Grewar Investments Pty Ltd ACN 117 263 162 Trustee Under Instrument 709414646 v Evan Angelos Investments Pty Ltd Trustee Under Nomination Trustees No L385725Y - [2024] QCAT 12

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Grewar Investments Pty Ltd ACN 117 263 162 Trustee Under Instrument 709414646 v Evan Angelos Investments Pty Ltd Trustee Under Nomination Trustees No L385725Y [2024] QCAT 12

PARTIES:

GREWAR INVESTMENTS PTY LTD ACN 117 263 162 TRUSTEE UNDER INSTRUMENT 709414646

(applicant)

v

EVAN ANGELOS INVESTMENTS PTY LTD TRUSTEE UNDER NOMINATION TRUSTEES NO L385725Y

(respondent)

APPLICATION NO/S:

NDR188-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

5 January 2024

HEARING DATE:

17 November 2022

HEARD AT:

Brisbane

DECISION OF:

Member Carrigan

ORDERS:

1.     Evan Angelos Investments Pty Ltd Trustee under Nomination Trustees No L385725Y the registered owner of the land at 35-39 Gordon Street, Ormiston in the State of Queensland is to arrange for the removal of;

(a)     two (2) Libbera ferrea (Leopard Trees); and

(b)     one (1) Eucalyptus tereticornis (Forest Red Gum),

located on that land and further identified in the report and photographs in the Report from Roger Rankine, consulting arborist, Independent Arboricultural Services dated 26 August 2020 at its own cost;

2.     The removal of the two (2) Libbera ferrea (Leopard Trees) and the one (1) Eucalyptus tereticornis (Forest Red Gum) is to be undertaken by an appropriately qualified and insured arborist;

3.     Evan Angelos Investments Pty Ltd Trustee under Nomination Trustees No L385725Y is to arrange for the grinding and removal of the stump of the two (2) Libbera ferrea (Leopard Trees) and the one (1) Eucalyptus tereticornis (Forest Red Gum) to prevent regrowth of those trees at its own costs; and

4.     Evan Angelos Investments Pty Ltd Trustee under Nomination Trustees No L385725Y is to arrange for the removal of the two (2) Libbera ferrea (Leopard Trees) and the one (1) Eucalyptus tereticornis (Forest Red Gum) and the grinding and removal of this dump of those trees to be carried out and completed within 60 days of this Order.

5.     The claim for compensation made by Grewar Investments Pty Ltd ACN 117 263 162 Trustee Under Instrument 709414646 in the Application for a tree dispute filed by it in the Tribunal on 13 November 2020 is dismissed.

6.     The parties have liberty to applied to the Tribunal on giving 14 days written notice to the other party in respect of the working out carrying out of any of the above orders.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where the applicant filed an application for resolution of a tree dispute – where the applicant claimed trees on the respondent’s land interfered with the use and enjoyment of its land – where the location of the trees was adjacent to the common boundary between the parties land – where the trees on the respondent’s land had been planted prior to the development of the applicant’s land. the applicant’s land – where trees overhang the neighbours property and buildings – where the trees dropped leaf matter and debris onto the roof of the building on the applicant’s land – whether the trees affected the applicant’s land – whether the Tribunal has jurisdiction – whether the trees should be removed or remain on the respondent’s land – where the applicant claimed compensation for costs of cleaning and repairing as a result of leaf foliage and debris from the trees on the respondent’s land

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s46, s 47, s 48, s 49, s 52, s 59, s 60, s 61, s 62, s 65, s 66, s 67, s 68, s 69, s 70, s 71, s 72, s 73, s 74, s 75

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

The dispute in these proceedings is between two adjoining neighbours as to whether two (2) Libbera ferrea (Leopard trees) and one (1) Eucalyptus tereticornis (red gumtree) should be retained on the property at 36-39 Gordon Street, Ormiston, in the State of Queensland or whether those trees should be removed or maintained in some other way.
Grewar Investments Pty Ltd ACN 117 263 162 Trustee Under Instrument 709414646 (‘the Applicant’) is the owner of the property at 22-24 Bainbridge Street, Ormiston. That property is located on the corner of Bainbridge Street and Gordon Street, Ormiston.
Evan Angelos Investments Pty Ltd Trustee Under Nomination Trustees No L385725Y (‘the Respondent’) is the owner of property at 36-39 Gordon Street, Ormiston. That property adjoins and has a common boundary with the Applicant’s property at Bainbridge Street.
The two (2) leopard trees and one (1) red gumtree are located on the Respondent’s property but adjacent to the common boundary with the Applicant’s property. The upper branches and leaves of those trees overhang the common boundary and extend over the building on the Applicant’s property.
Both of these properties are used for commercial purposes. The Applicant’s property had been developed for retail shop, office and car park uses. The Respondent’s property is leased to a tenant who carries on the business of a childcare centre.

Background Facts

The evidence before the Tribunal is that the leopard trees and red gumtree had been planted on the Respondent’s property prior to the commercial development of the Applicant’s property. However, the evidence also is that when the Applicant’s property was developed those trees were at a low height and have subsequently, over the years, had substantial growth in canopy and height.
Initially the Applicant’s representative, Mr Grewar, and a former tenant of the Respondent were able to maintain the impact of these trees in a cooperative manner so that there was no dispute arising between the parties.
It is not clear from the evidence what is the exact date when the trees became an issue for the Applicant’s maintenance of its property. The Applicant says that over many years the rear gutters of the building on its property were constantly filled with small leaves and seeds from the leopard trees and the red gumtree which block the gutters so that rainwater cannot escape via storm pipes and runs into the ceiling of the building damaging it, equipment, carpet, and lights.
The Applicant says that it regularly pays to have the gutters cleaned however on a windy day debris again collects in the gutters and stormwater drains. The Applicant says that the gutters are constantly filled with debris from the trees in spite of regular gutter cleaning. Often branches or limbs from the overhanging trees will fall onto the roof of the Applicant’s premises.
In 2015 a letter was received from the Respondent’s representative, Evan Angelos, informing the Applicant of the removal of the leopard trees along the common boundary of the properties as a result of some further construction work on the land at 36-39 Gordon Street. That letter stated as follows;
The work will include the removal of two large leopard trees immediately next to our common boundary as well as the addition of drainage and stormwater pits.
The Applicant responded by email on 7 April 2015 stating;
I would be quite happy to see the Leopard trees removed from your property though as they have created significant maintenance issues from our perspective.
The Respondent subsequently explained why a decision was made at a later date not to remove the leopard trees. That explanation stated;
We had to change our earlier intention to remove the leopard trees, after we were informed by the previous childcare centre businessman/lessee tenant, Rhonda Street, that the trees were a necessary part of meeting the adequate playground shade requirements under Education Queensland regulations. These leopard trees provide essential UV and hot-sunshade protection to the young skin of children engaged in playground activity.
The Respondent also stated that the construction work on the Respondent’s property involved drainage and stormwater pits which were subsequently positioned further away from the boundary of the Applicant’s property.
In February 2018 a large branch from the red gumtree fell onto the roof of the Applicant’s building causing damage. The Applicant invoiced the Respondent for $2026.50 for this damage. That claim was ultimately paid by the Respondent’s insurer.
From early June 2020 the Applicant exchanged a series of emails with the tenant of the Respondents property requesting the tenant share the cost of trimming the trees along the common boundary which at that stage were “very overgrown.” The tenant provided an Arborist Report from “Independent Arborists” advising that the cutting of limbs of the trees on the Applicant’s side of the boundary may cause an imbalance in the tree, also allowing for infections to happen through those wounds and would not alter “anything.” Subsequently by email dated 18 June 2020 the tenant advised the Applicant that;
If you intend to carry out this work then you need to advise me so I will let Hopgood Ganim know as we were told not to vary from the report because whoever fails to follow the report has legal liability.
The Applicant then contacted the Respondent and in an email dated 10 June 2020 advising that the trees near the common boundary needed to be trimmed as they overhung the Applicant’s building and blocked gutters and air conditioning units, and then stated;
If you are intending to retain the trees I am keen to find a long term solution that we can move forward with. I am happy to send you the quotes when I receive them. We are happy to contribute 50% towards the cost of pruning to the Australian Standards and have it done on the weekend when the centre is not occupied by children and workers have clear access available to your trees and grounds so that the area can be left clean and free of debris.
On about 16 July 2020 the Respondent’s solicitors, Alex Mackay & Co, advised the Applicant that their client desired to resolve all standing matters as amicably, expeditiously and inexpensively as possible and would keep them informed of developments. Subsequent emails passed between them and on 27 October 2020 those solicitors sent an email to the Applicant advised that;
Our client is in a position where it will hopefully have all outstanding matters relating to its tenant at 35-39 Gordon Street, Ormiston resolved to its satisfaction shortly.
Our client doesn’t see much sense in continuing to incur significant legal fees and outlays with us as regards the issue of the trees along the common boundary with your property.
Our client has therefore ceased retaining us/giving us instructions in this matter.
Previously, on 22 July 2020 Ken Folkes, Technical Advisor Arboriculture of Redlands City Council, sent an email to the Respondent providing “general information freely available on the website, to try and provide some guidance to you, your tenant and your neighbour in resolving the matter rather than elevate it to QCAT” and stated that;
The Eucalypt trees are not protected by Council. You have the option to remove the trees at your discretion at any time which no doubt would solve the issue.
The Leopard trees can be pruned to standards but require Council approval to remove them as they are protected by development condition (Landscape Plan).
In an email on 24 July 2020 the Applicant advised the Respondent that they had spoken to Ken Folkes at the Council and then stated;
Whether you cut the trees down or trim them and who pays for it is a matter between you and your lessee. You are ultimately responsible for the trees that overhang our property and I will be progressing this to seek a legal remedy as you have not provided me with any assurance that you will remove the trees from overhanging my property. As previously advised, I will also be seeking compensation for the previous damage your trees have caused to the roof of our property, which is continuing as they rub our gutters and block the air-conditioning units, and for the maintenance involved by your overhanging trees not being maintained as requested.
On 25 August 2020 Ken Folkes of RCC, in an email to the tenant of the childcare centre, said;
You have carried out the pruning in accordance with the report (Arborists Report) and within AS 4373 2007 Pruning of Amenity Trees, so if the aim is to retain the trees, you cannot do anything further regarding extra pruning to mitigate the leaf drop.
Later in that email Ken Folkes further stated;
Regarding pruning of trees back to the boundary – it is not an absolute right – due diligence must be undertaken to ensure the trees are pruned to the AS 4373 standards. Pruning outside the standards can’t be undertaken without exposing the person who does the pruning to negligent. That people choose to quote parts of my previous conversations is beyond my control, but it is all stated in the emails I save.
Regarding protection, the trees are not protected, so can be removed without Council approval, if this is the inevitable outcome.
On 28 August 2020 the Respondent sent an email[1] to the Applicant advising that he had done everything he could with respect to having the trees pruned but this had always been the responsibility of the lessee, Jeff Neale. The Respondent further stated;
I have emailed Jeff Neale requesting him to prune the gum and leopard trees to the boundary fence line.
Reference was made to advice from Roger Rankine, Consulting Arborist, that “fence line pruning” and “lopping” are not an acceptable outcome and exceed the Australian Standard AS 4373 – 2007 for the pruning of amenity trees.
[1]This email dated 28 August 2020 was marked "Without prejudice". Notwithstanding that claim, the email is being regarded as part of the evidence in the proceeding as it contained no genuine offer of settlement nor any basis on which a "Without prejudice" claim could properly be made.
The Applicant and the tenant of the childcare centre continued to exchange emails in late August 2020 about the extent to which the trees had been pruned. There remained a dispute as to the extent of pruning and the fact that branches still overhung the fence line and over the Applicant’s roof at the back of its property. Further pruning was requested by the Applicant.
The Applicant says that a “post-trimming Arborist Report” was supplied by the Respondent’s representative in August 2020 which contained photographs showing the significant overhang of trees (after pruning was completed) across the common boundary line between the properties. The report from Roger Rankine, Consulting Arborist from Independent Arboricultural Services, dated 25 August 2020 stated the following recommendation;
The proposed fence line prune would affect the long-term health and structural form of the nominated trees. It is recommended that if the only option available to the tree owner and the adjoining building owner is to fenceline prune the trees that they are removed and replanted with native species that are suitable for hedging and maintaining on the boundary line. Any required council and state government permission to be in place before any further work commence [sic].
The Applicant relies upon several photographs said to demonstrate damage to the boundary fence between the two properties,[2] as well as a significant collection of debris in the gutter and additional debris at ground level.[3]
[2]Statement of Evidence of Grewar Investments Pty Ltd filed 6 October 2021, paragraph 9, Attachment 8.
[3]Ibid, paragraph 10, Attachment 9.
On 13 November 2020 the Applicant filed in the Tribunal an Application for a Tree Dispute in respect of the two (2) leopard trees and the one (1) red gumtree along the common boundary with the Respondent’s property. In that Application the dispute was described as trees extending over the building roofline. It claims that the gutters are constantly filled with small leaves and seeds from the Leopard and gum trees, preventing rainwater from escaping via stormwater pipes, and the rainwater subsequently runs into the ceiling of the building, damaging the building, equipment, carpet, and lights. The Applicant claims it regularly pays to have the gutters cleaned. The Applicant seeks that the Tribunal make orders as follows;
(a)to remove or prune the branches of the trees; and
(b)an order that the Respondent pay the costs for carrying out these orders; and
(c)an order that the Respondent pay compensation for damage to the land or property in the amount of $3,996.50. That monetary claim is particularised as follows;[4]
(i)      Gutter cleaning                  $1220.00   25% of annual cost 2019 and 2020;
(ii)      Grounds cleaning               $750.00     25% of weekly costs for 2019/2020
(iii)     Fallen branch removal       $2026.50
and clean-up and repairs
[4]See Application for a Tree Dispute filed 13 November 2020 at Attachment 8, pp 1-10.
Subsequently, the Applicant claimed further costs of $750.00 for gutter cleaning since 13 November 2020. This was calculated on the basis of 50% of weekly ground cleaning for 48 weeks. The total claim was now $4,716.50.

Tribunal’s Jurisdiction

The Tribunal’s jurisdiction is conferred by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) or by an “enabling Act.”[5]
[5]QCAT Act, s 9.
The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘Neighbourhood Disputes Act’) provides that a neighbour may apply to QCAT for resolution of issues about trees, and the Tribunal has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that, as at the date of the application to QCAT, land is affected by the tree.[6]
[6]Neighbourhood Disputes Act, ss 60-62.
However, the Neighbourhood Disputes Act only applies if;[7]
(a)a neighbour’s land is affected by a tree; and
(b)the neighbour can not resolve the issue using the process of resolving the issue with the tree in accordance with Part 4 of the Neighbourhood Disputes Act.
[7]Ibid, s 59.
Provided the Tribunal is satisfied in relation to a number of matters[8] it may make orders it considers appropriate in relation to a tree affecting the neighbour’s land.[9]
[8]Ibid, s 65.
[9]Ibid, ss 66-75.
In these proceedings the parties own adjoining properties and share a common boundary. The trees are located on the Respondent’s property and the evidence is that they are affecting the Applicant’s premises on its land. The parties, including tenants on the Respondent’s property, had been in communication for a number of years about resolving the effect of the trees on the Applicant’s premises. Some of that communication has resulted in a satisfactory outcome, but more recently they have been in dispute with no satisfactory outcome, despite the parties on various occasions trying to resolve the dispute. Notwithstanding those attempts at resolution the dispute is now before the Tribunal.
In these proceedings the Neighbourhood Disputes Act is the “enabling Act” and the Tribunal has jurisdiction to hear and determine the dispute.

Neighbourhood Disputes Act

It was somewhat of a surprise at the Tribunal hearing of this dispute when the Respondent’s representative said that he had not read the Neighbourhood Disputes Act. He was conducting the proceedings for the Respondent without any knowledge of the various responsibilities, liabilities and rights legislated in the Neighbour Disputes Act. This situation was in spite of the originating Application filed in the Tribunal on 13 November 2020 clearly stating on the front page that the tree dispute involved the Neighbourhood Disputes Act. An email dated 22 July 2020 from Ken Folkes, Technical Advisor Arboriculture for Redlands City Council, informed the Respondent’s representative of the existence of the Neighbourhood Disputes Act and drawing his attention to s 46 (When is land affected by a tree), s 52 (Responsibilities of a tree-keeper) and s 54 (Common law right of abatement). The Tribunal has provided significant resources towards this dispute including case management by tribunal staff, correspondence, Directions Hearings with a Member and/or Senior Member of the Tribunal,[10] and a Compulsory Conference with a Member of the Tribunal.[11] Notwithstanding the length of time that the parties had been in dispute the Tribunal expected that the parties, or their representative, would have some idea of their responsibilities, liabilities and rights including any relevant provisions about removal of overhanging branches provided for in the Neighbourhood Disputes Act.
[10]Directions Hearings were conducted on 25 January 2021, 9 March 2021, 5 May 2021, 24 June 2021, 13 July 2021, 9 January 2022, and 16 March 2022.
[11]Compulsory Conference held on 9 September 2021.

The base of the trunk of the 2x Leopard trees and the red gumtree is situated wholly on the Respondent’s property. As the Respondent is the registered owner of that property, it is for the purposes of these proceedings the “tree-keeper”.[12]
[12]Neighbourhood Disputes Act, ss 47-48.
As the Applicant is the registered proprietor of its property adjoining property with that of the Respondent and is affected by the Leopard trees and the red gumtree on the “tree-keepers” land (viz. the Respondent) the Applicant is for the purposes of these proceedings a “neighbour”.[13]
[13]Ibid, s 49.
The Applicant’s land is affected by a tree on the tree-keepers land (viz. the Respondent) if;[14]
(a)branches of the Leopard tree and/or the red gumtree overhang the land;
(b)the tree has caused, is causing, or is likely within the next 12 months to cause –
(i)      serious injury to a person on the land; or
(ii)      serious damage to the land or any property on the land; or
(iii)     substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land; and
(c)the applicant’s land adjoins the land on which the trees are situated.
[14]Ibid, s 46.
The tree-keeper is responsible for cutting and removing any branches of a tree that overhang the neighbour’s land. The tree keeper is responsible for ensuring the tree does not cause;[15]
(a)serious damage to persons or to any property on a person’s land; or
(b)substantial, ongoing and unreasonable interference with a person’s use and enjoyment of the person’s land.
[15]Neighbourhood Disputes Act, s 52.

Applicant’s Evidence

The Applicant says that the shade provided by the Leopard trees is poor and a shade system such as one provided by shade sails would offer safety and more responsible UV and hot sun protection to the skin of young children in the playground.
The Applicant points out that, in the email from Ken Folkes dated 25 August 2022 to the lessee of the childcare centre, he states pruning outside the standards cannot be undertaken without exposing the person who does pruning to negligence, but then states;
…the trees are not protected so can be removed without Council approval, if this is the inevitable outcome.
The Applicant relied on a witness statement dated 29 September 2021 from Liz Hudson, Senior Commercial Property Manager of Ray White, Capalaba. She is the property manager of the Applicant’s property, and confirmed that there had been an ongoing dispute for several years which had caused considerable damage and expense. She says that when the gutters are full of leaves from the adjacent building the stormwater cannot escape, and there is water ingress into the tenanted shop directly below the affected gutters, with subsequent damage. She also states;
The costs for this damage is [sic] then on charged to the owners with the tenants enduring the inconvenience of cleaning up and water extraction from their carpets.
That witness statement, however, refers to only a single invoice of 20 September 2021 for $660.00 relating to a vacuum cleaning of the gutters. No other costs are identified in that witness statement.
A witness statement dated 1 October 2021 has also been obtained from Donna Noble who is a “co-owner” of the building (presumably a director/shareholder of the Applicant). She says that on numerous occasions the gutters have been filled with leaves from the neighbouring property’s trees that overhang the leased offices. The rainwater cannot escape via the guttering and leaks into the roof cavity and floods the tenant suites. The tenants hold the owners liable for moisture removal of their carpets, and replacement of any affected office equipment. On windy days there is significant leaf drop, requiring the cleaning of gutters. Sporadically, branches from the gumtree drop onto the roof and have previously caused damage. She says that;
The risk of personal and property damage from falling branches is deemed to be medium in the Risk Matrix prepared in the Arborist report supplied by Evan Angelos tenant [sic].
A witness statement dated 29 September 2021 has been provided by Greg Watson, who has been providing maintenance and car park cleaning to the Applicant’s property for five (5) years. He refers to the maintenance which he undertook, and also says after heavy windstorms there is a large volume of material falling from the Respondent’s trees. He also states;
In one instance a large limb from a gum tree fell across the rear access area and onto the main building, damaging the roof and gutter, and required removal by arborist professionals.
He attaches a “sample of an invoice” showing regular charges just for cleaning the rear access and car park areas twice a week, which was $25 per service in September 2019. He says following trimming of the Leopard trees and the gumtree on the adjoining property there is a reduction in the build-up of tree rubbish in the rear access area, and the cleaning service was reduced to once a week from July 2020 with a fee increase to $30 per service. The sample invoice is dated 30 September 2019 and relates to cleaning/maintenance during that month (on 8x occasions) for a total cost of $547.50.
A statement dated 30 September 2021 is provided by Margaret Bowden, Administration Manager of Hall Chadwick (incorporating D J Grewar & Co) at Redlands. She has worked in an office at the Applicant’s property for the previous 14 years. She has experienced water ingress into the premises from the rear of the building due to blocked drains and valleys whenever storms occur. That water ingress causes damage to files and archive boxes at the rear of the office. She says that;
The cause of these issues appeared to stem from the adjoining trees and resulting leaf letter from the neighbouring childcare centre.
It is also somewhat concerning when the branches from the childcare centre fall on our roof as this has damaged the property in the past.
In her statement she supports the removal of the trees if they cannot be trimmed to the alignment of the boundary line.
A statement dated 17 May 2021 has been provided by Derek Grewar (who represented the Applicant in the Tribunal hearing). He refers to two (2) Arborist Reports (dated 16 March 2020 and 25 August 2020) which were supplied to him by the tenant of the Respondent’s property. He says that he will not be filing any other Arborist Reports and states that;
I wish to point out that our submission is to have the trees removed is based on health and safety issues and the maintenance and financial burden to us because the owner will not trim the trees away from our side of the fence, as outlined in our original submission. (He refers to the Report from Roger Rankine of 25 August 2020 and the recommendation for the removal of the trees if the only option available is to fenceline prune the trees.)
We ask that this be done so that we no longer face the potential risks and ongoing costs and maintenance that we have endured over many years.
Mr Grewar also says that while providing shade is a requirement for the current tenant of the childcare centre, there are many options that would provide better shade than the Leopard trees and gumtree. For instance, shade sails will offer a safer and more responsible UV protection from the hot sun to the skin of young children in the playground. He also states;
If the Australian Pruning Standards do not allow for trees to be further pruned so as to be away from our boundary, then we request that they be removed so to not interfere with our rights as property owners.
He says that when the Colorbond boundary fence was installed, all adjoining trees were substantially smaller and managed by the tenant of the childcare centre. They did not overhang the property. Significant growth has resulted in the current circumstances, and he asserts that the owner and the tenant are not prepared to maintain the trees at a height and away from the Applicant’s property. These trees now cause significant stress.
He also says that the Applicant schedules property maintenance service every quarter for cleaning at a cost of $660.00 per service.
He acknowledges and accepts, on behalf of the Applicant, that the Respondent’s insurance company has agreed to pay the original demand of $2026.50 arising from the 2018 damage caused to its property.

Respondent’s Evidence

The Respondent relies on advice from Ken Folkes of RCC, and by Roger Rankine, that under AS 4373 2007 Pruning of Amenity Trees, sharp fenceline trimming cannot exceed a 2.5 metre height limit and this limit is a requirement for trimming and maintaining healthy trees.[16] The Respondent also refers to advice from Roger Rankine that the Leopard trees can be fenceline pruned up to 2.5 metres high so as not to exceed the guidelines AS 4373-2007. The Respondent does not wish to exceed the pruning guidelines in AS 4373-2007.
[16]Response by the Respondent filed 25 November 2020, paragraph 2, p 1.
The Respondent refers to advice from Ken Folkes that the Leopard trees are protected but can be trimmed or pruned providing the pruning does not exceed the guidelines of AS 4373-2007 Pruning of Amenity Trees. The gumtree is not protected by Council so Council approval is not required to remove it.
The Respondent says that trees do shed leaves on windy days, on both the Respondent’s property and on the Applicant’s property. It is claimed that this is a shared natural environment as a result.
The Respondent queries whether there is any evidence of a causal link between the trees dropping their leaves and damages claimed by the Applicant. He refers to the lack of a Report by a plumber or a builder. The Respondent also queries whether the water overflow problem is because of a drain problem and whether all roofing and plumbing was not done properly when constructed.
The Respondent points out that the tenant and owner of the childcare business properly maintains the grounds of the Respondent’s property. It says that the childcare centre has many significant gum trees which generate tree litter which is properly managed. It says that gutters and downpipes are cleaned of tree litter on a monthly basis, and that has proved successful to prevent water ingress during major storms.
The Respondent refers to a solution for leaf gutter using a leaf guard supplier (based in Banyo) which, it says, addresses the issues of the fine Leopard tree leaves and other tree litter.
The Respondent says that the Applicant’s demand for the payment of ongoing and past tax invoices for cleaning the gutter and car park of tree litter is unreasonable, as the Respondent has no control over the tree litter generated by its trees or other trees near the property.
The Respondent refers to the incident of the limb from the red gumtree falling onto the roof of the Applicant’s premises and causing damage. The Respondent refers to a Report dated March 2018 from Jason-Jay Fletcher, Director/Principal Arboricultural Scientist for Treescience, that the trees were healthy. However, the Report states in respect of the incident involving the limb that;
Our assessment concluded the recent limb failure occurred due to the presence of included bark and possible elongated lateral weight.
The report also said the lower trunk region appeared solid and well formed.
The Respondent says, in respect of the damage to the roof of the Applicant’s premises caused in about 2018 by the falling limb of the red gumtree, that the Applicant’s claim for compensation was initially refused but then subsequently the insurer agreed to pay the original demand amount of $2026.50 submitted by the Applicant’s 2018 claim.
The Respondent requests that the two (2) Leopard trees and the red gumtree should be retained and protected. The Respondent relies upon the observations of Roger Rankine, Consultant Arborist, and correspondence between his tenant and the Redland City Council, as well as the statement from Jeff Neale of the childcare centre.
Jeff Neale, of the childcare centre on the Respondent’s property, has provided an “Impact Statement and Request” dated 25 October 2021. He says the removal of the Leopard trees would have a “devastating effect” on the childcare business and the Centre for several reasons. The trees are a large part of the shade in the playground the trees provide “natural homestyle feel to the centre with airy natural cover.” He relies on the fact that the Leopard and gumtree were at the childcare centre “long before” the shops on the Applicant’s property were constructed. Parents at the childcare centre “love” the trees and as a result it doesn’t have that “new harsh look.” Shade sails cannot give better shade when used in conjunction with trees. He also refers to Regulation 114 provided by Education Queensland which refers to open spaces to include adequate shaded areas to protect children from overexposure to ultraviolet radiation from the sun. He also refers to the following facts;
(a)he has a gardener maintain the site including leaf problems in the playgrounds and gutters since about early 2020.
(b)in February 2018 a severe storm caused a large limb to be broken off the northern gumtree falling on the Applicant’s property building roof.
(c)in February/March 2020 the services of Roger Rankine were “enlisted” to perform an annual inspection of the trees. In 2021 the childcare centre again requested Roger Rankine to provide an assessment. However, following receipt of the 2021 Report the childcare centre arranged for CJC Tree Maintenance (a level 3 Arborist) who advised that after looking at the 2021 Report by Roger Rankine and the conditions on the site that;
(i) based on the report there was no recommendation to prune or trim, and next to no deadwood on any trees, so he would not exceed the Report.
(d)the first occasion when he was requested by the Applicant to prune trees overhanging the common boundary and clean gutters was in May 2020 which was two years and three months following the purchase of the childcare business.
(e)in 2021 he enlisted the “Level 5 Arborist” to have the trees pruned back to the Australian Standard prune points;
(f)the tree litter load falling from our trees onto the car park and the playgrounds of the childcare centre is far more than the amount his neighbour has complained about. However, he manages it with regular monthly cleaning.
(g)The red gumtree is also a valuable healthy koala habitat tree.
(h)The childcare centre uses a leaf gutter guard provided from a business at Banyo, Brisbane, whereas the Applicant’s property has no gutter protection of that type.

Arborist’s Reports

In March 2018 the tenant of the childcare centre at the Respondent’s property obtained an Arboriculural Appraisal from Jason-Jay Fletcher, Director/Principal Arboricultural Scientist, of Treescience Pty Ltd. That Appraisal was to investigate three (3) gum trees which were established adjacent to the internal car park environment and to assess the tree’s health, structural form, and potential risk. From photographs in the Appraisal it appears that “Tree #1”, as well as its description of having “recent limb failure occurr[ing] due to the presence of included bark and possible elongated lateral weight” is identified as the red gumtree in these proceedings. The other two trees in the Appraisal do not appear to be relevant to the issues in these proceedings. The red gumtree is described in the Appraisal as having an age of “Early mature” with a height of 14 metres and an average canopy width of 9 metres. The red gumtree was described as being in “Fair” tree health. The tree had minor damage from “Longicorn Beetle[s]” and as mentioned above had recent limb failure due to the presence of included bark and possible elongated lateral weight. The lower trunk region appeared to be “solid and well formed.” Consideration was given to the individual tree risk rating “Methodology for Urban Trees” and the Appraisal stated in respect of all three (3) trees;
Human occupation within the falling distance of the tree and/its parts were considered as targets during our risk assessment. The loss of bark, small twigs and minor branches was noted but this is common to all establish trees and was not considered to be a significant or beyond management through routine maintenance activities.
The overall tree risk rating/score for the trees was deemed to present a residual risk potential of 48% to 40%. According to the Table in the Appraisal for “Risk Score Matrix Table for Tree Risks” this percentage risk placed the three trees as having a minor likelihood of “Failure Possible” and “Failure Unlikely.” The Appraisal concluded as follows;
(a)Our opinion is that the subject trees present a manageable risk of harm and will continue to contribute to the urban forest for years to come;
(b)the subject trees are neither a nuisance nor inconvenience given the owner of the childcare centre and the centre have developed with an understanding of their existence;
(c)at this stage, we can see no justifiable reason for tree removal and suggest tree canopies should be pruned to promote tree health and structure. Any such pruning to be [sic] carried out by a competent Arborist who has a thorough knowledge of tree philosophy and pruning methods in accordance with Australian Standards AS 4373-2007: Pruning of Amenity Trees.
In a Report dated 16 March 2020, Roger Rankine, Consulting Arborist of Independent Arboriculture Services, prepared a “Tree Risk Assessment for the childcare centre on the Respondent’s property .” The Report was based on a visual inspection on 16 and 17 March 2020 when a review was made of the trees located on that property. The Report graded the “Risk Rating” into various categories.[17] The Risk Ranking for;
The red gumtree was “Yellow” (Medium) and the health of the tree was assessed as “Fair”;
The Leopard trees were “Green” (Low) and the health of those trees was assessed as “Fair”.
The photos attached to the Report showed that the trees were of a substantial height. No tree measurements were provided in that Report.
[17]Those categories were Extreme (coloured Red), High (coloured Orange), Medium (coloured Yellow) and Low (coloured Green).
In an email dated 22 July 2020 Ken Folkes, Technical Adviser, Arboriculture of the Redlands City Council, informed the Respondent that the Eucalypt trees are not protected by the Council and the Respondent may remove the trees at any time. The email also stated the Leopard trees can be pruned to standards but require Council approval to remove the trees as they are protected by development condition (Landscape Plan).
In a further email, dated 25 August 2020, to the tenant of the childcare centre on the Respondent’s property, Ken Folkes explained that pruning of the trees beyond the standards in AS 4373-2007 cannot be undertaken without exposing the person who does the pruning to negligence. He then went on to state;
Regarding protection, the trees are not protected, so can be removed without Council approval, if this is the inevitable outcome.
A Report from Roger Rankine dated 25 August 2020 (the Second Report) confirmed, after a visual inspection was carried out to review the pruning undertaken on the Leopard trees and the red gumtree, that the trees had been pruned “close to the boundary and/or to previous pruning points.” The Report also stated that the adjoining neighbour (the Applicant) had requested pruning to be taken further back to exactly on the boundary line for all three trees. Photos were included indicating the impact of pruning exactly to the boundary line. In respect of pruning to the “boundary line” the Report stated as follows;
The pruning required to achieve this is considered “fence line pruning” and “lopping.” This is not an acceptable outcome and exceeds the Australian Standard AS 4373 – 2007 Pruning of Amenity Trees.
The pruning would result in a one-sided canopy with the entire crown of the tree waited over the childcare playground and/or car park.
Additional maintenance would be required as the resulting tree cuts would produce epicormic growth back over the boundary.
The Report made the following “Recommendation”;
The proposed fenceline pruning would affect the long-term health and structural form of the nominated trees. It is recommended that if the only option available to the tree owner and the adjoining building owner is to fenceline prune the trees that they are removed and replanted with native species that are suitable for hedging and maintaining on the boundary line.

A further report dated 1 November 2021 (the Third Report) was provided by Roger Rankine based on a visual inspection. All trees were noted to have minor deadwood within the crown of those trees. The “previous tear out and wound” was observed and the wound indicated “active compartmentalisation.” The tree detail observed in respect of each of the three trees was as follows;
(a)Both Leopard trees had a height of 8 metres and a spread of 8 metres and their health was “Fair”;
(b)The red gumtree had a height of 26 metres and a spread of 12 metres and its health was “Fair.”
The Report recommended that;
(c)the three trees be retained and protected;
(d)all three trees were assessed as being of a low risk rating
(e)any further fenceline pruning/directional pruning would be outside AS 4373- 2007;
(f)no further directional pruning is recommended off the boundary fence line at this time;
(g)trees are to be inspected annually as part of a periodic risk assessment and remedial pruning to be undertaken by an Arborist;
A further Report dated 17 March 2021 (the Fourth Report) was provided by Roger Rankine based on an inspection of the Leopard trees and red gumtree. The Leopard trees and the red gumtree were assessed as being “Fair” and having a “Low” risk in accordance with the Table of “Risk Matrix” in the Report. The Report recommended
(a)the Leopard trees and the red gumtree are encroaching onto the neighbour’s building, and it is recommended that a directional prune be undertaken to amend this;
(b)astroturf around those trees be trimmed back from the base to prevent collar rot;
(c)all tree works be undertaken by a minimum AQF Level 3 Arborist. Tree companies to be members of a state-based or national-based Arboricultural Association;
(d)all pruning to be undertaken in accordance with Australian Standards AS 4373-2007.
(e)A periodic inspection should occur by staff members separate to the annual Arborist inspection and any issues such as deadwood, unattended branches in the tree (hangers) and a dead or dying tree should be notified to the supervisor or maintenance staff and actions put in place to contain or remove the risk.
A further Report dated 26 October 2022 (the Fifth Report) was provided by Will Miller, Consulting Arborist of Independent Arboricultural Services, reviewing the trees on the Respondent’s property. The Report provided tree detail to the effect that the Leopard trees were in “Fair” health and there was a “low” risk rating. Similar findings were made in respect of the red gumtree. The recommendations were in effect similar to those in the Fourth Report and relate to pruning and periodic maintenance.

Division 4 ss 70-75 of Neighbourhood Disputes Act – Tribunal’s Consideration

The Tribunal is required to take into account various matters specified in Part 5, Division 4 of the Neighbourhood Disputes Act.[18]
[18]Neighbourhood Disputes Act, s 70.
The primary consideration is the safety of any person.[19]
[19]Ibid, s 71.
A living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.[20]
[20]Ibid, s 72.

s 73(1)(a) – location of tree.

The location of the Leopard trees and the red gumtree is immediately adjacent to the common property between the Respondent’s and the Applicant’s property. Those trees are located on the Respondent’s property, and in the playground area of a childcare centre, and adjacent to associated buildings. The Applicant’s property has buildings constructed to or at the common boundary, and those trees overhang the roof and guttering of those buildings in the vicinity of all three trees.

S 73(1)(b) – whether consent is required under any other Act.

Neither of the parties refers, nor does any evidence of any of the Arborists refer, any requirement for consent under another Act.

s 73(1)(c) – whether the tree has any historical, cultural, social or scientific value.

Apart from the trees having been on the Respondent’s property for some considerable time, the evidence is that they provide shade to the children’s playground in the childcare centre.
There is no evidence to suggest that the trees are part of Aboriginal or Tourist Strait Islander cultural heritage or are situated in a Queensland heritage place.

s 73(1)(d) – any contribution the tree makes to the local ecosystem and biodiversity.

Apart from providing shade, the trees are said by Jeff Neale of the childcare centre to be a koala habitat. However, there is no evidence before the Tribunal that koalas actually reside in those trees. In the six (6) Arborist Reports provided to the Tribunal none of the arborists refer to or identify the existence of any koalas in the trees.

s 73(1)(e) – contribution the trees make to natural landscape and the scenic value.

The evidence suggests the main attraction is the impact which the trees have on the clients of the childcare centre, who it is said “love” the trees. Otherwise, the trees provide shade to the playground of the childcare centre, although there is a difference in the evidence from the parties as to the extent or effectiveness that shade.

s 73(1)(f) – any contribution to trees make to public amenity.

The contribution of the trees on the evidence before the Tribunal is limited to that on the Respondents property and does not relate to any neighbours (other than the Applicant) or to members of the local community. There is no evidence relating to public amenity.

s 73(1)(g) – any contribution the trees make to the amenity of the land.

The trees provide shade to the Respondents property and the business of the childcare centre. The trees are now of a substantial height and otherwise do not, on the evidence, provide any additional amenities. The trees do not provide any amenity, other than adverse consequences to, to the Applicant’s property.

s 73(1)(h) – the water table, or other natural features of the land or locality.

The evidence before the Tribunal is that there is no impact by the trees on the water table or on the natural features of the land or locality.

s 73(1)(i) – risks associated in the event of a cyclone or other extreme weather event.

The Reports from the Arborists classified the trees as “Low” risk according to the “Risk Matrix.”[21] However, that “Risk Matrix” is directed to consequences for likelihood of no injuries, through a progression to death or large number of serious injuries. While there is an explanation of the “Terminology,” there is no discussion to explain in the “Tree Risk Summary” how it is that the author of the Report came to an assessment of “low” risk. Neither is it explained in the Arborist Reports whether a finding of “low” risk means in all conditions normal to extreme or catastrophic.
[21]See Report of Roger Rankine dated 17 March 2021.
There is evidence that the existing trees can cause damage to property. In February 2018 there was a storm in the locality, and as a result, a branch from the red gumtree broke off that tree and damaged the roof of the building on the Applicant’s property. The repair costs were in excess of $2000.00, which were paid by the Respondent’s insurer to the Applicant.

s 73(1)(j) - the likely impact on the tree of pruning or maintaining it at a particular height, width or shape.

When it comes to pruning the trees, the evidence is that there must be compliance with the Australian Standard AS 4373-2007. The trees can only be pruned in certain ways. For instance, pruning cannot be undertaken to the extent of “borderline” pruning. The trees can only be pruned to a certain height, beyond which the balance of the height is allowed to overhang the adjoining neighbour’s property and roofline.
The impact of pruning on the Applicant’s property is that years ago it was effective to prevent the current dispute. However, as the trees have now grown to a substantial height (8 metres) for the Leopard trees, and higher (26 metres) for the red gumtree, the pruning has become ineffective for preventing the type of nuisance and damage to which the Applicant refers in its evidence relating to its roof gutters, downpipes, and stormwater damage to the internal parts of the buildings.

s 73(1)(k) - the type of tree including whether the species of trees is a test or weed.

The various Reports from the Arborists identify the species of Leopard tree and the red gumtree.
None of those Reports or other evidence identify those trees as a pest or a weed.
While the Applicant claims compensation, it does not relate to serious injury or damage.[22]
[22]Neighbourhood Disputes Act, s 74.
The Applicant alleges unreasonable interference with its use and enjoyment of its land through fallen leaves, branches, and debris from the trees causing blocked gutters and downpipes. The steps taken by the Respondent or the tenant of the childcare centre relate mainly to maintenance of the Respondent’s property, and from time to time some pruning of the trees which are the subject of this dispute. Both blocks of land belonging to the parties are of a reasonable size used for commercial purposes. The trees of which the Applicant complains were planted prior to the buildings being erected on the Applicant’s land. No interference or obstruction to sunlight or review is relevant to these proceedings.

What Order, if any, should the Tribunal make in these Proceedings?

The Tribunal is to be satisfied of several requirements before it can make any order in these proceedings.[23] Those requirements will be discussed as follows;
[23]Ibid, s 65.

Has the Applicant made a reasonable effort to reach agreement with the Respondent, the tree-keeper?

The evidence is that this dispute arose once the Leopard trees and the red gumtree became of some significant height. Prior to that it appears that the Applicant and the Respondent’s former tenant were able to resolve matters amicably.
Since at least 2018 the situation has been less amicable and there is a reduced likelihood of resolution of the tree dispute. The parties remained in communication, whether it be with the representative of the Respondent or with the Respondents tenant. The main cause of the parties dispute has been the extent to which those trees could be pruned. The parties’ communication related to the extent of pruning. The Applicant was seeking to have “fenceline” pruning to the trees, but the Respondent’s Arborists advised (as set out in several Reports) that such “fenceline” pruning was not in accordance with the Australian Standards and would lead not only to the imbalance of the trees, but negatively impact the trees structurally. The trees could not be reduced in height by any significant extent so as to be more in keeping with the height when those trees were in a more juvenile stage of their development.
For a significant period in 2020 the Applicant was corresponding with the Respondent’s then Solicitors, but notwithstanding several months of communications, those Solicitors advised that their retainer had been terminated and that the Applicant would have to deal directly with Dr Evan Angelos, a Director of the Respondent. The Applicant has made offers to contribute towards the cost of pruning and maintaining the Leopard trees and the red gumtree. The Applicant had email communications with that Director, but no resolution was reached. The evidence is that the parties have for some years been in communications in relation to the impact which those trees have had on the Applicant’s property but have not been able to reach any conclusions satisfactory to both parties. The Tribunal is satisfied that the Applicant has made a reasonable effort to reach agreement with the Respondent for a resolution of this tree dispute.
The associated issue is whether or not the Applicant has taken all reasonable steps to resolve the issue under any relevant local law, local government scheme or local government administration process. The evidence does not suggest that there is any local authority laws scheme or process which is relevant to this dispute. There is email correspondence from Ken Folkes of the Redlands City Council, who at one stage said that Council approval was required to remove the Leopard trees, as they were protected by development conditions (Landscape Plan). No such approval was required for the removal of the red gumtree. In a subsequent email it appears that Ken Folkes retreated from the proposition that Council approval was required for the removal of the Leopard trees and confirmed that no approval was necessary. In any event, there is no evidence before the Tribunal that there is any relevant local law, local government scheme or local government administration process which needs to be satisfied in these proceedings. The Tribunal is satisfied that the Applicant’s steps to resolve any issue in respect to these matters were, in the circumstances, reasonable in its approach to this dispute.
The evidence from the Arborists satisfies the Tribunal. he extent to which the Applicant’s land is affected because of branches from the Respondent’s trees overhanging the Applicant’s property;
(a)is that those branches extend over the Applicant’s land a distance at least 50 centimetres from the common boundary; and
(b)the Applicant cannot properly resolve the issue relying on the process for removal of overhanging branches under Part 4 of the Neighbourhood Disputes Act.
There is evidence before the Tribunal that on 16 December 2020 the Applicant served copies of the Application for a Tree Dispute filed in the Tribunal on 13 November 2020 on the Respondent.
The Applicant seeks orders for the removal of the Leopard trees and the red gumtree. To make such an order the Tribunal has to take into account the requirement in s 72 of the Neighbourhood Disputes Act, which states;
A living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.
The Respondent seeks to maintain the “status quo” by keeping the Leopard trees and the red gumtree on its property and pruning those trees in accordance with the requirements of the Australian Standards.
The issue then is whether or not this unresolved tree dispute between neighbours can be determined by maintaining the “status quo” or whether the trees should be removed.
There are limited options so far as these trees are concerned. By keeping the trees on the Respondent’s property they can be maintained in accordance with the Australian Standards. If that is done, then the Applicant’s property continues to be subjected to tree leaves, litter, debris and falling branches (which may or may not cause damage to the Applicant’s property) and can result in the continuation of blocked gutters, drainage problems, and the ingress of stormwater into the inside of the commercial buildings, causing damage to the property and tenant’s equipment. In short, maintaining those trees involves a continuation of the dispute that has existed between the parties for several years. The Respondent’s evidence was to reassure the Tribunal that the trees are adequately and properly maintained on its own property without the maintenance complications from leaves, litter, debris and falling branches which the Applicant experiences on its side of the common boundary fence. Notwithstanding the evidence in the Arborists Report about the “Low” risk those trees have on the Respondent’s property, the Tribunal is very conscious of the fact that the business of a childcare centre with a playground is operated in the vicinity of the Leopard trees and the red gumtree. In February 2018 a branch from the red gumtree fell onto the roof of the Applicant’s building and caused damage in excess of $2000. While the Arborists Reports do not deal with, or sufficiently deal with, the activities of a childcare centre, the presence of children in the playground there is nevertheless a possibility of unexpected and unpredictable tree branches or debris falling in playground even assuming the annual maintenance of those trees by an Arborist. The trees are of a substantial height, 8 metres and 24 metres.
If the Tribunal were to consider the removal of the trees, the question then is whether or not the Leopard tree and the red gumtree should be removed can the dispute “otherwise be satisfactorily resolved.” The evidence is that pruning of both trees back to “fenceline” pruning is not in accord with the Australian Standards. Assuming for the moment that “fenceline” pruning was undertaken, there is no evidence that the present problems experienced by the Applicant would be resolved to any extent. Even if that fenceline pruning was undertaken, the Arborists’ evidence is that the long-term health and structural form of those trees would be affected and this does not appear to be a satisfactory outcome.
The suggestion to prune in accordance with current Australian Standards means that there will be branches still continuing to overhang the common boundary and extend above the Applicant’s property and buildings. That does not appear to be a satisfactory outcome. The trees are now of a substantial height and the trunks also have been measured which have a significant girth. Those trees are of significant proportions, and limited pruning in accordance with the Australian Standards does not present a satisfactory resolution. A height reduction in those trees is not advised by the Arborists. The evidence suggests that either the trees stay and continue to be maintained in accordance with the Australian Standards or they be removed. That contradictory situation is discussed in the Arborist Report of Roger Rankine on 25 August 2020 where in the “Arborist Recommendation” he states;
The proposed fenceline prune would affect the longer-term health and structural form of the nominated trees. It is recommended that if the only option available to the tree owner and the adjoining building owner is to fenceline prune the trees that they are removed and replanted with native species that are suitable for hedging and maintaining on the boundary line. Any required council and state government permissions to be in place before any further work commences.
The Tribunal accepts the evidence and the recommendation made in the Report of Roger Rankine dated 25 August 2020. In these proceedings there is no evidence of any required council’s state government permission for the removal of these trees. A further matter is that if the trees are removed, this converts what is a “Low” risk in the playground to the childcare centre to a “Nil” risk environment, provided trees sympathetic to the needs of the children are replanted, or other shade proofing of the playground required with the needs of the children in place.
Neither party provided evidence as to whether an alternative trees selection could be provided as a solution to the existing trees. Whether the parties could replace the trees with trees of an advanced growth, or otherwise sympathetic to the Applicant’s property and to the needs of the childcare centre, has not been addressed in the evidence.
The Tribunal considers that for these reasons maintaining the “status quo” with the existing trees is a continuation of the current dispute process and does not provide any resolution. Removal of the trees, in the circumstances, having regard to the limited pruning of the existing trees, means that the parties can henceforth start afresh knowing that each can get on with the business carried on their respective properties without the continued disputation caused by these trees. On the evidence it has not been shown that the disputed issues relating to these trees can “otherwise be satisfactorily resolved” and the resolution requires the removal of the trees.
The Tribunal accepts that the Leopard trees and the red gumtree have over a significant period caused substantial ongoing and unreasonable interference with the use and enjoyment of the Applicant’s land. While those trees do not constitute an interference or obstruction to sunlight or a view, they are in excess of 2.5 metres in height.

The Tribunal accepts that a continuation of that “status quo” for the existing trees with “fenceline” pruning is satisfactory to the Applicant, but such pruning constitutes a danger as it will affect the longer-term health and structural form of those trees. That would be an unsatisfactory outcome given the commercial use of the Applicant’s property and the proximity of the children’s playground in the childcare centre. The Tribunal accepts the removal of the Leopard trees and the red gum trees, and their replacement by either selected trees of a suitable specimen or other shade protection for the playground as required by the Education Department, is the most satisfactory outcome. For these reasons the Tribunal is satisfied that the Leopard trees and the red gumtree should be removed as soon as possible.
The Tribunal will order the removal of those trees by the Respondent at its expense. The Tribunal will give the Respondent sufficient time to obtain quotes from an Arborist or other suitably qualified person to remove the trees. It is not intended to Order that the Respondent replace the trees with some suitable tree species as the Respondent is under an obligation to provide shade in the playground of the childcare centre. Whether the Respondent wishes to replace the trees with a suitable tree specimen or another form of shade will be a matter for the Respondent.

Applicant Seeks Compensation

In the Application for a tree dispute filed on 13 November 2020 the Applicant sought compensation based upon gutter cleaning costs of $1220.00, and also for grounds cleaning costs of $750.00 and a 2018 damage claim for $2026.50. Subsequently in these proceedings, the Applicant filed further material claiming additional compensation relating to ongoing maintenance of gutters and downpipes arising from leaf, litter, and debris from the trees on the Respondent’s property.
The Applicant’s compensation claim falls under two heads;
(a)various monetary claims to reimburse for cleaning and maintaining the roof, gutters and downpipes, arising from leaf litter and other debris from the Respondent’s trees; (the maintenance claim) and
(b)an amount of $2026.50 for damage to the Applicant’s roof in about February 2018 resulting from a branch/limb of the red gumtree falling onto that roof. (The 2018 roof damage claim).

The Maintenance Claim

This claim relates to the compensation being sought relating to the cleaning of gutters and cleaning of the grounds at the Applicant’s property.

Gutter Cleaning Claim

Having claimed in the application an amount of $1220.00 under this head of damage, the Applicant subsequently filed further material in the Tribunal to claim further costs of $750.00 for gutter cleaning since 13 November 2020. This was calculated on the basis of 50% of weekly ground cleaning for 48 weeks.
The Applicant, in reply to the Respondent’s evidence, referred to a cost of $660.00 per service for scheduled quarterly gutter vacuum cleaning, which was said to be more than adequate for all areas of guttering except where there is excessive leaf debris from the Respondent’s trees. The Tribunal is in some doubt as to whether the Applicant is claiming the latter amount of $660.00 per service for the vacuum cleaning gutters, but, in the circumstances, will regard it as part of the compensation claim based upon gutter cleaning costs along with the other amounts already referred to in this claim.
The claim for gutter cleaning costs of $1220.00 is calculated by the Applicant in accordance with the following particulars of that claim;[24]
25% of annual costs for 2019 and 2020.
[24]Attachment 8 to the Application.
While there is some evidence of a rate per visit by the gardener/caretaker, there is no evidence before the Tribunal as to how the annual costs of 2019 and 2020 have been calculated. More importantly, there is no evidence as to why 25% is the correct apportionment of those annual costs for the cleaning of gutters caused by leaf drop, litter, tree debris or by fallen branches. Nor is there evidence that amongst all of the duties of the gardener/caretaker to be carried out at the Applicant’s property the correct apportionment of those duties for gutter cleaning is 25%. Whether that 25% is calculated on an “area basis” or on a “hourly basis” or on some other basis is not known from the state of the evidence. The Tribunal is left in a situation where the claim for 25% of annual costs seems to be an estimate, speculation, or at worst, a “rough guess.” The Applicant has not provided the evidence necessary to satisfy the Tribunal that a fair and reasonable amount for compensation for gutter cleaning in 2019 and 2020 caused by the Respondent’s trees is 25% of the annual costs. The Tribunal finds that it is not satisfied that the Applicant has discharged the required onus of proof relating to the claim for compensation for gutter cleaning. The Tribunal rejects this claim.
The same applies to the two other amounts of $750.00 for gutter cleaning since 13 November 2020 and $660.00 per service for the vacuum cleaning of gutters. Both items lack sufficient evidence to satisfy the Tribunal of that claim. For example, the further claimed amount of $750 is calculated on the basis of 50% of weekly ground cleaning for 48 months. How the rate of 25% previously claimed has now changed to 50% is not explained. Nor is it explained why the rate should now be 50% and why that rate is applicable for 48 months. The evidence does not attempt to deal with any of these matters to show that they are a fair and reasonable proportion of overall costs to claim compensation. The claim for $660.00 for each service of vacuum cleaning gutters is similarly not explained and are there is a complete lack of evidence on this topic. The Tribunal finds that it is not satisfied that the Applicant has discharged the required onus of proof relating to the claim for gutter cleaning. The Tribunal rejects both the claim of $750.00 and $660.00.

Grounds Cleaning Claim

The second claim for compensation under this head of “Maintenance Claim” is for grounds cleaning of $750.00. That claim is particularised as follows;
25% of weekly costs for 2019 and 2020.
This claim for “grounds cleaning” has the same deficiency of evidence as has already been explained above in respect of the claim for “gutter cleaning.” In short, the Applicant has not provided any, or any sufficient evidence, to satisfy the onus of proof in respect of this claim. The Tribunal is not satisfied that the Applicant discharged the required onus of proof relating to the claim for compensation for grounds cleaning. The Tribunal rejects this claim.

The 2018 Roof Damage Claim

The Applicant claims $2026.50 as a result of a branch from the Respondent’s red gumtree falling onto the roof of the Applicant’s premises with the consequence being removal, clean-up, and repair costs.
The Respondent says that it made an insurance claim in respect of these costs. While its insurer initially rejected the claim, ultimately the insurer payed the claim in full.
The Applicant, in the evidence of Derek Grewar, now concedes that the Respondent’s insurance company has paid that claim. The evidence of Derek Grewar is as follows;
Finally, we acknowledge and accept that Mr Angelos’ insurance company has agreed to pay the original demand amount of $2026.50 for the damage his tree caused to our property.
The position is therefore that the Applicant has already been compensated by the Respondent’s insurer for the damage of $2026.50. Accordingly, as at the date of the hearing in the Tribunal, the Applicant has not suffered any loss. It recovered its loss by the insurer’s payment of the full amount of that claim. To now award the Applicant a further sum of $2026.50 would be an exercise in “double dipping,” in circumstances where the payment by the Respondent’s insurance company extinguished the claim under this heading. In these circumstances the Applicant is unable to maintain this claim and it should be dismissed.
Accordingly, the Tribunal will dismiss the Applicant’s claim for compensation and will not make any order for payment of any compensation by the Respondent to the Applicant.