Lago v Kellock[2024] QCAT 398

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The applicant, Mr Walter Lago and the respondent, Ms Emma Kellock, are neighbours sharing a dividing fence between their properties. Mr Lago lodged an application in this Tribunal on 8 April 2022 claiming that:

   1. A Poinciana tree on Ms Kellock’s property (‘the tree’) is causing substantial ongoing and unreasonable interference to Mr Lago’s use and enjoyment of this land by:
      1. (i)
         Debris and tree litter falling into Mr Lago’s entertainment area, pool and storm water tanks on a regular basis.
      1. (ii)
         The debris and tree litter causes blockages to Mr Lago’s drains.
      1. (iii)
         As a result of the unreasonable interference he is required to air blow debris and tree litter away from the pool areas on a daily basis and the pool skimmer basket needs to be emptied every 2-3 days and the pool filter is required to run longer due to the debris.
   2. The tree overhangs his yard and his pool.
   3. The tree has not caused any injury or serious damage but is likely to cause serious injury within the next 12 month as branches from the tree have previously fallen and he is aware that poor pruning/trimming can lead to dead branches falling from trees and if the trimming of the tree continues in the current manner the risk of branches falling will continue.
   4. Mr Lago has attempted to take steps to prevent damage and interference by trimming the tree from his side of the fence on a number of occasions.
   5. Mr Lago attempted to resolve the dispute with Ms Kellock on numerous occasions but was unsuccessful.

2. [2]
   Mr Lago originally sought the following orders:

   1. To remove or prune the branches of the tree.
   2. That a person can enter Ms Kellock’s land to carry out any order.
   3. That Ms Kellock pay for the costs of any tree works.
   4. That there be yearly trimming.
   5. Ms Kellock pay Mr Lago $1,500 in compensation for Mr Lago trimming the tree and the cleaning of the tree debris which falls into their yard.
3. [3]
   Ms Kellock lodged a response with the Tribunal on 28 June 2022 stating:

   1. Mr Lago’s house is built closer to the common boundary than the building code requires which contributes to the issue with the tree, given the tree was already present when Mr Lago chose to build his house.
   2. The tree is at least 25 years old and was in place well before Mr Lago decided to build the pool next to the tree.
   3. No branches overhang more than 50cm.
   4. Normal pool maintenance requires a skimmer basket to be regularly checked and emptied weekly. Ms Kellock has a pool, which has more of the tree overhanging it, and her filter runs for the normal six hours, so Mr Lago’s claim they have to run their pump for more than six hours is unreasonable.
   5. Debris falling from the tree is rare but has increased since Mr Lago has been applying the law of abatement and over-pruning the tree.
   6. The tree has not caused any serious injury or damage and is not likely to cause serious injury or damage to property within 12 months, as the tree has been standing for more than 25 years with no issue.
   7. Ms Kellock took over as the sole occupant of the property in November 2020 and since that time has always maintained the tree to the boundary and has advised Mr Lago that it was her intention to maintain the tree. Mr Lago has been obstructive in this process.
   8. Mr Lago did not try and appropriately resolve the matter with her prior to proceeding to QCAT and refused to have a discussion with her, preferring to use a lawyer and require email communication only.
   9. There is a vegetation protection order in progress due to the importance of the tree to the local wildlife, given it houses native birds, snakes and possums and provides a rich feeding ground for these animals.
   10. The tree contributes to the local ecosystem and biodiversity, the nature landscape and scenic value of the land, and the amenity of the land on which it is situated through the providing of privacy, landscaping, and garden design. It also provides soil stability as the block is on a sloping landscape and prone to erosion with large down pour.
   11. Mr Lago’s cutting of the tree and over-pruning on a yearly basis has caused excessive shedding and issues with the tree, so the better course is to allow her to maintain the tree as she is willing to do.
   12. Ms Kellock can maintain the tree herself and the cost of an arborist would cause significant financial stress.
   13. The Tribunal should refuse to make the orders sought by Mr Lago and should dismiss the application for lack of particulars and evidence.

Statutory framework

4. [4]
   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]
5. [5]
   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 tree involved in this application is undeniably a tree as provided for in the Act and this is confirmed in the tree assessment report.^[3]
6. [6]
   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 Mr Lago and Ms Kellock are neighbours who reside on adjoining land, I am satisfied that these properties meet the definition of “land” as required under the legislation.
7. [7]
   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] 
8. [8]
   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 subject tree is situated on the land belonging to Ms Kellock, and therefore she is the tree-keeper for the tree subject to the application.
9. [9]
   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]
10. [10]
    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]
11. [11]
    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]  

Tree Assessor’s Report

12. [12]
    On 8 May 2023 the Tribunal appointed an appropriately qualified arborist as an assessor to carry out an inspection of the tree and provide a report to the Tribunal on the issues raised in the application.
13. [13]
    On 1 June 2023 Mr Steven Richards, the tree assessor, visited the properties. He subsequently prepared a report for the Tribunal dated 8 June 2023 (the ‘tree assessor’s report’). Relevantly, the report states:

    1. The subject tree is a mature Poinciana tree which is wholly located within Ms Kellock’s property and is positioned 2 metres to the east of the dividing fence.
    2. The subject tree is in good health with fair tree structure and is approximately 50 years old and was mature and established at the time Mr Lago constructed the pool beneath its canopy in 2016. 
    3. At the time of inspection, the subject tree appeared to be well maintained for encroachment purposes. All limbs were cut back to at least 500mm on Ms Kellock’s side of the dividing fence. Pruning cuts observed were not in accordance with AS4373-2007 Pruning of Amenity Trees (AS4373) which was evidenced by stub cuts and profusions of epicormic growth from latent buds at the cut sites.
    4. The subject tree has a natural, umbrella shaped canopy morphology. Genetically, it will always attempt to extend into this shape. Lopping cuts made on the western side of the tree are producing epicormic shoots which are weakly attached to the outer layers of incremental growth. They will continue to grow laterally in the same direction as the parent limb.
    5. The subject tree is a dominant feature in the landscape and is a valuable amenity asset. Removing a significant part of its canopy in such a short period of time due to the addition of infrastructure in its zone of influence will have long-term implications to its useful life expectancy.
    6. The subject tree requires remediation pruning to rectify the internodal ‘lopping’ cuts made which create the profusions of epicormic growth. The type of pruning should concentrate on natural target pruning for directional manipulation. This would involve identifying secondary and tertiary scaffold branches running parallel and upright to the dividing fence and terminating lateral extension to these nodes.
    7. Removing and shortening the epicormic growth is akin to hedging and will be an ongoing process. Pruning should be conducted only once per year at some time in the winter months (i.e. mid July). Initially, lateral extension will continue across the dividing fence during that 12-month period however as the pruning strategy takes effect, directional growth should begin to assume the terminal role.
    8. Corrective pruning should mitigate the burden of intervals that Ms Kellock has been carrying as well as benefit the long-term health of the tree. Mr Lago must be flexible with a certain amount of encroachment so the arboricultural practitioners can monitor growth and branch scaffolding and make informed decisions about the pruning dose.
    9. It was recommended that work be carried out on by a Min. AQF level 3 arborist in accordance with AS 4373-2007 Pruning of Amenity Trees.

Material filed in proceedings

14. [14]
    Mr Lago has filed four statements on 13 March 2023, 28 July 2023 and 14 August 2023 and 9 February 2024. Mr Lago has also filed an outline of argument on 9 February 2024.
15. [15]
    In brief Mr Lago’s statements contained the following information:

    1. Statement on 13 March 2023 confirms payment towards the tree assessor cost and their requests to Ms Kellock for trimming of the tree from 22 December 2022 and 18 March 2023. Mr Lago states he has not observed the tree to be trimmed.
    2. Statement on 28 July 2023 confirms Mr Lago disputes that the subject tree was mature at the time they constructed the pool on his property and stated the tree was nowhere near as tall and dense as it is now. Mr Lago stated he had a reasonable expectation that Ms Kellock would prune the tree and had he known how high it would grow and that Ms Kellock would not prune the tree, he may have reconsidered the placement of his pool.
    3. Statement of 14 August 2023 confirms that the tree canopy was not protruding over the fence line when the pool was constructed in 2016. It now protrudes over the fence line a considerable amount which Mr Lago believes is a result of Ms Kellock failing to regularly prune the tree.
    4. Statement on 9 February 2024 confirms the reasonable efforts to reach an agreement with Ms Kellock and the previous trimming Mr Lago has conducted on the tree. The statement also notes that a copy of the application had been given to Brisbane City Council and they were interested in being involved (although the exhibits attached did not relate to this). The statement also provided Mr Lago’s evidence as to the issues with the tree causing substantial ongoing and unreasonable interference with his use and causing serious damage.
16. [16]
    Mr Lago’s submissions set out the jurisdiction issues, the pre-requisites of the Act, the reasons the orders ought to be made and the proposed orders sought. The orders sought by Mr Lago are that Ms Kellock must prune the tree and remove overhanging branches within 60 days and then yearly using a minimum level 3 arborist at her cost, and should she fail to comply, he can enter Ms Kellock’s property to conduct the work and recover the costs from Ms Kellock.
17. [17]
    Despite directions for Ms Kellock to file any further evidence and written submission by 8 March 2024, no material was received. The only material received from Ms Kellock in addition to the response document was a brief email on 5 April 2023, reiterating Ms Kellock’s intention to maintain the tree herself; disputing that Mr Lago’s request to trim the tree is reasonable; and confirming she had made payment towards the tree assessor.
18. [18]
    On 15 December 2023 directions were issued that if Ms Kellock does not request an oral hearing in writing by 8 March 2024, the matter will be decided on the papers without an oral hearing and based on the documents forming the Tribunal record. As no response was received from Ms Kellock, this is that decision.

Findings of the Tribunal

19. [19]
    All material filed has been considered by the Tribunal. 
20. [20]
    The Tribunal is satisfied of the interpretation and jurisdictional issues in sections 45 to 49 and s 61 of the Act and finds that this tree is within the definition under sections 4 and 5 of the Act, Mr Lago and Ms Kellock are the registered owners and appropriate parties, and the tree is on Ms Kellock’s property making Ms Kellock the tree-keeper.
21. [21]
    As the application alleges that the land is affected by the tree due to the tree 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]
22. [22]
    In relation to the requirements before an order can be made pursuant to s 65, I am satisfied Mr Lago has made a reasonable effort to reach agreement with both the previous co-owner of the property and Ms Kellock and it is not suggested there is any relevant local law, local government scheme, or local government administrative process to resolve the issues.
23. [23]
    Mr Lago cannot resolve the issues under Part 4 of the Act due to the height of the tree and Mr Lago has given the copies of the application to Ms Kellock as required under s 63 of the Act.
24. [24]
    Given Mr Lago has alleged that the tree is likely to cause serious damage or serious injury to his property within 12 months and that the tree is 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.

Overhanging branches

25. [25]
    Mr Lago states that there are branches from the tree overhang into his property more than 50cm. This is disputed by Ms Kellock.
26. [26]
    The photos provided by Mr Lago are not dated and given the angles they are taken from it is difficult to assess the extent to which the branches overhang, but they do appear to indicate that there have been branches that have overhung the boundary in the past. Ms Kellock does not appear to dispute that in the past this may have occurred but states that she has been the sole occupier since November 2020 and has maintained the tree branches since that date to ensure that they do not overhang.
27. [27]
    At the time of the inspection for the tree assessor’s report in June 2023 the tree assessor noted that the tree appeared to be well maintained for encroachment purposes. All limbs were cut back to at least 500mm on Ms Kellock’s side of the dividing fence and the subject tree was wholly located within Ms Kellock’s property.^[22]
28. [28]
    Ms Kellock has stated she intends to maintain the tree to ensure branches do not overhang and Mr Lago has not provided any clear photographs of the tree after June 2023 to demonstrate that it is now overhanging the boundary. The only statement filed since June 2023 is the one dated February 2024. The only photographs provided in that statement are from a tree lopping quote in 2022 and photographs of the wider back yard, with limited view of the subject tree to demonstrate damage alleged to be caused by the tree.
29. [29]
    Accordingly the Tribunal cannot be satisfied on the balance of probabilities, based on the evidence provided by the applicant Mr Lago, that branches from the subject tree currently overhang into Mr Lago’s land by more than 50cm.

Substantial, ongoing and unreasonable interference with Mr Lago’s use and enjoyment of the land

30. [30]
    Mr Lago asserts that the subject tree causes substantial, ongoing and unreasonable interference due to the encroachment of the branches onto his property creating a nuisance and the leaves that fall onto his property are excess of what is ordinary and reasonable. Mr Lago’s concerns are:^[23]

    1. Debris and tree litter fall into Mr Lago’s entertainment area, pool and storm water tanks on a regular basis.
    2. Debris and tree litter cause blockages to Mr Lago’s drains.
    3. Seed pods and orange flowers drop from the tree daily during summer.
    4. Mr Lago is required to air-blow debris and tree litter away from the pool area on a daily basis.
    5. The pool skimmer basket needs to be emptied every two to three days.
    6. The pool filter runs for up to 10 hours per day whereas it would ordinarily only be required to run four hours given the location of the pool is shaded and it does not lose a lot of chlorine to the sun. Mr Lago has done this for the last five years to try and capture all the leaf litter before it sinks to the bottom of the pool (which requires further scooping and cleaning with a pool cleaner).
    7. The tree’s canopy blocks sunlight into the pool area on Mr Lago’s property during all but two months of the year.
    8. Spiders and vermin can access structures on Mr Lago’s property via the tree resulting in an unusually large number of nests and spider webs being established in gutters.
    9. Mr Lago is constantly on alert regarding the debris and litter in his yard. This has been ongoing since 2015 and causes him undue stress.
31. [31]
    What constitutes substantial, ongoing, and unreasonable interference has been considered by the Tribunal on many occasions. In Belcher v Sullivan,^[24] 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.

32. [32]
    The presence of leaf litter and other small debris will generally not be sufficient to establish substantial, ongoing, and unreasonable interference with Mr Lago’s use and enjoyment of the land.^[25] Maintenance of Mr Lago’s property is his responsibility.
33. [33]
    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.
34. [34]
    Mr Lago has also raised concerns about blocking sunlight. The Tribunal can only make orders in relation to a substantial, ongoing and unreasonable interference including the severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land. As Mr Lago is only raising concerns about obstruction of sunlight on the pool, it is not relevant to these proceedings as it is not an issue upon which the Tribunal can make orders.
35. [35]
    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 and excessive leaf litter and in fact states it should be expected.
36. [36]
    The Tribunal accepts that there could be some interference with Mr Lago’s use and enjoyment of the land arising out of plant matter dropping onto their property. However, there was insufficient evidence provided by Mr Lago to evidence the leaf litter is ongoing, substantial and unreasonable.
37. [37]
    Mr Lago has not provided any evidence, other than his own statement, to evidence the allegations of substantial, ongoing and unreasonable interference. Mr Lago raised concerns about the leaves blocking drains and falling in water tanks but has not provided any evidence from any third party to substantiate any damage or impact on the drains or water tank. Mr Lago alleges that an unusually large number of nests and spider webs occur in the gutter from spiders and vermin but provided no evidence from any pest inspector. Mr Lago has also provided no independent evidence to assert his allegations of the impact on the pool.
38. [38]
    Accordingly, the Tribunal is not satisfied that the leaf litter or any overhanging branches on Mr Lago’s land from Ms Kellock’s tree are causing or are likely within the next 12 months to cause substantial, ongoing, and unreasonable interference with Mr Lago’s use and enjoyment of their land.

Serious Injury and Damage.

39. [39]
    The application does not allege the tree has caused serious damage or serious injury but alleges that it is likely to cause serious injury within 12 months. The basis of this is Mr Lago’s concern for the safety of visitors and their children as branches have previously fallen from the tree and he is worried that small children may be injured while swimming in the pool. He also points out that poor pruning/trimming can lead to dead branches and if the trimming of the tree continues in the current matter, he expects the risk of branches falling will continue.   
40. [40]
    In the statement from 9 February 2024 Mr Lago alleges that the tree has caused damage and would poses a serious risk to property and people in the event of a cyclone or extreme weather event. Mr Lago asserts that on 26 December 2023, a severe storm came through Manly West. During the storm, water came down the inside wall of the gazebo located near the pool. The gutter on the outside of the gazebo is directly affected by the constant leaf litter from the tree and was blocked and caused water to overflow. The gutter had only been cleaned out the previous day. The water leak resulted in some damage to electrical equipment.^[26]
41. [41]
    In support of the alleged damage caused by the subject tree, Mr Lago provided an undated photograph of a room with a water stain on the wall and two photographs of the backyard with some leaf litter. It is noted that there are a number of trees which surround Mr Lago’s back yard, so it is unknown which of the leaf litter is from the subject tree and which is from other trees.
42. [42]
    Mr Lago has provided no independent evidence from any expert of the damage caused to the gazebo to demonstrate that it was caused by blocked gutters and that any blockage was directly caused by leaf litter from the subject tree and not any other tree surrounding Mr Lago’s property. While there is allegation of damage to electrical equipment, Mr Lago did not evidence what this was to assist in determining whether there was any serious damage.
43. [43]
    This is Mr Lago’s application, and it is his responsibility to provide evidence to support the application. The requisite standard of proof is the balance of probabilities, albeit to a sliding scale. According to Justice Dixon in Briginshaw v Briginshaw^[27] “reasonable satisfaction” should not be provided by inexact proofs, indefinite testimony, or indirect references.
44. [44]
    Accordingly the Tribunal is not satisfied on the evidence that the tree has caused any serious damage.
45. [45]
    In terms of the risk of serious damage or serious injury within the next 12 months, while it is understandable that Mr Lago 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.

46. [46]
    What is of relevance in determining whether it is likely that the tree will cause serious injury or serious damage within the next 12 months is Mr Steven Richards’ advice in the tree assessor’s report, about the impact of the pruning/lopping conducted by Mr Lago and Ms Kellock on the health of the tree. Mr Richards notes that past pruning was not in accordance with the Australian standards which was evidenced by stub cuts and profusions of epicormic growth from latent buds at the cut sites. The lopping cuts on the western side of the tree were producing epicormic shoots which are weakly attached to the outer layers of incremental growth.^[28]
47. [47]
    Mr Richards notes that the pruning conducted to give clearance over the pool area and reduced the encroachment on Mr Lago’s property has created large, open internodal wounds which cannot be compartmentalised and occlude. Creating large wounds on mature trees is problematic as they can take a very long time to repair, which can become a site for pathogenic ingress and decay causing organisms leafing to disease, cavities and weakening areas.^[29] 
48. [48]
    Numerous pruning cycles also stress mature trees and continued pruning of the tree in the manner conducted thus far will be detrimental to the long-term health of the subject tree.^[30]
49. [49]
    Given the damage to the tree caused already by pruning works conducted by both Mr Lago and Ms Kellock which has caused damage and stress to the tree and likely reduced the tree’s life expectancy, there is a much higher risk of branch or total tree failure, especially if Mr Lago or Ms Kellock continue to prune the tree in the same manner.
50. [50]
    If one of the large branches or the entire tree was to fail, it would be very likely to cause serious injury or damage given the close proximity to Mr Lago’s house, gazebo and pool.
51. [51]
    The tree needed remediation pruning back on 2 June 2023 to rectify the internodal lopping cuts made which have created the profusions of epicormic growth and large problematic wounds to the tree which risks weakening the tree and making it more likely to fail. Mr Lago asserts no pruning has occurred and Ms Kellock has not filed any evidence since before the tree assessor’s report. Accordingly the Tribunal finds that given the damage done to the tree and the lack of remedial pruning, which leads to a high risk of limb or tree failure, it is likely to cause serious damage or serious injury within the next 12 months

What order, if any, should the Tribunal make in these proceedings?

52. [52]
    As Mr Lago’s property is affected by the tree, due to the risk of serious injury or serious damage within the next 12 months, the Tribunal has jurisdiction to make orders about the tree it considers appropriate in relation to a tree affecting the neighbour’s land to:

    1. prevent serious injury to any person; or
    2. to remedy, restrain or prevent—
       1. (i)
          serious damage to the neighbour’s land or any property on the neighbour’s land; or
       1. (ii)
          substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.

53. [53]
    Ms Kellock raised that there was consideration of a vegetation protection order given the significance of the tree, but no evidence has been provided to confirm if any such order has been made and the council have not sought to become involved in the proceedings. Regardless of whether there is any vegetation protect order involving the tree, the Tribunal is still able to determine this matter.
54. [54]
    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 -

1. consent is withheld by a local government or a tree-keeper under a vegetation protection order; or

2. a local law requires a consent or authorisation to be given before the work may be carried out; or

3. the work is otherwise restricted or prohibited under a local law.

55. [55]
    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.
56. [56]
    The Tribunal is satisfied that in this case there is a genuine dispute as to whether the tree is affecting Mr Lago’s property and whether orders should be made or whether Ms Kellock should be able to maintain the tree on her own, without any orders made.
57. [57]
    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:

    1. The subject tree is a mature Poinciana tree. The location of the tree is within Ms Kellock’s property, and it is positioned 2 metres to the east of the dividing fence.
    2. While there is no evidence of any vegetation protection order in place, Mr Richards notes in the tree assessment report that the subject tree is a dominant feature in the landscape and is a valuable amenity asset. It creates a beautiful, shaded area for numerous understory plants in the landscaped garden area beneath. The loss of the tree would result in severe stress and shock to the understory shared tolerant plants and would dramatically alter the entire theme, feel and look of the rear yard detrimentally.^[31]
    3. Ms Kellock asserts that the tree contributes to the natural landscape, scenic value of the land and local ecosystem and biodiversity, in that it is of importance to the local wildlife, given it houses native birds, snakes and possums as well as providing a rich feeding ground for these animals.
    4. Ms Kellock also asserts that the tree provides value to the amenity of the land on which it is situated through the providing of privacy, landscaping, and garden design and provided soil stability as the block is on a sloping landscape and prone to erosion with large down pour.
    5. Ms Kellock has not provided any independent evidence of these assertions of the tree’s value and contribution, other than what is in the tree assessor’s report, but the assertions as to the tree’s value and contribution do not appear to be disputed by Mr Lago.
    6. There is no information to suggest the tree has any historical, cultural or scientific value.
    7. The impacts of past pruning and ongoing pruning not in compliance with the Australian standards is mentioned above and would be very detrimental to the life of the tree. The tree assessor’s report states that the tree requires remediation pruning, conducted only once per year, which should concentrate on natural target pruning for directional manipulation and be conducted by a Min. AQF level 3 arborist in accordance with AS 43730-2007 Pruning of Amenity Trees.
58. [58]
    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.
59. [59]
    It is noted that Mr Lago is not seeking the tree be removed, only that there be a regular pruning schedule by an appropriately approved arborist.
60. [60]
    The issue in dispute is whether there should be orders made in relation to the regular inspections and maintenance/pruning of the subject trees as sought by Mr Lago or whether the application should be dismissed as sought by Ms Kellock.
61. [61]
    It is clear from the tree assessor’s report that this is a matter in which ongoing corrective pruning to remove and shorten the epicormic growth that is currently on the tree is necessary, but it must be done in a very careful and considered way, by an appropriate expert, avoiding over-pruning or random lopping of branches which has occurred in the past.
62. [62]
    It is clear from the communications between the parties prior to the proceedings, 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.
63. [63]
    Ms Kellock states that she has managed and will continue to manage the pruning of the tree and does not need orders to be made in this regard. Ms Kellock however did indicate she was conducting the pruning herself and the use of an expert was too expensive and would cause her significant financial stress.
64. [64]
    As Ms Kellock did not file any further material after the tree assessment report was completed, it is difficult to know what her current intention is, in light of the report which recommended remedial pruning by a level 3 arborist once a year.
65. [65]
    Given the lack of any clear plan from Ms Kellock as to the ongoing pruning of the tree, the strong recommendations in the tree assessment report and the risk posed if Ms Kellock was to continue to prune the tree herself or did not prune the tree and Mr Lago sought to take things into his own hands and prune/remove overhanging branches himself, it is necessary and appropriate for the Tribunal to make orders about the ongoing pruning of the subject tree to prevent serious injury to any person or prevent serious damage to the neighbour’s land or any property in the neighbour’s land.
66. [66]
    The responsibility for controlling the branches and tree, by conducting the remedial pruning and cutting or removing any branches of the trees that overhang the boundary so they do not extend over the dividing fence (provided it is safe to do so factoring in the health of the tree), and ensuring the ongoing safety of the subject trees to ensure they do not cause serious injury or serious damage, is the responsibility of Ms Kellock as the tree-keeper. Accordingly it is appropriate that any costs associated with the orders are to be borne by Ms Kellock.
67. [67]
    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 should Ms Kellock fail to conduct the work, Mr Lago will be authorised to do so and can seek the costs from Ms Kellock.
68. [68]
    Given the concerns about the impact on the tree of the pruning/abatement undertaken by Mr Lago and the assessment of the tree assessor that leeway needs to be given to allow for limb extension to be able to ascertain required cuts and that pruning should be conducted only once per year, the Tribunal also orders that Mr Lago must not prune or cut any branches on the tree, regardless of whether they overhang into his property, outside of the yearly pruning schedule.
69. [69]
    Mr Lago requested in the application for an order that he be paid $1500 as compensation for his costs (which he could not calculate any exact figure) and his inconvenience.
70. [70]
    Although not pressed further in any of his statements or in the outline of argument dated 9 February 2024), for completeness the Tribunal confirms that it declines to make any order for compensation as compensation for inconvenience is not an order that the Tribunal can make under s 66 of the Act, and Mr Lago has not demonstrated any loss or basis for compensation.
71. [71]
    The starting point for costs is that each party must bear their own costs.^[32] 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.^[33]
72. [72]
    In the circumstance of this matter, 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 does not make any order in relation to costs.

Orders

73. [73]
    The Tribunal makes the following orders:

1. Ms Emma Jane Kellock is to arrange remedial pruning to the Poinciana Tree to undertake natural target pruning for directional manipulation; remove and shorten the epicormic growth; and where safe to do so without compromising the health of the tree, to remove or reduce any overhanging branches.
2. The work required by this order is to be carried out:

1. initially by 31 October 2024 and thereafter on a yearly basis between 1 May and 30 June each year.

2. by an Australian Qualified Framework level 3 (or higher) arborist with relevant public liability and work cover insurance cover.

3. at Ms Kellock’s cost.

3. Should it be necessary to enter Mr Walter Paul Lago’s land to undertake the work outlined in Orders 1 to 2, upon giving 5 days written notice of the intention, Ms Kellock’s elected arborist is entitled to enter Mr Lago’s land to carry out the work.
4. If the work is not completed by 31 October 2024; or by 30 June in any subsequent year, Mr Lago may arrange to have the work at order 1 performed by an Australian Qualified Framework level 3 (or higher) arborist with relevant public liability and work cover insurance cover on the basis that:

1. any work is completed by 30 November 2024; or

2. within the months of July and August in any subsequent year.

5. Should Mr Lago be required to arrange the work stipulated above in default of it being done by Ms Kellock:

1. Mr Lago’s elected arborist is entitled to enter Ms Kellock’s land to carry out the work upon Mr Lago giving 5 days written notice of that intention to Ms Kellock.

2. the costs incurred by Mr Lago engaging an arborist to do the are recoverable from Ms Kellock as a debt without further notice being required to be given.

6. Mr Lago must not prune or cut any branches on the Poinciana, regardless of whether they overhang into his property, outside of the year pruning schedule set in order 4.
7. These orders remain in force and effect for a period of 10 years from the date hereof.