Ross v Callinicos - [2024] QCAT 455

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ross v Callinicos [2024] QCAT 455

PARTIES:

LESLIE ROBERT ROSS

(applicant)

v

ATHANASIOS PETER CALLINICOS

(respondent)

JANET SEYMOUR CALLINICOS

(RESPONDENT)

APPLICATION NO/S:

NDR116-22

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

24 September 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Sammon

ORDERS:

1.     Within 90 days of this decision, Mr and Mrs Callinicos must:

(a)     remove from their property the trees identified as trees numbered 3, 5, 6 and 9 in the Tree Assessment Report by Mr Steven Richards dated 25 October 2023 (‘Mr Richards’ Report), in all cases other than tree 9, by cutting the tree trunk to ground level and poisoning the stump, but not remove the stump;

(b)     prune the trees identified in Mr Richards’ Report as trees 2, 4, 7 and 8 in the way described in paragraph 2.4 of that Report;

(c)     carry out the work described in paragraphs 1(a) and (b) of these orders by:

(i)        engaging an Australian Quality Framework level 3 arborist with relevant public liability and work cover insurance cover; and

(ii)     that arborist carrying out the work in accordance with Australian Standard 4373-2007 ‘Pruning of Amenity Trees’; and

(iii)   that arborist removing all tree debris from the site; and

(d)     giving Mr Ross three days’ notice of any necessity for the arborist to access his land to carry out the work described in this order (1); and

(e)     paying for the cost of the work described in this order (1), with the exception of removal of tree 9, which must be paid by Mr Ross.

2.     Mr Ross must pay the cost of removal of tree 9 as described in order (1) within 14 days of being provided with an invoice for the cost of removal of that tree by Mr and Mrs Callinicos.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – neighbourhood disputes – trees – branches overhanging neighbour’s property and whether they amount to substantial, ongoing and unreasonable interference with the neighbour’s property – risk to safety and to property because of undergrowth in the event of a bushfire

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree disputes – where interference because of overhanging branches – risk to safety and to property because of undergrowth in the event of a bushfire

HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – right to privacy under s 25 of the Human Rights Act 2019 (Qld) – requirement of the Tribunal to interpret legislation under s 48 of that Act – held that chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) permits limitation of the right to privacy as demonstrably justified

Human Rights Act 2019 (Qld), s 4(f), s 5(2)(a), s 13, s 16, s 25, s 48
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 3, s 41, s 42, s 45, s 46, s 48, s 52, s 56, s 57, s 58, s 59, s 61, s 65, s 66, s 70, s 71, s 72, s 73, s 74, s 75, Dictionary (the schedule)
Queensland Civil and Administrative Tribunal Act 2009

(Qld), s 164

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

Background

This is an application made by Mr Ross for orders against Mr and Mrs Callinicos under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Neighbourhood Disputes Act’).
In summary, in his Application filed in the Tribunal on 31 May 2022, Mr Ross complains about the effect on his property of trees located on the property owned by his neighbours, Mr and Mrs Callinicos. Mr Ross says that branches from trees located on Mr and Mrs Callinicos’ property overhang his land, and that those overhanging branches:
(a)represent a property and personal risk to him in his enjoyment of his land;
(b)cause a ‘real natural disaster risk’ from fire, including from the fuel load represented by on ground and above-ground vegetation;
(c)interfere with clean rainwater capture caused by pollen, seed pods, leaves, twigs and oils deposited by the trees on Mr and Mrs Callinicos’ property;
(d)cause lack of sunlight, meaning that there is insufficient sun radiation to install a 24/7 off-grid solar energy system embodying a battery storage facility;
(e)cause loss of sunlight to ‘increasingly negatively impact our home living environment in all seasons’;
(f)interfere with television signal reception.
Mr Ross seeks orders to be made by the Tribunal for Mr and Mrs Callinicos to remove or prune branches of the relevant trees and to carry out other tree work. He also seeks an order that Mr and Mrs Callinicos pay him compensation for damage to his land for a ‘previous roof’.
In a Response filed with the Tribunal on 29 July 2022, Mr and Mrs Callinicos did not outright oppose all remedies sought by Mr Ross. They agreed to cut off any of the branches of their trees that are over the property boundary. However, they contended that it was not possible to determine the position of the relevant trees and overhanging branches until an independent boundary survey was completed. They sought that Mr Ross undertake a boundary survey to identify the position of the trees in question and offered to share on a 50/50 basis with Mr Ross, the cost of obtaining a report by an independent arborist. They also contended that the orders sought by Mr Ross were ‘excessive and unclear’.
On the contention by Mr Ross that the trees on the Callinicos property cause lack of sunlight preventing a solar energy system working, Mr and Mrs Callinicos responded that even if their trees were cut down altogether, Mr Ross would not achieve functional solar energy since he has many tall trees near his house on other sides. Mr and Mrs Callinicos said the same problem applied to television reception, together with the hilly terrain of the area. They also stated that the trees are habitat trees for koalas.
On 19 July 2023, the Tribunal made a direction that Mr Ross engage a surveyor to provide a survey of the relevant land. On 26 September 2023, a surveyor prepared a survey of the boundary between the Ross and Callinicos land showing the location of trees on and around the boundary, by reference to the tree trunks and the approximate area of the overhanging branches into the Ross land.
Subsequently, an arborist, Mr Steven Richards, inspected the properties concerned and prepared a ‘Tree Assessment Report’ filed in the Tribunal on 29 November 2023. Mr Richards had the benefit of the boundary survey when conducting his inspection and preparing his report. In that way, he was able to identify in whose land the trees the subject of his inspection and report were located.
Subsequent to the Tree Assessment Report, Mr and Mrs Callinicos filed in the Tribunal, on 17 May 2024, and gave Mr Ross, written submissions and attached evidence. Mr Ross filed a written submission with the Tribunal on 11 June 2024, and gave a copy to Mr and Mrs Callinicos.

Jurisdiction of the Tribunal for a tree dispute

Chapter 3 of the Neighbourhood Disputes Act concerns, as described in the heading to that chapter, ‘Trees’.[1] Part 5 of chapter 3, through s 61 confers jurisdiction on the Tribunal in the following terms:
[1]The term ‘tree’ is defined in s 45 of the Act. The trees Mr Ross complains about certainly are ‘trees’ within the meaning of that definition. Section 42(3)(a) states that chapter 3 does not apply to trees situated on ‘rural land.’ That term is not simply a matter of opinion, but is defined in the Dictionary (the schedule) of the Neighbourhood Disputes Act to mean rural land under the Land Valuation Act 2010 (Qld). Although the relevant land is located in the Sunshine Coast hinterland, neither party has contended that the relevant land is classified under the Land Valuation Act as ‘rural land’.
61 Jurisdiction
QCAT 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.

(added emphasis)

Section 61 is prefaced by s 59 which describes when part 5 of chapter 3 applies, in the following terms:
59 Application of this part
This part applies if—
(a)a neighbour’s land is affected by a tree; and
(b)the neighbour can not resolve the issue using the process under part 4.
(added emphasis)
The expression ‘affected by a tree’ is a key term for the purposes of chapter 3 of the Neighbourhood Disputes Act, and is relevantly defined in s 46 as follows:
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; or
(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;
…
(added emphasis)
The effect of the word ‘and’ between paragraphs (a) and (b) means that an applicant in the position of Mr Ross must establish the existence of the matters described in both of paragraphs (a) and (b). Certainly, the evidence in the form of the survey establishes that the Ross land adjoins the Callinicos land on which the relevant trees are located, for the purposes of s 46(b)(i).[2]
[2]Mr Ross filed in the Tribunal title searches for each of his land and the Callinicos land showing that each lot is recorded in the freehold land register for the purposes of s 42(1)(a) of the Neighbourhood Disputes Act. Relevantly, that provision states that chapter 3 applies to trees on land of that kind.
Within paragraph (a) of s 46, Mr Ross needs to establish that any one of the internal sub-paragraphs in (i) and (ii) apply. He would do so simply by establishing that a branch of a tree from the Callinicos land overhangs his land. Alternatively, he would satisfy the requirements of (a), in the case of a tree, the branches of which do not overhang his land, and solely contained within the Callinicos land, if the tree would have any of the past, present or future effects described in (A)-(C).
Even if Mr Ross establishes the required matters contained in s 46, that is not enough of itself for Mr Ross to be successful in obtaining the orders he seeks from the Tribunal. Instead, as I will analyse below, the criteria contained in s 65, s 66 and in chapter 3, part 5, division 4 (ss 70-75) headed ‘Matters for QCAT consideration’ are the determinants for whether the Tribunal may make an order of the kind sought by Mr Ross.
The other prerequisite for the application of chapter 3, part 5 of the Neighbourhood Disputes Act on the jurisdiction of the Tribunal, in s 59(b), is that the neighbour who applies to the Tribunal (Mr Ross) can not resolve the issue using the process under chapter 3, part 4.
Chapter 3, part 4 contains informal processes and a formal process to resolve an issue between neighbours about overhanging branches. Section 56(1) states that the ‘tree-keeper’[3] (in this case, Mr and Mrs Callinicos) and neighbour (Mr Ross) are encouraged to resolve the issue informally. Alternatively, s 56(2) states that the neighbour ‘may’ exercise the common law right of ‘abatement’[4] (another informal resolution process) or use the formal resolution process set out in part 4. Use of the word ‘may’ connotes a discretion in the neighbour to use or not use the formal resolution process.
[3]Defined in s 48 of the Act, relevantly to be the registered owner of a freehold lot of land, on which the relevant trees are located.
[4]Which recognises that a neighbour to land which contains overhanging branches may take reasonable means to remove the overhanging branches without obtaining any specific order to do so from a court.
The formal resolution process is contained in s 57 and s 58. In summary, s 57 allows a neighbour to give a notice to the tree-keeper about overhanging branches. If the neighbour chooses to use this formal process, s 57(3) states mandatory (through use of the word ‘must’) requirements for the notice.
The benefit to a neighbour who adopts the formal resolution process is contained in s 58. If the tree-keeper does not comply with the written notice to remove the overhanging branches, s 58 allows the neighbour to do so and the tree-keeper is liable for the reasonable expenses in removing the overhanging branches, but only to a maximum of $300.00.
Mr Ross did not adopt the formal resolution process described in s 57 and s 58. However, he did attempt informal resolution of the dispute. He did this through a document filed in the Tribunal, namely an email to Mr and Mrs Callinicos dated 12 January 2022, some months before he filed his Application for a tree dispute in the Tribunal. In that email, he pointed out to Mr and Mrs Callinicos the need for an arborist to prune limbs, branches and the crown of trees on the land owned by them within 30 metres of the Ross land. That method evidently did not resolve Mr Ross’ concerns.
Because of those facts, and evidence from Mr Richards I will consider below, I therefore find, in the circumstances of this case, that the Tribunal has jurisdiction to hear and decide this matter under s 61, read with s 59 of the Neighbourhood Disputes Act.

Obligations of a tree-keeper under chapter 3 of the Neighbourhood Disputes Act

Chapter 3, part 1 commences with s 41 (headed ‘Overview’). Section 41(1) states that:
(1) A tree-keeper is responsible for the proper care and maintenance of the tree-keeper’s tree.
That obligation is elaborated upon in s 52(1) and (2) as follows:
52 Responsibilities of a tree-keeper
(1)A tree-keeper is responsible for cutting and removing any branches of the tree that overhang a neighbour’s land.
(2)A tree-keeper is responsible for ensuring that the tree does not cause—
(a)serious injury to a person; or
(b)serious damage to a person’s land or any property on a person’s land; or
(c)substantial, ongoing and unreasonable interference with a person’s use and enjoyment of the person’s land.
In my opinion, these obligations are relevant considerations that the Tribunal may take into account in deciding to make any order that the tree-keeper must take action about a ‘tree affecting’ the neighbour’s land.

Powers and discretion for the Tribunal to make an order about trees

Once the Tribunal establishes that it has jurisdiction to hear and decide a matter under s 61 of the Neighbourhood Disputes Act, it is not automatic that the Tribunal must make an order concerning land that is ‘affected by a tree’, to use that defined term. Instead, the Tribunal has a discretion guided by a threshold contained in s 65, then the criteria contained in s 66 and in ss 71-75.
The threshold contained in s 65 is that the Tribunal can make an order under s 66 if, relevantly in the circumstances of this case:
(a)the neighbour (Mr Ross) has made a reasonable effort to reach agreement with the tree-keeper (Mr and Mrs Callinicos);[5] and
(b)to the extent that the issue in the dispute relates to the ‘land being affected’ because branches from the trees concerned overhang Mr Ross’ land:
(i) the branches extend at least 50cm from the common boundary;[6] and
(ii) the neighbour cannot properly resolve the issue under the process in part 4 of chapter 3.[7]
[5]Section 65(a).
[6]Section 65(c)(i).
[7]Section 65(c)(ii).
I find that the threshold has been satisfied on the facts of this case. The requirements in (a) and (b)(ii) have been satisfied by the attempt Mr Ross made to resolve the dispute with Mr and Mrs Callinicos in the email dated 12 January 2022 referred to above.
On the requirement under s 65(c)(i), the Tree Assessment Report makes clear that the trees identified for treatment by Mr Richards extend into the Ross land by at least 50cm with the exception of the trees he has numbered as tree 7 and tree 9.
This gives me the discretion to make an order under s 66(2) which contains its own criteria and is as follows:
(2) QCAT may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land—
(a)to prevent serious injury to any person; or
(b)to remedy, restrain or prevent—
(i)serious damage to the neighbour’s land or any property on the neighbour’s land; or
(ii)substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
For an obstruction of sunlight, about which Mr Ross seeks a remedy in his Application, s 66(3) states that s 66(2)(b)(ii) only applies to an interference if, relevant to sunlight, the tree concerned rises at least 2.5m above the ground and the obstruction is a:
(i) severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land.
Section 70, contained in chapter 3, part 5, division 4 says that division 4 (ss 70-75) states matters for the Tribunal to consider in deciding an application for an order under s 66, although division 4 does not limit the matters the Tribunal may consider.[8]
[8]Section 70(2).
Included in the matters in division 4 is that the primary consideration is the safety of any person,[9] and also that a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.[10]
[9]Section 71.
[10]Section 72.
Section 73(1) contains a miscellany of matters which the Tribunal ‘must consider’. Relevant to the circumstances of this case, they are:
(a)     the location of the tree in relation to the boundary of the land on which the tree is situated and any premises, fence or other structure affected by the location of the tree;
…
(d)     any contribution the tree makes to the local ecosystem and to biodiversity;[11]
…
(g)     any contribution the tree makes to the amenity of the land on which it is situated, including its contribution relating to privacy, landscaping, garden design or protection from sun, wind, noise, odour or smoke;
(h)     any impact the tree has on soil stability, the water table or other natural features of the land or locality;
(i)     any risks associated with the tree in the event of a cyclone or other extreme weather event.
[11]Given that Mr and Mrs Callinicos contend that the trees are habitat for koalas.
Given that Mr Ross alleges that the trees are likely to cause serious injury to a person on his land, or serious damage to his property, the matters contained in s 74 may be taken into account by the Tribunal.
It appears that Mr Ross is alleging that the trees concerned are causing ‘substantial, ongoing and unreasonable interference with the use and enjoyment’ of his land, in which case, if proven, the matters in s 75 may be considered which, relevant to the circumstances of this case, are:
(b) any steps taken by the tree-keeper or the neighbour to prevent or minimise the interference; and
…
(d) whether the tree existed before the neighbour acquired the land.
Finally, s 66(5) of the Neighbourhood Disputes Act concerns what I might call the ‘logistics’ of an order that the Tribunal may make,[12] including requiring the tree-keeper or neighbour to carry out work on the tree on a particular occasion or on an ongoing basis,[13] or to require them to pay the costs associated with carrying out an order under s 66.[14]
[12]Without limiting the powers of the Tribunal under s 66(2).
[13]Section 66(5)(a).
[14]Section 66(5)(e).

The Tree Assessment Report

The Report is valuable evidence for the Tribunal as the independent expert evidence on assessment of the trees the subject of Mr Ross’ complaint.

The document reports on assessment of 13 trees located close to the boundary of the Ross land and the Callinicos land. Each tree reported on is given a unique number, correlated with the trees as numbered in the survey, bar one.[15]
[15]The tree identified in Mr Richards’ report as tree 9, which was not labelled as part of the survey.
Mr Richards recommends[16] that a total of four identified trees be pruned, and a total of four other identified trees be removed in their entirety. He also recommended that undergrowth on the Callinicos land be managed to a distance of no less than eight metres from the Ross land to reduce fire risk and fuel load, and that this management activity be undertaken annually.
[16]Paragraph 2.4 of his Report.
For each tree the subject of Mr Richards’ recommendations for removal or pruning, he has described the distance between the tree to the boundary between the Ross land and the Callinicos land. In a table at the beginning of the report, for each tree he has described the average canopy spread, expressed in metres. I take that measurement to be to the diameter of the canopy; that is, equidistant from the trunk. From these figures, it is possible to work out the extent to which branches of the trees overhang Mr Ross’ property. In some cases, Mr Richards specifically states the canopy overhangs over Mr Ross’ house.
All of the trees recommended by Mr Richards for removal in their entirety have branches which overhang Mr Ross’ property, with the exception of tree number 9, which is dead and is contained wholly within the Callinicos land. However, Mr Ross does not make his application to the Tribunal solely on the basis of branches overhanging his property, but also on danger to his property including potential fuel load for bushfire.
In paragraph 2.3 of his Report, Mr Richards comments on the matters identified for consideration in ss 70-75 of the Neighbourhood Disputes Act. He says that Mr Ross’ house was built 20 years ago, with a building location envelope that positioned the house beneath the subject trees. He says that the subject trees are all much older than the house and would have been of a very similar size to that which he observed at the time of inspection. Because of this, he reports that the light available (for Mr Ross’ house) has not changed since Mr Ross took possession of his property, with the exception of tree 5, which Mr Richards recommends be removed in its entirety.
In his comment on tree 5, Mr Richards says the tree is the younger of the trees assessed and has grown into position since Mr Ross took possession of his property. He says this tree has a dense crown and is responsible for a loss of light to the rear deck of Mr Ross’ house. Mr Richards says tree 5 will continue to grow into the cleared area above Mr Ross’ house, becoming more of a nuisance as time passes, with no clear pruning options for the future.
In this way, Mr. Richards has taken into account the matter contained in s 75(d) of the Act, where, if a neighbour alleges that a tree is causing substantial ongoing and reasonable interference with the use and enjoyment of the neighbour’s land, the Tribunal may consider whether the tree existed before the neighbour acquired the land. Mr and Mrs Callinicos will not be entitled to any benefit they would get because of a pre-existing tree, in respect of tree 5.
Also, on the pre-existence of the relevant trees, Mr Richards says that a person complaining about collection of water from a roof that was installed beneath the canopies of mature pre-existing trees cannot point to the trees to be the reason for contaminated water. In my view, what Mr Richards means by this is that although clearly the actual cause for contamination of water may be from leaf litter and the like, the cause is due to pre-existing trees, and that is a factor for the Tribunal to consider under s 75(d) of the Act.
On the question of fuel load in relation to bush fires, Mr Richards reported that he did not observe previous pruning wounds, demonstrating no upkeep of management. Although Mr Ross has kept an area between his house and the subject trees on the Callinicos land clear of undergrowth, there is:
thick undergrowth which has not been managed for a considerable time. This undergrowth can cause quick moving ground fires and adds to fuel loading.
In contrast, the subject trees are between 30-40 metres distant from Mr and Mrs Callinicos’ house.
This part of Mr Richards’ Report appears to go to his recommendation that undergrowth be managed to a distance of no less than eight metres from the boundary to reduce fire risk and fuel load, and this should be done annually.

Submissions by Mr and Mrs Callinicos

Mr and Mrs Callinicos filed written submissions and evidence, including in response to the Tree Assessment Report filed on 17 May 2024.

Trees identified for removal

They do not want to see any of the trees removed, as recommended in Mr Richards’ Report.[17] They make specific comment about two trees recommended by Mr Richards for removal in their entirety.
[17]Page 4 of the written submissions.
First, on tree 9, Mr and Mrs Callinicos do not contest that the tree is dead. However, they say that the tree stands approximately eight metres from the boundary. They contend that the dead tree is intertwined with another live tree and if it falls, it will fall well within their land, at least 15 metres from Mr Ross’ house.
In his Report, Mr Richards acknowledges that the tree is positioned approximately eight metres from the boundary. In the table on page 2 of his Report, he records the height of the tree as 12 metres. It could therefore be the case that if the tree falls, and falls in the direction of Mr Ross’ property, then at least some of it will fall into his land. Although Mr and Mrs Callinicos say that the dead tree is downhill, away from Mr Ross’ house, and would fall that way, they are not to know in advance the forces that might cause the tree to fall.
Given that the primary consideration in the making of any order under s 66 is, under s 71, the safety of any person, and the expert evidence of Mr Richards that the tree should be removed, I prefer his evidence as to the need to remove this dead tree.
As for tree 5, Mr and Mrs Callinicos say that cutting down this tree would only expose Mr Ross’ skillion deck roof which is already reducing the light to his windows. They say it will give little additional light if cut down and there are other solutions for cutting down trees, namely installing skylights and still enjoying the cool shade of a rainforest tree.
Mr Richards says in his Report that this younger tree will continue to grow into the clear area above Mr Ross’ house, becoming a greater nuisance as time passes, with no clear pruning options for the future. His table reveals that there is already a 1.5 metre overhang over Mr Ross’ property and the tree is already responsible for loss of light to Mr Ross’ rear deck.
The contention by Mr and Mrs Callinicos that Mr Ross may overcome the problem with tree 5 by installing a skylight in his house runs counter to the obligation in s 52 of the Act that a tree-keeper is responsible for cutting and removing any branches of a tree that overhang a neighbour’s land. For all these reasons, I prefer the evidence or Mr Richards that the tree should be removed.
Apart from the submissions made on these two trees, and a general desire not to see any of the trees on their property removed, Mr and Mrs Callinicos do not make specific submissions why the other trees identified by Mr Richards for removal or pruning should not be treated in that way. They do submit that Mr Ross should pay for the cost of ‘cutting trees’[18] (which I take to mean both removal and pruning of trees) as recommended by Mr Richards.
[18]Page 7 of their written submissions.
Mr and Mrs Callinicos did not elaborate on their earlier contention that any of the trees identified as koala habitat are the trees identified for removal by Mr Richards. They also did not provide any evidence that removal of the trees identified by Mr Richards for removal are the only koala habitat trees in the area concerned. In those circumstances, I do not take the contention made by Mr and Mrs Callinicos about trees being koala habitat any further.

Undergrowth removal

Mr and Mrs Callinicos contest the recommendation made by Mr Richards that the undergrowth on their side of the boundary be removed to a distance of eight metres.
Mr and Mrs Callinicos attached a geotechnical report to their written submission. The report was prepared by GA Geotechnical and dated 23 November 2019. It therefore pre-dated this dispute by some years and was not prepared specifically for this dispute. Instead, the purpose of the report appears to have been in conjunction with a proposed development on the Callinicos land, for a ‘pole type extension’ to the existing highset brick and timber home.[19] The whole of the report has not been attached to the written submission, but only specific pages, as is clear from the page numbers at the foot of each page. Nonetheless, it is clear that the Callinicos land is a sloping site.
[19]Paragraph 1.1 of the report.
At paragraph 3.2 of the report, there is an assessment of the geotechnical impact of the proposed development on the site. In table 1 under that paragraph, for the component of clearing of vegetation, the potential geotechnical impact is described as ‘removal of surface supporting plants’, with the resulting ‘potential instability mechanism’ described to be ‘shallow slumping, erosion’.
Mr and Mrs Callinicos have highlighted in the report, parts they seek to rely upon about apprehended removal of vegetation. In particular, on page 13, relevant to potential removal of groundcover or undergrowth, the geotechnical consultants describe several possible causes of erosion that need to be addressed (remembering that the report was done for a proposed extension to the existing house, and not removal of undergrowth within eight metres of the boundary with Mr Ross), as follows:
·Do not clear any of the undergrowth from the slope except where they directly interfere with the installation of the foundations. This particularly refers to the fishbone ferns;
·Do not grub the stumps of any trees from the slope as this will destroy the integrity of the slope, trees should be cut at ground level and the stump poisoned. …
…
·Following construction, the fishbone fern coverage of the slope should be re-established.
Under the heading of ‘Erosion' at paragraph 3.5.2, the report refers to the sandy and silty soils on the site being susceptible to erosion from concentrated and/or turbulent flows (of water) over soil. The report goes on to state that a mitigation method which would prevent erosion and the effect of erosion and highlighted by Mr and Mrs Callinicos is as follows:
The fishbone ferns and the root mat that they create will provide the greatest protection against erosion on this slope, all reasonably necessary care should be taken to preserve these plants on the slope both during and following construction.

Submissions by Mr Ross

In Mr Ross’ written submission filed on 11 June 2024, he first comments on the Tree Assessment Report. He says he accepts the report, is supportive of the recommendations proposed by Mr Richards, and does not submit that further trees should be pruned or removed.
Mr Ross makes specific submissions about the two trees which Mr and Mrs Callinicos oppose removing, namely trees 5 and 9.
Firstly, on tree 9, which is the dead tree, Mr Ross says in addition to it posing a risk of falling to the ground, it creates a ‘large screeching noise whenever a northeasterly wind blows as it rubs against the living tree it has fallen into.’
Secondly, on tree 5, he says this is the tree which is causing the greatest nuisance to him. He refers to the Tree Assessment Report and notes that:
(a)the tree is located only 1.5 metres from the boundary between the properties;
(b)the tree has grown into position after his home was built and after he took possession of the property;
(c)the tree has a dense crown and is responsible for a loss of light to his deck;
(d)the tree will continue to grow and become more of a nuisance with no pruning options available.
He does take issue with the geotechnical report filed by Mr and Mrs Callinicos. He says that the report, and its concerns about erosion, relate to a completely separate part of the Callinicos land, compared to the location of the trees in issue. Mr Ross submits that the geotechnical report relates to the land for the proposed extension to Mr and Mrs Callinicos’ house and specifically relates to a site which is located at the very southern end of that lot.
However, the Callinicos land which accommodates the trees in issue is at the southern end of the Callinicos land, on the boundary with the northern end of the Ross land. Moreover, Mr Ross does not dispute that part of the geotechnical report[20] which states that the site is located entirely within the more than 25% gradient zone on the Sunshine Coast Regional Council Steep Land Overlay Map. Also, most of the photographs of the trees contained in Mr Richards’ Tree Assessment Report show sloping of the land to various degrees.
[20]Page 1, section 1, headed ‘Introduction’.
In my opinion, there is enough evidence before the Tribunal that means I should be mindful of the effect of any orders that I make on erosion of the relevant part of the Callinicos land, that is at least to some extent, on sloping land and subject to the potential for erosion. That is a matter which I am required to consider under s 73(1)(h) of the Neighbourhood Disputes Act concerning any impact a tree has on soil stability or other natural features of the land, and I will do so in fashioning the orders that I make.
Mr Ross did not present any evidence or submissions in substantiation of his claim for compensation for a ‘previous roof’. I make no order on that contention contained in his original application to the Tribunal.
Similarly, he did not provide any evidence that the trees on Mr and Mrs Callinicos’ land interfere with television signal reception at his house to any greater degree than anyone else living in the area, with the effect of the relevant topography and distance from a transmitter. It may be that the removal of the trees identified by Mr Richards in his report will improve Mr Ross’ reception. If so, that is a by-product of the orders that I make, and not a reason to make those orders.
Also, Mr Ross did not provide any evidence that the trees on Mr and Mrs Callinicos’ land caused insufficient sun radiation to install a solar energy system embodying a battery storage facility on Mr Ross’ land. Again, it may be that the removal of the trees identified by Mr Richards would overcome any concern that Mr Ross has on this point. However, again that would be a by-product only of the orders that I make, and not a reason why I have made those orders.

Consideration

The need for removal and pruning of trees

Neither party contests the pruning or removal of most of the trees, as recommended by Mr Richards. Mr and Mrs Callinicos oppose the removal of trees 5 and 9.
I accept the recommendations made by Mr Richards as the independent expert arborist as to removal and pruning of the trees as stated in his Tree Assessment Report. I have set out above why I prefer the recommendations made by Mr Richards to the submissions made by Mr and Mrs Callinicos on trees 5 and 9.
All of the trees identified in Mr Richards’ Report for removal or pruning overhang the Ross land, with the exception of trees 7 and 9, for the purposes of the definition of land ‘affected by a tree’ under s 46 of the Neighbourhood Disputes Act. Given the ‘screeching noise’ which Mr Ross complains about concerning tree 9, in my opinion that tree has caused, and is causing ‘substantial, ongoing and unreasonable interference with’ Mr Ross’ use and enjoyment of his land.
The concern Mr Richards has for tree 7 is that one limb laterally extends several metres towards the Ross land and due to the ‘lever weight’ has greater propensity for failure. He also observes that another limb in the canopy has created a weak point. Mr Richards only identifies pruning, not removal, for tree 7, and this is only to reduce the elongated branch and a rubbing branch extending towards the Ross land.
Mr Richards does not state in his Report, an estimate of the time in which the elongated limb or the ‘rubbing limb’ are likely to fail. However, by my calculations from the table in the Tree Assessment Report, and Mr Richards’ comments on tree 7, the elongated limb would be located very close to the property boundary. Given the likelihood of growth of these two limbs over the next 12 months, and that the primary consideration for the Tribunal under s 71 of the Act is for safety of a person, in my opinion the Ross land is ‘affected by’ tree 7 within the meaning of s 46 of the Act.
My finding is therefore that all of the trees recommended by Mr Richards for removal or pruning have the effect that the Ross land is ‘affected by a tree’ under s 46. That satisfies one of the criteria for the Tribunal to make an order under s 66(2) of the Act.
I am satisfied that I should make orders to prune or remove the trees recommended for that treatment by Mr Richards, under the remaining criteria for an order under s 66(2), the text of which I have set out above at [27].
Key factors in my consideration are the close proximity of Mr Ross’ house to the trees concerned,[21] and that Mr Richards identifies that tree 3 overhangs Mr Ross’ house, and tree 5 is currently causing a loss of light to the rear deck of Mr Ross’ house.
[21]A matter which I must consider under s 73(1)(a) of the Neighbourhood Disputes Act.
For the loss of light Mr Ross attributes to tree 5, I have described the relevant criteria under s 66(3) in paragraph [28] above. Tree 5 satisfies the height requirement of rising at least 2.5 metres above the ground. The table in Mr Richards’ report describes the height of this tree to be 13 metres.
I am satisfied that the obstruction of sunlight to the roof of Mr Ross’ dwelling is severe. According to Mr Richards’ Report, this tree will continue to grow into the cleared area above Mr Ross’ house, becoming more of a nuisance as time passes, with no clear pruning options for the future.
Otherwise, for the trees which overhang Mr Ross’ property, I am satisfied under s 66(2) of the Act, that it is appropriate to order removal or pruning of trees as recommended by Mr Richards to prevent serious injury to any person and to prevent serious damage to Mr Ross’ land and his house, and substantial ongoing and unreasonable interference with the use and enjoyment of his land.
In his application, Mr Ross complains that the trees on the Callinicos land are contaminating clean rainwater caused by the detritus from their trees. I have referred to the findings made by Mr Richards that the cause of the contamination of water is from pre-existing trees (before Mr Ross’ house was built). That is a fact to which I consider s 75(d) applies. Moreover, Mr Ross says that he would only propose use of rainwater tanks for domestic and garden use, not for drinking (potable) purposes. In my opinion Mr Ross’ complaint in terms of the alleged contamination cannot be considered to be a ‘substantial’ or ‘unreasonable interference with’ the enjoyment of his land.
Where a homeowner chooses a property in proximity to long-existing trees, the homeowner must reasonably expect that leaves and the detritus from trees will blow onto roofs used for rainwater collection, especially when the purpose for the rainwater is for gardening use and not for drinking. The alternative proposition would be that all trees with leaves capable of being blown to a roof must be removed. That is clearly an untenable contention and contrary to the intent of s 72 of the Act that a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.

It may be that the removal and pruning of trees that I order in this decision will have the effect of diminishing the leaves that blow onto Mr Ross’ roof. However, that is a by-product of orders for removal of trees or branches because of their effect under the Act that they should be removed. To be clear, I do not make any order for removal or pruning of the trees concerned because their effect may be to ‘contaminate’ any rainwater that would be captured by Mr Ross’ roof.
I will condition these orders, as recommended by Mr Richards in his report, that:
(a)works must be conducted by an arborist with a minimum of Australian Quality Framework level 3 qualifications, with relevant public liability and WorkCover insurance cover;
(b)all works must be performed in accordance with Australian Standard 4373-2007 ‘Pruning of Amenity Trees’.
I accept that part of the geotechnical report submitted by Mr and Mrs Callinicos, that recommends that for any trees on the land to be cut down, that the stumps of any trees not be removed, but cut at ground level and the stump poisoned. That will preserve the beneficial effect that any tree to be cut down has on soil stability, for the purposes of s 73(1)(h) of the Neighbourhood Disputes Act.

Cost of removal and pruning of trees

Each party submits that the other should pay for the costs of removal and pruning of trees which are the subject of an order by the Tribunal. There is no doubt that the Tribunal has the power to order either Mr and Mrs Callinicos as the ‘tree-keeper’ or Mr Ross as ‘the neighbour’, or both,[22] to pay the costs or a share of the costs associated with carrying out an order under s 66(5)(e) of the Neighbourhood Disputes Act.
[22]Since there is the power to order either the tree-keeper or the neighbour to pay the costs of carrying out an order, it is therefore possible to order that each party pay a proportion of the costs.
This requires a balancing of factors identified for the Tribunal’s consideration in the Neighbourhood Disputes Act.
A key consideration is the proposition contained in s 41 of the Act that a tree-keeper is responsible for the proper care and maintenance of the tree-keeper’s tree. This is elaborated upon in s 52(1) in respect of branches of a tree that overhang a neighbour’s land, in that the tree-keeper is responsible for cutting and removing any such branches.
For trees which do not have branches that overhang a neighbour’s land, s 52(2) states that a tree-keeper is responsible for ensuring that the tree relevantly does not cause a serious injury to a person, serious damage to a person’s land or any property on a person’s land, or substantial, ongoing and unreasonable interference with a person’s use and enjoyment of the person’s land.
Those obligations take on meaning in considering the party to pay for the costs associated with carrying out an order, under s 66(5)(e).
On the other hand, under s 73(1)(a), I must consider the location of a tree in relation to the boundary of the land on which the tree in question is situated, and in the present context, any premises affected by the location of the tree.
Also, under s 75 where a neighbour alleges that a tree has caused, or is causing, substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land, I may consider the factor in paragraph (d) of that section, whether the tree existed before the neighbour acquired the land.
Mr Ross alleges interference of that kind caused by tree 9, which is the dead tree located completely within the Callinicos land, caused by the ‘screeching sound’ when the wind blows from the northeast. That tree is not a case of having branches overhanging Mr Ross’ land under s 52(1). However, a tree-keeper is still responsible, under s 52(2)(c), for ensuring that a tree does not cause substantial, ongoing and unreasonable interference with a person’s use and enjoyment of the person’s land. That tree 9 is dead suggests an obvious lack of maintenance on the part of Mr and Mrs Callinicos.
In his report, Mr Richards states that Mr Ross’ house was built 20 years ago with a building location envelope that positioned the house beneath the subject trees. The subject trees are all much older than the house[23] and were in place and of a very similar size compared to that observed at the time of inspection. I infer that the site chosen for the house was a consciously-chosen, desirable location on the lot, perhaps because of the ambience created by the surrounding trees. Mr Ross would have bought the property again, as a conscious decision, being aware of the proximity of the trees.
[23]With the exception of tree 5.
Nonetheless, the Neighbourhood Disputes Act casts a responsibility under s 52 on the tree-keeper to, amongst other things, remove branches of a tree that overhang a neighbouring property, and to keep their trees so as not to cause a substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the person’s land.
Mr Richards’ Report comments on his inspection that for the subject trees, no previous pruning wounds were observed, demonstrating no upkeep or management.[24] Given that a lack of upkeep or management had led to branches which overhang the Ross land, and that the Neighbourhood Disputes Act casts the responsibility on the tree-keeper for the proper care and maintenance of the tree-keeper’s tree under s 41, as elaborated upon in s 52, in my view, Mr and Mrs Callinicos should bear the large majority of the cost of removing or pruning the relevant trees.
[24]Section 2.3 of his Report at page 11.
However, tree 7 is in a different category. It is located wholly within the Callinicos land, with one limb laterally extending several metres towards Mr Ross’ property, and has a propensity for failure. Mr Richards recommends pruning of that limb and another limb creating a weak point.
For these reasons, tree 7 does not have any branches that overhang Mr Ross’ property and is currently not causing a substantial, ongoing and unreasonable interference with Mr Ross’ use and enjoyment of his property. The responsibility of a tree-keeper to cut and remove overhanging branches under s 52(1) of the Act therefore does not apply. I have made an order that the tree be pruned in accordance with Mr Richards’ recommendation because of another reason, which is to prevent serious damage to Mr Ross’ land or his house.
Balancing the factors under this heading, I will order that Mr Ross pay for the pruning of tree 7.

The need for removal of undergrowth

Mr Ross applies for an order for removal of undergrowth around the trees located close to the boundary of the two properties, in order to remove fuel, in the event of a bushfire.
Of its very nature, undergrowth on the Callinicos property will not be branches overhanging the Ross property attracting the relevant provisions of the Neighbourhood Disputes Act. Similarly, and for the same reason, the undergrowth on the Callinicos land will not currently be causing any ‘substantial, ongoing and unreasonable interference’ with Mr Ross’ use and enjoyment of his land.[25]
[25]Section 46(a)(ii)(c) and s 66(2)(b)(ii).
Instead, if Mr Ross is to succeed on this ground, it must be on the basis of removing a risk from fire to himself or his property. The word ‘fire’ is not mentioned at all in the Neighbourhood Disputes Act. However, risk of fire caused, or contributed to, by for example, a fuel load of fallen tree limbs or branches on a property made, in the context of this case, on the basis that a fire is likely within the next 12 months to cause either serious injury to a person or to property on neighbouring land, is capable of falling within the scope of land ‘affected by a tree’ under s 46(a)(ii)(A) or (B).[26] If that criteria is reached, that triggers exercise of the discretion to make an order in relation to the trees concerned, to prevent serious injury to a person or serious damage to the neighbour’s land or any property on the neighbour’s land under s 66(2) of the Act.
[26]The text of which is set out at [12] above.
Mr Richards refers to the undergrowth in his report. He says beyond the area kept clear around the boundary by Mr Ross is thick undergrowth which has not been managed for a considerable time. He says this undergrowth can cause quick-moving ground fires and adds to fuel loading. I think more correctly, the undergrowth can contribute to quick-moving ground fires, but the undergrowth itself will not spontaneously cause a fire. A fire requires a cause. He recommended that undergrowth be managed to a distance of no less than 8 metres from Mr Ross’ property, and that this management must be undertaken yearly.
Mr and Mrs Callinicos oppose the recommendation by Mr Richards to remove the undergrowth. First, they say that in the eight years they have owned their property, there has never been a fire in their neighbourhood. That may be so, but that does not remove any risk posed by undergrowth to Mr Ross or his property that would contribute to the effects of a ground fire.
Secondly, they say that Mr Ross appears to regard their property as the only possible source of fire danger to his property, but fire can come from number of sources, including electric, lightning, arson or fuel load (on the Callinicos or Ross properties). Again, that may be so, but that does not deal with any heightened risk to Mr Ross or his property by undergrowth that would contribute to the effects of a ground fire.
Next, Mr and Mrs Callinicos refer to options for a ‘solution-oriented approach’ to safeguarding Mr Ross’ house, such as professional installation of fire sprinklers and fire screens or even a firewall. They do not provide any costings for those possible solutions, but they seem to be expensive alternatives to the possibility of management of the under the Neighbourhood Disputes Act. Those options would not remove the risk which Mr Richards describes as fuel load in the event of a fire.
In their submission, Mr and Mrs Callinicos submit that although an arborist, qualified to assess trees, Mr Richards does not have qualifications in fire ecology and is therefore not in a professional position to make evaluations on fire risk. I reject that contention. Mr Richards’ professional qualification as an arborist would, in my opinion, extend to the fire risk posed by the undergrowth of trees.
Mr and Mrs Callinicos then put forward what they submit is a jurisdictional issue in that undergrowth and bushfire prevention does not fit within the Tribunal's jurisdiction. They submit that this is borne out by the Neighbourhood Disputes Act, in that under s 66, ‘fire’ is not listed as a subject about which an order can be made.
It is true that the subject of fire is not specifically included in the Act, but also, the risk caused by trees as a contributing factor to the damage that may be caused by bushfire is not excluded. As I have analysed above, the risk to life and damage to property caused by trees is something that is within the scope of the Act. Also, the Act is not directed to prevention of bushfires, but instead, the risk posed by trees.
A second part to the jurisdictional issue that Mr and Mrs Callinicos raise is connected with the geotechnical report. They submit that the Act concerns trees on a shared boundary and not about ‘groundcovers'. On this point, they appear to place reliance on the geotechnical report and especially the recommendation by the geotechnical consultant not to remove the fishbone ferns as undergrowth.
They submit that in the meaning of ‘tree’ as defined in s 45 of the Neighbourhood Disputes Act, ‘undergrowth’ is not included. That definition is as follows:
45 Meaning of tree
(1)Tree means—
(a)any woody perennial plant; or
(b)any plant resembling a tree in form and size; or
Examples—
bamboo, banana plant, palm, cactus
(c)a vine; or
(d)a plant prescribed under a regulation to be a tree for this chapter.[27]
[27]No regulations have been made under the Act.
However, with respect, the definition of a tree must include any part of a tree, such as a trunk and the leaves of a tree. Branches are specifically included as parts of a tree, in chapter 3 of the Act, as key criteria to which the Act applies. The Pocket Macquarie Dictionary[28] defines ‘undergrowth’ as ‘shrubs or small trees growing beneath or among large trees.’ Small trees, to the extent that they form a risk which the Act addresses, are therefore trees about which an order can be made under the Act.
[28]Bernard JRL (Ed), (2^nd edn, 1989), The Jacaranda Press, Brisbane, p 1116.
Moreover, the orders that the Tribunal may make under s 66(2) are orders that it considers appropriate ‘in relation to a tree’. In my opinion, that is sufficient to cover fallen leaves, limbs and branches from trees, again to the extent that they form a risk to which s 66(2) applies.
It may be that Mr and Mrs Callinicos have confused ‘undergrowth' to which Mr Richards refers with ‘ground cover’ in the form of the fishbone ferns discussed in the geotechnical report, which to me is a completely different thing. I am familiar with fishbone ferns, and even if a ground cover, they would in my opinion, not fall within the meaning of a ‘tree' under s 45 of the Neighbourhood Disputes Act. Ferns, in my understanding, are typically low-height, non-woody, soft plants. The consequence is that the Act does not extend to making orders about ferns. In any event, given the contribution the ferns make to the stability of the slope on Mr and Mrs Callinicos’ land, I would not make an order that would extend to their removal. To avoid any confusion, I will make this clear in my orders.
The main question for my consideration is whether the undergrowth consisting of small trees, and fallen limbs and branches are likely to cause, within the next 12 months, a serious injury to a person or to cause damage to Mr Ross’ land or property.
No one can accurately predict the likelihood of a bushfire to occur in a particular location within the following 12 months. That occurrence requires the right type of conditions, for example, drought as against plentiful rainfall, winds from a particular direction, and a cause, which may be anything from lightning to arson or inadvertent escape of fire.
What I can assess, with the aid of Mr Richards’ Report, is that if a bushfire was to occur in the next 12 months on the Callinicos land on the boundary with the Ross land, then it is likely that the undergrowth and fallen limbs and branches on the Callinicos land will cause serious injury to a person on the Ross land or serious damage to the land or any property on the Ross land, namely Mr Ross’ house.
However, and importantly, that is not the question posed for my consideration under s 46, relevantly in s 46(a)(ii), that a tree ‘is likely within the next 12 months’ to cause the consequences described in sub-paragraphs (A)-(C).
The impossibility of predicting whether a fire is likely to occur in the next 12 months on the Callinicos land means that it is impossible to assess whether the existing undergrowth will likely cause within the next 12 months, serious injury to a person on Mr Ross’ land, serious damage to his land or any property on his land, or substantial, ongoing and unreasonable interference with his use and enjoyment of his land. My interpretation of s 46(a)(ii) is supported by provisions of the Human Rights Act 2019 (‘the HR Act’) which I will consider below in this decision.
I am therefore not satisfied that the Ross land near the boundary with the Callinicos land is ‘land affected by a tree’ in the form of undergrowth and fallen limbs and branches on the Callinicos land, for the purposes of s 46 of the Neighbourhood Disputes Act.
Mr Richards’ Report recommends removal of the undergrowth and fallen limbs and branches on the Callinicos land, to a distance of not less than 8 metres from the boundary to reduce fire risk and fuel load. In doing so, he reports in his professional expertise as an arborist. However, that cannot determine the legal question required by 46(a)(ii), that a tree ‘is likely within the next 12 months’ to cause the consequences described in sub-paragraphs (A)-(C).

Application of the HR Act

The orders that I make requiring removal of trees and branches from the Callinicos land will involve some intrusion into Mr and Mrs Callinicos’ land, not at their consent.
That at least potentially involves some limitation on the human right of Mr and Mrs Callinicos not to have their family or home arbitrarily interfered with, under s 25 of the HR Act. Section 25 of the HR Act also refers to a person not to have their family or home unlawfully interfered with. However, the effect of my findings on removal and pruning of trees and branches means that the intrusion which would be involved is not unlawful.
Section 48 of the HR Act imposes[29] a statutory interpretation requirement on the Tribunal[30] in the following terms:
[29]One of the ways in which the HR Act states that it achieves its objects, in s 4(f), is by requiring courts and tribunals to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way compatible with human rights. Section 5(2)(a) states that the Act applies to a court or tribunal, to the extent the court or tribunal has functions under part 3, division 3 which contains s 48.
[30]Section 164 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) establishes the Tribunal as a court of record.
48 Interpretation
(1)All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.
(2)If a statutory provision can not be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.
The relevant object of the Neighbourhood Disputes Act, contained in s 3(b), is to facilitate resolution of disputes about trees that arise between neighbours.
Whether interpretation of a statutory provision is compatible with human rights, including for the purposes of s 48, is described in s 8 of the HR Act, which is that the interpretation is compatible with a human right if it does not limit a human right, or limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with s 13.
Section 13(1) states that a human right may be subject under the law only to reasonable limits that can be demonstrably justifiable in a free and democratic society based on human dignity, equality and freedom. Section 13(2) contains a list of factors that may be relevant in deciding whether a limit on a human right is reasonable and justifiable as mentioned in s 13(1). Those same factors may be applied in determining whether a person’s home is or is not ‘arbitrarily’ interfered with under s 25.
In my opinion, to achieve the purposes of the Neighbourhood Disputes Act, it may be necessary for orders to be made that interfere with a person's home, in the sense of orders that require access to the person’s home, without their consent, by arborists to prune or remove trees, to the extent that neighbouring land is ‘affected by a tree’ as described in s 46.
In many cases, it will be necessary for the Tribunal to make orders giving access to an arborist to a person’s property to remove branches that overhang from one person's property to another. However, that is a necessary consequence of the fact that branches overhang from one property to another, and the purpose of chapter 3 of the Act is to describe the criteria and circumstances through which an order may be made by the tribunal to require pruning or removal of the relevant trees. That will necessarily require entry by an arborist into the land owned by the tree-keeper to achieve the purposes of chapter 3.

The provisions contained in chapter 3 allowing orders to be made which involve entry by an arborist into a person’s land are not arbitrary. Instead, chapter 3 carefully specifies threshold considerations about which the Tribunal must be satisfied before it may make an order under chapter 3, as analysed in this decision. The matters which the Tribunal ‘must’ consider when making an order are specified for example in s 73, and other matters which the Tribunal ‘may consider’ are specified, for example, in s 74.
A salient provision in the Neighbourhood Disputes Act, in consideration of the effect of the right to privacy in s 25 of the HR Act not to have a person’s home arbitrarily interfered with, is s 71 which states that when the Tribunal is considering an application for an order under s 66, the primary consideration is the safety of any person. Two of the ‘threshold’ provisions, s 46 and s 66, operate on whether the facts establish that a tree will have the effect of causing ‘serious injury’ to a person. In that way, chapter 3 in allowing for orders to be remove trees or branches that cause danger to life has the effect of enhancing another human right under the HR Act, namely the right to life in s 16.
In my opinion, balancing the right to privacy in a person’s home not to be interfered with, against the right to life in the HR Act, for application of chapter 3, any limit to the right to privacy involved in orders for removal of branches and trees, and required entry into a person’s property, is demonstrably justified in application of the factors contained in s 13(2).
In the present case, the orders that I will make requiring to remove and prune the relevant trees may to some extent involve an interference with the Callinicos’ home in the sense of requiring those trees to be removed and pruned. However, my orders will require them to arrange the work, and not Mr Ross. To that extent, there is no intrusion by Mr Ross into their property, and in any event, those orders and any intrusion are demonstrably justified by the evidence in this case.
On the other hand, if there is any ambiguity in s 46(a)(ii), that a tree ‘is likely within the next 12 months’ to cause the consequences described in sub-paragraphs (A)-(C) because of fire, the effect of s 48(2) of the HR Act is that the provision must be interpreted in a way that is most compatible with human rights. In my opinion, given that the order Mr Ross seeks would be for a non-consensual intrusion into the Callinicos land to remove undergrowth which represents a fuel load for fires, and that this may be done annually, the interpretation I prefer for s 46(a)(ii), that for that provision to be triggered requires an assessment that a bushfire is likely to occur within the next 12 months, is supported by s 48 of the HR Act.
It may be that with the benefit of the legal certainty that the parties have about their rights and liabilities concerning the presence of undergrowth that would contribute to the extent of any bushfire will enable them to cooperate and negotiate for Mr Ross to be allowed by Mr and Mrs Callinicos to enter their land, and at Mr Ross’ cost, remove the undergrowth that Mr Richards has assessed to be a fuel load for a bushfire.
If my interpretation of s 46(a)(ii) is not in accordance with Queensland Government policy on removal of the risks presented by fuel loads in the event of a bushfire, then the solution is for s 46 to be amended appropriately.

Orders

My orders are set out at the beginning of these reasons for decision. I expect that Mr and Mrs Callinicos will incur considerable expense in removing and pruning the trees the subject of those orders. For that reason, I allow them 90 days to carry out the work required by those orders.