Williams v Richardson - [2023] QCAT 516

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:
WILLIAMS V RICHARDSON [2023] QCAT 516

PARTIES:

CARMEN WILLIAMS

(applicant)

v

KELLY RICHARDSON

(respondent)

APPLICATION NO/S:

MCDO 517/22

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

22 December 2023

HEARING DATE:

2 November 2023

HEARD AT:

Southport

DECISION OF:

Adjudicator Alan Walsh

ORDERS:

1. Pursuant to section 27(2) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) I order that the Respondent herself or by someone appropriately qualified at her direction and cost on or by 14 February 2024 restore to a reasonable standard that part of the concrete wall dividing fence on the common boundary of the adjoining properties to which a board is attached from the Respondent’s side by neatly cutting and finishing the board to reduce it in height to the level of the top of the wall having regard to the state of the wall before the attachment.

2. I order that the Respondent pay the Applicant the filing fee of $28.60 on or by 14 February 2024.

CATCHWORDS:

REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – ADJOINING LAND – where neighbour fixed board to dividing fence on common boundary of adjoining properties – where no agreement to attachment – whether attachment unreasonably and materially altered dividing fence

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicant applied for removal of attachments – where applicant applied for orders about use of unfenced land between house wall and common boundary of adjoining properties – whether application within tribunal’s jurisdiction to adjudicate – where applicant applied for recovery of legal costs – whether costs other than filing fee recoverable

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s. 27
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s. 100, s. 102
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r. 83

APPEARANCES & REPRESENTATION:

Applicant:

Carmen Williams, self-represented

Respondent:

Kelly Richardson, self-represented

REASONS FOR DECISION

Introduction

There is an unfortunate history to this acrimonious dispute between neighbours who are at war over a dividing fence and an unfenced tract of land, to which I will refer shortly.

Location

Carmen Williams is the registered owner of a waterfront property (Lot 6 on a plan of subdivision) at 35 North Street, Hope Island, on the Gold Coast.
Ms Williams’ property shares a common boundary with the next-door waterfront property at 37 North Street (Lot 5) owned by Kelly Richardson.
The dispute concerns:
(a)An attachment on Mrs Richardson’s side to a staggered concrete wall dividing fence on the common boundary of the adjoining properties.
(b)A narrow rectangular tract of land on Ms Williams’ property situated between a wall of her house near the common boundary and the common boundary itself, unilaterally “landscaped” and partially used by Mrs Richardson to position parts of pot plants.
(c)Mrs Richardson’s denial of access from her side to the tract of land which Ms Williams cannot enter because the inner side of the otherwise continuous staggered dividing fence wall butts up to the house wall at each end.
A vegetation dispute is being litigated by Mrs Richardson against Ms Williams separately in the tree jurisdiction of this Tribunal in Brisbane.
A plethora of other problems affect the neighbours, including alleged aggression, bad behaviour, breach of privacy, harassment, intimidation, and trespass. I explain that none of those issuess are within this Tribunal’s jurisdiction to adjudicate, but they set the scene and explain the context.

Application

Ms Williams filed a Form 53 Application for a dividing fence dispute with the Tribunal’s Southport Registry on 30 September 2022 asking for orders against Ms Richardson in the following broad terms.
Remove all rocks and pot plants from my land and drains to stop water coming into my house.
Remove the board attached to my gutter and stop attaching items to my house.
I want access to carry out maintenance upon request.

The first adjudication

The Application originally came on for final hearing before an Adjudicator of the Tribunal at Southport on 7 December 2022. Gavin Richardson, Mrs Richardson’s husband, was also a Respondent at that time, but neither of them attended on the day.
The Adjudicator made the following final Orders after hearing from Ms Williams.
1.The Respondent must by 14 December 2022, remove any panels or attachments attached to the dividing fence located between 35 North View Street and 37 Northview Street, Hope Island (“the dividing fence”).
2.The Respondent must by 14 December 2022, remove any gravel, plants and structures situated in the 200mm wide concrete channel between 35 North View Street and 37 North View Street, Hope Island (“the channel”).
3.The Respondent shall not attach any further panels, or attachments to the dividing fence, or fill or add any plants or structures to the channel.

The re-opening

On 16 May 2023, Mr and Mrs Richardson filed an application to reopen the proceeding because they had not received the Application and Notice of hearing. It is unnecessary to say any more than that a second Adjudicator reopened the proceedings and set aside the first Adjudicator’s decision.
I respectfully agree with the second Adjudicator’s decision to reopen and concur with her decision to set aside the first Adjudicator’s orders. He clearly had no power to make Order 2 and the part of Order 3 recited above that related to the channel because it is not a dividing fence. Those orders were a nullity, of no force or effect because they were made beyond jurisdiction.

The second adjudication - re-hearing

Hearing on 14 June 2023

The reopened proceeding came on for hearing before me on 14 June 2023 when all parties were in attendance.
At the commencement, I dismissed Ms Williams’ claim against Mr Richardson because he was not a registered co-owner with Mrs Richardson of her property at 37 North View Street and is not now, either. Mr Richardson therefore had no standing to be sued by Ms Williams.
I then part-heard the dispute and made an interim order that the parties ensure that any attachment to the concrete wall dividing fences on their respective sides or on top of the concrete wall dividing fences be removed no later than 1 October 2023.
I did so in the hope that the parties might meanwhile resolve the dispute,[1] to no avail as it turns out.
[1]Transcript 14 June 2023, T1-39, lines 13 to 19; T1-40, lines 1 to 28; T1-41, lines 26 to 29; T1-47, lines 1 to 35.
I ordered that Mrs Richardson file and serve any counterapplication and documents on which she wished to rely on or by 2 October 2023.
I paused at that point of the hearing to explain the following to Mrs Richardson.
I explain, Mrs Richardson, that the form of the counterapplication can be found in the forms section on the QCAT website. It’s got to be downloaded, completed, and there is a filing fee. It’s your duty to work out what it is and to ensure that by the 2^nd October you file that counterapplication and email a copy to Mrs Williams, understood?[2]
[2]T1-45, lines 36 to 40.
Mrs Richardson said yes,[3] confirming that she understood the explanation.
[3] Ibid, line 42.
I also explained the following to her.
I also explain procedurally, Mrs Richardson, that if you propose in your counterapplication to be making or requesting the making of any orders relating to sufficient heights of pool barriers and so forth, there are, under the Building Act in Queensland, special forms of notice that have to be issued by one neighbour to another, whether it’s a pool barrier to a pool just on your property or on both properties. I’ll say no more than that. It’s not for me to give you advice but I am informing you that there is a required procedure. And if you don’t do it, but you do claim in your counterapplication something that requires to be – have been done, your counterapplication in that regard would be dismissed. Understood?[4]
[4]T1-46, lines 36 to 45.
Ms Richardson again confirmed that she understood.[5]
[5]Ibid, line 48.
I gave those explanations in the context of Mrs Richardson earlier telling me that she was not given the opportunity to make a counterapplication though she wanted to[6] and about pool fencing height and safety issues[7] during the hearing, there being a pool on each property.[8]
[6]T1-19, lines 1 to 28; T1-21, lines 16 to 22; T1-22, lines 3 to 6; T1-26, lines 25 to 30; T1-27, lines 4 to 16.
[7]T1-27, lines 33 to 45; T1-28, lines 25 to 46; T1-29, lines 12 to 20.
[8]T1-37, lines 21 to 42; see also my explanation to the parties at T1-38, lines 32 to 43.
However, Mrs Richardson has not at any stage filed a counterapplication against Ms Williams, despite being given the explanations and opportunity to which I have referred.
It was her prerogative not to do so, but she is bound by the omission. That is, she cannot raise, and I cannot consider and decide, issues that otherwise might have been adjudicated on a counterapplication.
Inspection on 2 November 2023
I conducted a midday inspection at the properties on 2 November 2023 in the company of a hearing support officer.
The parties were notified beforehand that I would not hear evidence at the inspection when it was arranged.
Such is the level of animosity between them that each neighbour refused to set foot on the other’s property at the inspection, so I conducted separate inspections.
Ms Williams handed me some photographs at the inspection of her property.
They are duplicates of what previously were filed. I referred to them at the hearing.
At the inspection, the respective owners in the company of their respective spouses pointed out the various features of importance to them.
By the time of inspection, several disputes about attachments to the staggered dividing fence had been resolved.
The following were all that remained to be dealt with on Ms Williams’ Application.
Hearing - 2 November 2023
Residual issue 1 - the Board
Still in issue at the second hearing was a concrete board attached from Ms Richardson’s side to the staggered concrete wall dividing fence with liquid nails in the vicinity of the laundry area on Ms Williams’ side.
The board had raised the height of the fence from 1.8 metres to 2 metres.
Mr Richardson, who also gave evidence, said that this was approved by the Gold Coast City Council.
He and Mrs Richardson gave evidence that this height extension was necessary to protect privacy and prevent trespass.
I reject the trespass excuse.
Anyone inclined to trespassing on either property from the other could do so by scaling the dividing fence anywhere along its entire length, or elsewhere by entering through the gate at the road.
I also reject the privacy excuse because a reasonable measure of privacy is already afforded by the height of the fence wall.
These are upmarket suburban waterfront homes, not homes in a Fort Knox-style development.
No extension of the height of this section of the concrete wall that is the dividing fence is required or warranted in my view.
The height the board adds is silhouetted above the fence, is unpainted, and restricts the ingress of light to Ms Williams’ property in the vicinity of the laundry area.
It unreasonably and materially alters the dividing fence in the sense prohibited by section 27 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Dividing Fences Act’).
I find that Mr Richardson unilaterally increased the fence height by affixing the board without consultation with, or the agreement of, Ms Williams.
Whether or not the Board was attached with Council approval, as contended by Mr Richardson, about which there is no evidence other than his say so, is not to the point.
In conclusion, I am satisfied on the evidence of Ms Williams that the board is an impermissible attachment to the part of the dividing fence identified in the photographs which are exhibits CW3 to CW5 and CW14 referred to in, and attached to, her affidavit sworn 24 October 2023.
However, in circumstances where it is painted and properly affixed to Mrs Richardson’s side of the concrete wall dividing fence, I will not order its complete removal because there is no evidence it affects the structural stability of the wall.
Rather, I will simply order that Mrs Richardson as sole owner of the property, herself or by someone appropriately qualified at her direction and at her cost, restore the wall to a reasonable standard by neatly cutting and finishing the board to bring it to the level of the top of the wall, having regard to the state of the wall before the board was attached, as section 27(2) of the Dividing Fences Act permits.
Residual issue 2 - The Channel
The second residual matter concerns Ms Williams’ claim for an order that the plants and gravel and furniture placed on or in the vicinity of the “ditch adjoining my house” be removed by Mrs Richardson.
It became clear during my inspection of the properties and during the hearing afterward on 2 November 2023 that “ditch” and “channel” are interchangeable terms used by Ms Williams to identify what is a narrow rectangular tract of land about 200 mm wide between the offset north facing house wall of Ms Williams’ home and the common boundary of the adjoining properties.
I find that the channel is located wholly on Ms Williams’ land between the house and the line of the common boundary parallel to the house wall, identified by the parties as the edge of the pebblecrete concrete slab located wholly on Mrs Richardson’s land.
That limited section of the common boundary is currently unfenced.
No application is made in these proceedings for a fencing order. No notice to contribute to a dividing fence has previously been issued by one neighbour to the other in that connection.
I accept Ms Williams’ evidence that mainly white gravel has been placed on or in the channel area by Mrs Richardson. It is not denied.
However, I make no finding on the allegation that the gravel covers the weep holes in the wall of her house on her property because there is no evidence other than Ms Williams’ say so in that regard.
Further, the house wall is not part of a dividing fence on the common boundary of the adjoining properties.
The other things allegedly on or in the channel area are pot plants/trees and (apparently) some items of furniture referred to in photographs CW10-12 and CW14 in the table at paragraph [8] on pages 2-3 of Ms Williams’ Affidavit sworn 24 October 2023.
I find that the channel has been “landscaped” by Mrs Richardson on what is Ms Williams’ land, though she (Ms Williams) does not have access to it because of the way her house and the staggered dividing fence has been located and constructed.
However, I agree with Mrs Richardson’s submission that no orders can be made in that regard because the issue is simply not within the Tribunal’s fencing jurisdiction to adjudicate and decide. The tract of land is not a dividing fence.
If Ms Williams has a remedy in that connection, it is not available in this Tribunal and it is for her to get advice about where to go for a remedy if necessary.
I therefore decline to make any order concerning the channel and its use by Mrs Richardson.
Other miscellaneous attachments
Both Ms Williams and Mrs Richardson accuse each other of still having attachments to the dividing fence on the common boundary of the adjoining properties.
On the Richardson property side, Ms Williams points to plumbing and a tap apparently affixed to a column forming part of the concrete dividing fence toward the canal side.
I accept the plumbing and tap has been there ever since Mrs Richardson’s house was built.
On the Williams property side, Mrs Richardson points to a gate/gate column she says is affixed to what appears to be the end of the dividing fence on the street side of Ms Williams’ property.
I accept it has been there for a much longer time.
Mrs Richardson points to an aluminium gate affixed to the side of the concrete dividing fence wall on the canal side of Ms Williams property which she describes as a “gate to nowhere”.
In fact, it is a gate to somewhere, the pool pump and shower area behind it on Ms Williams’ property.
However, I decline to make any orders in respect of these miscellaneous complaints by each party against the other.
Though referred to in evidence, they are not the subject of Ms Williams’ application or any counterapplication by Mrs Richardson.
In any event, there is no evidence that any of them materially affect the dividing fence.
Except for the board to which I have referred as residual issue 1, I regard the interim order for removal of attachments that I made on 14 June 2023 as having been complied with and it is now discharged.
Costs – the last issue
Ms Williams has filed submissions on costs.
Both sides have apparently instructed solicitors for advice and assistance at various stages.
Section 102 of the Queensland Civil and Administrative TribunalAct 2009 (Qld) considered in isolation might lead a claimant to conclude that legal costs may be recoverable in this minor civil dispute jurisdiction.
However, there are the following statutory limitations and constraints.
Firstly, section 100 provides that each party usually bears their own costs.
Secondly, rule 83 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) provides that for section 102 of the Act the Tribunal may award costs against a party to the proceeding for a minor civil dispute other than a minor debt claim only if the party is a respondent against whom the tribunal has made a final decision and only to the extent of the prescribed filing fee paid.
Ms Williams says she has spent $6,600 in legal costs to assist her in this matter and she wants Mrs Richardson to pay $4,000 of those costs.
However, for the reasons just explained, such costs are not recoverable in the minor civil dispute jurisdiction of the Tribunal under any circumstance.
Ms Williams also wants an Order that Mrs Richardson pay her filing fee of $28.60.
I think that is appropriate because her claim has succeeded, albeit in respect of the board height extension only.

Orders

I will order accordingly.