McMah v Burgess[2017] QCAT 422

REASONS FOR DECISION

The Application

1. [1]
   Mr and Mrs McMah are the registered owners of property that shares its rear boundary with property owned by Mrs Burgess.  On 21 September 2016, Mr and Mrs McMah filed an application in the Brisbane Registry of the Tribunal^[1] seeking orders that Mrs Burgess contribute to half the cost of a new retaining wall and fence to replace the existing retaining wall and fence, both of which had become dilapidated due to age.  
2. [2]
   The matter came on for hearing with all parties in attendance on
   11 July 2017.^[2]  After considering the documentary and oral submissions of the parties, it was evident that the Tribunal would benefit from attending the site for a visual inspection.  This occurred with all parties in attendance on 15 August 2017.
3. [3]
   The Tribunal reserved its decision and now provides these reasons.  

Background to the Dispute

4. [4]
   Mr and Mrs McMahs’ residential property at Mudgeeraba shares its rear boundary with Mrs Burgess’s property.  The McMahs have owned their property since 2006, and Mrs Burgess has owned or lived at her property for several decades. 
5. [5]
   The McMahs’ property is lower than Mrs Burgess’s property.  This is due partly to the natural fall of the land, but Mrs Burgess claims that excavation on the McMahs’ land in approximately 1986 (prior to the McMahs’ ownership of it) has resulted in the rear part of their land being even lower than if the excavation had not occurred.
6. [6]
   At the rear of Mr and Mrs McMahs’ property and adjacent to the existing fence is an elevated garden bed made of large rock boulders, between which various mature shrubs and small trees grow.  The rock garden bed runs almost the full length of the McMahs’ property.
7. [7]
   Just behind and above the elevated rock garden bed, a timber paling fence approximately 26 metres long and 1.8 metres high divides the two properties.  The fence sits at approximately the same level as the soil on Mrs Burgess’s property.  The fence is aged, badly weathered, and part of it leans toward the McMahs’ house.  If not for a tree in the McMahs’ rock garden which supports it, that part of the fence would very likely have already fallen onto the McMahs’ rock garden bed.  
8. [8]
   Beneath the fence is a timber retaining wall which appears to run the full length of the shared boundary, and beyond into the property of the McMahs’ neighbours to the south. 
9. [9]
   The retaining wall appears to be two sleepers high, but is not visible for its full length due to the rock garden and soil.  The sleepers at the southern end are visible from the McMahs’ property and appear to be rotting and leaning towards their property.    
10. [10]
    There is no dispute about the condition of the fence or the need for it to be replaced.  Mrs Burgess has said that she is prepared to pay half of the cost of a replacement fence, but says she has no obligation to pay anything towards replacement of the retaining wall.
11. [11]
    Nevertheless, because of the impasse regarding the retaining wall, no agreement has been reached on any aspect of the fencing issue.   Accordingly, Mrs and Mrs McMah seek Orders of the Tribunal:

    1. That Mrs Burgess contribute 50% to the cost of a new 1,800mm high fence to divide their properties; and
    2. That Mrs Burgess contribute 50% to the cost of a new retaining wall.

Jurisdiction

12. [12]
    The Neighbourhood Disputes (Dividing Fences and Trees) Act (Qld) 2011 provides the rules about each neighbour’s responsibility for dividing fences.^[3]
13. [13]
    Jurisdiction is vested in this Tribunal to make orders about the type of fencing work to be carried out and how the cost of that work is to be shared between neighbours.^[4]  QCAT can make orders about retaining walls only to the extent necessary to give effect to orders about fencing work.^[5] 
14. [14]
    The prerequisite to QCAT’s jurisdiction is the giving of an appropriately completed ‘Notice to Contribute to Fencing Work’ by one neighbour to another,^[6] the terms of which have not been agreed to by the neighbours within a month of being given.^[7]  The notice must be accompanied by a copy of at least one written quotation.^[8]
15. [15]
    Mr and Mrs McMah gave a Notice to Contribute to Fencing Work to Mrs Burgess on 15 August 2016 asking her to contribute $1,985.00 towards the total cost of $3,970.00 for a 1,800mm high fence, as quoted by Down 2 Earth Fencing.  Mrs Burgess formally declined that proposal on 11 September 2016.
16. [16]
    Accordingly, this Tribunal has jurisdiction to hear and determine the application filed by Mr and Mrs McMah.

Retaining Wall

17. [17]
    At the heart of this matter is determination of who is responsible for replacement of the retaining wall.  Mr and Mrs McMah believe the responsibility is a joint one, given the retaining wall is on or close to the boundary and benefits Mrs Burgess by retaining soil from her land. 
18. [18]
    Mrs Burgess disagrees.  She submitted several letters from the local council written in 1989 and 1990 which she says prove that owners prior to the McMahs had excavated their land and were required by way of a Defect Rectification Notice to build a retaining wall.^[9]  Mrs Burgess maintains that the obligation to maintain the retaining wall has run with the land, with the result that the McMahs bear the entire burden of maintaining it. 
19. [19]
    Mrs Burgess’ argument has merit.  Section 179 of the Property Law Act (Qld) 1974 imposes an obligation on a landowner “not to do anything on or below it that will withdraw support from any other land.”  The law of torts also considers the removal of support which causes a neighbour’s land to subside to be a nuisance,^[10] so a landowner has a duty, where he or she is aware of a condition on land which puts neighbouring land at risk, to take such steps as a reasonable in all the circumstances to prevent or minimise the risk of injury or damage to a neighbour’s property.^[11]     
20. [20]
    Accordingly, to the extent that a neighbouring landowner withdraws support to an upper neighbour by excavating their own land they are obliged to support the neighbour’s land by some other means.  The responsibility is not a joint one, but rests with the person who withdrew the support.  While it was not Mr and Mrs McMah who withdrew the support of Mrs Burgess land by excavation, they inherited the obligation to ensure the land above remains supported.      
21. [21]
    Neighbours should be jointly liable for maintaining those structures that they have constructed for their mutual benefit.  This is not the case here.  The retaining wall was constructed by a prior owner of the McMahs’ land pursuant to a local council directive after excavation made its construction necessary.  If not for that excavation the retaining wall would not have been required, so it is the neighbour on the lower side (now, the McMahs) who have derived and who continue to derive all the benefit of the retaining wall.
22. [22]
    Accordingly, as the retaining wall is entirely for the McMahs’ benefit the Tribunal finds that its remediation is their sole responsibility.        

Fencing Work

23. [23]
    The general position is that adjoining owners are each liable to contribute equally to carrying out fencing work for a sufficient dividing fence.^[12]  A “dividing fence” is a fence on the common boundary of adjoining lands^[13] and is owned equally by the adjoining owners.^[14]
24. [24]
    Mrs Burgess says that she is prepared to share equally in the cost of the dividing fence with the McMahs, and they both told the Tribunal during the site visit that they would prefer Colourbond to timber.  Colourbond is also used for fences on at least one other boundary of each party’s property, and is commonly used in the neighbourhood.  That much seems to be settled.
25. [25]
    At the site visit conducted on 15 August 2017, Mr McMah provided a survey plan of his property drafted for him by FYFE Surveyors on 11 August 2017.  It is labelled to show that the fence and retaining wall are currently wholly within the McMahs’ property.  Testimony of the parties indicates that the retaining wall and fence have likely moved over time due to subsidence.  The fencing contractor will determine the most appropriate position of the new fence given works to the retaining wall and other factors, but to the extent possible, any new fence should be on (or as close as possible to) the common boundary.
26. [26]
    The appropriate quote on which to make an order is the only open issue.  The McMahs say (and Mrs Burgess confirms) that a quote was submitted with the Notice to Contribute for Fencing Work for $3,970.00 from Down 2 Earth Fencing.  Mrs Burgess said she believed that quote included reconstruction of the retaining wall.  That quote is not on the Tribunal’s file for this matter, so I am unable to review it.  In any event, the Tribunal’s view is that a quote of $3,970.00 is too high given it exceeds other quotes submitted for the same fencing work by at least 20%.    
27. [27]
    At the 11 July 2017 hearing Mr McMah submitted a spreadsheet showing the breakdown of material costs and an estimate of labour costs to build both a retaining wall and timber fence and dispose of the old fence.  The Tribunal understands Mr McMah obtained these estimates himself.  Excluding the amounts provided with respect to the retaining wall, that estimate totalled $3,225.50^[15] (or $2,859.58 excluding disposal of the old fence).
28. [28]
    Mrs Burgess obtained quotes from Dirt Cheap Fencing, most recently on 11 August 2017.  That quote provides for 26 lineal metres of 1.8 metre high Colourbond and support posts at a total price of $2,370.00.  It is unclear on the quote whether that includes labour, but on the site inspection of 15 August 2017 Mr Peter Burgess, Mrs Burgess’ husband, said he believed it did.
29. [29]
    Assuming the Dirt Cheap Fencing quote does include labour, given the difference between Mr McMah’s estimate and the quote from Dirt Cheap Fencing, the Tribunal make orders based on the quote from Dirt Cheap Fencing, which is the least expensive.

Orders

30. [30]
    It is ordered that:

    1. A new retaining wall be constructed to replace the existing retaining wall located on Mr and Mrs McMahs’ property as soon as possible, but in any case by no later than 30 November 2017;
    2. Mr and Mrs McMah shall be solely responsible for arranging and paying for removal of the old retaining wall and construction of the new retaining wall;  
    3. Mr and Mrs McMah shall be responsible for arranging removal of the old timber fence;
    4. Within seven (7) days of removal of the old timber fence, Mrs Burgess is to pay to Mr and Mrs McMah 50% of the cost (as evidenced by an invoice from a fully licenced, independent third party contractor) attributable to its removal and disposal;
    5. Within two (2) weeks of completion of the retaining wall, a new dividing fence is to be erected on the common boundary between the properties of the parties;
    6. The fence must be constructed of Colourbond and in accordance with the quotation dated 11 August 2017 by Dirt Cheap Fencing for a total of $2,370.00 (a copy of which is attached to this Order);
    7. Mrs Burgess is to pay to Mr and Mrs McMah $1,185.00 within 7 days of completion of the fence, or if Mr and Mrs McMah use a fully licenced third party contractor other than Dirt Cheap Fencing, Mrs Burgess shall be responsible to pay $1,185.00 or 50% of the new contractor’s quote (whichever is lesser) within seven (7) days of completion;
    8. If a temporary fence is required to contain animals, etc, during the period during which there is no dividing fence, that is the responsibility of each party; and
    9. The parties are at liberty to apply for further orders.