Byers v Plozza & Anor [2026] QCATA 50

[3] The first-named Respondent is a company director of Brick Construction Pty Ltd, the second-named Respondent in these appeal proceedings ("Brick Construction").

[4] At all relevant times Brick Construction were engaged in a unit development project at 8-12 Anstey Street at Albion. This property adjoins Mr Byers' property at 48 Frodsham Street.

[5] Mr Byers complains that the Respondents have unilaterally demolished the existing boundary fence, thereafter erecting a new boundary fence and retaining wall, which now encroach onto his property.

[6] On 28 June 2024 Mr Byers commenced an Application for minor civil dispute - dividing fences against Brick Construction (as well as another Respondent), complaining that the existing chain-wire boundary fence "was demolished and removed without due process" contrary to sections 39, 40, and 41 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).

[7] A cadastral survey accompanying Mr Byers' application to the Tribunal confirms that a newly constructed concrete wall (with a new fence built on top of it) encroaches onto 48 Frodsham Street, by between 19 and 21 centimetres, along the entire common boundary. By that Application, Mr Byers sought orders from the Tribunal requiring the Respondents to remove, and then re-instate the fence and wall, on the common boundary.

[8] The matter came on before Adjudicator Eardley, on 30 September 2025.

[9] The learned Adjudicator accepted the cadastral survey evidence in a survey report prepared by Messrs Simpson Rayner Surveys, as had been submitted to the Tribunal by Mr Byers; yet also heard and accepted evidence from the Respondent that the concrete "retaining wall" beneath the new fence reaches down to a depth of 9-10 metres, and is merely the exposed, above-ground aspect of what are now two levels of newly constructed subterranean parking, beneath the development at 8-12 Anstey Street. The learned Adjudicator observed, obiter dicta, that the removal of such a structure would be a significant and costly undertaking, and ultimately, may not even be practical.

[10] Although accepting the fact of the encroachment on Mr Byers' land, the learned Adjudicator determined that the cause for Mr Byers' complaint was far beyond the limited and quite specific jurisdiction of the Tribunal, as conferred pursuant to the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld); also noting that the matter really needed to be dealt with by the courts, pursuant to section 185 of the Property Law Act 2023 (Qld). In that light, Mr Byers' application to the Tribunal was dismissed (the "original decision").

[11] On 28 October 2025 Mr Byers lodged an Application for leave to appeal or appeal against the original decision.

[12] Pursuant to section 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the right to appeal against the original decision is not automatic, and the Applicant must first obtain leave from the Appeal Tribunal.

[13] As a matter of longstanding policy, leave to appeal will not be granted lightly. There must be some clear legal error or some question of general importance now warranting further intervention by the Appeal Tribunal, before leave will be granted. To this end, in Saxer v Hume, Judicial Member D J McGill SC had observed:

... As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.[1]

[14] In determining whether to grant leave to appeal, the Appeal Tribunal must be satisfied that:

(a) There is a reasonably arguable case of error in the original decision;[2]

(b) There is a reasonable prospect that the Appellant will obtain substantive relief;[3] and

(c) Leave is required in order to correct a substantial injustice;[4] or

(d) There is some question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.[5]

[15] Mr Byers has filed lengthy written submissions in the Appeal Tribunal, in support of his request for a grant of leave. Although it is therein claimed that the learned Adjudicator "acted erroneously" and "has seriously erred in law", no specific error has been identified by Mr Byers arising out of the original decision.

[16] The jurisdiction of the Tribunal given pursuant to the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) relates only to dividing fences and, to a limited extent retaining walls, at least insofar as orders from the Tribunal about a retaining wall are assessed to be "necessary" to carry out associated fencing works.[6] Mr Byers seeks far more than that, and is ultimately seeking orders in relation to a permanent structural encroachment. This is beyond the contemplation of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). The Tribunal does not have jurisdiction in relation to encroachments of the magnitude revealed in this case.

[17] No legal error can be identified in the reasons given by Adjudicator Eardley in the original decision. If leave were to be granted to allow the appeal to be argued, there is no realistic prospect that the appeal could ever succeed. The absence of any jurisdiction in the Tribunal is an obstacle that cannot be ignored.

[18] There is no question of general importance that needs to be re-agitated, referable to the original decision that the Tribunal lacks the jurisdiction to grant the relief that Mr Byers now seeks from the Tribunal.

[19] The Application for leave to appeal is refused.

[1] [2022] QCATA 25, [2].

[2] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.

[3] Cachia v Grech [2009] NSWCA 232, [13].

[4] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.

[5] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 580.

[6] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 35(1)(f).