Hunt v OJ Pippin Homes Pty Ltd [2025] QCAT 577

[1] By application filed 9 May 2024 Simon Hunt ('Mr Hunt') sought with respect to construction works carried out at 15 Disney Street, Stafford Heights ('the site') by OJ Pippin Homes Pty Ltd ('Pippin') pursuant to a HIA New Home Construction Contract ('the contract') dated 17 October 2022 the following:

(a) OJ Pippin to remove existing section of fence and build the fence as originally specified in the signed markup plans (and requested in further discussions).

(b) Pippin to find a solution for retaining which was added as part of the fence and which should have been considered when surveying the height of the exterior slab.

(c) If a solution cannot be found Pippin should compensate both him and latterly Miriam Hunt for the cost of removal of the existing fence and the cost of a new fence to be made to the original design.

(d) The cost of the application.

[2] Simon Hunt and Miriam Hunt ('the Hunts') stated that in February 2022 Pippin was engaged with a view to constructing a new house at the site which would include fences in nominated areas around the property boundary. That would include replacing a chain link wire fence on the common boundary with 11 Disney Street next door which was a rental property allowing for onsite dogs. On 4 July 2022 they enquired of Hicks Real Estate Everton Park, the managing agent for 11 Disney Street as to whether the owner was amenable to replacement of the existing chain link wire fence and if so, would the owner be agreeable to paying half the cost.

[3] On 19 September 2022 in a follow up the Hunts sought an owner response at the same time attaching a diagram of what they intended to replace which was "the entire side fence between our boundaries from the back corner up to their gate corner". On 26 September 2022 the estate agent replied quoting the owners reply to him which stated, "This isn't something that we can support at this time, particularly noting that there were/is no problems with the existing fence" followed by an addendum which stated, "I don't mind if they replace the fence if the tenants agree and the dog's costs are looked after".

[4] Prior on the 17 September 2022 Pippin had emailed the Hunts seeking clarification of their plans for a boundary fence and at the same time enclosing a copy of the site plan depicting the proposed boundary fence as being "allowed all the way to the front boundary (garage side), is that what you want still".

[5] On 19 September 2022 the Hunts replied "Lets go with just aiming to replace the entire existing side fence, which I think is somewhere just under 30 metres in total. This is so we don't cause problems undercutting up to their existing gate line. Shown in orange on my attached pic. So yes, this plan will need to be amended to remove the reference to the fence on top of that tiny timber retaining wall. I have emailed the rental agent again to get a response". The orange on the attached pic was the orange line on the site plan and referred to as the marked-up screen shot. The parties entered into the building contract on 17 October 2022. It included the fence as originally proposed. On 23 October 2022 Pippin emailed a post contract variation list which stated, amongst other things, it would "provide builders standard fencing as per plan markup". It went on to state "clients are responsible for removing and disposing of the existing fence as stated on the drawings". It was signed by the Hunts. On 30 October 2022 the Hunts received a marked-up version of the contract plans depicting the agreed fence location in orange on the plan (along the boundary line to a return at the point of the neighbours existing fence). On 1 November 2022 the Hunts signed and returned the post contract variation document and the marked-up plans. Fence construction commenced on 27 April 2023.

[6] On 31 July 2023 the Hunts visually observed that the fence then constructed was not in accord with the marked-up plans because it was not on the boundary line, was instead mounted on the retaining wall on their property and did not meet the neighbour's fence post (front) as agreed meaning their property was no longer enclosed. Additionally, a row of 200-millimetre sleepers totalling 7.1 metres, held in place by three fence posts and one extra support fixed to the wall had also been added on top of the existing retaining wall to retain what appeared to be an unaccounted difference in height between the outdoor slab and the wall.

[7] On 4 August 2023 the Hunts complained that the fence was incorrectly located and sent Pippin a copy of the relevant portion of the marked-up contract plan. On 8 August 2023 Pippin indicated it believed the fence was on the boundary line and that it provided for better privacy being installed on the retaining wall. A site visit was arranged. The Hunts produced photos[1] depicting the position of the old chain-link wire fence to indicate the correct boundary line; that they had asked for the (new) fence to be a direct replacement of the old chain link wire fence. The fence line was deliberately kept separate from the retaining wall on the plan such that it would run in a straight line from the tree (at the property rear) to the neighbour's corner post (at the front) as agreed. They considered Pippin had unilaterally altered the plan. From the rear the fence as constructed veered toward and then along the retaining wall finishing at a point towards the front of the property but well inside the boundary line which was according to the plans 500 millimetres from the side of the garage wall situated toward the front of the property.[2]

[8] Pippin's construction supervisor Calvin indicated there may be regulatory issues in putting the fence on ground level so close to the retaining wall.[3] After some measuring of the distance from the retaining wall to the common boundary Calvin indicated a solution where the fence posts being on the Hunts' side of the of the common boundary and the rails and palings being on the neighbour's side as being acceptable if the Hunts agreed to the fence facing the other way. The Hunts indicated they did not mind which way the fence faced provided it met the requirements of the post contract variation plan with the fence on the common boundary and ending at the neighbour's corner post (front).

[9] Calvin expressed concerns about permission to build on the boundary line. The Hunts indicated they had already received written permission from the neighbour/owner via the estate agent pointing out that such permission had not been required for any other of the fences which had been constructed to directly replace old fences.

[10] According to the Hunts Calvin stated any points of the wall at 1 metre or more would require fall protection. Any fence would need to act as a balustrade but at 1.8 metres high it would not be enough from ground level to suit a 1-metre-high wall. But the Hunts stated the original retaining wall only reached 1 metre at the very end of the sleepers Pippin had added. That end sleeper could be shortened (because in part it was not retaining anything) to ensure the retaining wall did not exceed 1 metre thus avoiding the necessity for the fence to act as a balustrade for the retaining wall. As the fence was not constructed on the common boundary another solution would have to be found. On 9 October 2023 Calvin because of his replacement by Greg Neiht as construction supervisor stated in an email to the Hunts "Your request has been passed on and will be adjusted'.

[11] At a site meeting on 3 November 2023, it was indicated by Greg Neiht that Calvin was looking into the fence independently but would have expected that details would have been passed onto the fencer to be included in the finalised works. On 13 November 2023 the Hunts were provided with an invoice for all new fence construction at the site. At a site meeting on 7 December 2023 with Greg Neiht and Robert Pecorelli, construction manager Robert Pecorelli stated that what had been done (attaching the fence to the retaining wall) was what they normally did in similar circumstances. But the fence was not on the common boundary and did not comply with post contract variation plans. The quality control checklist undertaken in the weeks prior to handover stated, "fence to be investigated further".

[12] On 19 December 2023 at handover the Hunts brought to Greg Neiht's attention that an area of soil at the fence/retaining wall has already started to erode under the adjacent slab. They were informed that Greg Neiht acknowledged that issue but said it could not be addressed until the fence replacement was finished. The Hunts signed the handover report. After handover no one from Pippin or any other entity had arranged to accurately assess the fence. On 2 February 2024 upon enquiry Pippin in an email stated, "We have followed up the fencer. Still waiting on the quote for the fence". Consequent on further enquiry on 18 March 2024 Pippin replied by email on 25 March 2024 stating, "I have let the construction manager Robert know that you are waiting on an answer regarding the fence".

[13] On 25 March 2024 Pippin emailed the Hunts stating "Wade Hastie, managing director, has assessed your request to remove the existing fence, reinstate the fence in a different position, which will require additional retaining works. Wade has denied this request and is satisfied that the works completed meet all industry standards".

[14] In its response filed 30 May 2024 Pippin stated it had installed fencing works on top of the existing retaining wall for two reasons. Firstly, the preferred fencing location could not be achieved due to the existing retaining wall being over 1000 millimetres high in locations, meaning that a minimum of 1000 millimetres balustrading was required under National Construction Code ('NCC') 2019 BCA Volume Two Part 3.9.2.2(a). This would have required fencing in the neighbour property to be over 2000 millimetres high and would have required a Siting Application and Approval through Council.

[15] Secondly the fencing could not be installed on the shared boundary line due to the location of the existing retaining wall. The existing retaining wall's proximity to the boundary line meant that Pippin was unable to dig pier holes and install fence posts on the common boundary line. The Hunts did not provide any signed neighbour consents allowing the fencing works to be wholly inside their neighbour's property and Pippin had no jurisdiction in neighbour disputes and cannot install fencing inside a neighbour's boundary without signed neighbour consent forms. Pippin had abided by Council regulations and the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ('NDR Act') for installation of the fencing.

[16] In their submission filed 2 July 2024 the Hunts reiterated the fence had not been constructed in accordance with the post contract variation document and plans; that it did not sit on the common boundary; that the fence as constructed did not fully enclose the neighbour's property a key requirement for the fence's final construction from the outset; that the fence as constructed fell 3.85 metres short of the post contract variation extended fence; that Pippin was made aware of issues with the fence months before handover; and that there was no notification of change of positioning of the fence or alternative. They said measurements they took indicated a clearance of at least 235[4] millimetres between the retaining wall and the common boundary sufficient for post footings of between 200 and 250 millimetres in diameter. Nor did the existing retaining wall exceed 900 millimetres at any point except at one point where the wall reached 1 metre as a result of an additional sleeper added by Pippin.

[17] Nor was NCC 2019 Volume Two Part 3.9.2.2(a) applicable because that code provision contained an exception which stipulated that a fall barrier was not required for retaining walls of 1 metre or more unless it formed part of a delineated path of access. The singular point where the retaining wall reached 1 metre was not part of a delineated path of access but was adjacent to a garden bed.

[18] In material placed before the Tribunal Pippin reiterated its argument about the necessity for balustrading and inability to dig pier holes and install fence posts on the common boundary.

[19] It was asserted that the Hunts "did not provide any signed neighbour consents allowing fencing works to be whole inside their neighbour's property and the respondent has no jurisdiction in neighbour disputes and cannot install fencing inside a neighbour's boundary without signed neighbour consent form. The respondent has abided by the council regulations and the Dividing Fences Act for installation of this fencing".

[20] In material placed before the Tribunal the Hunts stated that the fence as constructed resulted in a loss of property on their side of the common boundary. Nor did the fence as constructed fully enclose the neighbour's property which was a key requirement for final fence construction. As well the fence as constructed fell 3.85 metres short of the post contract variation to extend the fence as per the marked up and signed plans. Despite Pippin adding a row of timber sleepers to the existing retaining wall to retain fill the final height was insufficient in relation to the adjacent external slab such that the fence palings were being used to retain the fill and the level of fill did not cover the base of the external slab.

[21] At a site meeting on 1 August 2025 Pippin assertedly stated to the effect "at whatever point they were adding the sleeper for the earthworks around the slab, they had to stop at one row of sleepers because otherwise the overall height of the retaining wall would be over 1 metre. Any retaining works over 1 metre would need us to get engineering plans done". But irrespective of arguments about the constructed fence location there was 3.85 metres of fence missing from the variation documents and mark up plan. That provided for the fence to run all the way up to the neighbour's front fence post and that was never done.

[22] The Hunts obtained and produced a quote from Jim's Fencing dated 4 August 2025 for supply and installation of 26 metres of wooden/pine lap/paling fence on the common boundary, 1.8 metres high to the right-hand side of the property, butted palings at a cost of $4,900.00. Removal of the existing constructed fence was quoted at $700.00. Total removal and replacement were $5,600.00. Also produced was a Jim's Fencing quote dated 5 August 2025 for $750.00 for the supply and installation of three extra sleepers to the retaining wall and digging out soil against the fence line.

[23] In further material placed before the Tribunal Pippin stated it installed the newly constructed fence entirely within the Hunts' property on top of the existing retaining wall. Pippin stated the set-out certificate (Axis Surveys)[5] confirmed the dwelling to be 2470 millimetres from the boundary and that site photographs[6] confirmed the edge of the fence posts to be approximately 2440 millimetres from the boundary, a variation of only 30 millimetres from the boundary. It was argued that construction of a boundary fence on top of a boundary retaining wall was consistent with standard and accepted building practice in Queensland provided the retaining wall was located on or adjacent to the common boundary and designed to carry the additional load of the fence.

[24] It was argued that dividing fence legislation allowed for off boundary fencing where placement on the boundary was impracticable due to physical constraints, here the retaining wall. Fence construction on the common boundary would risk trespass without adjoining owner consent.

[25] In response material the Hunts stated that section 35 of the NDR Act was about QCAT powers to make orders for fencing work and not about consent or trespass. Pippin's contractors accessed the neighbour's land in April 2023 to affix posts and palings without giving reasonable notice to the Hunts to pass on the notice at least seven days in advance to the adjoining owner pursuant to section 94 of the NDR Act. Nor did the NDR Act specify written consent as being required for a boundary fence except where requesting contribution or providing notice of intention to enter the land to carry out the relevant work. There was no contribution issue as the Hunts were wholly paying for a new fence.

[26] With respect to the 30-millimetre boundary variation it was submitted Pippin's own photographic measurement[7] showed 265 millimetres from the garage wall to inside of the fence. Pippin's own set-out certificate (site plan)[8] showed 500 millimetres from garage to boundary and photographic measurements confirmed a fence system depth of 153 millimetres. Distance from the garage wall to the far side of the fence was 265 millimetres plus 153 millimetres leaving 82 millimetres (out of 500 millimetres). It was asserted that those calculations disproved Pippin's assumption that fence posts aligned with the boundary. The Hunts disputed Pippin's submission that 300-350-millimetre diameter (post) footings were required. 250-millimetre footings were sufficient. A quote from Affordable Fencing Brisbane Pty Ltd dated 24 July 2025 recording "concrete 250mm dia footings" as part of an overall quote for fence construction at the subject site was produced. A photographic portion of Pippin's as constructed fencing was produced depicting 250-millimetre footings already used.[9]

[27] It was asserted based on removal of the current (chain link wire) fence there was 182 millimetres from the common boundary to the retaining wall sufficient for a fencing system centred on the common boundary.

[28] At hearing Mr Hunt stated that the fence was not built on the common boundary, that it fell short by 3.85 metres of what was agreed in the post contract variation and that non-compliant retaining works caused exposure of the slab beside the fence. Despite confirmation that fence relocation was possible there had over a period of eight months only been delays, deflections and ultimate refusal. The distance between the retaining wall and boundary could be reliably determined by reference to the report of Mr McKay of Residential Building Inspections Queensland where photographically there was 290 millimetres from the garage external wall to the outer edge of the (as constructed) fence rail. Whilst Timber Queensland might recommend 300-millimetre footings the centring of posts on the common boundary meant 150 millimetres between retaining wall and boundary was required. But there was 210 millimetres (remaining) which was more than enough. He said the earth retaining solution constructed at the base of the fence was structurally unsound. The retaining wall was too low to retain fill. The fence palings had been used to retain fill above the retaining wall's low relative height. That led to erosion and exposed the base of the adjacent slab.

[29] Mr Hunt requested the Tribunal to order Pippin to provide remuneration to allow the Hunts to resolve the issues themselves. Specifically, they requested removal of the as constructed fence and construction on the common boundary of the post contract agreed paling fence as well as rectification of fill retention works as per quotes from Jim's Fencing dated 4 August 2025 for $5,600.00 and 5 August 2025 for $750.00 respectively and produced to the Tribunal.

[30] Mr McKay, licensed carpenter and builder, proprietor of Residential Building Inspections Queensland ('RBIQ') inspected the fencing at the site on 29 July 2025. He was asked for his view as to whether there was enough space to build a fence on the common boundary without having to build such fence entirely on the neighbour's property (Pippin had built the fence atop the retaining wall for the reason the retaining wall was too close to allow fence posts to be set on the boundary line). He considered a fence could be built on the common boundary. Mr McKay used a 200-millimetre offset stringline on the existing surveyor's nails to determine the correct location of the boundary line.

[31] He observed that the as constructed fence posts were significantly out of plumb exhibiting a range of deviations in different directions and were misaligned with the boundary line by varying degrees. Of thirteen posts examined (with photos provided) some were out of plumb 100 millimetres away from the common boundary while others were 40 millimetres to 115 millimetres over the boundary line. The location of fence posts relative to the boundary line was found to be inconsistent with some posts being located in the Hunts' property and others in the neighbour's property. But he found the retaining wall was located in the Hunts' property and did not prohibit the fence from being constructed on the boundary line. He recommended that the entire fence be rebuilt directly on the boundary line ensuring that all posts were installed plumb and straight to maintain structural integrity and aligned with property boundaries.

[32] Mr McKay considered fence posts had been improperly attached to the retaining wall resulting in structural instability. Batten screws were broken, some screws placed too closely together resulting in failure to provide sufficient support. Sleepers were attached directly to fence posts rather than the retaining wall.

[33] Fence palings were insufficiently fixed. There was a lack of nails resulting in palings twisting and cupping. He recommended additional nailing to ensure comprehensive support and alignment.

[34] In evidence Mr McKay stated that where the as constructed fence finished and was returned to the garage wall (towards the front of the property) it was at that point out of plumb being wider at the top than at the bottom as depicted in photos of tapered palings. Mr McKay was taken to photos depicting the exterior house slab in relation to the as constructed fence position. A section of the slab was exposed underneath with fill appearing to be up against the as constructed fence palings exerting pressure on those fence palings and leading to deterioration of palings in contact with fill. But Mr McKay could not discern from such photos the extent to which palings were in direct contact with fill. The retaining wall would be expected to retain the fill, but it was a "question of their connection to the retaining wall".

[35] Mr McKay was questioned about tolerances in fence construction, visual amenity, permission to enter the neighbour's property, his historical methodology in getting neighbour consent for fence construction when he was building houses, use of pincer shovels and excavators to dig post holes, the commonsense approach of utilising retaining walls for fence construction, vermin and weed issues in unkept areas (between retaining wall and fence), level of neighbour's consent provided and increase in third party inspections.

[36] In further evidence Mr McKay stated that if he was building the fence with the intention of it being on the common boundary, he would not align the (fence) posts with the posts of the retaining wall because it meant that the footings of both would not be affecting one another. He would offset them so there would be a post for the retaining wall and a post for the fence either north or south of that. Mr McKay confirmed that the fence posts of the as constructed fence were screwed into the side of the retaining wall posts such that the inside of the fence posts were actually up against the horizontal wall sleepers. Rails attached to such fence posts would be in line with the retaining wall.

[37] In evidence Mr Hastie stated that Pippin did not get prior written approval under the NDR Act from the Hunts. Pippin did the best it could to construct the fence inside the property based on not having that consent. Pippin did not construct the fence on the boundary because it was not given permission by the neighbour. Mr Hastie believed the fence was as close as possible to the boundary being 30 millimetres off the inside of the boundary. It was fit for purpose. Building on the boundary with rails and palings on the neighbour's side would have allowed for a vermin and weed issue. A fall potential of higher than one metre issue would have been created.

[38] It was put to Mr Hastie that common boundary fences at the site were all built by Pippin on the common boundaries without neighbour approval. Would that have not prevented those fences from being constructed. Mr Hastie said no because there was no retaining wall impacting those other fences. They were all at ground level.

[39] It was put to Mr Hastie that some of the (as constructed) fence posts, the ones closest to the tree (at the rear of the common boundary) were installed over the common boundary and were not anywhere close to the retaining wall. Mr Hastie could not comment other than to indicate that there were a lot of trees "down the back" and that "fence posts are put where they are". But Pippin would have built fencing "inside the boundary unless it got permission by the neighbour".

[40] Mr Hastie agreed he was aware of the post contract variation plan for fence construction. The post contract variation plan was produced to Mr Hastie. He agreed the mark up plan indicated the fence to be constructed extended beyond the corner of the garage and roughly in line with the neighbour's corner post. But Mr Hastie did not agree that the as constructed fence was 3.85 metres short as indicated on the mark up plan but then acknowledged that the as constructed fence returned to the back of the garage which was, as he put it, common practice for all housing in Brisbane.

[41] It was put to Mr Hastie that there ought to have been notification of changes to the post contract variation plan, but Mr Hastie said he was not aware of what conversations there may have been in that regard. He said the brickwork (garage) had weep holes that needed to be inspected for termite proofing. If covered up with a fence it would not be possible to inspect the weep holes. At least a 600-millimetre clearance would be needed to inspect those weep holes.

[42] Mr Hastie stated a 300-millimetre clearance was required between the retaining wall and the common boundary to install footings. He agreed that required 150 millimetres on either side of the common boundary.

[43] Mr Hastie did not know at which point the retaining wall was assertedly at least one metre high but then added he was not saying the height of the retaining wall was more than a metre but rather the fall potential off it was more than one metre. If a fence was to be constructed on the common boundary it would be 1.8 metres high and could be scaled from the Hunts side with a fall of more than one metre on the neighbour's side.

[44] Mr Hastie was taken to Pippin's quoted NCC legislation volume 2 Part 3.9.2.2(a) referring to fall prevention requirements where there was a drop of one metre or more. It was put to Mr Hastie that Part 3.9.2.2(b) excluded retaining walls. Mr Hastie agreed but stated that was not what the provision meant. Anything with a fall of greater than one metre required a balustrade of at least one metre. It was put to Mr Hastie that the only exception to that retaining wall exclusion was where the retaining wall formed a delineated path either from a road to a building or between buildings. But Mr Hastie did not know what part was being referenced. He agreed the whole of the fence width post, rails and footings was to be taken into account, divided in half with the fence being equally shared over the common boundary.

[45] With respect to footings diameter augers[10] were normally 250-300 millimetres. A shovel and wheelbarrow could be used but machinery was usual.

[46] Mr Hastie was asked if the measurement of 290 millimetres from the garage wall to the outside edge of the as constructed fence rail (the return) depicted in Mr McKay's report was correct. He said there was no tape measure depicted, nothing to show the distance. Mr Hastie was then referred to Pippin's own photographic material that measured the inside of the same return at 260 millimetres.[11] Given that was the case Mr Hastie was asked if he agreed 290 millimetres was probably to the outside edge of the rail (of the as constructed fence). Mr Hastie said he did not know. He was asked would 15 millimetres of palings and 30 millimetres of rail added make 290 millimetres an estimate. Mr Hastie answered "Sure, so yeah, 290, sure". It was put to Mr Hastie that the rails were more or less in line with the retaining wall. Mr Hastie answered "probably".

[47] It was put to Mr Hastie given the photos and measurements he had been shown that it was likely that the rails (at the return) were in line with the retaining wall such that the 290-millimetre measurement in Mr McKay's report also applied to the retaining wall sleepers. But Mr Hastie did not know. It was put to Mr Hastie that to work out where the common boundary actually was it was only necessary to take away the 290-millimetre measurement in Mr McKay's report from the 500 millimetres on the set-out (site) plan. But Mr Hastie did not agree saying there were encumbrances in the way, posts for the sleeper wall being in the way and lack of access to get into the block (neighbours) to build. It was suggested that such had nothing to do with photos and measurements that he had been shown. But Mr Hastie repeated inability to get into the block and lack of consent.

[48] Mr Hastie was shown a photo taken from the neighbour's side showing palings installed to cover a gap underneath a ramp on the Hunts' side of the common boundary. It was suggested that Pippin's fencer would need to have gone onto the neighbour's property to install those palings. Mr Hastie answered, "they probably did, yes". He added he was not sure if they (fencer) spoke to the tenant about accessing it (the neighbour's property) temporarily on that day.

[49] Pippin was the building contractor for the construction of a dwelling for the Hunts at 15 Disney Street, Stafford Heights pursuant to a HIA Building Contract dated 17 October 2022. On 1 November 2022 the Hunts signed a post contract variation agreement which provided for Pippin to provide builders standard fencing as per plan mark up. The marked-up version of the contract plan depicted the agreed fence location on the plan as being along the boundary line to a return at the point of the neighbours existing fence (at the front of the property). The fence line was separate from the retaining wall allowing for the fence to run in a straight line on the common boundary.

[50] Fence construction commenced in April 2023. On 31 July 2023 the Hunts visually observed that the fence had been constructed not on the boundary line but rather mounted on the retaining wall located within the Hunts' property. Nor did it extend to the neighbour's front fence post as agreed being 3.85 metres short. Additionally, a sleeper row totalling 7.1 metres held in place by three fence posts and an extra support fixed to the retaining wall had been added to the existing retaining wall. There was no explanation proffered to the Tribunal as to why the Hunts were never informed of Pippin's changed position for fence construction. The Hunts considered and the Tribunal accepts that Pippin had unilaterally altered the varied plan without informing them.

[51] Initially Pippin indicated that the as constructed fence was on the boundary line and that it afforded better privacy installed on the retaining wall. Whether or not any such fence afforded better privacy was never for Pippin to decide. Nor could it ever constitute a reason to construct any part of the fence within the Hunts' property. If construction of the fence on the common boundary resulted in reduced privacy that was the Hunts' lookout.

[52] Initially in dealings with Pippin's construction supervisor Calvin and later with his replacement Greg Neiht Pippin seemed receptive to a solution about the placement of the fence on the common boundary. On 2 February 2024, after handover on 19 December 2023, Pippin stated "We have followed up the fencer. Still waiting on a quote for the fence". On 25 March 2024 the Hunts were told that their request to remove the existing fence and reinstate it in a different position, which required additional retaining works, was refused. Pippin considered the works met all industry standards.

[53] Pippin attempted to justify the installation of the fence atop the retaining wall stating firstly that the preferred fencing location (on the common boundary) could not be achieved due to the retaining wall being over 1000 millimetres high in locations meaning that a minimum of 1000 millimetres balustrading was required under the NCC 2019 BCA Volume Two Part 3.9.2.2(a) Barriers to prevent falls. Such would have required fencing in the neighbour's property to be over 2000 millimetres high necessitating a siting application and approval through Council. Whilst the quoted part referred to a continuous barrier having to be provided along the side of a trafficable surface such as any delineated path of access to a building where it was possible to fall one metre or more measured from the level of the trafficable surface to the surface beneath, it excluded a retaining wall (Part 3.9.2.2(b)) unless the retaining wall formed part of or was directly associated with a delineated path of access to a building from the road or a delineated path of access between buildings. Here the retaining wall was neither being adjacent to a garden bed, nothing more, and was therefore excluded. Pippin's argument about falls is irrelevant. In any event there was no evidence before the Tribunal that the balustrading issue was raised at the time.

[54] Secondly it was argued that the fence could not be installed on the common boundary due to the location of the retaining wall. Pippin was unable to dig pier holes and install fence posts on the boundary line. Mr McKay used a 200-millimetre offset stringline on the existing surveyor's nails to determine the correct location of the boundary line. Having done so he considered a fence could be built on the common boundary. Whilst location of fence posts relative to the common boundary was found to be inconsistent and misaligned with the boundary line with some posts being located in the Hunts' property and others in the neighbour's property there was no impediment to fence construction on the common boundary. Additionally, the as constructed fence fell short 3.85 metres of the post contract variation extended fence which was just under 30 metres in total.

[55] Mr McKay considered that fence posts had been improperly attached to the retaining wall resulting in structural instability. Sleepers were attached directly to fence posts rather than the retaining wall. They were added because the original retaining wall was too low to retain fill which had eroded from under and away from the exterior slab to where the as constructed fence palings were seemingly acting as a retention barrier in lieu of the retaining wall itself. There was no evidence before the Tribunal that the existing retaining wall was ever designed to support a timber paling fence with the timber paling fence posts then supporting additional sleepers placed to heighten the existing retaining wall. Issues about tolerances, visual amenity, neighbour permission, historical methodology for neighbour consent, use of pincer shovels/excavators, utilisation of retaining walls, vermin and weeds in unkept areas, neighbour consent and increase in third party inspections were never relevant considerations in the context of a common boundary fence that could have been built but was not built. Pippin referred to the Hunts' preferred fencing location as not being achievable. But there was nothing preferred about it. The fence was to be constructed on the common boundary as clearly stated in the contract variation and marked up plans. Nor is whether the as constructed fence represented a sensible outcome or a common sense approach relevant.

[56] Footings for a common boundary fence are usually 200 to 250 millimetres in diameter. That measurement was supported by a quote from Affordable Fencing Brisbane Pty Ltd dated 24 July 2025 which recorded 250-millimetre footings. Additionally, a photographic portion of Pippin's as constructed fencing was produced depicting 250-millimetre footings already used. Footings for any dividing fence straddle the common boundary to the effect that each owner bears half the footing on their property. Even accepting a larger footing of 300 millimetres the portion applicable to the Hunts' side of the common boundary would be no more than 150 millimetres.

[57] The Tribunal accepts that Pippin's own photographic material measured the inside of the return at the garage at 260 millimetres and that Mr Hastie agreed that when palings and rails were included the return measured 290 millimetres to the outside edge of the rail. The site plan depicted 500 millimetres from the garage wall to the common boundary. That meant that the fence at the return was 210 millimetres inside the Hunts' common boundary. Photos produced indicate the as constructed fence at the return being in line with the fence atop the retaining wall placing that portion of the as constructed fence well within the Hunts' property. Pippin/Mr Hastie never addressed the 3.85 metres extended fencing taking the to be constructed fence part way along the garage wall. It was never constructed.

[58] Pippin/Mr Hastie laboured lack of consent to enter the neighbours property to construct a fence on the common boundary thereby necessitating construction on a course from on or over the common boundary at the rear veering toward and then along the retaining wall finishing at a point towards the front of the property but well inside the common boundary which was according to the site plan 500 millimetres from the side of the garage situated toward the front of the property. Pippin was not obligated to construct any fence until it was satisfied that it was reasonably authorised to do so. It did not consider the consent as obtained via the neighbour's estate agent was adequate in terms of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). That may well have been the case. But what it did not translate into/authorise/permit was the unilateral exercise of some sort of perceived right or discretion to construct on other than the common boundary atop a retaining wall because amongst other things it was consistent with standard and accepted building practice in Queensland, an assertion entirely unsupported by any evidence or because works completed met all industry standards (though it was not clear what those industry standards were). Quite apart from that and contrary to its own stance Pippin's fencer entered the neighbour's property to complete at least some part of the as constructed fence construction.

[59] The Hunts' application is not so much about relocation of a dividing fence because here there is not by definition a dividing fence constructed by Pippin on the common boundary. It is more correctly put as an application to deconstruct the as constructed fence and be placed in a position where a 1.8 metre timber paling fence is constructed on the common boundary as originally agreed to perforce of the post contract marked up plan.

[60] The Hunts have sought the cost of removal of the as constructed fence and the cost of construction of the common boundary fence as originally agreed. In the face of persistent refusal to provide the fence agreed to the Hunts are entitled to the cost of deconstruction of the as constructed fence on their property and the cost of a 1.8 metre timber paling fence. The quote from Jim's Fencing dated 4 August 2025 for supply of a 26-metre fence (clearly inclusive of the additional 3.85 metres of fencing sought) and removal of the as constructed fence at $5,600.00 is accepted.

[61] The supply of extra sleepers to the retaining wall is not accepted. The retaining wall was the Hunts' own invention and so was its height. There was no evidence to suggest the exterior slab was not constructed in accord with the building contract. There was insufficient correlation between slab and retaining wall to directly impose liability for soil deficiency occurring after the event.

[62] Application filing fee of $379.50 is allowed.

[63] OJ Pippin Homes Pty Ltd pay to Simon Hunt and Miriam Hunt the sum of $5,979.50 within 28 days.

[1] Hunts' statement filed 2 July 2024 Attachments QCAT evidence 08-C, 10-A, 10-c, 10-D, and 10-E.

[2] Hunts' statement filed 2 July 2024 Attachments QCAT evidence 07, 08-B, 08-C, 08-D, 08-E, 08-F.

[3] The original retaining wall had been installed to retain the raised level of the land towards the rear where it fell/sloped away to the rear boundary. The retention depicted in photos attached as photos 10A-E to the Hunts' statement filed 2 July 2024.

[4] Hunts' statement filed 2 July 2024 Attachments QCAT evidence 08-K and 08-L.

[5] Pippin's response and submissions filed 18 August 2025 Attachment 1 pages 6-9.

[6] Pippin's response and submissions filed 18 August 2025 Attachment 8 pages 23-29.

[7] Pippin's response and submissions filed 18 August 2025 Attachment 8 page 39.

[8] Pippin's response and submissions filed 18 August 2025 Attachment 1 page 9.

[9] Applicants' response to respondent's submission filed 25 August 2025 page 11.

[10] An auger is a spiral shaped tool for drilling or boring holes. It can be handheld or mechanically driven.

[11] Pippin's response and submissions filed 18 August 2025 Attachment 8 page 39.