Pieri v Pavitt; Pavitt v Pieri
[2017] QCAT 296
•6 September 2017
CITATION: | Pieri v Pavitt; Pavitt v Pieri & Anor [2017] QCAT 296 |
PARTIES: | Michael Pieri |
| v | |
| Tina Pavitt (Respondent) | |
APPLICATION NUMBER: | MCDO2227-16 |
PARTIES: | Tina Pavitt |
| v | |
| Michael Pieri (Respondents) | |
APPLICATION NUMBER: | MCDO161-17 |
MATTER TYPE: | Other minor civil dispute matters |
HEARING DATES: | 20 February 2017; 23 May 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Adjudicator Bertelsen |
DELIVERED ON: | 6 September 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | In MCDO2227-16 1. The application is dismissed. In MCDO161-17 1. The application is dismissed. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – Fencing dispute – construction of dividing fence on common boundary – construction of fence within one owner’s property – timeframes for contribution – possible land retention issues in the future – Tribunal’s fencing jurisdiction not inclusive of retaining walls Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 28, s 32 |
APPEARANCES: | |
APPLICANT: | Michael Pieri |
RESPONDENT: | Tina Pavitt |
REASONS FOR DECISION
Applications
By application MCDO2227-16 filed 16 November 2016, Michael Pieri, an owner of the property 17 Slate Close, Brinsmead, Cairns, filed an application for minor civil dispute – dividing fences, and an application to stay a decision seeking discontinuance of the construction of a 3.6m high fence on his neighbour, Tina Pavitt’s side of the common boundary at
15 Slate Close, Brinsmead.
By application MCDO3-17 filed 9 January 2017 filed at Cairns (subsequently transferred to Brisbane as MCDO161-17), Tina Pavitt seeks as against Michael Pieri and Troy Webb, compensation for damage to or destruction of a dividing fence in the sum of $1,240.00 and ‘reimbursement of costs for installing boundary dividing fence between our two properties’.
Background and evidence
Mr Pieri’s application for a stay seeking discontinuance of construction of 3.6m high fence gave as its reasons: the blocking of natural light and ventilation, absence of a fence, non-notification of any form of approval and absence of like fencing in the immediate vicinity.
On 16 November 2016, the Tribunal granted an interim order suspending construction or demolition until further order.
On 13 January 2017, the Tribunal ordered Ms Pavitt’s application filed at Cairns be heard at the same time as Mr Pieri’s Brisbane application. Mr Pieri, Mr Webb and Ms Pavitt were ordered:
…to provide to the Tribunal comprehensive photographic evidence of the whole of the common boundary together with their statements/submissions as to the manner in which the whole of the common boundary out to be fenced…
Both applications came before the Tribunal on 20 February 2017. It appeared Ms Pavitt’s documents filed 1 February 2017 at Cairns had been received by Mr Pieri and Mr Webb. However, it appeared Mr Pieri and Mr Webb’s documents filed 3 February 2017 had not been received by Ms Pavitt.
On 20 February 2017, the Tribunal ordered:
Mr Pieri shall serve his comprehensive photographic evidence of the whole of the whole of the common boundary together with his statements/submission as to the manner in which the whole of the common boundary out to be fenced by registered post within 14 days.
Both applications came before the Tribunal for an oral hearing on
23 May 2017.
It was not disputed that in accord with survey, the common boundary between 15 and 17 Slate Close was 51.85m long. Nor was there any evidence to suggest the survey, though dated, was inaccurate.
Ms Pavitt submitted for orders to be made for contribution to fencing as follows:
a)Half cost of front fence (full cost $4,226.55) - $2,113.27 together with cost of engineers report in respect of a retaining wall insisted upon by Mr Pieri and Mr Webb;
b)Full cost of new middle timber fence removed and/or damaged by Mr Pieri - $1,588.00; and
c)Half cost back rear fence (full cost $1,705.00) - $852.50.
Ms Pavitt submitted that she had provided notices to contribute to fencing work and agreements to contribute to fencing on 31 March 2016,
5 April 2016 and 5 May 2016; that Mr Pieri had refused to reimburse her for her costs. Subsequently, in October 2016 Ms Pavitt obtained a form of approval from Cairns Regional Council for construction of a 14m section of panel fencing at the front end of the common boundary, such approval being obtained it appears without reference to Mr Pieri or Mr Webb. As a result of confronting conduct between neighbours ‘the fencing contractor decided it would be better to install on my side of the adjoining boundary as to stop this neighbour threatening him and therefore there was no need to stop the installation of this fence’.
On 16 November 2016, Mr Pieri and Mr Webb obtained an order from the Tribunal as follows:
An Interim Order is granted, suspending construction or demolition until further order.
Photographic evidence produced by Ms Pavitt indicates that the panel fence has been constructed within her property. There is also an interlocking block wall evident in this front section of the common boundary but that wall appears to be within Mr Pieri’s and Mr Webb’s property. As this section of fence was constructed without notification to Mr Pieri or Mr Webb, and it being well within Ms Pavitt’s property, there was no reason to stop construction, nor however was there ever any basis for demanding contribution from Mr Pieri or Mr Webb.
A Cairns Regional Council aerial view of the property produced to the Tribunal was endorsed by Ms Pavitt, ‘the fence is going to be on my side of the boundary as I am paying 100% of fence’.
The middle section of the common boundary is serviced by a masonry block retaining wall extending for some 16m and which appears to be situated properly along the common boundary.
The contour of the land is such that Mr Pieri’s and Mr Webb’s property is elevated some 2-3m necessitating the original construction of the masonry block wall. Photographs produced to the Tribunal indicate that atop that masonry brick wall, there was an old spaced paling timber fence, and a shorter cross-timbered two panel open fence at two different heights partially covered by vegetation. Ms Pavitt replaced that portion of fence with a 1.8m timber fence with palings installed butt to butt so as to provide complete privacy. According to her submission, timber for this fence was supplied on 13 April 2016 at a cost of $348.00 with AJ Fencing Contractor employed to erect the fence in April 2016 at a cost of $1,240.00, a total of $1,588.00.
Ms Pavitt asserted she was required to erect this fence because of removal and damage to the old timber fence. That was disputed by Mr Pieri and Mr Webb.
Even if it was possible to construe the construction of this new timber fence as urgent fencing work pursuant to s 28 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (ND Act), it was incumbent on Ms Pavitt, even after the event, to give notice if seeking contribution for the cost of that fencing work. A notice to contribute for urgent fencing work was assertedly issued by Ms Pavitt on 12 April 2016. That notice recited as the type of fencing work carried out as consisting of ‘masonry block wall dividing boundary between the two properties & install privacy fence’ and sought a 50% contribution to a total recorded cost of $9,970.00.
By s 32 of the ND Act, Ms Pavitt was required to seek an order of the Tribunal within two months of that notice being given. That did not happen. Whilst the Tribunal considers this middle section of new timber fence is properly erected on the common boundary, here constituted by wall top, there is now no claim for contribution under the ND Act.
Ms Pavitt set about and erected a 20m back rear fence at a cost of $1,705.00. She contracted Ashley Walshe of Cairns Classic Fences to construct a 1.8m high treated pine paling fence with no gaps between palings. According to a statement provided by Mr Walshe to the Tribunal on 15 November 2016, he commenced demolition of an existing rear fence and proceeded to build the new pine paling fence ‘as close as possible to the existing fence’ stating ‘at no time did I or any other contractor set foot on or touch any property or land belonging to 17 Slate Close’. It does appear from the photographic evidence that the previously existing rear fence was such as it could hardly be called a dividing fence being a hodgepodge of timber and metal.
Receipts provided by Ms Pavitt indicate she paid Mr Walshe $852.50 on 15 November 2016, and $852.50 on 18 November 2016.
It appears this fence section may not have been constructed on the common boundary, but rather on Ms Pavitt’s property close to the common boundary. Either way, at the time of construction of this rear section of fence by Mr Walshe there appeared to be no notice to contribute for fencing work issued to Mr Pieri or Mr Webb. The notice produced by Ms Pavitt seeking $852.00 of Mr Walshe’s $1,705.00 is undated. Even if that notice was issued prior to 15 November 2016, any liability for contribution would only arise if there was firstly agreement, or secondly upon an order of the Tribunal being made consequent upon an application to the Tribunal within a two month period of the date of the issue of the notice in the first instance.
Assertions and counter-assertions arose as to the lie of the land in the rear of the properties. Ms Pavitt asserted that commercial water discharge on and from Mr Pieri’s and Mr Webb’s lower side property was eroding soil on her, here elevated, property undermining the area on which the fence had recently been constructed. Mr Pieri and Mr Webb asserted the prior owners of Ms Pavitt’s property having brought in ‘loads and loads’ of soil thus raising the level of her land. Mr Pieri and Mr Webb submitted that eroding soil would eventually push the new fence over; that the ‘fence she has constructed will fall over due to the soil and movement from her side’. This state of affairs may not bode well for the longevity of the fence. However, it is not an issue for the Tribunal to consider in the context of this application. It is essentially a land retention issue not within the purview of the Tribunal’s jurisdiction.
Photographic evidence produced to the Tribunal depicted this newly constructed back rear fence to be free standing, upright and in excellent condition.
Both parties provided lengthy narratives of their soured relationship, citing events and incidents going back years. These included noise and trespass issues, installation of observation cameras, cat faeces, mowing and use of herbicides, overhanging braches, arborist reports, tree trimming, poisoning of vegetation, commercial discharge of water, location of boundary marker pegs and peace and good behaviour complaints and summons, none of which, except boundary marker pegs, are within the purview of the Tribunal in its minor civil dispute jurisdiction adjudicating on fencing issues.
Summary
There is no case for the removal of the front 14m section of panel fence, nor is there a case for Mr Pieri or Ms Pavitt to contribute to the cost of that fence.
There is no case for the removal of the middle section of timber fence, nor is there a case for Mr Pieri or Mr Webb to contribute to the cost of that fence.
There is no case for the removal of the back rear timber-panelling fence, nor is there a case for Mr Pieri and Mr Webb to contribute to the cost of that fence.
For clarity, the adequacy of the masonry block wall in the context of current fencing is not a fencing issue as envisaged by the ND Act, but rather a land retention issue. The possible necessity for a retaining wall in the rear of the properties might similarly be a land retention issue in the future.
Michael Pieri’s application is dismissed.
Tina Pavitt’s application is dismissed.
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