Smethurst v O'Kelly[2016] QCAT 436

REASONS FOR DECISION

1. [1]
   On 12 May 2016, Paul Smethurst and Ann Robinson filed an application for Minor Civil Dispute – Dividing Fences. They sought orders about: the line on which fencing work was to be carried out; the fencing work to be done; the kind of material to be used in the fencing work; the amount the parties were to contribute or pay for fencing work; which parts of the dividing fence were to be constructed or repaired; and finally, when fencing work was to be done. Appended to the application was a notice to contribute for fencing work and a quote from a Lifestyle Fencing for $2,887.50.
2. [2]
   Mr Smethurst and Ms Robinson reside at 210 Kitchener Road, Kedron (formerly 389 Webster Road, Stafford Heights) with the respondent to the application, Rauri O'Kelly being the owner of 387 Webster Road, Stafford Heights.
3. [3]
   Mr Smethurst and Ms Robinson’s land is located on the corner of Webster Road and Kitchener Road, with Mr O'Kelly’s land abutting and therefore having a common boundary with the southern side of Mr Smethurst and Ms Robinson’s land. The contour of the land generally is that it falls or slopes away north to south, with a retaining wall of sorts presently serving to divide the land of each of the parties. There is no fence as such.
4. [4]
   Mr Smethurst and Ms Robinson stated that when, and shortly after they purchased, 210 Kitchener Road in July 2015, they became aware of the irregularity of the retaining wall and the deviation from what was apparently the true common boundary line. They stated they approached Mr O'Kelly about this in August 2015 and that he replied with an engineer’s report from Emcon dated 21 January 2016.
5. [5]
   That report stated:

The retaining wall is approximately 20m long with a maximum height of 3m. The wall is of a generally poor quality construction and can be described as a mass gravity type wall, which basically relies on the mass of concrete and rock to provide stability against overturning and sliding. One section of the wall has a concrete block wall at the base to a height of about 1m and then has a mass gravity wall built above it. The face of the wall has heavy vegetation growing on it and the original natural ground line (NGL) is approximately at mid-height up the retaining wall. As I understand the current position in relation to retaining walls, if the top of the wall has been filled by the property owner at no 389, it is the responsibility of the owner of no 389 and if the lower half of the wall has been cut below the NGL it will be your responsibility as the owner of no 387.

6. [6]
   The report went on to say: that while it was not possible to determine the structural adequacy of the retaining wall, it did appear to be over 20 years old and stable; that the wall surface was well vegetated which tended to bind and stabilise the structure; and as the NGL was about at mid-height the owner of the property on the north side (i.e. the owner of no 389) is responsible for retaining the fill on that side. Furthermore, the stormwater draining from the northern property should be managed by them in order to prevent water flow over and through the concrete and rock mass.
7. [7]
   The report concluded that continued longevity meant monitoring the wall at six-monthly intervals, controlled water diversion and maintenance of binding vegetation.
8. [8]
   Mr Smethurst and Ms Robinson arranged for Ken McDonald Surveys to carry out a common boundary survey. Its report dated 2 March 2016 recorded a common boundary reinstatement survey and a marked parallel offset to the common boundary. The report stated:

Due to the siting of the retaining wall between these two lots and the walls irregular shape & construction it was not practical to peg the exact boundary line. As a practical alternative a 1.0m parallel offset line was marked in several locations along this boundary on the northern side of the alignment. The true boundary position lies 1.0m south of the marked position.

9. [9]
   Photos appended to the application indicate that the true common boundary is, in places, in mid-air as it were, due to the retaining wall being well within the southern boundary of Mr Smethurst and Ms Robinson’s property.
10. [10]
    Ken McDonald’s report goes on to say:

The retaining wall does not follow the boundary line, its construction is irregular in location and inconsistent in materials indicating it may not have been constructed at the same time and with little regard to property boundaries… It is near impossible for us to determine when or who built the existing walls, or for what purpose (i.e. to retain, cut or fill).

11. [11]
    Mr Smethurst and Ms Robinson sought assistance from the Brisbane City Council which indicated that the retaining wall was an existing non-conforming structure but not dangerous. Council declined to intervene. Mr Smethurst and Ms Robinson, in material submitted to the Tribunal, stated ‘Whilst the hearing in part acknowledged the construction of the dividing fence, the real issue revolves around a 3m retaining wall this fence is to be sited on’.
12. [12]
    At the directions hearing on 26 September 2016, Mr Smethurst and Ms Robinson said ‘I’m happy to have it relocated at the same height back inside their land to recover the property that I’ve had – that I’ve lost in that construction of it’. They said an uneducated guess at the cost of rectifying the encroachment would be tens of thousands of dollars. Further, that:

We did find one piece where we had several meters of what appears to be fill. It must have been a natural gulley. But the rest of the block I’m only 800ml, 900ml down to hit solid rock… Our block had very, very little fill in it… the existing wall which has been put in inside our boundary is that close to the natural fall of the land it’s not funny.

Jurisdiction

13. [13]
    Instructions for the completion of a Form 53 – Application for Minor Civil Dispute – Dividing Fences states that applications about fences do not extend to retaining walls.
14. [14]
    Section 11 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘NDA’) defines a fence. The definition does not include a retaining wall. A retaining wall is defined under the NDA as ‘a structure that supports excavated or filled earth’.
15. [15]
    The explanatory notes to the Neighbourhood Disputes Resolution Bill 2010 state:

There is another improvement on the definition in the 1953 Act^[1] because this Bill distinguishes what is a foundation for a fence from a retaining wall. It is meant to overturn the decision in Jackson v Randall [2002] 2 Qd R 31.

The clause contains a definition of a retaining wall. A retaining wall is not a fence. It serves a different purpose which is to support excavated or filled earth… unlike fences, it is not usually possible to make both adjoining owners liable for the cost of maintaining, repairing or replacing a retaining wall. This is because usually a retaining wall is of greater benefit to one of the adjoining owners. However, the kinds of orders which QCAT can make about carrying out fencing work, include work for a retaining wall if the repair of the fence is dependent upon the work for the retaining wall.

16. [16]
    The recent 2015 Queensland Law Reform Commission review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) stated with regard to retaining walls (some footnotes omitted):

A retaining wall is defined under the Act as ‘a structure that supports excavated or filled earth.

Chapter 2 of the Act does not generally deal with adjoining owners’ disputes about retaining walls. The definition of ‘fence’ in the Act excludes a retaining wall. As a consequence, retaining walls are not considered to be ‘dividing fences’ for the purposes of Chapter 2 of the Act.

However, Chapter 2 of the Act also addresses the practical reality that, in some instances, to fully resolve a dispute about fencing work for a dividing fence (which is ordinarily built on the common boundary of adjoining land), it may be necessary to carry out work on a retaining wall.

To facilitate the expeditious resolution of such dividing fence disputes, section 35(1)(f) of Act gives QCAT a limited power to deal with retaining walls. It provides that QCAT may, for an application in relation to fencing work for a dividing fence, decide and order ‘any other work to be carried out that is necessary to carry out the fencing work ordered under [section 35] including work for a retaining wall.^[2] The orders that may be made under section 35(1)(f) also encompass other types of work necessary to carry out fencing work such as drainage work.^[3]

Chapter 2 of the Act does not otherwise confer power on QCAT to make an order to resolve a dispute about a retaining wall.^[4]…This preserves a person’s obligations, rights and liabilities under statute and the common law in relation to retaining walls.

17. [17]
    Quite apart from the strict limitations applicable to retaining walls under the NDA, here there are issues about land retention/landfill/natural ground level, relative benefit to adjoining owners and more seriously about encroachment. These sorts of issues were never contemplated as being within the limited purview of s 35(1)(f) of the NDA. More to the point they need to be addressed prior to any orders for the construction of a dividing fence.
18. [18]
    As Mr Smethurst and Ms Robinson themselves stated ‘whilst the hearing in part involves construction of a dividing fence, the real issue revolves around a 3m retaining wall this fence is to be sited on’. The existing retaining wall of sorts appears to be anywhere and everywhere but on the correct boundary. There is no jurisdiction where the construction of a dividing fence cannot even be contemplated until there is some foundation for such construction, and that foundation must be on the common boundary.
19. [19]
    In these circumstances, the application must be dismissed for lack of jurisdiction.