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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
McFarland v Bartholomaeus & Anor  QCATA 42
ORIGINATING APPLICATION NO/S:
9 January 2020
On the papers
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – where the respondents commenced minor civil dispute proceedings in respect of a dividing fence – where the parties agreed to waive the statutory requirement for a fencing notice prior to commencing proceedings – where Justices of the Peace determined that the existing fence should be replaced – where the reasons for the decision that the existing fence should be replaced were not explained – where the parties sought to rely upon fresh evidence at the appeal
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 13(1)(i), s 31, s 36
Pickering v McArthur  QCA 294
Smart State Vehicle Rental Pty Ltd v Tri Asset Protection Systems Pty Ltd  QCATA 16
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- The respondents own a rural residential property at Tinbeerwah. The appellant owns the adjacent property.
- The respondents filed a minor civil dispute – dividing fences application in the tribunal seeking an order that 100 metres of the existing steel picket and dog wire fence in place between the properties ranging from knee high to waist high be replaced with a 1.8 metre timber paling fence.
- The respondents sought the timber fence to screen out noise from the neighbouring property upon which the appellant ran a small café business and to block the view of the neighbouring yard and to stop the appellant’s chickens coming onto their land.
- The matter was heard by Justices of the Peace at Brisbane on 13 March 2019.
- The respondents had not served the appellant with a Notice to Contribute for Fencing Work as required by s 31 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’) prior to instituting proceedings.
- The parties said at hearing they waived the requirement for that notice. At the conclusion of the hearing the Justices of the Peace ordered the paling fence be constructed as sought by the respondents and the parties share the cost, which meant the respondent had to pay $4,000 towards a new fence. The Justices of the Peace found the appellant was running a commercial enterprise next door to an ‘urban environment’ and the fence in its present form was not sufficient.
- The appellant wants to appeal that decision.
- With her application for leave to appeal or appeal the appellant attached an acoustics report she had obtained when addressing an earlier complaint made by the respondents to the local council about the café run by the appellant on her land.
- The appellant filed submissions about the application for leave to appeal on 24 May 2019 and added further material that had not been presented at the hearing.
- The respondents responded in turn to that material with their own extra material not presented to the Justices of the Peace at the hearing.
- In July 2019 the appellant belatedly filed an application to adduce fresh evidence.
- None of the additional material filed by either party passes the test for fresh evidence which is that the material could not, by reasonable diligence, have been obtained for the original hearing, is credible and might have produced the opposite result.
- It consisted principally of more photographs of the existing fence and depictions of the state of the appellant’s property and council documentation concerning the small café business conducted by the appellant on her land. All of the material could easily have been available for the original hearing. None of the material does more than reiterate the position of the parties and attempt to bolster by volume evidence already adduced at the original hearing.
- Application for leave to adduce fresh evidence is therefore refused.
Application for leave to appeal
- The application for leave to appeal and appeal is appropriately to be decided on the material presented at the hearing below.
- Given this is an appeal from a decision made in the tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal can proceed.
- Leave to appeal will only be granted on limited grounds such as where an appeal is necessary to correct a substantial injustice to the appellant and there is a reasonable argument that there is an error to be corrected. There are sometimes other relevant considerations, but these are the essential ones.
- The appellant says the decision by the Justices of the Peace failed to take into account that the properties are zoned rural-residential and the 1.8m timber fence was neither necessary nor standard for the area.
- In her submissions filed 27 May 2019 she also complains and thereby raises another ground of appeal that the Justices of the Peace failed to decide or make a finding as to the usual standard of fencing in the area and give reasons why the existing fence was not a sufficient dividing fence.
- The reasons for decision are short and succinct:
Francis JP: … We’re talking here about a dividing fence between two properties. Now, the legislation is quite clear about this. Section 72 says that if one party wants a dividing fence, it has to serve the other party and ask them to contribute to the fence. In this case, we’ve waived that requirement to actually put in a form. So that’s okay. We’ve then come to the state of whether this is a sufficient fence. Section 13 of the Act requires us to consider whether it’s a sufficient fence.
Now, we’re also relying on section 36B of the Act. We’ve gotten into the Act this afternoon quite severely and it says that whether a fence is a sufficient fence depends on what the usage is of both properties. In this case, we’ve got a commercial enterprise next door to an urban environment and we feel that the fence in its present form isn’t sufficient. So we’re going to accept the applicant’s proposal to build 100 metres of wooden fence and we’re going to ask the respondent to pay $4000 14 days after that fence is completed. So you’ll get the order in the post. That’s our decision this afternoon. Thank you very much.
- The minor civil dispute jurisdiction is challenging and difficult. Oral reasons for decision are expected to be given at the conclusion of the hearing of each matter. The time allocated to each matter is short and the time allowed for legal deliberation scant. Regardless of that and within the scope of the objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) which calls for the tribunal to deal with matters in a way that is accessible, fair, just, economical and quick, the law is still expected to be applied. The conundrum of getting that mix right surfaces most evidently in the course of appeals from minor civil dispute matters.
- Here, as submitted by the appellant, the Justices of the Peace failed to explain why they determined the fence was insufficient. There was no dispute that there was an existing fence. It was made of steel pickets and dog wire in part and hedges in other parts. Both such items of construction are ‘prescribed material’ under the Act.
- By s 36 of the Act the purposes for which the two parcels of land are used may be considered, as was noted by the Justices of the Peace. Section 36 also states however that the kind of dividing fence normally used in the area may also be considered. By s 13(1)(i) of the Act, a fence 0.5 metres in height may be a sufficient dividing fence.
- The appellant submitted at the hearing below that the existing wire fence and hedging was a sufficient dividing fence. She claimed the hedging and wire fencing was more the standard in the rural-residential area the parties lived in than the 1.8m timber fence sought by the respondents.
- The reasons for decision failed to consider her submissions about the existing fence being a sufficient dividing fence in the circumstances prevailing at the properties.
- Further, it may have been an accident in speech however the Justices of the Peace identified the land use as one of urban adjacent to commercial. That was not correct. None of the land is for urban use. The only land use referred to was commercial on part of the appellant’s land but generally both properties were rural-residential. Dog wire is a very common material used for fences in rural residential areas. It is not so commonly used in urban areas.
- In so far as the Justices of the Peace failed to give reasons why the existing dividing fence was not a sufficient dividing fence, they fell into legal error.
- In so far as it may be the case they erroneously assessed the existing dividing fence as being insufficient because the land was zoned for urban use rather than taking into account the setting was rural-residential, they made an error of mixed fact and law.
- Leave to appeal must be given the appellant.
- Given one of the errors made was an error of mixed fact and law, I proceed to determine the appeal by way rehearing.
- The Act sets out precursor mandatory steps to be taken by a party to a fencing dispute before the party is entitled to come to the tribunal seeking relief under the statute.
- The notice of fencing required to be given by one neighbour to the other by s 31 of the Act is mandatory. Without the notice being given as required the tribunal has no jurisdiction to determine a dispute about a sufficient dividing fence.
- No s 31 notice to contribute to a dividing fence was given by the respondents to the appellant here. The parties purported to waive the requirement. That was not possible unless they also agreed between themselves about the fencing work to be done, which of course they did not. The tribunal is unable to determine any issues in dispute about a sufficient dividing fence in the absence of a s 31 notice being given in the approved form. The respondents’ application was beyond jurisdiction and must therefore be dismissed.
- I might add for the benefit of the respondents, if they still desire to erect 100 metres of timber fence 1.8m high, at their cost, and the appellant consents, that can be done. If the appellant does not, and they wish to proceed to the tribunal to have their contention that the existing dividing fence is not sufficient and a 1.8m timber fence is standard in their area and appropriate in their circumstances, then they must comply with the Act and serve a notice to fence under s 31 before coming to the tribunal.
- Published Case Name:
Margaret McFarland v Kaye Bartholomaeus & Anor
- Shortened Case Name:
McFarland v Bartholomaeus
 QCATA 42
09 Jan 2020