Lendjel v Buda - [2024] QCAT 599

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Lendjel v Buda [2024] QCAT 599

PARTIES:

FRANK LENDJEL

(applicant)

ROZALIJA LENDJEL

(applicant)

v

BARBARA BUDA

(respondent)

MARCEL BUDA

(respondent)

APPLICATION NO:

NDR154-22

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

28 November 2024

HEARING DATES:

20 November 2024

HEARD AT:

Brisbane

DECISION OF:

Member Roney KC

ORDERS:

1. It is ordered that the application filed 1 August 2022 under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) is dismissed.

2. The parties have liberty to apply in respect of these orders or any ancillary issues that arise in consequence of the findings made.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION –
DISPUTES BETWEEN NEIGHBOURS – whether trees have or are likely to cause serious damage to the neighbours’ land or property – whether trees causing substantial, ongoing and unreasonable interference –
– where s 46 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) provides land is affected by a tree if the tree has caused, is causing, or is likely to cause serious injury to a person; serious damage to land or property; or substantial, ongoing and unreasonable interference with the use and enjoyment of land – where applicants commenced proceedings in QCAT seeking orders requiring the respondents’ trees be trimmed or removed – whether to order compensation for damage to bitumen driveway caused by tree roots or business losses claimed to flow from it.

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 47, s 61, s 65, s 66, s 72, s 73

Belcher v Sullivan [2013] QCATA 304
Bunyard v McManus [2013] QCAT 258
Body Corporate – Highlands Vista v Taylor [2018] QCAT 244
Cacopardo v Woolcock [2017] QCAT 214
Dwyer & Clarke [2014] QCAT 219
Hewitt & Hewitt v BCC & Gorman [2018] QCAT 282
Hoy v Fox & Anor [2013] QCAT 728
Laing v Kokkinos (No.2) [2013] QCATA 247
Street v Smith & Rogers [2018] QCAT 193
Thomsen v White [2012] QCAT 381

Watson-Brown v Heaton & Anor [2014] QCAT 346

APPEARANCES & REPRESENTATION:

Applicants:

Self-represented, assisted by Adrienn Varjas

Respondents:

Self-represented

REASONS FOR DECISION

The applicants and the respondents own adjoining suburban properties in Northwood Drive, Burpengary East, north of Brisbane. They share a common side boundary. The applicants own the home at 31 Northwood Drive. The respondents own the home at 33 Northwood Drive.
The applicants were represented at the hearing by Adrienn Varjas and leave was given for her to do so because English and hearing were a problem for Mr Lendjel. Mrs Lendjel did not attend the hearing. Nor did Mr Buda.
On 1 August 2022 the applicants filed an application under the Neighbourhood Disputes (Dividing Fences and Trees) Act2011 (Qld) (‘the ND Act’) for the pruning or removal of palm trees growing adjacent to and in some instances whose fronds went over the boundary line.
In the application for a tree dispute filed on 1 August 2022, the applicants:
(a)contended that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lendjel v Buda

Details

AGLC: Lendjel v Buda [2024] QCAT 599
Case: [2024] QCAT 599
Decision Date: 28 November 2024

CaseChat Overview and Summary

The case of Lendjel v Buda involved a dispute between neighbours over the impact of trees on the applicants’ property. The applicants, Lendjel, sought orders for the removal or trimming of trees on the respondents’ property, alleging damage to their bitumen driveway and business losses as a result. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT). The primary issue for determination was whether the trees had or were likely to cause serious damage to the applicants’ land or property, such that they constituted an unreasonable interference with the use and enjoyment of the applicants’ land. This was assessed against the criteria set out in section 46 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).

The Tribunal considered the evidence and arguments presented by both parties regarding the impact of the trees. The applicants argued that the trees had caused substantial damage to their driveway, which had resulted in business losses due to the difficulty in accessing their property. The respondents, however, contended that the damage to the driveway was not caused by their trees and that any business losses were not directly attributable to the condition of the driveway. The Tribunal evaluated the evidence and concluded that the applicants had not established that the trees had caused, were causing, or were likely to cause serious damage to their property or that there was substantial, ongoing and unreasonable interference with their use and enjoyment of the land.

The Tribunal dismissed the application, finding that the applicants had not met the threshold for an order under the Act. The decision highlighted the importance of establishing a causal link between the trees and the alleged damage, as well as the need for substantial and ongoing interference to justify an order for tree removal or trimming. The Tribunal also noted that the applicants had not provided sufficient evidence to support their claim of business losses. The final orders of the Tribunal were that the application was dismissed and that the parties were free to apply regarding these orders or any ancillary issues arising from the findings.

Orders

Orders of the court

1. It is ordered that the application filed 1 August 2022 under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) is dismissed.

2. The parties have liberty to apply in respect of these orders or any ancillary issues that arise in consequence of the findings made.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Lendjel v Buda [2024] QCAT 599
PARTIES:	FRANK LENDJEL (applicant) ROZALIJA LENDJEL (applicant) v BARBARA BUDA (respondent) MARCEL BUDA (respondent)
APPLICATION NO:	NDR154-22
MATTER TYPE:	Other civil dispute matters
DELIVERED ON:	28 November 2024
HEARING DATES:	20 November 2024
HEARD AT:	Brisbane
DECISION OF:	Member Roney KC
ORDERS:	1. It is ordered that the application filed 1 August 2022 under the *Neighbourhood Disputes (Dividing Fences and Trees) Act 2011* (Qld) is dismissed. 2. The parties have liberty to apply in respect of these orders or any ancillary issues that arise in consequence of the findings made.
CATCHWORDS:	ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether trees have or are likely to cause serious damage to the neighbours’ land or property – whether trees causing substantial, ongoing and unreasonable interference – – where s 46 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) provides land is affected by a tree if the tree has caused, is causing, or is likely to cause serious injury to a person; serious damage to land or property; or substantial, ongoing and unreasonable interference with the use and enjoyment of land – where applicants commenced proceedings in QCAT seeking orders requiring the respondents’ trees be trimmed or removed – whether to order compensation for damage to bitumen driveway caused by tree roots or business losses claimed to flow from it. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 47, s 61, s 65, s 66, s 72, s 73 Belcher v Sullivan [2013] QCATA 304 Bunyard v McManus [2013] QCAT 258 Body Corporate – Highlands Vista v Taylor [2018] QCAT 244 Cacopardo v Woolcock [2017] QCAT 214 Dwyer & Clarke [2014] QCAT 219 Hewitt & Hewitt v BCC & Gorman [2018] QCAT 282 Hoy v Fox & Anor [2013] QCAT 728 Laing v Kokkinos (No.2) [2013] QCATA 247 Street v Smith & Rogers [2018] QCAT 193 Thomsen v White [2012] QCAT 381 Watson-Brown v Heaton & Anor [2014] QCAT 346
APPEARANCES & REPRESENTATION:
Applicants:	Self-represented, assisted by Adrienn Varjas
Respondents:	Self-represented