Toumpas v Vorka

Case [2023] QCAT 350

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Toumpas & Anor v Vorka [2023] QCAT 350

PARTIES:
ANDREW TOUMPAS AND HELEN TOUMPAS

(applicants)

v
LOUCIA VORKA

(respondent)

APPLICATION NO:

NDR 168-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

28 August 2023

HEARING DATE:

14 April 2023

HEARD AT:

Brisbane

DECISION OF:

Member Scott-Mackenzie

ORDERS:

1.     The respondent, at his own cost and within three months of this order, prune tree one to remove any dead branches greater than 20 millimetres in diameter and any branches overhanging the applicants’ land.

2.      The respondent, at his own cost and not less than once a year, prune tree one to remove any dead branches greater than 20 millimetres in diameter and any branches overhanging the applicants’ land.

3.      The work required by orders 1 and 2 be carried out by an Australian Qualified Framework (AFQ) level 3 arborist with appropriate insurance cover.

4.      The respondent, at his own cost and within three months of this order, install a root barrier along the common boundary between the applicants’ land and the respondent’s land.  The root barrier:

(a)     be installed by an AFQ level 5 arborist with the appropriate insurance cover; and

(b)     be effective to prevent roots from tree one growing onto the applicants’ land.

5.      The applicants give the respondent and any person engaged by him such access to the applicants’ land as they may reasonably require to carry out the work in orders 1, 2 and 4.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree dispute – where the respondent tree-keeper had failed to maintain a tree on her land – where branches of the tree overhang the applicants’ land – where there is a risk of falling branches from the tree causing serious injury to a person on the applicants’ land – where roots from the tree on the respondent’s land have and are causing serious damage to a retaining wall on the applicants’ land – whether leaf litter from the tree is causing substantial, ongoing and unreasonable interference with the use and enjoyment of the applicants’ land – whether the tree is obstructing sunlight – whether appropriate the respondent be directed to perform maintenance work with respect to dead and overhanging branches

Land Title Act 1994 (Qld)

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 49, s 52, s 61, s 65, s 66, s 71, s 72, s 73, s 74, s 75

Boater & Anor v Kwok & Anor [2023] QCAT 144

Finch v Grahle [2017] QCAT 80

Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203

Thomsen v White [2012] QCAT 381

Vecchio v Papavasiliou [2015) QCAT 70

APPEARANCES & REPRESENTATION:

First applicant:

Second applicant:

Self-represented

First applicant

Respondent:

Self-represented (by telephone)

REASONS FOR DECISION

  1. On 13 October 2021 the applicants made application to the Tribunal for a tree dispute under the Neighbourhood Disputes (Dividing Fences and…

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Toumpas v Vorka [2023] QCAT 350
Case
[2023] QCAT 350
Decision Date

CaseChat Overview and Summary

In Toumpas v Vorka, the applicants sought orders for the removal of certain trees and trimming of others on the respondent's property, which bordered the applicants' land. The applicants claimed that the trees, particularly tree one, caused interference with their use and enjoyment of their property due to falling branches and root damage. The case involved the application of relevant legislation that allows the Tribunal to make orders regarding trees that affect neighbouring land, particularly to prevent injury or damage and to remedy interference with the neighbour’s use and enjoyment of their land.

The court was required to determine whether the trees, specifically tree one, constituted a danger or interference to the applicants' land. This involved assessing the evidence presented by both parties regarding the extent of the interference, the risk of injury, and the effectiveness of previous trimming efforts. The court had to decide whether the applicants' concerns about safety and property damage were substantiated and warranted the orders sought.

The court found that the evidence supported the applicants' claims of interference and danger caused by tree one. It accepted that branches from the tree had fallen onto the applicants' land and were likely to cause serious injury. Additionally, it accepted that roots from tree one had caused and were likely to continue causing serious damage to a retaining wall on the applicants' land. Accordingly, the court ordered the respondent to prune tree one to remove dead and overhanging branches and to install a root barrier to prevent further root growth onto the applicants' land.

The orders of the Tribunal required the respondent to prune tree one to remove dead branches and overhanging branches, install a root barrier, and provide access to the applicants' land for these purposes. The respondent was to carry out the pruning by a qualified arborist and the installation of the root barrier by a suitably qualified arborist with appropriate insurance cover.

Orders

Orders of the court

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Background

Background to the litigation

The outcome sought by the applicants in the application is an order to the effect trees one, four and five be removed and trees two and three be trimmed.Background The applicants are the owner of 210 Boundary Street, West End (applicants’ land). The respondent is the owner of 15 Middle Street, Highgate Hill (respondent’s land). Trees one – four are, or were, located on the respondent’s land in, or near, the north-western corner of the common boundary between the two parcels of land. Tree five was located on the respondent’s land in the south-western corner. During evidence, it emerged trees four and five have been removed. They may be put to one side. The applicants withdrew the application insofar as it concerns trees two and three. Again, they may be put to one side. There remains tree one, a gum tree.Order of 25 May 2022 On 25 May 2022 the second applicant was joined as an applicant to the proceeding.2018 agreement Four trees, trees one – four, were the subject of an earlier application to the Tribunal. The parties to the proceeding were the first applicant and Mr Economides. The proceeding was withdrawn on 23 August 2018 after the parties entered into an agreement for settlement on the following terms:1.The following definitions apply to this agreement:(a) “the neighbours” – [The first applicant](b) “the tree keepers” – John Economidis & [the respondent] ([The respondent] has been included in agreement to identify her as the sole owner of the tree keepers property in which she inhabits with her husband John Economidis who is named as respondent in this application.(c) “the neighbours’ property" – 210 Boundary Street, West End Q 4101(d) “the tree keeper’s property” – 15 Middle Street, Highgate Hill Q 4101(e) “the trees” – Four trees along fence line described as 1 a gum tree, 2 a Fiddlewood, 3 a paperbark and 4 a gumtree in response provided to John Economidis as a result of tribunal directions.2.The tree works are as follows (“the works”):(a) The tree· keepers will trim all four trees so that no tree branches of any kind or height protrude over the fence line.(b) John Economidis will obtain an updated quote to to [sic.] complete this work from the tree lopper who provided a quote to trim three of the trees a copy which has been provided to Andrew Toumpas.(c) Regardless of the price of the quote Andrew Toumpas will make a contribution of $350.00 towards the total cost of the work. This sum will be paid in cash to John Economidis on the day that the work is carried out.(d) Work is to be completed by the 30 September 2018 or as extended by mutual agreement.Legislation The Tribunal may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land:(a)to prevent serious injury to any person; or(b)to remedy, restrain or prevent:(i) serious damage to the neighbour’s land or any property on the neighbour’s land; or(ii) substantial, ongoing, and unreasonable interference with the use and enjoyment of the neighbour’s land.[1][1]Section 66(2) of the ND Act.

Evidence

Evidence Before The Court

The first applicant appeared in person for himself and on behalf of the second applicant. The respondent appeared in person by telephone.Evidence The first applicant asserted tree one interferes with the enjoyment of his land and is dangerous. He tendered in evidence fourteen photographs (exhibit 1). Photographs one, three, four, five, nine, ten and eleven show fallen branches from the tree on the applicants’ land. Further photographs tendered by the applicants show root damage to a retaining wall on the applicants’ land (exhibit 2) and the canopy of tree one (exhibit 3). The first applicant asserted he and the second applicant are not able to use their clothesline because of falling leaves and their grandchildren are not able to use the backyard because of the danger from falling branches. Tree one, the first applicant asserted, obstructs sunlight, and drops leaves and small to medium branches on the applicants’ land. He wants to install an above-ground swimming pool and solar panels on the roof of his home. He is concerned about the safety of any pool and solar panels being damaged by falling branches. The respondent conceded he was approached by the first applicant in August 2021 and lost his temper. He further conceded some branches of tree one may overhanging the applicants’ land. However, they are more than 2.5 metres above ground level. Following mediation in August 2018, tree one was trimmed. It does not obstruct sunlight; the applicants’ backyard enjoys two hours of direct sunlight every day. The applicants, the respondent asserted, have not cleaned their gutters ‘in years’. Tree one, the respondent asserted, is behind a shed. He referred to a letter addressed to the applicants and delivered on 21 November 2021. In the letter, he offered to trim the trees, at his expense, alternatively remove the middle trees with the parties equally sharing the cost of doing so. He did not receive a reply to the letter.DiscussionFalling branches The applicants’ primary concern is about safety, the risk of falling branches from tree one causing serious injury to a person on the applicants’ land. The respondent concedes branches of tree one overhang the applicants’ land. The evidence, which I accept, shows branches from tree one of sufficient size to cause serious injury to a person on the applicants’ land have fallen onto the land. The falling branches have caused, are causing or are likely to cause, within the next 12 months, substantial, ongoing and the unreasonable interference with the applicants’ use and enjoyment of the applicants’ land. Further, a root from tree one has and is causing serious damage to a retaining wall on the applicants’ land and is likely to continue to do so. I accept the applicants’ land is affected by tree one, and so find.Leaf litter The applicants also complain about leaf litter from tree one. There is evidence of the leaf litter falling on the applicants’ land and accumulating in the gutters of the home. I accept the evidence.

Decision

Reasons for decision

The orders appropriate in that the circumstances here are for pruning tree one to remove dead and overhanging branches periodically and the installation of a root guard on the respondent’s side of the common boundary between the applicants’ land and the respondent’s land between tree one and the applicants’ land.Decision The orders of the Tribunal are as follows:1.The respondent, at his own cost and within three months of this order, prune tree one to remove any dead branches greater than 20 millimetres in diameter and any branches overhanging the applicants’ land.2.The respondent, at his own cost and not less than once a year, prune tree one to remove any dead branches greater than 20 millimetres in diameter and any branches overhanging the applicants’ land.3.The work required by orders 1 and 2 be carried out by an Australian Qualified Framework (AFQ) level 3 arborist with appropriate insurance cover.4.The respondent, at his own cost and within three months of this order, install a root barrier along the common boundary between the applicants’ land and the respondent’s land. The root barrier:(a) be installed by an AFQ level 5 arborist with the appropriate insurance cover; and(b) be effective to prevent roots from tree one growing onto the applicants’ land.5.The applicants give the respondent and any person engaged by him such access to the applicants’ land as they may reasonably require to carry out the work in orders 1, 2 and 4.

Ratio Decidendi

Legal Principle Established

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