Landers v Holmes

[2018] QCATA 87

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Landers v Holmes [2018] QCATA 87

PARTIES:

JASON PHILLIP LANDERS
(applicant/appellant)

v

JANE RONELLE HOLMES

(respondents)

APPLICATION NO/S:

APL018-18

ORIGINATING APPLICATION NO/S:

MCDO66-17

MATTER TYPE:

Appeals

DELIVERED ON:

8 June 2018

HEARING DATE:

29 May 2018

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

ORDERS:

1.   Leave is refused.

2.   The application for leave to appeal or appeal is dismissed.

CATCHWORDS:

APPEALS – MINOR CIVIL DISPUTE – DIVIDING FENCE – where the applicant opposes the construction of a chain wire fence on the boundary line between two adjoining properties – where the applicant claims the fencing work is unreasonable because it will create a void of approximately 30 centimetres between the fence and a 3.3m high structural retaining wall and garden screen on the respondents’ property that is not maintainable – where the disputed retaining wall is not a dividing fence and the tribunal is specifically required not to consider it – where the maintenance of the fence is not a mandatory discretionary factor – where the applicant has failed to show any vitiating error warranting a grant of leave – where the application is dismissed

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 ss 7(1), 11(1), 12(1), 12(2), 13(2), 36

House v The King (1936) CLR 499

Kruse v Johnson [1898] 2 QB 91

Minister for Immigration and Citizenship v Li
(2013) 249 CLR 332
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014

APPEARANCES:                 
Applicant:
Respondent:

Self represented
Self represented

REASONS FOR DECISION

1. This is an application for leave to appeal a tribunal order under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Fencing Act) for the construction of a chain wire dividing fence on the currently unfenced common boundary of the parties’ adjoining properties.

2. A structural retaining wall and “garden screen” (totalling 3.3m) erected 30 to 40 cm on the respondents’ land runs parallel to the boundary line but does not span the entire length.  It is common ground that the tribunal has no power under the Fencing Act to make orders into relation to it.

3. The applicant claims the tribunal’s order was an error of law because it was unreasonable. He says compliance with the order will create a “void” between the new fence and existing retaining wall that cannot be properly maintained without the respondent trespassing on his property and creates a health risk by providing safe haven for rats, snakes and spiders.

4. As stated in his filed Form 39 the applicant’s proposed grounds of appeal are:

   (a)the decision is unsafe – member failed to consider serious health and safety issues arising from the decision;

   (b)ordering a boundary fence be erected without ordering removal of non-boundary fence, a 30cm void is created between the two fences, creating safety hazard;

   (c)the void creates a space for vermin, snakes, spiders, etc. to shelter and breed;

   (d)there is no utility erecting a 1.8m high fence 30cm abreast of existing fence approximately 4m high along 2/3 of the boundary line;

   (e)the applicant’s property will be rendered aesthetically unappealing, affecting the value of the property;

   (f)if the applicant is ordered to contribute to the fence, the applicant is entitled to have input into type of fence erected.

5. He seeks orders that the existing fence on the “incorrect boundary line” be removed and a new dividing fence be erected on the common boundary. The parties are to arrange construction jointly and share the cost equally. The respondent should bear the cost of demolishing and removing the existing fence and associated works.

6. In his submission the tribunal failed to consider the lack of utility in constructing a fence along the boundary line when there is a 3.3m high existing fence 30cm from the boundary line. He says the status quo is more mutually beneficial.

7. In response, the respondent says that the tribunal gave adequate consideration to the range of discretionary factors in s 36 of the Fencing Act before making the order, including the fact that there is no fence on the boundary line and chain wire is a kind of fencing material ordinarily used in the area which is easy to maintain.

8. She says that the chain wire fence is beneficial because it clearly defines the boundary line between the two properties as per the title description and will allay their concerns that the applicant is encroaching on their property.

9. It is the entrenched practice of the tribunal that grants of leave to appeal from dividing fence orders are for cases of likely error in need of correction to remedy substantial injustice to the applicant.  The error must have a vitiating effect; that is, rob the applicant of a legitimate chance of a better result.

10. Where, as here, the only question the application raises relates to the proper exercise of discretion, error must be established in one or more of the following ways:

    ·misstatement or misapplication of principle or legal test;

    ·irrelevancy;

    ·failure to adequately consider;

    ·mistake of fact or irrationality;

    ·the decision is manifestly unreasonable or plainly unjust in the sense that it is untenable or outside the permissible range of choices reasonably open on the material when given its proper weight.[1]

    [1]House v The King (1936) 55 CLR 499, 505; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 348.

11. Leave applications are concerned with the legality of the tribunal’s decision not a reconsideration of the merits.  It is not the appeal tribunal’s role to review the fact finding process and substitute its own discretion for the tribunal’s just because it would have reached a contrary conclusion on the same facts or made a different choice.

12. Given the error based nature of the proceeding it is generally inappropriate to receive new or additional evidence where the hearing procedures are not challenged.  In deciding whether a dividing fence is sufficient QCAT may consider all the circumstances of the application including any existing or previously existing dividing fence, the current or intended uses of neighbouring land and whether the dividing fence is capable of being maintained.[2]

    [2]Fencing Act s 36(a), (b), (d).

13. A sufficient dividing fence is required by the law between 2 parcels of land if an adjoining owner requests a dividing fence.[3] A dividing fence means a fence on the common boundary.[4] A fence separating neighbours on a line other than the common boundary is also a dividing fence if the construction of a fence entirely on the common boundary is impracticable.[5]

    [3]Fencing Act s 7(1).

    [4]Fencing Act s 12(1).

    [5]Fencing Act s 12(2)(a).

14. However, the existence of a fence, other than a dividing fence, on adjoining land must specifically not be taken into account in deciding whether there is a sufficient dividing fence.[6]

    [6]Fencing Act s 13(2).

15. A retaining wall is not a fence, but a structure bounding land, whether or not continuous along the entire boundary,[7] is, and so is a supporting foundation.

    [7]Fencing Act s 11(1)(c).

16. Assuming in the applicant’s favour the disputed structure is a fence it is clearly not a dividing fence because it is not on the common boundary or of permitted dimensions. It therefore could not be taken into account by the tribunal in considering whether or not to order the construction of a sufficient dividing fence in compliance with the requirement in s 7(1) Fencing Act and its maintenance was not a mandatory consideration.[8]

    [8]Cf. Fencing Act s 36(d).

17. Accordingly, there is no arguable “failure to consider” error. The only remaining issue raised by the application is the reasonableness of the fencing work order.

18. The test for legal unreasonableness was settled by the High Court in Minister for Immigration and Citizenship v Li[9] (Li).   In the first place the validity of a contested judgment is assessed by reference to the subject matter, scope and purpose of the statute conferring the discretion.  The next inquiry is into whether the decision was within the margin of freedom to prefer one option over another without being wrong even if others reasonably disagree.

    [9](2013) 249 CLR 332.

19. As French CJ explained:[10]

    Vitiating unreasonableness may be characterised in more than one way susceptible of judicial review. A decision affected by actual bias may lead to a discretion being exercised for an improper purpose or by reference to irrelevant considerations. A failure to accord, to a person to be affected by a decision, a reasonable opportunity to be heard may contravene a statutory requirement to accord such a hearing. It may also have the consequence that relevant material which the decision-maker is bound to take into account is not taken into account.

    In Wednesbury Corporation, Lord Greene MR observed that the word "unreasonable" in administrative law was used to encompass failure by a decision-maker to obey rules requiring proper application of the law, consideration of mandatory relevant matters and exclusion from consideration of irrelevant matters:   "If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'." That kind of unreasonableness may be taken to encompass unreasonableness from which an undisclosed underlying error may be inferred.

    Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider "they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it”. In such a case the court may interfere.

    [10]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 350 (footnotes in original omitted).

20. Thus, a reasonable decision is one that is logically and rationally open but not compelled to achieve its intended purpose.

21. An irrational or unreasonable decision, by contrast, reflects partiality, dishonesty, malice, discrimination, oppression, “gratuitous interference with the rights of those subject to them”,[11] insensibility (in the sense of acting without “due appreciation of (statutory) responsibilities”[12] or disproportionality.

    [11]Kruse v Johnson [1898] 2 QB 91.

    [12]Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1064.

22. Ultimately, unreasonableness is an inference or “… a conclusion … applied to a decision which lacks an evident and intelligent justification”.[13]

    [13]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 367 [76] (Hayne, Kiefel and Bell JJ).

23. The applicant has failed to demonstrate, according to these criteria, that it is tenable to argue on appeal that the tribunal’s decision is vitiated by a specific error or that no reasonable tribunal honestly, fairly and justly considering the substantial merits would not have made the same order.

24. Leave is refused.  Application dismissed.