Roberts v Greinke
[2018] QCATA 48
•4 May 2018
CITATION: | Roberts v Greinke [2018] QCATA 48 |
PARTIES: | Christine Roberts |
| v | |
| Michael Greinke (Frist Respondent) Ariana Greinke (Second Respondent) | |
APPLICATION NUMBER: | APL132-17 |
MATTER TYPE: | Appeals |
HEARING DATE: | 2 February 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Justice Daubney, President |
DELIVERED ON: | 4 May 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Order nunc pro tunc that the time for service of the application for leave to appeal be extended to 12 May 2017; 2. The applicant has leave to appeal; 3. The amended order of the learned acting magistrate be set aside, and in lieu thereof it be ordered and directed as follows; a) A new dividing fence is to be erected on the common boundary between 69 Poinciana Avenue and 67 Poinciana Avenue, Yeppoon; b) The President of the Queensland Division of Engineers Australia be requested to nominate an independent civil engineer to undertake the tasks hereinafter specified; c) The Principal Registrar of the Tribunal is directed to provide a copy of this decision to the President of the Queensland Division of Engineers Australia with a request that the President make such nomination and communicate that nomination as soon as possible to each party and to the Tribunal; d) Within seven (7) days of being advised of the identity of the nominated engineer, the applicant shall provide the engineer with full details of the dividing fence proposed to be constructed by the applicant, being: i) 1.8 metre high bluestone Colorbond fence of 30.27 meters in length; e) As soon as possible after being provided with those specifications, the engineer shall give the applicant and the respondents written advice as to whether the engineer will be able, upon construction of such a fence, to provide certification that the fence as constructed will be sufficient to withstand cyclone and wind loadings applicable to the locality in which the fence is proposed to be constructed; f) If the engineer provides such advice to both parties, then: i) Construction of that fence may be arranged by the applicant; ii) The construction of the fence shall be completed within three months of receipt of the engineer’s advice; iii) The construction of the fence shall be supervised by the engineer (including as to alignment of the fence along the boundary between the two properties); iv) Upon completion of the construction of the fence, the engineer shall, if satisfied, provide written certification to each of the parties that the fence has been constructed to a standard sufficient to withstand cyclone and wind loadings for the locality; v) All of the costs of and incidental to the retainer of the engineer, the provision by the engineer of advice, the supervision by the engineer and inspection and certification by the engineer shall be borne by the applicant. g) If the engineer advises that the engineer will not be able to provide such a certification upon construction of the fence, then: i) The fence to be constructed between the properties shall be in accordance with the quote from Yeppoon Carpentry Services for $5,170 inclusive of GST; ii) The construction of that fence shall be arranged by the respondents; iii) The construction shall be completed within three months of such advice from the engineer. h) If, after construction of a fence pursuant to Order 3(f), the engineer is unable or unwilling to provide the certification referred to in Order 3(f)(iv), then: i) The applicant shall forthwith cause that fence to be removed, with the cost of such removal to be borne solely by the applicant; ii) A fence shall then be constructed in accordance with the quote from Yeppoon Carpentry Services for $5,170 inclusive of GST; iii) Such fence construction shall be arranged by the respondents; iv) The construction of such fence shall be completed within a further three months. i) The liability of the respondents to contribute to any and all of the fencing work referred to above shall be limited to $2,585 (inclusive of GST), which shall be payable by the respondents to the applicant forthwith upon: i) Certification by the engineer in accordance with Order 3(f)(iv); or ii) Completion of the construction of the fence in accordance with the quote from Yeppoon Carpentry Services. |
CATCHWORDS: | APPEALS – MINOR CIVIL DISPUTE – DIVIDING FENCES – where disagreement as to type of fence to be erected between neighbouring properties – where dispute as to the location of the boundary line – whether the chosen fence is structurally unsuitable for the region – where engineer should be consulted to assess the structural suitability of the fence Queensland Civil and Administrative Tribunal Act 2009, s 142 |
APPEARANCES: | |
APPLICANT: | The applicant was self-represented |
RESPONDENT: | The respondents were self-represented |
REASONS FOR DECISION
The applicant, Ms Roberts, lives at 69 Poinciana Avenue, Yeppoon. The respondents, Mr and Mrs Greinke, are her neighbours at 67 Poinciana Avenue.
On 13 March 2015, the applicant filed a minor civil dispute application for relief under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (“the Act”) concerning the erection of a dividing fence between her property and the respondents’ property. Prior to commencing the proceeding, the applicant had called on the respondents, pursuant to section 31 of the Act, to contribute to the cost of construction of a 1.8 metre high fence between the two properties. The type of fence proposed by the applicant was to be constructed of powder-coated metal panels. As the dispute between the parties developed, it became clear enough that there was no real issue about the need for the construction of a fence; the only issue was what sort of fence.
Neighbourly relations between the parties were clearly strained. In late 2016, the applicant took it upon herself to commence construction of a fence between the properties. This led to the respondents seeking and obtaining an interim order that the fence construction cease. One of the issues at the time was whether post holes for that fence were being dug on the respondents’ property. Consequently, upon directions made by the learned magistrate who dealt with the interim hearing, the applicant procured a survey of the location of the boundary line.
The hearing of the minor civil dispute came on before an acting magistrate at Yeppoon on 19 January 2017. It is clear enough from the transcript of that hearing that, in the course of argument, the learned acting magistrate made a determination to the effect that the sort of fence which was to be constructed between the properties was of the nature proposed by the respondents rather than the applicant. The respondents’ preference was for a steel mesh fence. At the conclusion of the hearing on 19 Janurary 2017, the learned acting magistrate directed the parties to obtain quotes for a steel mesh fence of the kind proposed by the respondents and indicated, in effect, that after receiving those quotes from the parties, he would make necessary orders under the Act for construction of such a fence.
The respondents obtained and supplied several quotes, including a quote from “Yeppoon Carpentry Services”. These were supplied to the learned acting magistrate. The applicant did not provide any such quotes.
Subsquently, the learned acting magistrate made and published a decision which (after amendment to correct a mathematical error) provided for the following:
1. A new dividing fence is to be erected on the common boundary between the properties of the parties;
2. The fence is to be constructed in accordance with the quote from Yeppoon carpentry services for $5,170 incl GST;
3. The fence construction is to be arranged by the respondent;
4. The construction of the fence is to be completed within 6 months;
5. The claimant is to pay the respondent half of the sum of the quote within fourteen (14) days of being notified in writing by the respondent of the completion of the fence.
Parties given liberty to apply.
On 13 April 2017, the applicant filed an application for leave to appeal against that decision. For reasons which will shortly emerge, it is unnecessary to traverse here the proposed grounds of appeal set out in the application. I note in passing that the respondents sought to raise a technical argument about late service in that the application for leave to appeal had been served on the respondents one day after the time prescribed by directions issued in that regard by the Tribunal. There was clearly no prejudice to the respondents as a consequence of that late service, and indeed the respondents have fully engaged in contesting the present proceeding. Accordingly, as I indicated in the hearing before me, there will be an order granting the necessary extension of time for service of the application for leave to appeal.
As the decision by the learned acting magistrate was in a proceeding for a minor civil dispute, an appeal may be pursued only with the Tribunal’s leave.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”), section 142(3).
It is unnecessary for me to rehearse the well-known authorities concerning the tests to be applied when considering applications for leave to appeal. The transcript of the hearing before the learned acting magistrate was before me. As I have already noted, His Honour made it clear in the course of the hearing that he had decided that he preferred the sort of fence proposed by the respondents. It is clear from the face of the transcript that the hearing before the learned acting magistrate was robust and involved considerable straightforward exchanges between the magistrate and the parties. Unfortunately, however, it is simply not possible to discern a statement of the reasons for the learned acting magistrate exercising his discretion under the Act in the way which led to the making of the final orders. He did not give formal reasons for his decision. Nor is it possible, on the face of the transcript, to glean any reason why he made his decisions in the way he did. In the absence of any meaningful reasons, either by way of formal reasons or on the face of the record, it is appropriate that there be leave to appeal.
Both the applicant and the respondents filed full written submissions concerning the proposed appeal, including various annexures. Considerable parts of each of those submissions went to matters which were and are simply not relevant to the interpretation and application of the Act in the circumstances of this case. For example, both parties revealed selective pieces of information which had been conveyed in the course of a mediation between them. Given the confidential nature of mediation, it was completely inappropriate for both parties to disclose the matters they did and, as I informed them in the course of argument before me, I will have no regard to those disclosures.
All parties appeared by telephone for the oral hearing and were given ample opportunity to make whatever submissions they wished about the merits of the appeal. After the oral hearing, the respondents filed an application by which they sought to make further submissions, asserting that there had been intermittent “drop out” on the telephone line during the hearing. I note that at no time during the hearing itself did either of the respondents complain about this. On the contrary, both respondents participated fully in the hearing. The respondents also expressed a belief that I may not have been in receipt of all the materials which were before the learned acting magistrate. The respondents did not provide any basis or explanation for that belief, and the fact of the matter was, as I confirmed to all parties during the oral hearing, that I did have all of the material which was before the learned acting magistrate. All of that notwithstanding, however, I gave leave for the respondents to file their further written submissions, and made directions to allow the applicant to file any submissions in response, which the applicant subsequently did. Both parties having said everything which could possibly be said about the matter, it is expeditious and appropriate for me to determine the appeal now. Given the nature of the issues between the parties, which I will identify shortly, this appeal must be decided by way of a rehearing pursuant to s 147 of the QCAT Act. For that purpose I have had regard to the material which was before the learned acting magistrate and the further material which the parties put before me.
As noted above, this is a dispute about a dividing fence, which is governed by the Act. Section 3 of the Act relevantly provides that the objects of the Act are to provide rules about each neighbour’s responsibility for dividing fences so that they are generally able to resolve issues about fences without a dispute arising, and to facilitate the resolution of any disputes about dividing fences which do arise between neighbours.
The provisions relating to dividing fences are contained in Chapter 2 of the Act. Section 7 provides the following overview of the chapter:
“(1) A sufficient dividing fence is required between 2 parcels of land if an adjoining owner requests a dividing fence.
(2) Generally, neighbours must –
(a) contribute equally to the building and maintaining of a sufficient dividing fence; and
(b) not attach something to a dividing fence that materially and unreasonably alters or damages it.
(3) This chapter encourages neighbours to attempt to resolve a dividing fence issue informally.
(4) However, if neighbours can not resolve a dividing fence issue, the dispute may be taken to QCAT for resolution.”
Definitions of the terms “fence”, “dividing fence”, and “sufficient dividing fence”, together with other terms used in Chapter 2, are set out in Part 2. Chapter 2 Part 3 sets out various statutory responsibilities of neighbours. Section 20(1) relevantly provides that if there is no sufficient dividing fence between two parcels of land, the adjoining owners are liable to contribute to carrying out the fencing work necessary for a sufficient dividing fence. Section 21 provides:
“(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.”
Chapter 2 Part 4 of the Act then sets out the processes for obtaining contribution and resolving disputes concerning dividing fences. Section 31 contains the provisions relating to notices to contribute for fencing work.
In relation to resolving disputes, this Tribunal has a wide discretion to “hear and decide any matter arising under” Chapter 2 of the Act.[2]
[2]Section 33 of the Act.
On the face of the submissions which had been filed by the parties, it appeared that there were two central issues for determination on the appeal:
a) The location of the boundary line along which the dividing fence was to be constructed;
b) The type of fence to be constructed.
In the course of argument before me, however, it emerged that there was in fact no dispute between the parties in relation to the location of the true boundary line between their properties. The respondents expressly accepted that the boundary line was that which had been identified in the survey procured by the applicant in 2016. Nor was there any dispute between the parties about the fact that this surveyed line was the boundary line along which the fence between their properties should run.
Further, in the course of argument before me, it emerged that the parties were agreed that the wire mesh fence, which was the subject of the decision by the learned acting magistrate, was a “sufficient dividing fence” within the meaning of that term in the Act.
The only real issue was whether the fence which ought be constructed should be limited to such a “sufficient dividing fence” or whether the more extensive and expensive fence proposed by the applicant ought be constructed.
Section 35(1) of the Act provides, inter alia, as follows:
“(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
…”
It is clear enough that the orders which may be made by the Tribunal are not limited to ordering the construction of a “sufficient dividing fence”. Rather, as is apparent from section 35(1)(b), the Tribunal has a wide discretion in relation to the type and nature of fence which it may order be constructed. In that regard, it is also relevant to note that “fencing work” is defined in section 16 as follows:
“(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.”
In the present case, the applicant accepted that the extent of financial contribution which ought be levied against the respondents was limited to one-half of the cost of a “sufficient dividing fence”. In practical terms, that is one-half of the quote obtained from Yeppoon Carpentry Services. The applicant expressly accepted that all extra costs associated with the construction of the more expensive fence would be to her account.
The respondents expressed structural, aesthetic and amenity concerns about the panel fence proposed by the applicant, saying that the steel mesh fence which they had proposed was preferable in all the circumstances.
The applicant, as I have already noted, accepted that she would need to pay all of the extra costs associated with building the panel fence. Ms Roberts cited the need for a more solid fence for safety and security concerns and also to provide an effective visual barrier between the two properties.
The respondents’ aesthetic concern was that most fences in the area are of a “wire mesh” variety and that the fence proposed by the applicant was uncharacteristic for the area and was a departure from the types of fences seen in the area. It was said that a panel fence would “decrease the open leafy feel of the area” and that it would be “out of place with some of the modern, tasteful powder coated aluminium and steel flow through fences in the neighbourhood”.
The respondents relied on photos of various other fences in the neighbourhood. In fact, as appears from these photos, there is no uniformity in the style of fences. Some are galvanised steel mesh supported by what appear to be galvanised steel posts. Then there are several types of powder coated tubular fencing of the style often used as pool fences. Given the prevailing slope of the land in the neighbourhood, there are significant concrete block retaining walls on several properties. Some of the concrete block work is painted; some is not. Some of the pool-type fencing is white, and is very obvious. Some of that fencing is fixed to powder-coated posts. In another case, that tubular fencing appears to be on top of a concrete block wall and is itself attached to regularly spaced concrete block pillars.
It is true that the panel type fence will be a departure from other styles of fences in the vicinity. But on the evidence before me, I do not accept that it will be aesthetically disruptive to the area. The evidence discloses that the neighbourhood is populated by a variety of fencing styles, some of which have significant visual impact. Accordingly, I do not accept the respondents’ aesthetic concerns as a basis for refusing the panel fence.
The respondents’ amenity concerns centred on what they claimed would be the impact of the panel fence on their enjoyment of their own property. Those concerns included:
a) That the respondents would be “looking into a monotone metal structure which would give a claustrophobic feel”;
b) The panel fence would cause “glare and reflection from the officious sun into our living area; and
c) It would stifle any breeze into the respondents’ living area.
In my view, however, these purported “concerns” verge on the hyperbolic, and are symptomatic of the breakdown in relations between the respondents and the applicant. The reality is that the respondents’ home is higher on the hill than the applicant’s house, and is therefore uphill from the proposed fence. There is a substantial area of grassed yard between the respondents’ home and the line of the proposed fence. I do not accept that the panel fence would create a claustrophobic environment. Nor do I accept that a powder-coated panel fence of the type and colour proposed by the applicant would produce significant glare. The proposition that the 1.8 metre panel fence could “stifle sea breeze” loses any cogency when one realizes that the fence will be downhill from the respondents’ house and that accordingly the top of the fence will barely be level with the base of the respondents’ house. The respondents’ amenity concerns do not justify refusal of the proposed panel fence.
The structural concern was that a solid fence such as the panel fence was unsuitable to cope with high winds experienced in the Yeppoon region, particularly when cyclones hit. The respondents raised a not unreasonable concern about the prospect of panels from the fence being dislodged in high winds and becoming dangerous objects flying through the air.
In relation to the integrity of the construction of the proposed fence, no expert evidence was put before me in relation to the cyclone or wind ratings of panel fences. It seems to me, however, that the respondents’ concerns in this regard are legitimate, and, as I indicated in the course of argument, could be addressed by appropriate certification by a qualified civil engineer as to the wind rating and cyclone proof qualities of such a panel fence. If such certification is able to be obtained before construction of the panel fence commences, then there seems to me to be no good reason why the applicant ought not to have the panel fence, remembering that she will be bearing the extra expense associated with the construction of that fence. Given the history of acrimony between these neighbours, I also consider it appropriate, as I indicated in the course of argument, that this civil engineer be retained, at the applicant’s expense, to supervise the actual construction of the fence, and to provide a certification at the conclusion of construction that it has been constructed to the requisite standard. If the engineer is unable to provide the necessary certification, then the mesh fence will need to be built.
The applicant sought that the respondents contribute to the cost of obtaining the survey in 2016. The necessity for that survey being obtained, however, arose due to the actions of the applicant in instigating construction of a fence with apparent encroachment of postholes on the respondents’ property. In all the circumstances, I do not consider it appropriate for the respondents to be required to contribute to the cost of obtaining that survey.
Finally, I should observe that, during the time this decision was reserved, the respondents lodged a “Complaint form” with QCAT in which the respondents sought to advance a number of procedural arguments concerning this matter. The inappropriateness and ill-advisedness of that lodgment by the respondents ought to be apparent, but I should record that nothing in the “Complaint form” impacts on the outcome of this matter. For completeness, I should also record that the respondents were given every opportunity to argue the merits of the appeal, including, as stated above, by permitting them to file supplementary written submissions. Moreover, it was, or ought to have been, abundantly clear to all parties that the hearing was concerned with the merits and potential outcome of the appeal. So much would have been obvious, for example, from the fact that I gave both parties the opportunity to comment on the proposal that the panel fence be built only with the certification of a qualified engineer.
There will be the following orders and directions:
1. Order nunc pro tunc that the time for service of the application for leave to appeal be extended to 12 May 2017;
2. The applicant has leave to appeal;
3. The amended order of the learned acting magistrate be set aside, and in lieu thereof it be ordered and directed as follows;
a) A new dividing fence is to be erected on the common boundary between 69 Poinciana Avenue and 67 Poinciana Avenue, Yeppoon;
b)The President of the Queensland Division of Engineers Australia be requested to nominate an independent civil engineer to undertake the tasks hereinafter specified;
c)The Principal Registrar of the Tribunal is directed to provide a copy of this decision to the President of the Queensland Division of Engineers Australia with a request that the President make such nomination and communicate that nomination as soon as possible to each party and to the Tribunal;
d) Within seven (7) days of being advised of the identity of the nominated engineer, the applicant shall provide the engineer with full details of the dividing fence proposed to be constructed by the applicant, being:
i)1.8 metre high bluestone Colorbond fence of 30.27 meters in length;
e)As soon as possible after being provided with those specifications, the engineer shall give the applicant and the respondents written advice as to whether the engineer will be able, upon construction of such a fence, to provide certification that the fence as constructed will be sufficient to withstand cyclone and wind loadings applicable to the locality in which the fence is proposed to be constructed;
f)If the engineer provides such advice to both parties, then:
i)Construction of that fence may be arranged by the applicant;
ii)The construction of the fence shall be completed within three months of receipt of the engineer’s advice;
iii)The construction of the fence shall be supervised by the engineer (including as to alignment of the fence along the boundary between the two properties);
iv)Upon completion of the construction of the fence, the engineer shall, if satisfied, provide written certification to each of the parties that the fence has been constructed to a standard sufficient to withstand cyclone and wind loadings for the locality;
v)All of the costs of and incidental to the retainer of the engineer, the provision by the engineer of advice, the supervision by the engineer and inspection and certification by the engineer shall be borne by the applicant.
g)If the engineer advises that the engineer will not be able to provide such a certification upon construction of the fence, then:
i)The fence to be constructed between the properties shall be in accordance with the quote from Yeppoon Carpentry Services for $5,170 inclusive of GST;
ii)The construction of that fence shall be arranged by the respondents;
iii)The construction shall be completed within three months of such advice from the engineer.
h)If, after construction of a fence pursuant to Order 3(f), the engineer is unable or unwilling to provide the certification referred to in Order 3(f)(iv), then:
i)The applicant shall forthwith cause that fence to be removed, with the cost of such removal to be borne solely by the applicant;
ii)A fence shall then be constructed in accordance with the quote from Yeppoon Carpentry Services for $5,170 inclusive of GST;
iii)Such fence construction shall be arranged by the respondents;
iv)The construction of such fence shall be completed within a further three months.
i)The liability of the respondents to contribute to any and all of the fencing work referred to above shall be limited to $2,585 (inclusive of GST), which shall be payable by the respondents to the applicant forthwith upon:
i)Certification by the engineer in accordance with Order 3(f)(iv); or
ii)Completion of the construction of the fence in accordance with the quote from Yeppoon Carpentry Services.
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