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Milne v Ascough QCATA 62
Milne v Ascough & Anor  QCATA 62
On the papers
Dr Cullen, Member
29 April 2015
APPEAL – NEIGHBOURHOOD DISPUTE – DIVIDING FENCE – where parties are owners of adjoining properties – where adjacent owner wants to erect fence on border – where applicant objects – where Tribunal ordered access to be given to the respondents for erection of a pool fence under s 245XG of the Building Act 1975 (Qld) – where the applicant seeks to appeal that decision – whether appeal should be allowed
Building Act 1975 (Qld), s 245XG
Cachia v Grech  NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 Qd R 577
QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41
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
- This is an appeal from a decision made in the Tribunal’s dividing fences jurisdiction.
- On 25 February 2015, the Tribunal made an order dismissing the appellant’s application, wherein she endeavoured to stop her neighbours, the respondents John and Margaret Ascough, from erecting a boundary fence along the border between their properties.
- On the 25 February 2015, the Tribunal also made an order requiring that Ms Milne facilitate Mr and Mrs Ascough’s entry for purposes of erecting the fence as provided for by s 245XG of the Building Act 1975 (Qld) (‘Building Act').
- Both parties have filed submissions in relation to Ms Milne’s appeal from the 25 February 2015 decision.
Right of Appeal
- The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision? Is there a reasonable prospect that the applicant will obtain substantive relief? Is leave necessary to correct a substantial injustice to the applicant caused by some error? Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?
- In this matter, the submissions from Ms Milne are incapable of demonstrating that there was either a legal or factual error made by the Tribunal below. The submissions do not focus on the matters at hand, which relate to the request by the Ascoughs’ for entry to the property for the sole purpose of erecting a boundary fence. Section 245XD permits the Ascoughs’ to enter Ms Milne’s property in circumstances where the legislative conditions are met. That section reads as follows:
245XD Right to alter or replace existing dividing fence for the purpose of a pool barrier
- (1)This section applies if—
- (a)there is a dividing fence (the existing dividing fence) between 2 parcels of adjoining land; and
- (b)there is, or is proposed to be, a regulated pool on only 1 of the parcels that will use all or part of the dividing fence to form part of the barrier for the regulated pool.
- (2)The pool owner may alter or replace all or part of the existing dividing fence if—
- (a)the pool owner and adjoining owner have agreed about carrying out the fencing work; or
- (b)QCAT has ordered that the fencing work be carried out.
- (3)The pool owner may alter or replace all or part of the existing dividing fence without the adjoining owner having agreed about carrying out the fencing work if—
- (a)the new fence will, when complete, form part of the barrier for the regulated pool that complies with the pool safety standard; and
- (b)the new fence will, when complete, be a sufficient dividing fence; and
- (c)the new fence is constructed using similar materials and colours to those of the existing dividing fence if the use of the materials would not prevent compliance with paragraph (a) and (b); and
Some of the materials acceptable as constituting a sufficient dividing fence would not comply with the pool safety standard.
- (d)the pool owner gives the adjoining owner a notice of proposed fencing work at least 14 days before the proposed fencing work is carried out.
- (4)Also, if the existing dividing fence is a special purpose fence, the new fence must—
- (a)continue to serve the particular purpose that the existing fence serves; and
- (b)comply with all the requirements applying to the existing dividing fence, including, for example, requirements about the design of the fence, the materials to be used in the fence or the dimensions of the fence.
- (5)Also, if the existing dividing fence is more than 1.8m in height, the new fence must, despite subsection (3)(b), be the same height as the existing dividing fence but otherwise be a sufficient dividing fence.
- (6)In this section—
new fence means a fence that has been altered or is a replacement of an existing fence.
Evidence before the Tribunal
- All of the evidence before the Tribunal demonstrated that the Ascoughs’ intended for the new fence, when complete, to form part of a barrier for a regulated pool on their property, that it would be a sufficient dividing fence, it would be constructed in a manner that used similar materials and colours, and they had given Ms Milne a notice of the proposed fencing work at least 14 days prior to erecting the fence.
- At this stage, Ms Milne’s inability to interpret the clear intent of s 245XD of the Building Act has prevented the Ascoughs’ from finishing their renovations. There is simply no merit whatsoever to Ms Milne’s application. In the Tribunal below, and in her appeal, Ms Milne raises concerns relating to the failure of the Ascoughs’ to disclose the cost of the fencing work. That is not a relevant matter, as there is no contribution sought from Ms Milne in this application. This is not a standard dividing fences matter, but rather arises under the Building Act for purposes of allowing the adjacent owners (the Ascoughs’) access to Ms Milne’s property so that they may erect an appropriate pool fence.
Brisbane City Council permit
- Ms Milne raises further concerns that the Ascoughs’ have not addressed the need to obtain a Brisbane City Council building permit. This matter has been addressed in some detail by the Ascoughs’ at first instance, and in their submissions on the appeal, explaining that they are not required to obtain a permit. The Brisbane City Council website reveals that a building and planning permit is not required in circumstances where the proposed fence will be less than 2 metres high, which is the case in these circumstances. Additionally, it is the case that the Ascoughs’ proposed fence, as indicated in their material, is associated with residential use, is not part of a retaining wall, and will not restrict water runoff from adjoining properties.
- The Ascoughs’ served Ms Milne with the appropriate form 39 notice of proposed fencing work for a swimming pool barrier, dated 17 October 2014. There is no basis for there to be any further delay associated with this matter, and the Ascoughs’ desire to erect the fence at issue.
- The appeal is dismissed.
 QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41.
 Cachia v Grech  NSWCA 232 at 2.
 QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41.
 Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 Qd R 577 at 578, 580.
- Published Case Name:
Heather Milne v John Ascough and Margaret Ascough
- Shortened Case Name:
Milne v Ascough
 QCATA 62
29 Apr 2015