Young v Lawton - [2018] QCATA 98

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Young v Lawton [2018] QCATA 98

PARTIES:

GEORGE YOUNG
(applicant/appellant)

v

MICHAEL LAWTON
HEATHER LAWTON

(respondents)

APPLICATION NO/S:

APL398-17

ORIGINATING APPLICATION NO/S:

MCDO65-17

MATTER TYPE:

Appeals

DELIVERED ON:

12 July 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

ORDERS:

1. Leave to appeal is granted.

2. The appeal is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – DIVIDING FENCE DISPUTE – where the tribunal made an order for the construction of a wire fence on the common boundary of two properties – where the applicant complains that the fencing order was wrongly made because there is a sufficient existing dividing fence of trees on the boundary line and other relevant statutes were not considered – whether the tribunal had jurisdiction to make orders – it did – whether the tribunal failed to consider the operation of the Water Act 2000 (Qld) and the Vegetation Management Act 1999 (Qld) – it did not – whether the tribunal had adequate information to make orders – it did – where there was no demonstrated legal, factual or discretionary error – where the appeal is dismissed

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 5, 12, 13, 16, 17, 20, 35, 36

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28

Crampton v R (2000) 206 CLR 161
Minister for Aboriginal Affairs v Peko-Wallbend Ltd (1986) 162 CLR 24
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51

Norbis v Norbis (1986) 161 CLR 513

SHKB v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 545

APPEARANCES:

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

REASONS FOR DECISION

Leave to appeal from a fencing work order under s 35 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (Fencing Act) was granted on limited questions of law specified in directions dated 9 February 2018.
The context
The central issues raised by the fencing application were whether (a) there was a “sufficient dividing fence” and, if not (b) any existing dividing fence should be replaced by one constructed on the common boundary in accordance with the combined effect of ss 7(1), 20(2)(4), 33 and 35 of the Fencing Act.
The applicant claims that the fencing order was made per incuriam, that is, inconsistent with other legislative provisions and based on wrong facts. His stance can be summed up as being that, on a proper construction, a stand of trees already lining the common boundary is capable of meeting the statutory description of a “sufficient dividing fence” and that construction of any other fencing structure is not only unreasonable but at odds with clearance codes under the Vegetation Management Act 1999 (Qld) (VMA) and the Water Act 2000 (Qld) (WA).
The respondents contend that even conceding an existing dividing fence of trees it is not a sufficient one within…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QCATA 98
Decision Date: 12 July 2018

CaseChat Overview and Summary

The applicant, Young, sought leave to appeal against a decision of the Queensland Civil and Administrative Tribunal (QCAT) concerning the construction of a dividing fence between their property and that of the respondent, Lawton. The tribunal had ordered the construction of a wire fence along the common boundary of the two properties. Young argued that there was already an adequate existing fence of trees on the boundary line and that the tribunal failed to consider relevant statutes. The legal issues for the court were whether QCAT had jurisdiction to make the orders, whether QCAT failed to consider relevant statutes, and whether QCAT had adequate information to make the orders.

The court held that QCAT had jurisdiction to make the orders and that there was no demonstrated legal, factual or discretionary error in the QCAT decision. The court found that the existing tree fence did not meet the statutory requirements for a dividing fence and that QCAT had adequately considered the operation of the relevant statutes. The court also found that QCAT had adequate information to make the orders and that there was no demonstrated legal, factual or discretionary error in the QCAT decision. The appeal was dismissed.

In light of the above findings, the court granted leave to appeal but dismissed the appeal on the merits. The orders of the court were that leave to appeal was granted and the appeal was dismissed.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Young v Lawton [2018] QCATA 98
PARTIES:	GEORGE YOUNG (applicant/appellant)
v
MICHAEL LAWTON HEATHER LAWTON (respondents)
APPLICATION NO/S:	APL398-17
ORIGINATING APPLICATION NO/S:	MCDO65-17
MATTER TYPE:	Appeals
DELIVERED ON:	12 July 2018
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Justice Carmody
ORDERS:	1. Leave to appeal is granted. 2. The appeal is dismissed.
CATCHWORDS:	APPEAL – LEAVE TO APPEAL – DIVIDING FENCE DISPUTE – where the tribunal made an order for the construction of a wire fence on the common boundary of two properties – where the applicant complains that the fencing order was wrongly made because there is a sufficient existing dividing fence of trees on the boundary line and other relevant statutes were not considered – whether the tribunal had jurisdiction to make orders – it did – whether the tribunal failed to consider the operation of the Water Act 2000 (Qld) and the Vegetation Management Act 1999 (Qld) – it did not – whether the tribunal had adequate information to make orders – it did – where there was no demonstrated legal, factual or discretionary error – where the appeal is dismissed Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 5, 12, 13, 16, 17, 20, 35, 36 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28 Crampton v R (2000) 206 CLR 161 Minister for Aboriginal Affairs v Peko-Wallbend Ltd (1986) 162 CLR 24 NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 Norbis v Norbis (1986) 161 CLR 513 SHKB v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 545
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).