Silcox v Sapiano
[2012] QCAT 649
| CITATION: | Silcox and Anor v Sapiano [2012] QCAT 649 |
| PARTIES: | Mark Silcox Wendi Silcox |
| v | |
| John Sapiano |
| APPLICATION NUMBER: | MCDO99-12 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 3 October 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Paul Favell, Member |
| DELIVERED ON: | 18 December 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The respondent pay the applicant one half of $2,127.27 after any insurance payment in respect of the dividing fence is deducted. |
| CATCHWORDS: | Minor civil dispute – dividing fence – retaining wall – jurisdiction of QCAT Neighbourhood Disputes Resolution Act 2011 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mark Silcox and Wendi Silcox |
| RESPONDENT: | John Sapiano assisted by Toby Meier |
REASONS FOR DECISION
The applicants and the respondent are adjoining neighbours. The fence dividing their properties is in disrepair.
The applicant gave the respondent a notice to fence dated 29 February 2012 under section 31 of the Neighbourhood Disputes Resolution Act 2011.
It proposed fencing work be carried out on the common boundary of the adjoining lands and that the fence be a hardwood retaining wall and fence effected on top, constructed of timber in accord with a quote from AJK Timber fencing for $8,340.00.
The quote included removing an old retaining wall and fence, installing a new timber retaining wall, installing Agg pipe and a new fence on top of the retaining wall. Of the amount on the quote, $2,217.27 was in respect of the installation of a fence on top of the retaining wall.
The applicant sought a contribution of $4,170.00 from the respondent.
The Neighbourhood Disputes Resolution Act 2011 (‘the Act’) is applicable.
Section 7 provides that, “a sufficient dividing fence is required between 2 parcels of land if an adjoining owner requests a dividing fence.”
Section 7 further provides, “generally neighbours must contribute equally to the building and maintaining of a sufficient dividing fence.”
The Act encourages neighbours to attempt to resolve the dividing fence issue informally but if it can not be so resolved the dispute may be taken to QCAT.
Section 11 defines the meaning of a “fence” and section 12 defines the “dividing fence” as a fence on the common boundary of adjoining properties.
Section 13 defines “sufficient dividing fences for 2 parcels of a residential land” as between a minimum of 0.5m and a maximum of 1.8m in height and consisting substantially of a prescribed material, or if QCAT decides the dividing fence is a sufficient dividing fence.
Section 13 provides that in Chapter 2 (the dividing fences chapter) the existence of a fence other than a dividing fence on adjoining land must not be taken into account in deciding whether there is a sufficient dividing fence.
“Prescribed material” is set out in section 13 and includes “wood, including timber palings and lattice panels”.
Sections 14 and 15 defines “owner of land”, “adjoining land owner” and “adjoining owners”. There is no issue in this application concerning these matters.
Section 20 provides that “if there is no sufficient dividing fence between 2 parcels of land consisting of adjoining land an adjoining owner is liable to contribute to carrying out fencing work for a sufficient dividing fence.”
Section 20(2) provides that if carrying out fencing work (defined in section 16) includes construction of a sufficient dividing fence the fence must be constructed on the common boundary other than to the extent it is impractical to do so because of natural physical features.
Section 21 provides that “adjoining owners are each liable to contribute equally to carrying out fencing work for a sufficient dividing fence.
I was told that the existing fence is 15 years old and has suffered from excessive flooding erosion and was rotting. I was also told there was insurance cover of $3,387.00. The fence and retaining wall needs replacing.
I was shown a video which was not placed on the record but it showed the respondent’s land inundated with run off from its neighbours during what was told to me to be four events of extraordinary rainfall. I was told that part of the problem has been created by run off from land owned by a Commonwealth government agency (Telstra) however I was not told much else of such effect.
I was also told about the removal of two palm trees which it was said affected the efficiency of the retaining wall. I did not, however, observe any such effect.
The adjoining land slopes toward the land owned by the respondent. I was told that the retaining wall was required because the construction had been a cut and fill.
I am satisfied that the dividing fence has deteriorated and failed. It is in need of repair or replacement. Temporary emergency repair has been carried out. So much is evident from Exhibit 3.
Exhibit 1 shows the location of the adjoining properties, the location of trees now removed, the dividing fence and a drainage easement. It is clear that the respondent’s land suffered from significant runoff much of which is likely to have come from the Telstra land after drainage work failed.
Exhibit 2 contains two quotes. One is to fix the retaining wall and the other is to replace the wall. In both cases the fence would have to be removed so as to allow the retaining wall to be rectified.
Once it is recognised the dividing fence has been built on a retaining wall the application requires a determination of the jurisdiction of this Tribunal to make the orders sought.
The Neighbourhood Disputes Resolution Act 2011 gives the Tribunal jurisdiction to make orders concerning dividing fences.
A “fence” is defined in Section 11. A fence is not a retaining wall.
Here the dividing fence does not include the retaining wall. The Tribunal does not have jurisdiction to make orders pertaining to the retaining wall.
I am satisfied however that the dividing fence is in need of repair or replacement.
In my view it is reasonable and just that the respondent be responsible for one half of the cost of replacement of the dividing fence which, on the quote provided, is one half of $2,127.27 after the insurance payment in respect of the dividing fence is deducted.
The Tribunal is unable to make a more precise order because of the construction/repair of the dividing fence as a practical matter must depend upon what occurs with the retaining wall and what proportion if any of the insurance payout is in respect of the dividing fence.
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