Weerasena v Boyle - [2024] QCAT 327

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Weerasena v Boyle and Anor [2024] QCAT 327

PARTIES:

THELIKADA PALLIYEGURUGE SISIPIYA UPUL WEERASENA

(applicant)

HIMASHI MUTHUMINI WEERASENA

(applicant)

v

MARINA ELSIE BOYLE

(first respondent)

BRISBANE CITY COUNCIL

(second respondent)

APPLICATION NO/S:

NDR054-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

7 August 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

A/Member D Brown

ORDERS:

1.   On or before 30 September 2024 the first respondent, Ms Marina Boyle, must engage an Australian Qualified Framework (‘AQF’) level 5 arborist with appropriate insurances to undertake an aerial inspection of the two Scribbly Gum (Eucalyptus racemosa) trees (‘the initial inspection’) to:

(a)      assess the structural integrity of the trees;

(b)      identify any structural defects; and

(c)      provide recommendations for mitigating the risk of any identified structural defects and the level of lateral canopy reduction which is necessary and can be safely undertaken to maintain the tree’s health and stability.

2.   Unless there is a significant weather event and Order 3 is enlivened, twelve (12) months after the initial aerial inspection, on an annual basis thereafter (to be completed in the same month of each year), Ms Marina Boyle must engage an AQF level 5 arborist with appropriate insurances to undertake a level 2 or level 3 assessment (provided that at least once every two years the inspections include at least one aerial inspection) of the two Scribbly Gum (Eucalyptus racemosa) trees (‘the yearly inspections’) to:

(a)      assess the structural integrity of the tree;

(b)      identify any structural defects; and

(c)      provide recommendations on mitigating the risk of any identified structural defects and the level of lateral canopy reduction which can be safely undertaken.

3.   If the two Scribbly Gum (Eucalyptus racemosa) trees are subjected to a significant weather event with a Beaufort scale of 9 or greater, Ms Marina Boyle must:

(a)       Engage an AQF level 5 arborist with appropriate insurances to undertake an aerial inspection of the two Scribbly Gum (Eucalyptus racemosa) trees, within two months of the significant weather event, (the severe weather inspection’) to:

(i)       assess the structural integrity of the tree;

(ii)       identify any structural defects; and

(iii)      provide recommendations on mitigating the risk of any identified structural defects and the level of lateral canopy reduction which can be safely undertaken; and

(b)      Conduct an assessment of the tree on an annual basis thereafter (to be completed in the same month of each year) in line with the requirements of the yearly inspections in Order 2.

4.   Ms Marina Boyle must engage an AQF level 3 (or above) arborist with appropriate insurances to undertake any recommendations in the initial inspection, the yearly inspections or the severe weather inspections to mitigate the risk of any identified structural defects or undertake recommended lateral canopy reduction, within two (2) months of receiving those recommendation.

5.   Ms Marina Boyle will be responsible for obtaining any necessary council approvals and paying all costs associated with undertaking the work outlined in Orders 1 to 4.

6.   Ms Marina Boyle must give the applicants, Mr and Mrs Weerasena, a copy of any reports or findings from the initial assessment, yearly assessment or severe weather assessment of the two Scribbly Gum (Eucalyptus racemosa) trees within fourteen (14) days of Ms Boyle receiving them.

7.   If requested, the applicants, Mr and Mrs Weerasena, must allow Ms Boyle’s elected arborist to access their land to undertake the work outlined in Orders 1 to 4.

8.   These orders remain in force and effect for a period of 10 years from the date hereof.

CATCHWORDS

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree dispute –where the tree branches overhang the boundary – whether the tree was likely to cause serious injury or damage – excessive leaf litter – Where tree has ecological value and subject to a vegetation protection order.

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 3, s 45, s 46, s 47, s 48, s 49, s 52, s 61, s63, s 65, s 66, s 67, s 71, s 72, s 73, s 74

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102

Belcher v Sullivan [2013] QCATA 304

Finch v Grahle [2017] QCAT 80

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

The applicants and first respondent are neighbours sharing a dividing fence between their properties. The applicants lodged an application in this Tribunal on 25 March 2021 claiming that:
(a)The two subject trees on the first respondent’s property, alleged to be a gumtree and a yellow oleander, have overhanging branches which are more than 2.5 metres above the ground, and which extend into the applicants’ land more than 50cm from the common boundary. The branches extend approximately 3.6 to 4.5 metres from the common boundary and the branches are as high as 15-20 metres above the ground level.
(b)The trees are heavily overgrown and unmanaged. The branches are frequently falling off the tree in the applicants’ property and have the potential to cause damage to property or cause injury.
(c)Leaves and branches fall on to the applicants’ property and block gutters and pipes. The applicants had a roof leak caused by a blocked drainage system in 2019 but it was unclear whether this was related to the tree.
(d)The encroachment of the branches is unreasonable, and the subject trees have caused substantial, ongoing and unreasonable interference with the applicants’ use and enjoyment of their land due to:
(i) Excessive leaf litter and debris; and
(ii) The risk of safety hazards in that they are likely to cause major damage if preventative measures are not taken.
(e)The applicants have attempted to take steps to prevent damage and interference by conducting regular cleanups of the leaf litter and regularly cleaning the gutters.
(f)The applicants attempted to resolve the dispute with the first respondent on numerous occasions, but all attempts were unsuccessful.
The applicants originally sought the following orders:
(a)To remove the tree or in the alternative for the trees to be pruned.
(b)That a person can enter the first respondent’s land to obtain a quote and to carry out any order.
(c)That the first respondent pay for the costs of any tree works.
(d)That an appropriate qualified arborist prepare a report and the first respondent pay the costs.
(e)The first respondent pay the costs of the application.
The first respondent lodged a response with the Tribunal on 8 September 2021 stating:
(a)The subject trees are not a gum tree or a yellow oleander as asserted by the applicants but are Eucalyptus racemosa (Scribbly Gum).
(b)There are not overhanging branches on the applicants’ property as there has been abatement and the applicants have thrown the dead branches into the first respondent’s yard.
(c)They deny the applicants tried to resolve the matters under a local law, local government scheme or administration process but acknowledge they did take the matter to a dispute resolution centre and did communicate with them about the matter, and they had been aware of the applicants’ concerns in relation to the trees since 2018.
(d)The trees are not likely to cause serious injury or damage to property within 12 months. The trees are approximately 20-30 metres from the applicant’s house, they are stable, and the first respondent has advice from an arborist that they are safe. The trees have sustained thunderstorms, hailstorms and other extreme weather events and never resulted in any safety issue.
(e)Cleaning gutters is a standard home maintenance activity and the trees on the first respondent’s property have never caused any damage to the applicants’ property and are not an unreasonable nuisance.
(f)The Tribunal should refuse to make the orders sought by the applicants and should dismiss the application for lack of particulars and evidence.
The first respondent provided an ecologist report from Queensland Ecologist dated 25 May 2021 with her response which stated:
(a)The first respondent’s large mature trees provide local value to amenity and biodiversity, along with being recognised as significant flora species in the Brisbane City Council areas. They provide forage resources for nationally threatened flying fox and other common fauna, and rare stepping-stone linkage for native fauna moving between the urban environments.
(b)The trees provide local and public amenity benefits including privacy for neighbours immediately adjourning the property, given the slope of the land and raised dwellings on Lyell Street, which have a view down towards Dixon Street. They provide soil stability benefits for both properties and a leafy amenity to the neighbour, which is visible from several of the surrounding streets.
(c)The values provided by the trees will need to be weighed against the value to the neighbours’ property of removing the tree.
On 12 October 2021 the applicants filed a response to the first respondent’s response, disputing much of the contents, and an application for miscellaneous matters seeking the following orders/directions:
(a)The first respondent is to prune and/or conduct any necessary maintenance/upkeep to Trees 1 and 2 (being the Eucalyptus racemosa/Scribbly Gum trees), within a time deemed appropriate by the Tribunal.
(b)At the first respondent’s costs, the first respondent is to continually undertake pruning and/or conduct any necessary maintenance/upkeep at intervals deemed appropriate by the Tribunal.
(c)The first respondent is to conduct a visual tree assessment on Trees 1 & 2 at an interval deemed appropriate by the Tribunal or after large weather events with a Beaufort scale 9 or greater. Any work required from the assessment must be carried out by the first respondent within a reasonable time, completed by a qualified arborist with relevant insurance.
(d)The first respondent play the costs of the application.
On 4 April 2022 the first respondent filed submissions attaching a Vegetation Protection Order (‘VPO’) issued by the Brisbane City Council (‘BCC’) on all native vegetation above 5 metres in height on the first respondent’s property, which includes the two subject trees. The first respondent submitted that the application should be dismissed given the VPO is now in force, stating that no person can cause interference with any protected tree unless strictly in accordance with a permit issued by the BCC.
On 16 June 2022 Mr Bill Manners, Principal Policy and Legislation Officer from the BCC, confirmed that the BCC had an interest to be involved in the Tribunal matter. Accordingly on 23 January 2023 the BCC was joined as a party to the proceedings as the second respondent.
Statutory framework
The relevant legislation is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’). The objects of the Act include the provision of rules about each neighbour’s responsibilities for dividing fences and trees. Neighbours should generally be able to resolve issues without a dispute arising, and if a dispute did arise, then the legislation facilitates for the resolution of that dispute.[1]
[1]The Act, s 3.
The Act provides that a tree, amongst other things, is any woody perennial plant, or any plant resembling a tree in form or size.[2] The trees involved in this application are undeniably trees as provided for in the Act and this is confirmed in the tree assessment report.[3]
[2]Ibid, s 45.
[3]Tree Assessment report of David Gunter dated 13 January 2023.
The Tribunal has jurisdiction to hear and decide any matter in relation to a tree if land is said to be affected by a tree.[4] The affected land must adjoin the land on which the tree is situated[5] or would adjoin the land if it were not separated by a road.[6] As the applicants and first respondent are neighbours who reside on adjoining land, I am satisfied that these properties meet the definition of “land” as required under the legislation.
[4]The Act, s 61.
[5]Ibid, s 46(b)(i).
[6]Ibid, s 46(b)(ii).
Land is affected by a tree if branches from the tree overhang the land;[7] or the tree has caused, is causing or is likely within the next 12 months to cause serious injury to a person on the land,[8] serious damage to the land or property on the land,[9] or substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.[10]
[7]Ibid, s 46(a)(i).
[8]Ibid, s 46(a)(ii)(A).
[9]Ibid, s 46(a)(ii)(B).
[10]Ibid, s 46(a)(ii)(C).
The Act provides for who is a tree-keeper.[11] That is, if the land on which the trees are situated is a lot recorded in the freehold land register, it is the registered owner[12] For the purposes of this application, the two subject trees are situated on the land belonging to the first respondent, and therefore the first respondent is the tree-keeper for all the trees subject to the application.
[11]Ibid, s 48.
[12]As provided for in the Land Title Act 1994 (Qld), s 48(1)(a).
The Act makes provision for the responsibilities of a tree-keeper, including ensuring that the tree does not cause serious injury to a person; or serious damage to a person’s land or any property; or cause substantial and ongoing and unreasonable interference with the use and enjoyment of their land.[13] The primary consideration for the Tribunal in deciding an application is safety.[14]
[13]The Act, s 52.
[14]Ibid, s 71.
The Tribunal may make orders it considers appropriate in relation to a tree affecting a neighbour’s land to prevent serious injury to any person,[15] to remedy, restrain or prevent serious damage to a neighbour’s land or property on the land,[16] or to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.[17] However, a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.[18]
[15]Ibid, s 66(2)(a).
[16]Ibid, s 66(2)(b) (i).
[17]Ibid, s 66(2)(b)(ii).
[18]Ibid, s 72.
Without limiting the powers of the Tribunal to make orders under s 66(2) of the Act, the Tribunal may, among other things, require a tree-keeper or a neighbour to pay the costs associated with carrying out an order under s 66.[19] The Tribunal must consider a number of specified matters in deciding an application for an order under s 66 of the Act.[20]
[19]Ibid, s 66(5)(e).
[20]Ibid, s 73.
Tree Assessor’s Report
On 18 October 2022, the Tribunal appointed an appropriately qualified arborist as an assessor to carry out an inspection of the trees and provide a report to the Tribunal on the issues raised in the application.
On 15 November 2022 Mr David Gunter, the tree assessor, visited the properties. He subsequently prepared a report for the Tribunal dated 12 January 2023 (the ‘tree assessor’s report’). Relevantly, the report states:
(a)The subject trees are two Scribbly Gum (Eucalyptus racemosa), an Oleander and a Chinese Elm. All trees have portions of their canopy or branches which significantly overhang the applicants’ property.
(b)The subject tress are a mix of semi-mature exotic species and mature natives which provide enjoyment to the tree keeper (first respondent) in terms of ecological, landscape and aesthetic benefits. The first respondent’s property is well treed with predominately native species and the subject trees are a part of the overall landscape of the property.
(c)One Scribbly Gum (referred to as Tree 2) has been heavily lopped in the past and some decay is present in the main stem at the upper branch union and lower stem. This tree is in average to poor structure and average vitality. A branch which overhangs the applicants’ property and is poorly attached is considered likely to fall. It is recommended the branch is removed and remedial pruning work should include an aerial inspection of the upper stem and associated branch attachments.
(d)The other Scribbly Gum (referred to as Tree 1) is of average to good vitality and average structure. The tree may have been lopped previously and a full assessment of the structure was not possible as the smaller trees and shrubs obscure the main stem. An aerial inspection of the main union is recommended in order to assess the structural integrity of the tree. Remedial and formative pruning can be completed at the time of the inspection. The tree overhangs the applicants’ property by 5 metres. There is some minor deadwood noted but not over any structures.
(e)Both Scribbly Gum trees are natives and are important to the first respondent in terms of ecological and landscape benefits
(f)The Oleander and the Chinese Elm are in good vitality and average structure. These are non–native species and do not add any ecological diversity to the first respondent’s bush garden and may be supressing the natural regeneration of native species. While the applicant’s issues can be alleviated by pruning the overhanging branches, the first respondent may wish to consider removal of these trees as part of a long term management of their bush garden.
(g)Removal of the overhanging branches will reduce leaf litter but will not eliminate the issue. Leaf litter is a natural part of living in a relatively well treed suburb.
(h)The effect of the trees on the applicant’s property is limited to significant branch overhang. These impacts can be eliminated by pruning. However, both Scribbly Gum trees should be subject to aerial inspection at the time of pruning in order to fully assess structural integrity of the main branch unions. If significant structural issues are noted (e.g. degradant of the structure to the point the remaining canopy constitutes a hazard) then the removal of the tree should be discussed with the first respondent. Canopy inspection and pruning/removal work must be completed by a suitably qualified practicing arboricultural contractor.
Arboriculture Impact Assessment Report
As a result of the recommendations in the tree assessor’s report, on 28 August 2023 the first respondent engaged Evergreen Tree Care to provide tree pruning and removal of several weed species located at the rear boundary of her property. Henk Morgans, Principal Consultant and Managing Director provided an arboriculture impact assessment report. Mr Morgans has a diploma of arboriculture and is an AQF Level 5 Arborist. He is a licensed QTRA assessor, a member of the International Society of Arboriculture and the president of the Queensland Arborist Association.
The arboriculture impact assessment report notes:
(a)During aerial tree pruning on 28 August 2023 minor structural defects were observed in certain branches. The risks posed by the defects were reduced by removing structural defects or pruning lateral branches back to shorten the load on the defect, reducing possibility for failure.
(b)Lateral canopy reduction was performed to reduce the leverage on the wounded area, which improved the overall structural stability of the trees.
(c)Weed species and undesirable specimens were removed from close proximity to the boundary fence line reducing competition and clutter.
(d)As a result of the lateral canopy reduction and their assessment they are confident that the trees are currently safe and structurally sound, as at the time of pruning.
(e)The report strongly recommends conducting yearly inspections of the trees to help identify any potential issues or changes in the trees’ conditions and continually maintaining the lateral growth of the trees to reduce any weight on damaged areas to ensure the long term health and stability of the trees.

On 4 June 2024 the Tribunal sought any further submissions in response to the arboriculture impact assessment to be provided by 9 June 2024. The Tribunal further issued directions on 10 June 2024 that the applicants were to provide any further submissions in relation to the arboricultural impact assessment by 1 July 2024 and the first respondent was to provide any further submissions in reply by 15 July 2024.
On 6 June 2024 Mr Manners from BCC provided submissions on behalf of the second respondent which stated:
(a)The subject vegetation is protected by Council’s Natural Assets Local Law 2003 under protection category “Significant Native Vegetation”. The vegetation meets the objects of the local law by protecting the biodiversity values of the city including, but not limited to, the habitat and ecological requirements of native flora and fauna.
(b)The second respondent had considered both the tree assessment report and the arboriculture impact report.
(c)Based on the details provided in the conclusion and recommendations of both reports the BCC acknowledges that the trees should be managed in accordance with recommendations in the arboriculture impact report for annual ongoing monitoring and maintenance.
(d)Council, through the administration of the Natural Assets Local Law 2003, does not prevent genuine hazard reduction maintenance or tree removal, either through exemption in urgent situations or by permit when supported by evidence. Council is committed to achieving the right balance between maintaining a green city and protecting public safety and private property from damage caused by trees.
(e)Council considers complete removal of trees 1 and/or tree 2 (being the Scribbly Gum) would be a disproportionate response to dealing with the issues that have been raised. The aerial assessment and management works carried out have made significant progress towards addressing the applicant’s reasons for seeking orders. The works further ensure that the protected vegetation will continue to contribute to the ecological values of the local area. It is considered that the issues raised have been resolved by the assessment and management measures carried out and can now be managed through ongoing monitoring and maintenance.
On 19 July 2024 the applicants provided submissions in relation to the arboriculture impact assessment report which stated:
(a)The applicants have considered both the tree assessor’s report and the arboriculture impact report.
(b)The applicants were critical of the arboriculture impact report for being a basic level 2 inspection based solely on visual observations made from the ground using basic tools and not complying with minimum requirements of an arborist report by not identifying the tree name, age and class or identifying it on a site plan.
(c)The applicants assert the report lacks specific findings, photographs, or videos to substantiate the structural integrity of the trees.
(d)Despite the pruning, branches from one tree still overhang more than 1.5 metres onto the applicant's property and the lateral canopy reduction of the tree did not reduce the tree's height.
(e)The applicants seek the arboriculture report be dismissed or the first respondent serve a supplementary report compliant with minimum standard and if the first respondent does not, the Tribunal makes its final finding based on Mr Gunter’s recommendations in the tree assessor’s report.
The applicants’ request to require the first respondent serve a supplementary report compliant with the minimum standard is refused, as to do so would just cause further delays to a matter that has been on foot for nearly 3 years. The arboriculture impact assessment report provides information helpful to the Tribunal’s determination and the Tribunal can take into consideration the concerns raised by the applicants as to the report’s compliance with standards required for an arborist report.
On 26 July 2024 the first respondent provided further submissions in reply to the applicants’ submissions which stated:
(a)The first respondent has at all times acted in accordance with the professional arborist advice and has engaged Evergreen Trees Care to provide advice, assess the trees and prune the trees in accordance with Australian standards, which the first respondent did at a cost of $1,875.
(b)The applicants were informed at all times of all actions proposed, provided site access to Evergreen Tree Care to place the cherry picker on their property to carry out the aerial pruning, which occurred over an extended number of hours and was done under the supervision and direction of the male applicant.
(c)No further report should be sought, and if a further report is required, the cost should be shared between the parties.
(d)The first respondent provided Henk Morgans from Evergreen Tree Care a copy of the applicants’ submission and Mr Morgans’ response was included with the first respondent’s submissions. Mr Morgans’ response included details of his skills and qualifications and confirmed that what was provided was an arborist statement (as opposed to an arborist report) which is a brief written synopsis of an assessment or work performed on the day. Mr Morgans’ response also confirmed that an aerial inspection was conducted during the pruning process whilst moving through the canopy which is when the minor structural defects in the canopy were identified.
On 19 July 2023 and 10 June 2024 the Tribunal directed the matter would be determined on the papers without an oral hearing. This is that decision.
Findings of the Tribunal
All material filed by both the applicants and first and second respondents and the tree assessor’s report has been considered. The Tribunal finds the tree assessor’s report and the arboriculture impact assessment report to be relevant and informative reports which the Tribunal has relied upon in its decision.
The Tribunal does not accept the applicant’s submissions that the arboriculture report should be dismissed or that the first respondent should be required to file an updated version, simply due to it not complying with all the minimum requirements for an arborist report. The applicants raised issues that it did not identify the trees by their common or scientific names or identify them on a site plan, but the type of tree and location are not in dispute and are confirmed in the earlier arborist report. The applicants also appear to acknowledge in their submissions that the Evergreen Tree Care did conduct pruning and a lateral canopy reduction on the subject trees, so it is not suggested this report is not about the subject trees in this matter.
The Tribunal takes into account the applicants’ concerns about the lack of specifics and lack of photographic evidence as to the structural integrity of the tree, but notes this is a report from an experienced, qualified arborist based on both observations while conducting aerial tree pruning and a level 2 ground assessment of the tree. In the absence of any evidence to the contrary the Tribunal finds the report to be reliable and credible.
The Tribunal is satisfied of the interpretation and jurisdictional issues in sections 45 to 49 and s 61 of the Act and finds that these are trees within the definition under sections 4 and 5 of the Act, the applicants and first respondent are the registered owners and appropriate parties, and the tree is on the first respondent’s property making the first respondent the tree-keeper.
As the application alleges that the branches from the subject trees overhang into the applicants’ property and it is alleged (albeit disputed by the first respondent) that the land is affected by the trees due to the trees causing a substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land, there is jurisdiction for the Tribunal to hear this matter.[21]
[21]The Act, s 61.
In relation to the requirements before an order can be made pursuant to s 65, I am satisfied the applicants have made a reasonable effort to reach agreement with the first respondent and it is not suggested there is any relevant local law, local government scheme, or local government administrative process to resolve the issues.
The applicants cannot resolve the issues under Part 4 of the Act due to the height of the overhanging branches and the applicants have given the copies of the application to the first respondent as required under s 63 of the Act.
Given the applicants have alleged that the trees are likely to cause serious damage or serious injury to their property within 12 months and that the trees are causing an unreasonable interference due to leaf litter, the matters set out in section 74 and section 75 of the Act have been considered by the Tribunal in this decision.
It is noted the tree assessor’s report refers to four trees which were overhanging the applicant’s property, being the two Scribbly Gum (Eucalyptus racemosa) trees and an Oleander and Chinese Elm. However the applicants have only brought an application and sought orders in relation to two trees, being the Scribbly Gum (Eucalyptus racemosa) trees.
Noting it is unknown whether the Oleander and Chinese Elm still have branches which overhang the boundary given the arboriculture impact assessment report makes reference to the removal of several weed species located at the rear boundary of the property and general pruning (which may have related to these trees) and as the applicants have not raise concerns about these specific trees or sought any orders in relation to the Oleander and Chinese Elm, there is not a basis for the Tribunal to make orders in relation to the Oleander and Chinese Elm. Accordingly the Tribunal is only considering the impact of the two Scribbly Gum (Eucalyptus racemosa) trees.

Overhanging branches

The applicants assert that Scribbly Gum tree branches overhang the boundary fence. This is disputed by the first respondent on the basis that there has been abatement and there is dead foliage in her yard.
It is clear from the evidence in this matter, both by way of photographs and videos provided by the applicants and the tree assessor’s report, that branches of the two subject Scribbly Gum trees overhang into the applicant’s property.
At the time of the inspection for the tree assessor’s report in November 2022 one of the subject Scribbly Gum (Eucalyptus racemosa) trees overhung by 5 metres and the other by 6 metres.
While it is acknowledged that the level of overhang into the applicants’ property would have likely been reduced with pruning and lateral canopy reduction, the arboriculture impact assessment report does not address what was done in relation to overhanging branches, other than to generally note that there was some pruning work and some lateral canopy reduction. The applicants assert in their submissions dated 19 July 2024 that one tree still overhangs more than 1.5 metres into the applicant’s property. The first respondent has not sought to dispute this in their response to the applicant’s submissions on 26 July 2024, other than to state that there is no dispute that the trees were appropriately pruned.
Accordingly the Tribunal finds that the Applicant’s land is affected by the subject trees on the first respondent’s property due to branches from the trees overhanging into the applicant’s land.

Substantial, ongoing and unreasonable interference with the applicants’ use and enjoyment of their land.

The applicants’ assert that the subject trees cause substantial, ongoing and unreasonable interference due to the encroachment of the branches onto their property creating a nuisance and the leave that fall onto the applicants’ property are excess of what is ordinary and reasonable.
What constitutes substantial, ongoing, and unreasonable interference has been considered by the Tribunal on many occasions. In Belcher v Sullivan,[22] Judicial Member Dodd said:
[23] ‘Substantial’ also is a word not given any special meaning in the Act. It is a word in common usage. In the context in which it is used in the Act it indicates on-going and unreasonable interference with enjoyment or use of land which has substance, is of real or considerable importance.
[24] [It] require[s] a decision maker to assess the degree of damage or interference in the light of all the evidence provided.
[22][2013] QCATA 304.
The presence of leaf litter and other small debris will generally not be sufficient to establish substantial, ongoing, and unreasonable interference with the applicants’ use and enjoyment of the land.[23] Maintenance of the applicants’ property is their responsibility.
[23]Finch v Grahle [2017] QCAT 80.
For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds, or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.
In relation to the applicants’ claim that the overhanging branches cause a nuisance, other than a statement to this effect in the application there is no other evidence to support this or to expand upon what the nuisance is (separate from the issues raised about leaf litter and risk of damage or injury).
The Tribunal accepts that there could be some interference with the applicants’ use and enjoyment of the land arising out of plant matter dropping onto their property. However, there was insufficient evidence provided by the applicants to evidence the degree of any leaf litter. While some photographs are provided of the leaf litter, they are not date stamped and do not appear to provide evidence of the leaf little over a period of time and as such are insufficient to demonstrate an ongoing, substantial and unreasonable interference. The applicants raised concerns about the frequency of maintenance needed but provided no clear evidence of the frequency undertaken. In addition, there is no recent information to demonstrate the leaf litter after the subject trees were pruned and the removal of the weed species and undesirable specimens, which the tree assessor had indicated would reduce leaf litter.
Whilst no doubt inconvenient, leaf litter is a natural incident of suburban living. The tree assessor’s report did not identify any evidence of substantial or excessive leaf litter and indicated that the only effect of the trees on the applicants’ property was the overhanging branches.
Accordingly, the Tribunal is not satisfied that the leaf litter or the overhanging branches on the applicants’ land from the first respondent’s tree are causing or are likely within the next 12 months to cause substantial, ongoing, and unreasonable interference with the applicants’ use and enjoyment of their land.

Serious Injury and Damage.

The applicants do not allege the trees have caused or are causing injury or severe damage to their land or property on their land[24] but allege that they are likely to do so within the next 12 months.
[24]While reference is made to a block pipe, the applicants acknowledge they cannot prove this was as a result of the first respondent’s trees.
While there is always a risk that with an extraordinary weather event or cyclone that there may be damage caused by trees, there is no evidence that these trees cause any greater risk than any other tree surrounding the applicants’ house. While it is understandable that the applicants may has concerns about potential for damage if there were a severe weather event given the size of the tree and the close proximity to the boundary fence, there needs be to more than just concern, and the evidence needs to support that serious injury or significant damage is likely to occur within the next 12 months.
Given the conclusion of the tree assessor’s report that the effect of the trees on the applicants’ property is limited to the significant branch overhang, and the arboriculture impact report findings that the trees were safe and structurally sound at the time of pruning, there is insufficient evidence to demonstrate that these trees are currently likely to cause serious injury or severe damage to land or property within the next 12 months.
What order, if any, should the Tribunal make in these proceedings?
As there are overhanging branches, which means that the applicants’ property is affected by the trees, the Tribunal has jurisdiction to make orders about the trees it considers appropriate in relation to a tree affecting the neighbour’s land to:
(a)prevent serious injury to any person; or
(b)to remedy, restrain or prevent—
(i) serious damage to the neighbour’s land or any property on the neighbour’s land; or
(ii) substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
The first respondent asserted that there are no grounds for an order under sections 65 or 66 of the Act due to there being a VPO in place in relation to the subject trees and accordingly the application should be dismissed.
Section 67(1) of the Act provides that:
(1)If QCAT is satisfied the application before it was made because of a genuine dispute, it may make an order for a person to carry out work on a tree even though -
(a)     consent is withheld by a local government or a tree-keeper under a vegetation protection order; or
(b)     a local law requires a consent or authorisation to be given before the work may be carried out; or
(c)     the work is otherwise restricted or prohibited under a local law.
Section 67(2) of the Act provides that work carried out under an order made under section 67(1) is lawful despite a local law.
Accordingly there is jurisdiction for the Tribunal to make orders in relation to these subject trees pursuant to section 66 of the Act, notwithstanding the VPO.
Before making any orders, the Tribunal needs to consider the matters in s 73. In relation to these considerations the Tribunal takes into consideration that:
(a)The location of the trees are next to the boundary line between the applicants and first respondent’s property.
(b)The subject trees are Scribbly Gum (Eucalyptus racemosa). They are native trees and not pests or weeds.
(c)There is a VPO in place in relation to the property and the trees are protected by Council’s Natural Assets Local Law 2023 under the protection category “Significant Native Vegetation.” Consent or authorisation is required from Council to conduct work on the subject trees. The second respondent has confirmed that Council through the administration of the Natural Assets Local Law 2023 does not prevent genuine hazard reduction or maintenance or tree removal, either through exemption in urgent situations or by permit when supported by evidence.
(d)The subject trees are mature natives and have important biodiversity, habitat and ecological value. They contribute to the local ecosystem and biodiversity, the natural landscape and scenic value of the land and local and contribute to the public amenity. They provide a home for native flora and fauna and beautify the Brisbane suburbs. Along with other vegetation they provide a habitat, food and shelter for native wildlife.
(e)The tresses contribute to privacy, landscaping and garden design in the first respondent’s property. They are part of the overall landscape of the property and provide cool shady relief in summer.
(f)There is no information to suggest the tress have any historical, cultural or scientific value.
(g)In terms of any impact the tree has on soil stability, the water table or other natural features of the land or locality, the ecologist report from May 2021 notes that they provide soil stability benefits for both properties.
(h)There are no identified risks associated with the tree in the event of a cyclone or other extreme weather event and the arboriculture impact assessment report assessed the trees as currently safe and structurally sound. However it did recommend ongoing monitoring of the trees’ condition over time.
(i)Given the age and size of the trees and that they are protected under the VPO any pruning would need to be undertaken at the advice of a qualified arborist and in line with any Australian standards to ensure it did not impact on the trees’ health or stability. The tree assessor’s report noted that the trees had been lopped in the past which may have contributed to some of the concerns about their structure and decay.

In making a determination about what, if any, orders are appropriate, the Tribunal has taken into consideration s 71 and s 72 of the Act, that a living tree should not be removed or destroyed unless the issues relating to the tree cannot otherwise be satisfactorily resolved and that the primary consideration for the Tribunal in deciding an application is safety.
There no longer appears to be any suggestion from the parties the trees should be removed, and the evidence would not support the removal of either of the subject trees. The dispute appears to be in relation to whether there should be orders made in relation to the regular inspections and maintenance/pruning of the subject trees as sought by the applicants or whether the application should be dismissed as sought by the first respondent.
It is clear from both expert tree reports in this matter that regular inspections and ongoing maintenance of the two subject trees is required. The arboriculture impact assessment report strongly recommended that yearly inspections be conducted to identify any potential issues or change to the tree condition and ongoing maintenance and lateral canopy reduction is crucial to reduce any weight in damaged areas and ensure the long term health and stability of the trees.
These recommendations are supported by the second respondent, the BCC, who have stated in their submissions that the complete removal of the trees would be a disproportionate response to dealing with the issues raised but that they acknowledge the trees should be managed in accordance with the agriculture impact report through annual ongoing monitoring and maintenance.[25]
[25]Submissions received from Bill Manners dated 6 June 2024.
While there was insufficient evidence to demonstrate that the trees are likely to cause serious injury or significant damage within the next 12 months, given the arboriculture impact assessment report expressing confidence that the tree was currently safe and structurally sound, given the size of the tree and the close proximity to the boundary fence, if the health or stability of the tree was to change, it could cause serious injury to a person or serious damage to a neighbour’s land and/or property. This is clear from both expert reports in their recommendation for monitoring of the tree and its condition over time and the tree assessor’s report goes to the extent to recommending the removal of the trees (notwithstanding this should be a last resort) if significant structural issues are noted.
It is clear from the communications between the parties prior to the proceedings, spanning nearly three years from 2018 to 2021 without any agreement, and the continued difference of opinion as to the appropriate outcome, that there is a genuine dispute in this matter and the parties are unlikely to be able to agree to any ongoing maintenance and inspection schedule on their own.
It is clear that the first respondent has taken all appropriate steps to follow the advice of the tree assessor Mr Gunter and has engaged a very experienced arborist from Evergreen Tree Care to inspect the trees and provide recommendations and then conducted appropriate pruning and lateral canopy reduction, at some considerable cost to herself.
However, despite providing further submissions to the Tribunal on 26 July 2024, what the first respondent has not done is advise what the plan is to follow the recommendations of the arboriculture impact assessment report for yearly inspections and ongoing maintenance. Noting the report is dated 31 August 2023 and related to aerial tree pruning undertaken on 28 August 2023, the tree will be due shortly for a further inspection and potential maintenance. However, the first respondent has made no mention of any plan to re-engage Evergreen Tree Care or any other arboriculturist to undertake this.
Given the lack of any clear plan from the first respondent as to the ongoing inspection and maintenance of the two subject trees and given the strong recommendations in the expert reports and the clear ongoing dispute between the parties, it is necessary and appropriate for the Tribunal to make orders about the ongoing inspection and maintenance of the two subject trees to prevent serious injury to any person or prevent serious damage to the neighbour’s land or any property in the neighbour’s land.
In addition to the yearly inspections, given the potential risks posed by these trees if structural defects occurred, the Tribunal will also make orders in relation to inspections occurring after any severe weather events.
The responsibility for controlling the branches and trees, by cutting and removing any branches of the trees that overhanging the boundary, so they do not extend over the dividing fence, and ensuring the ongoing safety of the subject trees to ensure they do not cause serious injury or serious damage, is the responsibility of the first respondent as the tree-keeper. Accordingly it is appropriate that the any costs associated with the orders are to be borne by the first respondent.
Given the ongoing dispute between the parties the Tribunal will make orders to ensure any necessary access can be obtained to conduct the work and that there be provision of information between the parties.

Costs

The applicants sought an order for “costs of and incidental to the application”, however have not provided any clear submissions as to what these costs are or the basis for seeking these costs, other than stating in the application they are due to the applicants’ attempt to resolve the matter with the first respondent (as is required by law) prior to bringing the proceedings.
Costs do not follow the event and just because a party may be successful in their application, it does not follow that there will be an order for costs. The starting point for costs is that each party must bear their own costs.[26] However, the Tribunal may make an order requiring a party to pay all or a stated part of the costs of another party to the proceeding if the Tribunal considers the interests of justice require it to make the order.[27]
[26]QCAT Act, s 100.
[27]Ibid, s 102.
Notwithstanding the submission of the parties, I am not satisfied that either party acted in a way that unnecessarily disadvantaged another party to the proceeding. Both the applicants and the first respondent were delayed at times in complying with directions about the provision of material, but these were usually followed with some reasonable explanation for the delay.
In the circumstance the Tribunal is not satisfied that the interests of justice require the Tribunal to sway from the ordinary position that each party bear their own costs and accordingly the Tribunal declines to make any order in relation to costs.

Orders

The Tribunal makes the following orders:
On or before 30 September 2024 the first respondent, Ms Marina Boyle, must engage an Australian Qualified Framework (‘AQF’) level 5 arborist with appropriate insurances to undertake an aerial inspection of the two Scribbly Gum (Eucalyptus racemosa) trees (‘the initial inspection’) to:1.
(a)assess the structural integrity of the trees;
(b)identify any structural defects; and
(c)provide recommendations for mitigating the risk of any identified structural defects and the level of lateral canopy reduction which is necessary and can be safely undertaken to maintain the tree’s health and stability.
Unless there is a significant weather event and Order 3 is enlivened, twelve (12) months after the initial aerial inspection, on an annual basis thereafter (to be completed in the same month of each year), Ms Marina Boyle must engage an AQF level 5 arborist with appropriate insurances to undertake a level 2 or level 3 assessment (provided that at least once every two years the inspections include at least one aerial inspection) of the two Scribbly Gum (Eucalyptus racemosa) trees (‘the yearly inspections’) to:2.
(a)assess the structural integrity of the tree;
(b)identify any structural defects; and
(c)provide recommendations on mitigating the risk of any identified structural defects and the level of lateral canopy reduction which can be safely undertaken.
If the two Scribbly Gum (Eucalyptus racemosa) trees are subjected to a significant weather event with a Beaufort scale of 9 or greater, Ms Marina Boyle must:3.
(a)Engage an AQF level 5 arborist with appropriate insurances to undertake an aerial inspection of the two Scribbly Gum (Eucalyptus racemosa) trees, within two months of the significant weather event, (the severe weather inspection’) to:
assess the structural integrity of the tree;(i)
identify any structural defects; and (ii)
provide recommendations on mitigating the risk of any identified structural defects and the level of lateral canopy reduction which can be safely undertaken; and(iii)
(b)Conduct an assessment of the tree on an annual basis thereafter (to be completed in the same month of each year) in line with the requirements of the yearly inspections in Order 2.
Ms Marina Boyle must engage an AQF level 3 (or above) arborist with appropriate insurances to undertake any recommendations in the initial inspection, the yearly inspections or the severe weather inspections to mitigate the risk of any identified structural defects or undertake recommended lateral canopy reduction, within two (2) months of receiving those recommendation.4.
Ms Marina Boyle will be responsible for obtaining any necessary council approvals and paying all costs associated with undertaking the work outlined in Orders 1 to 4.5.
Ms Marina Boyle must give the applicants, Mr and Mrs Weerasena, a copy of any reports or findings from the initial assessment, yearly assessment or severe weather assessment of the two Scribbly Gum (Eucalyptus racemosa) trees within fourteen (14) days of Ms Boyle receiving them.6.
If requested, the applicants, Mr and Mrs Weerasena, must allow Ms Boyle’s elected arborist to access their land to undertake the work outlined in Orders 1 to 4.7.
These orders remain in force and effect for a period of 10 years from the date hereof.8.