Toumpas & Anor v Vorka[2023] QCAT 350

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 13 October 2021 the applicants made application to the Tribunal for a tree dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (ND Act) (application).
2. [2]
   The application is in respect of five trees, numbered one – five.  Trees one, four and five are gum trees.  Tree two is a Fiddlewood tree and tree three is a Paper Bark tree.
3. [3]
   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

4. [4]
   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).
5. [5]
   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.
6. [6]
   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.
7. [7]
   There remains tree one, a gum tree.

Order of 25 May 2022

8. [8]
   On 25 May 2022 the second applicant was joined as an applicant to the proceeding.

2018 agreement

9. [9]
   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.
10. [10]
    The proceeding was withdrawn on 23 August 2018 after the parties entered into an agreement for settlement on the following terms: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:

1. “the neighbours” – [The first applicant]
2. “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.
3. “the neighbours’ property" – 210 Boundary Street, West End Q 4101
4. “the tree keeper’s property” – 15 Middle Street, Highgate Hill Q 4101
5. “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”):
   1. The tree· keepers will trim all four trees so that no tree branches of any kind or height protrude over the fence line.
   2. 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.
   3. 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.
   4. Work is to be completed by the 30 September 2018 or as extended by mutual agreement.

Legislation

11. [11]
    The Tribunal may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land:

12. [12]
    Neighbour is defined in section 49(1) of the ND Act.  If the land affected by the tree is a lot recorded in the freehold land register under the Land Title Act 1994 (Qld), it includes a registered owner of the lot under the Act and an occupier of the land.
13. [13]
    The Tribunal has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that, as at the date of the application to the Tribunal, land is affected by the tree.^[2]
14. [14]
    Land is affected by a tree at a particular time if, inter alia, any of that the following applies:

15. [15]
    Section 66(2)(b)(ii) applies to interference that is an obstruction of sunlight only if:

16. [16]
    An order may, inter-alia:

17. [17]
    Window is defined.  It includes a glass door, window forming part of a door, skylight, or other similar thing.^[5]
18. [18]
    The matters for the Tribunal’s consideration in deciding an application for an order under section 66 include safety, the primary consideration (section 71), general matters (section 73), other matters if a serious injury or damage is alleged (section 74) and other matters if unreasonable interference is alleged (section 75).  A living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.^[6]

Hearing

19. [19]
    The proceeding was heard by the Tribunal on 14 April 2023.
20. [20]
    The first applicant appeared in person for himself and on behalf of the second applicant.  The respondent appeared in person by telephone.

Evidence

21. [21]
    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.
22. [22]
    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).
23. [23]
    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.
24. [24]
    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.
25. [25]
    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.
26. [26]
    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’.
27. [27]
    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.

Discussion

Falling branches

28. [28]
    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.
29. [29]
    The respondent concedes branches of tree one overhang the applicants’ land.
30. [30]
    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.
31. [31]
    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.
32. [32]
    I accept the applicants’ land is affected by tree one, and so find.

Leaf litter

33. [33]
    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.
34. [34]
    In Vecchio v Papavasiliou^[7], the Tribunal, citing Thomsen v White^[8], held:

Leaf litter and small elements of deadwood is a natural consequence of the presence of urban trees. It is not normally a ground for an order by the tribunal.  Here, there is little evidence of leaf litter from the hedge.  There is no evidence that the amount of leaf litter is enough to constitute a nuisance, let alone a substantial, ongoing, and unreasonable interference with the use and enjoyment of Mr Vecchio’s land.  I do not propose any order to address the leaf litter.^[9]  (Citations omitted.)

35. [35]
    In Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford^[10], the Appeal Tribunal, at [81], observed:

The Tribunal may only make an order under s 66(2)(b)(ii) of the [ND Act] if it is satisfied that, as a result of the severe obstruction of a view, it is necessary to remedy, restrain or prevent a substantial, ongoing, and unreasonable interference with the use and enjoyment of the neighbour’s property.  The use of the conjunctive in s 66(2)(b)(ii) requires all three requirements to be present for interference to be established.  The words “substantial”, “ongoing” and “unreasonable” are not defined in the [ND Act] and therefore carry their ordinary meaning.  Substantial means “of considerable importance, size, or worth”.  Ongoing means “continuing; still in progress”.  Unreasonable means “beyond the limits of acceptability or fairness”.  Interference, in order to satisfy s 66(2)(b)(ii), must therefore be considerable and beyond the limits of acceptability.  (Citations omitted.)

36. [36]
    It is not suggested the leaf litter is causing serious injury to any person or serious damage to the applicants’ land or any property on the applicants’ land.  For leaf litter to interfere with the use and enjoyment of the applicants’ land, the interference must be substantial, ongoing, and unreasonable.
37. [37]
    I am not satisfied, to the requisite standard, the leaf litter falling from tree one constitutes interference that is substantial, ongoing, and unreasonable.

Sunlight

38. [38]
    The applicants complain about tree one obstructing sunlight to their backyard but is not the ‘main concern’.  The respondent asserts the backyard enjoys ‘full sunlight’ for about two hours each day.
39. [39]
    Section 66(2)(b)(ii) of the ND Act only applies to interference that is an obstruction of sunlight if the tree rises at least 2.5 metres above the ground and the obstruction is severe obstruction of sunlight to a window or roof of a dwelling on the neighbour's land.  I am satisfied tree one rises at least 2.5 metres above the ground.  However, I am not satisfied, to the requisite standard, the obstruction is severe.  Further, and in any case, there is no evidence the obstruction, severe or otherwise, is to a window (as defined) or the roof of the applicants’ home.

Conclusion and orders

40. [40]
    I have found the applicants’ land is affected by tree one.  The respondent is a tree-keeper and has the responsibilities imposed on him by section 52 of the ND Act.
41. [41]
    Before the Tribunal may make an order under section 66, it must be satisfied of the matters in section 65.  I am satisfied of the following matters:

1. the applicants have made a reasonable effort to reach agreement with the respondent; and

2. the applicants have taken all reasonable steps to resolve the issue under any relevant local law, local government scheme, or local government administrative processes;

3. the overhanging branches of tree one extend to a point over the applicants’ land that is at least 50 centimetres from the common boundary and the parties cannot properly resolve the issue using the process under part 4 of the Act; and

4. the applicants have given a copy of the application to the respondent.

42. [42]
    The safety of a person, as I have said, is the primary consideration.^[11]  However, a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.^[12]  In my opinion, tree one should not be removed or destroyed; the issue relating to the tree can otherwise be satisfactorily resolved.
43. [43]
    In deciding what orders are appropriate, I have considered each of the matters in section 73 of the ND Act, to the extent relevant in the circumstances here.  And because the applicants allege tree one is likely to cause serious injury to a person and has caused, is causing and is likely to cause serious damage to the applicants’ land and property, I have considered the matters in section 74.
44. [44]
    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

45. [45]
    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:

1. be installed by an AFQ level 5 arborist with the appropriate insurance cover; and

2. 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.