Young v Lawton[2018] QCATA 98

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Leave to appeal from a fencing work order under s 35 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (Fencing Act) was granted on limited questions of law specified in directions dated 9 February 2018.

The context

2. [2]
   The central issues raised by the fencing application were whether (a) there was a “sufficient dividing fence” and, if not (b) any existing dividing fence should be replaced by one constructed on the common boundary in accordance with the combined effect of ss 7(1), 20(2)(4), 33 and 35 of the Fencing Act.
3. [3]
   The applicant claims that the fencing order was made per incuriam, that is, inconsistent with other legislative provisions and based on wrong facts. His stance can be summed up as being that, on a proper construction, a stand of trees already lining the common boundary is capable of meeting the statutory description of a “sufficient dividing fence” and that construction of any other fencing structure is not only unreasonable but at odds with clearance codes under the Vegetation Management Act 1999 (Qld) (VMA) and the Water Act 2000 (Qld) (WA).
4. [4]
   The respondents contend that even conceding an existing dividing fence of trees it is not a sufficient one within the statutory description because it does not provide adequate privacy in a residential setting and the applicant’s animals move freely between the neighbouring properties.
5. [5]
   The tribunal viewed photographic evidence, including a video of the disputed fence line, heard submissions from the respondents (in person) and the applicant’s solicitor before concluding at 1-13:45 “it’s clearly not a suitable fence” and ordering that a new fence be constructed on the common boundary after clearance of existing vegetation in accordance with a quote dated 13 June 2017 in the amount of $5,005.00 ($2,502.50 split equally between the parties). The issue is whether the fencing order is affected by vitiating legal error.

The Fencing Act

6. [6]
   QCAT generally has jurisdiction to hear and decide dividing fence disputes^[1] the parties cannot resolve including by making discretionary orders for fencing work to be carried out.
7. [7]
   A fence is a structure, hedge or other vegetative barrier enclosing or bounding land along (at least part of) the boundary separating the land of adjoining owners and includes a natural or artificial watercourse.^[2]
8. [8]
   A dividing fence means a fence on the common boundary of adjoining land, or, if it is impracticable to construct a fence entirely on the common boundary because of natural physical features,^[3] another line.
9. [9]
   It is open to the tribunal to find that a fence including a hedge or other vegetative barrier has been, or could reasonably be, used as a dividing fence for all or part of the boundary of the adjoining lands or that none is needed.^[4]
10. [10]
    A sufficient dividing fence for adjoining parcels of residential land is one between a minimum of 0.5m and a maximum of 1.8m in height consisting substantially of prescribed material.
11. [11]
    In deciding an application about whether a dividing fence is a sufficient dividing fence or not QCAT may consider all the circumstances of the application as well as those specifically mentioned in s 36 of the Fencing Act including:

    1. (a)
       any existing or previously existing dividing fence;
    2. (b)
       the use of the adjoining parcels;
    3. (c)
       the kind of dividing fence normally used in the area;
    4. (d)
       whether the dividing fence is capable of being maintained;
    5. (e)
       any local laws or policy in relation to dividing fences by a local government for the area;
    6. (f)
       any fencing requirement in a development approval for the land of either adjoining owner;
    7. (g)
       any written agreement between the parties.
12. [12]
    Adjoining owners are liable to contribute to carrying out fencing work authorised by QCAT orders.^[5]
13. [13]
    Fencing work relevantly means construction or replacement on the common boundary line, except to the extent it is impracticable to do so because of physical features, or maintenance including trimming, lopping or removal of the whole or part of a “hedge or similar vegetative barrier” and the alteration (by agreement or order^[6]) of a watercourse that serves as the dividing fence and obtaining approvals for fencing work.^[7]
14. [14]
    The Fencing Act specifically preserves the operation of other laws so that fencing work orders are subject to any restrictions, prohibitions or approvals required under them.^[8]
15. [15]
    The tribunal did not consider the potential operation of the VMA or WA because it was not raised as an issue by the parties.
16. [16]
    Neither the VMA nor the WA specifically mention fencing work orders or directly impose any conditions on making them or their terms. They merely give expression to policies and practices aimed at conserving protected vegetation and ensuring wetland and watercourse bank stability.
17. [17]
    Based on the details in a departmental map of the property obtained subsequently, the applicant now claims that the southern portion of the respondent’s lot is mapped as a “wetland” with a “watercourse” bisecting the lot and asserts the tribunal:

• gave insufficient weight to the suitability and sufficiency of the existing tree line dividing fence and the other boundaries of the respondent’s lot which are unfenced except for vegetation;
• acted ultra vires in ordering the clearing of vegetation in a wetland area;
• made a fencing work order that conflicts with these code practices because it did not consider the clearing codes regulating clearing for necessary property infrastructure and the practice relating to watercourse protection;
• failed to consider the operation of the VMA and WA as part of the requirement to adequately take into account all material discretionary factors before making a fencing order amounting to constructive failure to exercise jurisdiction;^[9]
• could not have been satisfied that the requirements of the WA “would be met” and the fencing work would not destabilise the bed or banks of the watercourse;
• ordered construction of a new fence on the common boundary without investigating the extent to which natural features made it impracticable to do so.^[10]

18. [18]
    The respondents assert in reply that:

• any failure on their part to inform the tribunal about the applicable clearing code or demonstrate that the fencing work order would not destabilise the bank is immaterial because there was no obligation to disclose information that either does not apply (destabilising the banks) or is not directly relevant (self-assessable clearing codes) to the orders;
• the tribunal adequately considered all the relevant s 36 factors at the hearing including a map correctly showing the type of fences in the area and it is irrelevant that the respondent’s other boundaries are not fenced as there is no requirement for the respondent to fence all boundaries;
• not considering the VMA or WA has not resulted in a substantial injustice to the applicant because the only restriction on the order is their future adherence to self-assessable practices;
• while the boundary is flooded at times it is not to the extent that construction or maintenance of the fence would be prevented and there is no benefit in ordering that the fence be constructed other than on the common boundary.

19. [19]
    Disputing parties are usually bound by how they initially presented and conducted their case in the tribunal and appeals are not generally the occasion for making a second, different case for the determination of an issue not initially raised^[11] especially on new evidence but fresh points are sometimes entertained in the interests of justice even in the adversarial based court system where no disputed issue of fact is involved and the opposing party is not prejudiced by, for example, the loss of the chance to answer it by calling additional evidence.^[12]
20. [20]
    As a so called “people’s court” the tribunal’s procedures for conducting proceedings are at its discretion and, except to the extent it elects to adopt them, it is expressly freed from the limitations imposed by any rules, practices or procedures applying to courts.^[13]
21. [21]
    Implicit in its resolution role is the obligation to explain to unsuccessful parties, especially legally unrepresented ones, why they lost the case so that they are not left in doubt or with a justified sense of grievance.
22. [22]
    Moreover, the tribunal has broad self-informing functions to (a) ensure, so far as is practicable, that all relevant material is disclosed to it to enable minor civil disputes to be decided on all relevant facts^[14] and (b) making orders that it considers “fair and equitable”.^[15]
23. [23]
    It is expedient and appropriate, therefore, to consider the grounds concerned with the meaning of statutory phrases and whether the status quo should prevail because the line of trees on the boundary matches the description of an existing “sufficient dividing fence” and whether the tribunal failed to adequately consider the practicality of carrying out the fencing work it ordered along the common boundary due to natural features including regulated vegetation, a watercourse and flooding.

The clearing codes

24. [24]
    The vegetation management mapping shows the southern portion of the respondent’s land has category B areas containing regulation remnant vegetation containing “of concern” status regional ecosystems (Eucalyptus and Melaleuca). The remainder of the lot is category X.
25. [25]
    The current vegetation management framework under the VMA regulates the clearing of native vegetation within category B areas (remnant vegetation) on freehold land. Fencing work must be carried out under the self-assessable Accepted Development Vegetation Clearing Code (ADVCC) for managing necessary property infrastructure including boundary fences.
26. [26]
    Regulated vegetation management maps show vegetation categories. Clearing regulated vegetation for property infrastructure can only be undertaken on category B areas if any category X area is unsuitable for the proposed infrastructure, is essential for property management, is limited to what is reasonably required and any approval under other legislation has been obtained.
27. [27]
    Supporting departmental property maps provide details of regional ecosystems, wetlands, watercourses and drainage features. Watercourses are natural rivers, creeks or channels represented on a vegetation management water watercourse map. Wetland is an area of the land supporting plants adapted to and dependent on living in wet conditions for a least part of their cycle.
28. [28]
    A “watercourse” does not include a “drainage feature”.^[16] A “drainage feature” is formed by the concentration of overland flow water during or immediately after rainfall events, flowing for only a short duration, regardless of the frequency of rainfall.^[17]
29. [29]
    The VMA status of the regional ecosystem (whether it is endangered, of concern or least concern) determines if clearing work is exempt or subject to notification and compliance with self-assessable clearing codes. Clearing in category X areas is exempt from the VMA.
30. [30]
    To avoid destabilisation and retard soil erosion^[18] clearing “of a wetland or watercourse” must accord with the necessary approvals under the WA and, except for crossings, not be within 10m of “defining banks” which confine seasonal flows but may become inundated by flooding from time to time.
31. [31]
    Thus, clearing activities near watercourses and in wetlands areas may require approval under the WA even when vegetation clearing is authorised or exempt under the VMA.
32. [32]
    A property owner operating under an ADVCC must notify the Department of Natural Resources and Mines (by email) beforehand and comply with all of the clearing practices in the code.

The grounds

33. [33]
    Appeals are for correcting legal, factual, mixed and discretionary errors that matter; that is, have legal significance.^[19]
34. [34]
    It is an error of law and constructive jurisdictional failure for a tribunal not to genuinely or adequately consider mandatory or other relevant criteria governing a statutory discretion conferred on it.
35. [35]
    If, by contrast, the tribunal could (as distinct from should) have had regard to circumstances in deciding whether to order fencing work or not but within its discretion chose to ignore or not accord them any weight the appeal fails.^[20] It will also be disallowed if due consideration of all proper matters would have inevitably produced the same result.  
36. [36]
    The subject matter, scope and purpose of the Fencing Act compelled the tribunal to consider any relevant legal implication or practical impact of the VMA and WA even though it was not specifically raised as a relevant factor in the proceeding but it does not follow the tribunal misstepped in not doing so, where the only restriction on the implementation of the fencing order is adherence to self-assessable clearing codes for ensuring the stability of banks of watercourses, compliance with WA approvals and prior notice to DNRM.
37. [37]
    Whether the line of trees already on the common boundary between the parties’ land meets the statutory definition of a “sufficient dividing fence” or not is described as a question of law even though it depends on contestable inferences and judgments about its status as a “barrier”, use as a dividing fence and overall sufficiency. All of these are legally capable of being reasonably decided differently without error.^[21] The range of reasonable possibilities included that there was no existing dividing fence or the trees were a structure capable of being used as one but it was not a sufficient dividing fence.
38. [38]
    The tribunal’s reasons were scant but adequate enough to make it plain that whether it was a dividing fence within the Fencing Act the existing tree line is not “sufficient” having regard to s 36 and should be cleared to make way for the construction of one that was as s 7(1) requires.
39. [39]
    Neither of these conclusions are vitiated by failure to consider the VMA or WA because there has been no reason identified by the applicant why the common boundary cannot be prepared (by removal of the vegetation) for the replacement fencing work in a way that complies with a requirement under the VMA and WA.
40. [40]
    Even assuming that the tree line along the common boundary fell within the statutory description of  “other vegetative barrier” maintainable by trimming, lopping or pruning and that natural features (e.g. watercourses or flooding) make construction of a fence of other prescribed material difficult does not mean that the fencing order is assailable. The tribunal was entitled to reject the applicant’s objections and without making any error in need of correcting on appeal conclude that the existing dividing fence was not sufficient for residential purposes and that, in all the circumstances, carrying out the ordered fencing work along the common boundary was not impracticable.
41. [41]
    The applicant has fallen short in his bid to demonstrate invalidating incompatibility between the fencing order and the VMA or WA or that the requirements of both cannot be fully complied with.