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Body Corporate of Tranquility Court v Harrigan QCATA 136
Body Corporate of Tranquility Court v Harrigan  QCATA 136
Body Corporate of Tranquility Court
21 August 2015
Orders delivered on 21 August 2015; reasons for decision delivered on 8 September 2015
THE APPEAL TRIBUNAL ORDERS THAT:
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – DIVIDNG FENCES – EASEMENT FOR ACCESS
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 143, 146
Neighbourhood Disputes (Fences and Trees) Act 2011 (Qld), ss, 12, 14, 15, 28, 29, 39
S Tyson for the applicant/appellant
G Harrigan for the respondents
REASONS FOR DECISION
- The applicant, Body Corporate of Tranquility Court (the “Body Corporate”), filed an originating application, Q120-14, in the minor civil dispute jurisdiction of the Magistrates Court at Mackay, on 20 May 2014 under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) seeking orders for the removal of two double gates situated on the contiguous boundary between Lot 12 on SP100398 (“Lot 12”) and Lot 7 on SP100398 (“Lot 7”). The respondents resisted the application.
- Lot 12 is a large rectangular tract of land situated to the south of Lot 7, with an eastern boundary fronting on Beaconsfield Road. Lot 12 has access to Beaconsfield Road through a sealed driveway emanating from the premises situated on Lot 12. Lot 12 is owned by the respondents.
- Lot 7 is in the shape of an irregular open polygon with a narrow rectangular corridor contiguous with the northern boundary of Lot 12 which fronts Beaconsfield Road. Lot 7 has constructed a sealed driveway from the premises on the eastern portion of Lot 7 leading to Beaconsfield Road for access. Lot 7 is owned by the applicant.
- Lot 6 on SP100398 (“Lot 6”) is in the shape of a closed irregular polygon with an eastern front on Beaconsfield Road. Lot 6, however, has carpark facilities situated on the south-eastern portion of the parcel of land. As the business premises constructed on Lot 6 impedes access between the carpark facilities and Beaconsfield Road, Lot 6 benefits from registered easement 703046835 (the “Easement”) encumbering the driveway on the narrow corridor of land comprising part of Lot 7. Lot 6 is owned by Redimade Pty Ltd trading as Mackay Cubbyhouse Childcare (“Mackay Cubbyhouse”), who is a corporate trustee of the Harrigan Properties Trust, which appears to be a discretionary trading trust in respect of which the respondents are the two primary beneficiaries.
- The Easement appears to have been recorded by the Queensland Land Registry on 4 December 1998. At the time of registration and recordation of the Easement, the owner of both the dominant and servient tenements was Beaconsfield Property Group Pty Ltd (ACN 076 274 934) (“Beaconsfield Property Group”). The consideration for the granting of the easement over the servient tenement was $1.00. Significantly, the Easement grants no express or implied access rights to Lot 12.
- The respondents, through Redimade Pty Ltd, purchased Lot 6 and Lot 12 after the Easement was granted by the developer of the land from which the lots were subdivided. Lot 6 was purchased to establish and operate a business, currently trading as the “Mackay Cubbyhouse”, which provides childcare facilities. According to the evidence adduced at the hearing of the originating application, the Mackay Cubbyhouse services over 100 families and retains 22 employees. Lot 12 currently retains a duplex and a large shed, but the respondents have indicated that they intend to construct a residence on the remainder of the property.
- The evidence demonstrates that between 2011 and 2014 the applicant and respondents exchanged correspondence regarding the state of disrepair the dividing fence situated on the common boundary between Lot 7 and Lot 12. It appears to be common ground that the applicant and respondents did not enter into a formal or finalised agreement regarding the division of costs and expenses associated with the construction and maintenance of an adequate replacement fence, nor did the respondent serve the applicant with any instruments issued pursuant to the Neighbourhood Disputes (Fences and Trees) Act 2011 (Qld). Despite this, the parties agree that the fence was dilapidated and required repair or replacement.
- In early 2014 the respondents replaced the derelict fence on the common boundary of Lot 12 and Lot 7. The respondents did not seek any contribution from the applicant during the hearing of the application. The new dividing fence appears to possess two double gates. The existence and utilisation of these double gates form the foundation of this dispute.
- The applicants filed their originating application on 20 May 2014 seeking orders for the removal of the fence. The originating application was heard before a Magistrate in Mackay on 8 July 2014 following unsuccessful attempts at mediation.
- Examining the transcript of the hearing of the originating application, the proceedings focused on the use of the Easement for pedestrian access from Lot 12 to Lot 6. Indeed, the respondents (who were also the respondents within the original proceedings) did not file a counter-claim for contribution to the costs associated with construction of the new fence. The respondents expressly disclaimed this potential claim at the hearing of the originating application, acknowledging that they failed to comply with the notice requirements under the Neighbourhood Disputes (Fences and Trees) Act 2011 (Qld).
- The applicant submitted before the Magistrate that the two double gates should be removed because the Easement did not grant the respondents the right to access Lot 6 from Lot 12, or Lot 12 from Lot 6. The respondent resisted this interpretation, claiming that the Easement granted a right of a general right of access. The respondent acceded during the proceedings to the removal of a fence.
- The Magistrate appears to have held that the Dividing Fences Act (referring to the Neighbourhood Disputes (Fences and Trees) Act 2011 (Qld)) had no application because the parties did not adopt the correct processes. The Magistrate concluded that the fence was completed with the agreement of both parties. The Magistrate held that the “middle gate” was “reasonable”, but the end gate “must be closed and it should not be reopened”. The Magistrate stated that the “middle gate” should only be used for pedestrian traffic. Therefore, the Magistrate ordered that “the middle gate only remain.”
- The applicant filed an application for leave to appeal and appeal on 17 November 2014. The applicant was granted an extension of time within which to file an application for leave to appeal and appeal under s 143(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) on 20 March 2015. The applicant particularised three grounds of appeal:
- the Magistrate erred in delivering a decision outside the scope of the application;
- the Magistrate erred in giving a decision contrary to the Court’s own ruling; and
- the Magistrate erred in failing to apply the correct legislation.
- The Appeal Tribunal notes that the applicant has appealed only on the basis of questions of law.
- The respondent resists the application, claiming that the Magistrate’s decision was correct. The respondent asserts that the Tribunal lacks the requisite jurisdiction to interpret the Easement. The respondent submits that if the Tribunal is minded to set aside the decision of the Magistrate, it should order that the costs for the construction of the new fence should be apportioned equally among the applicant and respondents.
Decision outside the scope of the application
- The applicant claims that the application was for the modification or removal of a common boundary fence, or section of the common boundary fence, not regarding the scope of the Easement. The applicant asserts that neither the respondent nor applicant sought orders relating to right of access over the Easement.
- The respondents assert that any oral comments made by the Magistrate regarding the Easement were inessential to the decision and orders. The respondent claims that the orders were not outside the scope of the application, as they related to the modification of the fence.
- Having reviewed the transcript, the decision does not appear to have been outside the scope of the application. The order to remove one set of double gates, but to retain another set of double gates, appears to have been contemplated by the originating application.
- Any argument or statements relating to the Easement appear to derive from the manner in which the applicant conducted its case, namely that the two double gates should be removed because the respondents had no right to access Lot 6 from Lot 12 over the Easement. Furthermore, although the rights of access are a peripheral matter within the application, they were not irrelevant in determining whether the two double gates should be removed.
- Leave to appeal on this ground should be refused.
Decision contrary to ruling
- The applicant asserts that the Magistrate found that the respondents possess no right to enter Lot 12 using the Easement. The applicant submits that the Magistrate’s subsequent decision to give the respondents’ approval to enter Lot 7 without its permission contradicts the previous finding.
- The respondent submits that the Tribunal does not have jurisdiction to interpret the Easement. The respondents claim that the Magistrate did not make decisions or orders based on the Easement.
- Assuming that the Magistrate had jurisdiction to interpret the Easement, and that the Easement was relevant to the enquiry regarding the removal of the two double gates, the finding that the respondents possess no right to access Lot 12 using the Easement from Beaconsfield Road does not require the finding that the respondents possess no right to access Lot 6 through Lot 7 from Lot 12. The applicant, therefore, cannot succeed on this ground.
- Leave to appeal on this ground should be refused.
Failure to apply the correct legislation
- The applicant claims that the Magistrate failed to apply the correct legislation. The applicant observes that before the owners have agreed about the proposed fencing work to be carried out and their proposed contributions, neither own may carry out fencing work. The applicant submits that the failure of the respondents to notify the applicant of the performance of the fencing work renders the fence unlawful. The applicant therefore claims that the two double gates should be removed.
- The respondents state that the Magistrate applied the legislation where required and that there was no error of fact or law. The respondents observe that they did not seek any contribution for the fencing work from the applicant, and that the fence was in a dilapidated state.
- The Neighbourhood Disputes (Fences and Trees) Act 2011 (Qld) prescribes two requirements regarding the erection of fences:
- If the relevant fencing work is not urgent fencing work, neither owner may carry out fencing work, or arrange to have fencing work carried out, without agreement regarding the proposed fencing work and their contributions, for the dividing fence other than for urgent fencing work;
- If the relevant fencing work is urgent fencing work, then within one month after notice is given, if the adjoining owners have not agreed about their contributions to the performance of the fencing work, either adjoining owner may, in 2 months after the notice is given, apply to QCAT for an order under s 35 of the Act.
- There is insufficient evidence before the Appeal Tribunal to establish that the fencing work was “urgent fencing work”. Furthermore, the Magistrate made no finding regarding whether the fencing work was “urgent fencing work”.
- It appears to be common ground that a notice within the prescribed form was not served by the respondents on the applicant. Furthermore, the parties appear to accept that there was no agreement as to the nature of the proposed fencing work or the parties’ contributions. Thus, the fencing work was carried out in breach of s 31(7) of the Neighbourhood Disputes (Fences and Trees) Act 2011 (Qld).
- Section 39(1) of the Neighbourhood Disputes (Fences and Trees) Act 2011 (Qld) relevantly provides that if an owner constructs a dividing fence without authorisation the adjoining owner may apply to QCAT for an order requiring the owner to remove, modify or rectify the fence. The adjoining owner is required to serve the owner a copy of the application at least three days before the application is heard. On receiving the application, QCAT may make an order requiring the owner to remove, modify or rectify the fence, and bear the costs of any such removal, modification or rectification.
- The legislation does not define the meaning of “unauthorised”. The natural and ordinary meaning of the adjective, in the context of the Neighbourhood Disputes (Fences and Trees) Act 2011 (Qld) is not permitted, justified or excused by statute, common law, or the principles of equity. The applicant has not supplied any relevant legal principle permitting, justifying or excusing the construction of the dividing fence. Therefore, the applicant has carried out an unauthorised construction of the relevant dividing fence.
- The Magistrate, therefore, was required to determine whether the respondent should be required to modify or remove the unauthorised dividing fence. Lines 36 – 37 of p 42 of the transcript demonstrated that the Magistrate made no attempt to apply Part 5 of the Neighbourhood Disputes (Fences and Trees) Act 2011 (Qld), or any ancillary principles of common law or equity.
- The analysis of the scope of the Easement was only one relevant factor in determining whether the two double gates should be modified or removed. Factors the Magistrate may also have considered include:
- the sufficiency and adequacy of the unauthorised fence;
- any applicable building, council or planning regulations or by-laws;
- the nature and condition of the original offence;
- any reasonable attempts to comply with the applicable legislation;
- the circumstances and urgency relating to the removal of the original fence;
- the circumstances and urgency relating to the construction of the new fence;
- any apportionment of costs and expenses associated with the removal of the original fence and construction of the new fence;
- any customary practices or informal understandings relating to the removal of the original fence and construction of the new fence;
- any rights, requirements or reasonable preferences of the respective parties relating to the design, construction and positioning of the fence;
- the purpose of any functional improvements made to the fence, such as gates; and
- the rights of both adjoining owners to determine the nature and specifications of the common boundary fence.
- The Magistrate has failed to apply the Part 5 of the Neighbourhood Disputes (Trees and Fences) Act 2011 (Qld) and the ancillary common law.
- Leave to appeal and the appeal should only be allowed on this ground.
- The application for leave to appeal should be granted and the appeal allowed. The decision and order issued by the Magistrate on 8 July 2014 in the minor civil dispute claim Q120-14 should be set aside.
- Insufficient evidence has been presented to the Appeal Tribunal to adjudicate on the modification of the two double gates in the unauthorised fence. As the application for leave to appeal and appeal has only been on the basis of questions of law, or the Appeal Tribunal has only granted leave to appeal on a question of law, the matter should be remitted to the Magistrates Court for rehearing.
- At this stage it is inappropriate for the Appeal Tribunal to express an opinion on the correct interpretation of the Easement.
- The Appeal Tribunal orders that:
- Leave to appeal is granted.
- The appeal is allowed.
- The order and decision handed down on 8 July 2015 in minor civil dispute claim Q120-14 are set aside.
- The originating application in Q120-14 is remitted to the Magistrate for rehearing.
 Neighbourhood Disputes (Fences and Trees) Act 2011 (Qld) s 31(7). See also s 28(2) of the Act relating to the restoration of a fence in circumstances requiring urgent fencing work.
 Neighbourhood Disputes (Fences and Trees) Act 2011 (Qld) s 31(7).
 Neighbourhood Disputes (Fences and Trees) Act 2011 (Qld) s 28(6).
 Neighbourhood Disputes (Fences and Trees) Act 2011 (Qld) s 39(2).
 Neighbourhood Disputes (Fences and Trees) Act 2011 (Qld) s 39(3).
 Neighbourhood Disputes (Fences and Trees) Act 2011 (Qld) s 12(1).
 Neighbourhood Disputes (Fences and Trees) Act 2011 (Qld) s 15(1).
 Neighbourhood Disputes (Fences and Trees) Act 2011 (Qld) s 14(1).
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146(c).
- Published Case Name:
Body Corporate of Tranquility Court v Harrigan
- Shortened Case Name:
Body Corporate of Tranquility Court v Harrigan
 QCATA 136
08 Sep 2015