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Sylvan Developments Pty Ltd v Mark[2015] QCATA 3

Sylvan Developments Pty Ltd v Mark[2015] QCATA 3

CITATION:

Sylvan Developments Pty Ltd v Mark [2015] QCATA 3

PARTIES:

Sylvan Developments Pty Ltd

(Applicant/Appellant)

v

Keith Mark

(Respondent)

APPLICATION NUMBER:

APL386-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Acting Deputy President Stilgoe OAM

DELIVERED ON:

12 January 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether grounds for leave to appeal

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

Pickering v McArthur [2005] QCA 294

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Chambers v Jobling (1986) 7 NSWLR 1

APPEARANCES and REPRESENTATION (if any):

 

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    Sylvan Developments Pty Ltd and Mr Mark own adjoining blocks of land in a semi-rural subdivision at Moore park Beach. Mr Mark wanted to erect a dividing fence 1.8 metres high from black PVC–coated chain wire. Sylvan Developments did not want a fence built. Mr Mark applied to the tribunal for an order. A Magistrate, sitting in the minor civil disputes jurisdiction of the tribunal ordered that a 1.8 metre dividing fence of PVC-coated black chain wire be erected and that Sylvan Developments pay half the cost of that fence.
  2. [2]
    Sylvan Developments wants to appeal that decision. It says that Mr Mark’s land is not residential and, therefore, the learned Magistrate applied the wrong test in deciding what was a sufficient fence. It refers the appeal tribunal to section 36(b), (c) and (d) of the Neighbourhood Dispute Resolution (Dividing Fences and Trees) Act (Qld) 2011 (NDR Act) and submits that it should only be required to contribute 50% of the cost of a fence most commonly used in the area. It also says that the learned Magistrate made incorrect findings of fact.
  3. [3]
    Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
  4. [4]
    In support of its argument that the learned Magistrate applied the wrong test for a “sufficient fence”, Sylvan Developments refers the appeal tribunal to s 12(a) of the NDR Act. Because Sylvan Developments also refers to the concept of residential land, I suspect Sylvan Developments meant to refer to s 13(1)(a). That section states that, for two adjoining parcels of residential land, a sufficient dividing fence is between a minimum of 0.5m and a maximum of 1.8m in height. Sylvan Developments argues that, because the land is designated as non-urban by the Council, the learned Magistrate erred in finding that the land was used for residential purposes.
  5. [5]
    The definition of residential land under the NDR Act does not depend on its Council defined planning use. “Residential land” is defined as[3]: ‘land, other than agricultural land and pastoral land, used primarily for residential purposes’.
  6. [6]
    The learned Magistrate had evidence before her to show that the area was used for residential purposes. She was shown pictures of housing in the area. She had a copy of a subdivision plan on which the land use is recorded as “vacant – large housesite”. The subdivision plan has the appearance of a large lot residential subdivision. There was no evidence that the land was agricultural land or pastoral land. Even though Mr Mark has not yet built a house on his land, the learned Magistrate was entitled to find that subject land was “residential land”.
  7. [7]
    In any event, s 13(1)(c)(ii) states that a dividing fence is a sufficient dividing fence in any case if the tribunal decides that the dividing fence is a sufficient dividing fence. It was always open to the learned Magistrate to determine that a 1.8 metre PVC-coated black chain wire fence was a sufficient dividing fence.
  8. [8]
    Section 36 of the NDR Act sets out some of the matters the tribunal may consider when deciding whether a fence is a sufficient dividing fence. Section 36(b) states that the tribunal can consider the purposes to which the two parcels of land are being used, or intended to be used. Even if Mr Mark is not currently using his property for residential purposes, it is an intended use. He told the learned Magistrate[4] that they have been planting trees and bushes to make the land ‘more comfortable’. Even Mr Clary, who appeared for Sylvan Developments, conceded that Mr Mark was ‘going down to live there[5]. The proposed use was clearly residential and there is nothing in the transcript to suggest that the learned Magistrate did not correctly consider s 36(b).
  9. [9]
    Section 36(d) states that the tribunal can consider whether the dividing fence is capable of being maintained by the adjoining owners. Sylvan Developments prefers a 1200mm high treated pine post and dog wire fence. The learned Magistrate found[6] that the 1.8 metre PVC-coated black chain wire fence would be easier to maintain than the post and dog wire fence. There was no evidence before the learned Magistrate about the relative maintenance requirements of the fencing. Although Sylvan Developments has referred the tribunal to s 36(d) of the NDR Act, it has not, in fact, suggested that the learned Magistrate was in error or provided any evidence to suggest that she was wrong in her assessment.
  10. [10]
    The real issue in this dispute, and therefore in Sylvan Developments’ application for leave to appeal, is whether the 1.8 metre PVC-coated black chain wire fence was the kind of dividing fence usually used in the area, pursuant to s 36(c).  Mr Mark showed the learned Magistrate examples of similar fencing; Mr Clary showed the learned Magistrate examples of post and dog wire fences.
  11. [11]
    Mr Mark’s land is at the end of Royal Parade, which is a cul-de-sac. Royal Parade has seven blocks fronting onto it. Three of the seven have a 1.8 metre PVC-coated black chain wire dividing fence. Two blocks in an adjacent street, Sovereign Court, which back onto blocks in Royal Parade, have similar fences. Although other blocks in the estate have post and dog wire fences, there is only one block in Royal Parade which is fenced in that way. The learned Magistrate was entitled to find that the kind of dividing fence used in Royal Court was a 1.8 metre dividing fence of PVC-coated black chain wire.
  12. [12]
    Sylvan Developments has some further complaints about the style of fence chosen by Mr Mark. It says that the learned Magistrate did not take into account that its other dividing fence is a post and dog wire fence. The learned Magistrate acknowledged the existence of post and dog wire fences[7], although not specifically the fence on Sylvan Developments’ other boundary. She found that the chain wire fence is more appropriate. The evidence can support the learned Magistrate’s findings and I can find no compelling reason to come to a different view.
  13. [13]
    Sylvan Developments says the fence will be constructed adjacent to a large “rural shed” and that the fence will not provide privacy or screening to that shed. Sylvan Developments did not raise this argument at the hearing and it is an odd argument to make. If a chain wire fence will not hide a shed, a lower and more transparent post and dog wire fence will not be a better solution.
  14. [14]
    Sylvan Developments says that the fence will negate “their” (Mr and Mrs Clary’s) right to choose a fence to block out the shed. If that was an important consideration, Sylvan Developments could have suggested a different fence that might have softened the view. It did not, and the learned Magistrate was not required to consider the aesthetics of the shed when making her decision.
  15. [15]
    Sylvan Developments makes the point that it is not the developer of the land, had no input into the existing chain wire fences and will not profit from the sale of the land. Whether or not it is the developer is irrelevant. Sylvan Developments is the owner of the adjoining land and has an obligation to contribute to a dividing fence. Similarly, its lack of involvement in previous decisions, and the fact that it will not profit from any sale of land, is irrelevant.
  16. [16]
    Finally, Sylvan Developments says that it should only have to contribute $1,008.50, which is half of a quote for post and dog wire fence, costed at $27 per metre. That argument may apply if the learned Magistrate found that Mr Mark wanted to build a fence greater than the standard for a sufficient dividing fence[8]. Because the learned Magistrate found that the chain wire fence was a sufficient fence, general principles apply[9] and each owner is liable to contribute equally to the cost of the fencing.
  17. [17]
    There is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal should be refused.

Footnotes

[1]  QCAT Act s 142(3)(a)(i).

[2] Pickering v McArthur [2005] QCA 294 at [3].

[3]  NDR Act s 18(4).

[4]  Transcript page 1-16, lines 36 – 42.

[5]  Transcript page 1-17, line 1.

[6]  Transcript page 1-18, lines 23 – 26.

[7]  Transcript page 1-18, lines 15 – 16.

[8]  NDR Act s 21(2).

[9]  NDR Act s 21(1).

Close

Editorial Notes

  • Published Case Name:

    Sylvan Developments Pty Ltd v Mark

  • Shortened Case Name:

    Sylvan Developments Pty Ltd v Mark

  • MNC:

    [2015] QCATA 3

  • Court:

    QCATA

  • Judge(s):

    A/Deputy President Stilgoe OAM

  • Date:

    12 Jan 2015

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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