Pearson v Berrett
[2014] QCAT 263
| CITATION: | Pearson v Berrett [2014] QCAT 263 |
| PARTIES: | Madge Pearson (Applicant) |
| v | |
| Bryn Berrett (Respondent) |
| APPLICATION NUMBER: | MCD1791/13 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 14 February 2014 |
| HEARD AT: | Southport |
| DECISION OF: | Adjudicator Trueman |
| DELIVERED ON: | 29 May 2014 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | 1. The claim is dismissed. |
| CATCHWORDS: | Minor civil debt – Dividing fence Dispute – where applicant alleges respondents trees and vines have caused fence to deteriorate – where applicant seeks order for new dividing fence to be paid for by respondent – adequacy of fencing – whether contribution should not be determined as in equal portions Queensland Civil and Administrative Tribunal Act 2009 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Irene Hart (on behalf of Madge Pearson) |
| RESPONDENT: | Mr Bryan Berrett (by telephone) |
REASONS FOR DECISION
By application filed 18 August 2013 the applicant Ms Pearson, the owner of 96 Worendo Street, Southport sought orders for the replacement of a dividing fence, the removal of a clothes line from the fence and repairs to her side fence and gate. Ms Pearson proposes that Mr Berrett pay for the entire cost of the new dividing fence and for the repairs to her side fence and gate. Mr Berrett is the owner of the adjoining property being 2/94 Worendo Street, Southport. He does not reside in the property and it is currently tenanted. Ms Pearson was granted leave to be represented on 12 November 2013 and appointed Ms Hart to represent her at the hearing.
Mr Berrett appeared at the hearing by telephone as he resides in New South Wales.
Background and evidence
The Applicants case
Ms Hart stated that the timber dividing fence between the parties’ properties needs replacing and that it should be replaced with a timber or colourbond fence and paid for entirely by Mr Berrett. Quotations for the new fences and repairs to her gate and side fence were provided. The quotes from Down2Earth fencing and Pride Fencescapes both dated August 2013 give quotes for timber at a cost of $2,800 and $2,835 and for colourbond for $3,200 and $3,240 respectively.
Ms Hart stated that the trees growing on Mr Berrett’s property and the roots and branches from those trees, have damaged the fence and that the vines growing on the fence has caused the fence palings to come off and cause the fence posts and railings to rot.
Ms Hart contends that the dividing fence has had plants and a clothes line attached to the dividing fence that has also caused damage. She provided photos of the fence and trees[1] that have caused damage. The photos also depict a clothes line attached to the fence and pot plants hanging from the fence.
[1]In bundle of documents marked ‘Exhibit 1’.
Ms Hart stated that the clothes line and plants were removed on 9 September 2013 but that the damage had already been caused. She said that there were trees, ‘a silky oak, umbrella trees and other large trees… planted that had been growing on top or the dividing fence for many years’. She said that ‘the silky oak had pushed the panel of the fence off the fence post’.
On or around 11 June 2010 Ms Hart said that Ms Pearson had written to Mr Berrett telling him that he dividing fence was falling down and that it had to be repaired, that the damage was caused by trees and a creeper. She said he was told to ‘remove them’. She said Mr Berrett ignored the letter and that the trees continued to grow and the ‘wild vine was growing on the fence’.
Ms Hart said that one of the trees was ‘approximately high as a three storey building’ and that the ‘fence is starting to rot and this appears where the trees were planed on top of the dividing fence’. She alleges that the canopy from the trees also prevent the sun from drying out the timber fence which adds to the fence problems.
Ms Hart provided photos of the fence, creeper and vine on the fence and photos of the fence in varying stages of disrepair[2]. She said that Mr Berrett hammered nails and wire to the dividing fence to support the creeper growing on it.
[2]Documents 7A, 7B, 8A to 8D in bundle marked ‘Exhibit 1’.
Ms Hart said that another letter was sent to Mr Berrett on 20 April 2012[3] complaining about the trees and the fence. The letter requested him to remove the trees and identified ‘roots which are sprawling’ onto Ms Pearson’s property. She said this letter was ignored and nothing was done regarding the tree problems. Photos were provided of the trees and roots.[4]
[3]Document 9 in bundle marked ‘Exhibit 1’.
[4]Documents 3C and 3G in bundle marked ‘Exhibit 1’.
Ms Hart claimed that a further three trees on the boundary at the front of the parties’ property had also caused damage to the dividing fence. She said that there were three bottle brush trees that were pushing the fence over to the extent that the side gate on Ms Pearson’s property could not be opened. A photo of the trees and side gate were provided.[5]
[5]Documents 11(a)-(e) ,12(a)(b) and 13 in bundle marked ‘Exhibit 1’.
A letter dated 4 May 2012[6] from a real estate agent from LJ Hooker, who manages Mr Berrett’s property was submitted as evidence that the umbrella trees were pushing up against the fence. Ms Hart alleges the roots from the tree are causing damage to Ms Pearson’s property.
[6]Document 15 in bundle marked ‘Exhibit 1’.
On 15 May 2012 Ms Hart said that Mr Berrett arranged for a tree lopper to remove one of the umbrella trees, the large silky oak and some of the vines damaging the fence. It is alleged that at this time the fence was repaired as a ‘band aid job’ by the placement of clips holding the fence post and palings together.
Ms Hart said that the tenants living in Mr Berrett’s property had attached pot plant holders and nails to the dividing fence on or around 8 September 2013 causing the ‘fence to lean over more, palings coming off the fence and panels coming off’.
Ms Hart claims that ‘the fence is beyond repair and that the fence should be replaced’. She said that the ‘fence is leaning over and parts are hanging by clips, the fence has started to rot’. She alleges that the fence required replacement due to Mr Berrett’s ‘negligence and deliberate acts for the last 18 years’ that have caused the condition of the fence to deteriorate.
Ms Hart said that Ms Pearson sought orders ‘that the fence be replaced and the costs be fully paid for by Mr Berrett, that she be compensated for the “substantial ongoing and unreasonable interference with her land, to reimburse her for the cost of the registered letters that she had sent him regarding the trees, reimburse her for the cost of the photographs she took and produced” as evidence in the tribunal and specific orders that the ‘pot plant holders and all wire and nails be removed from the dividing fence’. Further, ‘that all trees be removed that are planted on top of the dividing fence.
Ms Hart submitted that the orders should bind not only Mr Berrett but ‘the tenants who manage the property’.
The Respondents case
Mr Berrett gave evidence and stated that Ms Pearson’s application is not really about the fence but about the trees. He said she initially filed an application with the Queensland Civil and Administrative Tribunal regarding a tree dispute. He said that was case number NDR179-13 filed in August 2013. He said that in that application she claimed that he had caused serious damage to her land and the dividing fence. He said that application for a tree dispute was dismissed by QCAT on 3 January 2014. He provided a copy of the decision[7] by Member Howard to support his contention.
[7]Exhibit 2.
Mr Berrett said the tree dispute between the parties has been ongoing for many years. He said that he was not given the opportunity to participate in mediation relating to the trees and that Ms Pearson had demanded that they ‘bypass mediation and proceed directly to a hearing’.
Mr Berrett said that the fence in dispute is ‘over 20 years old and replacement may be warranted’ He said he ‘offered to contribute 50% towards the cost of a new fence of the applicants choosing’ but she had refused his offer.
Mr Berrett claimed that he has a real estate agent managing his property and who looked after his tenants and who had also, at his request, provided a report and photos to him about the trees and fence issues. He said that he received a letter from Ms Pearson dated 20 April 2012 and immediately arranged for his agent to inspect the property. He said that his tenants had previously advised him that ‘Ms Pearson had poisoned the bushes and trees’ on his property. He said that after receiving evidence from his agent he arranged for the removal of the umbrella tree and the large dead tree. He said he also arranged for the poisoning of the umbrella stump and the removal of the poisoned vine from the fence.
Mr Berrett said he undertook the tree removal and garden clean up after discussion with his tenant and LJ Hooker. He said that on 3 May 2012 LJ Hooker confirmed that ‘the tenant witnessed the poisoning of the trees including damage to the power box, the paling fence was in a reasonable condition apart from the need to re-nail a number of palings and address the issue of the umbrella tree, the paling fence was not interfering with the colour bond fence nor the steel mesh fence’.
Mr Berrett stated that he arranged with LJ Hooker to arrange for the fence to have the palings re-nailed and the removal of the offending trees. He said he also advised his tenant not to plant large trees such as umbrella trees near the dividing fence.
Mr Berrett said his real estate agent wrote to Ms Pearson and a copy of the letter dated 3 May 2012[8] was provided to the tribunal by Ms Pearson. That letter, written by Veronica Guilfoyle, stated:
we have inspected the property recently including inspection of the paling fence. Our inspection shows that the umbrella tree is pushing up against the paling fence we will be advising the owner that this tree should be removed. Our inspection also indicates that the paling fence is in reasonable condition apart from a need to re-nail a number of palings…in our opinion the paling fence is not interfering with either the colour bond fence or the steel mesh front fence… the owner has authorised our offices to handle any issues pertaining to maintenance of his property including any dispute between his tenant and neighbours.
[8]Document 15 in bundle of evidence marked ‘Exhibit 1’.
Mr Berrett stated that the trees identified by Ms Pearson as a problem had been removed now, that the vine had been poisoned by her and he had it removed and that the tenants had removed the clothes line from the fence. He said he agreed to contribute to the cost of a new fence if that was what Ms Pearson desired.
Mr Berrett said he wanted the claim to be dismissed and if the fence was to be replaced that both parties ‘contribute to the cost of replacing the old wooden fence’. He stated that if the fence was not to be replaced that ‘alternatively, normal annual maintenance of the fence should continue until the applicant requests replacement with a suitable alternative fence’.
Findings
I am not persuaded from the evidence that the fence requires replacement. The photos provided as evidence depict an old wooden fence with some palings that appear to be weathered and worn. Some of the palings appear to have splintered and are starting to deteriorate; some are rotten and at the top of the fence are not complete. I find from the evidence that the fence is doing its job, that is, it divides the parties property, provides privacy and the footings and posts appear to be structurally sound. The fence palings are not entirely complete, but the fence is not leaning over nor does it appear to have any issues with termites. Some of the photos depict some palings that require re-nailing but I find that the photos are dated in 2012 and 2013 and I find that since the photos were taken that Mr Berrett has attended to the palings being re-nailed and repairs have been undertaken. I was not provided with any photos of the fence as it currently appears.
It is apparent that the evidence presented to the tribunal by Ms Hart on behalf of Ms Pearson largely relate to trees and overhanging branches and vines. This appears to be the most prevalent factor motivating Ms Pearson in her application. I find from the evidence that the trees, branches and overhanging vines have caused much angst for Ms Pearson. I accept that trees, branches, leaves and vines can cause disputes between normally friendly and peaceful neighbours. In this case I find there are allegations of tree poisoning and damage caused by both parties to the others property. I find that the ongoing dispute over trees and fences have fractured the neighbourly relationships between these parties, which is an unfortunate repercussion of unresolved disputes regarding these type of issues.
I find that Ms Pearson certainly had dispute with Mr Berrett regarding the trees on this land, and that this clearly was the motivation for her when she commenced proceedings regarding a tree dispute with QCAT. For reasons unknown she did not pursue that application with QCAT. In this case I find that the application is a dividing fence claim and not a claim regarding tree dispute. In relation to the evidence, much which was given by Ms Hart regarding trees, I find that much of that evidence was irrelevant, unless it was directly on point and related to trees, roots or branches causing damage to the fence. As this is a dividing fence dispute I can only be guided by the dividing fence legislation and the relevant provisions of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.
I find that Ms Pearson failed to provide any evidence that the fence requires replacement. I find that the evidence of the real estate agent, which in effect was the only independent third party evidence, was that, at least in 2012 the fence was in ‘reasonable condition’.
The evidence does support a finding that Ms Pearson’s side gate requires repair. The quote from Down2Earth fencing states that to be the case. However the gate is on Ms Pearson’s property and is not a dividing fence issue. I find that the side gate repair is the sole responsibility of Ms Pearson and general maintenance to her property and costs she should be solely liable for. There is no evidence to support her assertion that the gate on her property is damaged and requires repair from any action by Mr Berrett and the dividing fence.
I find that the quotation for the fence replacement does not indicate the fence requires replacement, only an estimate for what the costs would be to construct a fence in various materials. Ms Pearson did not present any independent evidence that the fence requires replacement. She also failed to provide any evidence that the current condition of the fence was due to Mr Berrett’s trees and vines growing on his property over the years. I find that Mr Berrett has removed any tree that was deemed to be causing problems to the fence, he has removed a vine growing on the fence line and his tenants have removed some pot plants that were allegedly hanging on the fence that may cause damage. I find that an order for tree removal or removal of pots and clothes line is not warranted as those matters have already been addressed by Mr Berrett.
I find that the fence is a sufficient dividing fence[9] and that the general condition of the fence, as it presents itself, is that it is a fence that is over 20 years old, made from timber that has weathered and deteriorated over time due to its age. The tribunal can order a party to contribute to the costs of a replacement or repair to a dividing fence if it is found that a party has damaged the fence due to a negligent or deliberate act or omission that has caused damage.[10]
[9]Neighbourhood Disputes(Dividing Fences and Trees) Act 2011 s 13.
[10]Neighbourhood Disputes(Dividing Fences and Trees) Act 2011 s 26.
I find that in this case there is insufficient evidence to make a finding that Mr Berrett’s trees, their roots, branches nor the vines that grew on the fence have caused damage to the fence to warrant it being replaced or repaired. I cannot make a finding that Mr Berrett has done a negligent act or thing that has caused damage to the dividing fence that would warrant it being replaced.
I find that if Ms Pearson requires the fence to be replaced with a new timber or colour bond fence that she should, and would, be liable to pay half of such costs. I am satisfied that in this case there is no evidence that would persuade me to defer from section 21[11] of the dividing fence legislation that states that ‘adjoining owners are each liable to contribute equally to carrying out fencing work for a sufficient dividing fence’, whether it be new or to replace an existing fence.
[11]Neighbourhood Disputes(Dividing Fences and Trees) Act 2011.
Mr Berrett has offered to pay half of the costs of a new dividing fence and has submitted the material for fence type could be chosen by Ms Pearson. I find his position more than fair and reasonable in the circumstances. If the parties choose to replace the fence themselves, that is a matter for them and I do not propose to order that the fence be replaced. I find that Ms Hart’s evidence was that unless Mr Berrett was ordered to pay 100% of the costs she would not be replacing the fence. I find that the final decision of this matter will be that the decision to replace the fence or not lays with Ms Pearson and her preparedness to make a 50% contribution to the costs.
What are the appropriate Orders?
For the reasons outlined above I find that the application by Ms Pearson for the replacement of a new dividing fence between the parties’ property is without merit.
The order that I propose to make is as follows:
1. THAT the claim is dismissed.
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