JHP Investing as trustee v Veterinary Property Group Pty Ltd as trustee - [2023] QCATA 125

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

JHP Investing as trustee v Veterinary Property Group Pty Ltd as trustee [2023] QCATA 125

PARTIES:

JHP INVESTING PTY LTD AS TRUSTEE, REPRESENTED BY DR AMIT SINGH

(applicant/appellant)

v

VETERINARY PROPERTY GROUP PTY LTD AS TRUSTEE T/AS VET 2 UR PET PTY LTD.

(respondent)

APPLICATION NO/S:

APL189-22

ORIGINATING APPLICATION NO/S:

MCO937-21

MATTER TYPE:

Appeals

DELIVERED ON:

25 September 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

1.     Leave to appeal is granted.

2.     The decision of the Tribunal that the applicant jointly contribute to the cost of a colorbond fence along the southern boundary of Lot 26 on Plan T118596 be set aside.

3.     The time for commencing the application for minor civil dispute – dividing fences be extended to 27 August 2021 nunc pro tunc.

4.     The appeal is otherwise dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – DIVIDING FENCES – ADEQUATE REASONS where respondent gave the applicant a notice to fence in respect of three adjoining boundaries – where condition of a development approval in favour of the respondent required it to fence the southern boundary – where dispute as to type of fence – where tribunal made findings of fact as to the type of fence – where tribunal’s reasons failed to address the effects of the conditions to the development approval – whether adequate reasons given – whether error of law – whether sufficient evidence about the type of fence to overturn tribunal’s conclusions

Neighbourhood Dispute Resolution Act 2011 ss 31 and 36

Queensland Civil and Administrative Tribunal Act 2009 s 142(3)(a)(i)

Bull v Porteus [2018] QCATA 100

Queensland Building and Construction Commission v Watkins [2014] QCA 172
Rintoul v State of Queensland & Ors [2018] QCA 20
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22,

Terera & Anor v Clifford [2017] QCA 181.

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

The respondent (“VPG”) is the owner of land at 5 Thuringowa Drive, Kirwin, more particularly described as Lot 26 on Plan T118596 on which it conducts a veterinary practice. The applicant (“JPH”) is the owner of three adjoining properties to Lot 26. They are the lots to the north at 5 Garner Road (“northern boundary”), the lot to the south at 3 Thuringowa Drive Kirwan (“southern boundary”) and the lot to the east at 717 Ross River Rd (“the eastern boundary”).[1]
[1]Notice to Contribute for Fencing Work dated 16.04.2021
In April 2021 VPG gave JPH a notice to contribute to fencing work on the three adjoining boundaries. A quote was provided for a colorbond fence at a total cost of $10,917.50. JPH objected to making any contribution to the fencing of the joint boundary on a number of grounds.
Firstly, in respect of the southern and eastern boundaries, the obligation to fence fell solely on the VPG. That is because it applied to the Townsville City Council for a development permit for a material change of use (veterinary services) under the town planning scheme (“development approval”). By an order of the District Court dated 27 November 2020 the application for material change of use was approved with conditions. The conditions relevant to this application are 5(b) and 13. The former relates to fencing and the latter to screen fencing as follows:
A 2 metre high boundary fence must be provided along the southern property boundary of the site.
A 2 metre high visual screen is to be provided between the subject site and the land adjoining the eastern boundary of the land.
JPH submit that these conditions impose and obligation solely on VPG for the responsibility of fencing the southern boundary and fence screening to the eastern boundary to comply with the material change of use conditions, and relieves it of any obligations to contribute to the cost of fencing under the Neighbour Disputes Resolution Act 2011 (“NDR Act”).
Secondly, JPH submits that the existing fencing, although requiring some repair was adequate and did not need replacing.
Thirdly, as to the southern boundary, despite the material change of use conditions, JPH alleges that VPG agreed to fence the full extent of the southern boundary with colorbond. JPH relies on an exchange of emails in which VPG asked JPH for permission to demolish the existing fence and install a new fence.[2] The response from Dr Singh for JPH[3] was “please replace the fence”. His contention is that this authorised, and VPG agreed to replace the whole fence whereas it only replaced about one third of the fence.
[2]Transcript page 7 line 35
[3]Dr Singh’s wife is a director of the applicant and it was accepted at the hearing that he was the authorised agent to represent the applicant in the proceeding.
Finally, if there was to be a new fence, JPH contended that a timber paling fence would be adequate for the purpose as opposed to a colorbond fence which would be much more expensive. Dr Singh contended that if a colorbond fence was to be ordered by the Tribunal, then VPG should pay the difference in costs.
In respect o to the material change of use conditions imposed on VPG, it submitted that JPH’s position was incorrect at law because:
Conditions contained within development permits that relate to fencing are usual, however, development approval conditions cannot join, bind, or otherwise seek to make third party’s assume or contribute to a responsibility stated within a condition. If the Local Authority did so, it would render that particular condition unlawful.[4]
[4]VPR submissions in the MCD dated 22 March 2022
It is also contended that it would appear JPH had the same obligations with respect to screening in conditions of its development approval in respect of to any adjoining residential land. However, in this application for the reasons that follow, there seems to be little relevance to this point.
Because of the impasse VPG filed a minor civil dispute application in the Tribunal seeking orders that JPH contribute half the cost of colorbond fencing to the three common boundaries to the property. Both parties filed extensive material and the matter came on for a telephone hearing before a tribunal adjudicator.
The arguments referred to above were raised by both parties during the hearing. The transcript of the hearing demonstrates that each parties representatives, Ms Petraello (director) and Ms Stefanos (practice manager) on behalf of VPG, and Dr Singh for JPH gave evidence and made submissions to assist the Tribunal in coming to a decision.
At the conclusion of the hearing the learned adjudicator decided to make orders that the parties jointly contribute to a colorbond fence on the northern and eastern boundaries. Also they contribute to the further work to be undertaken on the remaining two-thirds of the southern boundary.
She made findings that the eastern boundary fence was in very poor condition with the upright posts, narrowed at the bottom, and accepted what Ms Petraello said about it being “wobbly”. It was in a “very wavy line as shown photograph E”. It was also impacted by trees and undergrowth. This was evident, she found, in the photos produced at the hearing.[5] As for the northern boundary, there really was no fence there as was the case for the balance of the southern boundary.
[5]In particular photos “S1” and “S2”.
She did not, in her reasons, address why the colorbond fence was preferred as opposed to the timber fence, although good reason for this was discussed during the course of the evidence. VPG submitted it was more stable and less likely to rot in the humid climate of North Queensland. Also it would create a solid barrier between the properties. Whereas, Dr Singh submitted two reasons for the timber fence, first its costs and second a colorbond fence could be dangerous in a cyclone. As to the first, no evidence was produced as to the cost of a timber fence and to the second, a metal fence, properly fixed to the ground is unlikely to tear away in a storm. Furthermore, the learned adjudicator, impliedly accepted Ms Petraello’s evidence that colorbond fences were prevalent in the area.
After receiving the decision JPH filed an application for leave to appeal or appeal. As this is an appeal brought under s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 in respect of a decision in a proceeding for minor civil dispute, an appeal may be made only if the party has obtained leave of the Tribunal. Leave to appeal (or permission) will usually only be granted where there is a reasonable argument the decision was attended by error, or that an appeal is necessary to correct the substantial injustice caused by the error.[6] Further in Rintoul v State of Queensland & Ors [2018] QCA 20 at [10] the Court of Appeal reiterated the general principles:
The principles governing a grant of leave to appeal are well-established. In short, an applicant for leave to appeal must show:
(a) the appeal is necessary to correct a substantial injustice;
(b) there is a reasonable argument that there is an error to be corrected.
There must be reasonable prospects of success to warrant a grant of leave. Therefore, in deciding whether to grant leave to appeal the Court usually makes some preliminary assessment of the prospects of the proposed appeal.
[6]Terera & Anor v Clifford [2017] QCA 181.
The appeal is not another opportunity for the parties to re-argue the case that was before the original decision maker. The findings of fact made by the original decision maker will not be disturbed unless the findings were not open on the evidence before the Tribunal.[7]
[7]Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22
JHP attached to the application for leave to appeal the grounds relied upon which are, in summary:
(a)failure to give adequate reasons as to:
(i)      The obligation of VPG to undertake the fencing pursuant to the development approval;
(ii)      the matters to be taken into account in s 36 of the NDR Act, that is the type of fence to be constructed in commercial/residential properties;
(iii)     the application was made out of time;
(b)erred in law and fact in not considering the Order of the Planning and Environment Court which obliged VPG to fence and screen the northern and eastern boundary;
(c)erred in law and fact in relying on a development application in favour of JHP with respect to screening the common boundary;
(d)erred in fact in not accepting the purported agreement that VPG would fence the whole of the southern boundary and not just one-third
(e)erred in fact and law in assessing the type of fence to be constructed, colorbond as opposed to timber and also failing to have regard the state of the existing weldmesh fence that was already on the eastern boundary.
It is evident from the material filed, and the transcript of the hearing, that a central issue to the dispute was the question of whether VPG’s development approval, with the conditions concerning fencing and screening, overrode any entitlement it had to rely on the NDR Act to seek contribution from the JKP for the construction of the fence on the southern boundary and screen on the eastern boundary. This point was agitated vigorously by Dr Singh during the hearing. Unfortunately, the learned adjudicator did not address in her reasons at all what impact, if any, the conditions to the development approval had on the application before her.
As Dr Forbes said in Hicks v Estate of Katherine Rose Attwell[8]
It is trite law that, as a matter of due process or natural justice, adequate reasons for a judicial decision must be given. A failure to give reasons where there is a statutory duty to do so is an error of law on the face of the record.12
[8][2022] QCATA 92 at [9]
What amounts to adequate reasons in the minor civil disputes jurisdiction depends on the issues in dispute, the complexity of the case, and the time available for the efficient disposition of cases having regard to the objects of the QCAT. That is, to ensure that matters are dealt with in a way that is accessible, fair, just economical, informal and quick.[9] The nature and extent of the obligation to provide full reasons varies according to the nature of the case.[10] Those decisions will not be exposed to criticism which fails to acknowledge the circumstances in which they are given, or the pressure of the adjudicator’s caseload.
[9]QCAT s 3.
[10]Attorney-General v Kehoe [2001] 2 Qd R 350 at 356; Tully v McIntyre [2001] 2 Qd R
338.
However, even having regard to those considerations the failure of the learned adjudicator to provide any reasons for seemingly rejecting any argument about the application of the conditions to the development application, amounts to an error of law. On that basis leave to appeal is granted. I propose now to deal with the substantive grounds of appeal, but not necessarily in the order set out in Annexure A to the application.
Having granted leave to appeal, the grounds of appeal contend there were errors of mixed law and fact. Under s 147(3) of the QCAT Act the appeal tribunal may, in deciding the appeal, confirm or amend the decision below or set aside the decision and substitute its own decision. The question is therefore, whether the learned adjudicator’s decision should be confirmed or be set aside.

The southern boundary.

By the order of the Planning and Environment Court of 27 November 2020 the development permit for a material change of use was approved subject to the conditions in “Attachment 1” to the order. In that proceeding Dr Singh was the applicant. Relevantly, the Townsville City Council was the respondent, and Vet 2 Ur Pet Pty Ltd was a co-respondent.
It would seem, and I infer, that Dr Singh commenced the proceeding to object to the proposed development for a material change of use as a veterinary clinic. Although not identical parties to this appeal, the same personalities are the decision makers for these entities.
I have had regard to the court record of file No 161 of 2019[11] which shows there was no contested trial of the dispute between Dr Singh and VPG resulting in a judgment of the court. There is only the court’s order. The order on its face does not demonstrate it was made by consent. Without knowing the full background to the making of the order I assume that perhaps because it was a matter for the presiding judge to be satisfied that the order was appropriate in the circumstances. This is not unusual.
[11]QCAT Act s 28(3)(c)
The effect of this is, although not a consent order, that the parties to the order agreed to the terms of the order including the conditions of the development approval. That agreement between Dr Singh, ostensibly for JHP, and the co-respondent compromised the court proceeding and imposed a specific obligation on VPG to fence the southern boundary by condition 5(b). Performance of the conditions on the co-respondent is enforceable by any of the other parties to the proceeding.
Therefore, as Vet 2 Ur Pet Pty Ltd has agreed to fence the southern boundary under the condition to achieve the outcome of obtaining a development approval, without a contested hearing, it has in my view, waived any right to seek contribution from JHP for the fence under the NDR Act.
VPG submit that the conditions in the development approval cannot bind third parties or seek to make a third party assume or contribute to the a responsibility within the stated condition. As a general statement that is probably correct. However, the argument is difficult to comprehend when it is VPG who is bound by the condition and not a third party.
Also, under s 35(1)(c) the Tribunal has a discretion as to the way in which contributions for fencing work are to be proportioned. The obligation imposed on VPG by the condition is not an irrelevant consideration when it would seem that this was part of the agreement reached between Dr Singh and VPG to dispose of the proceeding before the Planning and Environment Court.
Had the learned adjudicator given proper consideration to implications of the development approval conditions, she ought to have come to a similar view. I therefore propose to set aside her decision that JHP contribute to the construction of a colorbond fence on the southern boundary.

The eastern boundary

JHP also relies on the condition 13 of the conditions to the court’s order. The heading is “Screen fencing”. The obligation is to provide a 2 metre high visual screen “between the subject site and the land adjoining the eastern boundary of the land”. Importantly, the screen does not have to be provided on the boundary. It is not a boundary screen or fence.
Although the learned adjudicator did not give specific consideration as to just what the obligations were under condition 13, it is in my view irrelevant, because the condition does not refer to a fence.
The definitions of fence and dividing fence are contained in ss 11 and 12 of the NDR Act:
Meaning of fence
A fence is a structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land, whether or not continuous or extending along the entire boundary separating the land of adjoining owners, and include
Meaning of dividing fence
A dividing fence means a fence on the common boundary of adjoining lands.
As the screen is not required to be on the boundary, like the fence on the southern side, it is evident that the obligation to screen does not satisfy either of the above definitions. I therefore conclude it was open to the learned adjudicator to make an order about fencing the eastern boundary. These comments apply equally to the development approval obtained by JHP for the material change of use for the medical centre.

Condition of the existing fence

The learned adjudicator made specific finding of fact about the condition of the fence on the eastern boundary being in a dilapidated state.[12] Those comments are consistent with the photographs produced at the hearing. As stated above, findings of fact will not be interfered with unless they are not open on the evidence, here clearly they are.[13] Furthermore, Dr Singh seemed conceded that the fence on the eastern side was in need of repair and said during the hearing to the adjudicator “ but its totally up to you what you want to decide”.[14] No error is demonstrated as to the learned adjudicators finding in this regard.
[12]Transcript page 26 lines 5 - 12
[13]Robinson Helicopter Company Incorporated v McDermott supra.
[14]Transcript page 21 line 30

Type of fence.

The only evidence produced by Dr Singh as to the type of fence in the locality was his own evidence that:
I do not want a colorbond fence put in there. That is too costly, plus because there is cyclone season in Townsville. The colorbond acts as a sail and it get blown over. The majority of fences used are wood, timber paling and that’s what is on every other boundary on my property on this side and the other side[15]
[15]Ibid pages 22-23
There was no other independent evidence of the type of fencing generally used whereas, Ms Petraello gave good reason for wanting colorbond, to reduce weed infestation, vermin and overgrowth. In the circumstances the learned adjudicator had a choice between the evidence of Dr Singh and Ms Petraello and chose the latter. There is nothing compelling in the applicant’s submissions on appeal, or in the evidence before the learned adjudicator to demonstrate she fell into error which would warrant overturning this conclusion.

Extension of time

Dr Singh submits that the application was filed out of time. That seems to be the case. The Notice to Fence was given to JHP on 30 April 2021 and the application filed on 17 August 2021. Section 31(6) of the NDR Act provides that:
If, within one month after the notice is given, the joining owners have not agreed about the proposed fencing work to be carried out and their contributions to the proposed fencing work, either the journey may, within two months after the notice is given, apply to the QCAT for an order under section 35

The point was not taken at the hearing although it is addressed in JHP’s submissions filed on 21 June 2022. The learned adjudicator was not addressed on the point at the conclusion of the hearing, nor was it mentioned in her reasons. JHP submits this is fatal to the application and it should be dismissed.
In its submissions it relies on Bull v Porteus.[16] In that case fencing orders were made by consent in circumstances where the substantive application was out of time. The Tribunal held in that case the making of a consent order, if the Tribunal did not have jurisdiction, the parties could not confer jurisdiction on it. Obviously, that is correct. In that case the learned member referred to Queensland Building and Construction Commission v Watkins[17] where the Court of Appeal held that time could not be extended under s 61 of the QCAT Act where the applicant (Watkins) did not bring a review application to review a decision about a scope of work under s 86F of the Queensland Building and Constructions Commission Act within 28 days of receiving the decision of the Commission. That section specifically set out decisions ‘that are not reviewable decisions”. This included, under subsection (1)(c), decisions about a scope of work.
[16][2018] QCATA 100
[17][2014] QCA 172
Whereas, although s 31(6) imposes a time frame within which an application should be made, it is not prescriptive like s 86F which is substantive as to the decisions which are not reviewable. In my view, unlike Watkins the time for applying to the Tribunal under s 31(6) is procedural and time can be extended under s 61(1). That is, the Tribunal has a discretion to extend time. The point was not being taken at the hearing and it proceeded as though the application was within the Tribunal’s jurisdiction and a decision made accordingly. Insofar as it may be necessary to correct this procedural irregularity, I propose to make an order extending the time to apply to the Tribunal under s 13(6) to 27 August 2021 nunc pro tunc.

Agreement to fence the southern boundary

In view of my conclusions about the applicability of the conditions to the development approval, it is unnecessary to address this issue. However, I would observe that the agreement Dr Singh contents for, that is his request to replace the fence, meaning the whole fence, lacks certainty and is in response to the request to replace part of it. It is difficult to see how there was a meeting of the minds to constitute an enforceable agreement.

Summary

Save for the fencing of the southern boundary, I propose to uphold the balance of the learned adjudicator’s order.
I therefore propose to make the following orders:
(a)Leave to appeal is granted.
(b)The decision of the Tribunal that the Applicant jointly contribute to the cost of a colorbond fence along the southern boundary of Lot 26 on Plan T118596 be set aside.
(c)The time for commencing the Application for minor civil dispute – dividing fences be extended to 27 August nunc pro tunc.
(d)The appeal is otherwise dismissed.