McGrath and Anor v Fleming Group Developments Pty Ltd ACN 617 721 687 and Ors (Civil Dispute)

[2020] ACAT 47

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MCGRATH & ANOR v FLEMING GROUP DEVELOPMENTS PTY LTD ACN 617 721 687 & ORS (Civil Dispute) [2020] ACAT 47

XD 189/2020

Catchwords: CIVIL DISPUTE –– fence dispute – private nuisance – relevant consideration for replacement of a fence; aesthetics, noise abatement, safety of children and pets, privacy, durability and maintenance issues – loud air conditioner – where elevated property ‘overlooks’ adjacent property

Legislation cited:     ACT Civil and Administrative Tribunal Act 2008 ss 15, 16

Common Boundaries Act 1981 ss 5, 10, 11

Cases cited:   Bishop & Anor v Sakkara & Anor [2020] ACAT 45

Cherian v Roy [2017] ACAT 106

McGrath and Anor v ACT Planning and Land Authority and Anor [2018] ACAT 100

Tribunal:       Senior Member A Anforth

Date of Orders:  30 June 2020

Date of Reasons for Decision:         30 June 2020AUSTRALIAN CAPITAL TERRITORY          

CIVIL & ADMINISTRATIVE TRIBUNAL  XD 189/2020

BETWEEN:

ANGELA MCGRATH

First Applicant

ANDREW CROSS

Second Applicant

AND:

FLEMING GROUP DEVELOPMENTS PTY LTD ACN 617 721 687

First Respondent

IAN FLEMING

Second Respondent

SCOTT FLEMING

Third Respondent

TRIBUNAL:  Senior Member A Anforth

DATE:                  30 June 2020

ORDER

The Tribunal orders that:

1.           The applicants and the second and third respondents are to replace their common boundary fence with a 1.8m Colorbond fence (or such other height as may be determined by further order of the Tribunal) located on top of a treated wooden base spanning the length of the fence.

2.           If any party seeks to argue for a higher fence, then the party should make application to the Registrar to be heard on that issue within 7 days of receipt of this decision.

3.           The applicants and the second and third respondents are to agree to the colour or in default may seek further orders of the Tribunal on that issue within 7 days of receipt of this decision.

4.           The applicants and the second and third respondents are to accept the quote from One Way Fencing of 30 October 2019. If One Way Fencing is not prepared to adhere to that quote, then the applicants and the second and third respondents may either agree a replacement contractor or seek further order from the Tribunal that issue within 7 days of receipt of this decision.

5.           The applicants are to act as the project manager for the replacement fence.

6.           The second and third respondents are to provide all reasonable and necessary access to the applicants and tradesmen for the purpose of replacing the fence.

7.           If any problems arise with Orders 5 and 6 any party may seek further directions from the Tribunal on that issue.

8.           The application against the first respondent is dismissed.

………………………………..

Senior Member A Anforth

REASONS FOR DECISION

1.           The respondents at different times owned the same house adjacent to that of the applicants in suburban Canberra. A dispute has arisen between them concerning their common boundary fence which is now before the Tribunal to resolve under the Common Boundaries Act 1981 (the Act).

2.           The geography of this dispute is important. The respondents’ house was recently knocked down and replaced with a dual occupancy. The common boundary fence with the applicants remained in place. It was a standard 1.5m high wooden paling fence. The respondents constructed a concrete path and steps along their side of the common fence (see annexure 1 below). There are four large air conditioners constructed on this path in the elevated manner shown in annexure 2 below. The applicants’ backyard abuts the fence with the concrete path and air conditioners in the manner shown in annexure 3 below. The applicants’ master bedroom faces the air conditioners.

3.           In short, the applicants complain that the built-up path causes an invasion of their privacy due to the ‘overlooking’ caused by the raised concrete path and steps, and the air conditioners cause noise and hot air nuisance. The applicants want a higher Colorbond fence of 1.8m to help protect their privacy and to abate, in part, the noise and hot air nuisances. The applicants contend that the respondents should pay the majority of the cost because the respondent caused the problem via their mode of construction of their rebuild.

4. The respondents argue that the fence complies with the building approval given for the construction of the house; the air conditioners are lawful and operate within lawful noise levels. The respondents argued that privacy, nuisance and aesthetic concerns of the applicants are irrelevant to the Tribunal’s powers under the Act.

5.           Relations between the parties have deteriorated and these proceedings have been interspersed with personal allegations of one form or another, which the Tribunal has ignored.

6.           The applicants filed their application with the Tribunal on 14 February 2020 against the first respondent only, who was at that time the owner of the adjacent house. The claim was succinctly summarised as follows:

(a) The built-up concrete path running along the inside of the respondents’ fence has raised the ground level such as to reduce the effective height of the fence to about 550mm.

(b) The above causes a significant loss of privacy to the applicants.

(c) The built-up path is using the fence as a retaining wall and will cause it to rot.

(d) The respondents’ four large air conditioners are unsightly, noisy and cause blasts of hot air onto the applicants’ land.

7.           The claim annexed:

(a) site plans of the concrete path and air conditioners on the respondents’ side of the fence;

(b) photographs of the view of the air conditioners from the applicants’ side of the fence;

(c) photographs of the existing paling fences;

(d) a quote from One Way Fencing for 49.2m of 1.8m Colorbond fencing at $3,670 with sleepers installed under the fence to the height of the respondents’ paths at a further $1,350, all plus GST;

(e) a quote from Inbound Fencing Canberra for the same work at $12,644.40 inclusive of GST, except it included $738 for removing existing fence;

(f) a notice to discuss fence dated 3 December 2019 (the Notice) and a chain of emails between the parties. The Notice was directed to Ms Arnold, the director of the first respondent at that time;

(g) an ASIC extract of 9 February 2020 for the respondent company showing it is still registered and showing the second respondent as the sole director;

(h) an interim Personal Protection Order in favour of Ms McGrath and against the second respondent, Mr Fleming dated 27 September 2019.

8.           On 11 March 2020 the applicants advised that title to the ownership of the adjacent property had been transferred from the first respondent to the second and third respondents. The Tribunal notified the second and third respondents and made an order joining them as respondents.

9.           On 16 April 2020 the respondent filed their response to the claim. Part of that response contended:

(a) the existing fence complied with all planning laws and is adequate for its purpose;

(b) the path along the inside of the respondents’ fence does not function as a retaining wall;

(c) the applicants’ privacy concerns are irrelevant and in any event the infringement with that privacy is minor;

(d) the applicants’ concerns about the security of their children is irrelevant;

(e) the air conditioners are approved and their size and location is irrelevant;

(f) the request for a higher fence is unreasonable as is the request for a Colorbond fence to be built largely at the respondents’ cost;

(g) the applicants’ other boundaries are basic paling fences.

10.         The respondents contended that the applicants’ application was invalid because the applicants had only served the Notice on the first respondent and its director, Ms Arnold and not with the second and third respondents personally. The Tribunal notes that the second and third respondents have been actively involved in the case at all times. The second respondent is the father of the third respondent. The second respondent was the sole director of the first respondent for some of the time and the personal owner of the house for some of the time. The applicants and the second respondent were not on speaking terms and hence the Personal Protection Order. The Tribunal notes that the email address of Ms Arnold continues to be the same business address as that used by the second respondent in his correspondence with the Tribunal. The Tribunal is satisfied that the service of the Notice on the first respondent was also effective service on the second and third respondent and the above jurisdictional point taken by the second respondent lacks merit and is an attempt to frustrate the resolution of the issues between the parties.

11.         The respondents referred to prior proceedings between the parties in the Tribunal that involved the fence issue, and asserted that the applicants were now acting in a manner inconsistent with their position before the Tribunal in that matter. The presently constituted Tribunal has read this decision and nothing in it appears to be relevant to the present matter. The respondents’ allegation of inconsistency hinges on things said between the parties and offers made as part of negotiations in those previous proceedings. The present Tribunal is not in a position to understand the content or context of those negotiations and so cannot afford those factors any weight.

12.         The matter was listed before the Tribunal on 17 April 2020. The parties appeared in person by phone. There was a short discussion of the issue, including the alleged noise and hot air nuisance caused by the air conditioner. The respondents affirmed their position that the air conditioners were lawful and would not be moved.

13.         The Tribunal suggested that it may profit from a site visit at which time the air conditioners could be turned on to demonstrate the level of noise, hot air blasts and ‘overlooking’ occurring to the applicants’ land. The parties agreed and arrangements were made.

14.         Subsequently, the Tribunal policy on site visits changed due to the COVID-19 virus and the site visit had to be abandoned. New orders were made for the parties to file and serve any further photographs and sound recording evidence they wished to rely upon, after which the matter would be determined without further hearing.

15.         On 21 April 2020 the applicants filed a four-page submission which largely repeated their prior submissions and denied the various assertions in the respondents’ submissions.

16.         On 14 May 2020 the applicants filed two audio-visual recordings of the fence and air conditioners and the respondents filed one audio recording. The Tribunal watched and listened to the recordings. It was difficult to come to any understanding of the noise level from these recordings. Nor could these recordings demonstrate the alleged hot air blasts. If circumstances had permitted it would have been preferable to have adhered to the original plan for a site visit.

17.         The respondents filed a statement by Alexandra Arnold, director of the first respondent. In that statement Ms Arnold asserted that the existence of the air conditioners was irrelevant to the fence issue; its noise levels are within lawful limits, the aesthetic impact of the air conditioners is irrelevant and in any event the applicants could plant trees along the fence to deal with that issue.

18.         Ms Arnold filed a statement from Scott McNivan, registered surveyor who reported that:

(a) the fence was correctly aligned and did not encroach;

(b) the concrete path does not encroach on the boundary and is set back 0.1m from the boundary;

(c) the finished floor level of the building is not the natural ground level;

(d) the existing fence is erected on the natural ground level;

(e) the existing fence is approximately 47.34m in length.

19.         On 15 May 2020 the respondents filed a statement from Stephen Kolano, registered surveyor who affirmed the contents of the report from Mr McNivan and added that the backfill supporting the concrete path did not use the fence as a retaining wall and was set back 50mm from the fence.

The relevant law

20. Section 5 of the Act provides for applications to the Tribunal:

5(1) This section applies if—

(a)     adjoining parcels of land are separated by a fence; and

(b)     the occupier of 1 of the parcels has asked the occupier of the adjoining parcel to join in the repairing or replacing of a fence between the parcels; and

(c)     either—

(i)    the occupier of the adjoining parcel has refused to join in the repairing or replacing the fence; or

(ii)   the occupiers of the parcels are unable to agree about a matter relating to the repairing or replacing of the fence.

(2) Either occupier may apply to the ACAT for a new fence determination.

Note If a form is approved under the ACT Civil and Administrative Tribunal Act 2008 for the application, the form must be used.

(3) However, an occupier must not apply to the ACAT unless—

(a)     the occupier has given the occupier of the adjoining parcel (the other occupier) a notice asking the other occupier to discuss the repairing or replacing the fencing of the boundary between the parcels; and

(b)     1 month has passed since the day the occupier gave the notice to the other occupier.

Note If a form is approved under the ACT Civil and Administrative Tribunal Act 2008 for the notice, the form must be used.

(4) For subsection (1), an occupier who does not join in the repairing or replacing a fence within 14 days after the day the occupier is asked to join is taken to have refused to join in the repairing or replacing the fence.

21. Section 11 deals with replacement fences:

11(1) This section applies if the ACAT holds a hearing on an application for a repair determination.

(2) The ACAT must determine if the fence to which the application relates is in need of repair or replacement.

(3) If the ACAT determines that the fence is in need of repair or replacement, the ACAT may determine—

(a)     whether the party other than the Applicant should be required to contribute to the cost of the repair or replacement of the fence; and

(b)     the nature of the repair that is required or the nature of the replacement fence that should be erected; and

(c)     the party who should be responsible for the repair or replacement; and

(d)     the amount that should be contributed by the other party to the cost of the repair or replacement; and

(e)     how, and by when, the amount should be paid to the party responsible for the repair or replacement.

(4) For the purpose of determining the amount that should be contributed under subsection (3) (d), the ACAT must apply the principle that the cost should be borne by the parties in equal proportions unless there are circumstances that make it just that 1 party bears a greater proportion of the cost than the other party.

22.         In Bishop and Lancaster v Sakkara and Sakkara [2020] ACAT 45 the presently constituted Tribunal considered section 10 on new fences and wrote:

3.     A dispute has arisen between the parties. The applicants want to construct a 1.8m Colorbond fence in a ‘monument’ colour. The applicants contend that this fence would be more durable, strong, fire resistant, rot proof and maintenance free than a wooden fence. The fences on the applicants’ other boundaries are already Colorbond and the applicants seek to match them.

4.     The respondents contend that Colorbond is ‘unattractive’ and has heat reflective properties that will make it difficult for plants to survive along the fence line.

5. Unfortunately, relationships between the neighbours have deteriorated over the fencing dispute and allegations of bullying and other improper motives have spilled over into the Tribunal. Beyond noting this fact, the Tribunal does not propose to address these issues. An owner may have any lawful motive they choose for the position they adopt on a common boundary dispute, including aesthetic and personality facts. These considerations may be relevant to the Tribunal’s decision, but they are not exhaustive of the relevant considerations under sections 4 and 10 of the Act.

6. Sections 4 and 10 of the Act do not impose any specific criteria upon the Tribunal’s decision making in relation to a new fence. Hence the Tribunal’s evaluative judgement is constrained only by those facts that are taken to have formed part of the legislative intent of the Act. A common boundary is important for various reasons, including:

(a)     accurately delineating the boundary line;

(b)     constraining children and pets to their yards;

(c)     excluding trespassing persons or animals;

(d)     promote visual privacy;

(e)     abate noise nuisances from adjacent properties; and

(f)      enhance the aesthetics of the block.

7.     Owners of land come and go, but the block and fences remain. The fence has to continue to serve the above purposes notwithstanding changing ownerships. For this reason, the personal views of the present owners cannot be fully determinative of the Tribunal’s decision.

8.     In Cherian v Roy [2017] ACAT 106 at [20] I made a similar point which I see no reason to diverge from:

9.     The right of one neighbour to insist on a common boundary fence is consistent with the common law duty of a landowner to fence in all things or effects that may emanate from their land and adversely affect the neighbours land. For example, any injuries to the applicants’ children caused by a dog gaining access to their back yard via the respondent’s unfenced property may result in liability on the part of the respondent. The common boundary fence is the mechanism for this problem.

10.   The Tribunal accepts the applicants’ arguments in favour of a Colorbond at paragraph 2 above; and also accepts the respondents’ arguments against Colorbond at paragraph 3 above. It is a question of where the balance falls.

11.   The ‘unattractiveness’ of the Colorbond can be ameliorated to some degree by how the respondents choose to dress their side of fence. There are various inexpensive options available including, for example, meshes that already have artificial climbers or those which facilitate the growth of natural climbers. The heat problem caused by the Colorbond can be ameliorated in the same way or by painting the fence a different colour on the respondents’ side, or by inserting different panels on the respondents’ side.

12.   On the other hand, the applicants have children and pets which must be able to be constrained to their yard. Wooden fences deteriorate and palings fall off; cricket balls etc break palings. The applicants are paying for the whole of the fence.

13.   On balance, the Tribunal is of the view that the lesser inconvenience will be caused to the present and future owners if a Colorbond fence was constructed.

23. The Tribunal is of the view that the range of relevant considerations for the purpose of section 11 includes noise abatement issues, visual aesthetics, the safety of children and pets, privacy, durability and maintenance issues.

24.         In the present case the Tribunal is satisfied that the built-up concrete path does present privacy issues for the applicants and the four air conditioners are ‘unsightly’ when viewed from the applicants’ back yard. There may also be noise and hot air nuisances caused by the air conditioners, but it was not possible to determine this from the recordings.

25.         At the least, the common boundary fence should be increased in height to screen the ‘overlooking’ and unsightly air conditioners. The applicants sought an order for 1.8m measured from the treated wooden base along the fence line which was to be at the same height as the raised concrete path on the respondents’ side. The higher fence would also assist in part to abate any noise or hot air nuisance that may be occurring.

26.         The Tribunal has some doubts that 1.8m will suffice for the above purposes given the size of the air conditioners and is open to final submissions from the parties on this issue.

27.         If the fence is to be increased in height, then it is most practicably done by replacing the fence. If the fence is to be replaced then cost, durability and safety issues point to a Colorbond replacement rather than a standard paling fence. The colour of Colorbond is a matter of agreement between the parties or further submissions to the Tribunal.

28. The applicants sought an order that the respondents pay most of the cost of the replacement fence on the premise that it was the respondents’ construction that has caused the problem. The premise may be so, but the conclusion does not follow. The respondents are entitled to build any lawful structure on their property and the respondents have no need of the new fence. The existing fence is adequate for their needs. The applicants’ needs are taken into account in the range of relevant considerations going into the decision on whether to order a replacement fence or not. The Tribunal sees no reason to disturb the 50/50 apportionment set out in section 11(4) of the Act.

29.         For the purpose of giving effect to these orders and to head off further disputes between the parties, the applicants are to function as the project manager for the erection of the replacement fence and the respondents are to ensure all necessary and reasonable access to the applicants and tradesmen carrying out the work.

30.         The Tribunal is prepared to hear further submissions restricted to the height and colour of the fence. Either party wishing to be heard on these issues may apply to the Registrar for this purpose within 7 days of receipt of this decision, after which the terms of the decision stand.

31.         If One Way Fencing is no longer prepared to carry out the work for the quoted sum, then the parties may seek further directions on a replacement contractor and cost if they cannot agree on these matters between themselves.

Conclusion and orders

32.         The applicants and the second and third respondents are to replace their common boundary fence with a 1.8m Colorbond fence (or such other height as may be determined by further order of the Tribunal) located on top of a treated wooden base spanning the length of the fence.

33.         If any party seeks to argue for a higher fence, then the party should make application to the Registrar to be heard on that issue within 7 days of receipt of this decision.

34.         The applicants and the second and third respondents are to agree on the colour or in default may seek further orders of the Tribunal on that issue within 7 days of receipt of this decision.

35.         The applicants and the second and third respondents are to accept the quote from One Way Fencing of 30 October 2019. If One Way Fencing is not prepared to adhere to that quote, then the applicants and the second and third respondents may either agree a replacement contractor or seek further order from the Tribunal on that issue within 7 days of receipt of this decision.

36.         The applicants are to act as the project manager for the replacement fence.

37.         The second and third respondents are to provide all reasonable and necessary access to the applicants and tradesmen for the purpose of replacing the fence.

38.         If any problems arise with Orders 5 and 6 any party may seek further directions from the Tribunal on that issue.

39.         The application against the first respondent is dismissed.

………………………………..

Senior Member A Anforth

Annexure 1:

Annexure 2:

Annexure 3:

HEARING DETAILS

FILE NUMBER:

XD 189/2020

PARTIES, APPLICANT:

Angela McGrath

Andrew Cross

PARTIES, RESPONDENT:

Fleming Group Developments Pty Ltd ACN 617 721 687

Ian Fleming

Scott Fleming

COUNSEL APPEARING, APPLICANT

N/A

COUNSEL APPEARING, RESPONDENT

N/A

SOLICITORS FOR APPLICANT

N/A

SOLICITORS FOR RESPONDENT

N/A

TRIBUNAL MEMBERS:

Senior Member A Anforth

DATES OF HEARING:

17 April 2020