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Williams v Williams[2017] QCAT 109

CITATION:

Williams v Williams [2017] QCAT 109

PARTIES:

Paul John Williams

(Applicant)

v

Floyd T Williams

Brenda J Williams

(Respondents)

APPLICATION NUMBER:

MCDO2219-16

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

6 March 2017

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Stanton

DELIVERED ON:

16 March 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Within 14 days of the date of this order, the respondents shall remove their existing fencing for the 67.5 metre section, the subject of the application.
  1. In the event that the respondents fail to remove the said fencing, the applicant shall be at liberty to remove it or have it removed by an independent contractor and dispose of it.
  1. Within a period of three months from the date of this order, the applicant shall be at liberty to have constructed on the subject 67.5 metre section of the common boundary, a raked colorbond fence.
  1. There shall be a gap of not less than 5 cm between natural ground level and the bottom of the colorbond fence.
  1. The colorbond fence shall be not more than 1.8 metres from the bottom of the colorbond fence structure to the top thereof.
  1. Without compromising issues of safety, the applicant shall take all steps that may reasonably be taken with a view to complying with the report of Queensland Ecologists dated 21 October 2016.
  1. Upon the completion of the construction of the colorbond fence, the applicant shall provide notice thereof in writing to the respondents.
  1. Within 14 days from the date of receipt of the said written notice, the respondents shall pay to the applicant the sum of $714.49.

CATCHWORDS:

MINOR CIVIL DISPUTE – DIVIDING FENCE DISPUTE – where adjoining properties are in a rural residential zone – where one owner has constructed a fence inside common boundary – where applicant seeks construction of a colorbond style fence for reasons of privacy and safety – whether fence proposed by applicant is to a standard greater than a sufficient dividing fence – where respondent seeks recovery of survey costs – where respondent seeks order for reimbursement of repair and rehabilitation costs.

Acts Interpretation Act 1954 (Qld), s 14B

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 7, s 12, s 13, s 20, s 21, s 31, s 33, s 35, s 36, s 40

APPEARANCES:

 

APPLICANT:

In person

RESPONDENTS:

In person

REPRESENTATIVES:

 

APPLICANT:

Self represented

RESPONDENT:

Self represented

REASONS FOR DECISION

  1. [1]
    The applicant, Paul John Williams is the owner of a 1 hectare rural residential zoned property at 31 Airlie Road, Pullenvale. The respondents, Floyd T Williams and Brenda J Williams are the owners of an adjoining property at 27 Airlie Road, Pullenvale.
  2. [2]
    The applicant’s dwelling house is located towards the front of his block. The respondents dwelling house is located more to the rear of their block. A large dam exists behind the applicant’s block. A pond exists on the respondents’ block. The applicant said that this pond is about 8 m from his boundary. He said it is about 20 metres long and 5 or 6 metres across.
  3. [3]
    A boundary dispute arose between the parties about mid-2015. At that time, there was then no dividing fence separating the two properties. No agreement could be reached between the parties as to an agreed fence. In the absence of an agreement, the respondents then proceeded to have constructed, a three strand wire and metal post fence which they said in their counter-application was installed 300 mm within their own boundary. However, both parties gave varying accounts of the distance that the fence was constructed from such boundary.
  4. [4]
    The applicant has a one year old son and also a 20 year old disabled son who cannot swim. The applicant is also contemplating getting a small dog and says that the existing fence would not contain such dog. The applicant says the existing fence is not adequate and he has concerns about issues of safety and privacy. He particularly has concerns about his one year old son wandering through and falling into the neighbors’ pond. He said he is proposing to fence behind his own house, to prevent his children’s access to his own dam.
  5. [5]
    There is a history of some conflict between the parties. The respondents have installed cameras which face the applicant’s property and have also installed a sign which reads “Trespassers will be prosecuted.” These measures have further aggravated the relationship between the parties.
  6. [6]
    Although the common boundary between the parties is quite lengthy, the dispute before the tribunal as to a dividing fence relates only to a length of some 67.5 metres from the front alignment going back. The property falls away from the front towards the rear. The applicant proposes that there be constructed on this part of the common boundary, a 2 metre high raked colorbond fence. He relies upon a quote from Form Outdoors in the sum of $6,740.25. He proposes that the cost be shared equally with the respondents. He says that to construct his proposed fence, the respondent’s fence would need to be first removed. He says that a timber fence would not be suitable because of the presence of termites in the area.
  7. [7]
    The respondents seek orders for rejection of the claim to remove their existing fence which is wholly within their own property, reimbursement for survey fees in the amount of $1793, reimbursement for repair and rehabilitating their southern boundary in the amount of $750, a ruling on a sufficient fence to be a fence common to their area such as wire and wood or metal posts and rejection of the applicant’s claim for filing fee.
  8. [8]
    There is no dispute as to the location of the common boundary. The respondents have previously engaged a cadastral surveyor to carry out a survey of their southern boundary for which they paid a fee of $1793.
  9. [9]
    The respondents also maintain that there has been unauthorised entry by the applicant’s builders onto their property and the removal and destruction of vegetation on their side of the boundary.
  10. [10]
    In these proceedings, it is my role to consider all of the evidence and submissions made by the parties and to then make orders that I consider fair and equitable to the parties. In matters of this kind, the parties represent themselves and the Tribunal is not bound by the rules of evidence and must act with as little formality and technicality as the tribunal permits. The tribunal is required to deal with matters in a way that is accessible, fair, just, economical, informal and quick.
  11. [11]
    I do not intend to re-state all of the evidence given by the parties to the claim as that is all contained in the recording of the proceedings. Nor do I intend to comment on all such verbal evidence and the documentary evidence as filed with the tribunal.
  12. [12]
    I have however had the opportunity to fully consider all the evidence adduced at the hearing and all the documents on the Tribunal file. I have also considered the submissions made by the parties. I have had the benefit and advantage of listening to the parties and observing them give their evidence.
  13. [13]
    In matters of this kind, the Tribunal applies the civil standard of proof, which is proof on the balance of probabilities. The onus of establishing that proof on the balance of probabilities, lies with the applicant.
  14. [14]
    Pursuant to s. 7 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011(Qld) (the Act), it is provided that, generally, neighbours must contribute equally to the building and maintaining of a sufficient dividing fence. By s 12, a dividing fence means a fence on the common boundary of adjoining lands. Section 13 sets out the meaning of a ‘sufficient dividing fence’. Of relevance to this matter, it means a dividing fence between a minimum of .5 m and a maximum of 1.8 m in height and consisting substantially of ‘prescribed material.’ The term ‘prescribed material’ is given a wide meaning and means any of the various listed materials as are listed and also ‘other material of which a dividing fence is ordinarily constructed.’ Section 13 also provides that the existence of a fence, other than a dividing fence, on adjoining land must not be taken into account in deciding whether there is a sufficient dividing fence.
  15. [15]
    Pursuant to s 20 of the Act, under the heading ‘Liability for fencing work’, it is provided that if there is no sufficient dividing fence, an adjoining owner is liable to contribute to carrying our fencing work for a sufficient dividing fence.
  16. [16]
    The issue of contribution is further dealt with in s 21 of the Act under the heading ‘ Contribution between adjoining owners - generally.’ It says that adjoining owners are each liable to contribute equally to carrying our fencing work for a sufficient dividing fence and that an adjoining owner who wants to carry out fencing work for a dividing fence to a standard greater than the standard for a sufficient dividing fence is liable for the fencing work to the extent that it is greater than the standard for a sufficient dividing fence.
  17. [17]
    By s 31 of the Act, it is provided that an owner may require the adjoining owner to contribute to the carrying out of fencing work for a dividing fence by giving a notice to the adjoining owner which must be in the approved form. Such a notice must state a number of matters as specified in that section and be accompanied by a quote of the estimated cost of the fencing work to be carried out. If within 1 month after notice is given, the owners cannot agree about the proposed fencing work and their contributions, either owner may within 2 months apply to the tribunal for an order under the Act. Until agreement is reached about the proposed fencing work and the contributions, neither owner may carry out fencing work other than urgent fencing work.
  18. [18]
    By s 33 of the Act, it is provided that if there is a fence other than a dividing fence on adjoining land, QCAT may order that it be removed if QCAT considers its removal is necessary to allow fencing work for a dividing fence.
  19. [19]
    By s 35 of the Act, the tribunal is given wide powers to make orders as to the fencing work to be carried out, including the kind of fence involved. It may make orders as to the way in which contributions are to be apportioned or the amount that each adjoining owner is liable to pay for the fencing work.
  20. [20]
    By s 36 of the Act, it is provided that in deciding about whether a dividing fence is a sufficient dividing fence, QCAT may consider all of the circumstances of the application, including those matters as listed. Of particular relevance to this matter, it is provided that the tribunal may consider any existing or previously existing dividing fence, the purposes for which the 2 parcels of land are used and the kind of dividing fence normally used in the area. QCAT may also consider whether the dividing fence is capable of being maintained by the adjoining owner and any policy adopted, or local law made, in relation to dividing fences by a local government.
  21. [21]
    In the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation to confirm the interpretation conveyed by the ordinary meaning of the provision.[1]  In that respect, the explanatory notes to the relevant Bill provide comment in respect of the term ‘sufficient dividing fence.’  Those explanatory notes provide, in part, as follows:[2]

Under the Bill, adjoining owners are liable for equal contribution to the fencing work required to have a sufficient dividing fence. However, where one owner wants to have more work done than is necessary for a sufficient dividing fence then they will be liable to pay the extra expense. This does not mean that QCAT will order that a fence will be built according to their wishes. In those circumstances, QCAT would consider the wishes of each neighbors and other factors which QCAT is required to take into account.

Clause 13 - Meaning of sufficient dividing fence;

This clause provides more guidance than the 1953 Act as to what is a sufficient fence. It provides a basic rule of height for a sufficient fence between 0.5m and 1.8m for 2 parcels of residential land and refers to types of construction material. While generally a provision of this nature would be considered to be a matter for local councils, given the number of councils and the degree of inconsistency between local laws, it has been included in the Bill.

The basic rules stated for a fence are not intended to imply that any dividing fence less than that standard is now insufficient. For example, there may be great contention between adjoining owners as to whether an existing fence is sufficient and whether it needs repair rather than replacement.  In older more established suburbs, the usual fence may have been a short chain wire or picket fence. It is not intended by this legislation that the shorter fence should now be considered insufficient and needs to be replaced. In fact, the history of the fencing between the properties and in the surrounding area should be treated as a very good guide as to what is sufficient.

In some cases, an adjoining owner will build a fence within their own boundary, in order to have the kind of fence they choose. This can create many difficulties, including that of maintaining the dividing fence.

Clause 21 - Contribution between adjoining owners - generally;

This clause establishes that as a general rule the adjoining owners are each liable for half the cost of the fencing work required to have a sufficient fence. The rule will not apply where one adjoining owner wants a standard higher than a sufficient dividing fence. In this case, the owner is liable for any difference in cost or contribution. It should not be assumed that QCAT would allow a dividing fence to be built to one owner’s specifications.

A sufficient dividing fence should be the bare minimum required to divide, so that the contribution required from each owner is kept to a minimum. An example of this would be trimming vegetation more than is necessary for the fencing work for a sufficient dividing fence. This is a fair system which will provide equitably for the economically disadvantaged members of the community.

Clause 36 - Sufficient dividing fence matters for QCAT consideration;

This clause lists some of the matters QCAT may consider in deciding whether a dividing fence is a sufficient dividing fence.

A factor listed for consideration is any existing or previously existing dividing fence. As older suburbs are re-developed or become more fashionable, newer residents may desire a more elaborate fence than has previously been common in the area. In those circumstances, the fact that previously a short paling or chain wire fence has been used as a dividing fence is a highly relevant consideration in deciding what is sufficient. A related factor is the kind of dividing fence normally used in the area. The clause also refers to whether the dividing fence is capable of being maintained by the owners. This is intended to refer both to the capacity to maintain physically (an adjoining owner may be unable to undertake painting) and also to the adjoining owners’ financial means. If a fence is erected which is beyond the financial means of one adjoining owner (for example, a pensioner) to maintain then it is not a sufficient dividing fence.  Where one adjoining owner seeks to have more than a sufficient dividing fence, QCAT must consider all of these objective factors. QCAT should also consider whether obligations as to fencing were part of a development approval and any written agreement of the owners.

  1. [22]
    The applicant relies upon issues of safety and privacy in support of his contention that there should be a 2 metre colorbond fence constructed. On the issue of privacy, the applicant says that the respondents have installed cameras on their property which face to his property. He also says that the respondents wander up and down their driveway several times a day. He says he purchased the property for the quietness and privacy it would afford although the privacy is now not very good. He says that the respondent’s fence is only about 8 metres from the windows of his own home. He also says that there is a sleep-out on this side of the house and that his niece is staying in the downstairs bedroom.
  2. [23]
    On the issue of safety, the applicant is particularly concerned about his children being able to access the respondent’s pond which is about 8 metres from the boundary. Clearly, the respondent’s three strand wire fence with metal posts is not a fence that would prevent the applicant’s children from accessing this pond. This issue of safety is itself a compelling reason why a suitable alternative fence should be constructed on the common boundary. It is unfortunate that this issue was not resolved prior to the respondents erecting their fence solely on their own land. The construction of a fence on one’s own property inside the common boundary is generally considered an undesirable practice for a number of reasons. The Act clearly sets out those steps which should be taken where there is a dispute between adjoining owners as to the construction of a dividing fence on the common boundary.
  3. [24]
    The applicant says that a timber fence is not suitable because of the presence of termites in the area and that a colorbond fence would be low maintenance. The respondents are opposed to this type of fence for a number of reasons. They say that it is most common in the area that that there is no fence between adjoining properties, although where the boundaries are fenced, they typically consist of open post and wire with an average height of 1.2 metres. They rely upon photos that have been produced to the tribunal and also say that to their knowledge there are no solid metal dividing fences anywhere on Airlie Road or in neighbouring streets. They say the proposed area to be fenced is heavily treed and within a mapped waterway corridor and that the proposed metal fence would have potential for unreasonably high maintenance costs. The respondents also say that wildlife friendly fencing is required which is typically open post and rail or wire.
  4. [25]
    On the other hand, the applicant has produced a report dated 21 October 2016 from a Senior Ecologist of Queensland Ecologists which considers the issue of the proposed fence and fauna movement. The relevant part of this report reads as follows:

A colorbond fence is not typically considered a fauna friendly fence design as it uses a solid material. However, it is relevant to note that the fence will only be 67.5 metres in length so many of the larger and highly mobile mammals will navigate the short distance around the fence with relative ease. Smaller ground dwelling mammals, reptiles and amphibians should be accommodated for by allowing low gaps approximately 5 cm between the fence and the ground at very regular levels.

The fence itself can be retrofitted to encourage the passage of fauna without compromising safety and privacy. The following recommendations should be considered on both sides of the fence, as part of the fence design:

* Planting or retaining trees or sturdy shrubs near the fence;

* Installation of flat boards at the top of the fence to allow fauna to walk along the fence without needing to come to the ground;

* Installation of timber posts or logs leaning against the top of the existing fence at an angle of approximately 60 degrees with the ground. Similarly, materials such as chain wire mesh which are easy to grip and climb, can be attached to the higher sections of the fence at regular intervals, however personal safety with regard to children climbing such materials will require consideration.

Provided the recommendations for small ground-dwelling fauna are incorporated in the fence design, and other retrofitting measures are incorporated where possible, the proposed fence is unlikely to significantly impact the passage of fauna in this relatively urban location.

  1. [26]
    The respondents maintain that a 2 metre high colorbond if not an acceptable fence and that it does not comply with the Act. However, it should be noted that the reference in the Act to a maximum of 1.8 m in height, applies to the meaning of ‘sufficient dividing fence’ where it is referred to in s 13 of the Act. The Act also clearly provides for the construction of a dividing fence to a standard greater than the standard for a sufficient dividing fence.
  2. [27]
    Clearly, colorbond fences are not common in the general area of the two properties. I have considered all the evidence adduced and all of the circumstances of the matter. I have also considered those further matters as listed in s 36 of the Act. I accept that a three strand starpicket and timber post fence, of the kind as referred to in the invoice from Stoakes Fencing dated 10 May 2016, would be the standard for a sufficient dividing fence, for the common boundary between the two properties. There presently exists no sufficient dividing fence on the common boundary. As already noted, by s 13 of the Act, the respondent’s fence is not to be taken into account in deciding whether there is a sufficient dividing fence.
  3. [28]
    However, having considered the issues of safety and privacy as raised by the applicant, I am also satisfied that in respect of this 67.5 metre section of the common boundary, it is reasonable that the applicant should be permitted to construct a fence to a standard greater than the standard for a sufficient dividing fence.
  4. [29]
    I consider that a colorbond fence, would in the circumstances be a proper and reasonable type of fence that adequately addresses the issues of privacy and safety. However, I would consider that there should be a gap of no less than 5 cm between the natural ground level and the bottom of the fence. The respondents material makes reference to gaps of 30 cm and 50 cm. Clearly, gaps of that magnitude would not address the issues of safety in respect of a young child. I also consider that the colorbond fence should not be more than 1.8 m from the bottom of the colorbond structure to its top. I would consider that a fence of this height would adequately address the issues of concern as to privacy and safety as raised by the applicant. Because of the sloping in the ground, it is reasonable that the fence be raked, as outlined in the quote from Form Outdoor. I am satisfied that type of fence would be capable of being maintained by the owners, notwithstanding the existence of the vegetation that exists in the area of such proposed fence. For the reasons I have set out, the colorbond fence should be constructed, which is for the benefit of the applicant and his family. Clearly, the respondents will derive no benefit from this type of fence and should not be burdened by those additional costs that will be incurred in having the fence constructed to this higher standard. To enable the construction to occur, I am satisfied than the respondents existing fence for this 67.5 metre distance will need to be removed. The respondents should remove that fence within 14 days, failing which the applicant may have this fence removed and disposed of. The respondents contribution to the colorbond fence should be $714.49, which represents one-half of the cost of constructing a fence of the kind I have found, as constituting a sufficient dividing fence. This sum is based on the rates referred to in the invoice from Stoakes Fencing, although for 67.5 metres only. The report of Queensland Ecologists adequately addresses the issue of fauna movement. Subject to not compromising safety, the applicant should take all those steps that may reasonably be taken with a view to complying with that report. The minimum 5 cm gap below the fence addresses the issue of allowing for the movement of smaller animals and also the natural flow of water.
  5. [30]
    With respect to the claim by the respondent for reimbursement of the survey fees of $1793, I note that the applicant has not at any stage agreed to pay any costs associated with that survey and that furthermore the respondents had not followed through with that  process as outlined in s 40 of the Act. This section outlines the process to be followed where adjoining owners do not agree on the position of the common boundary for the purposes of carrying out fencing work for a dividing fence. Clearly, the respondents should first have followed that process prior to incurring the cost of obtaining the surveyors report, should they have wished for a contribution to be made by the applicant. In the circumstances, I do not propose to make any order against the applicant in respect of such survey fees, as paid for by the respondents.
  6. [31]
    The respondents also seek an order that the applicant pay to them the sum of $750 for repair and rehabilitation of their southern boundary. The respondents have produced no evidence to substantiate how that sum is arrived at. It is a claim that is more in the nature of a claim for damages, for which this tribunal does not have jurisdiction. That claim will be disallowed.
  7. [32]
    The applicant has paid the sum of $112.50 by way of filing fees on the application. Generally, each party bears their own costs in proceedings of this kind. However, any award of costs that may be made would be limited to an order for payment of the filing fee. Both parties have had some success in the matter. I do not consider that this is an appropriate matter where there should be any order for payment of costs.

Orders:

  1. Within 14 days of the date of this order, the respondents shall remove their existing fencing for the 67.5 metre section, the subject of the application.
  1. In the event that the respondents fail to remove the said fencing, the applicant shall be at liberty to remove it or have it removed by an independent contractor and dispose of it.
  1. Within a period of three months from the date of this order, the applicant shall be at liberty to have constructed on the subject 67.5 metre section of the common boundary, a raked colorbond fence.
  1. There shall be a gap of not less than 5 cm between natural ground level and the bottom of the colorbond fence.
  1. The colorbond fence shall be not more than 1.8 metres from the bottom of the colorbond fence structure to the top thereof.
  1. Without compromising issues of safety, the applicant shall take all steps that may reasonably be taken with a view to complying with the report of Queensland Ecologists dated 21 October 2016.
  1. Upon the completion of the construction of the colorbond fence, the applicant shall provide notice thereof in writing to the respondents.
  1. Within 14 days from the date of receipt of the said written notice, the respondents shall pay to the applicant the sum of $714.49.

Footnotes

[1] Acts Interpretation Act 1954, s 14B.

[2] Explanatory Notes, Neighbourhood Disputes Resolution Bill 2010.

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Editorial Notes

  • Published Case Name:

    Paul John Williams v Floyd T Williams and Brenda J Williams

  • Shortened Case Name:

    Williams v Williams

  • MNC:

    [2017] QCAT 109

  • Court:

    QCAT

  • Judge(s):

    Adjudicator Stanton

  • Date:

    16 Mar 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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