Muggeridge v Mercer - [2013] QCAT 491

CITATION:

Muggeridge v Mercer & Anor [2013] QCAT 491

PARTIES:	Monica Muggeridge (Applicant)
V
Trevor Mercer & Donna Scovell (Respondent)

APPLICATION NUMBER:

MCDO741-13

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

22 August 2013

HEARD AT:

Brisbane

DECISION OF:

J Bertelsen, Adjudicator

DELIVERED ON:

13 September 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

DIVIDING FENCE – common boundary – delineation of common boundary – a fence within 1 property not a dividing fence – prerequisites to construction of dividing fence on common boundary where adjoining property levels differ – consequences of offset retaining wall encroaching and/or detracting from land area of either property.

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Monica Muggeridge & Todd Crighton

RESPONDENT:

Trevor Mercer & Donna Scovell

REASONS FOR DECISION

Application

By application filed 10 April 2013 the applicant Ms Muggeridge the owner at 27 High Street, Milton sought orders as to the practical position of a suitable dividing fence, the type of fence to be constructed and/or the replacement of the dividing fence that was removed apropos her property’s common boundary with 23 High Street, Milton owned by the respondents Mr Mercer and Ms Scovell.

Background and evidence

27 High Street is on the lower side to 23 High Street. Until 2007 there was a 30-40 year old besser brick wall on the boundary between the properties. It was failing and leaning over into Ms Muggeridge’s property. At about the same time in March 2007 23 High Street was sold to Mr Mercer and Ms Scovell. It was a condition of sale that the retaining wall be replaced.
The original design for the retaining wall provided for an upright 90 degree bigger stronger masonry block wall. That was going to be costly, perhaps too costly for the departing owner 23 High Street given that it was his responsibility to replace the old failing wall. A cheaper compromise solution was reached between the departing owner of 23 High Street and Ms Muggeridge which would have the least impact on both owners at that time. It was a pier and post configuration; spaced steel posts embedded in substantial concrete footings with wooden rails. The wall itself was offset at an angle of 10° i.e. it was on a lean back into the side of the boundary of 23 High Street such that the top of this retaining wall was some 250mm inside what would otherwise have been the boundary had an upright perpendicular wall been constructed. The construction of this retaining wall was paid for entirely by the departing owner 23 High Street. The purpose of the exercise was to provide a level building block for the incoming owners Mr Mercer and Ms Scovell. This retaining wall was about 1 metre high towards the front of the common boundary and about 1.8 metres plus at the rear of the common boundary. Mr Mercer contended that at the rear the 1.8 metre high wall created a loss of 180mm at the top of the wall; that wooden posts of a wooden paling fence at 150mm on top of the wall created a total loss of 350mm at the least in that section and that such was a significant loss. Ms Muggeridge stated that the concrete piers (the concrete into which the steel posts were embedded) were primarily on her property; that she “agreed to this encroachment in good faith with the previous owner to reduce the loss of land at the top of the wall.” She admitted in evidence that she went along with the pier and post wall and wooden paling fence being placed on the high side land 23 High Street. It is however the case that even with the construction of an upright 90° perpendicular wall that part of the footings would in normal circumstances be partly on each of the owners land.
Upon completion of the pier and post retaining wall a 1.8 metre wooden paling fence was constructed on the top of it for the length of the common boundary between the properties but in reality built entirely on 23 High Street some 250mm in from the true boundary line which is now effectively a notional boundary line suspended mid air, as it were, when viewed from the level of 23 High Street. Ms Muggeridge asserted it was the “practical and sensible place for a fence”. The cost of this wooden paling dividing fence was shared between the departing owner – 23 High Street and Ms Muggeridge on terms agreed between them. It was clear from the evidence of Mr Mercer and Ms Scovell that they were not particularly enamoured of the “wooden paling fence”. They considered it ugly, poorly constructed, too high and impacting on their usable space.
In 2010 part of the wooden paling fence being some 6 metres at the rear was removed by Mr Mercer and Ms Scovell and replaced with a glass or perspex style clear pool fence adjacent to where the swimming pool was located at the rear of 23 High Street. Access to 27 High Street was provided by Ms Muggeridge to facilitate construction of this portion of new dividing fence by the contractor “Grant”. Functioning as a pool fence as well as a dividing fence it was not surprising that it was paid for by Mr Mercer and Ms Scovell.
Given that 23 High Street is a small block 10 metres frontage and 25 metres depth Mr Mercer and Ms Scovell sought to utilise every square inch of their land.
A 9 metre timber walkway was constructed beside the newly constructed dwelling which was also some 9 metres long. This 1700mm wide timber walkway is cantilevered over the top line of the retaining wall by some 110mm but is still some 50mm, according to Mr Mercer, inside the notional boundary line for the length of the walkway.
Mr Mercer asserted that a 1800mm fence next to a 1700mm wide walkway created a tunnel effect in such a small narrow block. He asserted the 23 High Street house to be 1950mm from the true boundary. According to Mr Mercer the walkway was constructed as a platform for shade houses and balustrade and as a landscaping feature.
From mid 2010 to the end of 2011 the remaining 19 metres of wooden paling fence was progressively removed according to Mr Mercer after repeated discussions with Ms Muggeridge about light, breeze, eye sore, loss of usable space and agreement with Ms Muggeridge that such fence was appalling. The 9 metre section adjacent to the dwelling 23 High Street was removed in mid 2011. Ms Muggeridge asserted that she never agreed to the removal of the 19 metre section of fence.
Subsequent to removal of the 9 metre portion of wooden paling fence Mr Mercer and Ms Scovell established a greenhouse near the edge of the cantilevered platform and some 45mm from the true notional boundary.
The remaining 10 metres of fence through to the frontages of both properties was thereafter progressively removed in 2011. Ms Muggeridge thought she had no rights or control over the situation; that if she wanted a fence it would have to be on the common boundary. However, in this section, Ms Muggeridge constructed a raised planter bed against the retaining wall and backfilled to create a garden bed abundant with magnolias.
The only border as such between the properties then is a lightweight 6 metre pool fence, 9 metres shade house / shade cloth (both constructed within Mr Mercer and Ms Scovell’s property) and magnolias in the front 10 metre section within Ms Muggeridge’s property.
Some discussion took place as to the best way to construct a dividing fence on the true common boundary; whether any such fence could be attached to the walkway and/or the retaining wall; whether the structural connection would be sufficient for any such dividing fence given that it would have to be constructed from the ground up on the true common boundary located on the lower side i.e. what might otherwise appear to be on Ms Muggeridge’s land in terms of levels (the bottom of the wall being some 10 to 65mm inside Mr Mercer and Ms Scovell’s property); that any such dividing fence could be up to 1.8 metres high of the level of Mr Mercer and Ms Scovell’s land level; that such a dividing fence to be structurally adequate given the initial rise of between 1 metre and 1.8 metres ground level, 27 High Street to ground level 23 High Street and a further (up to) 1.8 metres constituting the effective dividing fence for the purposes of Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (NDR); and finally the right to construct a dividing fence up to 1.8 metres high.

Conclusions

In 2007 a pier and post retaining wall was constructed between the properties 27 High Street (lower side) and 23 High Street (higher side) Milton. It replaced an old besser block retaining wall that was leaning and generally failing. The replacement retaining wall at ground level on 27 High Street is some 15-65mm inside of the common boundary line between the 2 properties on the 23 High Street side. Only a portion of the footings are below ground level at 27 High Street. The top of the pier and post retaining wall is up to 250mm inside the common boundary line on the 23 High Street side of the common boundary. The pier and post retaining wall was built at a 10 degree offset angle into 23 High Street. The construction of this retaining wall was an arrangement between Ms Muggeridge as owner of 27 High Street and the outgoing owner of 23 High Street in 2007. It seemed to suit the outgoing owner and Ms Muggeridge at that time. This was however at the time an arrangement between the outgoing owner of 23 High Street and Ms Muggeridge. It does not affect Mr Mercer and Ms Scovell’s rights in relation to their own land and the maximum use of that land.
After completion of the pier and post retaining wall in 2007 (fully paid for by the outgoing owner of 23 High Street) a wooden paling fence was constructed on top of the retaining wall entirely on the land being purchased at that time by Mr Mercer and Ms Scovell. In fact it transpires that it was a condition of sale of 23 High Street that the old failing retaining wall be replaced. The wooden paling fence was constructed with both the outgoing owner at the time and Ms Muggeridge contributing to the cost. It is clear that such wooden paling fence was entirely on the land purchased by Mr Mercer and Ms Scovell and as such they were entitled in due course to remove it.
There is no provision nor any authority for the proposition that any obligation created by the agreement made between Ms Muggeridge and the outgoing owner at that time (2007) passed or travelled with the land i.e. that Mr Mercer and Ms Scovell’s title to their land was affected by the 2007 agreement between the outgoing owner 23 High Street and Ms Muggeridge. This approach is supported by section 29 NDR which states:
“The occupation of land on either side of a dividing fence, as a result of an agreement under this chapter that fencing work is to be carried out on a line other than on the common boundary of the adjoining lands, does not affect the title to, or possession of, the land.”
The purport of the NDR legislation and its predecessor, the Dividing Fences Act 1953 was always simply to ensure the right of any owner at any time to prosecute a claim for the construction of a dividing fence and generally to claim contribution towards the construction of any such dividing fence. The wooden paling fence, though structurally functional, was never a dividing fence for the purposes of section 12 (nor does it fall within the exceptions in that section) of the NDR.
It was never the case therefore that Ms Muggeridge was ever entitled to apply directly to the Tribunal for orders including “replacement of the dividing fence that was removed”. That is not to say Ms Muggeridge does not have the right to apply for resolution of a dividing fence dispute so long as the dispute in terms of section 30(3) arises out of (a) “carrying out fencing work for which a notice to contribute has been given.” Ms Muggeridge has not given a notice to fence; nor does the email trail produced by Mr Mercer and Ms Scovell amount to a notice to contribute or even fence. Fencing work is defined in section 16 of the NDR as meaning, inter alia, “the design, construction, modification, replacement, removal, repair or maintenance of the whole or part of the dividing fence…”.
The construction of a dividing fence will now no doubt pose greater difficulties than if a strong upright masonry block wall had been constructed in 2007 as it appears was originally envisaged. If that were the case a dividing fence could have been constructed on the common boundary on top of such a wall. The position now is that a freestanding fence if constructed will be required to be anchored in footings on the common boundary supported to the land level of 23 High Street with a dividing fence of up to 1.8 metres high to be erected up from that point. Support for any such freestanding fence might well have to be other than or in addition to attachment to the pier and post wall to achieve long term strength and stability. There appears to be no reason why both parties ought not be obliged to contribute to the erection of such a dividing fence given that the configuration of the 2 adjoining properties is now such to require any fence to be constructed in the manner as described.
There is no liability on the part of Mr Mercer or Ms Scovell to reinstate the wooden paling fence originally constructed on their land. Any dividing fence now proposed to be constructed must now be by agreement between the parties or pursuant to a notice to contribute as described in sections 30 and 31 of the NDR. The quotes already obtained by the parties may be of assistance for the purpose of any such notice to contribute to construction of a dividing fence in the future.
The practical position and type of dividing fence that might be constructed have been discussed at some length. There was never however any obligation concerning the replacement of any dividing fence arising in terms of this application. The application is therefore dismissed.