Pearce v Simpson
[2025] QCAT 444
•5 November 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Pearce v Simpson & Anor [2025] QCAT 444
PARTIES:
MALCOLM PEARCE (applicant)
VICKI PEARCE
(applicant)
v
LLOYD SIMPSON
(RESPONDENT)
CINDY PAN
(respondent)
APPLICATION NO/S:
NDR070-24; Q3036-23
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
5 November 2025
HEARING DATE:
25 September 2025
HEARD AT:
Brisbane
DECISION OF:
Member McLean-Williams
ORDERS:
1. A new boundary fence and associated retaining wall are to be constructed between Number 5 and Number 7 Alphitonia Crescent Sunnybank Hills, in accordance with an engineering design obtained from a licensed engineer, to be engaged by the Applicants. Obtaining any necessary certification or Council approval is the responsibility of the Applicants.
2. The associated retaining wall is to be constructed in accordance with the engineering design required by Order (1) above, using concrete sleepers and galvanised steel posts. The boundary fence is to be constructed in Colorbond steel and is to be affixed atop the associated retaining wall, and to a height of 1.8 metres. The Applicants and the Respondents are to each nominate their preferred colour for the new boundary fence from the standard Colorbond range, and are to thereafter attempt to agree between those two colours. In the event of no agreement, the Tribunal mandates that the new fence is to be Colorbond ‘Dune’.
3. The new boundary fence and associated retaining wall is to be constructed on, or as near to the surveyed boundary as is practically achievable.
4. The four golden canes and the mock orange hedge situated on the land at Number 5 Alphitonia Crescent Sunnybank Hills are to be removed at the sole expense of the Respondents within 90 days of the date of these orders.
5. The works described in Order (2) above, are not to commence before the expiration of 91 days after the date of these orders.
6. The Respondents are to pay the Applicants one half the cost of the boundary survey and survey report dated 26 September 2024, as performed by Hilloc Surveyors, Planners and Development Consultants (‘Hilloc’) within 14 days of the Applicants providing the Respondents with a copy of the Hilloc invoice.
7. The costs of any engineering design, council certification, as well as the costs for necessary materials and construction/labour costs for the new boundary fence and associated retaining wall (including foundation materials and any designed drainage) now required by Orders (1) and (2) above, are to be borne equally (i.e. 50:50) by the Applicants and the Respondents. The Respondents are to pay the Applicants within 14 days of their being presented with a copy of any costs invoice by the Applicants.
8. The costs of any necessary preliminary works (including but not limited to any relocation of sheds, pool fences, paving, etc), and post-construction remediation or landscaping costs arising after the erection of the new boundary fence and associated retaining wall as described in Order 2 above, are to be borne on the basis that the Applicants will pay for any such costs arising at Number 7, and the Respondents will pay for any such costs arising at Number 5.
9. Within six (6) weeks of obtaining an engineering design (Order (1), above) the Applicants will provide the Respondents with two (2) quotes for the necessary works (Order (2), above) and the Respondents are at liberty to select between the provided quotes within 14 days after provision of the quotes. In the event of no response from the Respondent to the provided quotes the Applicants are at liberty to determine which of the two quotes will be accepted.
10. In the event of any non-compliance with these orders by the Respondent the Applicants and their contractors are at liberty, pursuant to s 94 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), to enter upon the land at Number 5 to carry out the necessary works upon the giving of at least 7-days’ written notice to the Respondents. Any costs incurred by the Applicants in the performance of any works caused by non-compliance with any of these orders by the Respondents is a sum that may be recovered in full by the Applicants from the Respondents.
CATCHWORDS:
DIVIDING FENCE DISPUTE – circumstances wherein adjoining neighbours unable to reach agreement – circumstances wherein existing fence no longer sufficient – further circumstances in which fence constructed atop a retaining wall – arguments regarding who has the benefit of (and hence responsibility for) the retaining wall – Tribunal finding that retaining wall necessary for boundary fence for purposes of s 35(1)(f)
Battiato v Clifton [2025] NSWLEC 1391
Yared v Glenhurst Gardens Pty Ltd [2002] NSWSC 11
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 13, s 15, s 16, s 20, s 21, s 35, s 46, s 94
APPEARANCES & REPRESENTATION:
Applicants:
Self-represented
Respondents:
Self-represented
REASONS FOR DECISION
The Applicants and Respondents (‘the parties’) are adjoining owners[1] on Alphitionia Crescent, at Sunnybank Hills. The Applicants reside at Number 7, and the Respondents are the owners of Number 5.
[1]Neighbourhood Disputes (Dividing Fences and Trees) Act2011 (Qld) s 15(1).
On 22 April 2024 the Applicants commenced an Application for a tree dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’), seeking orders from the Tribunal in relation to the removal of four mature golden cane palm trees, as well as a mock orange hedge, each located within the boundary of Number 5.
The Applicants make various complaints about the Respondents’ four golden cane palms, and mock orange hedge, for purposes of submitting that Number 7 Alphitonia Crescent is now ‘land affected’ by those trees, for purposes of s 46 of the Act.
By way of separate proceedings (Q3036-23), the Applicants had previously commenced a fence dispute against the Respondents, seeking orders for the replacement of the boundary fence and an associated retaining wall between the two properties.
By a direction made on 30 April 2024, Member Bishop directed that the fence dispute (case Q3036-23) and the tree dispute (case NDR070-24) should be heard and determined together.
Prior to the commencement of proceedings there has been an extensive and unsuccessful history of efforts by the parties to reach an agreement, particularly in relation to whom should bear the costs associated with tree removal and replacement of the fence and boundary wall. Although ultimately, the parties are essentially ad idem regarding the condition of the fence, and now concur that the golden canes and mock orange hedge will need to be removed as a necessary preliminary for any fencing works, disagreement remains regarding who should bear the costs of any works (particularly those in relation to the retaining wall), and regarding the colour of the new fence.
Situational Appreciation
Topographically, Alphitonia Crescent slopes downhill, as it runs in a generally North-Westly direction, towards Kingman Street.
Although Number 7 is generally level with the height of the Council footpath at the frontage of the property, the adjoining land at Number 5 drops away approximately one metre below the height of the footpath, as one proceeds towards the rear boundary at Number 5; such that Number 7 is situated above Number 5, with the shared boundary fence between the two properties now built atop a low timber retaining wall, three railway sleepers (i.e. approximately 600 mm) high. The side boundary fence between the two properties is approximately 36 metres long, with the retained section running for approximately 30 metres.
The Applicants have obtained a statement from one of the former owners of Number 5, a Mrs Janice Spear. In that statement, Mrs Spear indicates that the house at Number 5 Alphitonia Crescent (Lot 40 on RP 210663) was constructed by Masterman Homes between about October 1987 and May 1988, on behalf of Mrs Spear and her late husband, and that the preparation of the land on Lot 40 for a house pad had entailed cutting down the land along the full length of the boundary, in order to make the ground generally level for the construction of the house.
Mrs Spear adds that the retaining wall and fence were built along the boundary between Number 5 and Number 7, as works associated with her home construction. The Tribunal now accepts that evidence, and on the basis of Mrs Spear’s statement, finds that the fence and boundary retaining wall that are now the subject of these proceedings were originally constructed about 37 years ago.
Photographs of the fence and retaining wall that are before the Tribunal reveal both to be in an advanced state of dilapidation. These photographs also show the mature golden cane palms growing very close to the fence and retaining wall; and in some instances even leaning on the fence, and growing over the Applicants’ property. Other photographs show the mock orange hedge (agreed to be approximately 8-9 metres in length), also in parts growing up against (and indeed through), the boundary fence.
On the basis of the photographs, it is easily apparent that both the fence and retaining wall are in need of replacement, such that the Tribunal finds—for purposes of ss 13(1)(c)(ii) and 20(1) of the Act—and for the orders that follow, that there is not at present a ‘sufficient dividing fence’ between Number 5 and Number 7.
Orders sought from the Tribunal by the Applicants
In light of their not being able to secure an agreement from the Respondents, the Applicants seek orders from the Tribunal for the removal and replacement of the fence and retaining wall, and now seek—for reasons of superior durability—to replace the existing timber structures with a concrete sleeper retaining wall (with hot dip galvanised posts), and a Colorbond[2] steel fence, erected atop the new retaining wall. As part of that, the Applicants submit that the four golden cane palms and the mock orange hedge will need to be removed as a necessary preliminary to any fencing works along the boundary.
[2]The Applicants express a preference that the fence colour be one of the lighter shades of grey from within the standard Colorbond fencing colour range.
On the available evidence (traversed further, below), and in light of the Respondents’ concession during the hearing, it is beyond any serious contention that the golden cane palms and mock orange hedge will need to be removed in order to effectuate any necessary fencing works. The removal of this vegetation is part of fencing work for purposes of s 16(b) of the Act. In that sense, any separate orders sought by the Applicants as part of NDR070-24 become unnecessary, as these will be taken up by orders made by the Tribunal as part of proceedings Q3036-23.
Respondents’ Contentions
Although the Respondents agree that the boundary fence has reached end of life, and requires replacement, and ultimately indicated that they are amenable to paying 50% of the cost of a 1.8 m high Colorbond[3] fence, the Respondents dispute that their golden cane palm trees contributed towards the degraded condition of the fence; or that any of the four golden cane palms, or the mock orange hedge are now causing any adverse impact on the Applicants’ land for purposes of s 46 of the Act.
[3]Initially, when before the Tribunal, the Respondents submitted that there should be a ‘like for like’ replacement of the fence. Subsequently, the Respondents indicated that they were now amenable to a Colorbond fence.
Although the expert evidence before the Tribunal from Mr Angelo Iancu (see further, below) lends no credence to the Respondents’ contention regarding there being no adverse impact caused to the fence by their trees, it is unnecessary for the Tribunal to fully determine the s 46 point, given that the golden cane palms and mock orange hedge will need, in all events, to be cleared from the boundary as part of fencing works as defined in s 16 of the Act.
The Respondents further submit that:
·It is the Applicants who have the sole benefit of the retaining wall, such that the Applicants should be responsible for the cost of any replacement of the retaining wall.
·Any fencing works ordered by the Tribunal should include replacement of the adjacent 400 mm retaining wall on Number 5.
·All costs (save for the retaining wall beneath the boundary fence) including any necessary removal of trees, sheds, removal and replacement of pool fencing (etc) and any remediation of the landscaping at Number 5 should become part of any costs equally apportioned between the parties by the Tribunal.
·The replacement fence should be Colorbond ‘Pale Eucalypt’.
Evidence heard before the Tribunal
At the Tribunal hearing conducted on 25 September 2025, the Tribunal received evidence from a structural and civil engineer, Mr Angelo Iancu of ‘ACCI Consult Engineering Services’. Mr Iancu has also provided a report dated 14 April 2025 (received by the Tribunal on 11 September 2025), based on a site inspection that he had conducted on 18 January 2025.
Mr Iancu’s report and oral evidence indicate that:
·Mature trees and hedges at 5 Alphitonia Crescent that are either adjacent to, or within, the zone of influence of the retaining wall and fence have created abnormal moisture conditions, thus impacting the foundations of the fence and retaining wall. Tree roots have destabilised the retaining wall, and fence foundations.
·The fence and retaining wall show advanced signs of decay, including broken fence posts, rotated fence posts, and displaced sleepers. The ageing of the timber fence and retaining wall as well as the deterioration due to the influence of trees/hedges have placed these structures past the maximum durability expectancy (expected service life) for timber structures that are constructed in contact with the ground, as specified in technical pamphlets produced by Timber Queensland.
·A secondary wall at 5 Alphitonia Crescent, approximately 400 mm high and running parallel to the boundary fence, is contributing to abnormal moisture conditions.
·Although the fence and retaining wall are in very poor condition, there is no evidence to date that the slab for the dwelling at Number 7 has been adversely impacted. However, if no action is undertaken to resolve matters, no guarantee can be offered that the dwelling at Number 7 will continue to remain free of damage in the near to medium-term future.
·Any replacement structure should be built in accordance with the specifications of AS 4678 – Earth Retaining Structures. Any structure that is erected will require footings that are at least one metre deep.
In oral evidence given by Mr Iancu during his examination by the Tribunal in relation to the content of his written report, Mr Iancu additionally informed that:
·from an engineering and design perspective, the fence and retaining wall are ‘one and the same structure’, and it would not be possible to construct a sufficient boundary fence without the presence of an appropriate retaining wall.
·the parallel lower retaining wall had no structural role to play as part of the adjacent boundary fence and is more in the nature of a landscaping element, wholly within Lot 5.
·Pragmatically, any replacement retaining wall should be constructed from concrete sleepers. These have a service life of at least 60 years, far exceeding what might be expected from timber structures.
The Tribunal also received evidence from a licensed surveyor, Mr Brian Hillam of ‘Hilloc Surveyors, Planners and Development Consultants’.
Mr Hillam’s evidence was very brief, and merely confirmed the substance of the survey report prepared under his signature and now dated 26 September 2024. The gravamen of that report is the survey having revealed that the disintegrating sleeper retaining wall and associated fence, which has always been assumed as the boundary between Lot 41 on RP210663 (i.e. Number 7), and Lot 40 on RP 210663 (i.e. Number 5), is constructed entirely within the boundary of Number 5.
Finally, the Applicants also called a Mr Jason Short from ‘All Sorts Services and Trade’. Mr Short is one of a number of contractors who have provided a quote to do fencing works between Number 5 and Number 7.
All of the quotes that have been produced before the Tribunal are now sufficiently aged as to be expired, such that these are now only indicative of the likely costs. For this reason, no definitive reliance will be placed on any of the quotes by the Tribunal. For present purposes, the significance of Mr Short’s oral evidence lies in the fact of his emphasising (as an experienced contractor) that the golden cane palms and mock orange hedge do need to be removed from Number 5 in order to create necessary access to be able to remove the existing fence and associated retaining wall and erect new structures; and that a fence could not be constructed until such time as the retaining wall is first replaced, as a necessary preliminary to the construction of any new fence. The Tribunal accepts that evidence.
The Law
Relevantly, the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) provides:
16 Meaning of fencing work
Fencing work, for a dividing fence, means—
(a) the design, construction, modification, replacement, removal, repair or maintenance of the whole or part of the dividing fence; and
(b) the surveying or preparation of land, including the trimming, lopping or removal of vegetation, along or on either side of the common boundary of adjoining lands for a purpose mentioned in paragraph (a);
and includes—
(c) the planting, replanting and maintenance of a hedge or similar vegetative barrier as the dividing fence; and
(d) the cleaning, deepening, enlargement or alteration of a ditch, embankment or watercourse that serves as the dividing fence; and
(e) obtaining an approval required for fencing work.
[Emphasis not in the original, yet included here by the Tribunal]
20 Liability for fencing work
(1) If there is no sufficient dividing fence between 2 parcels of land consisting of adjoining land, an adjoining owner is liable to contribute to carrying out fencing work for a sufficient dividing fence.
Note—
An adjoining owner may contribute by a payment of an amount or provision of labour or materials.
(2) If carrying out fencing work includes construction or replacement of a sufficient dividing fence, the fence must be constructed or replaced on the common boundary other than to the extent it is impracticable to do so because of natural physical features.
(3) However, other than for urgent fencing work, subsection (1) is only enforceable if—
(a)the adjoining owners have agreed under this chapter about carrying out the fencing work; or
(b)QCAT has ordered that the fencing work be carried out.
(4) To remove any doubt, it is declared that subsection (1) applies even if—
(a)there is already a dividing fence other than a sufficient dividing fence; or
(b)one or both parcels of land are vacant land.
21 Contribution between adjoining owners—generally
(1) Adjoining owners are each liable to contribute equally to carrying out fencing work for a sufficient dividing fence.
(2) An adjoining owner who wants to carry out fencing work for a dividing fence to a standard greater than the standard for a sufficient dividing fence is liable for the fencing work to the extent that it is greater than the standard for a sufficient dividing fence.
35 Orders about carrying out fencing work
(1) QCAT may, for an application in relation to fencing work for a dividing fence, decide and order any 1 or more of the following—
(a)the line on which the fencing work is to be carried out, whether or not that line is on the common boundary of the adjoining land;
(b)the fencing work to be carried out, including the kind of dividing fence involved;
(c)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;
(d)the part of the dividing fence to be constructed or repaired by either adjoining owner;
(e)the time by which the fencing work is to be carried out;
(f)any other work to be carried out that is necessary to carry out the fencing work ordered under this section including work for a retaining wall;
(g)that, in the circumstances, no dividing fence is required for all or part of the boundary of the adjoining lands;
(h)that a fence has been used, or could reasonably be used, as a dividing fence under section 15;
(i)the amount of compensation payable to an adjoining owner for damage or destruction to a dividing fence caused by another adjoining owner or a person mentioned in section 26(1)(b);
(j)that an adjoining owner remove a thing attached to a dividing fence and restore the dividing fence;
(k)the amount of compensation payable to an adjoining owner for the removal of a fence under section 33(3).
(2) The occupation of land on either side of a dividing fence, as a result of an order 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.
[Emphasis not in the original, yet included here, by the Tribunal]
Tribunal Findings
Already, in preceding passages of these reasons, the Tribunal has determined for purposes of ss 13(1)(c)(ii) and 20(1) of the Act that there is not a sufficient fence between Number 5 and Number 7.
The Tribunal accepts the entirety of the statement evidence of Mrs Janice Spear (former owner at Number 5), as well as the oral and written evidence of Mr Brian Hillam (surveyor), and Mr Angelo Iancu (Engineer), and the oral evidence of Mr Jason Short (trades contractor). On the basis of that evidence, the Tribunal now finds:
(a)The existing boundary fence and retaining wall are associated works by reason that the fence relies upon[4] the retaining wall for its support, such that for purposes of s 35(1)(f) of the Act it is necessary to replace the retaining wall in order to be able to attend to the condition of the extant (and obviously insufficient) boundary fence. The boundary fence is a property appurtenance that is to the obvious benefit of both Number 5 and Number 7, and the need for the associated retaining wall is a matter that cannot be ‘parsed out’ from the joint benefit afforded to each party by the existence of the common boundary fence;
(b)The extant fence and retaining wall are entirely within the boundary of Number 5, notwithstanding these being accepted over a long period as the ‘boundary by convention’.
(c)The fence and retaining wall were built in about 1987–1988, by former owners at Number 5, as part of works required by them to construct the house at number 5. As such the Tribunal concludes that the retaining wall, in particular, was originally intended for the benefit of Number 5 by reason of it facilitating the maximisation of the use of the land at Number 5, and protecting Number 5 from landslip.[5] However, over time, the benefit of the retaining wall has come to be indistinguishable from the joint benefit to each of Number 5 and Number 7 that is represented by the fact of the boundary fence that is built on top of it.
(d)The parallel lower retaining wall has no structural association with the boundary fence and retaining wall.
(e)The four golden cane palms and the mock orange hedge need to be removed as necessary ancillary works for purposes of s 16(b) of the Act.
[4]Battiato v Clifton [2025] NSWLEC 1391.
[5]Consider Yared v Glenhurst Gardens Pty Ltd [2002] NSWSC 11.
The Tribunal determines that a Colorbond steel fence is appropriate for the replacement fence, being a style of fence commonly used in Sunnybank Hills and throughout greater Brisbane.
Given the evidence before it, the Tribunal further determines that the associated retaining wall should be constructed using concrete sleepers and galvanised steel posts, and should be constructed to the relevant Australian standard, which Mr Iancu informs is AS 4678 – Earth Retaining Structures. The Tribunal will order that there be an engineering design specification for the replacement retaining wall and boundary fence.
Tribunal Orders
Pursuant to the powers conferred on the Tribunal by s 35 of the Act, the Tribunal orders as follows:
1.A new boundary fence and associated retaining wall are to be constructed between Number 5 and Number 7 Alphitonia Crescent Sunnybank Hills, in accordance with an engineering design obtained from a licensed engineer, to be engaged by the Applicants. Obtaining any necessary certification or Council approval is the responsibility of the Applicants.
2.The associated retaining wall is to be constructed in accordance with the engineering design required by Order (1) above, using concrete sleepers and galvanised steel posts. The boundary fence is to be constructed in Colorbond steel and is to be affixed atop the associated retaining wall, and to a height of 1.8 metres. The Applicants and the Respondents are to each nominate their preferred colour for the new boundary fence from the standard Colorbond range, and are to thereafter attempt to agree between those two colours. In the event of no agreement, the Tribunal mandates that the new fence is to be Colorbond ‘Dune’.
3.The new boundary fence and associated retaining wall is to be constructed on, or as near to the surveyed boundary as is practically achievable.
4.The four golden canes and the mock orange hedge situated on the land at Number 5 Alphitonia Crescent Sunnybank Hills are to be removed at the sole expense of the Respondents within 90 days of the date of these orders.
5.The works described in Order (2) above, are not to commence before the expiration of 91 days after the date of these orders.
6.The Respondents are to pay the Applicants one half the cost of the boundary survey and survey report dated 26 September 2024, as performed by Hilloc Surveyors, Planners and Development Consultants (‘Hilloc’) within 14 days of the Applicants providing the Respondents with a copy of the Hilloc invoice.
7.The costs of any engineering design, council certification, as well as the costs for necessary materials and construction/labour costs for the new boundary fence and associated retaining wall (including foundation materials and any designed drainage) now required by Orders (1) and (2) above, are to be borne equally (i.e. 50:50) by the Applicants and the Respondents. The Respondents are to pay the Applicants within 14 days of their being presented with a copy of any costs invoice by the Applicants.
8.The costs of any necessary preliminary works (including but not limited to any relocation of sheds, pool fences, paving, etc), and post-construction remediation or landscaping costs arising after the erection of the new boundary fence and associated retaining wall as described in Order 2 above, are to be borne on the basis that the Applicants will pay for any such costs arising at Number 7, and the Respondents will pay for any such costs arising at Number 5.
9.Within six (6) weeks of obtaining an engineering design (Order (1), above) the Applicants will provide the Respondents with two (2) quotes for the necessary works (Order (2), above) and the Respondents are at liberty to select between the provided quotes within 14 days after provision of the quotes. In the event of no response from the Respondent to the provided quotes the Applicants are at liberty to determine which of the two quotes will be accepted.
10.In the event of any non-compliance with these orders by the Respondent the Applicants and their contractors are at liberty, pursuant to s 94 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), to enter upon the land at Number 5 to carry out the necessary works upon the giving of at least 7-days’ written notice to the Respondents. Any costs incurred by the Applicants in the performance of any works caused by non-compliance with any of these orders by the Respondents is a sum that may be recovered in full by the Applicants from the Respondents.
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