Winter v Simon[2024] QCAT 308

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Overview

1. [1]
   Two exceptionally large trees sit alongside a common boundary between the parties’ respective properties. Large branches have fallen from these trees causing substantial damage to the applicants’ house which cost almost $40,000 to repair. They are concerned that more will fall and that the trees are unsafe. They seek relief in this Tribunal by way of an order for removal of the trees.
2. [2]
   The respondent has taken a curious stance. He maintains the trees are safe having had them ‘lopped’ and that there is no need to cut them down.
3. [3]
   The opinion of an independent arborist appointed by this Tribunal supports the applicants’ case. It disputes the respondent’s assertion that the trees being safe. Not only is his opinion that the trees are in poor health and exhibit poor structure he considered that a progressively increasing risk of failure with potential injury to person or property exists. He recommended the trees be removed.
4. [4]
   I accepted that opinion as being correct. Thus, for the reasons I have given herein, an order was made to that effect with corresponding orders for the implementation of same.
5. [5]
   The applicants also sought relief in terms of a monetary compensation be paid to them by the respondent to cover the ‘excess’ they had to pay on their insurance claim for the repairs to their house caused by the fallen branches. During the course of the proceeding they also sought an order that the respondent pays to repair the fence on the common boundary damaged by fallen branches. As I discuss it herein, they succeed in terms of the first part of that compensation claim but not in respect of the fence. There was also the related issue of a cost the applicants incurred at the direction of this Tribunal to obtain the independent arborist’s report. As I also discuss it herein, in my opinion the respondent should compensate them for that cost. Orders were made to that effect.

Relevant Facts and Circumstances

6. [6]
   The parties are immediate neighbours in a residential area in Chapel Hill, a suburb of Brisbane. The respondent however does not reside on his property, tenants occupy it. He has a managing agent looking after the property. Two substantially large gum trees, one approximately 11 m in height and the other approximately 23 m in height, are located on the respondent’s side of the common boundary within 1 to 1.5 m thereof. The applicants’ house is also situated remarkably close to the common boundary. As such it sits within the radius of the two large trees in terms of where branches from those trees, or the trees themselves, may fall, particularly in adverse weather conditions.
7. [7]
   In December 2018, the applicants raised concerns via e-mail with the respondent’s property agent about the two trees, in particular overhanging branches and debris dropping onto the roof of their house. They asserted therein that on several occasions large branches had fallen.
8. [8]
   What then followed was a continuous exchange of e-mails between the applicants and the respondent’s property manager over the next 3.5 years up to June 2022 wherein the applicants continued to raise their concerns about the trees and the need for the respondent to deal with them.
9. [9]
   During that time, on 30 September 2021 several large branches fell on to the roof of the applicants’ house causing substantial damage that, paid via an insurance claim they made, cost almost $40,000 to repair. Yet, despite this having occurred, the respondent seemingly continued to avoid taking responsibility for the trees and have them properly dealt with.
10. [10]
    On 18 July 2022, the applicants commenced this proceeding seeking inter-alia that the trees be removed with corresponding orders to be made.
11. [11]
    On 16 September 2022, the respondent provided his response to the application. Therein he sought an order that the application be dismissed on the basis that the ‘tree’^[1] has been cut down and made safe, said to have been done in August 2022 by an arborist, a Mr Andy Schwenke of ‘Gentlemen Tree Services’ and said to be supported by a statement from Mr Schwenke.
12. [12]
    That was followed up by a submission from the respondent filed 7 December 2022 which was merely a copy of what is said to be a further statement from Mr Schwenke, on this occasion dated 7 November 2022, in which Mr Schwenke asserted that, in terms of the work performed in August 2022,

The trees have been cut back to stop overhanging branches. There is no need to cut down the trees.

13. [13]
    On 9 December 2022, this Tribunal directed that the applicants were to pay $1,000 to the Tribunal towards the cost of a tree assessor to be appointed in respect of their application. The Tribunal file provided to me shows that this was paid by them on 27 January 2023.
14. [14]
    On 17 February 2023, this Tribunal gave a direction that an appropriately qualified arborist be appointed as an assessor to conduct an inspection of the trees and to report to the Tribunal on the issues raised in this proceeding. That was done.
15. [15]
    On 17 March 2023, that arborist conducted his inspection of the trees., subsequently providing his report to the Tribunal dated 14 April 2023. Therein he reports that the health and structure of both trees is ‘poor’ with considerable ‘lopping’ of the trees having been performed but not in accordance with Australian pruning standards. His concluding recommendation was given as follows:

Tree management at this stage is not considered feasible given the current circumstances.

Removal of both trees … to ground level is recommended to mitigate probability of failure and increasing risk of harm.

…

Given the proximity to fixed targets and the compromised nature of the upper canopies, complete tree removal is the only acceptable outcome at this stage.

16. [16]
    Following the provision of that report, via directions given by this Tribunal on 11 October 2023 the parties were afforded a further opportunity to present any additional evidence and/or written submissions, with a direction being made then that until either party requested in writing by 10 November 2023 an oral hearing, the application would be determined on the papers. No such request was made.
17. [17]
    The latest evidence from the respondent is that which I referred to in paragraph [12] herein. There is nothing on the Tribunal file which records him responding to the directions of 11 October 2023. On the latest evidence that is before this Tribunal from the applicants, namely photos said to have been taken by the applicants on 29 November 2023 filed by them on 6 December 2023 in accordance with those directions, the offending two trees remain in place.
18. [18]
    It is against this background that this proceeding came before me for determination.

The Issue

19. [19]
    The applicants’ case, as it is presented in their application filed, is somewhat confused. They seek orders for not just removal or pruning of offending branches of the trees, they also seeks orders for the removal and pruning of roots of the trees without having asserted any issue arising adverse to them from the roots, as well as seeking an order for the removal of the trees.
20. [20]
    As I have read the entirety of the material before me in this proceeding, whilst there is that confusion, I proceeded on the basis that there was a primary issue to be decided, namely the question - should the two large gum trees be removed? This was the essence of the arguments and issued being raised in all of the material. For that reason I did not consider the alternative relief sought in terms of mere pruning. There was also the related issue of the compensation the applicants sought.

Relevant Law

21. [21]
    These issue fall to be decided under the provisions found in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ‘ND Act’), more particularly ‘Chapter 3 – Trees’ therein. For ease of reference, extracted here are the relevant provisions of that Act:

Part 1 Introduction

41  Overview

1.  A tree-keeper is responsible for the proper care and maintenance of the tree-keeper’s tree.

2.  Generally, this chapter provides for the following ways in which a person may deal with an issue about a tree affecting the person’s land—

1.  part 3 deals with the person’s right under the common law to take action to abate a nuisance;

2.  part 4 provides for a remedy under which the person may—

1.  give a notice to the tree-keeper asking them to remove overhanging branches; and

2.  if the work is not done, remove the branches and recover the cost from the tree-keeper;

3.  part 5 provides for the person to apply to QCAT for an order.

…

44 Action may be taken in relation to more than 1 tree

1.  To remove any doubt, it is declared that, if this chapter provides for doing a thing in relation to a tree, the thing may be done in relation to 2 or more trees.

2. …

Part 2 Interpretation

45 Meaning of tree

1.  Tree means –

1.  any woody perennial plant; or

2.  …, banana plant, palm, cactus

3.  …

46  When is land affected by a tree

Land is affected by a tree at a particular time if—

1.  any of the following applies—

1.  branches from the tree overhang the land;

2.  the tree has caused, is causing, or is likely within the next 12 months to cause—

1.  serious injury to a person on the land; or

2.  serious damage to the land or any property on the land; or

3.  substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land; and

2.  the land—

1.  adjoins the land on which the tree is situated; or

2.  …

47 When is a tree situated on land

1.  A tree is situated on land if the base of the tree trunk is, or was previously, situated wholly or mainly on the land.

2. …

48  Who is a tree-keeper

1.  The following person is the tree-keeper for a tree—

1.  if the land on which the tree is situated is a lot recorded in the freehold land register under the Land Title Act 1994—the registered owner of the lot under that Act;

2.  …

49 Who is a neighbour

1.  Each of the following entities is a neighbour in relation to a particular tree or the tree-keeper for a particular tree –

1.  if land affected by a tree is a lot recorded in the freehold land register under the Land Title Act 1994 –

1.  a registered owner of the lot under that Act; and

2.  …

50  Meaning of work

Work, on a tree, includes—

1.  cutting and removing any part of the tree (including its branches or roots); and

2.  …; and

3.  destroying the tree.

51 Meaning of destroy

Destroy, for a tree, means destroy in any way, including uproot, ringbark or cut down the tree, and includes remove the tree and its stump.

Part 3 Responsibilities, liabilities and rights

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—

1.  serious injury to a person; or

2.  serious damage to a person’s land or any property on a person’s land; or

3.  substantial, ongoing and unreasonable interference with a person’s use and enjoyment of the person’s land.

3.  ….

Part 4 Removal of overhanging branches

57 Notice for particular overhanging branches

1.  This section applies in relation to each of the overhanging branches—

1.  only if the branch extends to a point over the neighbour’s land that is at least 50cm from the common boundary; and

2.  only to the extent the branch is 2.5m or less above the ground.

2.  The neighbour may give a written notice to the tree-keeper asking the tree-keeper to cut and remove the overhanging branches.

3.  The notice must—

(a) …

Part 5 QCAT orders to resolve other issues about trees

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.

…

65  Requirements before order may be made

QCAT may make an order under section 66 if it is satisfied of the following matters—

1.  the neighbour has made a reasonable effort to reach agreement with the tree-keeper;

2.  …;

3.  to the extent the issue relates to the land being affected because branches from the tree overhang the land –

1.  the branches extend to a point over the neighbour’s land that is at least 50cm from the common boundary; and

2.  the neighbour can not properly resolve the issue using the process under part 4;

4.  …

66  Orders QCAT may make

1.  ….

2.  QCAT may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land—

1.  to prevent serious injury to any person; or

2.  to remedy, restrain or prevent—

1.  serious damage to the neighbour’s land or any property on the neighbour’s land; or

2.  substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.

…

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;

…

4.  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.  require the tree-keeper or neighbour to pay the costs associated with carrying out an order under this section;

6.  require the tree-keeper to pay compensation to a neighbour for damages to the neighbour’s land or property on the neighbour’s land;

7.  require a report by an appropriately qualified arborist.

Division 4 Matters for QCAT consideration

70  Application of div 4

1.  This division states matters for QCAT to consider in deciding an application for an order under section 66.

2.  This division does not limit the matters QCAT may consider.

71 Safety

The primary consideration is the safety of any person.

72 Removal or destruction of living tree to be avoided

A living tree should not be removed or destroyed unless the issue relating to the tree can not otherwise be satisfactorily resolved.

73  General matters to consider

1.  QCAT must consider the following matters—

1.  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;

…

1.  any risks associated with the tree in the event of a cyclone or other extreme weather event;

…

10.  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;

…

74 Other matters to consider if serious injury or damage alleged

1.  If the neighbour alleges the tree has caused, is causing, or is likely to cause serious injury to any person, or serious damage to the neighbour’s land or property on the neighbour’s land, QCAT may consider –

1.  …

2.  any steps taken by the tree-keeper or the neighbour to prevent or rectify the injury or damage or the likelihood of injury or damage.

2.  In making an order under section 66 to carry out the work that involves destroying a tree, QCAT may consider –

1.  …

2.  any steps that have been taken by the tree-keeper or the neighbour to prevent further injury or damage; and

3.  …

4.  any other matter QCAT considers relevant.

Discussion on the Evidence and Submissions before the Tribunal, and the Contest between the Parties

22. [22]
    As threshold issues, I am satisfied that for the purposes of the ND Act, the trees in issue are both ‘trees’, those trees are situated on the respondent’s land, the applicants are the neighbours, the respondent is the tree-keeper, that the applicant’s land adjoins the respondent’s land, and the applicant’s land is affected by those trees, particularly in terms of s 46(a)(ii)(B) of the Act.^[2]
23. [23]
    I am also satisfied that the requirements of s 65(a) and s 65(c) of the Act have been met. The latter is so notwithstanding that, on my reading of the extensive chronology of e-mail exchanges between the applicants and the respondent’s property manager which I referred to in paragraph [8] herein, whilst the applicants conveyed their concerns about the trees and sought an agreement with the respondent that he would take the requisite action to alleviate their concerns at no time did they provide him with a ‘Notice’ as is referred to under s 57 of the Act, namely as described in detail in subsection (3) thereof. But the provision of that notice is not mandatory. Whether to issue such a notice was a matter for the applicants’ discretion, and the requirement for same is not a precondition to the applicants having filed their application in this Tribunal by which this proceeding was commenced.
24. [24]
    On any reading of that extensive exchange of e-mails, it is abundantly clear that not only were the applicants making a reasonable effort to reach an agreement with the respondent, but it is also abundantly clear the respondent was not being co-operative and taking seriously the applicants’ concerns. This leads to the conclusion that the applicants could not properly resolve the issues using the process under Chapter 3 Part 4 of the ND Act, thus there being no utility in issuing the Notice. Many of the comments attributed to the respondent therein show this. The following are a few examples of this.
25. [25]
    In an e-mail said to have been sent by the property manager on 7 March 2019 it is said he stated:

I think any branches over a fence are the property of the neighbours and they are well within their rights to cut them down.

26. [26]
    This statement was followed up by later e-mails from the property manager which followed notification to the respondent via that manager of the substantial damage caused to the applicants’ house on 30 September 2021, wherein the following statements appear:

    1. On 27 October 2021

I have had a tree company out to inspect and assess and they have not found any trees that need urgent attention but have given my client a quote to trim trees.

2. On 10 November 2021

Please note the previous e-mail we sent to you regarding the tress assessment that was done.

The owner has said that you are welcome to trim what is overhanging and welcome to access his property to do so.

27. [27]
    What then followed was a series of further e-mail exchanges wherein the applicants were effectively pleading for action to be taken by the respondent. It was then on 24 February 2022 that this statement was made in an e-mail from the property manager, said therein to have been given by the respondent:

If she can’t reach the overhanging branches, she is welcome to hire someone to cut the overhanging branches. If they need access to the property, we would of course grant that.

28. [28]
    The saga then continued for another three months wherein the property manager informed the applicants via e-mail that the respondent had been obtaining quotes to have work performed, the last comment being made by the property manager in an e-mail dated 17 May 2022 in which the following statement was made, I infer it being  a reference to the respondent:

He just replied he is looking at more quotes.

29. [29]
    In my opinion this series of e-mails and the responses given by the property manager, presumably based on instructions she was receiving from the respondent, and the apparent stance the respondent was taking, demonstrates that the respondent evidently either had no knowledge of, or simply chose to ignore, s 52 of the ND Act. That being so, the applicants’ choice not to issue a notice is not something that could said to have been an inappropriate action.
30. [30]
    For these reasons there is no statutory prohibition to the applicants pursuing the relief they seek in this proceeding.

The applicants’ complaint

31. [31]
    In the section of these reasons entitled ‘Relevant Facts and Circumstances’ I have identified the essence of the applicants’ complaint. I need not repeat that here. It suffices to simply observe that these facts and circumstances clearly show the extent to which the applicants have been affected by these trees, and will continued to be affected by them should substantial remedial action not be taken.
32. [32]
    The only issue that could not be resolved on the applicants’ material is the nature and extent of that remedial action. However the independent arborist’s report, as ordered by this Tribunal to be provided in the manner contemplated by s 66(5)(g) of the ND Act, addresses that issue. I turn to that report later in these reasons.
33. [33]
    When read together, the applicants’ material and the arborist’s report make out the applicants’ case that the trees should be removed.

The respondent’s case in response

34. [34]
    Seemingly consistent with the apparent ignorance the respondent held of his obligations as a tree-keeper under the ND Act, his response to the case against him further demonstrated his lack of appreciation for the issues. Curiously, and somewhat surprisingly, he made this statement in his response as the reason he did not agree with the issues raised in the applicant’s application:

Tree has been cut down and made safe as per written statement from arborist in August.

35. [35]
    Later therein he also made these statements in support of the order he sought for dismissal of the applicants’ application:

The work has been completed and the trees are now safe.

Asking me to pay for their insurance is not fair and reasonable – this was an act of God and what insurance is for.

36. [36]
    It is entirely unclear which ‘tree’ he was referring to in the first statement, given that neither of the offending trees had been cut down. Moreover the statement from the arborist to which he referred was the statement by Mr Schenke to which I referred in paragraph [11] herein.
37. [37]
    But that statement is inconsistent with the response given by the respondent. In his letter, addressed to the respondent’s property manager, Mr Schwenke stated:

… the owner of the property gave my company permission to go ahead and remove the dangerous branches from the 2 gum trees on his property overhanging the neighbours.

The job was done professionally and safe on the day. The overhanging branches towards the neighbours was (sic) cut back to make safe and not overhang the neighbour’s property.

38. [38]
    As I noted it earlier in paragraph [12] herein, the respondent seemingly sought to justify his response with a further statement attributed to Mr Schwenke that the trees had been cut back to stop overhanging branches and that there was no need to cut down the trees. Once again an inconsistency existed in the respondent’s material given his earlier statement the ‘tree’ had been cut down.
39. [39]
    As I discuss under the next heading, the independent arborist’s report dispels the statements by Mr Schwenke as being accurate, and in turn the respondent’s case. In all respects, the respondent’s response is simply without substance. I do not accept any of it.

The independent arborist’s report

40. [40]
    At paragraph [14] herein, I referred briefly to the report of the independent arborist appointed by this Tribunal. In my opinion that sums up the circumstances with precision. However for completeness I should also observe that the arborist identified the two tree in issue as:

    1. Tree No.1 – species ‘Lophstemon Confertus’, commonly known as ‘Brushbox’; and
    2. Tree No.2 – species ‘Corymbia maculata’ commonly known as ‘Spotted Gum’.
41. [41]
    In addition, given the matters for this Tribunal’s consideration under s 70 to s 74 of the ND Act, the following is as I have extracted it from the report. Whist these particular comments were made in terms of ‘Tree No. 1’, the arborist stated in his report that for ‘Tree No 2’ that same hazards apply whilst noting that much of the crown in that tree had been retained on the northern side of that tree but thus leaving that tree unbalanced.

At the time of inspection, the subject tree had been considerably ‘lopped’, not in accordance with Australian pruning standards. Lopping cuts were made arbitrarily and intermodally on any limbs that had previously crossed the dividing fence.

An abundance of epicormic growth has proliferated throughout the upper canopy as the subject tree attempts to recover photosynthetic capability from the loss of the foliar crown.

…

These shoots can and do grow rapidly, often times gaining similar proportions to the parent branch that was removed in a few short years. Without the necessary tissue anchoring them to the stem, they have a far greater propensity for failure.

Additionally columnar decay often occurs at the site of the lopping wounds, weakening the parent stems and undermining the structural integrity of the regions that new growth has formed upon.

Whilst it is unlikely that injury or damage to person or property will occur within the next 12 months due to the smaller size of the new growth, the longer it is permitted to increase in size, the greater probability of failure becomes.

…

The cost of the management of the canopy of these trees to re-establish good canopy health and structure whilst mitigating inherent risks created, far exceeds current valuation.

It would also need to be accepted by both parties that increased risk of failure of component parts is intrinsic to the newly created form. …

42. [42]
    This report indicates that the work performed by Mr Schwenke’s company for the respondent was entirely inadequate, not only to deal with the applicants’ complaint, but in ensuring that the trees were left in a healthy and safe condition.
43. [43]
    As I noted it in paragraph [16] herein, the parties had the opportunity to present any additional evidence and/or written submissions following the provision of this report. It was at that time they could have addressed that last paragraph about the risk associated with effectively maintaining the trees. None of the parties made any submissions in that regard. It would also have been open for the respondent to request an oral hearing so as he may challenge the arborist and the opinion expressed in his report given the statements by Mr Schwenke that he was relying on in support of his case in response. He did not do this either. Thus, it seems to me open for an inference to be drawn, which I did, that the respondent does not challenge the accuracy of the opinions expressed by the independent arborist.
44. [44]
    This report carries substantial weight. Not only is it concise in its content it addresses the issues succinctly and directly. I am persuaded by it. I accept it as being the answer to the dilemma the applicants faced and were endeavouring, for more than three years, to have the respondent recognize, accept, and act on.

The Division 4 Matters

45. [45]
    There are a number of matters for this Tribunal to consider in deciding an application for an order under s 66 of the ND Act. These are covered as relevant to this proceeding by s 71 to s 73 as I have extracted those provisions earlier in these reasons.
46. [46]
    Having read and considered the material the parties filed in this proceeding, and the independent arborist’s report, in particular those parts of it to which I have already referred, I make these observations in terms of the application of those provisions:

    1. There is a considerable risk of safety, in terms of significant injury to persons or damage to property, should significant remedial action not be taken in respect of the two trees;
    2. The two trees are not only remarkably close to the common boundary but they are also close to the applicants’ house given its proximity to the boundary, they are also very tall and as reported by the arborist in poor health and of poor structure, thus making them a risk in the present condition and position;
    3. As has already been demonstrated by past events, that risk is increased in extreme weather events;
    4. Whilst a program of management of the trees could be implemented to re-establish the health and structure of the trees, there would always remain a risk of failure of component parts;
    5. The respondent has already demonstrated, by his inaction and his responses to the applicants’ complaints and efforts to have him act and meet his responsibilities as the tree-keeper, that it is at the very least doubtful, if not certain, that he would not adequately maintain the trees such that the risk would not only remain but would increase over time;
    6. Whilst taking steps to avoid the removal of the trees would be preferred, in this instance given the opinions expressed by the independent arborist, it seems to me that the issues cannot be satisfactorily resolved without removal of the trees.
    7. Given the size of these trees, their current poor condition, their proximity to the common boundary and thus in turn the applicants’ house, the associated risk and the already demonstrated manifestation of that risk as substantial damage to the applicants’ house, in all respects in this instance it must be the case that the trees are removed.
47. [47]
    For these reasons, an order was made for removal of the trees.

The applicants’ claim for compensation

48. [48]
    There are two issues that arise here, each which can be dealt with briefly in turn. But before doing so I make this short observation. Under s 66(5)(f) of the ND Act, this Tribunal may order the tree-keeper to pay compensation to a neighbour for damages suffered to the land or property on the land. What follows here is in terms of the application of that provision.

The claim for the ‘Excess’

49. [49]
    The applicant’s claim $500 as such damage, it being the excess they were required to pay as part of the insurance claim they made following the substantial damage to their house in September 2021. The respondent asserts it would be ‘unfair’ for him to be required to pay for this because of an Act of God and thus the reason the applicants held insurance.
50. [50]
    I do not agree with the respondent. Substantial and significant physical damage was suffered to the applicants’ house as a result of large branches from his trees falling in September 2021. He was on notice since December 2018 of the risk of same and the applicants’ concerns, yet he failed to act promptly to avoid it. It may also be observed that he continued to fail to act promptly and adequately even after the event in September 2021. The excess payment the applicants were required to meet is a monetary damage they have suffered as a direct result of an event which stems from the respondent’s trees and his failure to have acted promptly. He should compensate them for it.^[3]
51. [51]
    For this reason, an order was made for the respondent to pay the applicants $500 in damages.

The claim for the fence

52. [52]
    Whilst not raised in their application when made, during the course of the proceeding by way of a further submission they filed 20 September 2022 the applicants requested an order that the respondent pay for the cost of repair of the common fence, said to have occurred during the event on 30 September 2021 and also during the removal of the branches by the respondent’s contractor on 4 August 2022.
53. [53]
    Notwithstanding the asserted fact of damage to the fence having occurred in September 2021, the applicants did not raise this in their application when it was made. They could have. Either they forgot about it, or simply did not consider it an issue to raise, and only thought to raise it when further damage is said to have occurred during removal of the branches in August.
54. [54]
    The respondent says that the fence is 40 years old and should be left to be dealt with as a common fence in the ordinary course of business dealing with such an issue, namely that the cost of replacement of the fence being met 50/50 between the neighbours.
55. [55]
    Save only for some photos of the asserted damage to the fence, as contained in the applicants’ submission of 20 September 2022, there is no evidence before this Tribunal as to condition of the fence and the extent to which it has aged since its construction and the need for repair / replacement, and thus in turn the extent to which it may properly be said it was ‘damaged’ as a result of a fallen branch. In the absence of that evidence I was unable to make any finding about the issues raised by either the applicants or the respondent. However it seemed to me that, in the absence of the applicants having first raised the issue in their application as originally made, there could be some merit to the respondent’s argument.
56. [56]
    Moreover, the alleged subsequent damage was, as asserted, not caused by branches falling from the trees naturally or as a result of extreme weather, but as a result of actions being undertaken by a contractor engaged by the respondent. If anything, it is a claim for damages to be pressed by way of a civil cause of action, such which is not something that may be pressed in a tree dispute under the ND Act.^[4] Thus it falls outside the ambit of the ‘tree dispute’ as framed in this proceeding and the extent to which the Tribunal is empowered to order compensation under s 66 of the ND Act. At best, in terms of the ND Act, it is a matter for the applicants to start by way of a ‘fence dispute’ under Chapter 2 of the Act should they not be able to reach an agreement with the respondent in terms of repair / replacement of the dividing fence.
57. [57]
    For this reason, no order has been made for compensation in terms of the fence.

The Application Fee / The contribution to the independent arborist’s report

58. [58]
    There are two remaining issues that in my opinion arise in this proceeding, that for completeness it seemed to me I should deal with. They are both an issue of costs incurred by the applicants in the conduct of the proceeding. The issue is whether or not they should bear those costs, or should the respondent be required to bear them given the outcome of the proceeding.
59. [59]
    The first is the fee the applicants paid to this Tribunal in filing their Application for a Tree Dispute under the ND Act. That fee was $307.00. The second is the cost of $1,000 the applicants have incurred by order of this Tribunal in terms of obtaining the independent arborist’s report. The applicants did not expressly seek an order for payment by the respondent of either of these costs, nor have they raised these issues in any submissions. Nor has the respondent made any submissions about them. Notwithstanding those facts, it seemed to me that they still arose for consideration in the proceeding given relevant provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), and the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’) which I discuss in the following paragraphs herein.
60. [60]
    But before doing so it also seemed to me necessary that I make this observation on a fundamental procedure for the conduct of a proceeding in this Tribunal, that being the requirement for this Tribunal to observe the rules of natural justice.^[5]
61. [61]
    There is in my opinion an issue of ‘limitation of scope’ to that obligation in comparison to the scope of the common law obligation of procedural fairness / natural justice. Such an issue arose briefly before, but was not needed to be dealt with by, the Appeal Tribunal in Rice v Livingstone.^[6] However, in commenting on it, the Appeal Tribunal referred to the decision of the NSW Court of Appeal in Minister for Local Government v South Sydney CC wherein Spigleman CJ expressed this observation as to the issue of ‘scope’ of natural justice:^[7]

The common law attaches the principles of natural justice to the exercise of public power, relevantly a statutory power. …. As Kioa v West and Annetts v McCann, as well as many other authorities make clear, the determination of the existence, scope and content of the duty to afford procedural fairness requires careful consideration of the statutory power.

62. [62]
    As I read the provisions of s 28 of the QCAT Act, the requirement to observe the rules of natural justice as provided for in subsection (3)(a) therein is tempered by the provisions of subsection (3)(c) that the Tribunal may inform itself in any way it considers appropriate, together with the requirement under subsection (3)(d) for the Tribunal to act with as little formality and technicality and with as much speed as the requirements of the QCAT Act or any enabling Act or the rules and a proper consideration of the matters before the Tribunal permit. Noting that degree of temperance and so limitation, it is then necessary to turn to the issue or issues under consideration in determining the extent to which natural justice must be afforded parties in a proceeding.
63. [63]
    Here the issues are narrow, and in my opinion not controversial. As such it is appropriate to temper and reduce the scope of natural justice that must be afforded when the narrow and non-controversial issues can be efficiently dealt with as part of the proceeding.
64. [64]
    The narrow issue here was whether the applicants should be entitled to have the costs they have incurred in conducting this proceeding, but only to the extent they were out of pocket expenses that would not otherwise have been incurred. As I saw it, these costs were incurred when they found themselves in a situation where the respondent effectively gave them no choice but to commence this proceeding, and then in turn the direction given by this Tribunal for them to incur costs in obtaining the independent arborist’s report, such which should not have been required had the respondent properly understood and complied with his obligations as the tree-keeper. That question must then in turn be considered in terms of whether it should simply be dealt with in this proceeding and in my decision made on the papers, or should it be ignored given neither party raised either of the issues, or whether the parties be afforded the opportunity to be heard on them before any decision is made.
65. [65]
    When deliberating those choices, it seemed to me that it would be to act contrary to the requirements of s 28(3)(d) to either ignore the issues, or to leave them to be the subject of submissions by the parties which would only serve to extend the duration of this proceeding. They were live issues in the proceeding which, as I discuss in the following paragraphs, arose either on the material filed or the application of relevant provisions of the QCAT Rules, the ND Act, and/or the QCAT Act. As such, it was my opinion that they should be dealt with as part of the process of deciding the application before the Tribunal without further direction or delay.
66. [66]
    On that basis, I turned firstly to the application fee.
67. [67]
    Under s 85 of the QCAT Rules, except in circumstances which do not apply here, when the Tribunal makes an order against a respondent, as I have done in this proceeding, the Tribunal has a discretion to order the respondent to pay to the applicant the filing fee incurred in commencing the proceeding. Given the outcome of the proceeding and my findings / conclusions on the respondent’s case and my observations on his conduct leading up to and during the proceeding, I formed the view that I should exercise that discretion in the applicants’ favour. I did that and an order for payment was made accordingly.
68. [68]
    I then turned to the issue of the $1,000 the applicants paid in terms of the independent arborist’s report.
69. [69]
    In their application, in answer to the question posed in Part F of the application document, the applicants sought an order that the respondent pays the costs of conducting the Tribunal’s orders, ie an order contemplated by s 66(5)(e) of the ND Act. Even though on one reading of s 66 of the ND Act and the manner in which the question in Part F is expressed it could be said that the order contemplated by this subsection is limited to the costs arising under or out of any orders made under subsections s 66(5)(a) to (d) therein, in my opinion, notwithstanding the structure of the section, it is a cost which falls within the ambit of s 66(5)(e), it being a cost associated with carrying out an order made under s 66.^[8] That being so, given the outcome of this proceeding and the extent to which it effectively turned on the content of that report, and the extent to which that report dispelled the accuracy of the statements made by Mr Schwenke that the respondent relied on in support of his response to the application and his submission that it should be dismissed, it seemed to me that this is also a cost the respondent should meet. For this reason, an order was made to that effect.
70. [70]
    Finally, before leaving this issue, it seemed to me I should also make this further observation. Whilst no express claim for costs was made by the applicants, should one have been made it would have been a cost which would have fallen within the ambit of such relief sought. Whilst s 100 of the QCAT Act provides that parties to a proceeding bear their own costs unless the QCAT Act or an enabling Act provides otherwise,^[9] s 102 of the QCAT Act permits the Tribunal to make a costs order where the ‘interests of justice’ require it. In my opinion, the dilatory approach and the apparent constant denial or ignorance of his obligations as a tree-keeper demonstrated by the respondent, as I discussed it earlier herein, and the outcome of this proceeding which as I have said effectively turned on the content of the independent arborist’s report, in my opinion the cost of $1,000 would be properly treated as a cost of the proceeding incurred by the applicants which the respondent should, in the interest of justice, be ordered to pay.

Conclusion

71. [71]
    On reading and considering the material as filed by the parties in this proceeding, and in particular that identified and expressed by the independent arborist, I was satisfied that the applicants had a valid complaint. The two trees on the respondent’s land are, in the state as described in the material, dangerous if left as is. In all respects these trees should be removed.
72. [72]
    Accordingly, orders were made to that effect with corresponding orders made.