White v Barclay - [2012] QCAT 655

CITATION:

White v Barclay and Anor [2012] QCAT 655

PARTIES:	Peter John White (Applicant)
v
John Barclay Annette Barclay (Respondents)

APPLICATION NUMBER:

MCDO835-12

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

14 September 2012

HEARD AT:

Brisbane

DECISION OF:

J Bertelsen, Adjudicator

DELIVERED ON:

10 December 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The applicant Mr White reapply palings to that part of the fence temporarily affixed with plywood (half to 1 metre).

2. In the event of non compliance liberty to apply.

CATCHWORDS:

Minor civil dispute – erection of dividing fence – adequacy of foundations – raising of land abutting a dividing fence – fixture of things to a dividing fence – retaining wall to be considered a separate issue

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr White

RESPONDENT:

Mr Barclay

REASONS FOR DECISION

Application

Mr White owner of 24 Twigg Street, Indooroopilly makes application for orders for the fencing of the boundary line between his property and Mr and Mrs Barclay’s property situated 22 Twigg Street, Indooroopilly.

Background and evidence

The form 2 notice to contribute for fencing work attached to the application seeks the “construction of fence and concrete work to stabilise bank under fence per attached quotations and drawings”. In describing what the fence is to be constructed of the notice states “concrete and/or concrete block supporting lap and cap fencing.” The estimated cost is $14,021.70 payable on Mr White’s assertion by the respondents Mr and Mrs Barclay.
In his application to the Tribunal Mr White suggested 3 options aimed at rectifying damage to the existing fence.
The boundary line is some 75-80 metres long. The section of concern is the last 4 metres that divides the houses and where the applicant’s pool decking abuts the boundary line. Sometime prior in 1996 it appears a retaining wall of sorts was constructed for some 50 metres in from the street frontage. It is of besser block foundation with pillars of besser block and timber panels. Then there is the 4 metre section in contention. Thereafter the land drops away towards the river where a mesh fence serves as a dividing fence.
The 4 metre section in contention is where Mr White’s pool decking abuts the boundary line. There a lap and cap timber fence forms the dividing fence.
Photographic evidence produced by Mr White indicates the following relative to his pool decking as follows:
1.Decking joists abutting the fence and its posts immediately below the lower dividing fence rail.
2.Joists forming part of a solid heavy timber framework.
3.Boards or sleepers abutting the fence above the lower fence rail to support a raised garden bed on Barclays’ side of the fence.
4.The original fence posts in stirrups after the raised garden bed has been excavated.
5.The boards/sleepers attached to the fence posts being above the level of decking on Mr White’s side of the fence.
6.Rotting of the boards/sleepers supporting the raised garden bed.
7.The boards/sleepers having the effect of raising the garden bed to a level some 500ml above the base level of the fence as originally constructed.
8.That dirt and moisture penetrate the palings in a manner the fence was never designed to resist and causing some paling damage.
9.That the pressure of the boards/sleepers and raised garden bed have caused the fence to lean over on Mr White’s side of the boundary.
The raised garden bed and boards/sleepers have since been removed.
There is a discernable slope from the Barclays’ property to Mr White’s property in this contentious section. In his statement of 17 July 2012, recalling events of 1995/1996, Geoffrey Brinckman, former owner of Mr White’s property, states when referring to fencing dividing 22 and 24 Twigg Street
“the construction of the fence involved the removal of the older fence and the garden beds on the Barclay’s property were removed to enable a retaining wall to be constructed for the majority of the fence line. Beyond the retaining wall, toward the river, the fence was cladded with timber palings to sit on the rock retaining wall. It was not possible to continue the brick and concrete retaining wall due to the nature of the rock wall and its steepness.”
“It is my recollection that to enable the reestablishment of the Barclay’s garden beds heavy timbers were placed horizontally along the fence line where ever needed to retain the soil infill and prevent the garden bed impacting on the timber palings. Without the infill the gap between the fence and the footpath on the Barclay’s side would have been very dangerous and it was our intent to do a complete job…”
Mr Peter Ryan in his engineer’s report of 5 November 2010 states “the timber boards that are now supporting the small garden on number 22 may be replaced by a 20mm compressed fibre cement sheet. This should be founded at a depth which will prevent erosion and should be supported on posts which are not in contact with the fence or fence posts.”
Additionally a quote was obtained by Mr Barclay from Anderson Fencing in September 2012 for the laying of a concrete plinth, 4 metres x .5 metre x .5 metre i.e. 4 metres long, half a metre wide and half a metre depth. It envisaged 3 steel stirrups to be positioned in the new concrete to enable posts to be fixed for a fence. That according to the quote required “half metre wide plinth which would also be laid within 24.” Cost was estimated at $3,500.00-$4,000.00. That effectively is a quote for a retaining wall with provision for a fence on top. The quote then goes on to provide for a wooden fence on top at an estimated cost of $800.00-$1,000.00. The sometime past built rock wall upon which the current fence is based, it appears, is inadequate having been built according to the report of PC Tapper Master Builder dated 7 September 2012 “on the cheap.” He comments “there is no evidence of foundations to support the wall ever being installed.” He concludes “had the retaining wall under the subject fence been adequately designed and constructed in 1996 there would be no issue now and the fence as it currently stands appears to be adequate, especially as it is 16 years old and may only need to have the palings replaced.”
Mr Tapper’s inspection has been conducted well after removal of the raised garden bed and boards/sleepers on Mr Barclay’s side of the fence. The photographic evidence makes it clear that the concrete path constructed by the Barclays along the boundary is some 500ml above the underdeck ground level of Mr White’s property and as constructed that path is some half metre from the existing fence. This path was constructed in about mid 2010.
Whilst the photographic evidence depicting the raised garden bed having been removed and exposing the boards/sleepers in a deteriorated condition would, on the face of it, suggest that the ground level on each side of the boundary is the same, it is also clear that the common ground level only extends into the Barclays’ property for some half metre before the ground level rises almost vertically to the path level. This view sits squarely with Mr Brinckman’s recollection statement that “without the infill the gap between the fence and the footpath on the Barclays side would have been very dangerous.”
Whether the lie of the land from the Barclays’ side to the White’s side was originally a cross boundary slope is not clear. What is clear is that the slope, almost vertical as it is now, is some half metre inside the boundary line on the Barclays’ side. Mr Barclay posed the question himself stating “why would we have, why would there be, a 500ml deep trench running between a pedestrian path initially built in 1972.”
If the block and concrete retaining wall had been continued for the full length of the lap and cap fence the 4 metres of fence at issue would never have been subject to pressure above the lower fence rail. Mr Brinckman stated “it was not possible to continue the brick and concrete retaining wall due to the nature of the rock wall and its steepness”. More likely it was a matter of expense at a time of sale.
The fence now clear of the raised garden bed and boards/sleepers is freestanding. It may not be in the most aesthetically pleasing state of repair but is adequate. The palings removed by Mr White ought to be replaced by him in that half metre to 1 metre section temporarily covered with plywood (if he has not already done so).
As traversed at some length during the course of the hearing the issue of a retaining wall on the boundary line and, if necessary, at whose expense it should be constructed are not issues the Tribunal can determine. A fence is not a retaining wall (section 11 Neighbourhood Disputes Resolution Act 2011).
Mr White asserted at hearing that the deteriorating state of the deck and fence were due to excessive quantities of water overflowing from the Barclays’ premises into and onto his deck area, such excessive quantities of water washing through the raised garden bed and thereby additionally depositing dirt and creating excessive moisture. This was particularly so during heavy rain. He asserted that any designer of concrete foundation works could not have contemplated such overflow.
Mr White admitted the wall was not of a sturdy nature and that accords with Mr Tapper’s assessment that it was built “on the cheap”. In any event excessive overland flow of water is not a matter that can be determined in the context of a dividing fence application under the Neighbourhood Disputes Resolution Act 2011.
The issue of who is responsible for a retaining wall and whether it be positioned on the boundary line or within the Barclays’ property will first have to be determined in the context of the lie of the land (slope) and the history of retaining wall construction and fencing. Once that is done the dividing fence issue can be properly adjudicated in this Tribunal.

Orders

The applicant Mr White reapply palings to that portion of the fence temporarily affixed with plywood (one half metre – 1 metre).
In the event of non compliance liberty to apply.