Pierce v Moderate - [2014] QCAT 438

CITATION:

Pierce v Moderate [2014] QCAT 438

PARTIES:	Michael David Pierce (Applicant/Appellant)
v
John Stanley Moderate (Respondent)

APPLICATION NUMBER:

MCDO202/14; MCDO97/14

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

21 February 2014; 21 March 2014; 28 April 2014

HEARD AT:

Southport

DECISION OF:

Adjudicator Trueman

DELIVERED ON:

13 August 2014

DELIVERED AT:

Southport

ORDERS MADE:

1. THAT claim 202/14 is dismissed.

2. THAT in relation to claim 97/14 the dividing fence works must be carried out on that part of the dividing fence that is identified as the non compliant pool barrier between the properties of the parties.

3. THAT the fencing works be performed in accordance with the quotation dated 9 February 2014 by Smart Stone Group (a copy of which is attached to this Order).

4. THAT the fencing works are to be arranged by Mr Moderate.

5. THAT the fencing works must be completed within twelve weeks of the date hereof.

6. THAT Mr Moderate must at least 14 days before entering upon Mr Pierce’s land, give him or any lessee, notice of the commencement of the proposed fencing works.

7. THAT Mr Pierce must pay to Mr Moderate the sum of $1,226.50 (GST inclusive) within seven days of the fencing works being completed.

8. THAT each of the parties will be responsible for rendering and painting the fencing works on their side of their property, at their own cost, with such colour of the new fence works to match the existing paint colour of the current dividing fence.

9. THAT should Mr Moderate wish to undertake more extensive fencing works that are in compliance with the approval given to him on 4 February 2014 by the Sanctuary Cove Principal Body Corporate GTP 202 Architectural Review Committee then Mr Moderate may be entitled to do so but the additional cost thereof over and above the amount referred to in order 7 herein shall be borne entirely by Mr Moderate.

CATCHWORDS:

Minor Civil Dispute – dividing fences – adjoining properties at Sanctuary Cove – height of fence – whether any effect of Sanctuary Cove Resort Act 1985 – where competing applications by neighbours – where orders sought to prevent neighbour further demolishing dividing fence and to rectify part damaged – counter claim for order to modify and extend dividing fence to comply with fence forming pool barrier – where competing claims filed in different registries – where matters consolidated and heard at Southport – issues to be determined is how height of pool safety fence is determined – whether neighbour should be required to pay for dividing fence forming pool safety barrier if neighbour’s fence does not comply

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011
Building Act 1975

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Michael Pierce (by telephone)

RESPONDENT:

Mr John Moderate in person

REASONS FOR DECISION

The parties are neighbours to properties they own in Marine Drive East in Sanctuary Cove in Queensland. The properties are both prestigious waterfront properties located within a gated estate and both properties contain a pool.
Mr Pierce filed his application in Brisbane on 5 February 2014. He sought orders restraining Mr Moderate from further demolishing the current dividing fence constructed from panels and to further prevent him from building a higher and solid wall in its place.
Mr Moderate filed a competing application in Southport on 10 February 2014 seeking orders that he be permitted to undertake dividing fence works and that a determination be made as to the material to be used and who is to contribute towards the cost of the new fence. He states that the estimated cost of the fencing work is $2,230.00. Mr Moderate states that the current dividing fence between the parties’ properties forms a pool barrier and that it does not comply with pool safety requirements. He says the pool fence is in breach of the Queensland Pool Safety Regulations. He claims he has permission from the Sanctuary Cove Body Corporate to reconstruct the fence.
HISTORY OF PROCEEDINGS
Mr Moderate lives in the property at Sanctuary Cove and appeared in person at the hearing. Mr Pierce owns the adjoining property but lives in South Australia and on 6 March 2014 an order was made to transfer his Brisbane claim (previously claim 234/14) to Southport to be heard concurrently with claim 97/134. He was granted leave to appear at the hearing by telephone.
Claim 97/14 proceeded to hearing on 21 February 2014 at Southport and was part heard before Mr Pierce indicated that he had a claim that was filed in Brisbane that related to the same matters in dispute. The claim was adjourned to allow time for Mr Pierce to arrange to transfer his claim to Southport so the matters could be heard together. The parties were directed to file all evidence relating to their claim at least 5 days prior to the next hearing date.
Both Southport claims 97/14 and 202/14 were listed for hearing again on 21 March 2014. The matter proceeded to hearing and was again adjourned part heard. Mr Moderate presented voluminous evidence to the tribunal to support his claim and Mr Pierce claimed to have not received the evidence that had been mailed to him by Mr Moderate. At the commencement of the hearing it was noted that Mr Moderate had already reinstated the fence panels that he had removed and had put the fence back to the original condition so the content of Mr Pierce’s urgent injunctive application was no longer necessary. The only ongoing issue in dispute was a determination as to whether Mr Moderate would be permitted to remove and rebuild that part of the current dividing fence that formed the pool safety barrier as he claims the current fence does not comply with the relevant safety regulations. A further and separate issue related to the height of the fence.
The matter was adjourned to the next available date and the registry were directed to post the evidence marked “Exhibit 1” to Mr Pierce to allow him time to review the evidence and respond. The matter was adjourned part heard again and listed for hearing on 28 April 2014.
MR PIERCE’S EVIDENCE
Mr Pierce said that he had a pool safety certificate[1] that proved that the dividing fence as it currently was constructed complied with current safety regulations. He said that the certificate proved that as of 11 February 2014 his pool, located at 7120 Marine Drive East was compliant.[2] He said the fence construction was that it was a ’1200mm high tubular steel fence built in 2010 and was in excellent condition’. He said that the pools fences in his area where built from either glass panels of tubular steel normally 1200mm high.
[1]Exhibit 2.
[2]With the Building Act 1975.
Mr Pierce said that if the fence complied with the pool safety regulations that there was no requirement to neither raise the height of the fence nor remove the current tubular fence. He objected to Mr Moderate wanting to build a solid rendered fence where the pool fence had previously been. He said that a filled in fence would block or inhibit some of his view.
Mr Pierce said that if the pool fence did not comply on Mr Moderate’s side and if it was lower, that this was directly due to the fact that he had built up his side of the fence, and had disrupted measurements.
MR MODERATE’S EVIDENCE
Mr Moderate provided a bundle of documents and evidence[3] to the tribunal to support his claim. The bundle contained detailed photos, plans, quotations, letters from the Sanctuary Cove Body Corporate , invoices, a copy of the Sanctuary Cove By-laws and regulations (relevant to pools and fences), architectural drawings showing the dividing fence and pool barrier both current, and the proposed fence works he intended to undertake. The evidence was extremely useful to the tribunal in determining the matter.
[3]Exhibit 1.
Mr Moderate stated that the current problem of the dividing fence and that part that included the pool barrier not complying with the relevant safety regulations was only brought to his attention by Mr Pierce’s pool inspector who told him that the fence was too low and did not comply. Mr Moderate said that as a result of this conversation with the pool inspector he was concerned that if the pool fence was not safe and did not comply he was liable if something happened. He said he was concerned that the fence was constructed in approximately 1998 and the original 1.365 meter of fence was deemed illegal as it was not 1200mm high on his side. He said that the adjoining section of block wall that abuts up to the pool fence is also not 1200mm above ground and is therefore not compliant and not safe.
Mr Moderate said that he had spoken to a woman, who he now thinks was Mr Pierce’s mother, who was at the property. He said he thought that she had given approval for him to build the new wall and make the pool safe and that is why he started the fence works. He said once he was contacted by Mr Pierce and advised permission was not given he stopped work and later reinstalled the fence and put the fence back to the original condition, until a determination could be made by the tribunal.
Mr Moderate said that he arranged for a pool safety inspection by All Clear Pool Safety Inspections. He said that the report[4] states that the pool barrier does not comply with the current pool safety regulations. The report refers to the section of pool barrier between 7120 and 7122 Marine Drive east. The report found ’that the barrier height of the lower rendered section of the fence is less than the 1200mm minimum required by the pool safety standards’. The report included a photo depicting the relevant section and the method of measurement. The report suggested that to comply with the pool safety regulations that would be to ’increase the height to a minimum of 1200mm’.
[4]All Clear Pool Safety Inspections report dated 26 February 2014.
Mr Moderate said that the report also stated that the vines growing on the boundary fence posed a safety issue in that the vine offered footholds in the non-climbable zone which breached the regulations.[5] He said he had now removed the vines after getting the report and that this was no longer an issue.
[5]AS 1926.1-2007 Australian Standard for Swimming Pool Safety – Part 1 - Safety Barriers for Swimming Pools.

UNDISPUTED FACTS

The Sanctuary Cove Body Corporate have granted permission[6] for Mr Moderate to modify the dividing fence and was given approval for him to:
a)Raise the pool wall to a maximum height of 2.0 metres
b)Allow a setback from rear boundary is 3 metres
c)Take into consideration the Neighbourhood Dispute Resolution Act 2011
[6]Letter from Sanctuary Cove Principal Body Corporate GTP 202 Architectural review Committee dated 4 February 2014.
The Cove Principal Body Corporate By-Laws[7] provides at 2.11 Fence Controls that:
The owner of a controlled aspect lot must construct a fence that is:
a)of the same material, finish and colour s the controlled aspect wall on that lot; and
b)located at 0.0 metres on the controlled aspect of that lot; and
c)2.0 metres in height above ground level except where:
(i)the fence encloses a courtyard contained within the Principal structure, the height may be increased inline with the adjoining gutter or parapet; or
(ii)within 3.0 metres of the rear boundary, the fence must be stepped to a maximum of 1.25 metres in height about ground level to the rear boundary
If the distance from the Principal Structure to the rear boundary is greater than 6.0metres, the section of the fence further than 6.0 metres from the Principal Structure may be of open metal work construction or replaced with suitable planting.
[7]In bundle of documents marked “Exhibit 1”.
The cost to build the besser block wall by Smart Stone Group to renovate the swimming pool fence and wall between the parties property is at a cost of $2,230.00 excluding GST.[8]
[8]Quotation dated 9 February 2014.
Australian Standards and pool safety regulations require a pool safety fence to have an effective height of not less than 1200 mm including the non-climbable zone.[9]
[9]PART 2.6.1(a) Australian Standard for Swimming Pool Safety – Part 1 - Safety Barriers for Swimming Pools.
If the measurement of the height of a dividing fence or pool barrier is in dispute and there is a pool on either side, as in this case, the legislation is clear that the point of measurement is on the shorter side of the fence or barrier. [10]
[10]Building Act 1975 s 245XX(b).

FINDINGS

Mr Pierce has not sought to appeal the decision of the Sanctuary Cove Body Corporate that gave permission for Mr Moderate to build a dividing fence up to a height of 2 metres subject to a 3 metre setback from the rear boundary.
Mr Pierce’s objections to the fence height blocking his view or being inconsistent with the other fences and pool safety barriers in the vicinity is without merit and contrary to the evidence provided by Mr Moderate. Mr Moderates evidence of photos and plans clearly indicate that there are fences in the immediate locale that are constructed from solid brick, rendered and painted and that measure up to a height of 2 metres.
Mr Pierce’s allegation that a solid fence instead of the current metal tubular fence will inhibit his view is not made out. I cannot find on the evidence presented by Mr Pierce that this would be the case. The photos and evidence suggest that the small part of the tubular fence that is being replaced with solid block wall is only some 1365mm wide. This section of wall is also consistent with the remaining boundary fence which is solid rendered, painted and nearly 7 metres in length.
The tribunal can order that a pool owner may alter or replace all or part of the existing dividing fence that forms part of a pool barrier if it is satisfied that the pool barrier does not comply with pool safety regulations.
I am satisfied that as the dividing fence forms part of a barrier for a regulated pool on each of the 2 parcels of adjoining land and that the extent the work is attributable to both pool owners complying with compliance with pool safety standards[11], then the cost of carrying out the work should be borne equally by both pool owners[12]
[11]Ibid s 232(1).
[12]Ibid s 245XH(4).
I am satisfied that Mr Pierce may have a pool safety certificate for his pool, however the pool fence is not high enough on Mr Moderate’s side, and therefore the pool fence does not comply with the current standards.
I find that the measurement of the pool fence on Mr Moderate’s side of the fence is too low and the height must be increased to comply with pool safety standards. Mr Moderate’s plans and proposals for raising the height of the fence appear reasonable in all the circumstances, and the costs appear moderate.
I am satisfied that when the pool fence works are completed, pursuant to the quote Mr Moderate provided from Smart Stone Group, that the fence will comply with the pool safety standards[13] and that part of the pool barrier along the common boundary will, when complete, be a sufficient dividing fence [14].
[13]Ibid s 245XB(3)(a).
[14]Ibid s 245XB(3)(b).
I am satisfied that the Sanctuary Cove Principal Body Corporate have approved the plans and application made by Mr Moderate to modify the boundary fence wall between the parties properties. I am satisfied that the decision that the maximum fence height being 2 metres and the setback from the rear boundary being 3 metres was a decision made in contemplation and consideration of both the Sanctuary Cove Resort Act 1985 and the Development Control By-Laws of the Sanctuary Cove Principal Body Corporate and that the decision is both fair and reasonable.
I find that Mr Moderate’s application has merit and that he should be permitted to undertake the fence works to ensure that the pool barrier is safe and meets the requisite safety standards. I find that the fencing works will benefit Mr Pierce as well as Mr Moderate, and that it is appropriate that each of the parties should equally pay the costs of the fencing works.
I find that should Mr Moderate wish to undertake further fencing works above what is required to meet pool safety requirements that he be permitted to do so, as long as the works comply with the Sanctuary Cove Body Corporate approval that he has been given and that he pays for the entire costs.
The orders that I propose to make, to give effect to the decision I have made for the reasons that I have given, are as follows:

ORDERS

THAT claim 202/14 is dismissed.
THAT in relation to claim 97/14 the dividing fence works must be carried out on that part of the dividing fence that is identified as the non compliant pool barrier between the properties of the parties.
THAT the fencing works be performed in accordance with the quotation dated 9 February 2014 by Smart Stone Group (a copy of which is attached to this Order)
THAT the fencing works are to be arranged by Mr Moderate.
THAT the fencing works must be completed within twelve weeks of the date hereof.
THAT Mr Moderate must at least 14 days before entering upon Mr Pierce’s land, give him or any lessee, notice of the commencement of the proposed fencing works.
THAT Mr Pierce must pay to Mr Moderate the sum of $1,226.50 (GST inclusive) within seven days of the fencing works being completed.
THAT each of the parties will be responsible for rendering and painting the fencing works on their side of their property, at their own cost, with such colour of the new fence works to match the existing paint colour of the current dividing fence.
THAT should Mr Moderate wish to undertake more extensive fencing works that are in compliance with the approval given to him on 4 February 2014 by the Sanctuary Cove Principal Body Corporate GTP 202 Architectural Review Committee then Mr Moderate may be entitled to do so but the additional cost thereof over and above the amount referred to in order 7 herein shall be borne entirely by Mr Moderate.