Absolon v Hetherton
[2024] QCAT 596
•25 November 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Absolon v Hetherton [2024] QCAT 596
PARTIES:
CATHRYN ELIZABETH ABSOLON (applicant)
THOMAS JOHN ABSOLON (applicant)
v
BRADLEY JOHN HETHERTON (respondent)
TRACY LORRAINE HETHERTON (respondent)
APPLICATION NO/S:
NDR114-22
MCDQ49-22 Caboolture
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
25 November 2024
HEARING DATE:
19 August 2024
HEARD AT:
Brisbane
DECISION OF:
Member Howe
ORDERS:
1. Mr and Mrs Hetherton shall be entitled to enter Mr and Mrs Absolon’s property at 40 Bellay Road, Beachmere to perform the suggested arboriculture management work noted in the tree assessor’s report dated 8 May 2023, a copy of which is attached to these orders.
2. The work is to be undertaken by a suitably qualified arborist at the cost of Mr and Mrs Hetherton.
3. The arborist so engaged may also perform such additional branch cutting and pruning work as the arborist recommends as necessary to ensure Mr and Mrs Hetherton comply with their obligations as tree-keepers under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).
4. The work shall be done on or before 31 December 2024 after giving Mr and Mrs Absolon 7 days written notice of the intention to enter to perform the work.
5. Should the work not be completed by 31 December 2024, subject to Mr and Mrs Absolon having acted in good faith and not prevented or hindered Mr and Mrs Hetherton performing the work, Mr and Mrs Absolon shall be entitled to have the aforesaid work performed by a suitably qualified arborist engaged by them on their giving 14 days written notice of that intention to Mr and Mrs Hetherton.
6. Should Mr and Mrs Absolon be required to carry out the work mentioned above or the further biennial work provided for by Order 8 below in default of it being done by Mr and Mrs Hetherton, their suitably qualified arborist shall be entitled to enter Mr and Mrs Hetherton’s property at 30 Bellay Road, Beachmere to carry out the work.
7. The costs incurred by Mr and Mrs Absolon engaging a suitably qualified arborist to do the work in default of Mr and Mrs Hetherton shall be recoverable from Mr and Mrs Hetherton as a debt without further notice being required to be given.
8. Mr and Mrs Hetherton shall also ensure a suitably qualified arborist attends and prunes the trees along the common boundary every 24 months after the trees are first pruned pursuant to Orders 1, 2 and 3 above.
9. Mr and Mrs Hetherton and any suitably qualified arborist engaged by them to perform the initial work or biennial pruning shall be entitled to enter Mr and Mrs Absolon’s land to do that, subject to 7 days written notice being given of the work to be done.
10. A suitably qualified arborist shall be someone with a minimum qualification of Australian Qualifications Framework level 5 in arboriculture with appropriate insurance cover.
11. These orders shall remain in force and effect for a period of 10 years from the date hereof.
12. The claim for compensation by Mr and Mrs Absolon is refused.
13. The claim for legal costs by Mr and Mrs Absolon is refused.
CATCHWORDS:
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where neighbours on rural-residential land complained that the tree-keepers did not maintain trees on the common boundary – where the neighbours gave the tree-keepers Form 3 Notices to remove overhanging branches but refused permission for the tree-keepers to access their land for the purpose – where the neighbours filed an application for a tree dispute in the Tribunal – where a tree on the fence line fell in a storm and damaged the neighbours’ property – where the neighbours objected to the tree-keepers performing clean up tree maintenance by accessing the neighbours’ land – where the neighbours claimed on their insurance for damaged property and claimed additional compensation from the tree-keepers – where a tree assessor appointed by the Tribunal had made recommendations – where the tree-keepers were prepared to perform the recommended work but the neighbours objected to the arborist engaged to perform the work and objected to the tree-keepers entering their land – where an order allowing the tree-keepers to perform the recommended work was appropriate to assist the tree-keepers comply with their obligations as tree-keepers – where an order for additional compensation in favour of the neighbours was not appropriate in the circumstances and intention of the Act
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 3(a), s 52, s 56, s 57, s 57(3)(c), s 65, s 66(5), s 74(1)
Young v Chief Executive Officer (Housing) [2023] HCA 31
APPEARANCES & REPRESENTATION:
Applicants:
Self-represented
Respondents:
Self-represented
REASONS FOR DECISION
The parties own adjacent land on rural-residential acreage.
The applicants (‘the Absolons’) have filed an Application for a tree dispute in the Tribunal and separately a minor civil dispute application for a fencing dispute. The respondents (‘the Hethertons’) are named as respondents to the tree dispute and Mr Hetherton the respondent to the fencing dispute.
Originally there were three issues for determination.
First and primarily there is the tree dispute. In the initial application for a tree dispute the Absolons say tree branches from the Hethertons’ property overhang their common boundary. They want them cut back. The Hethertons respond that the Absolons would not let them do the work.
The second issue concerns a particular tree which fell from the Hethertons’ property onto a shed on the Absolons’ land, destroying it. The shed has been replaced by insurance but the Absolons seek additional compensation.
Finally there is a very minor fencing dispute. At hearing the Absolons, the applicants in the minor civil dispute matter, advised this is no longer in issue.
The tree dispute
The Tribunal directed a tree assessor (an arborist, level 5) to attend on site to inspect and provide a report. The assessor attended the properties on 3 May 2023. He observed trees from the Hethertons’ property with branches extending well out over the common boundary.
In his report the tree assessor made recommendations about 7 trees as follows:
(a)Trees 1 & 2 mature Cadaghis remove to ground level
(b)Trees 3 and 5 mature Black Butts canopy lifting, weight and hazard reduction pruning
(c)Tree 4 mature Swamp Mahogany canopy lifting, weight and hazard reduction pruning
(d)Tree 6 mature Cadaghi canopy lifting, weight and hazard reduction pruning
(e)Tree 7 (actually) several dead trees remove
at boundary
He noted that Tree 2 had recently failed at a height of 3 metres and was now growing profuse epicormic shoots.
Tree 2 was the tree that fell onto the Absolons’ shed.
All parties accept the assessor’s report. The difficulty, according to the Hethertons, is that the Absolons refuse to allow them to come onto their property to do the work.
The relevant history between the parties starts about September 2021 when the Absolons took up residence at their property, though they had owned the property as a rental for many years prior. The Hethertons had lived next door since 2019 before the Absolons moved in. There is no indication that there was any issue about trees or their maintenance before that.
Mr Hetherton was doing some fencing work about 3 October 2021. Mrs Absolon spoke to Mr Hetherton about overhanging tree branches along the shared driveway being a nuisance and danger according to her statement of evidence. Mr Hetherton told her he had just spent $4,000 doing tree maintenance work. He telephoned his arborist in her presence, according to Mrs Absolon, and after that informed Mrs Absolon she could (or was entitled to) cut overhanging branches and throw them back over the fence onto his land. The outcome was that Mrs Absolon wrote a letter of complaint to the Dispute Resolution Centre on 3 October 2021[1] referring to Mr Hetherton’s behaviour escalating (which behaviour is not explained), a report to Crimestoppers and the possibility of a complaint to local police, as well as a Form 3 (see below) to be posted.
[1]Exhibit 1.
On 24 April 2022 the Hethertons say they tried to discuss both the dividing fence and clearing of trees on the boundary with the Absolons. They went next door to do that. Apparently that did not go well either. They were told their entry onto the Absolons property was a trespass. According to Mrs Hetherton, the discussion deteriorated rapidly with Mrs Absolon making a very unnecessary derogatory personal remark about her (which was not refuted by Mrs Absolon at hearing)[2] before Mrs Absolon called the police.
[2]T1-64 L2.
According to Mrs Absolon in a statement of evidence, her view of the meeting was that Mrs Hetherton demonstrated a “foul demeanour” towards her “regarding their trees” and there was no attempt made by Mrs Hetherton to resolve the tree issue.
Shortly after that the Absolons gave the Hethertons the first of two Form 3 Notices for Removal of Overhanging Branches. Attached to the first was a quotation from a tree lopper (the Absolons’ arborist) to cut back trees on the boundary at a cost of $1,760. It is not clear what the Absolons expected the Hethertons to do about the quoted cost.
The second was given on 15 May 2022. Again, attached to the Form 3 was a fresh quotation from the same arborist to cut back trees, this time at a cost of $1,980.
Mr Hetherton responded in writing on 22 May 2022[3] saying he disagreed with their proposal (apparently that the work be done by the tree lopper) but he, personally, was prepared to come onto the Absolons’ property to cut back overhanging branches extending more than .5 m over the fence to a height of 2.5 m above the ground. The height and distance limitations to the cutting work mentioned by Mr Hetherton were correct. The Notice clearly gives either the tree-keeper or a contractor a licence to enter the neighbouring property for that purpose. That grant of a licence to enter to perform the work is a requirement of s 57(3)(c) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’).
[3]Ex 9.
However in the letter he said he had also received a “cease and desist” letter dated 14 May 2022 from the Absolons informing him he was not to come onto their land again. In the letter he said he could identify the trees along the boundary fence, along the driveway, but he could not identify “2 Cadaghi in the back yard with overhanging stratco fence”. He added:
When we can agree on and arrange a suitable time and date, I will come and trim the identified trees along the driveway. I would also appreciate if you could trim your trees that overhang my property at the back, as a responsible tree owner.
The writing was returned with the comment “We do not agree to this response.” It was signed by Mrs Absolon.
That made compliance by the Hethertons with the Form 3 impossible in so far as they were not allowed to enter the Absolons’ land.
The Absolons refusal of entry to their land was in breach of the requirements of the Form 3 Notices and rendered them of no effect as far as obligating the Hethertons to do work.[4]
[4]Additionally, by s 57(5) of the Act, there is only one Form 3 Notice permitted in any 12 month period.
The refusal of access, not only to the Hethertons but also to their contractors, to permit them to do tree maintenance work, remained a constant in the relationship between the parties thereafter.
The Absolons filed an application for a tree dispute in Caboolture Magistrates Court on 1 June 2022. The application sought orders from the Tribunal requiring the Hethertons to remove or prune branches of trees.
On 28 June 2022 Mrs Absolon wrote to the Tribunal registry complaining about the Hethertons doing tree maintenance work at the boundary. She complained about the Hethertons clearing away overhanging branches “in dispute”. She stated she had not been given notice of entry by them to do that and the Hethertons had had their access to her property revoked under a “cease and desist” notice. She attached a photograph of the work being done.
On 4 January 2023 there was a very large storm, and Tree 2 (as referred to in the assessor’s report) fell across the Absolons’ shed, effectively destroying it.
On 6 January 2023 the Hethertons engaged an arborist (Mr Pratt, level 5 Arborist) to attend to investigate the fallen tree. The arborist reported that the tree fell most probably as a result of the severe storm cell event of 4 January 2023. He recommended the remaining section of the tree be removed.
On 9 January 2023, apparently under the supervision of the same arborist Mr Pratt, trees were trimmed from the Hethertons’ side of the fence line. Mrs Absolon again objected to that work being done and made a complaint to the local council. A council officer attended the next day and found the tree work that had been performed had not breached any laws.
Given the assessor’s report of 8 May 2023, a copy of which was forwarded to both sets of parties, and given the fall of Tree 2, on 9 September 2023 Mrs Hetherton wrote to the Absolons and requested access to their land for an arborist to attend to cut and trim as recommended by the assessor. The Absolons again refused access. They gave a number of reasons, including a query whether the work was “legal” and questioning whether the Hethertons’ arborist would be suitable, adding they preferred to nominate their own arborist and would be seeking an order to that effect from the Tribunal. There was no evidence or suggestion that the Hethertons’ proposed arborist did not hold all necessary qualifications or insurances, nor that the Absolons would be required to pay any part of the costs of the arborist engaged by the Hethertons. There was mention by the Absolons of more information being required, but what further information was needed was not made clear.
Mrs Hetherton says in her statement of evidence that this work followed the parties attending a directions hearing before a Senior Member where both parties agreed that the work suggested by the assessor to be done, would be done. The delay in acting on that was occasioned by the Hethertons waiting on a direction confirming that coming from the Tribunal, which did not happen. I accept their explanation for delay, if there was delay, which was an accusation raised against them by the Absolons at hearing.
It is unclear about the circumstances, but at hearing Mrs Hetherton said they had also done some of the work recommended by the assessor in June 2024, prior to the hearing. There is no explanation from either party about what that work entailed.
The legislation
The Act provides by s 52(1) that a tree-keeper is responsible for cutting and removing branches of a tree overhanging a neighbour’s land.
The tree-keeper is responsible for ensuring the tree does not cause serious injury to a person or damage to a person’s land or property on a person’s land (s 52(2)).
By s 57 where branches extend at least .5 m from the common boundary and only to the extent the branches are 2.5 m or less above the ground, the neighbour may give a written notice (Form 3) asking the tree-keeper to cut and remove the overhanging branches.
By s 58, if a written notice (Form 3) is given and the tree-keeper does not cut and remove the branches, the tree-keeper is liable for the reasonable expenses incurred by the neighbour involved in cutting and removing the overhead branches, but only to a maximum of $300.
Where branches extend at least .5 m from the common boundary and the height of the branches exceed 2.5 m above the ground, the neighbour must apply to the Tribunal if the tree-keeper and neighbour cannot resolve the matter informally.
Section 65 provides the Tribunal may make an order under s 66 if it is satisfied the neighbour has made a reasonable effort to reach agreement with the tree-keeper, the neighbour has taken all reasonable steps to resolve the issue, the neighbour has utilised any available local government administrative process to resolve the matter and:
(c) to the extent the issue relates to the land being affected because branches from the tree overhang the land—
(i)the branches extend to a point over the neighbour’s land that is at least 50cm from the common boundary; and
(ii)the neighbour can not properly resolve the issue using the process under part 4;
Part 4 referred to is the Form 3 process which is limited to cutting branches extending at least .5 m over the boundary but no higher than 2.5 m above the ground.
Whilst I am not persuaded the Absolons made any great effort to resolve the tree problem informally, they did contact the Dispute Resolution Centre and whilst they misconstrued the Form 3 process I determine no resolution was possible under part 4 of the Act anyway, given the branches under complaint stood in excess of the 2.5 m height limit.
The orders the Tribunal may make are set out in s 66:
Orders QCAT may make
…
(2) QCAT 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.
…
(5) Without limiting the powers of QCAT to make orders under subsection (2), an order may do any of the following—
(a)require or allow the tree-keeper or neighbour to carry out work on the tree on a particular occasion or on an ongoing basis;
Examples—
•an order that requires the removal of the tree within 28 days
•an order that requires particular maintenance work on the tree during a particular season every year
•an order that requires particular work to maintain the tree at a particular height, width or shape
…
(e)require the tree-keeper or neighbour to pay the costs associated with carrying out an order under this section;
The recommendations made by the tree assessor appear entirely reasonable and appropriate. They are not opposed by the parties.
I shall make orders in accordance with those recommendations, but with the aim of facilitating the tree-keepers’ access to their neighbours’ land to permit them to do the necessary work, rather than from any failure to meet their obligations under the Act. This is based on the following findings.
I find the Hethertons have at all times been prepared to undertake tree maintenance work along the boundary of the properties but have been unreasonably prevented from doing that by the refusal of the Absolons to grant them or their contractors access.
Attempts by the Hethertons to undertake the work have been met with complaints by the Absolons to police and the local council. There is no evidence that any of the complaints have been well founded or have substance.
Mrs Absolon was advised by an arborist (level 3)[5] engaged by her on 27 June 2021 to have Tree 2 removed. It was standing at the time. The arborist, Mr Clay MacEachen, assumed[6] she would advise the Hethertons about that, which was a reasonable assumption to make. Mrs Absolon failed to do that however.
[5]T1-39 L12.
[6]Ex 6.
At hearing the Absolons claimed they had informed the Hethertons about their arborist’s warning. I find they did not.
Mrs Absolon said at hearing that she had given an informal warning to Mr Hetherton about her arborist’s recommendation on 31 October 2021 and “with one of Clay’s quotes, and then by the Form 3 notice”.
Mrs Absolon said elsewhere however that her discussion with Mr Hetherton on 31 October 2021 was about all the trees generally, not any particular tree.[7]
[7]T1-45 L47.
There was no mention of removing Cadaghi in any of the quotations from the Absolons’ arborist. After the second Form 3 notice was served on the Hethertons in May 2022, Mr Hetherton wrote to the Absolons and said he could identify the trees along the boundary fence along the driveway, but he could not identify “2 Cadaghi trees in the backyard with overhanging stratco fence”. He asked for a suitable time and date to discuss and trim the trees. The Absolons made no effort to set a date or meeting in response.
At hearing Mrs Absolon made it clear that the so called cease and desist notice given the Hethertons on 14 May 2022 remained “in place”[8] at the time of hearing.
[8]T1-57 L15.
The fallen Cadaghi tree which fell was very much a matter of hindsight on the part of the Absolons. There was no mention of it being likely to fall or being prone to failure or any recommendation to have it removed in the initial application for a tree dispute. There was only mention of “… 10 plus trees including cadaghi have branches/limbs 50 cm and more along the driveway entry and overhanging the back yard fence….” There was more than one Cadaghi tree along the fence line.
I find that had the Hethertons been advised by the Absolons about the arborist’s recommendation to remove Tree 2 before the storm of 4 January 2023, subject to them seeking confirmation from their own arborist and him agreeing, they would most probably have been ready and willing to have it removed.
The Absolons arborist’s view about Tree 2 was based solely on its species rather than on observable deterioration, fault or weakness. The tree assessor recommended two of that tree type, Cadaghis, be removed, but recommended that tree 6, another Cadaghi, remain and have work done consisting of canopy lifting, weight and hazard reduction pruning.
I accept the opinion of the arborist engaged by the Hethertons immediately after the tree fell that prior to falling, Tree 2 would not have exhibited any significant sign of weakness or decay recognisable other than by an “industry professional” that it might fail.[9] He had opportunity to investigate the fallen tree soon after the fall.
[9]Ex 10.
As stated, I shall make orders facilitating the tree-keepers’ access to their neighbours’ land to allow them to do the necessary work required as responsible tree-keepers on an ongoing basis. That is permitted by s 66(5)(a) of the Act.
Section 94 of the Act gives a person ordered to do work relating to trees a right to enter land owned by another person, subject to the person giving the other 7 days’ notice in writing of the intention to do so, and subject to entry being at a reasonable time and only to a reasonable extent necessary to carry out the relevant work.
It is not uncommon that the Tribunal also makes orders about future tree works. The orders can remain alive for 10 years. That would be appropriate here although there has been no guidance offered by the assessor or the other arborists about the required frequency of such future maintenance work.
Should the Hethertons fail to perform the relevant tree work at the periodic times stated in the orders then the Absolons shall be entitled to have their own contractors do the work and recover the cost from the tree-keepers as a debt.
If the failure of the Hethertons to perform the work however is due to the Absolons refusing access or otherwise hindering performance of the work by the Hethertons or their contractor, the cost of the work done by an arborist engaged by the Absolons to do the work may not be recoverable in a debt action brought by the Absolons.
Compensation claim
This leads to consideration of the next issue in dispute, the additional compensation claim made by the Absolons.
Tree 2 referred to by the tree assessor fell on the Absolons’ shed during a severe storm on 4 January 2023. The shed was effectively destroyed. Both parties claimed under their insurance for the cost of replacement. The Absolons were paid $26,656.30 by their insurer on about 15 February 2023.
The Absolons seek additional compensation however. How much is sought is unclear. By a miscellaneous matters application the Absolons sought $8,876.50 for various things including cutting the existing concrete slab to facilitate a new slab, bobcat and tip fees and cost of a new slab. At hearing the claim had changed to “around $4,000” according to Mr Absolon, which included the cost of four men’s labour to move a large table from the shed.
By s 66(5) of the Act an order may:
(f) require the tree-keeper to pay compensation to a neighbour for damage to the neighbour’s land or property on the neighbour’s land;
Division 4 provides as relevant:
70 Application of div 4
(1)This division states matters for QCAT to consider in deciding an application for an order under section 66.
(2)This division does not limit the matters QCAT may consider.
…
73 General matters to consider
(1)QCAT must consider the following matters—
(a)the location of the tree in relation to the boundary of the land on which the tree is situated and any premises, fence or other structure affected by the location of the tree;
…
(i)any risks associated with the tree in the event of a cyclone or other extreme weather event;
…
(k)the type of tree, including whether the species of tree is a pest or weed (however described) or falls under a similar category under an Act or a local law.
74 Other matters to consider if serious injury or damage alleged
(1)If the neighbour alleges the tree has caused, is causing, or is likely to cause serious injury to any person, or serious damage to the neighbour’s land or property on the neighbour’s land, QCAT may consider—
(a)anything other than the tree that has contributed, or is contributing, to the injury or damage or likelihood of injury or damage, including any act or omission by the neighbour and the impact of any tree situated on the neighbour’s land; and
(b)any steps taken by the tree-keeper or the neighbour to prevent or rectify the injury or damage or the likelihood of injury or damage.
The claim permitted under the Act is compensation for damage to land or property. The High Court recently explained in Young v Chief Executive Officer (Housing) [2023] HCA 31 what is necessary when dealing with compensation claims:
To adapt language drawn from judicial descriptions of the evaluative judgments required to be made in determining statutory compensation in other statutory contexts[20], the task of the Tribunal in each case is to arrive at a measure of compensation which conforms to the purposes of the Act and to the justice and equity of the case, having regard to the nature and purpose of the particular obligation with which there has been failure to comply….[10]
[10][25] per Keifel CJ, Gageler and Gleeson JJ.
What is the purpose of the Act in context of the factual matrix here, and what does the justice and equity of the case demand in result?
By s 3(a) of the Act an object of the Act is to provide rules about each neighbour’s responsibility for dividing fences and trees so that neighbours are generally able to resolve issues about fences or trees without a dispute arising.
By s 52 of the Act, it is the tree-keeper who is responsible for cutting and removing branches of a tree overhanging the neighbour’s land. A note to that provision states:
This section is intended to help a tree-keeper and neighbours resolve any issues about a tree without a dispute arising.
By s 56(1):
Overview
(1) The tree-keeper and neighbour are encouraged to resolve the issue informally.
(2) However, the neighbour may—
(a)exercise the common law right of abatement; or
(b)use the formal resolution process set out in this part.
Use of the formal resolution process set out in Part 4 permits a neighbour to give a written notice to the tree-keeper to cut or remove overhanging branches, but the neighbour is obliged to give permission to the tree-keeper of the tree-keeper’s contractor to enter the neighbour’s land to cut and remove branches.
Where the Form 3 Notice provision is not appropriate, the neighbour may apply to the Tribunal, but the tree-keeper and the neighbour are “encouraged to resolve the issue informally.”[11]
[11]s 60(1).
Finally, before making an application to the Tribunal, the neighbour must show the neighbour has made a reasonable effort to reach agreement with the tree-keeper, and the neighbour has taken all reasonable steps to resolve the issue under any relevant local law, local government scheme or local government administrative process.
The intention of the Act is clear. The parties are required to resolve matters between themselves if possible. They are expected to make fair effort about that before coming to the Tribunal.
What are relevant factors to be taken into account?
The tree fell whilst the current proceedings were on foot.
The Absolons refused access to the Hethertons and their contractors to their land, preventing them doing tree work.
The Absolons were not prepared to engage in discussions to resolve the trees issue but rather engaged police to prevent the Hethertons having access to their land.
The Absolons failed to inform the Hethertons which trees the Absolons’ arborist had suggested be removed but then pursued a claim for compensation when the tree fell.
The tree in question, Tree 2, showed no particular prospect of failure to a non-professional’s scrutiny before it fell.
Had the Hethertons been permitted to access the Absolons’ land and been advised that an arborist had recommended Tree 2 be removed, subject to their own arborist confirming that was appropriate, they would more likely than not have had the tree removed before it fell.
The Absolons offer no basis upon which the usual order permitting a tree-keeper to engage a suitably qualified contractor to do tree work should not have applied to them.
In light of the foregoing, I determine that it is not appropriate that the Absolons recover further compensation from the Hethertons in respect of the shed. The refusal of access, the refusal to permit the Hethertons to engage a contractor of their choice at the cost of the Hethertons and the failure to inform the Hethertons of the suggestion of the arborist that Tree 2 be removed was unreasonable behaviour on their part and not within the scope or spirit of the Act.
Fence dispute
At hearing the Absolons conceded the fence dispute was no longer pursued. It need not be addressed.
Disposition
The Hethertons as tree-keepers shall be entitled to enter the Absolons’ land to perform tree clearing work in accordance with the recommendations of the tree assessor.
They must give the Absolons 7 days written notice of their entry onto the Absolons’ property to do the work.
If they fail to do the necessary work by 31 December 2024 however, the Absolons shall be entitled to engage a contractor of their choice to have the work done and be entitled to recover the cost of that from the Hethertons, subject to the Absolons acting in good faith and not acting to prevent or forestall the Hethertons from performing the work themselves through their contractor.
Thereafter the Hethertons shall be entitled to enter the Absolons’ property for tree maintenance every 24 months to perform regular tree maintenance work as necessary to ensure the Hethertons are able to comply with their obligations as tree-keepers under the Act.
Should the Absolons prevent the Hethertons from performing such regular tree maintenance, then the responsibility for tree maintenance along the Absolons boundary should be borne by the Absolons with the Absolons unable to recover the costs of the work from the Hethertons as a debt.
The application for additional compensation by the Absolons is dismissed, as too their claim for legal costs. They merit no award in either respect.
0