Gilmore v Browne
[2025] QCAT 78
•28 February 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Gilmore and Anor v Browne [2025] QCAT 78
PARTIES:
NEIL ANDREW GILMORE (applicant)
ALICIA MELANIE PRICE
(applicant)
v
HARRY ANTHONY BROWNE (respondent)
VIVIANA BROWNE
(respondent)
APPLICATION NO/S:
NDR043-21
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
28 February 2025
HEARING DATE:
26 August 2024
HEARD AT:
Brisbane
DECISION OF:
Member D Brown
ORDERS:
1. Within 60 days of the date of the decision, being on or before 29 April 2025, Mr Harry Anthony Browne and Mrs Viviana Browne must, at their own cost, undertake the complete removal and stump grinding of the single Glochidion ferdinandi (Cheese Tree) located on the left side (northwestern) boundary fence of their property at 9 Radford Street, Southport.
2. Any roots from the subject tree growing on Mr Gilmore and Ms Price’s property are to be ground down to ground level and all tree debris is to be removed from Mr Neil Gilmore and Ms Alicia Price’s property and from Mr and Mrs Browne’s property after the tree removal is completed.
3. The work must be performed by either a tree lopper with current public liability and work cover insurances or a minimum Australian Qualifications Framework level three (3) qualified arborist with the same insurances.
4. Any tree lopper or arborist engaged by Mr and Mrs Browne shall be entitled to enter Mr Gilmore and Ms Price’s land at 14 Waldash Street, Southport to undertake the work in order 1 and 2, subject to providing 72 hours’ notice of the work being done.
5. Mr and Mrs Browne will be responsible for obtaining any necessary council approvals and paying all costs associated with undertaking the removal of the tree in compliance with orders 1-3.
6. If the tree works detailed in Orders 1 and 2 are not completed by 30 April 2025, Mr Neil Gilmore and/or Ms Alicia Price shall be entitled to have the work performed by a suitably qualified tree lopper or arborist with the appropriate public liability and work cover insurance.
7. Any tree lopper or arborist engaged by Mr Gilmore and/or Ms Price shall be entitled to enter Mr and Mrs Browne’s land at 9 Radford Street Southport, subject to providing 72 hours’ notice of the work being done.
8. If Mr Gilmore and/or Ms Price carry out the work in default of it being done by Mr and Mrs Browne, the costs incurred by Mr Gilmore and/or Ms Price in engaging a tree lopper and/or arborist to do the work and/or in obtaining council approvals, shall be recoverable from Mr and Mrs Browne as a debt without further notice being required to be given.
CATCHWORDS
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree dispute –where the tree branches overhang the boundary – whether the tree has cause serious injury or damage – whether tree causing substantial, ongoing and unreasonable interference – where tree has ecological and historical value.
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 3, s 45, s 46, s 47, s 48, s 49, s 52, s 61, s 65, s 66, s 67, s 71, s 72, s 73, s 74, s 75
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102
Belcher v Sullivan [2013] QCATA 304
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)
REASONS FOR DECISION
The applicants, Mr Gilmore and Ms Price, and respondents, Mr and Mrs Browne, are neighbours sharing a dividing fence between their properties. The applicants lodged an application in this Tribunal on 12 March 2021 claiming that:
(a)A Glochidion ferdinandi tree (commonly known as a Cheese Tree) on the respondents’ property has destroyed the border fence and one of the tree’s three main trunks is growing on their property.
(b)The tree branches overhang the boundary line and touch their house.
(c)The branches pose a risk of falling on their house and causing substantial damage and the tree previously caused blocked sewage lines in 2016.
(d)The applicants had offered to trim the tree, but the tree arborist advised it would only cause more root growth.
(e)The applicants attempted to resolve the dispute with the respondents prior to filing the application but were unsuccessful.
The applicants sought that the tree be removed, and the respondents pay for the costs of any tree works.
The respondents lodged a response with the Tribunal on 27 April 2021 stating:
(a)The subject tree is a wonderful specimen of a Glochidion ferdinandi, which contributes to the heavily treed character of the area. It provides significant shade protection to the property during summer months and contributes to the local ecosystem, biodiversity, natural landscape and scenic value of the land and locality.
(b)The retention of the tree will not affect the applicants’ use and enjoyment of his land when it is pruned.
(c)The applicants’ house is not compliant with Queensland development code and is closer to the boundary than it should be, which contributes to the impact of the tree on the applicants’ house.
(d)The Tribunal should not make orders to remove the tree and instead the tree should be pruned by a certificate 5 qualified arborist to remove the foliage which extends onto the applicants’ land, together with an ongoing management plan created by an arborist which the respondents will comply with and pay for. The respondents also state that a new dividing fence should be installed to butt up against either side of the tree.
Statutory framework
The relevant legislation is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’). The objects of the Act include the provision of rules about each neighbour’s responsibilities for dividing fences and trees. Neighbours should generally be able to resolve issues without a dispute arising, and if a dispute did arise, then the legislation facilitates for the resolution of that dispute.[1]
[1]The Act, s 3.
The Act provides that a tree, amongst other things, is any woody perennial plant, or any plant resembling a tree in form or size.[2] The tree involved in this application undeniably meets the definition in the Act and this is confirmed in the tree assessment report.[3]
[2]Ibid, s 45.
[3]Tree Assessment report of Michael Snowden dated 15 May 2022.
The Tribunal has jurisdiction to hear and decide any matter in relation to a tree if land is said to be affected by a tree.[4] The affected land must adjoin the land on which the tree is situated[5] or would adjoin the land if it were not separated by a road.[6] As the applicants and respondents are neighbours who reside on adjoining land, I am satisfied that these properties meet the definition of “land” as required under the legislation.
[4]The Act, s 61.
[5]Ibid, s 46(b)(i).
[6]Ibid, s 46(b)(ii).
Land is affected by a tree if branches from the tree overhang the land;[7] or the tree has caused, is causing or is likely within the next 12 months to cause serious injury to a person on the land,[8] serious damage to the land or property on the land,[9] or substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.[10]
[7]Ibid, s 46(a)(i).
[8]Ibid, s 46(a)(ii)(A).
[9]Ibid, s 46(a)(ii)(B).
[10]Ibid, s 46(a)(ii)(C).
The Act provides for who is a tree-keeper.[11] That is, if the land on which the tree is situated is a lot recorded in the freehold land register, it is the registered owner.[12] For the purposes of this application, the subject tree is primarily situated on the land belonging to the respondents, and therefore Mr and Mrs Browne are the tree-keepers.
[11]Ibid, s 48.
[12]As provided for in the Land Title Act 1994 (Qld), s 48(1)(a).
The Act makes provision for the responsibilities of a tree-keeper, including ensuring that the tree does not cause serious injury to a person; serious damage to a person’s land or any property; or substantial, ongoing and unreasonable interference with the use and enjoyment of another person’s land.[13] The primary consideration for the Tribunal in deciding an application is safety.[14]
[13]The Act, s 52.
[14]Ibid, s 71.
The Tribunal may make orders it considers appropriate in relation to a tree affecting a neighbour’s land to prevent serious injury to any person,[15] to remedy, restrain or prevent serious damage to a neighbour’s land or property on the land,[16] or to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.[17] However, a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.[18]
[15]Ibid, s 66(2)(a).
[16]Ibid, s 66(2)(b)(i).
[17]Ibid, s 66(2)(b)(ii).
[18]Ibid, s 72.
Without limiting the powers of the Tribunal to make orders under s 66(2) of the Act, the Tribunal may, among other things, require a tree-keeper or a neighbour to pay the costs associated with carrying out an order under s 66.[19] The Tribunal must consider a number of specified matters in deciding an application for an order under s 66 of the Act.[20]
[19]Ibid, s 66(5)(e).
[20]Ibid, s 73.
Material filed in proceedings
Both parties have filed significant material comprised of statements, submissions and emails to the Tribunal. All material filed by the parties and all expert reports have been reviewed and considered by the Tribunal in this decision.
Applicants’ position
The applicants assert the issues with the tree are that there are overhanging branches, the tree has caused damage and will continue to cause damage and it causes substantial, ongoing and unreasonable interference with the use and enjoyment of their land.
The specific concerns raised by the applicants are that:
(a)The tree has contributed to or caused the destruction of the border fence, and as a result the applicants’ dogs have entered the respondents’ yard due to the fence no longer being secure.
(b)In 2016 they had a sewer line blockage which had tree roots in it. This resulted in sewage flooding the downstairs area of their house and required a plumber to fix the blockage and install new piping. Given there are no other trees in the vicinity, they believe the tree roots are from the subject tree.
(c)There are new concerns about the tree causing ongoing water leaks and the impact of the roots on the pipes, causing blockages and water flooding. This is a result of the information received from the building contractor in July 2024 and the issue of water in the backyard and a water leak roof specialist in 2021 who advised branches are the cause of damage to tiles resulting in water leaks in the living room and office area.
(d)The branches overhang and touch the applicants’ roof. There are concerns about the damage they would cause if they broke, and it has impacted on their ability to use the side walkway where the tree overhangs.
(e)The overhanging tree has caused pests and insects to enter the house. In early 2019 a python entered the house, and the snake catcher advised the most probable point of entry was via the tree which overhangs the roof. In August 2019 a possum entered the house from the tree causing banging and noise and was observed trying to escape back out of the house onto the tree. A professional pest contractor advised that the tree is one of the causes of ants gaining access to the applicants’ roof.
(f)Mr Gilmore and Ms Price are increasingly anxious about the risk the tree poses. They have a young child, and the trunk is less than one metre from the home and where the branches overhanging the house is right above where the baby’s playroom is located.
Mr Gilmore and Ms Price were not initially seeking the tree be removed, only that the branches overhanging their property be removed, and the trunk be split to remove the section growing on their property. However, they have been advised by multiple arborists that this was not possible, and the tree had to be removed.[21]
[21]Although only one arborist report was filed in the proceedings by the applicants, Mr Gilmore gave evidence they obtained three reports, but the first two arborists’ reports were not accepted by the respondents due to being only level 3 arborists.
Mr Gilmore and Ms Price have advised Mr and Mrs Browne that the tree needs to be removed because of the overhanging branches and before they can repair the damage it has already caused to the fence, but Mr and Mrs Browne have taken no action to either remove the tree or to prune any of the branches which overhang onto their property.
In support of the application, in addition to the material filed with the application and Mr Gilmore’s own statements, the applicants reply on a TPZ Project Arborist Report dated 13 July 2021 from David Gunter and the QCAT tree assessment report from Michael Sowden dated 15 May 2022. The applicants also provided evidence by way of witness statements and emails from John McIntyre, the previous owner, neighbours Stephen and Geanina Markey and a building contractor Adrian Bagley from Crown Development Group.
The building contractor, Mr Bagley, advised when inspecting Mr Gilmore and Ms Price’s property in 2024 to quote on repair works and renovations that he noticed the backyard was extremely wet and the ground was sinking. Upon further investigation he discovered that a large tree on Mr and Mrs Browne’s property (being the subject tree) had completely destroyed the boundary fencing and its trunk and root system had forced its way into the drains along the side of the applicants’ house. The contractor stated in their professional opinion the tree is the main cause of all the damage to the drains and the boundary fence that has been destroyed.
Respondents’ position
The respondents state the tree poses no danger to any person or property. Mr and Mrs Browne dispute a lot of the specifics and measurements provided by the applicants, stating some of the information is misleading.
They acknowledge that there are branches from the tree which overhang but state it is only an insignificant light branch overhanging, just over an insignificant part of the roof of the neighbour’s house.[22] They acknowledge tree roots blocked the sewer but state it is only one drain, only once in 2016 and there have been no issues since.[23]
[22]Submission of Mr Browne filed 5 August 2024, page 2.
[23]Ibid.
Mr and Mrs Browne’s position is that the tree should not be removed because of the value it provides to the environment and the community but accept it should be trimmed and they advised they are prepared to prune the tree as proposed by their tree assessor Henk Morgans. Mr and Mrs Browne state the fence issue can be resolved by building a new fence which butts up to the tree trunk. They are willing to do this and have advised the cost involved is minimal.
Mr and Mrs Browne rely upon the historical, biodiversity and environmental factors in relation to the tree which they say should trump the impact of the tree to the applicants. Mr and Mrs Browne state it is inconceivable that in this day and age of global warming and given the benefit to the planet that trees provide, that an application could be made to destroy a tree that is older than the applicants or the respondents and which is merely causing deflection of a timber fence.
The respondents state the direction the tree grows is a southerly direction so any leaf or twig fall will be negligible. The light leaf and twig fall can be alleviated by pruning. In addition, the applicants’ house is not in compliance with the requirements of the Building Act 1975 (Qld) which aggravates the issues caused by the tree which would not be as bad if the house was not built so close to the fence.
Mr Browne stated that he has removed another tree when requested by another neighbour, including a mango tree, as it was a reasonable request, but this request is not. Mr Browne emphasises the importance of the tree for both the value it provides to his property, but also to the entire suburb, which is a well treed suburb. Mr Browne also emphasised the historical and cultural significance of the tree given how old it is and the environmental factors and the importance to flora and fauna.
In addition to Mr Browne’s own statements, the respondents rely upon an EverGreen Tree Care Arborist report dated 18 April 2021 and a Garden Tree Heritage Assessment from Catherine Brouwer, landscape architects, dated November 2022.
There are four professional reports before the Tribunal being:
(a)An arborist report completed by David Gunter from TPZ Project Arborists on 13 July 2021, filed by the applicants (‘TPZ report’),
(b)An arborist report completed by Henk Morgans from Evergreen Tree Care dated 18 April 2021 filed by the respondents (‘Evergreen report’),
(c)A heritage assessment report completed by Catherine Brouwer landscape architects dated 8 November 2022 filed by the respondents (‘Heritage report’); and
(d)The QCAT appointed tree assessor’s report conducted by Mr Michael Sowden dated 15 May 2022 (‘Tree Assessor’s report’).
TPZ report
The applicants engaged David Gunter, from TPZ Project Arborist, to complete a tree assessment report in 2021. An inspection was undertaken on 6 July 2021 and a report issued dated 13 July 2021.
The key findings of the report were:
(a)The subject tree is a mature Glochidion ferdinandi tree, commonly known as a Cheese Tree, which is approximately 18 metres tall and co-dominant.[24] There were no arboricultural issues with the subject tree, and it appears to be in good overall condition, good vitality and averagely structured.
(b)Overhanging branches from the subject tree extend into the applicants’ property by approximately five (5) metres, with some in direct contact with the roof and guttering of the applicants’ home.
(c)The base of the stem/trunk of the subject tree protrudes through the dividing fence and onto the applicants’ land. There is significant deviation in the fence line and significant damage to the fence as a direct result of ongoing annual tree growth.
(d)Buttress roots from the subject tree extend through the dividing fence and onto the applicants’ land. Roots from the tree are predicted to extend some distance into the applicants’ property. Using the Queensland Arboricultural Associations (‘QAA’) web-based calculator (and bearing in mind that stem diameter has been estimated from over the fence) Mr Gunter calculated that a twin stemmed tree of this size with a basal diameter of approximately 850mm requires a Structural Root Zone (‘SRZ’) of 3.09 metres and a Tree Protection Zone (‘TPZ’) of 9.6 metres.
(e)As the tree continues to grow there is potential for further, ongoing encroachment into the applicants’ property and further damage to the fence.
(f)It is clear from the images and observations that the subject tree encroaches into the applicants’ property and is causing direct damage to the property boundary fence. Given the location of the tree it is impossible to alleviate or eradicate the impacts of the damage on the fence by pruning. Removal of one stem of the tree will not eliminate the observed impacts and severance of buttress roots is not recommended, as the extent of cut required has the potential to destabilise the tree and/or allow colonisation by pathogenic decay fungi. Root barrier is not an option as it has the potential to cause catastrophic damage to the tree’s SRZ and stability and would likely cause the tree to fail at the base. Given that the tree has a canopy that is biased away from the applicants’ home, whole tree failure at the base would impact the respondents’ property significantly.
(g)Removal of the tree is recommended as it would remove the associated issues and allow reinstatement of the property boundary fence on the surveyed boundary.
[24]Meaning it has two main stems.
Evergreen report
The respondents engaged Mr Henk Morgans from EverGreen Tree Care to complete a tree assessment report in 2021. An inspection was undertaken on 23 April 2021 and a report issued dated 27 April 2021.
The key findings of the report were:
(a)The subject tree has two co-dominant stems originating from a ground level union. The stem located on the respondents’ property presented a diameter at breast height (‘DBH’) of 575mm and the stem located on the applicants’ property presented a DBH of 465mm.
(b)The overall tree height is 12 metres with a canopy spread of 16 metres, east to west, with minimal overhang over the neighbouring property. Prior pruning works have been undertaken on the tree with satisfactory wood wounds observed. The foliage is dense with the tree presenting excellent vigour and the tree presents in sound health and structural stability for the tree’s age.
(c)The tree displays signs of wildlife inhabitancies such as birds and possums. The tree provides shade for both morning and afternoon sun, adding to the overall Queenslander visual appearance of the property.
(d)The applicants’ house has been built quite close to the tree's root plate and it is highly likely that several large roots would have been severed and disturbed during the building process of the applicants’ house. There were no signs of exposed roots or unusual ground movement within the applicants’ property, indicating that the tree root system is unlikely to be causing any structural damage to the surrounding environment.
(e)Minor remedial works are recommended, comprising of removal of all deadwood, canopy lift and reduction of the branches encroaching over the neighbouring property roof line.
(f)It is also recommended that an annual tree inspection be undertaken every 12 months to assess the tree’s health and structural integrity. All future inspections and required works are to be undertaken by a minimum certified level three (3) arborist under the supervision of an Australian Qualifications Framework level five (5) arborist and in accordance with AS-4373 Pruning of Amenity Trees.
Heritage report
The respondents engaged Ms Catherine Brouwer, landscape architect, to complete a Heritage Assessment report on their property. A report was provided dated 8 November 2022. The purpose of the report was to support an application for entry on the Gold Coast Local Heritage Register and for Mr and Mrs Browne to use in the Tribunal to support the retention of the subject tree.
The report provides background information about the historical landscape structure, the traditional owners of the land, the building of the house and construction of the gardens by Mr and Mrs Radcliffe, the locality pattern and streetscape contribution and the garden and trees streetscape amenity values.
Key findings of the report relevant to these proceedings were:
(a) The Glochidion ferdinandi is an Australian native, found from coastal central Queensland to Southern New South Wales. It is a long-lived species which may live for 60 years or more.
(b) The tree's flowers and fruit are a food source for native animals, birds, insects such as lady birds, moths and butterflies, including honeyeaters, pigeons, fig birds, currawongs, and lorikeets. It is a good nesting tree and year-round habitat tree for birds, and possibly possums
(c) It is difficult to establish if this tree was planted by the Radcliffes. It was a mature tree in the early 1980s when the place was purchased by the current owners.
(d) The subject tree together with a mango tree contribute substantially to the locality amenity and streetscape character, through their high level of heritage significance and historical value, their attractive appearance and their environmental values.
The report included the following table about the cultural significance of the various trees and garden areas in the respondents’ property.
Tree assessor’s report
On 20 October 2021, the Tribunal appointed an appropriately qualified arborist as an assessor to carry out an inspection of the tree and provide a report to the Tribunal on the issues raised in the application.
On 7 May 2022, Mr Michael Sowden, the tree assessor, visited the properties. He subsequently prepared a report for the Tribunal dated 15 May 2022.
Key findings of the report are:
(a)The subject tree is a Glochidion ferdinandi (Cheese Tree) which has a single basal root crown that spreads into three main leaders at approximately 1.0m above ground level. It is 1100-1200mm in diameter and has a canopy height of 18m. The upper canopy spreads laterally across the boundary of the applicants’ property by approximately 3.5m with its upper canopy being in direct contact with the structure of the applicants’ dwelling.
(b)The upper canopy has minimal deadwoods and foliage that appear as being within normal parameters for a tree of this species and maturity. There is no significant pathogen activity that was visible within the foliage, the trunks or within the basal root crown.
(c)The lower trunk splits into co-dominant leaders at approximately 1.0m with the north leader being in contact with the dividing timber fence structure causing severe deformation and displacement of the fence. The basal crown is growing through the dividing fence across the boundary of the neighbouring properties with several large buttress roots being visible within the applicants’ property. The dividing fence was significantly displaced and unstable along the majority of its length and it will likely further rapidly deteriorate which means its replacement will be likely required in the short-term future.
(d)Within the grass lawn area of the respondents’ property, multiple large, exposed roots are visible with their top surfaces being mechanically damaged during lawn maintenance activities. Large amounts of accumulated tree debris that have originated from the subject tree is present on the ground surfaces along the side of the applicants’ dwelling and within the applicants’ dwellings roof guttering.
(e)The respondents’ property is within an “Environmental significance – wetlands and waterways – Matters of local environmental significance – wetlands and waterways – Buffer area” mapping overlay area and the City of Gold Coast should be contacted prior to any tree inference to establish the protection status of the subject tree.
(f)It is visibly obvious that the subject tree is causing “serious damage to the land or any property on the land” and “substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land” as its lower trunk and basal root crown grow through the correct surveyed alignment of the boundary causing significant damage / displacement to the dividing fence structure and that the canopy of this tree is impacting the structure of the applicants’ dwelling which necessitates ongoing maintenance be performed to prevent significant damage to the applicants’ dwelling through impact.
(g)Whilst the pruning and inspection recommendations of the subject tree as proposed within the Evergreen report could allow for the future retention of this tree, it would not satisfactorily resolve the issues relating to the location of the subject tree within the dividing fence structure or resolve the damage and displacement that is being caused to the dividing fence structure.
(h)The pruning recommended by Mr Henk Morgans would need to be performed on a constant ongoing basis as this tree will naturally attempt to rapidly redevelop its north-western canopy towards the natural light availability in this area as a direct stress response from the significant amount of pruning that would be required. It will also result in multiple large pruning wounds, with each having the potential to allow pathogen infestation and decay development. The advanced maturity of this tree means it likely has a declining growth vigour and an ever-reducing capacity to develop wound compartmentalisation.
(i)Whilst this cheese tree is a significant mature example of its species with high environmental and amenity values, its retention could not be managed feasibly within arboricultural means whilst allowing for the construction of a new fence along the correct boundary alignment.
(j)The recommendations of the tree assessor are that:
(i) The Tribunal order the complete removal and stump grinding of the single cheese tree located within the left side (northwestern) boundary fence of the applicants’ property.
(ii) All tree debris to be removed from the applicants’ and respondents’ property after the recommended pruning is performed.
(iii) All works shall be performed by a minimum level three (3) qualified arborist with current public liability and work cover insurances.
A proposed agreement was provided to the parties in line with the tree assessor’s report which the applicant, Mr Neil Gilmore, signed on 19 July 2022. The respondents Mr and Mrs Browne did not sign the agreement and do not agree with the tree assessor’s report.
After the hearing the parties were given an opportunity to provide any submission about the tree assessor’s report. No submission was provided by the applicants who agree with the report.
The respondents provided submissions confirming they do not agree with the tree assessor’s report. Their main concerns were:
(a)They felt the tree assessor spent disproportionately more time on the applicants’ property than on their property or talking to them.
(b)They felt that the tree assessor’s comment that it was “unfair to him” to require regular pruning was condescending and it should be up to them to consider the necessity and consequences of the need to prune.
(c)Two years have passed since the assessment and no notable effects have occurred other than some twigs and leaves dropping.
(d)The roots on the applicants’ property identified by the tree assessor are mischaracterised as “buttress roots”.
(e)The report failed to mention the viable option of rebuilding the fence butting up to the tree and retaining the tree.
(f)They dispute there is any serious damage, the fence can be corrected by rebuilding it on both sides of the tree and the use of the word severe, as opposed to serious, demonstrates prejudice.
(g)They do not accept that pruning cuts will lead to any harm to the tree, as in the past they have healed over.
Hearing
The matter proceeded to a one-day hearing on 26 August 2024. Mr Neil Gilmore gave evidence for the applicants. Mr Harry Anthony Brown gave evidence for the respondents, and he called the landscape arborist, Ms Catherine Brouwer, to give evidence and be available for cross examination.
The respondents had requested the applicants make David Gunter, Stephen Markey, Geanina Markey, John McIntyre and Jean McIntyre to be available at the hearing for cross examination, however they were not present at the hearing.
Nothing arises from Mr and Mrs Markey and Mr and Mrs McIntyre not being available as they have no critical or helpful information in relation to the subject tree and no weight has been placed on their statements as they are of little relevance to the issues to be determined.
In terms of Mr David Gunter, Mr Browne advised that he requested Mr Gunter’s attendance so he could “discuss his report with me and my landscape arborist”. He was invited to make submissions on how Mr Gunter’s evidence should be treated or what weight should be placed on the report, given Mr Gunter was not available for cross examination, but provided no clear submissions. Other than noting that the report did not consider the option of a fence which butted up to the tree to avoid removal, Mr Browne raised no other criticism of the report.
No real prejudice was caused to the respondents due to Mr Gunter not being available at the hearing. The TPZ report is just one of three tree assessors’ reports which have been provided to the Tribunal and all are relatively consistent in terms of the findings about the tree. The key variations are in the recommendations as to how to manage the impacts of the tree on the neighbouring property.
Mr Gilmore’s evidence aligned with his application, statements and submissions provided, and his evidence was not changed under cross examination.
Mr Gilmore reiterated in addition to the damage caused to the fence, he was concerned about the impact of the roots on his property as there was earth movement below the tree and cracking appearing on the retaining wall, and he had received a letter from a building contractor stating the tree had to be removed before they could resolve the water issues with the yard.
Mr Gilmore advised his partner Ms Price is worried about safety issues given the significant overhanging branches, should any of those branches break and he re-emphasised the concerns about a python entering the house and blocked sewage.
Mr Gilmore stated the tree is not a beautiful tree but was a low-grade tree, and the tree arborists told him that it was a “rubbish tree”. Mr Gilmore emphasised that there is no evidence the tree had been intentionally planted by the original owners of the property, and it may have grown from a seed being dropped by a bird as the bird flew by.
Mr Gilmore stated that Mr Browne had made no attempts to address the issues the tree has caused, he has not pruned it or conducted maintenance check in line with his own arborist’s report. He reiterated his position that the only option to address all of the issues arising from the tree was for the tree to be removed.
Mr Browne’s evidence aligned with his application and statements and submissions provided, and his evidence was not changed under cross examination.
Mr Browne reiterated his position that there was no damage other than the damage to the fence and that can be easily resolved by rebuilding a fence which butts up to the tree as opposed to removing the tree. He asserted that there was no sign of movement in the ground or structures around the tree, no significant dropped branches and the tree has been tested by storms and strong winds and was totally safe.
Mr Browne emphasised that the tree is a significant feature of the suburb, important for wildlife and environment. It is a beautiful tree in terms of its foliage and shape and a significant tree which should be preserved.
Mr Browne asserted the issues and concerns with the tree can be addressed by pruning, regular inspection and replacement of the portion of the fence damaged by tree with another that butts up to the tree. He is prepared to prune the tree in line with the arborist’s recommendations but accepted that he had not done so in the past three years since receiving the report, despite the recommendations being for yearly assessments. Mr Browne states this was due to the proceedings, and it may have been a waste to get an assessment of the tree if in a few months the Tribunal determined the tree should be removed.
Ms Catherine Brouwer’s evidence aligned with her Heritage report and in her evidence, she emphasised the historical importance of Mr Browne’s property and trees, and that it would have significant historical impact if the subject tree was removed.
Ms Brouwer acknowledged under cross examination that she could not confirm that the tree was intentionally planted by the original owners, the Radfords, and the tree may have been created simply from a bird dropping a seed.
Ms Brouwer also advised she was not asked to look at any detrimental impacts of the tree remaining; she only looked at the beneficial impact.
Mr Brouwer raised some concerns with the tree assessor’s report and the completeness of his answers, but noted that she was not an arborist, and her qualifications were in landscape architecture and in design studies.
At times Ms Brouwer’s evidence extended outside of her area of expertise, providing advice about the tree and risk caused to the ground from its removal, from her personal opinions and knowledge she had picked up through her work working alongside arborists, as opposed to her qualifications and area of expertise, and she gave unprompted advice on who would be legally responsible for future damage.
No party sought to call the tree assessor. However, the applicants and respondents were given an opportunity after the hearing to provide submission on the tree assessor’s report.
Findings of the Tribunal
All material filed by both the applicants and respondents and all expert reports have been considered. The Tribunal finds the tree assessor’s report to be a relevant and informative report which the Tribunal has relied upon in its decision.
The Tribunal does not accept the respondents’ criticism of the tree assessor’s report. It is accepted that one of the photographs on page 28 is incorrectly labelled as the tree touching the applicants’ property when it is the respondents’ property, but there are multiple other photographs on the proceeding pages which demonstrate the tree touches the applicants’ property.
The Tribunal is satisfied of the interpretation and jurisdictional issues in sections 45 to 49 and s 61 of the Act and finds that the subject tree is a tree within the definition under sections 4 and 5 of the Act, Mr Gilmore, Ms Price and Mrs Browne are the registered owners and appropriate parties, and the tree is on Mr and Mrs Browne’s property making the respondents the tree-keepers.
As the application raises that the branches from the subject tree overhang onto Mr Gilmore and Ms Price’s property, and there are allegations of damage (albeit the extent of which is disputed) there is jurisdiction for the Tribunal to hear this matter.[25]
[25]The Act, s 61.
In relation to the requirements before an order can be made pursuant to s 65, I am satisfied that Mr Gilmore and Ms Price have made a reasonable effort to reach agreement with Mr and Mrs Browne and it is not suggested there is any relevant local law, local government scheme, or local government administrative process to resolve the issues.[26]
[26]Statement of Neil Gilmore dated 11 October 2022 at [27]-[28] and Exhibit NG-6.
Mr Gilmore and Ms Price cannot resolve the issues under Part 4 of the Act due to the height of the overhanging branches and they have given the copies of the application to Mr and Mrs Browne as required under s 63 of the Act.
Given it is alleged that the tree has caused serious damage and/or is likely to cause serious damage or serious injury to their property within 12 months and it is alleged that the tree is causing an unreasonable interference due to the overhanging branches, the matters set out in s 74 and s 75 of the Act have been considered by the Tribunal in this decision.
Overhanging branches
The parties agree there are branches from the subject tree which overhang the boundary fence into the applicants’ property. The TPZ, Evergreen and tree assessor’s report all note that there are multiple overhanging branches.
The TPZ report and the tree assessor’s reports note that the overhang is significant. The Evergreen report states that the overhang is minimal. Given the evidence in the matter, including the photos provided by both the applicants and the respondents and in all three reports, I prefer the findings in the TPZ and tree assessor’s report. The Tribunal does not accept the overhang is minimal when the photographs attached to the Evergreen report clearly show the tree overhanging and touching or nearly touching the applicants’ roof.
Accordingly, the Tribunal finds that the applicants’ land is affected by the subject tree on the respondents’ property due to branches from the tree overhanging into the applicants’ land.
Substantial, ongoing and unreasonable interference with the applicants’ use and enjoyment of their land
The applicants assert that the subject tree causes substantial, ongoing and unreasonable interference due to the encroachment of the branches onto their property creating a nuisance and resulting in the leaves and branches falling onto their property, and this results in an increase in insects and other pests accessing their house. In addition, the roots of the tree which protrude onto their property are causing an interference with their use and enjoyment of their property.
Despite the tree assessor commenting about the large amounts of accumulated tree debris that was present on the surfaces along the side of the applicants’ dwelling and within the applicants’ dwelling’s roof guttering, that had originated from the subject tree,[27] Mr Gilmore stated during cross examination that he does not rely on the leaf litter to substantiate the claim of substantial and ongoing and unreasonable interference, and he accepts that this falls within regular maintenance required of a home owner.
[27]Tree assessor’s report at 2.2.14.
Mr and Mrs Browne agree that the trunk of the tree is growing on the property and that branches overhang onto the applicants’ property, including the roof, but state that this does not impact on or restrict access, as the side area is not landscaped, and is just an access way.
What constitutes substantial, ongoing, and unreasonable interference has been considered by the Tribunal on many occasions. In Belcher v Sullivan,[28] Judicial Member Dodd said:
[23] ‘Substantial’ also is a word not given any special meaning in the Act. It is a word in common usage. In the context in which it is used in the Act it indicates on-going and unreasonable interference with enjoyment or use of land which has substance, is of real or considerable importance.
[24] [It] require[s] a decision maker to assess the degree of damage or interference in the light of all the evidence provided.
[28][2013] QCATA 304.
The tree assessor’s report concluded that the tree is causing a substantial, ongoing and unreasonable interference with Mr Gilmore and Ms Price’s use and enjoyment of their land, stating:
It is visibly obvious that this Glochidion ferdinandi (Cheese Tree) is causing “serious damage to the land or any property on the land” and “substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land” as its lower trunk and basal root crown grow through the correct surveyed alignment of the boundary causing significant damage / displacement to the dividing fence structure and that the canopy of this tree is impacting the structure of the applicants’ dwelling which necessitates ongoing maintenance is performed to prevent significant damage to the applicants’ dwelling through impact.[29]
[29]Tree assessor’s report at 3.1.
The respondents are critical of the tree assessor’s findings in particular the reference to the tree impacting the structure of the dwelling, noting there is no evidence of any structural damage. The reference to the structure in this quote does not appear to be a reference to structural damage but to the fact the tree is touching the house and the roof, which may lead to a future impact on the structure and requires maintenance in terms of pruning or removing these branches to prevent significant damage.
In addition to the impact on the applicants of the tree branches overhanging onto their roof, causing stress and anxiety and increased maintenance to ensure the branches do not cause significant damage, the deviation in the fence from the tree growth onto the applicants’ property has reduced the applicants’ use of the side path between the fence and their house as it has reduced the space which is accessible.
The deviation to the fence has also impacted on the applicants’ ability to safely contain their pet dogs in the back yard, as it has resulted in the property not being fully secure and the dogs escaping into the respondents’ property.
The exposed roots growing on the applicants’ property impact on the applicants’ use of their property, as the roots both potentially pose a tripping hazard, but also can impact on how the applicants use their property, in terms of any digging, or building they may wish to do, which may impact the roots and thereby impact the stability of the tree. In addition, there is evidence to demonstrate the tree has impacted on the applicants’ use of their backyard, given it is extremely wet, which the building contractor from Crown Development Group has stated is due to the tree trunk and roots systems forcing their way into the drains on the side of the house.
The root issue has also impacted on Mr Gilmore and Ms Price’s ability to undertake repair works and renovations on their property as the building contact has advised the tree needs to be removed before any rectification or renovation works can be undertaken.
The respondents raised concerns with the finding in both the TPZ report and the tree assessor’s report which references buttress roots on the applicants’ property from the subject tree. Mr Browne does not appear to be disputing there are roots on the applicants’ property, only that they are not buttress roots. It is unclear what the relevance of the type of root is, as regardless there are roots from the tree growing on the applicants’ property. This is clearly evidenced not only in the findings of the TPZ report and the tree assessor’s report but also the photographs which visually show the roots.
While the building contractor was not cross examined at the hearing, the letter they provided, which raised concerns about the roots, is supported by other evidence including the fact that there are visible roots on the applicants’ property,[30] the past issue with roots in the applicants’ drains and the warning in the geo-technical report that this issue may arise. Given the collateral information which supports the building contractor’s findings, the Tribunal finds on the balance of probabilities that the tree is impacting the drains on the applicants’ property and thereby causing issues with dampness in the applicants’ backyard.
[30]Demonstrated by both the tree assessor’s report, TPZ report and photographs.
Accordingly, based on the combination of issues arising from the overhanging branches, the tree trunk expanding in the applicants’ property and the roots growing on the applicants’ property, the Tribunal is satisfied that the tree is causing a substantial, ongoing, and unreasonable interference with the applicants’ use and enjoyment of their land.
Serious Injury and Damage
It is clear that the tree has caused damage to the dividing fence. The fact the fence has been destroyed where the tree trunk has expanded into the applicants’ property is undisputed by the parties.
Mr and Mrs Browne assert the damage is not serious as the fence can be easily fixed by creating a new fence, to butt up to each side of the tree trunk at minimal cost. The Tribunal does not accept these submissions. Both the TPZ report and the tree arborist reports find that the tree has caused significant damage to the boundary fence. The Evergreen report makes no mention of the damage or deviation of the dividing fence, despite noting that one of the co-dominate stems is on the applicants’ property and presented a DBH of 465mm.
While Mr Gilmore is critical of the reports for using the word “significant” as opposed to serious, nothing flows from the use of a slightly different term. The intention of the report is understood, and the Tribunal finds that the damage to the dividing fence constitutes serious damage.
Regardless of the cost to rectify, the fact that the tree has damaged the fence, causing it to have to be replaced, is sufficient to constitute serious damage.
In addition, the applicants allege that their pipes burst in 2016 causing sewage to flow over the lower floor of their dwelling and there are ongoing issues with the pipes in the backyard.
The Tribunal also finds on the balance of probabilities that the tree has caused damage to the plumbing on the applicants’ property which constitutes serious damage. The applicants have provided evidence in Mr Gilmore’s statement and in cross examination, of blocked pipes in 2016 which resulted in sewage overflow into his property and the need to replace pipes. Mr Browne accepts that this damage occurred from the tree. In addition, Mr Gilmore has provided an email from Treefellas, dated 19 February 2021, which states the tree has a very evasive root system and has caused blockage to the plumbing. Mr Gilmore has provided further evidence from Crown Development Group in 2024 stating the tree is the main cause of all the damage to the drains and is resulting in the backyard being extremely wet and the ground sinking.
The Tribunal also finds that unless the issue of the roots growing on the applicants’ property is addressed, it is likely that the roots will cause ongoing serious damage in the foreseeable future.
In terms of risk of future damage, while there is always a risk that with an extraordinary weather event or cyclone that there may be damage caused by tree, there is no evidence that this tree causes any greater risk than any other tree surrounding the applicants’ house. While it is understandable that the applicants may have concerns about potential for damage if there were a severe weather event given the size of the tree and the significant overhang of branches on to the roof of their house, there needs to be more than just concern, and the evidence needs to support that serious injury or significant damage is likely to occur within the next 12 months.
There has been no evidence of any fault in the tree or any major or significant branch failure in the three years the proceedings have been on foot, so there is not sufficient evidence to demonstrate the tree is likely to cause serious damage from falling branches in the next 12 months.
Section 74 and section 75 factors
In relation to the s 74 and s 75 factors that the Tribunal may take into consideration where unreasonable interference or serious injury or damage is alleged, the Tribunal has taken into consideration the size of the applicants’ and respondents’ respective properties, and that as the tree is estimated to be planted in or around the 1950s it existed well before the applicants or the respondents acquired their respective properties.
In terms of the damage to the fence there is nothing else which has contributed to this damage other than the tree, and there is no evidence of any acts or omissions by Mr Gilmore or Ms Price which have contributed to this damage.
In terms of the unreasonable interference, nothing else has contributed to the interference cause by the trunk and overhanging branches growing on the applicants’ property.
In relation to the damage caused to the pipes and plumbing, there is a report from Soil Survey Engineering Pty Ltd in relation to a Geotechnical investigation,[31] which occurred on the Applicants’ property in January 2016 which is relevant to this issue. The report was conducted around the time Mr Gilmore and Ms Price purchased the property, and the aim of the inspection was to appraise distress to the tiled pathways, driveways, pool surrounds and apparent ground subsidence and provide an assessment on the likely case and possible remedial options.
[31]Statement of Mr Browne filed 15 November 2022; attachment 13.
The report found:
(a)Apparent subsidence in the wall backfill/garden beds. The subsidence was most likely the result of damaged or leaking underground drainage lines.
(b)The external concrete path along the southern wall of the residence exhibited signs of movement with a possible negative fall towards the residence, meaning surface water may no longer be directed away from the residence.
The report recommended:
(a)The lines in the immediate area be checked by a plumber and be repaired if found to be damaged or leaking.
(b)The surface drains should be lowered, or the garden bed levels be raised to ensure the drains are effective in removing excessive surface water.
(c)The joint along the interface between the path and the residence be sealed with a waterproof and flexible sealant to inhibit the ingression of surface runoff into the residence foundation via the joint.
(d)The southeastern corner, adjacent to the large native neighbour tree be periodically monitored for signs of movement and distress and notify the office of any finding as the tree’s root systems may adversely affect the residence foundation, i.e., initiate shrinkage settlement in the founding soil supporting the residence.
The report provided to the Tribunal had handwritten notes on it recording that the first three recommendations were completed by repairs conducted in July 2020.
Mr Browne in cross examining Mr Gilmore at the hearing asserted that some of these issues may have contributed to the plumbing or water issues as opposed to the tree. Mr Gilmore confirmed that he had completed all recommendations. Mr Browne disputed this when cross examining Mr Gilmore but provided no evidence to support this position.
In the circumstances, noting the handwritten notes on the documents that were submitted in the respondent Mr Browne’s material, this appears to support Mr Gilmore’s position that the recommended repairs had been undertaken. The Tribunal prefers the evidence of Mr Gilmore and does not find on the balance of probabilities that the issues raised in the Geotechnical report have contributed to the damages to the pipes or water issues in the yard, as the recommendations have been addressed.
Mr Gilmore and Ms Price have known about the interference and damage to the fence and pipes since 2016.
In relation to the steps taken by the tree keeper or neighbour to prevent or rectify the damage, the Tribunal finds that Mr Gilmore and Ms Price made numerous attempts to try and resolve this matter with Mr and Mrs Browne and advised them of the issues they were experiencing with the tree in writing in 2020 and attempting to undertake medication with the Dispute Resolution Centre, and when that was unsuccessful, they filed the QCAT application. Mr Gilmore and Ms Price have also pruned the tree on their side of the fence in the past until it became evident that was no longer safe or appropriate and obtained three tree assessors’ reports, one of which is attached to the material.
In contrast, while Mr and Mrs Browne did obtain their own tree assessor’s report, since obtaining that in March 2021, they have taken no action. They have not pruned any of the overhanging branches, despite being provided a quote to do so, and have not sought to conduct yearly assessments as recommended in their report.
What order, if any, should the Tribunal make in these proceedings?
As there are overhanging branches, which means that the applicants’ property is affected by the tree, and the Tribunal has found that the tree causes a substantial ongoing and unreasonable interference with the applicants’ use of their land, and it has caused serious damage, the Tribunal has jurisdiction to make orders about the tree it considers appropriate in relation to a tree affecting the neighbour’s land to:
(a)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.
Mr Browne has raised about the historical importance of the land and that there may be local law protection for the tree and the property. The tree assessor’s report also noted that Mr and Mrs Browne’s property is within an “Environmental significance – wetlands and waterways – Matters of local environmental significance – wetlands and waterways – Buffer area” mapping overlay area and the City of Gold Coast should be contacted prior to any tree inference to establish the protection status of the subject tree.
Section 67(1) of the Act provides that:
(1) If QCAT is satisfied the application before it was made because of a genuine dispute, it may make an order for a person to carry out work on a tree even though -
(a)consent is withheld by a local government or a tree-keeper under a vegetation protection order; or
(b)a local law requires a consent or authorisation to be given before the work may be carried out; or
(c)the work is otherwise restricted or prohibited under a local law.
Section 67(2) of the Act provides that work carried out under an order made under section 67(1) is lawful despite a local law.
In this case, the application was served on the Gold Coast City Council (‘GCCC’) on 25 June 2021[32] by the applicants. Mr Gilmore advised he has had no response and GCCC have not sought to participate in proceedings.
[32]Statement of Neil Gilmore dated 11 October 2022 at para [15].
In terms of any heritage status of the property or the tree, Mr Browne confirmed at the hearing that he has made an application, but no determination has been made. There continues to be no evidence of any heritage order in relation to the property.
Accordingly, there is insufficient evidence to find that there is a vegetation protection order (‘VPO’), but even if there was to be one, the Tribunal has jurisdiction to make orders in relation to the subject tree pursuant to s 66 of the Act, notwithstanding any VPO.
Before making any orders, the Tribunal needs to consider the matters in s 73 of the Act. In relation to these considerations the Tribunal takes into consideration that:
(a)The subject tree is a Glochidion ferdinandi (Cheese Tree). The tree is an Australian Native tree and not classified as a pest or weed.
(b)The tree is on the boundary line and the trunk of the tree has grown through the fence, significantly damaging the fence. Part of the trunk of the tree is now growing on Mr Gilmore and Ms Price’s property. Several large roots from the tree are visible within Mr Gilmore and Ms Price’s property.[33]
[33]Tree assessor’s report, para 2.2.12.
(c)The tree is within the “Environmental significance – wetlands and waterways – Matters of local environmental significance – wetlands and waterways – Buffer area” mapping overlay area as provided by a City of Gold Coast PD online mapping search. The tree assessor’s report recommended that the GCCC should be contacted prior to any tree inference to establish the protection status of the tree.[34] The GCCC were served with the material and did not seek to participate in the proceedings and no party has provided any evidence that the tree would require any consent or other authorisation under another Act.
(d)In terms of the cultural value, there is no evidence to suggest that the tree is part of Aboriginal or Torres Strait Islander cultural heritage. While the respondents have stated that the tree was under consideration of the Gold Coast Office of Architecture and Heritage,[35] as at the trial in August 2024 there had still been no determination of any application. As such it cannot be said that the tree is situated in a Queensland heritage place under the Queensland Heritage Act 1992 (Qld).
(e)Notwithstanding this, the tree does have high environmental and amenity values and was considered to have considerable heritage significance in the Heritage Report.
(f)The tree is an old tree, estimated to be established in the 1950s when the original owners of the property, the Radcliffe family, lived at the property. It is however not established whether this was a tree deliberately chosen and planted by the Radcliffes or whether it developed from a seed dropping.
(g)The tree forms a part of the garden design of Mr and Mrs Browne’s backyard and provides significant shade protection to Mr and Mrs Browne’s property from both the morning and afternoon sun during summer months. Mr and Mrs Browne also state it contributes to the local ecosystem, biodiversity, natural landscape and scenic value of the land and locality.
(h)The tree displays signs of wildlife inhabitancies such as birds and possums. The tree’s flowers and fruit are a food source for native animals, insects such as ladybirds, moths and butterflies and birds including, honeyeaters, pigeons, fig birds, currawongs, and lorikeets.
(i)There is no evidence to demonstrate the tree has any particular impact on soil stability or the water table, but the tree is a significant feature of the land and locality.
(j)Ms Bouwer found that the tree and gardens in Mr and Mrs Browne’s Property as a whole, but in particular a mango tree and the subject tree contribute substantially to the locality amenity and the streetscape character through their historical value, attractive appearance and environmental factors.
(k)There are no identified risks associated with the tree in the event of a cyclone or other extreme weather event and all three tree assessment reports assessed the tree as currently safe and structurally sound. However, Mr Morgan’s report did recommend ongoing monitoring of the tree’s condition over time, which has not occurred.
(l)The tree has been pruned previously (but not for 19 years prior by the tree keeper Mr Browne and five or six years prior by the applicants Mr Gilmore and Ms Price) and has healed well from the pruning. However, there are concerns raised that to resolve the concerns with the overhanging branches will require multiple large pruning wounds to be made, with each having the potential to allow pathogen infestation and decay development. The advanced maturity of this tree means it likely has a declining growth vigour and an ever-reducing capacity to develop wound compartmentalisation.
[34]Ibid 2.4.1-2.4.2.
[35]Respondents’ submissions dated 16 August 2022.
In making a determination about what, if any, orders are appropriate, the Tribunal has taken into consideration s 71 and s 72 of the Act, that a living tree should not be removed or destroyed unless the issues relating to the tree cannot otherwise be satisfactorily resolved and that the primary consideration for the Tribunal in deciding an application is safety.
There appears to be agreement that some action needs to be taken in relation to this tree. The dispute in this case is in relation to whether the tree needs to be removed or whether there should be orders for pruning and ongoing maintenance orders for the subject tree.
It is clear from the communications between the parties prior to the proceedings, without any agreement, and the continued difference of opinion as to the appropriate outcome, that there is a genuine dispute in this matter and the parties are unlikely to be able to agree on how to deal with the tree and overhanging branches and to comply with any ongoing agreements or maintenance scheduled on their own.
Both the TPZ report and the tree assessor’s report recommend the removal of the tree. The EverGreen report recommends pruning and regular inspections. The concerns with the recommendations in the Evergreen Report are that it does not address the concerns about the fence, the tree trunk growing on the applicants’ property or the issues with the roots on the applicants’ property, which may not have been evident in 2021 when that report was completed but are evident now.
Mr Browne asserts that the Tribunal should place weight on the recommendations in the Evergreen Report and make pruning and ongoing maintenance orders. He has stated he will comply with this order and that the destruction of the fences can be easily corrected by building a new fence which butts up to the tree.
It is difficult for the Tribunal to place great weight on Mr Browne’s assertion that he will prune the tree and comply with regular maintenance assessments, when since receiving the report in 2021 he has not taken any active steps to comply with the recommendations. Despite receiving a quote for the pruning, he has not sought to make arrangements for the tree to be pruned, nor did he undergo yearly assessments as recommended to ensure the ongoing health and safety of the tree. While his explanation that he was waiting for the order and it might be unnecessary if an order was made to remove a tree may be understandable for the pruning, it does not explain why he would not be willing to ensure the ongoing health and safety of the tree with the recommended yearly inspections.
Mr Browne’s position emphasised the great importance of the tree. In addition to Mr Browne’s submissions, the Tribunal has also taken into consideration the heritage report, which helpfully articulated the significant value of the tree and their importance to the suburb from a heritage standpoint. While it is accepted that the tree has considerable heritage value, it is noted that there are a number of other areas and other mango trees which have higher heritage value than the cheese tree on Mr and Mrs Browne’s property.
Mr Browne’s position also does not address the issue of the trunk growing on Mr Gilmore and Ms Price’s property and impacting on the use of their land, or the impact of the tree roots on their property.
In terms of the issues with the tree roots, the TPZ report has noted that installation of a root barrier to prevent further encroachment is not possible without potentially catastrophic damage to the tree’s SRZ and stability.
Pruning of the tree cannot address the issue of the trunk on the applicants’ property as it is not possible to remove part of the trunk and while the tree has been pruned in the past, noting the advanced age of the tree, there are higher risks that this could lead to pathogen infestation and decay development given the advanced maturity of this tree which naturally means it likely has a declining growth vigour and an ever-reducing capacity to develop wound compartmentalisation.
Accordingly, while this is an otherwise healthy tree, which the Tribunal notes and accepts has significant importance to Mr and Mrs Brown, and is a significant mature example of its species with high environmental, historical and amenity value, its retention could not be managed feasibly within arboricultural means whilst addressing the overhanging branches and the trunk and roots growing on the applicants’ property, and allowing for the construction of new fence along the correct boundary alignment.
As the issues relating to the tree cannot otherwise be satisfactorily resolved, there is no other option but to order the removal of the tree. To address the issues of the overhanging branches, the ongoing damage to the fence and pipes and the unreasonable interference with the applicants’ quiet enjoyment and use of their property, the only option is to order the removal of the tree.
The responsibility for controlling the branches and trees, by cutting and removing any branches of the tree overhanging the boundary and ensuring the ongoing safety of the subject tree to ensure it does not cause serious injury or serious damage, is the respondents’ responsibility as the tree-keepers. Accordingly, it is appropriate that the any costs associated with the orders are to be borne by Mr and Mrs Browne as the tree keepers.
Given the ongoing dispute between the parties the Tribunal will make orders to ensure that if the respondents do not comply with the order, the applicants can undertake the work, at the respondents’ expense.
No request for costs of proceedings was made and the Tribunal has not been provided evidence of any costs. Costs do not follow the event and just because a party may be successful in their application, it does not follow that there will be an order for costs. The starting point for costs is that each party must bear their own costs.[36] However, the Tribunal may make an order requiring a party to pay all or a stated part of the costs of another party to the proceeding if the Tribunal considers the interests of justice require it to make the order.[37]
[36]QCAT Act, s 100.
[37]Ibid, s 102.
Given the orders of the Tribunal are for the respondents to pay for the cost of the tree removal, I am not satisfied that the interests of justice require the Tribunal to sway from the ordinary position that each party bear their own costs and accordingly the Tribunal declines to make any order in relation to costs of the proceeding.
Orders
The Tribunal makes the following orders:
1.Within 60 days of the date of the decision, being by 29 April 2025, Mr Harry Anthony Browne and Mrs Viviana Browne must, at their own cost, undertake the complete removal and stump grinding of the single Glochidion ferdinandi (Cheese Tree) located on the left side (northwestern) boundary fence of their property at 9 Radford Street, Southport.
2.Any roots from the subject tree growing on Mr Gilmore and Ms Price’s property are to be ground down to ground level and all tree debris is to be removed from Mr Neil Gilmore and Ms Alicia Price’s property and from Mr and Mrs Browne’s property after the tree removal is completed.
3.The work must be performed by either a tree lopper with current public liability and work cover insurances or a minimum Australian Qualifications Framework level three (3) qualified arborist with the same insurances.
4.Any tree lopper or arborist engaged by Mr and Mrs Browne shall be entitled to enter Mr Gilmore and Ms Price’s land at 14 Waldash Street, Southport to undertake the work in order 1 and 2, subject to providing 72 hours’ notice of the work being done.
5.Mr and Mrs Browne will be responsible for obtaining any necessary council approvals and paying all costs associated with undertaking the removal of the tree in compliance with orders 1-3.
6.If the tree works detailed in Orders 1 and 2 are not completed by 30 April 2025, Mr Neil Gilmore and/or Ms Alicia Price shall be entitled to have the work performed by a suitably qualified tree lopper or arborist with the appropriate public liability and work cover insurance.
7.Any tree lopper or arborist engaged by Mr Gilmore and/or Ms Price shall be entitled to enter Mr and Mrs Browne’s land at 9 Radford Street Southport, subject to providing 72 hours’ notice of the work being done.
8.If Mr Gilmore and/or Ms Price carry out the work in default of it being done by Mr and Mrs Browne, the costs incurred by Mr Gilmore and/or Ms Price in engaging a tree lopper and/or arborist to do the work and/or in obtaining council approvals, shall be recoverable from Mr and Mrs Browne as a debt without further notice being required to be given.
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