Smith v Fielding

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

1. 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’).

2. 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

1. 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.

2. 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.

3. 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.

4. They also overlook the deck and garage areas of Mr Fielding's house and much of his property.

5. 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.

6. 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.

7. 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

1. 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…