Fletcher v Mitchell[2025] QCAT 133

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Background

1. [1]
   Mr and Mrs Fletcher (‘the Applicant’) purchased their property, a vacant block, at 98 Cypress Street, Torquay in the state of Queensland (‘98 Cypress’) in 2019 and later built their home there. They moved into their home in February 2021 and have lived there since.
2. [2]
   Mr and Mrs Mitchell (‘the Respondent’) have owned and lived at the neighbouring property, 100 Cypress Street, Torquay in the state of Queensland (‘100 Cypress’) for over 30 years.
3. [3]
   Initially cordial, relations between the parties began to sour towards the end of 2022 when the Applicant expressed to the Respondent their displeasure and safety concerns regarding the branch, leaf, nut and seed drop and resultant accumulated debris from two old and large Hoop Pine trees located on 100 Cypress, near the fence line, and whose branches overhang part of the land and roof of the Applicant’s home at 98 Cypress. The parties have, from the outset, held strongly opposing views as to how the issues relating to the Hoop Pines should be addressed.
4. [4]
   The Applicant filed an Application for a tree dispute on 6 February 2023 (‘the Application’) seeking orders, including that the Hoop Pines be removed, compensation be paid by the Respondent for repairs of damage to their roof gutters and sheeting and solar panels, for regular cleaning of their roof and solar panels, and for removal of debris. A third tree, a Liquidambar, located on 100 Cypress near the fence line, was also included in the Application. The Respondent filed a response to the Application on 13 April 2023 rejecting the Applicant’s claims.
5. [5]
   With the parties’ agreement, an arborist was appointed by the Tribunal to assess and report on the trees. Following concerns raised by the Applicant regarding the first arborist’s assessment and report, by decision of the Tribunal dated 27 March 2024, the Tribunal appointed a second arborist, Mr Dave Roberts. Mr Roberts inspected the trees on 16 April 2024 and provided a Tree Assessment Report dated 17 April 2024.
6. [6]
   Since the initial filing of the Application and response, the parties have filed in the Tribunal lengthy statements and submissions, together with photographic and video evidence, in support of their respective positions, seeking various orders and directions by a total of ten Applications for miscellaneous matters, six made by the Applicant, and four made by the Respondent. This material clearly demonstrates the heightened acrimony and personal grievance felt between the parties, as was also evident at hearing.

Legislation

7. [7]
   Section 41(1) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’) provides that a tree-keeper is responsible for the proper care and maintenance of their tree. Chapter 3 of the Act sets out the common law and statutory remedies for dealing with an issue about a tree-keeper’s tree affecting a neighbour’s land and, where a resolution cannot be reached between neighbour and tree-keeper, the neighbour’s entitlement to apply to the Tribunal.
8. [8]
   Definitions of ‘tree’, ‘tree-keeper’, ‘neighbour’, ‘land affected by a tree’ and other relevant terms are set out in Part 2 of Chapter 3 of the Act.
9. [9]
   A tree-keeper is responsible for cutting and removing any branches of the tree that overhang a neighbour’s land, and for ensuring that the tree does not cause serious injury to a person, or serious damage to a person’s land or any property on their land, or substantial, ongoing and unreasonable interference with a person’s use and enjoyment of their land.^[1]
10. [10]
    The Tribunal has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that land is affected by the tree.^[2]
11. [11]
    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 or to remedy, restrain or prevent serious damage to the neighbour’s land or any property on their land, or substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of their land.^[3] Where the interference is an obstruction of sunlight or a view, the latter is only satisfied if the tree is at least 2.5 metres above the ground and there is severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land or severe obstruction of a view from a dwelling on the neighbour’s land that existed when the neighbour took possession of the land.^[4]
12. [12]
    The Tribunal may make such orders if it satisfied that the neighbour has done certain things including made a reasonable effort to reach agreement with the tree-keeper.^[5]
13. [13]
    In deciding an application for orders, the Tribunal is required to consider, primarily, the safety of any person,^[6] and then a number of other matters including that a living tree should not be removed or destroyed unless the issue cannot otherwise be satisfactorily resolved,^[7] the tree’s value and contribution to its natural and social environment, any risks associated with the tree in the event of a cyclone or other extreme weather event, and the likely impact of pruning on the tree.^[8]
14. [14]
    Where 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, the Tribunal may consider the contribution of anything other than the tree and steps taken by the tree-keeper or neighbour to prevent or rectify the injury or damage or likelihood thereof.^[9]
15. [15]
    Where the neighbour alleges the tree has caused, is causing, or is likely to cause substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land, the Tribunal may consider, among other things, the contribution of anything other than the tree, any steps taken by the tree-keeper or neighbour to prevent or minimise the interference, and whether the tree existed before the neighbour acquired the land.^[10]
16. [16]
    Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that, generally speaking, each party must bear their own costs. The exception to that is, unless it is in the interests of justice to do so.^[11] Section 102(3) of the QCAT Act sets out the matters the Tribunal may have regard to when considering the interests of justice.

Jurisdiction

17. [17]
    I am satisfied that:

    1. The two Hoop Pine trees and the single Liquidambar tree (‘the trees’) are trees as defined by the Act.
    2. The Respondent is the tree-keeper of the trees.
    3. The Applicant is a neighbour in relation to the trees.
    4. The Applicant’s land is affected by the trees.
    5. The Tribunal has jurisdiction to hear and decide the Application.

Consideration

Parties’ conduct

18. [18]
    The Applicant acknowledges they have never exercised their common law right of abatement in relation to any of the trees.
19. [19]
    There is no evidence before the Tribunal of any measures taken by the Respondent for the care and maintenance of the two Hoop Pine trees, including cutting and removing any branches overhanging the Applicant’s land, before or after the onset of the dispute between the parties.
20. [20]
    I accept that the Applicant has periodically cleaned up accumulated debris from the two Hoop Pine trees on their land and roof, however, there is insufficient credible evidence before the Tribunal regarding the extent or frequency of these efforts.
21. [21]
    I am satisfied that after the Applicant approached the Respondent towards the end of 2022 about their concerns in relation to the two Hoop Pine trees and the Liquidambar tree, the Respondent did make some effort to engage, including participating in a process of obtaining quotes for work that could be done to address the Applicant’s concerns, and undertaking maintenance pruning of the Liquidambar tree.
22. [22]
    I consider, however, that constructive communications quickly broke down between the parties, each holding intransigent positions such as to render them incapable of reaching agreement about a solution. I consider the parties’ intense preoccupation with disputing rather than resolving the matter derogated from their respective responsibilities as tree-keeper and neighbour, and more broadly, as landowners.
23. [23]
    I consider therefore that the only feasible option for resolution of the matter was by way of application to the Tribunal. Unsurprisingly, since the matter came before the Tribunal, the parties have made no progress towards a resolution. It was inevitable in my view that the matter would proceed to a hearing.

Aborist’s report and oral evidence

24. [24]
    In light of the circumstances leading to the Tribunal’s decision to appoint a second arborist, I give no weight to the tree assessment report prepared by the first arborist.
25. [25]
    I limit my considerations to the evidence of the second Tribunal-appointed arborist, Mr Roberts.
26. [26]
    The Tribunal called Mr Roberts to give evidence at hearing and examined Mr Roberts.
27. [27]
    I consider Mr Roberts’s Tree Assessment Report dated 17 April 2024 together with his oral evidence at hearing highly credible and persuasive. I afford his evidence significant weight in informing the Tribunal as to the appropriate orders to be made in this matter.
28. [28]
    I recount the aspects of Mr Roberts’s report and oral evidence critical to the issues for determination by the Tribunal as follows:

    1. The Applicant made complaints to Mr Roberts of:

• Risk of damage to the Applicant’s property or persons from falling or failing tree parts.
• Obstruction of view from windows and excessive shading that is resulting in mould.
• Obstruction of sunlight to rooftop solar panels.
• Excessive leaf and seed drop that is causing a maintenance burden, restricting lawn establishment, and interfering with existing plants and gardens.
• Root ingress resulting in trip points and interfering with planned works.
  2. The two Hoop Pine trees have likely grown together since germination for approximately 80 years, and hence were well established prior to the Applicant taking ownership of 98 Cypress in 2019 and taking up residence in 2021. Individually, there is an asymmetry within the crown structure due to the close distance between the two trees, however, looked at together they have a shared symmetrical shape. There is a slight lean on one of the trees, however this is minor and natural. There is otherwise no characteristic of either tree that would warrant separate consideration of the trees.
  3. The Liquidambar tree was planted by the Respondent as a landscape and screening tree approximately 8 years ago.
  4. None of the trees are considered a weed under the Fraser Coast Regional Council Biosecurity Plan.
  5. I will cover Mr Roberts’s further report and oral evidence first in relation to the two Hoop Pine trees, and next in relation to the Liquidambar tree.
  6. On his inspection of the two Hoop Pine trees, there was no significant defect within the root crown, trunk or scaffold. He considered their condition stable: there was no recent lean, no lifting of the roof plate, and no fungal bracket to indicate root pathogen activity. The trees have been there for more than 80 years, have lived through numerous storm events and suffered no defect as a result. There was no cracking or splitting or indication that the trees were structurally compromised. It is a fair assumption that the trees would be there in another 80 years. These comments apply in circumstances of normal weather conditions; he cannot assess what the trees would do in a category 4 or 5 cyclone; it’s unpredictable.
  7. There was a minor amount of deadwood, some of which had failed and was hung up within the canopy over the Applicant’s land, but not over their home. It looked like it had been hanging there for a while, so it was not considered an urgent matter. He did not feel unsafe walking under the canopy and believed he could have easily removed the deadwood on the day of the inspection using a pole saw. Referencing the recommendations, he noted that if the window in the canopy were cut to 6 metres high, the deadwood would be in that window and therefore removed. There was also evidence of other small branches that had fallen. None of this caused him any alarm. Most trees have deadwood, it is how they optimise their form: they shed branches that are superfluous and put energy into new growth.
  8. He did not consider the leaf drop from the two Hoop Pine trees excessive; it is a typical and normal function of that species of tree. He understood the Applicant’s main concerns were the nuisance caused by the leaf drop, the roof mould they attributed to the trees, and the shading. Even though he acknowledges there is a nuisance factor in having to clean up leaf drop, it is what would normally be expected. The trees were pre-existing when the Applicant purchased the property, they were there two years before they built, and while he understands the Applicant had some constraints on where the house could be positioned on the block, for example, due to the sewer/drainage easement, it would have been obvious and no surprise to the Applicant how much leaf matter was associated with the trees.
  9. Hoop Pines produce cones that disperse winged seeds. The cones can grow 100 millimetres long and can be harvested by birds resulting in the cones falling to the ground. Falling cones from a height of 30 metres will cause minor damage to property and possible serious damage to persons upon contact. Denutting refers to the removal of cones. It quite often occurs in public spaces, for example, coconut trees in caravan parks where there is a strike risk. Even though the Hoop Pine cones are not as large as Kauri Pine cones or coconuts, they do pose a risk. When they shed, the winged seeds with hooks travel a fair way; denutting would alleviate some of the associated nuisance value.
  10. Hoop Pine tree roots are present within the Applicant’s land. They are likely to contribute to competition for nutrients and, along with shading from the lower canopy, contribute to poor lawn quality in the areas adjacent. The Applicant has also planted bamboo which will be competing for the same nutrients.
  11. There are some exposed Hoop Pine tree roots that present a low-risk trip hazard on the Applicant’s land. Quite often with trees that have been there for a while, there will be a mounding of soil, like a turkey’s nest, from decomposition of leaf litter around the tree. You can see this on the Respondent’s land. Despite the Applicant’s denials to him, he believes the Applicant had removed some soil because they had levelled the area and planted turf; the turf had then died because of shading or competition for nutrients or water, and the roots had become exposed. There is evidence of minor mechanical damage to some roots probably due to a mower running over them. The roots did not become exposed because a root plate had lifted or tilted. The trip points can be easily managed at minimal cost by the addition of soil to a one square metre area.
  12. There are solar panels in two locations on the Applicant’s roof. The array closest to the two Hoop Pine trees is in full sunlight at 10am. There will be times when the panels experience some shade from the trees, however, in his view, the shading is not severe.
  13. There was some mould on a brick window ledge on the southern side of the Applicant’s dwelling. The Applicant stated that it was due to tree shading. The trees may somewhat contribute to shade that allows for mould in that location, however in his view it is not a severe nuisance and can be managed at minimal cost with many commercially available products.
  14. He did not identify any obstruction of windows.
  15. It is not a viable option to reduce the height of the two Hoop Pine trees without undertaking work contrary to Australian Standards and removing branching to the fence line for the entirety of a single side would imbalance and deform the trees, creating something unsightly and dangerous.
  16. It would be appropriate to have the two Hoop Pine trees removed or destroyed where there was a significant decline in their health: if cracks and splits appeared in the main trunk, if there was major movement in the roof plate, if construction activity occurred along the fence line that encroached on the structural root zone of the trees and made it hazardous for the Respondent. For example, if the Applicant dug a trench one metre down the fence line, it would remove 50% of the functional roots and 50% of the structural roots of both trees, so in a weather event, the trees would be unsupported from a tensional root plate perspective and pose a risk to the Respondent. However, none of these circumstances existed at the time of inspection and he does not see any grounds that would necessitate the removal of the trees.
  17. The Liquidambar tree has been appropriately maintained by the Respondent at a 5 metre height and 3 metre spread to restrict shape and ensure clearance from structures. He believes the Respondent did this in response to concerns raised by the Applicant. This species of tree can cause problems with an aggressive root system. Maintaining a reduced canopy shape can be considered a means of restricting root growth to a point where root mass volume meets canopy and reproductive needs. If this balance is not maintained, there would be increasing root volume and encroachment into the Applicant’s land, which could cause structural damage or plumbing functional damage. However, given that the soil profile is sandy, and provided there is no reactive soil imported for construction, the roots are more likely to be deeper than surface roots, so the tree would have to become quite large before the roots were causing a problem. He considers the risks associated with the Liquidambar to be extremely low if the current maintenance protocol is followed. If the Respondent was not prepared to do that, the option would be to remove the tree.
  18. Recommendations:

The Applicant grants access to their land for the following work to be undertaken annually by a qualified arborist (minimum AQF level 3) with appropriate insurances:

1. Branch reduction on the two Hoop Pine trees to a height of 6 metres (only branches that are 6 metres high or lower are to be pruned) so that branches do not extend more than 2 metres into the Applicant’s land.
2. Denutting in late Spring of those parts of the two Hoop Pine trees that overhang the Applicant’s land.
3. Branch reduction could be timed with the denutting of the two Hoop Pine trees.
4. Maintenance of the Liquidambar tree so that it does not exceed 5 metres in height and 3 metres in spread.
5. This work takes into account the amount of expected regrowth and recurrent services are scheduled so that regrowth does not exceed stated distances.

19. Unless there is a storm event or conditions have changed radically, he does not imagine his assessment of the trees would change if he were to reinspect them today.

Applicant’s evidence of damage

29. [29]
    The Applicant has produced a substantial volume of photographs and video footage of branch, leaf, nut and seed fall from the two Hoop Pine trees and its resultant accumulation of debris over periods on parts of the Applicant’s land and roof below and near the overhanging branches, some damage to the gutter guard on the roof guttering and some residual mould on the roof where the debris has fallen and accumulated, and incidents of small and large pieces of deadwood falling during one or more weather events.
30. [30]
    The Applicant has produced a building condition report by Mr Stephen Sinclair of Spec Ops Building & Consultancy dated 1 May 2024. The report tables photographs and makes the following comments relevant to the dispute:

    1. The Hoop Pine trees are in an approximate southeast wind direction which causes the majority of the tree debris to fall onto the Applicant’s roof including large branches.
    2. The falling debris is excessive [noting a particular photograph represents approximately 8 weeks’ worth].
    3. The debris is being trapped in the barge roll and could cause rusting over time.
    4. The debris is getting trapped under the solar panels and could cause rusting over time.
    5. Damage has been caused to the gutter guard from a fallen branch.
    6. Part of the gutter guard has been pushed down (falling branch) and needs to be rectified. This will now cause the debris to enter the guttering system and possibly future blockages.
    7. The amount of debris on the roof made walking on the roof very unsafe as the debris rolls when walked on.
    8. There are several large branches hanging and could fall at any moment likely to cause serious damage to the roof/guttering and serious injury if not removed/pruned soon.
    9. In this case, damage is likely to occur from the large branches and corrosive damage over time.
    10. There is a danger of potential fire of the debris trapped under the solar system as this is difficult to access and clean out from under the panels (this may require a qualified electrician to remove each panel to clean under).
    11. There are multiple areas of damage to the gutter guard of which is a high quality and will need repairs at a cost to the owner. This gutter guard would normally be able to cope with general debris.
    12. A professional tree lopper will soon be required to remove these trees as in over ten years of roof inspections this debris is excessive and to avoid any severe property damage will need to be rectified. I believe this is a reasonable request to remove as there may be potential personal or property damage.
31. [31]
    Neither party called Mr Sinclair to give evidence at hearing. As a result, there was no opportunity to interrogate or clarify the contents of his report. There is no evidence before the Tribunal that Mr Sinclair is professionally qualified to provide an opinion about how the two Hoop Pine trees behave or are likely to behave, or to make recommendations about how to address that behaviour. I prefer the evidence of the arborist, Mr Roberts, and therefore reject Mr Sinclair’s conclusion that the debris is excessive and his recommendation that the trees be removed.
32. [32]
    I consider that Mr Sinclair’s observations and photographs support Mr Roberts’s observation that the quantity of debris is consistent with what would normally be expected from trees of the Hoop Pine species.
33. [33]
    There is no conclusive evidence before the Tribunal that the gutter guard damage as shown in the photographs was caused by fallen branches from the Hoop Pine trees. I consider that even if the damage was so caused, the damage in my observation is minor.
34. [34]
    Mr Sinclair states in the report that the debris could cause rusting of the barge roll and solar panels, fire danger under the solar panels, and guttering system blockages, however, there is no evidence before the Tribunal of any of these things having occurred.
35. [35]
    The Applicant has produced an electrical report by Mr Mark Olds of ElectroSafe dated 11 November 2024, referred to as a solar assessment conducted due to organic debris near the panels. The report notes that the space between the underside of the panels and the roof sheeting is heavily laden with debris from neighbouring trees shortly after cleaning, posing an increased fire risk in the event of a panel fault and may also accelerate corrosion to roof and panel mounting fixtures. The report recommends that the build-up be removed and a maintenance routine be implemented at quarterly intervals to reduce build-up, which may require the lifting of panels by a licensed person. The report also notes that debris on the panels will significantly impact production if not cleared away regularly. The positioning of the panels is designed to reduce the impact of shading; however, minimal shading in the early morning especially during the summer months is unavoidable.
36. [36]
    Neither party called Mr Olds to give evidence at hearing. As a result, there was no opportunity to interrogate or clarify the contents of his report.
37. [37]
    I consider that Mr Olds’s observations and photographs support Mr Roberts’s observation that the quantity of debris is consistent with what would normally be expected from trees of the Hoop Pine species.
38. [38]
    I consider that Mr Olds’s recommendation that a regular maintenance routine be implemented for the removal of debris from in and around the solar panels supports Mr Roberts’s observation that, while it may be a nuisance to the Applicant, that sort of clean-up activity is what would normally be expected to deal with debris from Hoop Pine trees.
39. [39]
    I consider that Mr Olds’s observations about the impact of shading, while not entirely clear, indicate that shading from the Hoop Pine trees is not an issue impacting the performance of the solar panels.
40. [40]
    The Applicant produced an email from “[email protected]” dated 25 October 2024 advising that he had attended the Applicant’s house to check for any damage to the roof. He states that he had to clean the roof to inspect it as there was a lot of litter from the tree. He states that he didn’t see any damage to the roof just mould build-up and black grit from so much leaf litter, but he did notice it is wrecking the gutter guard from the weight on top of it, the debris is getting inside the gutter, and the gable rolls were full of debris, which will start causing leaks. He states that the applicant would need to clean the roof quite frequently.
41. [41]
    Neither party called Aaron to give evidence at hearing. As a result, there was no opportunity to interrogate or clarify the contents of his email.
42. [42]
    I consider that Aaron’s observations support Mr Roberts’s observation that the quantity of debris is consistent with what would normally be expected from trees of the Hoop Pine species.
43. [43]
    I consider that Aaron’s observation that the roof would need to be cleaned quite frequently supports Mr Roberts’s observation that, while it may be a nuisance to the Applicant, that sort of clean up activity is what would normally be expected to deal with debris from Hoop Pine trees.
44. [44]
    I consider that Aaron’s observation of mould build-up, black grit and gutter guard damage from debris does not raise a suggestion of any serious damage to the Applicant’s property.

Findings

45. [45]
    I am satisfied there is credible evidence before the Tribunal to find that there is a risk that branches, deadwood and/or cones from one or both of the Hoop Pine trees may cause serious injury to any person such as to warrant preventative measures. In making this finding, I have relied on Mr Roberts’s evidence as set out in these reasons and note his comments about the unpredictability of the behaviour of the trees in extreme weather events such as high-category cyclones. I consider that this finding is consistent with my obligation to give primary consideration to the safety of any person and the Respondent’s obligation as tree-keeper to ensure that the trees do not cause serious injury to a person.
46. [46]
    I am satisfied that the recommendations made by Mr Roberts insofar as they relate to the two Hoop Pine trees are appropriate preventative measures, and that the trees should not be removed or destroyed.
47. [47]
    I am satisfied there is no credible evidence before the Tribunal to find that the roots of one or both of the Hoop Pine trees are causing or may cause serious injury to any person.
48. [48]
    I am satisfied there is no credible evidence before the Tribunal to find that branches, deadwood, cones and/or leaf and seed drop and resultant accumulated debris from one or both of the Hoop Pine trees are causing or may cause serious damage to the Applicant’s land or home.
49. [49]
    I am satisfied there is no credible evidence before the Tribunal to find that branches, deadwood, cones and/or leaf and seed drop and resultant accumulated debris from one or both of the Hoop Pine trees are causing or may cause substantial, ongoing and unreasonable interference with the use and enjoyment of the Applicant’s land, including severe obstruction of sunlight to the Applicant’s windows or roof.
50. [50]
    The Tribunal has previously determined that the presence of leaf litter and other small debris will generally not be sufficient to establish substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.^[12] Mr Roberts’s evidence is clear that the quantity of accumulated debris is what would normally be expected from trees of the Hoop Pine species. I consider the Applicant had ample notice of this issue having purchased 98 Cypress in 2019, two years prior to building on the land, and they proceeded to build on the land in full knowledge of how the two Hoop Pine trees behave.
51. [51]
    Maintenance of the Applicant’s property is their responsibility. I consider that while it may be a nuisance or inconvenient for the Applicant to have to undertake regular clean-up activities to deal with the accumulated debris on their land, guttering, roof and under their solar panels, it is reasonable that they be expected to do so to discharge their responsibilities as a landowner having full and prior knowledge of how the two Hoop Pine trees behave. I reject the Applicant’s claims for compensation for repairs of damage to their roof gutters and sheeting and solar panels, for regular cleaning of their roof and solar panels, and for removal of debris.
52. [52]
    I am satisfied there is credible evidence before the Tribunal to find that there is a risk that the aggressive root system of the Liquidamber tree may cause serious structural damage or plumbing functional damage to the Applicant’s property if the current maintenance protocol is not maintained such as to warrant the continuation of that preventative measure. In making this finding, I have relied on Mr Roberts’s evidence as set out in these reasons. I consider that this finding is consistent with the Respondent’s obligation as tree-keeper to ensure that the tree does not cause serious damage to the Applicant’s land or any property on their land.
53. [53]
    I am satisfied that the recommendations made by Mr Roberts insofar as they relate to the Liquidambar tree are appropriate ongoing preventative measures, and that the tree should not be removed or destroyed.
54. [54]
    I am satisfied there is no basis in the interests of justice on which to make a costs order in either party’s favour. Both parties are self-represented, and I consider they each bear equivalent responsibility for this matter coming before the Tribunal.

Orders

55. [55]
    The Tribunal’s orders will be as follows:

    1. The Respondent must undertake, on an annual basis, branch reduction of the two Hoop Pine trees to a height of 6 metres from the ground in relation to those branches overhanging the Applicant’s land such that the branches do not extend more than 2 metres into the Applicant’s land.
    2. The Respondent must undertake, on an annual basis, removal of all deadwood and loose branches hanging in the branches and/or canopy of the two Hoop Pine trees to a height of 6 metres from the ground in relation to those branches and/or part of the canopy overhanging the Applicant’s land.
    3. The Respondent must undertake, on an annual basis, denutting of the two Hoop Pine trees in relation to those areas of the trees that overhang the Applicant’s land.
    4. The Respondent must engage an arborist with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances to undertake the work associated with Orders 1, 2 and 3.
    5. The Respondent must ensure that the initial work associated with Orders 1 and 2 is undertaken by no later than 31 May 2025.
    6. The Respondent must ensure that the initial work associated with Order 3 is undertaken by no later than 31 October 2025.
    7. The Respondent must undertake, on an annual basis, maintenance of the Liquidambar tree such that it does not exceed 5 metres in height and 3 metres in spread.
    8. The Respondent must ensure that the initial work associated with Order 7 is undertaken no later than 31 May 2025, if the work has not already been undertaken in 2025.
    9. The Applicant must allow the Respondent’s elected arborist and/or contractor with appropriate insurances, and where necessary, the Respondent, access to 98 Cypress to undertake the work associated with Orders 1 to 8 subject to 3 days’ notice as agreed between the parties.
    10. The Respondent will be responsible for all costs associated with Orders 1 to 8.
    11. If the Respondent fails to undertake any of the work associated with Orders 1 to 8 (‘Incomplete Work’), the Applicant shall be entitled to undertake any of the Incomplete Work in accordance with these orders. Where necessary to comply with these orders, the Applicant’s elected arborist and/or contractor with appropriate insurances shall be entitled to enter the Respondent’s land and undertake any of the Incomplete Work subject to the Applicant giving 14 days’ notice in writing of that intention to the Respondent.
    12. If the Respondent undertakes all of the outstanding Incomplete Work prior to the expiration of the 14 days’ written notice as outlined in Order 11, the Applicant’s entitlement to enter the Respondent’s land, with or without their elected arborist and/or contractor, is extinguished.
    13. The costs incurred by the Applicant to undertake any of the Incomplete Work in accordance with these orders in default of the Respondent shall be recoverable from the Respondent as a debt without further notice being required to be given.
    14. Pursuant to s 78(1) of the Act, it is expressly provided that these orders shall not lapse 10 years after the day on which these orders were made but shall remain in force until revoked by the Tribunal.
    15. In accordance with Part 6 of the Act, details of these orders will be entered in the register of orders maintained as a public record by the Tribunal.
    16. These orders finally determine the Application and all of the following related applications:
        1. Application for miscellaneous matters filed by the Applicant on 27 November 2023.
        2. Application for miscellaneous matters filed by the Respondent on 12 December 2023.
        3. Application for miscellaneous matters filed by the Respondent on 26 November 2024.
        4. Application for miscellaneous matters filed by the Applicant on 10 January 2025.
        5. Application for miscellaneous matters filed by the Applicant on 3 February 2025.
        6. Application for miscellaneous matters filed by the Applicant on 21 February 2025.
        7. Application for miscellaneous matters filed by the Respondent on 3 March 2025.
        8. Application for miscellaneous matters filed by the Applicant on 3 March 2025.
        9. Application for miscellaneous matters filed by the Applicant on 4 March 2025.
        10. Application for miscellaneous matters filed by the Respondent on 18 March 2025.
    17. Each party must bear their own costs of and incidental to the Application and the related applications.