Grande v Cregan

[2014] QCAT 526

;

CITATION: Grande v Cregan [2014] QCAT 526

PARTIES:	Antonino Grande (Applicant)
v
Peter Cregan (Respondent)

APPLICATION NUMBER: MCDO1740-14

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: 10 September 2014

HEARD AT: Brisbane

DECISION OF: Dr Collier, Justice of the Peace (Presiding)
Mr Schmidt, Justice of the Peace

DELIVERED ON: 24 October 2014

DELIVERED AT: Brisbane

ORDERS MADE: The Application is dismissed.

CATCHWORDS: Minor Civil Dispute - Fencing dispute – dispute as to alignment of dividing fence – cadastral survey – incursion of existing fence line into neighbouring property – implications for other contiguous properties
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld); ability to resolve significantly misaligned dividing fences
Queensland Civil and Administrative Tribunal Act 2009 (Qld); meaning of minor civil dispute

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Antonino Grande

RESPONDENT: Peter Cregan

This matter was heard and determined pursuant to s 10 and Part 4B of Chapter 4 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Substance of the Dispute

1. This matter concerns a dividing fence in the suburb of Lutwyche between 2 Yarraman Street and 115 Fuller Street. Lutwyche is an older inner suburb of Brisbane.

2. The present fence comprises little more than star pickets and reinforcement mesh. It does not constitute a sufficient fence for the purposes of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).

3. In addition, the Applicant has a young child who would be better protected by an adequate fence.

4. By a Notice to Contribute for Fencing Work (Form 2) dated 29 July 2014 the Applicant gave notice to the Respondent concerning a proposal to build a sufficient fence. In this notice the Applicant proposed that he pay 100% of the $2,200.00 cost involved.

5. By a further Notice to Contribute for Urgent Fencing (Form 1) also dated 29 July 2014 the Applicant gave notice to the Respondent in the same terms set out in the Form 2 notice.

6. As no agreement could be reached between the parties the Applicant filed in QCAT an Application for minor civil dispute–dividing fences on 7 August 2014 seeking orders that the fencing work be done, and about the line on which the fencing work is to be done, and when the fencing work is to be done.

7. In his Response and/or counter-application dated 5 September 2014 the Respondent makes two relevant statement, namely:

   a)“I agree with the applicant that we need an order about the line on which the fencing work is to be carried out. However, the correct boundary line goes through part of the applicant’s house and his house encroaches on my land.” [emphasis added]

   b)“the applicant wants to erect a fence on my land being on a line which is roughly a metre in from the correct boundary line. I have had my solicitor write to the applicant outlining that I would not be prepared to agree to any new dividing fence until the issue of encroachment has be resolved between us.”

8. In support of his contention that the present boundary fence (and, presumably, its predecessor fences) is not located on the proper boundary the Respondent filed with his Response and/or counterclaim a letter dated 13 May 2010 from Landmark Consulting, in which Landmark Consulting notes that, as a result of its cadastral survey, the location of the existing fence line is not along the correct boundary between the properties.

9. The cadastral survey disclosed that the proper alignment of the fence is located approximately 1 metre to the West of the present fence alignment. That is, the present fence alignment encroaches onto the Respondent’s property. The proper fence alignment appears to cross by a small margin the Applicant’s house.

10. More than that, the cadastral survey indicated that as many as five other properties (being two on Fuller street and three on Yarraman street) may be affected by misaligned fences; that is, each of these properties may have existing fences that are not aligned with the correct property boundaries.

Conclusions

1. While the Tribunal may make an order in respect of a dividing fence in this case, to do so would be to ignore the potential follow-on implications of what appears to be misaligned boundary fences involving several properties and defer the resolution of a problem that should be resolved.

2. The real property rights of the parties to this application, and potentially the real property rights of other persons, could be affected by any decision or purported decision of the Tribunal in this matter. Therefore we conclude that this application raises issues that do not constitute a minor civil dispute within the meaning of that term in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and are beyond the power of this Tribunal to resolve.

3. In addition, the Tribunal concludes that justice requires that it should not make any orders to resolve the issues raised by this application. Any such orders are properly within the province of the Supreme Court.

Decision

1. The Application is dismissed.