Muller & Anor v Del Vecchio[2020] QCAT 373

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Background

1. [1]
   The Applicants are the occupiers and registered owners of land in Hamilton, Queensland.^[1] Felice Del Vecchio (‘the Respondent’)^[2] is the registered owner of land which has a common boundary with the Applicants’ land.^[3]  According to the Applicants, the Respondent has growing on his land a row of 15 Lilly Pilly^[4] trees (‘the trees’), which, as at 16 November 2018, the date of filing of the Applicants’ Form 51 Application (‘the Application’), were between 3m and 5m above ground level.^[5] In the Application, it is asserted that:

Due to [the trees’] height our house is in shade during the winter months and as a result, our house has been much colder, necessitating increased heating costs….^[6]

2. [2]
   The Applicants seek the following orders:^[7]

   1. (a)
      that the Respondent carry out work on the trees to remove or prune branches of the trees;
   2. (b)
      that a person can enter the Respondent’s land to carry out an order;
   3. (c)
      that a person can enter the Respondent’s land to obtain a quote to carry out an order; and
   4. (d)
      that the Respondent pay the costs of carrying out the above orders.

Directions made on 11 February 2020

3. [3]
   The Respondent failed to comply with the Tribunal’s direction to attend a compulsory conference. Member Howe directed on 11 February 2020 that if the Respondent failed to explain why he failed to comply with the direction, the Application would be determined on the papers. No explanation was forthcoming from the Respondent, and so this Application has been determined on the papers.

The evidence

4. [4]
   The evidence in this proceeding consists of:

   1. (a)
      material provided by the Applicants, namely:

      1. the Applicants’ statements and a diagram which comprise the Applicants’ responses to questions in the Form 51 Application;
      2. a copy of a letter from Mr Muller to the Respondent, dated 2 October 2018;
      3. colour photographs of the trees and affected areas;
      4. a copy of title searches for Lot 2 and Lot 4 on Survey Plan (‘SP’) 142273;
      5. a copy of the survey plan of Lots 1 – 4 in SP 142273, on which the Applicants have marked the location of the trees on Lot 4; and
      6. an affidavit of service executed by Mr Muller on 26 November 2018 deposing to personal service of the Application on the Respondent (‘the affidavit of service’); and
   2. (b)
      a copy of a ‘QCAT NDR Tree Assessment Report’ prepared by Mr Benjamin Inman, tree assessor, and dated 30 July 2019 (‘the TAR’).
5. [5]
   The Respondent has not provided any material in response to the Application.

The Tribunal’s power to make an order with respect to the trees

6. [6]
   Sections 61 and 66 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’) empower the Tribunal to make orders with respect to trees. By section 42, the trees must be situated on land including land on the freehold land register. The orders may relate to more than two trees.^[8]

Conditions to be satisfied before orders may be made

7. [7]
   There are many conditions to be satisfied before the Tribunal may make orders with respect to the trees under section 66, and I will deal with each of these in turn.
8. [8]
   By section 59 of the Act:

   1. (a)
      the trees which are the subject of the Application must each be a ‘tree’ as defined in section 45 of the Act;^[9]
   2. (b)
      there must also be ‘land affected by a tree’ as defined in section 46;^[10] and
   3. (c)
      the Applicants must each be a ‘neighbour’ of the Respondent within the meaning of section 49 of the Act, whose land is ‘affected by a tree’.
9. [9]
   There is another requirement of section 59, which is that the neighbour can not resolve the issue using the process under Chapter 3 Part 4 of the Act. Part 4 does not apply in this case, as the complaint about the trees is their height, and their effect on access to sunlight, as opposed to a complaint about the effect of overhanging branches.^[11]
10. [10]
    As to the other matters contemplated by section 59, in this case:

    1. (a)
       Mr Inman has confirmed that the trees are of the species syzygium or Lilly Pilly^[12] and are each a ‘tree’ for the purpose of section 45 of the Act;^[13]
    2. (b)
       the Applicants assert that the trees have caused substantial, ongoing and unreasonable interference with their use and enjoyment of their land (I will use the shorthand term ‘interference’ where appropriate).^[14] The marked survey plan of SP 142273 indicates that the trees are situated on the Respondent’s land. The Respondent has not disputed this, and I accept the Applicants’ evidence in this respect. The marked survey plan also shows the Applicants’ land adjoins the Respondent’s land, and that the trees are located close to that common boundary. Accordingly, subject to a determination (discussed below) that the trees have caused, are causing or are likely within the next 12 months to cause interference, the Applicants’ land is ‘affected by’ the trees within the meaning of section 46 of the Act; and
    3. (c)
       as the ‘land affected’ is a lot recorded on the freehold land register, and the Applicants are the registered owners of that land,^[15] they are each a ‘neighbour’ within the meaning of section 49 of the Act.
11. [11]
    Accordingly, subject to my determination with respect to interference, Chapter 3 Part 5 of the Act, which confers jurisdiction on the Tribunal, applies to this case.
12. [12]
    By sections 63 and 65 of the Act, a copy of the Application must have been given to the persons referred to in section 63(1) within 21 days before the day the Application is to be heard (except to the extent the requirement to do so has been waived or varied under section 63(2) of the Act).  The first person referred to in section 63 is the ‘tree keeper’. Given the definition of ‘tree-keeper’ in section 48(1)(a) of the Act, the Respondent is the tree keeper as he is the registered owner of the land on which the trees are situated.^[16] The affidavit of service indicates that a copy of the Application was delivered personally to the Respondent on 23 November 2018.
13. [13]
    The evidence does not indicate that there is any other entity which should have been given a copy of the Application under section 63(1) of the Act.
14. [14]
    Accordingly, in light of the matters discussed above, I consider the service requirements to have been satisfied.
15. [15]
    Section 65 of the Act prescribes other conditions to be satisfied before orders may be made with respect to the trees.
16. [16]
    The first condition, prescribed by section 65(a) of the Act, is that the neighbour has made a reasonable effort to reach agreement with the tree-keeper. The efforts to reach agreement consisted of a discussion with the Respondent on 3 October 2018 in which the Respondent was asked to cut the trees to 2.5 metres above ground level, and the Respondent refused the request. A letter of request dated 2 October 2018 (a copy of which was provided) was left with the Respondent.^[17] I am satisfied that the Applicants have met the condition in section 65(a) of the Act.
17. [17]
    The second condition, prescribed by section 65(b) of the Act, is that the neighbour has taken all reasonable steps to resolve the issue under any relevant local law, local government scheme or local government administrative process.^[18] The adjoining lands are in a suburb which is a ward of the Brisbane City Council. I conducted an internet search to ascertain whether a local law, scheme or administrative process of the Brisbane City Council could apply to this dispute, and none of these was revealed by that search. I am satisfied that section 65(b) does not apply.
18. [18]
    Other conditions are prescribed by section 65(c) of the Act, which apply ‘to the extent the issue relates to the land being affected because branches from the tree overhang the land.’ The issue in this proceeding is that the trees have, by their height and location, caused the blockage of sunlight. I do not consider that section 65(c) applies in this case.
19. [19]
    There are however further conditions to be met before an order may be made with respect to the trees, which are invoked by section 66(2) of the Act.
20. [20]
    Section 66 (‘Orders QCAT may make’) provides, relevantly:

    1. (1)
       Division 4 states the matters for QCAT’s consideration in deciding an application for an order under this section.
    2. (2)
       QCAT may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land—

       1. …
       2. to remedy, restrain or prevent—
          1. …
          2. substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
    3. (3)
       However, subsection (2)(b)(ii) applies to interference that is an obstruction of sunlight or a view only if—

       1. the tree rises at least 2.5m above the ground; and
       2. the obstruction is—
          1. severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land; or
          2. severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.
    4. (4)
       Despite the Property Law Act 1974, section 178, QCAT may make an order under subsections (2)(b) and (3) that is intended to result in the access of light to land.
    5. (5)
       Without limiting the powers of QCAT to make orders under subsection (2), an order may do any of the following—

       1. require or allow the tree-keeper or neighbour to carry out work on the tree on a particular occasion or on an ongoing basis;

Examples—

• an order that requires the removal of the tree within 28 days
• an order that requires particular maintenance work on the tree during a particular season every year
• an order that requires particular work to maintain the tree at a particular height, width or shape
  2. (b)
     require that a survey be undertaken to clarify the tree’s location in relation to the common boundary;
  3. (c)
     require a person to apply for a consent or other authorisation from a government authority in relation to the tree;
  4. (d)
     authorise a person to enter the tree-keeper’s land to carry out an order under this section, including entering land to obtain a quotation for carrying out an order;
  5. (e)
     require the tree-keeper or neighbour to pay the costs associated with carrying out an order under this section;
  6. (f)
     require the tree-keeper to pay compensation to a neighbour for damage to the neighbour’s land or property on the neighbour’s land;
  7. (g)
     require a report by an appropriately qualified arborist.

6. (6)
   In this section—

window includes a glass door, window forming part of a door, skylight or other similar thing.

21. [21]
    Accordingly, by section 66(2) of the Act, for an order to be made under section 66 in this case:

    1. (a)
       the trees must be at least 2.5m above the ground;
    2. (b)
       the trees must cause ‘severe obstruction of sunlight to a window’;
    3. (c)
       the trees must cause interference (because the order must be to ‘remedy, restrain or prevent’ the interference).
22. [22]
    I turn now to consider the impact of the trees in light of these criteria.

What the evidence reveals about the impact of the trees

23. [23]
    The Applicants have provided photographs showing their house in shadow for different months at 9.00am and midday, during 2018, together with a satellite photograph taken in August 2018 showing ‘complete shadow along the length of the house.’
24. [24]
    The photographs depict the lower level of the house on one side, including what look to be four^[19] full length glass panelled doors. Three of those doors are shown to be in shade in April, June, August and October. The fourth door is also shown to be in shade in the 9.00am 3 October 2018 photograph. In addition, the photographs taken on 2 June 2018 show the upper part of the house, including two windows on that side, to be in shade. The trees are the obvious source of the shade in each case. The satellite photograph does show shade along one length of the house, but it is difficult to discern whether and the extent to which the shade affects the windows or French doors.
25. [25]
    In light of the photographic evidence, the absence of any challenge to it by the Respondent and in light of the findings of Mr Inman, discussed below, I accept the Applicants’ assertions as to the obstruction of sunlight and its effects, namely, that the house is colder as a result of the shade, and that has necessitated an increase in heating costs. The Applicants do not specifically state in the Application that the ‘shade’ is to the windows. However, given their choice of photographs, I consider that the obstruction of light to the doors and windows has been sufficiently raised in the Application, and infer that the lack of sunlight to those doors and windows has had the effect of making the house colder.
26. [26]
    Mr Inman indicates in his report that:

    1. (a)
       the trees are between 3 and 5 metres in height,^[20] and rise at least 2.5 metres above the ground;^[21]
    2. (b)
       there is an obstructed window or roof forming part of the Applicants’ dwelling in that sunlight is reduced as the run passes north over the property and light does not reach the ground level of the Applicants’ property;^[22]
    3. (c)
       sunlight is restricted by the trees by approximately 80%, and in the next 12 months with 5% tree growth will be restricted by 85%;^[23]
    4. (d)
       the trees were in an obstructing position at the time the relevant roof and windows were installed and have grown to be an obstruction since (although no source is cited for these findings);^[24] and
    5. (e)
       despite these findings, Mr Inman indicates that the trees have not caused, are causing or likely to cause within the next 12 months substantial, ongoing and unreasonable interference with the Applicants’ use and enjoyment of the land.^[25]
27. [27]
    I accept the evidence of Mr Inman referred to in paragraphs [26](a) to (c) above. As the basis for Mr Inman’s conclusion referred to in paragraph [26](d) has not been disclosed, I do not accept that evidence.
28. [28]
    I turn to consider Mr Inman’s conclusion that the trees have not caused, are causing or likely to cause interference within the next 12 months. I consider the question as to whether interference has been established to be one of mixed fact and law.^[26] Even if I were wrong in that assessment, I consider that the element of interference involves value judgements, going beyond matters of fact or expert opinion. That is revealed by the discussion of the statutory concepts below, particularly that of unreasonableness. Accordingly, I do not consider myself bound to accept Mr Inman’s conclusion.

Have the statutory criteria been met?

29. [29]
    I consider that the evidence of Mr Inman and the Applicants establishes the trees are more than 2.5 metres above the ground.
30. [30]
    As to whether there is obstruction of sunlight ‘to a window’, as discussed above, this is established by the photographs (noting that the definition of ‘window’ in section 66(6) of the Act includes a glass door).

Is there a ‘severe’ obstruction of sunlight?

31. [31]
    In Laing v Kokkinos (No 2)^[27] Alan Wilson J considered the meaning of ‘severe obstruction’, albeit for the purpose of section 66(3)(b)(ii) of the Act, which concerns the obstruction of a view. His Honour held:

The term ‘severe obstruction’ is not defined in either the Act or the Explanatory Notes to the Neighbourhood Disputes Resolution Bill 2010. The Macquarie Dictionary defines ‘severe’ in the following terms: ‘harshly extreme’; ‘causing discomfort or distress by extreme character or conditions’ and ‘hard to endure’.^[28] 

32. [32]
    In Durrington v Cassar^[29] Member McLean Williams also applied the Macquarie Dictionary definition of ‘severe’ to a claim based on obstruction of sunlight.^[30]
33. [33]
    I consider that an obstruction of sunlight by 80% may be considered ‘harshly extreme’, causing ‘discomfort’ and accordingly that the obstruction created by the trees falls within section 66(3)(b)(i).

The meaning of ‘substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land’

34. [34]
    The next criterion is that the obstruction of sunlight amounts to ‘substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land’. The meaning of ‘substantial, ongoing and unreasonable interference’ was considered by the Appeal Tribunal in Neverfail Pty Ltd as Trustee for the Harris Siksna Family Trust v Radford.^[31] The Appeal Tribunal considered that:

    1. (a)
       the words ‘substantial’, ‘ongoing’ and ‘unreasonable’ are not defined in the Act and therefore carry their ordinary meaning:

       1. ‘substantial’ means ‘of considerable importance, size or worth’;
       2. ‘ongoing’ means ‘continuing; still in progress’; and
       3. ‘unreasonable’ means ‘beyond the limits of acceptability or fairness’;
    2. (b)
       all three requirements must be present for interference to be established; and
    3. (c)
       interference, to satisfy section 66(2)(b)(ii) must therefore be considerable and beyond the limits of acceptability.^[32]
35. [35]
    The Appeal Tribunal also pointed to a number of factors as relevant to considering whether an interference is a substantial, ongoing and unreasonable for the purposes of section 66(2)(b)(ii):^[33]

    1. (a)
       what is the nature and extent of the harm or interference said to be caused by the tree?
    2. (b)
       is the neighbour abnormally sensitive to the harm or interference said to be caused by the tree?
    3. (c)
       have all reasonable steps been taken by the tree keeper to minimise the harm or interference said to be caused by the tree?
    4. (d)
       what is the type and extent of damage claimed to have been suffered by the neighbour?  
36. [36]
    I consider that these questions are also applicable to a claim involving the obstruction of sunlight. I answer these questions, in light of the evidence, as follows:

    1. (a)
       the nature of the interference is the obstruction of sunlight between April and October to glass doors on the lower level of the house on one side, and to windows in the upper level of the house on that side in June, and that the trees have caused the sunlight to be restricted by 80%;
    2. (b)
       there is no indication that the Applicants are abnormally sensitive to the interference;
    3. (c)
       no steps at all have been taken by the Respondent, as the tree keeper, to minimise the interference. By contrast, to date the Applicants have carried out work on the trees twice annually for 10 years at their own expense;^[34] and
    4. (d)
       the type and extent of damage suffered by the Applicants is that the house is made ‘much’ colder in the winter, necessitating increased heating costs.^[35]
37. [37]
    The evidence of Mr Inman and the Applicants indicates the interference is both substantial and ongoing, in the sense considered above, and in fact will increase if action is not taken. The more difficult question is whether the interference can be said to be ‘beyond the limits of acceptability or fairness’ and thus unreasonable. I consider that an 80% obstruction of sunlight which causes the Applicants additional heating costs satisfies that test, and the Respondent has offered no justification for that obstruction. Whilst Mr Inman indicates that the trees provide privacy for the Respondent,^[36] there is no evidence as to whether there might be a need for privacy on the part of the Respondent to a particular extent which might affect the balancing of interests between the parties.
38. [38]
    In light of the above analysis, I consider that the evidence establishes that the obstruction of sunlight in this case satisfies the requirements of section 66(2)(b)(ii) and sections 66(3)(a) and (b)(i).

Conclusion: power to make orders

39. [39]
    I conclude that the various conditions which must be met in order for the Tribunal to make orders in relation to the trees have been satisfied, or are not applicable, and the Tribunal is empowered to make orders in relation to the trees under section 66 of the Act.

Matters to be considered in making an order

40. [40]
    I turn now to consider what orders should be made.
41. [41]
    Under section 71 of the Act, the primary consideration is the safety of any person. There is no indication that the trees themselves will cause a safety issue, but that the trimming of the trees has, because of the trees’ height, increased the safety risk.^[37] It follows from that that the risk may be reduced if the height of the trees is reduced.
42. [42]
    There are many other matters to consider.
43. [43]
    First, under section 72 of the Act, a living tree should not be removed or destroyed unless the issue relating to the tree can not otherwise be satisfactorily resolved. There is no suggestion that the resolution of the obstruction requires the trees to be removed or destroyed.
44. [44]
    Other considerations are set out in section 73 of the Act.
45. [45]
    Section 73 (‘General matters to consider’) provides:

1. (1)
   QCAT must consider the following matters—

1. (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;
2. (b)
   whether carrying out work on the tree would require any consent or other authorisation under another Act and, if so, whether the consent or authorisation has been obtained;
3. (c)
   whether the tree has any historical, cultural, social or scientific value;
4. (d)
   any contribution the tree makes to the local ecosystem and to biodiversity;
5. (e)
   any contribution the tree makes to the natural landscape and the scenic value of the land or locality;
6. (f)
   any contribution the tree makes to public amenity;
7. (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;
8. (h)
   any impact the tree has on soil stability, the water table or other natural features of the land or locality;
9. (i)
   any risks associated with the tree in the event of a cyclone or other extreme weather event;
10. (j)
    the likely impact on the tree of pruning it, including the impact on the tree of maintaining it at a particular height, width or shape;
11. (k)
    the type of tree, including whether the species of tree is a pest or weed (however described) or falls under a similar category under an Act or a local law.

2. (2)
   For subsection (1)(c), the circumstances where a tree has historical, cultural, social or scientific value include where the tree—

1. (a)
   is, or is part of, Aboriginal cultural heritage under the Aboriginal Cultural Heritage Act 2003; or
2. (b)
   is, or is part of, Torres Strait Islander cultural heritage under the Torres Strait Islander Cultural Heritage Act 2003; or
3. (c)
   is, or is situated in, a Queensland heritage place under the Queensland Heritage Act 1992.

3. (3)
   For this Act, no financial value or carbon trading value may be placed on a tree.

46. [46]
    Considering section 73, I take into account the following matters:

    1. (a)
       as to the matters in section 73(1)(a), the location of the trees is close to the boundary fence and retaining wall^[38] and therefore creates an additional physical barrier between the adjoining properties which affords privacy for the Applicants and the Respondent.^[39] The trees are approximately 2.5 metres from the Applicants’ dwelling;^[40] however, Mr Inman indicates in his risk assessment that likelihood and consequence of failure would be minimal – both factors were given a score of zero, and Mr Inman reached the overall conclusion that no action was required;^[41]
    2. (b)
       as to the matter in section 73(1)(b), there is no evidence that carrying out work on the trees would require any consent or authorisation under legislation other than the Act;
    3. (c)
       as to the matter in section 73(1)(c), the trees have a social benefit in that they afford privacy to the parties; and Mr Inman has described the trees’ significance as ‘desirable,’^[42] but it is not clear in what sense that term is used;
    4. (d)
       as to the matter in section 73(1)(d), there is no expert evidence that the trees make any particular contribution to the local ecosystem or biodiversity;
    5. (e)
       as to the matters in section 73(1)(e), (f) and (g), the photographs indicate the trees do not form a significant part of the streetscape or scenic value of the land or locality, and the evidence indicates the trees appear to provide amenity only to the Respondent and Applicants in the form of privacy. It is however implicit in the Application that the Applicants value the restoration of sunlight to their property above any privacy that might be afforded by the trees. No evidence has been provided by the Respondent as to the amenity which the trees provide for his land;
    6. (f)
       as to the matters in sections 73(1)(h), there is no evidence that the trees have any impact on soil stability, the water table or other natural features of the land or locality;
    7. (g)
       as to the matters in section 73(1)(i), there is no evidence that the trees pose a material risk in the event of a cyclone or weather event – Mr Inman has given a score of zero with respect to a risk assessment of the likelihood and consequence of failure;^[43]
    8. (h)
       as to the matters in section 73(1)(j), Mr Inman has not pointed to any deleterious effect to the trees of pruning them to a height of approximately 2.5 metres; and
    9. (i)
       as to the matters in section 73(1)(k), there is no evidence that the trees are a species of pest or weed, or fall under a similar category under an Act or local law.
47. [47]
    I am also able to consider the matters set out in section 75 of the Act.
48. [48]
    Section 75 (‘Other matters to consider if unreasonable interference alleged’) provides:

If the neighbour alleges the tree has caused, or is causing, substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land, QCAT may consider—

1. (a)
   anything other than the tree that has contributed, or is contributing, to the interference; and
2. (b)
   any steps taken by the tree-keeper or the neighbour to prevent or minimise the interference; and
3. (c)
   the size of the neighbour’s land; and
4. (d)
   whether the tree existed before the neighbour acquired the land; and
5. (e)
   for interference that is an obstruction of sunlight or a view—any contribution the tree makes to the protection or revegetation of a waterway or foreshore.

49. [49]
    As to the matter in section 75(a), the evidence of Mr Inman is that there is nothing which is contributing to the interference.^[44] To the extent it could be said that the design of the house could be a contributing factor, the evidence of the Applicants, which I accept in the absence of any challenge, is that when they originally purchased the house the height of the trees caused minimal shade to the property.^[45]
50. [50]
    As to the matter in section 75(b), the evidence indicates that in the past the Applicants have taken considerable steps to minimise the interference in that the Applicants have had the trees trimmed twice annually at their own expense, in the order of $600 to $800 twice per year, for 10 years, but that this has now become a safety risk due to the trees’ height.^[46]
51. [51]
    As to the matter in section 75(c), I do not consider the size of the Applicants’ land (420 square metres^[47]) has any bearing on the matters for determination.
52. [52]
    As to the matter in section 75(d), it is conceded by the Applicants that the trees existed before the Applicants acquired the land, but they assert that the trees at that time were
    2 metres above ground level,^[48] and caused minimal shade to the property.^[49]
53. [53]
    As to the matter in section 75(e), there is no evidence that the trees make any contribution to the protection or revegetation of a waterway or foreshore.

Other matters to consider

54. [54]
    Section 70(2) of the Act indicates that the matters for consideration contemplated by Division 4 of Part 5 of Chapter 3 of the Act are not the only matters I may have regard to.
55. [55]
    I also have regard to:

    1. (a)
       Mr Inman’s comments, to the following effect:

       1. that to provide sunlight to the Applicants’ lower living areas would require the hedge [comprised of the trees] to be reduced so that it is either 2.5 metres in height from the Respondent’s ground level or reduced so that the trees are approximately 1 metre above the current fence and step up with the boundary fence and retaining wall;^[50]
       2. that the trees would have to be maintained as a hedge once a year in the late winter or early spring in order to provide the desired sunlight to the Applicants;^[51]
       3. that such work should be conducted by a suitably qualified and insured arborist;^[52] and
       4. that reducing the hedge would resolve the Applicants’ sunlight issues but would remove 50% of the Respondent’s privacy;^[53]
    2. (b)
       that the Respondent as a tree-keeper is responsible for the proper care and maintenance of the trees under section 41(1) of the Act;
    3. (c)
       that the Respondent is responsible for ensuring that the trees do not cause interference under section 52(2)(c) of the Act; and
    4. (d)
       that access to trim the trees would be required from both sides of the boundary fence.^[54]

What orders are appropriate in this case?

56. [56]
    The orders requested by the Applicants suggest that the Applicants wish to arrange for the carrying out of the necessary works, but at the Respondent’s cost. Given the failure of the Respondent to engage in the resolution of this dispute, that is understandable. However, I consider the potential penalty under section 77 of the Act for non-compliance with a requirement imposed by Tribunal’s orders will provide a sufficient incentive for the Respondent to comply with any orders made.
57. [57]
    I consider the appropriate orders with respect to the trees in this case are as follows:

    1. (a)
       that the Respondent cause the row of Lilly Pilly trees or syzygium located on the Respondent’s land (Lot 4 on SP 142273) to be trimmed so that it is 2.5 metres in height from the Respondent’s ground level (‘the maintenance work’);
    2. (b)
       that the Respondent cause the maintenance work to be carried out once a year in the late winter or early spring by a suitably qualified and insured arborist;
    3. (c)
       that the Respondent pay the costs of the maintenance work;
    4. (d)
       that the Applicants provide such reasonable access to their land (but not any dwelling on the land) to the Respondent or his agents, at reasonable times, as may be required to allow the maintenance work to be carried out as ordered above, or to allow a quotation to be provided for the maintenance work, following seven (7) days’ written notice from the Respondent to the Applicants.
58. [58]
    I note the title search provide by the Applicants indicates that the first given name of the Respondent is ‘Felice’ as opposed to ‘Felix’. Pursuant to section 64 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), I will order that the Application is amended to refer to the name of the Respondent as Felice Del Vecchio.

Orders

59. [59]
    I make the following orders:

1. The Application is amended to refer to the name of the Respondent as Felice Del Vecchio.
2. The Respondent cause the row of Lilly Pilly trees or syzygium located on the Respondent’s land (Lot 4 on SP 142273) to be trimmed so that it is 2.5 metres in height from the Respondent’s ground level (‘the maintenance work’).
3. The Respondent cause the maintenance work to be carried out once a year in the late winter or early spring by a suitably qualified and insured arborist.
4. The Respondent pay the costs of the maintenance work.
5. The Applicants provide such reasonable access to their land (but not any dwelling on the land) to the Respondent or his agents, at reasonable times, as may be required to allow the maintenance work to be carried out as ordered above, or to allow a quotation to be provided for the maintenance work, following seven (7) days’ written notice from the Respondent to the Applicants.