Kelly v Handa
[2015] QCAT 467
•1 October 2015
| CITATION: | Kelly & Anor v Handa & Anor [2015] QCAT 467 |
| PARTIES: | Martin Kelly and Linda Kelly (Applicants) |
| v | |
| Sumant Handa and Vibha Handa (Respondents) |
| APPLICATION NUMBER: | MCDO0958-15 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 1 October 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Renouf, Justice of the Peace (Presiding) Mr Lai, Justice of the Peace |
| DELIVERED ON: | 1 October 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Respondents reinstate a 3 wire fence of the same construction and material as the previous fence in accordance with the Applicants Surveyor’s Report. 2. The Respondents plant 3x mature Lilly Pilly trees in 20 litre tubs 1.5m apart and 1.5 from the common boundary-on their property. 3. The Respondents file an Affidavit and attach invoices and confirm this order has been completed. 4. The costs incurred with this order are a debt payable by the Applicants. |
| CATCHWORDS: |
|
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
On 1 October 2015 the Tribunal made the order set out above. The Applicants have requested reasons for the decision, and we give them now. In order to explain our reason for the order of 1 October 2015, we need to set out the history of the matters and our previous orders.
QCAT Tribunal Orders:
6 July 2015
1. Both parties provide photos of surrounding properties to establish common fencing material.
2. Copies of all documents by parties to be exchanged by post to QCAT and each other.
3. The matter was adjourned to a date to be fixed.
4. Both parties provide photos of surrounding properties to establish common fencing materials. Copies of all documents by parties to be exchanged by post to QCAT and each other.
10 August 2015
1. The Applicants provide to QCAT and the Respondents by mail a quote for a steel post and wire fence.
2. The Applicants provide to QCAT and the Respondents by mail a copy of the Surveyors Report as per previous hearing dates 6 July 2015.
3. The Applicants are to plant three (3) LillyPilly trees along a line which is consistent with the common boundary to respondents property with the following criteria:-
a. At least 1.0 metre from boundary line;
b. At least 1.5 metre apart; and
c. Reasonable mature plants in selection.
4. This order is to be actioned within 28 days and photos of receipts and pictures of trees provided by mail to the Respondents.
1 October 2015
1. The Respondents reinstate a 3 wire fence of the same construction and material as the previous fence in accordance with the Applicants Surveyor’s Report.
2. The Respondent’s plant 3 x mature Lilly Pilly trees in 20 litre tubs 1.5m apart and 1.5m from the common boundary-on their property.
The Respondent’s file an Affidavit and attach invoices and confirm this order has been completed.
4. The costs incurred with this order are a debt payable by the Applicants.
We made these orders because:
TRIBUNAL FINDINGS:
The Tribunal was satisfied at hearing that the existing diving fence was a sufficient dividing fence prior to being removed without consent based on the photographic evidence provided by the Respondents. However, the area in the past few years has changed from semi rural to residential and is becoming more populated and therefore different materials now appear in fence construction within the area. In a rural setting the 3 wire steel post fence may be appropriate, however given the recent change from rural to residential it may be more appropriate to consider a more solid construction in terms of fencing materials.
The Applicants say they previously discussed the construction of a wooden paling fence from an existing fence and the Respondents were agreeable. The Respondents deny this claim.
A Colorbond fence was rejected by the Respondents even if the Applicants pays the full cost of the colorbond fence as they do not wish to be bound by the material of the fence on the other sides of their property.
The Respondents wish to be returned to the position they were in prior to the removal of the original fence. The Tribunal is of the view that in this instance, the Respondents would suffer damage but no actual loss.
The Tribunal found that the Applicants did fulfil their obligation to provide the Respondents with the required Notice to Contribute, Form 2 pursuant to section 31 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.
The Applicants served a Notice to Contribute, Form 2 on the Respondents for 50% of $3086 for the construction of a colorbond fence on the common boundary to form a dividing fence. However, the Respondents feel they are not liable to contribute to a fence which was already sufficient and was removed.
The Tribunal ordered that the Applicants plant 3 mature Lilly Pilly trees 1.5 meters apart 1.5 meters from the boundary line. This was subsequently rejected by the Applicants in correspondence dated 28 August 2015. This is in contravention of the Tribunal’s order of 10 August 2015.
The Tribunal are satisfied that the properties are situated within a semi rural/residential area and that the area has progressed substantially since the Respondents purchased the vacant lot in 2011.
The Applicants say that there are units being constructed within the immediate vicinity at the back of their properties.
The Tribunal found that the diving fence was sufficient at the time it was removed without authorization which therefore placed an obligation on the Applicants to restore the Respondent’s to the same position they were in before the fence was removed, based on the evidence available to them at the time of the hearings.
The Tribunal found that there was no obligation for the Respondents to contribute to the construction of a new dividing fence since the one that existed was sufficient before it was removed without consent.
The Tribunal found that the Applicants are responsible either directly or via agency with their builder Metricon, although the removal of the fence does not appear to be a deliberate or malicious act. The removal of the fence is understood to be as a result of a third party, Metricon the builder who constructed the Applicant’s new dwelling.
The damage to the fence is argued by the Applicants to have already occurred and they state the fence was laying on the ground.
The Applicants provided various statements to support the condition of the fence however, this evidence was not presented prior to the orders and was in fact subsequent to all Tribunal hearings. The documentation was provided by the Applicants to QCAT on 28 August 2015.
The Tribunal found that the removal of the dividing fence was not authorized and ordered the rectification/reconstruction of the dividing fence on the common boundary line.
Section 26 Contribution — negligent or deliberate act or omission
(1) This section applies if, whether before or after the commencement of this section, a dividing fence is damaged or destroyed by a negligent or deliberate act or omission of —
(a) an owner of land; or
(b) a person who has entered the owner’s land with the express consent of the owner.
(2)The owner must restore the dividing fence to a reasonable standard, having regard to its state before the damage or destruction.
The Tribunal made orders based on information available at both hearings. The order of 1 October 2015 was based on the non compliance by the Applicants with the order of 10 August 2015. The Tribunal could not consider new evidence that was submitted on 28 August 2015 at the previous hearings.
Jurisdiction
QCAT has the jurisdiction to resolve disputes between neighbours about dividing fences, and can under section 35(1)(c) of the Neighbourhood Disputes Act (Dividing Fences and Trees) 2011 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 and under section 35(1)(b) the fencing work to be carried out, including the kind of dividing fence involved.
Further it is clear that the equal contribution required by section 21 is only a starting point and QCAT can order such contributions as are fair and just.
A dividing fence is defined in section 12 of the Act as a fence “on the common boundary of adjoining lands”
The fence the subject of this application is on the common boundary of adjoining lands and is therefore a dividing fence.
Notice to Contribute – Dividing Fence:
The first issue is whether the respondent should contribute half the cost of a sufficient dividing fence between the properties.
Under section 21 of the Neighbourhood Disputes Act (Dividing Fences and Trees) 2011 adjoining owners are each liable to contribute equally to a ‘... sufficient dividing fence’:
The Applicants constructed a new home with a pool. The Applicants want to construct a colorbond or wood paling fence on the common boundary for privacy and security.
The Applicants served a Notice to Contribute pursuant to section 31 of the Act to the Respondents to construct a new dividing fence at approximately 40 metre long, 1.8 metre high & constructed from colorbond material.
The Respondents do not reside on their land, it is a vacant lot. The Respondents do not have plans to construct a dwelling.
Sufficient Fence:
Section 12 Meaning of a Dividing Fence
(1) A dividing fence means a fence on the common boundary of adjoining lands.
The Respondents say there was a sufficient fence in place which the Applicants removed without their consent and wish to be put back in the same position they were in prior to the fence being removed.
The Applicants say that the fence was laying on the ground and was not sufficient.
In deciding an application about whether a dividing fence is a sufficient dividing fence, QCAT may consider all the circumstances of the application pursuant to section 36 of the Act.
In deciding an application about whether a dividing fence is a sufficient dividing fence, QCAT may consider all the circumstances of the application, including the following—
(a) any existing or previously existing dividing fence;
(b) the purposes for which the 2 parcels of land consisting of the adjoining land are used, or intended to be used;
(c) the kind of dividing fence normally used in the area;
(d) whether the dividing fence is capable of being maintained by the adjoining owners;
(e) any policy adopted, or local law made, in relation to dividing fences by a local government for the area where either parcel of land is situated;
(f) any requirement for fencing work in a development approval for the land of either adjoining owner;
(g) any written agreement made between the adjoining owners for the purposes of this chapter.
Unauthorised Removal of Trees/Shrubs/Vegetation or Unauthorised Construction or Demolition:
The Mr Kelly says that he did not remove the existing dividing fence structure and the house contractors may have removed the fence during the construction of his home.
On 6 July and 10 August 2015 Mr Kelly admitted that he cut down the bracken and paperback trees as the bracken was entangled and growing within the dividing fence structure.[1]
[1]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 68.
When deciding these applications, QCAT must consider “the location of the tree in relation to the boundary of the land on which the tree is situated and any premises, fence or other structure affected by the location of the tree”. [2]
[2]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 73(1)(a).
The Applicants say the trees were overgrown bracken and dead bushes not trees or shrubs.
The Respondents state they did not authorize either the removal of the dividing fence or the removal of the trees/shrubs from their property.
The Applicants say they want privacy from the main road into their yard and pool area but also for security purposes.
The Applicants state that their neighbour on the other side of their property has a colorbond fence and that it is becoming a common fence within the area.
The Applicants provided photographs of their neighbours colorbond fence and other fences of timber construction within the immediate area.
On 28 August 2015 the Applicants submitted the new evidence including witness statements as to the condition of the diving fence to QCAT, however these statements were submitted following the Tribunal order of 10 August 2015.
Removal of Surveyor’s Pegs:
The Respondents say the Applicants removed surveyor’s pegs defining the common boundary of the property.
The Respondents say they paid approximately $2,000 to have their land surveyed, which included the common boundary (Invoice & plan provided).
The Applicants say the survey pegs were removed by the pest control contractors because there were white ants in both the front and back pegs.
The original holes in the ground and the survey pegs were still present on site, however the survey pegs had been removed (visible in photos 6 July 2015).
Mr Kelly admitted under oath at the hearing on 6 July 2015 that he had cut down and removed bracken and paper bark trees.
The Tribunal relied on aerial photographs and survey plans to determine the position and existence of the shrubs/trees/bushes on or between the properties.
The Respondents were not agreeable to the pegs being put back into the holes and requested that the common boundary line between the properties be re surveyed.
On 6 July 2015 an order was made for the Applicants to have the common boundary line between the properties re surveyed and a report provided to the Respondents and QCAT prior to the next hearing date.
On 10 August 2015 Mr Kelly says he had the common boundary line re survey and certified. Mr Kelly did not provide the survey report as it was a further cost of $150 over and above the $800 he paid to have the boundary line surveyed, as ordered in the previous hearing of 6 July 2015.
The Applicants were further ordered to comply with the previous order and provide the report.
Non-Compliance with Tribunal Order:
On 28 August 2015 the Applicants emailed a statement advising that they would not be complying with the QCAT Tribunal order of 10 August 2015.
On 28 August 2015 the Applicants also submitted witness statements and a form 43 by email to QCAT.
In deciding these applications QCAT must consider section 28 of the Queensland Civil and Administrative Tribunal Act 2009 which says:
(e) must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.
The Tribunal is of the opinion that there is no reason the Applicants could not have submitted the evidence, which consisted of witness statements, provided on 28 August 2015 for consideration at either of the earlier hearings on 7 July or 10 August 2015.[3]
[3]Milnes v Middleton & Sharpe [2015] QCATA 156.
0