Smith v Fielding
[2024] QCAT 505
•1 November 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Smith v Fielding [2024] QCAT 505
PARTIES:
LISA SMITH (applicant)
v
TIMOTHY JUSTIN FIELDING (respondent)
APPLICATION NO/S:
NDR095-20
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
1 November 2024
HEARING DATE:
14 February 2024
HEARD AT:
Brisbane
DECISION OF:
Member Holzberger
ORDERS:
Timothy Justin Fielding must, at his expense, remove all tiger grass and bamboo plantings along or adjacent to his common boundary with Lisa Smith's property by 4:00 PM on the 31st of December 2024.
CATCHWORDS:
NEIGHBOURHOOD DISPUTES – planting along common boundary – whether planting interferes with the use and enjoyment of land – appropriate remedy
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)
Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247
APPEARANCES & REPRESENTATION:
Applicant:
Robert Neely
Respondent:
Self-represented
REASONS FOR DECISION
On the 24th of June 2020, Lisa Smith filed in the tribunal an application for a tree dispute. The respondent referred to in the application was her neighbour Timothy Fielding. The enabling legislation is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘The Act’).
The application sought relief for a number of issues. By the time the matter came to hearing on the 14th of February 2024 the only issue was the alleged substantial ongoing and unreasonable interference with Ms Smith's use and enjoyment of her land caused by Mr Fielding's plantings along their common boundary which Ms Smith claimed obstructed her view from improvements on her property.
BACKGROUND
Ms Smith purchased the property at 10 Pacific View Drive, Tinbeerwah in April 2008. She has resided in it as her principal place of residence with her partner Robert Neely since that time.
Mr Fielding has resided in the adjoining property at 12 Pacific View Drive, Tinbeerwah on and off since March 2007. He purchased the property in May 2013.
It is asserted by Ms Smith and Mr Neely at that the time of acquisition of Ms Smith's property they had uninterrupted views of the Hinterland to and including the Pacific Ocean from all rooms on the ground and the first floors and all balconies.
They also overlook the deck and garage areas of Mr Fielding's house and much of his property.
In or around 2014 Ms Smith and Mr Neeley constructed a swimming pool near the common boundary. They asserted that they had views to the ocean from parts of the pool deck.
In or about 2015, Mr Fielding planted more than 60 metres of tiger grass near their common boundary which had reached a height of approximately 4 metres by 2018.
In or about 2018, Mr Fielding planted bamboo adjacent to the pool viewing platform. Mr Neely estimated the height of the bamboo at close to 10 metres.
THE EVIDENCE
Ms Smith and Mr Fielding filed witness statement and responses to those statements. Those statements and responses include lengthy submissions relating to the Act. The obvious ill feeling between the parties has not assisted either in their presentation of their respective cases.
Ms Smith was not available for cross examination and accordingly, little weight can be given to her statements. Mr Neely gave evidence and was cross examined by Mr Fielding.
Ms Smith also sought to rely on a lengthy valuation report prepared by Chris Anderson of Acumentis indicating a significant drop in the market value of property as a result of the loss of the pre-existing view. The report is unsworn and does not comply with the tribunal's practice direction for expert evidence. While the tribunal is not bound by the rules of evidence, limited weight can be given to that statement.
The tribunal had the benefit of a tree assessment report provided by the tribunal’s arborist Benjamin Inman. Mr Inman's report was exhibit one in the proceedings and he was cross examined by Mr Fielding.
THE ISSUE FOR DETERMINATION
Notwithstanding the volume of material relied on by the parties, the issues for determination by the tribunal are relatively narrow.
Section 66 of the Act relevantly provides:
(2) QCAT may make orders it considers appropriate in relation to a tree affecting the neighbour’s land –
…
(b)to remedy restrain or prevent –
…
(ii)substantial ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
(3) However, subsection (2)(b)(ii) applies to interference that is obstruction of…a view only if -
(a)the tree rises at least 2.5 metres above the ground; and
(b)the obstruction is –
…
(ii)severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.
Section 73 of the Act contains a list of general matter the tribunal must consider when considering making a tree order, including the contribution the tree makes to the amenity of Mr Fielding’s land, including its contribution to privacy.
It is not controversial that Ms Smith is a neighbour for the purposes of the Act and has standing to bring the application.
It is not controversial that the tiger grass and bamboo rises more than 2.5 metres from the ground.
In determining this application, the tribunal:-
(a)must consider the view that existed when Ms Smith took possession of the property in 2008;
(b)must determine whether the tiger grass and bamboo planted by Mr Fielding between 2015 and 2008 is severely obstructing that view; and
(c)balance the interests of the parties by considering the matters prescribed in section 73 of the Act.[1]
[1]Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247.
THE VIEW AT THE DATE OF POSSESSION
Ms Smith’s home occupies a large, elevated site in Tinbeerwah. The living and sleeping areas of the house are oriented towards the Pacific Ocean, several kilometres to the east.
The view includes the ocean and the hinterland and was uninterrupted. It was a whole view rather than a partial view from all living areas within the house.
I do not understand Mr Fielding to contest the existence of the view from the dwelling in 2008.
IS THE VIEW SEVERELY OBSTRUCTED
In determining whether the tiger grass and bamboo severely obstructs that view, the tribunal must: -
(a)identify and value the view affected;
(b)identify the part of the dwelling from where the views exist and the reasonableness of protecting views from those areas;
(c)assess the impact of the interference to the views of the whole property, not just the view that is affected.[2]
[2]Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247.
The tribunal did not have the benefit of conducting a view in these proceedings and relies on the description of the views by Ms Smith and Mr Neely in the various photographs of the view included in the evidence.
In his submissions, Mr Fielding questions the significance of the view asserting that the ocean was not identifiable in the photographs relied on. I accept the evidence of Mr Neely that the ocean was visible, albeit in the distance.
It is a matter of common sense that such a view is of great significance to the amenity and value of the property. Mr Anderson's report supports the proposition.
It is a view that on its face is worth protecting.
It is the evidence of Mr Neely that the views which existed in 2008 are now wholly obstructed by the tiger grass and bamboo. That is supported by the evidence of Mr. Inman. I am satisfied that the tiger grass and bamboo is a substantial interference with Ms Smith's use and enjoyment of land.
It is uncontroversial that the interference is ongoing.
BALANCING THE PARTIES’ INTERESTS
Mr Fielding’s contention is that the plantings along the common boundary are a reasonable response to the lack of privacy as a result of being overlooked from Ms Smith's house and land and the ongoing and unreasonable course of behaviour by Mr Neely.
I accept that there have been ongoing hostilities between the parties. It is not the tribunal’s function to adjudicate those hostilities, but I am not satisfied that all the blame can be laid at the feet of Mr Neely.
The fact that Mister Fielding's property is overlooked by Ms Smith’s property is not the fault of Ms Smith. It existed when Mr Fielding took possession of his property.
Just as Ms Smith does not have an absolute right to view Mr Fielding does not have a right to absolute privacy.
Both properties are large and there is significant separation between the dwellings. Mr Fielding’s decision to plant along the boundary line was not strictly necessary to protect his privacy. He could, for example, protect the privacy of his house by planting away from the boundary and closer to his house.
By planting along the boundary, he has maximised his amenity to the very great detriment of Ms Smith.
I am satisfied in those circumstances that the tiger grass and bamboo constitute a substantial, ongoing and unreasonable interference with Ms Smith's use and enjoyment of the land by causing a severe obstruction to the view from Ms Smith's dwelling, which existed when she took possession of it.
I am not of the view that the views from the pool deck, constructed several years after taking possession, should be similarly protected.
WHAT IS THE APPROPRIATE ORDER
Mr Inman suggested that the party's interests could be balanced by trimming the tiger grass and bamboo to a height of two metres once per year.
Ms Smith originally sought either reduction in the height or removal of the tiger grass and bamboo.
Both the tiger grass and bamboo are fast-growing and would require regular trimming to maintain them at a height which protects Ms Smith's view.
Given the history of the matter and the significant and obvious animosity between the parties over a long period of time, I am not satisfied that it is appropriate for the tribunal to make an order which requires ongoing annual maintenance.
I am not satisfied that Mr Fielding's privacy issue can only be resolved by planting along the fence line.
In all the circumstances the appropriate order is for Mr Fielding to remove all the tiger grass and bamboo plantings along or adjacent to the common boundary with Ms Smith's property.
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