Lowrie v Harvey - [2024] QCAT 594

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:
Lowrie v Harvey [2024] QCAT 594

PARTIES:

KELLY MARIE LOWRIE

(applicant)

v

DAVID JOHN HARVEY AND BELINDA CAROLINE HARVEY

(respondents)

APPLICATION NO/S:
NDR001-22

MATTER TYPE:
Neighbourhood Dispute

DELIVERED ON:
12 December 2024

HEARING DATE:
14 November 2024

HEARD AT:
Brisbane

DECISION OF:
Member S M Burke

ORDERS:
1.   The Applicant’s application for removal of all 21 trees the subject of the complaint is dismissed.

2.   With reference to the Tree Data Table contained at pages 13 and 14 of the report dated 24 April 2024 prepared by Tree Knowledge Consulting, the tree identified as Tree 11 is to be removed.

3.   The trees numbered 4, 5, 6, 7, 8, 9, 15, 17 and 20 in the Tree Data Table referred to in order 2 are to be pruned in accordance with AS4373-2007 Pruning of Amenity Trees (2007) with an experienced AQF Level 5 arborist on site to oversee the works.

4.   Trees numbered 9, 15 and 17 in the Tree Data Table referred to in order 2 are to be pruned and maintained to ensure that the overhang does not unreasonably affect the sunlight exposure to the Applicant’s property.

5.   Tree numbered 20 in the Tree Data Table referred to in order 2 is to be monitored on an annual basis to ensure the root growth is not affecting the Applicant’s property.

6.   All works referred to in orders 2 and 3 (“the proposed works”) are to be carried out on or before 17 March 2025 with an experienced AQF Level 5 arborist on site to oversee the proposed works.

7.   All costs incurred in carrying out the proposed works are to be borne by the Respondents.

8.   The Applicant is to provide access to the property at 8 Firetail Court Tanawha in order that the proposed works be carried out upon the receipt of notice in writing from the Respondents not less than 72 hours prior to the commencement of the proposed works.

9.   The Respondents are to engage an AQF Level 5 arborist to assess the trees every two years to determine any associated risk of tree parts falling and impacting a target zone.

10. The Respondents are to engage an AQF Level 5 arborist to perform or supervise all pruning and removal work at any time with respect to the subject trees identified in the Tree Data Table referred to in order 2.

11. The Respondents are to engage an AQF Level 5 arborist to record all work completed on the subject trees and to implement a tree management plan.

CATCHWORDS:
NEIGHBOURHOOD DISPUTE – TREE DISPUTE – whether trees were causing substantial, ongoing and unreasonable interference – whether the trees ought to be trimmed or removed.

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 47, s 49, s 52, s 65, s 66, s 67, s 71, s 72, s 76

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).

REASONS FOR DECISION

The Applicant, Kellie Marie Lowrie, is the registered owner of a property at 8 Firetail Court Tanawha, Queensland.
The Respondents, David and Belinda Harvey, are the registered owners of an adjoining property at 7 Firetail Court Tanawha and are the “tree-keeper” in this application as defined in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).
The Applicant seeks the removal and/or maintenance of trees situated on the common boundary between the two properties. There are 21 trees situated on the common boundary which the Applicant alleges negatively affect her property (“the subject trees”).
Jurisdiction
Pursuant to a decision dated 19 July 2024, it was determined by the Tribunal that the Respondents’ property is located in a ‘core’ koala habitat area, not a ‘priority’, ‘essential’ or ‘high risk’ habitat area. It was determined that the Tribunal has jurisdiction to hear and make a decision regarding the application.
It was further determined that:
(a)the Sunshine Coast Council has no objection to the orders sought by the Applicant and no operating works application for vegetation clearing is required by the Council;
(b)the trees the subject of the application are not protected but in fact are exempt;
(c)there is no evidence from the Respondents that the removal of the trees would be catastrophic to the native wildlife.

The Relevant Legislation

This Tribunal has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that, as at the date of the application to the Tribunal, land is affected by the tree.[1]
[1]Section 61 The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.
The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (“the Act”) provides, pursuant to s 52, that an owner of land on which a tree is situated (“the tree-keeper”) is responsible for:
(a)cutting and removing any branches of the tree that overhang a neighbour’s land;
(b)ensuring that the tree does not cause:
(i)      serious injury to a person; or
(ii)      serious damage to a person’s land or any property on a person’s land;
(iii)     substantial, ongoing and unreasonable interference with a person’s use or enjoyment of the person’s land.
Section 46 of the Act provides that land is affected by a tree at a particular time if:
(a)any of the following applies –
(i)      branches from the tree overhang the land;
(ii)      the tree has caused, is causing, or is likely within the next 12 months to cause –
A.serious injury to a person on the land; or
B.serious damage to the land or any property on the land;
C.substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land; and
(b)the land –
(i)      adjoins the land on which the tree is situated; or
(ii)      would adjoin the land on which the tree is situated if it were not separated by a road.
The Act provides that a tree is situated on land if the base of the tree trunk is or was previously situated wholly or mainly on the land.
Section 66 of the Act sets out the Tribunal’s broad powers in relation to orders which may be made in relation to a tree alleged to be affecting a neighbour’s land. Part 5 Division 4 of the Act states the matters which the Tribunal is to consider in deciding an application for an order under s 66 of the Act.
Most importantly, pursuant to s 66(2) of the Act, the Tribunal is to make orders it considers appropriate in relation to a tree affecting the neighbour’s land –
(a)to prevent serious injury to a 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.
Pursuant to s 66(5) of the Act, without limiting the powers of the Tribunal to make orders under subsection (2) of s 66, an order may do any of the following –
(a)require or allow the tree-keeper or neighbour to carry out work on the tree on the tree on a particular occasion or on an ongoing basis;
Examples –
·an order that requires the removal of the tree within 28 days
·an order that requires particular maintenance work on the tree during a particular season every year
·an order that requires particular work to maintain the tree at a particular height, width or shape.
(b)require that a survey be undertaken to clarify the tree’s location in relation to the common boundary;
(c)require a person to apply for a consent or other authorisation from a government authority in relation to the tree;
(d)authorise a person to enter the tree-keeper’s land to carry out an order under this section, including entering land to obtain a quotation for carrying our an order;
(e)require the tree-keeper or neighbour to pay the costs associated with carrying out an order under this section;
(f)require the tree-keeper to pay compensation to a neighbour for damage to the neighbour’s land or property on the neighbour’s land;
(g)require a report by an appropriately qualified arborist.
Section 65 sets out the requirements which must be satisfied before the Tribunal may make an order under s 66 of the Act. They include the following matters:
(a)the neighbour has made reasonable effort to reach agreement with the tree-keeper;
(b)the neighbour has taken all reasonable steps to resolve the issue under any relevant local law, local government scheme or local government administrative process;
(c)to the extent the issue relates to land being affected because branches from the tree overhang the land –
(i) the branches extend to a point over the neighbour’s land that is at least 50cm from the common boundary; and
(ii) the neighbour cannot properly resolve the issue using the process under Part 4;
(d)the neighbour has given the copies of the application under section 63, other than to the extent the requirement to do so has been waived.

Compliance with Section 65 of the Act

Evidence, by way of correspondence, has been provided by the Respondents indicating that attempts to resolve the issues with the Applicant have been instigated by the Respondents.
Accordingly, as the neighbour has made reasonable effort to reach agreement with the tree-keeper, I am satisfied that the requirements of s 65 of the Act have been fulfilled.

The Dispute

The Applicant asserts that the subject trees which affect her property range in height from 4 metres to 39 metres with a median spread of over 8 ½ metres, the spread of the lager trees being 14 metres. Branches of the subject trees extend some 5 metres to 10 metres over the common boundary.
The Applicant alleges that the roots from the subject trees negatively affect her property and have damaged pipes on her property.
In addition to the overhang of the foliage, the subject trees regularly drop branches, sticks, leaf litter and other debris on her property causing damage to her roof, garage, tennis court and pool area. It is alleged that the branches which fall on the property range in size and thickness from 10cm to 15cm in diameter. It is asserted that the fallen branches present a significant risk to the property and people on the property.
In addition to the risk to the property and persons on the property, the Applicant asserts that the height of the trees has severely obstructed the sunlight on her property. The extent of this effect is that the solar hot water system on the Applicant’s roof has become redundant.
Further complaints include the incursion of roots in pipes and drains on the Applicant’s property leading to the blocking of sewer pipes and back-up of the stormwater.
Renovations carried out by the Applicant in 2021 included attending to the alleged damage caused by the subject trees. The builder’s report from Icon Construction Services dated 12 October 2022 addresses the works required to be undertaken as a result of the damage caused to the Applicant’s property by the subject trees.
In September 2022, the Applicant engaged Independent Arboricultural Services to provide a report addressing the state of the subject trees. A report dated 16 September 2022 was provided (“the September 2022 Arborist Report”) with recommendations for the removal of 2 dead trees and the maintenance of the subject trees to be undertaken by a minimum AQF Level 5 arborist. It was further recommended that aerial assessments of branch unions be taken and for any defects with the subject trees be undertaken during pruning works and that all tree works be undertaken by a minimum AQF Level 3 arborist in accordance with AS4373:2007 Pruning of Amenity Trees and no “fence line pruning” to be undertaken of the subject trees..
The Applicant seeks an order from the Tribunal that all 21 subject trees identified in the September 2022 Arborist Report be removed at the Respondents’ cost.
In the alternative, the Applicant seeks the following orders:
(a)the dead trees identified in the September 2022 Arborist Report be removed at the Respondents’ cost;
(b)the subject trees to be cut back to the common boundary, including but not limited to, branch reduction, dead wooding and crown thinning at the Respondents’ cost;
(c)the roots to be cut back to the common boundary; buttress roots to be ground down/removed and a root barrier installed along the common boundary at the Respondents’ cost;
(d)a 10 year caveat to be registered on the Respondent’s property ensuring the Respondents to regularly attend to the maintenance of the subject trees to ensure the subject trees do not affect the Applicant’s property, to prevent/reduce branches, sticks, leaf litter and other debris falling on the Applicant’s property and to allow access to sunlight at the Respondents’ cost;
(e)all the costs and incidentals including reports in relation to the application be paid by the Respondents.
The Respondents oppose the Applicant’s application and initially relied upon a report prepared by Top Cut Tree Solutions dated 17 May 2022. The purpose of the report was to assess the health and structure of the subject trees and to identify any risks they may pose.
The assessment for the report was carried out by Matthew Richardson. The report made the following recommendations: -
(a)Tree 9 is the only tree identified as posing a medium risk and should be removed at the earliest convenience. All other trees are in good health and structure.
(b)When considering the management of the remaining trees, consideration should be given to the vegetation management considerations imposed at a State government level.
(c)Approximately two thirds of the trees surveyed fall within areas of concern regional ecosystems and essential habitat. The essential habitat is a koala and protected plants high risk area.
(d)Any works on the trees should be severely limited and subject to a permit and consultation with the Sunshine Coast Council.
(e)The Respondents do not oppose trimming trees which are deemed necessary to be maintained and agrees with the engagement of an AQF Level 5 arborist.
(f)The Respondents assert that the debris falling from the subject trees is small and juvenile vegetations and confirms that their insurance is in place in the event that any damage is caused from a severe storm or natural event.
(g)The Respondents do not agree that significant amounts of small and juvenile vegetation falls from the trees on the adjoining property.
(h)The Respondents assert that the subject trees should remain as they are native trees to the area and form part of the Core koala habitat corridor which runs through many properties in Tanawha. The removal of the trees would be detrimental to the koala population.
(i)The Respondents’ statement dated 31 January 2023 sets out in full the Respondents’ concerns regarding removal of all the trees on their property. In addition, the Respondents confirm that on 16 January 2023, the arborist engaged by the Respondents on a regular basis, attended at the property to remove the tree highlighted for removal. It is assumed that this reference is to Tree 9 in the report relied upon by the Applicant.
(j)Further, the Respondents’ solicitors outlined in its letter dated 8 November 2023 the stance taken by the Respondents in relation to the Applicant’s concerns.
Arborist Report dated 23 April 2024 – Consult Arborist Pty Ltd
On 13 April 2024, Mr Matthew Duncan of Consult Arborist Pty Ltd (“Consult”), a certified tree assessor, attended at the property owned by the Applicant at 8 Firetail Court to assess the situation regarding complaints about the subject trees growing along the southern boundary within 7 Firetail Court, Tanawha.
A report was provided by Consult on 23 April 2024 (“the Consult Report”) addressing the following points of contention raised by the Applicant:
(a)hazard – the risk posed by the subject trees causing ongoing damage to the dwelling and property by falling branches and daily debris drop;
(b)excessive debris drop causing blocked guttering and roof damage;
(c)ongoing maintenance of the trees.
The purpose of the Consult report was not to assess each individual tree but rather to provide guidance to all parties to help resolve the dispute and to reach a reasonable resolution given that the Applicant asserts that the trees are hazardous, with falling branches causing damage to her dwelling and property.
The Consult Report identifies that the predominant species of the subject trees is local Eucalyptus species known as Flooded Gum. In addition, Pink Bloodwood and Tallowood and a Weeping Fig were observed. Positioned adjacent to the garage is a fast-growing rainforest species commonly known as Blue Quandong.
Beneath these subject trees within the property of 8 Firetail Court is a continuous line of Gold Cane palms which has been planted along the southern side of the fencing offering screening and privacy for both neighbours.
In section 6 of the Consult Report, Mr Duncan has assessed that the subject trees currently pose the greatest hazard, with the risk of branch failure impacting the neighbouring property. The risk rating for branch failure is calculated as “high” based on the International Society of Arboriculture (ISA) Tree Risk Assessment scale.
The Consult Report recommends the following hazard mitigation works to be undertaken in order to reduce the risk score from “high” down to an acceptable level:
(a)pruning of the subject Eucalyptus trees in accordance with AS4373-2007 Pruning of Amenity Trees (2007) to be carried out by an experienced AQF Level 5 Arborist onsite to oversee the works;
(b)the weeping fig in the Respondents’ property to the side of the dwelling in 8 Firetail Court should either be maintained so that it does not encroach over the dividing fence or be removed in its entirety;
(c)the Blue Quandong located close to the garage is extensively growing over the property boundary and with the structural fault developing in the trunk union, its removal now would resolve current issues as well as removing the future threat of a major trunk failure affecting either one or both properties;
(d)recommendation that an AQF Level 5 Arborist conducts an inspection with a visual tree assessment of all large trees to be made every one year period and a written assessment to be provided to both parties.
Arborist Report dated 24 April 2024 – Tree Knowledge Consulting
A further report was commissioned by the Applicant and prepared by Mr Matthew Williams, an ISA certified arborist and principal consultant for Tree Knowledge Consulting Pty Ltd (“TKC”).
An inspection was undertaken by TKC on 12 April 2024 and a report prepared dated 24 April 2024. (version 2 dated 1 May 2024)
The 20 subject trees along the boundary were identified and tabled in a spread sheet headed “Tree Data Table” at pages 13 and 14 of the TKC report.
The health of the trees was assessed with all except trees 11 and 13 exhibiting fair-good health. In addition, the structure of the trees was assessed with the trunk and stem taper of most trees being considered acceptable. Trees 7, 11, 13, 14 and 16 were growing over the boundary fence into the Respondent’s property with overhanging branches increasing branch failure potential.
Trees 11 and 13 displayed crown decline or die-back.
The TKC Report concluded that:
(a)the subject trees contribute to debris falling within the Applicant’s property such as leaves, seeds, and deadwood material;
(b)five trees are recommended for removal – trees 9, 11, 15, 17 and 20, for the following reasons:
(i)      Tree 11 was considered to have very poor structure, exacerbated by an asymmetric canopy form;
(ii)      Trees 9, 15 and 17 are recommended for removal due to an incompatibility of the species and location or an attempt to increase sunlight exposure to the south, east and west of the subject trees;
(iii)     Tree 20 has developed a low and spreading crown because of the species and photo-suppressed site conditions and there is a potential for existing or future root growth developing within the neighbouring property.

The recommendation for removal as opposed to pruning and maintenance was based on the following reasoning:
(a)implementing height or crown reduction pruning techniques is inappropriate in this case due to the photo-suppressed site conditions likely to inhibit coppicing or epicormic growth in response, probably causing a decline in health;
(b)the root morphology (the depth and spread of the root system) of all the subject trees based on their species and proximity to the common boundary can and is likely to expand and grown within the neighbouring property;
(c)removing the subject trees identified by TKC within 3metres of the common boundary is unlikely to disrupt the hydrological cycle or sediment control surrounding the common boundary.
The risk assessment carried out by TKC identified that there were no structural features which required an elevated risk assessment with the exception of Tree 11 which indicated a poor structure and increased failure potential with an asymmetric crown form with a target radius over the dwelling roof structure and pathway.
The TKC report identifies that the Active risk assessment found that there was a tolerable risk value for 8 of the trees as listed in the Tree Data Table which resulted in a risk remediation recommendation of implementing pruning methods such as “Class 2 Prune”. A further 5 of the subject trees were in the Acceptable risk value with the result that no risk mediation measures were recommended at the time of the TKC report. The remaining 7 trees were assessed to be Not Tolerable. This conclusion results in a recommendation that actionable works implemented within one year of inspection are recommended, which may include tree removal to remediate risk or implementing pruning methods such as “Class 2 Prune”.
The TKC report recommends the following procedures and assessments be put in place to manage the associated risks of harm and damage to property by falling tree parts or transgressing root systems while prolonging the health and benefits of the retained trees:
(a)implement the risk management control measures identified in the Tree Data Table in the TKC report at pages 13 and 14;
(b)record all work completed against the tree numbers providing a record via a tree management plan;
(c)an AQF Level 5 arborist should assess the trees annually to determine an associated risk of tree parts falling and impacting a target zone;
(d)an AQF Level 5 arborist should perform and or supervise all pruning and removal work to implement preferred pruning and felling practices;
(e)A licensed fauna spotter/catcher is recommended to monitor tree pruning or removal works where trees present a wildlife habitat potential.
The TKC report concludes that provided the subject trees are maintained by reputable arborists who are appropriately qualified and understand tree biomechanics nad plant physiology, the benefits of implementing Class 2 pruning methods that include branch length reduction techniques are likely to reduce the risk value in most cases and in general, minimise material falling such as twig size debris > 10mm in diameter.
The author of the TKC report also observed:
(a)the impacts on the Applicant’s land caused by the subject trees revealed minimal sunlight exposure along the northern boundary caused by the subject trees overshadowing the property which may be perpetuated during seasonal changes;
(b)the tree trunk of Tree 20 is within 1 metre of the common boundary of which the tree species system in regarded as invasive having the potential to impact underground infrastructure nearby;
(c)consideration should be given to how the tree risk and in general the overhanging biomass is managed appropriately without causing detriment to the tree structure and health that perpetuates branch failure events or negatively impacts the risk value.
Discussion
For the purpose of addressing the Applicant’s complaints regarding the subject trees, the Tribunal relies upon the Tree Data Table included in the TKC report at pages 13 and 14. The Tree Data Table is attached as Appendix “A” to these reasons so that there can be no confusion regarding the reference to particular trees identified by number in the Tree Data Table.
One of the main concerns of the Respondents is that the removal of the subject trees will have a catastrophic effect on the native wildlife. The Respondents contend that the native Eucalypt trees are home to around 20 bird species, possums and koalas. It is asserted that the removal of the 20 subject trees would cause substantial damage to the Core Koala Habitat area and therefore threaten the koala colony.
There does not seem to be any expert evidence supporting the Respondents’ contention and in fact it is noted that in the TKC report it was observed that from ground level all trees had a limited wildlife habitat potential.
The Tribunal does not consider, on balance that this factor is a determining factor in the issues of dispute between the parties but has taken into account the sensitivity of the area to flora and fauna habitats and the natural environment which is expected to be enjoyed by both parties.
The Tribunal is cognizant of the fact that all of the properties in Firetail Court Tanawha are acreage properties and that a majority of the properties have significant trees and vegetation both in quantity, size and height. It is an attractive and desirable feature of the properties that large trees are in abundance.
It would appear that both the Applicant and the Respondents accept that maintenance of the large trees is essential in order to avoid damage to both properties. The task of cleaning leaves and debris and general maintenance is, by comparison to other suburban properties, a large undertaking.
The Respondents contend that they are vigilant about the maintenance of the trees on their property ensuring that the trees are healthy and that damage is not caused by overhanging branches and debris. The Respondents also contend that it is the Applicant who has failed to maintain the Golden Cane Palm trees on her own property and that much of the damage to her property has been caused by a lack of maintenance on her own property. In other words, the Respondents assert that the Golden Cane Palms on the Applicant’s property have contributed to any problems experienced by the Applicant.
There is no evidence to support the latter contention.
The Tribunal is satisfied that the Consult report and the TKC report identify a number of problems caused by the row of trees on the common boundary in the Respondents’ property including, but not limited to, the following:
(a)dead and dysfunctional branches are evident with the high likelihood of their failure occurring in the near future;
(b)falling debris is a constant problem from the trees planted in the Respondents’ property;
(c)significant dead wood material is evident within the crown structure of multiple trees that overhang into the Applicant’s property;
(d)the Blue Quandong tree located close to the garage is extensively growing over the property boundary and evidences a structural fault at the trunk union;
(e)the Weeping Fig encroaches over the dividing fence and has the potential to adversely affect the Applicant’s property;
(f)several lateral stems of some trees were growing over the Applicant’s property and evidenced poor branch or trunk taper.
The Tribunal accepts the evidence that there is no risk remediation work required for Trees numbered 1, 2, 3, 12, 14 and 19. These trees however are to be included in any ongoing maintenance program.
The Tribunal also accepts the evidence that branch length reduction is required for Trees numbered 4, 5, 6, 7, 8, 10, 13, 16 and 18. Pruning of these trees will be required to be undertaken in accordance with AS4373 – 2007 Pruning of Amenity Trees (2007) and carried out under the supervision of an experienced arborist with a minimum of AQF Level 5 qualification.
Of significance, the TKC report recommends the removal of 5 trees, namely Trees 9, 11, 15, 17 and 20.
Tree 11 is considered to have a very poor structure exacerbated by an asymmetric canopy form.
Trees 9, 15 and 17 have been recommended for removal due to an incompatibility of the species and location of structures in an attempt to increase sunlight exposure to the south, east and west of the subject trees.
Tree 20 has developed a low and spreading crown because of the species and photo-suppressed site conditions. It is further stated that there ais a potential for existing or future root growth developing within the Applicant’s property. Impacting infrastructure due to the species morphology and trunk proximity from property structures.
It would appear from the TKC report that Tree 11 is the tree which exhibited the poorest structure and it is for this reason the Tribunal accepts that its removal is clearly warranted. It is accepted that the risk value cannot be remediated without removal of the tree.
Trees 9, 15 and 17 are considered incompatible with the site based on the location and tree species. In addition to this, there is an impact regarding sunlight which is of concern to the Applicant.
Tree 15 is a Blue Quandong tree which is located close to the garage and is extensively growing over the property boundary and exhibiting a structural fault developing in the trunk union. It’s removal would resolve the current concerns and remove any future threat of major trunk failure affecting both properties.
Tree 17 is also a Blue Quandong which is regarded as an incompatible species for the location.
Whilst it is of concern that implementing risk remediation pruning works may exacerbate the potential for tree part failure in the long term, the Tribunal accepts the evidence that provided the subject trees are maintained by reputable arborists who understand tree biomechanics and plant physiology, the benefits of implementing Class 2 pruning methods that include branch length reduction techniques are likely to reduce the risk value in most cases and in general will minimise material falling (such as twig size > 10mm in diameter.
Of main concern for the Applicant is the minimal sunlight exposure along the northern boundary within her property caused by the subject trees overshadowing her property.
The Tribunal accepts that the lack of sunlight is of concern to the Applicant but does not accept that it is a dominant reason for removal of a tree. If the tree can be contained within the Respondents’ property and properly pruned and maintained, there is little room for complaint in the absence of other threats to the property. For this reason the Tribunal is satisfied that with proper pruning and maintenance this concern should be alleviated.
The tree trunk of Tree 20 is within 1 metre of the common boundary. It has a tree species root system which is regarded as invasive and having the potential to impact underground infrastructure nearby. Other than these factors, the tree is in good health and has an acceptable risk rating. With proper maintenance, this tree has the potential to not cause any damage to the Applicant’s property. There is no evidence that the tree is presently causing any damage to the adjoining property because of its specific root system. This matter can be monitored with annual inspections.
I am satisfied that with respect to the subject trees:-
(a)The majority overhang substantially on the Applicant’s property.
(b)Many of the trees require cutting (and in one instance removal) and maintenance to ensure the trees do not cause substantial and ongoing interference to the Applicant’s use or enjoyment of her land;
(c)In particular, Tree 11 should be removed as it has caused or is likely to cause damage to the Applicant’s property and causes ongoing interference to the Applicant’s enjoyment of her land.
(d)All of the trees require strict maintenance to be carried out every year to ensure the trees are at a reasonable height, width and shape.
I am further satisfied: -
(a)All the trees on the Respondents’ property along the common boundary with the Applicant’s property should be inspected every two years by a qualified arborist to report on the health and risk value of the trees.
(b)The Applicant is obliged to authorise a qualified arborist to enter her property to obtain quotations and carry out any necessary works upon being given 72 hours notice in writing by the Respondents.
(c)The costs of any worked required to maintain or remove any of the subject trees is to be borne by the Respondents.
(d)It is advised that the Respondents obtain regular reports from a qualified arborist, at their cost, to ensure that the health and risk value of the trees is monitored.
(e)It is also noted that access to both properties is vital to ensure that pruning methods are carried out in an acceptable manner.
Conclusions
Based on the expert reports relied upon above, the Tribunal concludes that:
(a)Tree 11 should be removed;
(b)no remediation work is required to Trees 1, 2, 3, 13, 14 and 19;
(c)branch length reduction is required for Trees 4, 5, 6, 7, 8, 9, 15, 17, and 20;
(d)the Tribunal will make orders in accordance with the recommendations of the TKC report regarding pruning and monitoring of the subject trees.
Orders
Based on the reasons provided above, the Tribunal determines that the following orders should be made:-
(a)With reference to the Tree Data Table contained at pages 13 and 14 of the TKC report dated 24 April 2024, the tree identified as Tree 11 is to be removed.
(b)The trees numbered 4, 5, 6, 7, 8, 9, 15, 17 and 20 are to be pruned implementing a pruning method such as “Class 2 Prune” in accordance with AS4373-2007 Pruning of Amenity Trees (2007 with an experienced AQF Level 5 arborist on site to oversee the works.
(c)Trees 9, 15 and 17 are to be pruned and maintained to ensure that the overhang of those 3 trees does not unreasonably affect the sunlight exposure to the Applicant’s property.
(d)Tree 20 is to be monitored on an annual basis to ensure that root growth is not affecting the Applicant’s property.
(e)All works are to be carried out on or before 17 March 2025 with an experienced AQF Level 5 arborist on site to oversee the works. In the event that the works cannot be scheduled to be commenced by that date, notification of the start date must be provided to the Tribunal and to the Applicant.
(f)All costs incurred in carrying out the proposed works are to be borne by the Respondents.
(g)The Applicant is to provide access to the property at 8 Firetail Court in order that the proposed works be carried out upon notice of 72 hours in writing.
(h)The Respondents are to engage an AQF Level 5 arborist to:
(i)      assess the trees every two years to determine any associated risk of tree parts falling and impacting a target zone;
(ii)      perform and/or supervise all pruning and removal work at any time;
(iii)     record all work completed on the subject trees and to implement a tree management plan.