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- Unreported Judgment
Van Diesen v Pain QCAT 249
Van Diesen v Pain  QCAT 249
Mark Van Diesen
Malcolm Pain & Kerry Pain
Other minor civil dispute matters
7 July 2016
Member McLean Williams
22 July 2016
Order as follows:
Other minor civil dispute matters - neighbourhood dispute - dividing fences - Circumstances of adjoining acreage properties - no agreement regarding construction of boundary fence, nor as to style of fence - Circumstances wherein cadastral survey of common boundary unnecessary
APPEARANCES and REPRESENTATION (If any):
Applicant: In person
Respondents: In person
REASONS FOR DECISION
- This matter was heard before me on 7 July 2016.
- The Applicant and the Respondents are adjoining neighbours on acreage properties situated at 2022 – 2032, and 2034 - 2044 Mt Cotton Road, at Carbrook. The Applicant, Mr Mark van Diesen is the owner of the house and land at 2034 – 2044 Mt Cotton Road. This property is more commonly referred to as number 2034. The Respondent property, solely owned by Mr Malcolm Pain, is more commonly known as 2022, Mt Cotton Road.
- At the time when Mr Pain purchased his property, in 2007, the fence between his land at that of his neighbour at 2034 Mt Cotton Road was constructed of hinge-joint wire (known more colloquially as dog mesh), and star pickets. Mr Pain says that, sometime in 2014, the boundary fence was removed, without either his knowledge or permission.
- The Applicant, Mr van Diesen, is a more recent resident at Mt Cotton Road. Since the time of his arrival, he has undertaken a degree of bushland clearing at number 2034, by means of bobcat excavator, and burning. To put the matter neutrally, Mr van Diesen’s clearing activities have become the genesis for a heated dispute between Mr van Diesen, and his neighbours, Mr and Mrs Pain. An order under the Peace and Good Behaviour Act 1982 has been made against Mr van Diesen by the Magistrates Court at Beenleigh, and Mr and Mrs Pain are no longer residing at their Mt Cotton address because they are now fearful of their neighbour. Indeed, relationships between these two neighbours have become completely untenable, and Mr and Mrs Pain indicate that they wish to sell their home, and move on. They cannot presently do that, at least until such time as this dividing fence dispute has been resolved.
- For his part, Mr van Diesen denies having demolished the existing fence, and says that he only removed those sections of the fence that had already fallen down, long before his having purchased 2034 Mt Cotton Road. I do accept Mr van Diesen’s evidence on that specific point.
- The common boundary between the two adjoining properties is approximately 302 metres in length. Largely because of the dispute that has arisen between them, Mr van Diesen now wishes to erect a new boundary fence, and applies to QCAT seeking orders requiring Mr and Mrs Pain to contribute towards one half the cost to construct a substantial 2.1 metre high CCA treated timber fence, with ship-lapped palings.
- Mr van Diesen has obtained a range of quotes that indicate that such a fence will cost between approximately $25,000 and $30,000 to erect. On top of this, Mr van Diesen says that a cadastral survey will be required to identify the precise boundary, as he contends that the current remnant fence is built a number of metres inside the boundary of the property owned by his neighbour, Mr Pain.
- For their part, Mr and Mrs Pain are opposed to the style of fence now proposed by Mr van Diesen. They say that it will cost too much; that a wooden fence is unsuitable as it will become susceptible to bushfire damage; and would not be in keeping with fences that are more typical for acreage properties along Mt Cotton Road at Carbrook.
- Mr and Mrs Pain also say that a cadastral survey is an unnecessary expense, as the original fence was already constructed on the boundary between the two blocks, and, even if the old fence was inside their land (as is now contended by Mr van Diesen), they would be perfectly content for any new fence to still be erected along that line, in all events.
- Section 20 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (‘the Act’) provides that if there is no sufficient dividing fence between two parcels consisting of adjoining land, then an adjoining owner is liable to contribute to carrying out fencing work for a ‘sufficient’ dividing fence.
- QCAT is empowered, by section 35 of the Act, to decide whether fencing work is required; the line on which the fencing work is to be carried out (whether or not that line is on the common boundary); as well as to determine the style of fence that ought be built; and the amount of any financial contribution that will be required to be paid by an adjoining neighbour towards the erection of any fence, that may be ordered, by QCAT.
- Photographs put into evidence before me indicate that there is currently no proper fence between the adjoining blocks. This is an acreage area, where people keep animals, such that adequate fencing is clearly a practical necessity. I am satisfied, in these circumstances, that the Respondents are here prima facie liable to contribute towards the cost of a ‘sufficient’ dividing fence, purely because of the effect of section 20(1) of the Act.
- Section 36 of the Act sets out the relevant considerations when determining the style of fence that will be deemed to be a ‘sufficient’ dividing fence, in all the circumstances.
- Having regard to the elements of section 36, the following factors become germane in any assessment of what will comprise a sufficient fence. The previous fence consisted of wire and star pickets; Photographs put into evidence before me reveals ‘wire and star picket’ to be a very common style of fence in the local area, and this is a style of fence suitable for containing livestock and other animals. Mr and Mrs Pain have also raised the need for the fence to be suitable for bushfire conditions. I accept that to be a further relevant consideration in this particular locality.
- Although Mr van Diesen wishes to have a 2.1 metre high CCA treated timber picket fence (primarily for reasons of privacy), I find this to be a proposal that would entail the construction of a fence of a far higher standard than that which would here constitute a ‘sufficient’ dividing fence. If Mr van Diesen remains intent to have such a fence, then section 21(2) of the Act requires that he be liable for the cost of that fence; at least to the extent that the cost of it exceeds the standard determined by QCAT to here constitute a ‘sufficient’ dividing fence.
- In all the circumstances I determine that a ‘sufficient’ fence will be one that is 900 millimetres high and constructed using galvanised star pickets and galvanised hinge-joint wire, with upper and lower strainer wires, and a single strand of barbed wire, along the top of it. Such a fence - if properly constructed - will also require treated timber strainer posts at each end; as well as along the length of it at approximately 50 metre intervals. These should, of course, be cemented into the ground.
- Mr and Mrs Pain have submitted a quote indicating that such a fence could be had for $3,000, plus GST. This works out to only about $10 per lineal metre, fully installed. I do not accept that quote to be realistic. Another quote, obtained by Mrs van Diesen (in November 2015), indicates that such a fence could be constructed for a GST inclusive price of $7,972.53. I think that price to be more realistic. Accordingly I will order that the Respondent meet 50% of the cost of such a fence, yet with their contribution capped to a maximum figure of $3,600, plus GST (a maximum total of $3,960.00).
- In all the circumstances I do not think that a cadastral survey will be necessary. Satellite photographs reveal the boundary to be a regular straight line, in unchallenging terrain, without any complicated dog-leg sections. I also accept the evidence of Mr and Mrs Pain when they say that the original fence was constructed on the boundary line. This position is now to be used for the construction of the new fence.
- The orders of the Tribunal will be as follows:
- (a)The Respondent is to contribute the lesser of either 50% of the total cost or $3,600 plus GST towards the cost to construct a 302 lineal metre boundary fence between the adjoining properties, with payment to be made by the Respondents directly to the fencing contractor within 7 days of completion of the fence and presentation by the fencing contractor of an invoice, addressed to the Respondents.
- (b)The fence is to be constructed in the same location as the location of the former boundary fence.
- (c)The fence is to constructed to a height of 900 millimetres, using galvanised star pickets, galvanised hinge joint dog mesh top and bottom strainer wires and a single top strand of barbed wire, with 100 x 100 CCH treated timber strainer boxes at each corner, and strainer posts at 50 metre intervals along the line of the fence. All timber posts to be concreted into the ground;
- (d)The Applicant (Mr van Diesen) is to organise a QBSA licensed fencing contractor to commence fencing works, within ninety (90) days of the date of these orders and is to instruct the contractor to raise two invoices, one for himself and one for Mr Pain. Mr Pain is to pay the lesser of 50% or $3,600, plus GST.
- Published Case Name:
Van Diesen v Pain
- Shortened Case Name:
Van Diesen v Pain
 QCAT 249
Member McLean Williams
22 Jul 2016