Ryan v Butler

[2013] QCATA 222

CITATION: Ryan v Butler [2013] QCATA 222

PARTIES:	Richard Ronald Ryan (Appellant)
v
Lee Butler (Respondent)

APPLICATION NUMBER: APL156-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 30 July 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.   Application for leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – NEIGHBOURHOOD DISPUTE – DIVIDING FENCE – where parties are owners of adjoining properties – where Tribunal ordered parties contribute to colorbond fence – where s 21 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2001 provides adjoining owners are liable to contribute equally to ‘… sufficient dividing fence’ – where applicant seeks to appeal that decision – where applicant contends chain wire fence is ‘sufficient’ – where Tribunal decision was discretionary – whether leave to appeal should be granted 

Neighbourhood Disputes (Dividing Fences and Trees) Act 2001 (Qld), s 21, s 35

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Mr Ryan and Mrs Butler are the owners of adjoining properties at Mary Street, Georgetown. Mrs Butler brought proceedings under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2001 (Qld) which were heard and determined by a Magistrate, sitting as a QCAT Member, on 4 April 2013.

2. The learned Magistrate ordered that a fence be constructed on the common boundary, 1800mm high and made of galvanised colorbond, with the cost of the fence (according to the cheapest quote) to be shared as to 60 per cent by Mrs Butler, and 40 per cent by Mr Ryan. The learned Magistrate also ordered that Mr Ryan remove any obstructions to the fence including an existing fence, a chicken coop and a shed within four weeks – and, again, that the cost of removal be shared in the same proportions.

3. Mr Ryan seeks leave to appeal the decision. Leave is necessary because of s 142(3)(a)(i) of the QCAT Act. The QCAT Appeal Tribunal determined that the application for leave to appeal (and the appeal, if leave is granted) would be determined on the papers, i.e. by written submissions from the parties. Neither objected to that course, and they have filed and exchanged written submissions.

4. Mr Ryan says that the height and style of fence ordered by the learned Magistrate differ from, and exceed, the kind of fence normally used in the area. Mr Ryan says fences in the area are generally lower, and ordinarily of simple chain wire.

5. Under s 21 of the Neighbourhood Disputes Act adjoining owners are each liable to contribute equally to a ‘… sufficient dividing fence’. Mr Ryan’s argument is, in short, that a chain wire fence is ‘sufficient’.

6. Under s 35, however, the Tribunal has a discretion to determine the ‘… kind of dividing fence’ and, in exercising that discretion, it may consider the kind of dividing fence normally used in the area plus some other factors, including the purposes for which the adjoining parcels are normally used.

7. Mrs Butler argued for this particular kind of fence for reasons of privacy and because, she alleged, of barking dogs on Mr Ryan’s property. The learned presiding Magistrate was entitled to take these matters into account.  It is also to be observed that, in ordering contributions to cost by each party, she placed the heavier proportion upon Mrs Butler.

8. On any view, the learned Magistrate’s decision suggests she properly turned her mind to the issues in the dispute, the discretion she must exercise under the relevant parts of the legislation, and the way she might appropriately exercise that discretion. Nothing in Mr Ryan’s submissions suggests any error in the way the learned Magistrate undertook those tasks, or that it is necessary for the Appeal Tribunal to interfere to correct any apparent, substantial injustice.

9. For these reasons, leave to appeal must be refused.