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Holloway v Moller[2016] QCATA 160

CITATION:

Holloway v Moller [2016] QCATA 160

PARTIES:

Shona Holloway

Brian Holloway

(Applicants/Appellants)

v

Kaye Moller

Joseph Moller

(Respondents)

APPLICATION NUMBER:

APL121 -16

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

25 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – QUALITY OF FENCE – where semi-rural properties – where existing fence a combination of picket and wire and vegetation  – where notice to fence requesting Colorbond fence – where tribunal ordered Colorbond fence – whether Colorbond fence a sufficient fence – whether grounds for leave to appeal

Neighbourhood Disputes (Dividing Fences and Trees) Act 2001 (Qld) s 36(b), s 36(c)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142

Chambers v Jobling (1986) 7 NSWLR 1

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

House v The King (1936) 55 CLR 499

Lovell v Lovell (1950) 81 CLR 513

Pickering v McArthur [2005] QCA 294

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]
    The Holloways and the Mollers own adjoining ¾ acre blocks in Morayfield. Kaye and Joseph Moller wanted Shona and Brian Holloway to contribute half the cost of a Colorbond fence along part of the boundary. The tribunal ordered accordingly.
  2. [2]
    The Holloways want to appeal that decision. 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]
  3. [3]
    The Holloways say the tribunal erred in finding that their part of Morayfield was not rural residential. They say the tribunal erred in not finding that the normal fence for the area was a post and wire fence. They say the tribunal erred in relying on the fact that they did not live at the property. They say the tribunal erred in finding that the houses were close, that their tenants could look into the Moller’s home, that the studio was two feet from the fence, that the fence was 3 feet high and that it was rotting and collapsing. They do not think a Colorbond fence is necessary or appropriate.

Was the existing fence a sufficient fence?

  1. [4]
    The first task of the tribunal under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) was to decide whether the existing fence was a sufficient dividing fence.[3] It found that the existing lattice and vegetation fence was not a sufficient dividing fence.[4]
  2. [5]
    Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[5]
  3. [6]
    I have considered the evidence before the tribunal and read the transcript. The evidence can support the tribunal’s finding and I can find no compelling reason to come to a contrary view.

What is a sufficient dividing fence?

  1. [7]
    If the tribunal decides that the existing fence was not a sufficient fence, it may then make orders about the carrying out of fencing work, including the kind of dividing fence to be constructed.[6]
  2. [8]
    In deciding what a sufficient fence is, the tribunal may consider all of the circumstances of the application, including the matters in s 36 of the Neighbourhood Disputes (Dividing Fences and Trees) Act. It is clear from s 36 that the tribunal must exercise its discretion, taking a range of factors into account.
  3. [9]
    One of the factors the tribunal may consider is the purpose to which the two parcels of land are used.[7] This is not the same as considering the character of the area, although that will be something to which the tribunal can turn its mind.
  4. [10]
    There was no doubt that the two blocks were used for residential purposes.
  5. [11]
    Holloways say that their block is not an urbanised section of Morayfield. Their submissions in the application for leave to appeal include an extract from the Moreton Bay Regional Council website showing that their property is zoned ‘rural residential’.
  6. [12]
    The tribunal found, by way of introduction,[8]:

Well, certainly, at two blocks of land, each being three-quarters of an acre, is certainly on the lower end of the – what might be termed “rural residential”. Here-quarters of an acre not being that much bigger that what – the old quarter acre block or 40 perches in old day – in old school terms. It’s certainly bigger than what would normally be – one would normally find in a normal suburban street.

  1. [13]
    The tribunal also acknowledged the semi-rural character of the area.[9] Therefore, I am not persuaded that the tribunal found, as a matter of fact, that the area was an urban area.
  2. [14]
    Another factor the tribunal may consider is the kind of dividing fence normal in the area.[10] The Holloways say that over 90% of the fences in the area are either post and wire, natural vegetation, planted vegetation or picket and wire and, therefore, the tribunal should not have ordered the construction of a Colorbond fence.
  3. [15]
    The tribunal found that Colorbond fence is not ‘out of kilter totally with the area in question’.[11] The tribunal also found that there was not much difference between a lattice fence (which was existing) and a Colorbond fence.[12] The Holloways might take issue with these findings but the tribunal did not decide a Colorbond fence was a sufficient fence simply on that ground alone. The tribunal considered, as it was entitled to do, the reason why the Mollers wanted the fence.
  4. [16]
    The Holloways say there is no issue of privacy between the two neighbours. They say privacy has been maintained through screening plants. They say that the buildings are not close.
  5. [17]
    The tribunal had a copy of a sketch plan showing the location of the Moller home, relative to the fence. The plan was not disputed.[13] The tribunal found that the house was ‘reasonably close’ to the boundary.[14] The evidence can support that finding and I can find no compelling reason to come to a contrary view.
  6. [18]
    The tribunal also found that a fence was required to maintain privacy for Mr and Ms Moller.[15] Again, the evidence can support that finding and I can find no compelling reason to come to a different view.
  7. [19]
    I can find no reference in the reasons for decision to the fact that the Holloways do not live in their property. The reasons for decision do not refer to the existing fence as a three foot fence. The reasons for decision do not refer to the position of the studio. I do not accept that these assertions by the Holloways are valid grounds for appeal.
  8. [20]
    Ultimately, as I have already indicated, the question of a sufficient fence was a matter for the exercise of the tribunal’s discretion. When there is an appeal against the way the tribunal exercised its discretion I will not interfere unless it can be shown that the tribunal acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters[16]. Just because I might have exercised the discretion differently is not a basis for changing the decision: it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion[17].
  9. [21]
    I cannot find any indication that the tribunal acted on a wrong principle, or that it made mistakes of fact that affected its decision, or that it was influenced by irrelevant matters.
  1. [22]
    There is no reasonably arguable case that the tribunal 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] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 35.

[4] Transcript 7 April 2016, page 1-11, lines 22 – 32.

[5] Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

[6] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 35(b).

[7] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 36(b).

[8]  Transcript page 1-10, lines 31 – 36.

[9]  Transcript page 1-11, lines 42 – 44.

[10] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 36(c).

[11]  Transcript page 1-12, lines 7 – 8.

[12]  Transcript page 1-12, lines 9 – 10.

[13]  Transcript page 1-12, lines 19 – 20.

[14]  Transcript page 1-12, lines 20 – 21.

[15]  Transcript page 1-12, lines 28 – 30.

[16]House v The King (1936) 55 CLR 499, at 504.

[17] Lovell v Lovell (1950) 81 CLR 513.

Close

Editorial Notes

  • Published Case Name:

    Holloway v Moller

  • Shortened Case Name:

    Holloway v Moller

  • MNC:

    [2016] QCATA 160

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe OAM

  • Date:

    25 Oct 2016

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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