Trimble v Hibbett

[2012] QCAT 463

CITATION: Trimble and Anor v Hibbett [2012] QCAT 463

PARTIES:	Geoffrey Trimble Kim Maree Trimble (Applicants)
v
Mr Bryan Hibbett (Respondent)

APPLICATION NUMBER: MCDO2850-11

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Andrew McLean Williams, Member

DELIVERED ON: 3 September 2012

DELIVERED AT: Brisbane

ORDERS MADE: Application dismissed.

CATCHWORDS: Dividing Fences – application for contribution towards the cost of replacement of fence – evidential requirements to substantiate such an application

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. On 15 September 2011 the applicants applied to QCAT seeking a sum of money from their neighbour as a contribution towards the costs of replacing a boundary fence.  In addition, the applicants seek an order that the respondents also pay the $53.00 costs associated with their application to QCAT.

1. By an order of this Tribunal made on 25 May 2012 the parties were required to place submissions in writing before QCAT on or before 8^th June 2012, whereupon the matter would be referred to an adjudicator for a decision ‘on the papers’.  The matter has come to me for a determination.  These now are my reasons for decision, based on the parties’ submissions.

The Evidence

1. Submissions were received from the applicant on 7^th June 2012.  These include written submissions, photographs, and a video clip on a CD “my neighbour’s fence.wmv”.  In their materials the applicants contend that approximately 12.5 metres of the boundary fence between their own property and that of the respondents requires replacement, and the applicants’ materials seek to demonstrate that.  The applicants complain that the respondents have refused to contribute to the cost of replacing the fence, such that they seek an order from QCAT.

1. By way of history, it is the case that in about March of 2010, the respondents had sought the applicants’ permission to demolish this section of fence, by reason that they were then engaged in house extensions, and wished to construct a rendered block wall (part of their new garage) right on the boundary, as is allowed by local planning laws.  However, at that time, the applicants were unwilling to agree to this, and hence the respondents erected their new garage with its block wall slightly inside their own boundary, thus leaving the existing picket fence in situ. 

1. Two years down the track the applicants now contend that the picket fence adjacent to the respondents’ block wall is in a state of considerable disrepair, such that it must be replaced.  The applicants contend that this has been caused, in large measure, by the manner in which the block wall was erected.  In particular, the applicants contend that the construction of the block wall took place without any backfilling of the earth behind this wall, thus causing the undermining of the adjacent fence posts.  The applicants also contend that one of the fence posts has rot in it, and is broken. 

1. The named respondent is Mr Hibbett, although materials filed before QCAT are clearly filed by Mr and Mrs Hibbett jointly, such that I will refer to both of them together in the plural, as ‘the respondents’.  Their materials include written submissions, photographs, and statutory declarations taken from their builder, Mr Robert Marangone, and an adjoining neighbour to the rear of both properties, Mr Riley.  The respondents’ materials also includes a signed statement from a private certifier, Mr Reeves (who also happens to be qualified as a civil engineer), who was involved in the decision to construct the block wall inside the existing fence line, rather than right on the boundary after the fence had been demolished. 

1. Mr and Mrs Hibbett explain that they had originally approached the applicants at the time of their renovations in early 2010 and offered to meet the entire cost of the demolition and removal of the existing picket fence, and for its replacement with a rendered block wall, all to be done as part of their renovation project.  The respondents say however that their offer was refused, and that Mr Trimble (the male applicant) also warned them at that time that there was to be absolutely no trespassing on any part of his land as part of the respondents’ construction works.  Advice given to Mr and Mrs Hibbett by their builder at that time indicated that it would be effectively impossible to go about the process of removal of the existing fence and construction of the new block wall right on the boundary without also traversing on the Trimbles’ land; such that a decision was made by Mr and Mrs Hibbett to instead erect the block wall inside the existing fence line, entirely within their own property. 

1. Photographs that have been put into evidence by both the applicants and the respondents that were taken in 2010 show the process of the builder and his workers erecting the block wall, inside the existing fence.  It is to be noted that these photographs also show that the picket fence that Mr and Mrs Hibbett originally wished to demolish in order to build their garage on the boundary line was in very good condition as at March 2010. 

1. The approximately 12.5m of picket fence now in issue comprises part of a 33 metre fence along the side boundary between the two properties.  The evidence reveals that this fence was originally constructed in about 1996, by the same builder, Mr Marangone, who was then later re-engaged by the respondents (in 2010) to do the renovations that included the construction of the block wall that is now adjacent to the disputed fence.

1. Although the applicants contend that the approximately 12.5m of fence which is now adjoining the respondents’ block wall has deteriorated markedly between March 2010 and May 2012, the respondents say that any deterioration in the condition of the fence is simply untrue or, if there is any deterioration (which they do not admit), then this has been caused by Mr Trimble having erected a concrete pad for his own garden shed very near to this fence line, and his having built up fill behind the shed right up to the level of the bottom rail of the fence.  The respondents contend that this has caused problems with stormwater run-off that are inimical to the longevity of the fence and, if there now be any problems with the fence, then this is the cause for it.

1. In proceedings such as this one it is the applicant who bears the evidential onus to show that the fence requires replacement.  Other than photographs and video footage, the only evidence that the applicants have provided in that regard is Mr Trimble’s own assertion that the fence is no longer in good condition, and the allied contention that the construction of the block wall has caused degradation in the fence.  However, this is no more than an assertion, as the applicants have not provided any evidence from a qualified expert (such as a builder or engineer), to lend any weight to that assertion.  It seems to me that the photographs provided by the respondents show the contrary to be case, and actually show that the fence on the respondents’ side (being the only side upon which any excavation works have taken place) is now very amply supported by the footings poured for the block wall.   

1. The applicants also contend that some of the fence posts contain rot.  Yet, I cannot be satisfied that there is evidence of sufficient degradation in the fence to now warrant an order by this Tribunal that remedial steps be taken requiring demolition and reconstruction of the entire 12.5 metre section of the fence.  Despite what the applicants now contend it would seem to me that this fence still remains in very good condition.  The photographic evidence provided by the applicants in support of the contention there has also been erosion around the base of the fence also appears to me to be, at best, equivocal.  

1. Whilst the applicants have provided very little evidence, the respondents have provided quite a good deal of evidence.  Firstly, there is the evidence from the qualified builder Mr Marangone, who originally constructed this fence in 1996.  As indicated previously Mr Marangone was also subsequently involved in the renovation works that resulted in the construction of the block wall hard up against the fence, and he has now provided a statutory declaration in which he provides his professional opinion that the entire fence (here obviously including the 12.5m section in dispute) is in good condition.  Mr Marangone also observes that the location of the applicants’ shed structure near to the fence line is creating problems with drainage on the applicants’ side of the fence.  Here, it seems to me that Mr Marangone’s evidence should be taken as stating that this is not yet a problem, but there could well be a developing problem in future, if the applicants fail to take remedial steps to rectify the stormwater drainage issues that have been created by the location of their own garden shed, and the impact this has had on overland flows, near to the fence line.

1. Next, the respondents have obtained a statement from Mr Reeves, their private certifier, who also happens to be qualified as a civil engineer.  In Mr Reeves’ opinion (given as recently as June 2012) the disputed section of fence remains in good condition, and does not require replacement.  Finally, a statutory declaration has been obtained from their neighbour Mr Riley, who also does not see there to be any problem with this fence.

1. I have considered all the evidence before me.  On the basis of that evidence, I find that the overwhelming weight of that evidence leads one to the conclusion that the fence remains in good condition and hence there is not any need for this Tribunal to make any order that the respondents contribute to the cost of the fence being replaced.

1. I dismiss the application.