OWNERS UNITS PLAN 425 & SCRIVENER (Civil Dispute) - [2013] ACAT 14

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

OWNERS UNITS PLAN 425 & SCRIVENER
(Civil Dispute) [2013] ACAT 14

XD 12/1612

Catchwords: Common Boundary Dispute – application for new fence determination in Mitchell – original fence removed unilaterally by one of the parties – whether the parties should share the cost of erecting a new fence: equal contribution by the parties because they are going to obtain equal benefit

List of legislation: Common Boundaries Act 1981 ss. 4 and 10

Tribunal: Ms E. Symons, Presidential Member

Date of Orders: 6 February 2013

Date of Reasons for Decision: 7 March 2013

IN THE ACT CIVIL & )

ADMINISTRATIVE TRIBUNAL ) FILE NUMBER

BETWEEN:

THE OWNERS UNITS PLAN 425
Applicant

AND:

PAUL SCRIVENER
Respondent

Tribunal : Ms E. Symons, Presidential Member

Date of order: 6 February 2013

ORDER

Pursuant to section 10 of the Common Boundaries Act 1981 the Tribunal determines that a fence be erected on the boundary between the parcels of land occupied by the Applicants and the Respondent, being Block 1 Section 2 Division of Mitchell and Block 2 Section 2 Division of Mitchell.

The Applicants are to be responsible for erecting the fence.
The fence is as described in the quotation from JPK Fencing, quote number 00110 dated 24 August 2012, namely 2400 high chain wire mesh fencing, galvanized with top rail in place of the three barbs.
The costs of the fence, $5,434.00 is to be paid equally by the Applicants and the Respondent, therefore the Respondent is to pay $2,717.00.
The Respondent is to pay to the Applicants the $127.00 fee paid to file the application.
The Respondent is to pay the $2,717.00 plus $127.00 by close of business 12 February 2013 by bank cheque, to be delivered to ACAT, and upon receipt ACAT is to notify Applicants that the cheque is available for collection.

Signed………………………………..

Ms E. Symons
Presidential Member

REASONS FOR DECISION

Background

The Applicants are the owners of the parcel of land at Block 1 Section 2 Division of Mitchell.
The Respondent, Mr Paul Scrivener told the tribunal at the commencement of the hearing that his company, Scrivener Constructions Pty Ltd, is the owner of the parcel of land at Block 2 Section 2 Division of Mitchell. He and his son, Brett Scrivener, are the only Directors of that Company. Mr Paul Scrivener was authorised to represent the company in this application.
On 28 November 2012, the Tribunal made orders that the matter be listed for hearing on 6 February 2013 and that both parties are to have their respective surveyors available to give evidence before ACAT.
It is not in dispute that the Respondent had removed and disposed of part of the fence between Block 2 and the Applicants’ properties without any prior communication with the Applicants.
On or about 18 May 2012 the Applicants sent a Notice to Discuss Erection of, and Payment for Fencing pursuant to subsection 4(3) of the Common Boundaries Act 1981(the Act) to the Respondent (“the Subsection 4(3) Notice”).
The Applicants subsequently obtained a quotation for $5,434.00 from JPK Fencing on 24 August 2012 for the supply and installation of 2400 high chain wire mesh fencing with three rows of barbed wire where the old fence was removed. The Applicants also obtained a fence quote from Chris Turnbull for $5,740.20.
On 24 October 2012, the Applicants lodged an Application for a New Fence Determination with the Tribunal. The Applicants annexed both of these quotes, a Surveyor’s Certificate dated 16 April 1986 from D W Williams & McDonald Pty Limited for Block 1 Section 2 Division of Mitchell, a copy of the Plan from 4D Surveying, a copy of the Subsection 4(3) Notice, an Extract from ActewAGL Water Network for Block 1 Section 2 Mitchell dated 4 September 2012, a Google photograph showing the original fence and an enlarged photograph of the fence and a photograph of the area after the fence had been removed.
The Respondent did not file any material prior to the hearing.
On 6 February 2013, Mrs Lorraine Dritsas, who had filed an Affidavit of Corporate Representative that day, appeared for the Applicants. Mr Chris. Dritsas also attended the hearing. Mr Paul Scrivener appeared and was accompanied by his son, Mr Brett Scrivener. Mrs Dritsas, Mr Dritsas, Mr Paul Scrivener and Mr Brett Scrivener all gave sworn evidence and were cross examined.
The Applicants called Mr Peter Mayberry, who is and has been a registered land surveyor in the ACT from May 1976 as an expert witness. He gave sworn evidence and was cross examined. The Applicants had earlier provided a copy of Mr Mayberry’ Survey Certificate dated 31 January 2013 to the Tribunal. Annexed to this Survey Certificate was a Sketch, Diagram and five photographs. The Applicants also provided to the Tribunal a Report from Pierre Dragh of Consulting Engineers Pty Ltd, dated 4 February 2012(sic) entitled ‘Inspection of a retaining wall and the main wall located between Blocks: 1 & 2 Section 2 Mitchell ACT’; together with a signed Statement from A.C.T. Coffee Supplies dated 4 February 2013.
The Respondent provided to the Tribunal, at the hearing, a Survey Report dated 5 June 2012 from Peter Williams of 4D Surveying to which was annexed a plan. The Respondent did not call Mr Williams to provide oral evidence.
On 6 February 2012, the Tribunal made Orders 1 to 6 as set out at above.
The Applicants requested reasons for this decision on 14 February 2013. These are the Tribunal’s reasons.

The Law

Section 10 of the Common Boundaries Act 1981 states
10 ACAT powers—new fence determination

(1) This section applies if the ACAT holds a hearing on an application
for a new fence determination.
(2) The ACAT may determine—
(a) the nature of the fence that should be erected between the
parcels of land occupied by the parties; and

(b) the line where the fence should be erected; and
(c) the party who should be responsible for erecting the fence; and
(d) the amount that should be contributed by the other party to the
cost of erecting the fence; and

(e) how, and by when, the amount should be paid to the party
responsible for erecting the fence.
(3) If a party asks the ACAT to determine that a basic fence is to be
erected between the parcels of land to which the application relates,
the ACAT must not require the party to contribute more than ½ the
cost of erecting a basic fence between the parcels.

(4) Subsection (3) does not apply in relation to parcels of land if the
ACAT is satisfied that—
(a) it is not practicable for a basic fence to be erected between the
parcels of land; or
(b) there are special circumstances that require a fence, other than other a basic fence, to be erected.

Consideration

There is no dispute that there was a mesh wire fence with three strands of barbed wire at the top between the Applicants’ property and the Respondent’s property in Mitchell and that the Respondent unilaterally removed a part of the fence which was located in the open area between the two properties. The Respondent did not remove the part of the fence which was alongside the three storey brick wall of the Applicants’ building. This Application concerns the erection of a new fence in the area where the Respondent had removed part of the fence.
In the Application the Applicants alleged that the fence was in good working order before its removal (by the Respondent) and that there was no reason to remove it. The Applicants stated “We strongly feel we should not contribute any funds towards the erection of a new fence.”
The Respondent maintained that the fence was on his property, it was his fence and it was dangerous as it had barbed wire at the top which had caused damage to people. In response to a question from the Tribunal about whether he was intending to replace the fence Mr Paul Scrivener said: “Well, there’s no need for a fence there. It’s not a security gate, a security fence. Both blocks are open to the road. There’s no gates to shut anything off. There’s nothing left outside, so there’s nothing for – no need for a fence to be there really.”
The Applicants’ evidence was that the original fence was, primarily, on the common boundary between the two parcels of land. This was confirmed by Mr Mayberry.
The Applicants’ property has a car parking area which is situated about one metre above the ground level of the Respondent’s property. Mr and Mrs Dritsas told the Tribunal that their car parking area was on the original ground level of their block and that the original owners of Block 2, which adjoins their property, cut into the ground which had resulted in the ground level being reduced by about a metre on the Respondent’s Block. Mr and Mrs Dritsas had built a retaining wall on their property to prevent the erosion of soil as a result of the owners of Block 2 cutting into the natural contour of the property.
Since the Respondent removed the fence the Applicants have used rope and markers to ensure that there is a visual barrier to warn drivers and pedestrians of the edge of the parking area. The Applicants want a new fence to be erected, at the Respondent’s expense, to return their parking area to its previously fenced position.
It transpired that, about 27 years ago, the then owner of the Respondent’s property had removed a substantial amount of soil when cutting into the land and the Applicants had then built the retaining wall on their property to retain their soil. The Applicants had obtained a report from Consulting Engineers Pty Ltd in February 2013, which corroborated their evidence that there was a drop between the two blocks. This report stated that there was space on the lower side of the block to construct a wall which would work as a retaining wall and a hand rail, which would ensure it was the minimum of one metre above the ground level of the Applicants’ block.
The application was for a new fence. The evidence from the Applicants’ expert, Mr Mayberry, was that the Applicants’ retaining wall was wholly within the Applicants’ property, that the boundary was identifiable as shown in his survey and that there was room alongside the Applicants’ retaining wall to install, on the boundary, the same or a similar kind of fence as had been there previously.
The Applicants, initially, wanted the Tribunal to order the Respondent to construct the brick retaining wall referred to in the report from Pierre Dragh on the Respondent’s property to limit the damage caused by the original cut into the contour of the property. The Tribunal is satisfied, if there was any damage to the Applicants’ property flowing from the actions of the earlier owners of the Respondent’s property cutting into the land, such damage should have been apparent when the work was originally done, about 27 years ago. It may be that the Applicants then had a claim in damages against those owners. However, such a claim was not before the Tribunal. The matter before the Tribunal for determination was the new fence claim.
It was clear from Mr Mayberry’s evidence and from the documents and reports that the common boundary between the two properties was able to be identified, had been identified in the Survey Reports and that a new fence could be erected along the common boundary. The parties agreed that there was no need to remove the part of the fence that was alongside the Applicants’ brick building. There were, however, issues over the condition of, and position of, the gate which was affixed to the pole at the Huddart Street boundary of this fence which the Tribunal also dealt with.
The only evidence of the costs of erecting a new fence was provided by the Applicants. The Respondent sought time to obtain another quote, which the Tribunal refused as the Respondent had been on notice of this claim for many months. The Applicants’ preferred quote was from JPK Fencing for $5,434.00 including GST. It was cheaper than the second quote. Both parties agreed that the new fencing would be of chain wire mesh but the Respondent raised safety concerns about the proposed three rows of barbed wire at the top of the fence.
The Tribunal contacted John, of JPK Fencing, by telephone during the hearing and he confirmed that he was able to do the fencing work for the same amount as he had quoted in August 2012. He was also able to replace the three strands of barbed wire with a top rail for the same amount as the August quote. This met the concerns of the Respondent about barbed wire being a safety hazard and the concerns of the Applicants about the height of the fence and the safety issues for people using their car parking space. It also addressed the height and safety issues raised in the Consulting Engineers Pty Ltd’s report.
A concern for the Applicants was that they should not be required to contribute to the cost of erecting a new fence because the Respondent had pulled it down without their consent and he had put them in the position that they had to pay legal fees, engineer’s fees and to pay for surveyors at a cost of a few thousand dollars. Mrs Dritsas said this could have been sorted out if the Respondent had come to them initially.
Mrs Dritsas also told the Tribunal that Mr Brett Scrivener had said “that if the fence is on the boundary he would put up a new fence.” Acting on this statement she had obtained a survey and tried to make an appointment to discuss it with Mr Scrivener but Mr Scrivener had not turned up. Mr Brett Scrivener denied that he had said this to Mrs Dritsas. Where there was a conflict between the evidence from the Applicants witnesses and the evidence from the Respondent’s witnesses, the Tribunal had no hesitation in accepting the Applicants’ witnesses’ versions of events.
The Tribunal noted that Mr and Mrs Dritsas had invested a lot of emotion in the issue which had arisen solely over the Respondent’s unilateral behaviour in removing the fence. There is no doubt that the Respondent could have and should have applied to the Tribunal for orders under the Common Boundaries Act 1981 about the removal and replacement of the then existing fence and not have taken the matters into his own hands.
However, the matter before the Tribunal was properly brought under the Common Boundaries Act 1981 by the Applicants. The Tribunal was satisfied from the evidence before the Tribunal that the fence, as quoted by JPK Fencing, could be built on the common boundary between the two parcels of land, that both parties would have common usage out of it and get a common benefit from having a new fence and that it is appropriate, in all of the circumstances, as is the normal process, for the costs to be equally paid by both parties. The Tribunal recognised that this decision was unpalatable for the Applicants, given the level of emotion they had invested into the matter. However, the Tribunal is satisfied that, as they are now getting the benefit of a new fence, it is proper that each of the adjoining land owners should equally share the associated costs.
Subsection 10(3) of the Act, while only referring to basic fences, clearly states that the Tribunal must not require a party to contribute more than half of the cost of erecting a basic fence between the parcels of land. Section 2 of the Act defines a basic fence in an urban setting as a timber paling fence that is 1.5m in height.
Subsection 10(4) of the Act covers situations where it is not practicable for a basic fence to be erected or where a fence, other than a basic fence, is to be erected. In this matter the Tribunal noted that the two parcels of land are located in Mitchell, a commercial suburb of Canberra. Neither party sought to have a basic urban fence erected on the common boundary. Indeed, the evidence from Mrs Dritsas was that 95% of the fences in Mitchell were made of the same structure of the original fence and the proposed new fence. Mr Paul Scrivener told the Tribunal that his property had fencing, made of the same wire mesh that was in the fence he had removed, around the rest of his property.
In the particular circumstances of this case, given that there had previously been a chain wire mesh fence higher than 1.5 metres, the Tribunal is satisfied that an urban basic fence was not practicable.
The parties agreed that the type of fence to be erected was chain wire mesh fencing galvanized 2400 high with top rail. In considering whether there are ‘special circumstances’ that would enliven the Tribunal’s power to make an order that required one of the parties to pay more than half of the cost of erecting the fence, pursuant to subsection 10(4) of the Act the Tribunal is satisfied that the ‘special circumstances’ in that subsection need to relate to why a basic fence is not suitable for these particular parcels of land.
The Applicants’ claim to have the Respondent pay 100% of the cost of erecting the new fence was unrelated to whether or not a basic fence was not suitable. The Applicants were seeking that the Respondent bear all of the cost because the Respondent had, without agreement or consultation, pulled down the original fence which was built about 27 years ago.
Having considered all of the evidence before the Tribunal, and noting that the Application is for a ‘New Fence Determination’ not a Claim for Repair or a Repair Cost Determination or a claim for damages, the Tribunal is not satisfied that the costs of erecting a new fence on the common boundary should be the Respondent’s sole responsibility. As the application is in relation to a new fence the Tribunal is satisfied that both parties are going to obtain equal benefit from having the new fence positioned along their common boundary.
In these circumstances, it is appropriate that the parties each contribute equally to the cost of erecting the new fence. As the Applicants had to file this Application to resolve the matter the Tribunal also ordered that the Respondent pay the filing fee of $127.00. The Applicants told the Tribunal that they had incurred thousands of dollars of expenses in obtaining legal advice and reports from an engineer and Mr Mayberry. They did not have any evidence of this expenditure to substantiate this claim.
The Tribunal ascertained from a telephone call to John of JPK Fencing during the hearing that he would be able to erect the fence on 18 February 2013. He requested that he only deal with the Applicants in relation to obtaining payment after the fence had been erected. Accordingly, the Tribunal made orders that gave the Applicants responsibility for erecting the fence and paying the fencer. The Tribunal also made orders requiring the Respondent to pay the Applicants $2,844.00 (being half of the JPK Fencing quote - $2,717 + $127 fee) by bank cheque by 12 February 2013 to enable the fence to be erected on 18 February 2013.
In relation to the gate which was hanging off the boundary fence post which was adjacent to the Applicants’ brick wall at the Huddart Street entrance, the Tribunal was satisfied that the gate was the Respondent’s property and that it should not be attached to the fence post. It had bent the fence post. It was the Respondent’s responsibility to straighten the fence post and to rehang the gate on a free standing pole on the Respondent’s land. The Tribunal noted that the Respondent agreed to straighten out the fence post within seven days and to rehang the gate on a free standing pole situated on the respondent’s property by 18 February 2013.

………………………………..

Ms E Symons
Presidential Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A FILE NO: XD 12/1612

APPLICANT: THE OWNERS UNITS PLAN 425

RESPONDENT: PAUL SCRIVENER

COUNSEL APPEARING: APPLICANT:

RESPONDENT:

SOLICITORS: APPLICANT:

RESPONDENT:
OTHER:APPLICANT: Ms L Dritsas
RESPONDENT: Mr P. Scrivener

TRIBUNAL MEMBER: Ms E Symons, Presidential Member

DATE/S OF HEARING: 6 February 2013 PLACE: CANBERRA

DATE/S OF DECISION: 6 February 2013 PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS: