Tevana v Chen

[2018] QCAT 398

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Tevana v Chen [2018] QCAT 398

PARTIES:

TEVANA CTS 14908
(applicant)

v

YUNG-KUANG CHEN
and
YUNG-MIN CHEN

(respondent)

APPLICATION NO/S:

NDR160-17; MCD1729-17

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

21 November 2018

HEARING DATE:

13 August 2018

HEARD AT:

Brisbane

DECISION OF:

Member McLean Williams

ORDERS:

To the extent that the Respondents have not done so already, the Respondents are to pay the Applicant the sum of $880. In all other respects the Application is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree dispute – where tree growing on boundary line needing to be removed to construct new retaining wall

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – fence dispute – whether retaining wall qualifies as fence

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 2, s 46

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented by R Gillard, Chairman of Tevana Body Corporate

Respondent:

Self-represented

REASONS FOR DECISION

1. ‘Tevana’ is a block of units at 562 Logan Road, Greenslopes.

2. On 15 September 2017 the Body Corporate for Tevana (‘the Applicant’), commenced an Application before the Tribunal under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) against Yung-Kuang (Kevin) and Yung-Ming (Michael) Chen (‘the Respondents’), seeking to be reimbursed for half of the cost to remove a mango tree. This tree was removed on 13 April 2017, at a total cost of $1,760, inclusive of GST.

3. Also on 15 September 2017, the Applicant commenced a separate Application under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) seeking that the Respondents contribute $12,662.65 to the cost of fencing work, having previously delivered a Notice to Contribute For Fencing Work, to the Respondents on 6 October 2016. The Respondents have refused to meet any of the costs foreshadowed in the Notice to Contribute For Fencing Work, as was advised to the Applicant by the Respondents in a letter sent by them on 10 October 2016. The preponderance of the costs now claimed before the Tribunal relate to the demolition and reconstruction of a retaining wall, although part of the claimed amount also relates to the construction of a new timber fence, and also to the cost of conducting a boundary survey.

4. By an order of the Tribunal made on 15 May 2018, these two matters were ordered joined, thereafter to be heard together.

   Factual Background

5. The Respondents are the joint owners of a rental property at 4 Douglas Street at Greenslopes. A long-term tenant uses these premises as a fitness centre, operating under the name of ‘Fitness Done Different’.

6. 4 Douglas Street is located on the corner of Logan Road and Douglas Street, and is immediately adjacent to the Tevana unit complex, at 562 Logan Road. Tevana is able to access Douglas Street by means of Hanway Lane, which runs along the north-eastern boundary of the property at 4 Douglas Street, in circumstances wherein there is no direct vehicular access onto 562 Logan Road from Logan Road.

7. The land at 562 Logan Road is slightly below the adjoining land at 4 Douglas Street. This is because the site at 562 Logan Road site has been excavated, in order to provide for a flat concourse and driveway, outside the garages at Tevana.

8. Originally, a cream-coloured brick retaining wall had existed along the common boundary. Photographs put into evidence before the Tribunal show that the original retaining wall to have been in very poor condition, and to have been at least 30 years old, if not older. In parts at least, that wall had already collapsed.

9. The original retaining wall was demolished by the Applicant in April 2017, and has now been replaced by a new retaining wall, made of prefabricated concrete sleepers and galvanised steel posts. The new retaining wall is at the heart of this dispute. Resolution of the matter must however commence with some explanation of the nature of the former retaining wall, and the circumstances of its demolition.

10. At its highest point, the former retaining wall was seven bricks in height, and then capped with what appears from the photographs to have been a concrete capping tile, thus making for a wall approximately 750mm in height (at its highest point), at the Logan Road frontage.

11. Behind the fitness centre at 4 Douglas Street, and positioned above the retaining wall is a car park, used by patrons of the fitness centre. A chain wire fence of about 1.8 metres in height ran the full length of the rear of that car park. This too has now been demolished and has now been replaced by means of a timber fence, built on top of the new retaining wall.

12. Photographs put into evidence reveal that where the two properties meet at Logan Road, the corner post for the original chain wire fence was positioned immediately behind the brick retaining wall, and on the boundary.

13. The Respondents have always maintained that the chain wire fence was built on their land, and did not constitute the boundary between the two properties.

14. A survey conducted in about March of 2017 (now also in evidence before the Tribunal) has shown that the first (corner) fence post for the chain wire fence closest to Logan Road was set on the boundary, and the brick retaining wall at is Logan Road end to have been ‘just inside’ the Tevana side of the boundary, although it seems further clear that the footing for the retaining wall must itself have been located on the boundary.

15. A stringline – as also shown in photographs taken in 2017 - running between the external perimeter survey pegs then shows the line of the boundary between 562 Logan Road and 4 Douglas Street. The stringline shows that the line of the former retaining wall (it had been demolished by the time the photograph showing the stringline was taken) continues to run along the boundary. Meanwhile, the line of the original chain wire fence, although starting on the common boundary at Logan Road progressively departs from the common boundary, as it moved further towards Hanway Lane.

16. Because the original chain wire fence progressively diverged from the original retaining wall, an elongated triangular gap existed between these two structures. There were some shrubs and trees growing in this gap. Included among these plants was a substantial mango tree, now the subject of these proceedings. Although mostly within this gap, the mango tree trunk was also growing on and over the boundary.

17. As indicated previously, the photographs now in evidence reveal the former retaining wall to have been in very poor condition. Parts of it had well and truly collapsed. The Applicant contends that the structural failure of the wall was caused by the girth and roots of the Mango tree; and also by pressure exerted behind the wall by some large palm trees. The palm trees were cut down some time ago, yet photographs do still show the remnant palm stumps, behind the wall. The Applicant says that it is at least likely that these palm trees also contributed to the failure of the wall. In the absence of better evidence I am not prepared to make any determination regarding the contribution to the failure of the retaining wall by the palm tree stumps.

18. Mr Raymond Gillard, on behalf the Applicant says that he first approached Kevin Chen in about June of 2016, when he happened to see Mr Chen over at 4 Douglas Street, inspecting his property. Mr Gillard says that he took the opportunity to go over and tell Mr Chen that the Tevana body corporate would shortly be replacing the damaged retaining wall. Mr Gillard says that he highlighted to Mr Chen that this damage had been caused by the mango tree and other vegetation growing on the Chen’s property at 4 Douglas Street. Mr Gillard says that he also informed Mr Chen that the body corporate would shortly be writing to Mr Chen about the problem and would be seeking a financial contribution to the cost of fixing the problem. I gather, at that stage, that Mr Chen was rather non-committal. Thereafter, Mr Gillard says that he did not speak to Mr Chen again until a site meeting, not held until 7 April 2017.

19. The day-to-day administrative affairs for the Tevana body corporate are undertaken by Eagle Real Estate, at Holland Park. Eagle Real Estate wrote to Michael and Kevin Chen on 27 January 2017, advising that Tevana now proposed to replace the chain wire fence and retaining wall and to remove the mango tree, and seeking a 50% contribution from Kevin and Michael Chen towards the cost. That letter also acknowledged that the Chen brothers had previously asserted - in an e-mail sent on 10 October 2016 - that the retaining wall was not located on the boundary. In light of that, the body corporate now proposed to engage Messrs Bennett & Bennett, Surveyors to determine the precise location of the boundary, at a further cost of $2,420. The Chens were also asked to meet one half of the cost of that survey.

20. The Respondents did not reply to the letter sent by Eagle Real Estate on 27 January 2017. It is to be noted however that their position, as expressed in their e-mail sent on 10 October 2016, was that the retaining wall was on the boundary, and that the chain wire fence was not.

21. Bennett and Bennett completed a boundary survey in early February 2017. The survey confirmed that the original retaining wall had been built on the boundary.

22. Contending that the condition of the wall was, by now, a safety issue, the Applicant retained the services of a contractor to demolish and replace the original retaining wall. These works commenced in late March 2017.

23. Originally, the intent had been to attempt to remove and replace the existing retaining wall and fence without removing the mango tree. However, by 4 April 2017, and after the chain wire fence and much of the retaining wall had already been removed it became apparent to the contractor that it would be impossible to erect the new wall, without also first removing the mango tree.

24. On 4 April 2017, Mr Gillard contacted Mr Kevin Chen seeking his approval to remove the mango tree. After a site meeting on 7 April 2017, Kevin Chen advised Eagle Real Estate - via another e-mail - that he and his brother were agreeable to the removal of the mango tree, and that they would also pay one half of the cost of that. However, Mr Chen also indicated that they were unwilling to contribute to the cost of the new retaining wall, and that they expected their fence (which had already been demolished without their consent), to be replaced, by the Applicants.

25. The separate fence and tree applications were both filed at QCAT on 15 September 2017, yet in circumstances where the evidence available at that time should have been sufficient for the Applicant to know that neither Application was necessary, nor likely to succeed.

26. The Tribunal has no jurisdiction in relation to retaining walls. These are excluded from the remit of the Neighbourhood Disputes (Dividing Fences and Trees Act) 2011 (Qld).[1] That fact had been previously communicated to Eagle Real Estate by Mr Kevin Chen on 7 April 2017, and that information should have been enough to put the Applicant on prior notice that their Application could not include any claim in relation to the retaining wall. Despite that, the Applicants have persisted in maintaining a claim before the Tribunal for compensation from the Respondents for one half the cost of the retaining wall. That claim was never reasonable.

    [1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12(2)(a).

27. On the evidence put before the Tribunal the original chain wire fence was in good condition, and not in need of replacement. Nor was the fence a boundary structure. The only part of the chain wire fence actually erected on the boundary was the corner post at the Logan Road frontage. The remainder of that fence was within 4 Douglas Street. That fact had been advised to the Applicant by Mr Chen in his e-mail dated 10 October 2016, and would have been confirmed to the Applicant upon its receipt of the Bennett & Bennett survey commissioned by the Applicant in late February 2017. Once in receipt of that survey the Applicant should have known that it could not demolish the fence without the permission of the Respondents. Despite that, they have proceeded to act unilaterally and demolish the chain wire fence. It seems that the only basis for doing that was in order to afford the contractor better machinery access during the demolition and reconstruction of the retaining wall. In those circumstances that Applicant was always going to be under an obligation to reconstitute the fence it had demolished, and cannot now reasonably attempt to lay claim to one half the cost for doing so from the Respondents.

28. In relation to the mango tree, the Respondents had already advised - on 7 April 2017 – of their willingness to contribute one half the cost of its removal. In those circumstances it was not necessary to commence an application before the Tribunal to obtain an order for its removal. Yet the Applicants have persisted with this Application, thus wasting their own time and efforts, those of the Respondents, and the finite resources of the Tribunal.

29. To the extent that the Respondents have not done so already, I order they pay to the Applicant the sum of $880, being one half the cost of removal of the mango tree. In all other respects the Application is dismissed.