), which party should bear the costs of reinstating the brickwork removed by Mr Portelli?
Both parties have expended considerable time and effort informing the tribunal about the ill-will between them, who is obstructing whom and the costs they have incurred in this dispute. The tribunal has offered the parties a number of opportunities to resolve this dispute by negotiation. Clearly, it would now be difficult to preserve any amicable relationship between the parties. The only material I will be considering is that which relates to the method of fence construction. I will not be referring to the material delivered by Mr James on 21 March 2011. Mr Oliver’s directions did not contemplate the delivery of material in reply, Mr James has had ample opportunity to make submissions on point and I am not prepared to consider material to which Mr Portelli has not had an opportunity to respond.
Is Mr Portelli entitled to position the upright posts for the front fence in accordance with the plan?
At the hearing, the parties agreed that timber paling fence of between 1800 mm and 2000 mm above natural ground level supported by galvanised steel posts set in concrete was appropriate. As I identified in paragraph 20 of my reasons for decision, the real dispute was the line of the fence.
I accepted Mr Portelli’s submissions that:
a)Most of the front brick pillar is within Mr James’ boundary.
b)The natural ground level was to be used as a reference point for the finished height of the fence.
c)The driveway should be cut at those points where a post will be located. In this way, the structural integrity of the driveway is largely preserved for the time being.
d)The line of fence proposed by Mr Portelli for the front section was reasonable.
Mr Portelli’s submissions at the hearing were accompanied by this plan:
It is true that the fence posts as constructed do not conform to the plan submitted to the tribunal in December 2011. A comparison of the proposal and the fence as constructed shows, in both cases:
a)The posts and railings of the fence were contained within Mr Portelli’s land;
b)The palings of the fence were contained within Mr James’ land.
c)Cuts into the retaining wall were necessary to accommodate the footings for posts. The cuts were at about 2,400 mm centres and only to the extent necessary for the placement of the footings.
[10] The direction in paragraph (a)(ii) of my decision – that the footings were to be placed so as to minimise the damage to the driveway should not be interpreted that no damage to the driveway was permissible. It is clear from paragraph 25 of the reasons for my decision that I expressly contemplated the probability that placement of the posts would require cutting into the driveway.
[11] I accept the engineers’ joint view that the actual method of construction is “unusual”.[1] The new method of construction is to Mr Portelli’s detriment; it does not alter the appearance, placement or operation of the fence from Mr James’ perspective. The placement of the posts is sufficiently in accordance with my directions that the answer to Question (a) should be “yes”.
Are the upright posts to be positioned wholly in 89 Lamont Rd hard up against the brick retaining wall?
[1]Structerre report 11 March 2011 at paragraph 3.4; Jeffrey Hills report 18 February 2011, summary.
[12] With all due respect to Mr Oliver, this question is slightly misleading. It follows from my answer to Question (a) that I did intend the posts to be wholly within Mr Portelli’s land. I am persuaded by the material that they are within Mr Portelli’s land as surveyed. The retaining wall in question is also within Mr Portelli’s land. I did not intend that the posts be positioned “hard up” against that wall; I intended that they be positioned so that the centre point of the fence aligned with the boundary as surveyed.
If yes to (b), which party should bear the costs of reinstating the brickwork removed by Mr Portelli?
[13] I understand the real question to be: “If Mr Portelli should not have cut the wall, who should bear the costs of reinstatement? It is evident that I do not need to answer this question.
General matters
[14] It seems to me that some of Mr James’ submissions were really an appeal against my original decision or an application to reopen and file further material. While the procedure is unorthodox, I will deal with the submissions in the hope that this will lead to finality of the dispute between the parties.
[15] Mr James is concerned about the structural integrity of his driveway now that cuts have been made into the retaining wall. I have the advantage of reports from two structural engineers. I also have the advantage of viewing photos of Mr James’ driveway that were taken before work commenced. It is apparent from those photos that the driveway is of considerable age and there was evidence of large cracks and some subsidence prior to work commencing. For that reason, I cannot accept the comments of Mr Hills that there was no evidence of structural failure of the retaining wall or the old section of concrete driveway prior to the work commencing.
[16] Mr Ryan notes that the deterioration shown by the driveway is consistent with its age and mode of construction and that it will continue to crack, rotate and deteriorate over time. I therefore prefer Mr Ryan’s evidence as a whole and I am prepared to accept his view that the slots cut into the wall do not affect the structural integrity of the wall.
[17] Mr James also complains that the position of the fence will obstruct his use of the driveway. I was cognisant of this argument at the initial hearing however, at paragraph 22 of my reasons for decision I noted that the most of the front pillar was located in Mr James’ land. It follows, therefore, that the pillar will obstruct Mr James’ access to his driveway much more than a fence located on the boundary. I note Mr Portelli’s submissions about Mr James’ large pot plants on the middle section of the boundary; of course, they can be moved.
Conclusion
[18] The answers to the three questions posed at the compulsory conference are:
a)Is the effect of my decision that Mr Portelli is entitled to position the upright posts for the front fence in accordance with this plan? Yes.
b)Is the effect of my decision that the upright posts are to be positioned wholly in 89 Lamont Rd hard up against the brick retaining wall? Yes, the upright posts are to be positioned wholly within 89 Lamont St. No, they are not necessarily to be positioned hard up against the brick retaining wall.
c)If yes to (b), which party should bear the costs of reinstating the brickwork removed by Mr Portelli. Not necessary to answer.
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