XKM & Anor v NBX & Anor[2025] QCAT 186

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The applicants and the first respondent own adjoining suburban properties in Chapel Hill, Brisbane. The applicants’ property, which is their usual residence, although not presently so, adjoins the first respondent tree-keepers’ property and they are separated by a fence structure.
2. [2]
   On 18 March 2022, the applicants filed an application (‘Application for a tree dispute’) under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘ND Act’) for the pruning or removal of a large tree growing adjacent to the boundary line of the two properties but within the boundary of the first respondent’s property.
3. [3]
   On 9 September 2022, this Tribunal ordered that the proceedings in this matter will be held in private and the publication of information that may enable a party to these proceeding to be identified is prohibited, including the name, contact details or address of any party to these proceedings. I treat that order as not applying to the third respondent Council. The parties’ names have been anonymised in these reasons.
4. [4]
   The tree is a Lemon Scented Gum, botanically known as Corymbia citriodora subsp. variegata.
5. [5]
   In the application, the applicants seek that the Tribunal make the following orders:

   1. That the first respondent carry out work on the tree to remove the tree.
   2. That the first respondent carry out work on the tree to remove or prune branches of the tree.
   3. That the first respondent carry out work on the tree to remove or prune roots of the tree.
   4. That the first respondent pay the costs for carrying out these orders.
6. [6]
   In Part F of the applicants’ application they provide the reasons why they consider the orders sought should be made. It provides that "removing the tree will significantly reduce or eliminate damage and ongoing maintenance cost for my property. Removing the tree will eliminate any injury this tree may cause as it now reaches to my roof line and is close to upstairs bedrooms."
7. [7]
   The applicants’ application further provides inter alia:

The tree has grown to extend to our roofline. Over half the tree (due to how its leaning) extends over the fence line into our property.

ln recent storms a branch has fallen off another gum tree from (an adjacent) property and pierced through the roof of another neighbour's property approximately 30 metres away, causing significant damage. It was lucky no one was injured however with constant wet weather events and storms, given the gum tree in this notice extends to our roof and our bedrooms are on the top floor facing this tree. I am concerned of the safety risk this poses.

Gutter mesh has been installed where I can on my roofs. The skillion roof unfortunately allows leaf and debris build up, but the amount of litter (from the tree) is significant.

We have done everything possible to mitigate damage to our property from gum tree debris. The ongoing cost is unsustainable for us. Constant roof cleaning, pool equipment uses and damage, gum tree sap on timber deck will require repair through sanding and re-varnishing.

8. [8]
   As to how long they have known of it, they say:

Leaf litter and debris known since we moved to our property in August 2017 and we have done more than what is reasonably possible to mitigate damage. The tree has become much larger and debris is significant and constant and we can no longer reasonably manage without extensive ongoing costs. Also, the damage to another neighbour's property (gum tree branch through their roof) occurred in October 2021.

9. [9]
   As to what the neighbour has done about it, they say he:

Has only called arborist as per their letter. No other details known. No visible maintenance has been performed in the entire time we have been (there).

10. [10]
    As to whether the tree caused substantial, ongoing, and unreasonable interference with their use and enjoyment of their land, they say that:

The maintenance and cost to manage constant and significant leaf litter is not sustainable. To hire people to repair and maintain costs thousands of dollars each year.

11. [11]
    They say the tree obstructs the sunlight and that morning solar generation is limited until around late morning or lunchtime during winter months.
12. [12]
    The application which was served on the respondent was supported by an attached report from Arborist David Avery (‘the Avery report’). That report was dated October 2021.
13. [13]
    According to the Avery report, the applicants’ main concern then was the safety of their young family who were unable to play in the backyard for fear of branch failure and that a family member narrowly avoided being hit by a falling branch when washing his dog in the backyard and no longer uses this area of his property to wash his dog for fear of reoccurrence. According to the Avery report, the tree has also had a number of large pieces of deadwood and significant sized branches fall on several previous occasions which have landed on their property including several near misses where injury was narrowly averted and the shadow cast by the tree is interfering with the effectiveness of the solar panels on the roof and the constant debris in the gutters is posing a significant bush fire risk. It records that the tree is not protected vegetation and to date (although it has since been the subject of a protection order) there has been no maintenance done to remove hazardous branches and deadwood. According to Mr Avery, the applicants wanted the tree removed or at a minimum pruned to significantly reduce the number and size of the branches overhanging his property. He recommended that the overhanging branches of this tree be pruned by a suitably qualified arborist or the tree be removed.
14. [14]
    The Avery report recorded that there was recently a significant branch failure which caused significant damage to another neighbouring dwelling. This failure was on a poorly tapered branch in the tree beside the subject tree. It should be noted that the subject tree has several branches similar in structure to the one that failed. The subject tree also has a history of branch failures and falling deadwood.
15. [15]
    The Avery report recorded that the tree is one of two large trees identified as Corymbia citriodoras located there and that both trees extend above the roof lines of the nearby buildings and the surrounding vegetation. He concluded that this means they are relatively exposed to stresses of significant wind events, which are not uncommon in the area especially over the summer months. He said that a significant amount of the canopy of the subject tree extends into the applicants’ property and there was no evidence of previous pruning, however, there was significant evidence of previous branch failures. The surrounding area comprises low density residential dwellings interspersed with native and ornamental vegetation.
16. [16]
    Mr Avery assessed that there was a high risk of deadwood and overextended branches failing and impacting the applicants’ property with potentially significant consequences. The likelihood of whole tree failure was assessed as low, however, if this were to occur the consequences would be severe given the size of the tree. While assessed as unlikely, whole tree failure is not out of the question. If the winds impact on the crown and branches in combination with the trunk acting as a long lever arm generates more torque than the surrounding soil can resist, then whole tree failure will occur. He concluded that if the tree-keeper was not willing to commit to ongoing pruning and maintenance of the tree then full tree removal may need to be considered.
17. [17]
    Mr Avery was not cross-examined. I accept his evidence.
18. [18]
    Before bringing the application the applicants properly communicated with the first respondent. This correspondence began in November 2021, some four and a half years ago.
19. [19]
    The first letter from the applicants to him on 6 November 2021 said:

We absolutely love living on (here) and understand the importance of the local natural flora, but I have decided to contact you as the extremely large gum tree within your boundary is causing me major concern after seeing a branch going through the back neighbour's roofs in the recent storms.

We've maintained our property as best we can with the constant litter coming off the tree, but while our roof and pool has already been damaged due to the amount of litter, my greatest concern is the safety.

Our bedrooms are on the top floor and every time inclement weather or strong winds are predicted I become anxious as I fear a branch or even worse, the whole tree, is going to fall through the ceiling of my children's bedrooms as they sleep.

This has been even more evident following the large branch that has pierced the back neighbour's roof. Due to the tree branches being more than 2.5m above the ground and overhang by at least 0.5m, it prevents us providing a (notice for removal under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011).

Information seems to tell me that the only option is to apply to QCAT for an order, but I would prefer if we could arrange an alternative resolution.

I am asking if you could please remove all branches from the large gum tree that are overhanging into my boundary, at the very least to minimise any risk of branch failure and further damaging our property.

The gum tree has grown quite a lot since we've moved here and at the moment the overhanging branches are also interfering with the proper functioning of solar panelling, particularly before midday.

The substantial ongoing accumulation of tree litter in our yard, pool, roof and gutters create a serious risk of damage to filters/pump/robotics and increased risk during the bushfire season.

I've even stopped washing my dog on our lawns as the last time I did, a rotten thick branch had fallen and landed within 2 metres of me and my pet. It would have easily been large enough to severely injure my young child if it had landed on them.

I really would appreciate your response by letter or email to let us know your thoughts and how best to action this.

20. [20]
    Clearly, this raised serious issues inter alia concerning the danger posed to children and pets, and requested the overhanging branches be removed.
21. [21]
    The respondent accepted that he did receive the letter from the applicants in his letter box in November 2021 and replied within about a week saying that they had engaged an arborist to advise on the health and safety of the subject tree. The first respondent had commissioned the arborist to prepare a formal report on the subject tree. The commissioned report was from Independent Arboricultural Services, and was authored by Mick Mayer, and was dated 8 November 2021.
22. [22]
    The first respondent contended that after reviewing the report the respondent had researched suitably qualified arborists to undertake tree maintenance according to recommendations and intended to follow up but other factors interrupted this. He says that he then noticed that the applicants had moved out and the applicants’ house had been advertised for rent. His wife was then diagnosed with a serious medical condition that required her hospitalisation and that became his priority. He said that also the first half of 2022 had been plagued with adverse weather conditions with rainfall in excess of one metre over that time, with the ground saturated and this created unsafe working conditions. He asserted that since then he had the gum trees pruned as per recommendations in his Arborist report.
23. [23]
    A tax invoice dated 17 June 2022 indicate that pruning was performed at the first respondent’s request for "removal of larger deadwood throughout the canopy" and "reduction pruning of right-hand branches over neighbours” and "reduction pruning and lifting of rear branches". I note the reference to larger deadwood removal, not all deadwood.
24. [24]
    A pending Natural Assets Local Law 2003 tree protection order was sought for the first respondent’s property at around the time of that most recent pruning performed in June 2022. Since the tree-keeper's property is covered by a tree protection order, the tree-keeper must seek approval or an exemption prior to any tree interference being performed.
25. [25]
    The respondent agreed then that the tree in question near the boundary did extend more than 50cm over the boundary but contended that the furthest tip of one branch extended out but did not appear to go over the applicants’ roof. He claimed the branch referred to had by then been pruned according to the recommendations in the Arborist report. The respondent disagreed with the applicants’ claim that over half of the tree extends over the fence line and said that based on observation, the first respondent believed the majority of the tree canopy is in the respondent's property. He claimed that the shrubs with some overhang had been trimmed back to the fence line. Those shrubs are not the issue here.
26. [26]
    The respondent rejected the applicants’ claim that a branch had "fallen off" another gum tree on the respondent's property. He said that:

“that branch did not fall by itself, it was ripped off by an isolated severe storm cell which was extremely unusual. The canopy of the other gum tree does not overhang the applicant's property. This event did not affect the applicant's property and the respondent believes it is not directly relevant to the Applicant's case. The respondent's Arborist's report (IAS8703 attached) reports on the gum trees under discussion. From the respondent’s experience the majority of severe storm events pass by, probably due to the terrain…that surrounds the area. The applicant's comments regarding "constant wet weather events and storms" do not seem to take into account that Australia has had back-to-back La Nina events over the past two summer seasons that is very rare. This has contributed to storms and wide spread flooding on the east coast of Australia from Queensland to NSW.

The respondent disagrees that the tree is "likely to cause serious damage to the applicant's land or property on their land within the next 12 months". The respondent considers cleaning of leaf litter from roof gutters to be preventative routine maintenance for all home owners. The applicants purchased the property in 2017 and the subject gum tree was there at that time. Regarding leaf litter there are large gum trees at the rear of (a property) next to the applicants’ property. There are also large glim trees on the footpath opposite the applicant's property. In addition (the) Forest is full of large gum trees opposite the applicants’ property. On windy days leaves blow from everywhere. The applicants’ roof is a flat roof design with raised sides around the edge and this contributes to the collection of leaves. The western suburbs … are known as the leafy suburbs where houses and trees co-exist. The respondent believes this is one of the reasons why residents choose this suburb. Cleaning leaves from roof gutters is expected maintenance for living in such a suburb”.

The respondent totally disagrees with the applicant's statement ''No visible maintenance has been performed in their yard in the entire time we have been at (the address)". The respondent has carried out regular lawn mowing, hedge pruning, tree pruning, roof gutter cleaning and pool cleaning as required.

The large gum trees are significant landscape trees that have been there a long time. They are part of the landscaping of the respondent's property. The Respondent's Arborist report recommends that the gum trees are healthy and should be retained. The respondent believes that removing these trees for the sake of reducing leaf litter in the pool and roof gutters is not justified. Significant landscape trees such as these provide enormous benefits to the environment and are irreplaceable. Leaf litter in a leafy suburb such as (this) is to be expected. Required maintenance is a small price to pay for the environmental benefits that trees provide and living in a beautiful suburb. The overhanging branch mentioned by the applicant has been pruned by the respondent to reduce any perceived risks.

The relevant provisions of the ND Act

27. [27]
    Under s 46 of the ND Act, land is taken to be affected by a tree only in limited circumstances. Accordingly, the land is only tree-affected if it satisfies one of the following, namely:

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;

28. [28]
    The applicants bear the onus of establishing on the balance of probabilities their entitlement to orders under the ND Act. The Tribunal has broad powers 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”.^[1]
29. [29]
    The Arborist report concludes, and I accept, that branches from this Gum (Corymbia citriodora subsp. variegata) extend over the applicants' land and thus satisfy the definition in s 46(a)(i) of the ND Act as to when land is affected, that is in this case because the “branches from the tree overhang the land”.
30. [30]
    The ND Act defines “tree” to mean any woody perennial plant or any plant resembling a tree in form and size. This definition has been held in case law to include roots and stumps rooted in land and a dead tree.^[2] 
31. [31]
    Land is “affected by a tree” if the tree has caused serious damage to the land or any property on the land, or substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land, and the land adjoins the land on which the tree is situated. A tree is situated on land if the base of the tree is or was previously situated wholly or mainly on the land.^[3]
32. [32]
    Under s 66 of the ND Act the Tribunal has broad powers to make an order it considers appropriate about a tree to:

1.  prevent serious injury to any person; or

2.  to remedy, restrain or prevent—

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

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

33. [33]
    What constitutes serious injury or damage, or substantial, ongoing and unreasonable interference has generated much case law in this Tribunal over time.^[4]
34. [34]
    In Belcher v Sullivan [2013] QCATA 304, Judicial Member Dodds held:

[22]  “Serious” is a word in common usage. It is not given any special meaning in the Act. In the context of this matter its meaning may be regarded as “not slight or negligible”.

[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]  Both require a decision maker to assess the degree of damage or interference in the light of all the evidence provided.

35. [35]
    The ND Act s 72 recognises the importance of trees in residential neighbourhoods. It makes clear that a living tree should not be removed or destroyed, unless the issue cannot otherwise be satisfactorily resolved. I am required to consider various matters including the contribution the trees make to the amenity of the first respondent’ land including their contribution to privacy and protection from noise.^[5]
36. [36]
    I am satisfied that the applicants have met the relevant pre-requisites set out in s 65 of the ND Act for the making of an order under s 66 of the ND Act in that they have made reasonable efforts to resolve this dispute prior to commencing this proceeding.

Arborist report to the Tribunal

37. [37]
    A Tree Assessor’s Report was commissioned and provided under orders from the Tribunal by Mr Michael Sowden on 10 December 2022 after his site visit on that date. That was almost two and a half years ago. There is no suggestion that any work had been done by the first respondent since then.
38. [38]
    Neither party called Mr Sowden or cross-examined him. The first respondent sought to criticize his conclusions.
39. [39]
    He found, and I accept, that the applicants’ property adjoins the tree-keeper's property and is separated by a fence structure. The applicants’ land therefore meets the requirements of s 46(b)(i) of the ND Act. The base of the tree subject to this application is wholly situated on the tree-keeper's property. Therefore, the tree subject to this application meets the provisions of s 47 of the NOR Act as defined in ss (1) as this tree dispute is wholly or mainly situated on the tree-keeper's property.
40. [40]
    As to whether the applicants’ land is affected by the tree, he found, and I accept, that the Lemon Scented Gum subject to this application presents as a typical example of its species within this urban area in consideration of its maturity and past maintenance. At the time of the assessment the tree had a DBH2 of 900mm, an estimated height of 25-30m, an estimated canopy spread of 17-20m and a southern canopy spread over the applicants’ property of 7.5m. The foliage appears as being within normal parameters with foliage size, density and coverage being within expected parameters and consistent with other trees of a similar species in the adjacent local area.
41. [41]
    He concluded, and the first respondent disputes that the upper canopy has multiple deadwoods present with several being more than 50mm in diameter. I find that there have probably been some such deadwoods removed and some less significant ones may remain although the photographs are inconclusive as to this.
42. [42]
    He found, and I accept, that multiple small pruning wounds are visible within the upper canopy with their locations indicating that much of the past pruning being performed on the southern side of the canopy over the applicants’ property. No significant structural issues or pathogen activity were noted within the upper canopy. The canopy is formed above a single trunk with the basal root crown which appears as typical being located within 1.0m of the dividing fence structure. Significant amounts of leaf and bark debris were present within the applicants’ property that could be identified as originating from the first respondent’s tree.
43. [43]
    He referred to the Avery Trees report and one from Independent Arboricultural Services, authored by Mick Mayer, dated 8 November 2021 and obtained by the first respondent. He noted that both reports recommended that pruning be performed within the canopy. He noted that the first respondent told him he would prefer that no further pruning be conducted as he believes that the pruning performed in June 2022 was adequate.
44. [44]
    He found, and I accept, that the pruning wounds visible at the time of assessment show that pruning was performed, however, several larger deadwoods were still present and the overhang of the applicants’ property was still significant.
45. [45]
    He found, and I accept, that aerial imagery with an overlay showing the position of sun movement indicated that the tree was likely causing a partial obstruction to sunlight reaching the applicants’ dwelling mainly during the morning. This does not seem to constitute a severe obstruction of sunlight to a window or roof of a dwelling on the neighbour's land within the terms of s 66 of the ND Act.
46. [46]
    He found, and I accept, that this is a mature tree with high ecological and amenity values to the surrounding area. The applicants had and still have expressed significant concerns regarding the potential for limb failures to impact within their property potentially causing personal injury and/or property damage.
47. [47]
    He found, and I accept, that outside of unpredictable extreme weather events during which it is unlikely that people would be present within the fall radius of the canopy, the branches within the upper canopy except for the visible deadwoods in my opinion represent a relatively low risk of failure but given the elongated nature of the canopy over the applicant’s land, should failures occur they would likely impact within the applicants’ property.
48. [48]
    Sections 71 and 72 of the ND Act provide that the primary consideration is the safety of any person, but that the removal or destruction of a living tree is to be avoided.
49. [49]
    He found, and I accept, that:

Whilst …the potential for limb failures from this typical Corymbia citriodora subsp. variegata (Lemon Scented Gum) to occur within the next 12 months is low there is a potential for the visible deadwoods above the applicant's property to fail and cause impact.

The issues raised with this application can be potentially satisfactorily resolved through arboricultural pruning works and therefore the removal of this Corymbia citriodora subsp. variegata (Lemon Scented Gum) is not recommended.

It is recommended that to achieve the highest possible risk mitigation that the elongated limb within the southern canopy of this Corymbia citriodora subsp. variegata (Lemon Scented Gum) that is directly above the applicant's property be considered for reduction and the remaining canopy have the accessible deadwoods removed.

The applicants agreed in principle to my proposed pruning recommendations but would still prefer that this Corymbia citriodora subsp. variegata (Lemon Scented Gum) be pruned to behind the alignment of the dividing fence or removed in its entirety.

3.10. It was explained to the applicants that pruning to the behind the alignment of the dividing fence could not be recommended Arboriculturally justified as pruning to or behind this arbitrary line would likely provide a negligible reduction in risk potential whilst causing an excessive amount of wounding resulting in stress induced regrowth over the applicant's property increasing the debris accumulation that is occurring.

3.11. The tree-keepers expressed that they believed the pruning performed in June 2022 resolved the issues raised within the application and raised their concerns regarding the potential for this recommended limb reduction to cause tree instability by altering the canopies symmetry and weight loadings, as well as creating a large wound.

3.12. In my opinion the recommended pruning could be performed within the guidelines of Australian Standard 4373-2007 "Pruning of amenity trees" and would have minimal detrimental effect on the future stability of this Corymbia citriodora subsp. variegata (Lemon Scented Gum), or cause a significant pathway for pathogen infestation.

3.13. Given the expected normal growth rates and response to pruning it would be expected that future maintenance would be required at intervals not exceeding three (3) years.

3.14. Given there is a pending Natural Assets Local Law 2003 ("NALL 2003") tree protection order on this Corymbia citriodora subsp. variegata (Lemon Scented Gum) consultation with the Brisbane City Council should be made prior to any tree interference.

50. [50]
    No structural or significant pathogen infestations were identified at the time of assessment by the Arborist Mr Sowden, although the applicants would contend that there were some infestation or fungus of significance. I prefer the arborist’s expert opinion on that issue.
51. [51]
    The Arborist Mr Sowden’s report concludes, and I accept, that this tree is a typical mature example of its species. Removal is not recommended. However, as the primary consideration is the safety of people, then pruning could satisfactorily resolve the issues raised by the applicants. He concludes that:

Pruning therefore is recommended within the guidance of Australian Standard 4373-2007 “pruning of amenity trees” to reduce the overhang of the canopy back towards the alignment of the dividing fence structure and the removal of all accessible deadwoods greater than 25mm in diameter throughout its canopy.

Given the location of this tree these works would likely need to be performed by a suitably qualified and experienced climbing arborist with access to both properties…. Given the normal growth response of Eucalypt trees to pruning events it would be expected that ongoing maintenance would be required every three (3) years.

The first respondent’s attack on the conclusions of the Sowden report

52. [52]
    The first respondent seeks to attack the findings of Mr Sowden principally on the basis that I should prefer what he says are conflicting opinions held by the arborist he engaged and also his personal interpretation of what the Australian Standard 4373-2007 “Pruning of amenity trees” has to say about achieving balance.
53. [53]
    He argues that despite acknowledging that the likelihood of injury to person is low, that there are no structural issues or pathogen, the risk of failure is low, and the risk of failure within the next 12 months is low, the report recommended that to achieve the highest possible risk mitigation the elongated limb in the southern canopy that is directly above the applicants’ property be removed for reduction and the remaining canopy have the accessible deadwoods larger than 25mm in diameter removed.
54. [54]
    In my view, to solely focus on risk of failure, which could have serious or even catastrophic consequences if a person was beneath the tree when it failed, and to focus on what he says was that risk in the 12 months since that report was written is misconceived. Risk is not the only factor which is relevant to whether orders should be made.
55. [55]
    The first respondent denies that there is accessible deadwood greater than 25mm in diameter in the overhanging canopy, but says that if the deadwood is the concern, this should have been the extent of the suggestions rather than removing the entre limb. Self-evidently, deadwood is not the only concern.
56. [56]
    The first respondent submits that the relevant Act does not require the highest possible risk mitigation to be undertaken and that the suggestions contained in the report are inconsistent with the requirements of the Act.
57. [57]
    He says that based on these inconsistencies and contradictions, the respondent obtained a further expert report from Independent Arboricultural Services, authored by Mick Mayer, dated 24 March 2023 (‘the second Maher report’) which provided opinion on the current status of the tree, as well as the inconsistencies contained in that QCAT Tree Assessment Report. The first respondent submits that the further expert report did not agree with the contents of the report of the Arborist Mr Sowden for QCAT.
58. [58]
    In the second Maher report, now two years old, it is concluded that:

The Subject Tree presents with suitable flare and attachment in loam soil with no sign of heave. A fungal fruiting body was located on the Southern stem base likely Ganoderma applanatum (Bracket fungi) a key indicator of internal decay. It is considered this newly identified fungal growth does not indicate an advanced decay site warranting further investigation as this time.

The main trunk is relatively upright with primary branches present in the mid to upper sections of the main stem which appear to have suitable attachment. The canopy of the tree presents typical of a species of its age and type is considered suitably foliated and balanced. Prior pruning points are noted with a clear reduction of deadwood since last assessment.

Two remnant stubs were noted at the time of assessment, approximately 30cm in length, with the fall zone identified within the Subject Property.

Minor deadwood is noted within the canopy and considered less than 25mm in diameter. This deadwood is of low risk and does not warrant remedial works to manage at the time of inspection.

The Subject branch overhanging. extends approximately 7 metres into the neighbouring property. The target area of the Subject branch is primarily a small maintained backyard with lawn, shrubs, garden area of approximately 40m².

59. [59]
    In the second Maher report, now 2 years old, it is concluded that:

In response to the QCAT order to reduce the Subject Branch back to the upright lateral branch it is the author's opinion the recent deadwooding, reduction and formative pruning undertaken on 16 June 2022 has managed the tree to mitigate risk. Works have been done in accordance with NALL requirements of a maximum 20% canopy pruning within a 12 month period.

It is considered further reduction of the Subject Branch to the upright internal branch exceeds the NALL policy.

The extent of proposed reduction pruning is considered outside AS4373:2007 with the remaining upright less than 1:3 of the Subject Branch. As the current Subject Branch already presents with a low risk of failure, as acknowledged in the QCAT Tree Assessment Report, attempting to lower risk further is considered unwarranted intervention with no Arboricultural benefit to the Subject Tree.

It is the authors opinion that removal of the Subject Branch as directed will impact on canopy symmetry and reduce canopy foliar coverage with no Arboricultural or risk management justification.

60. [60]
    No other arborist suggests canopy symmetry is a matter of any critical significance, and I am not persuaded having regard to what it proposed by way of removal or reduction of the southern overhanging limb to the vertical growth point will lead to inappropriate asymmetry or any other issues of concern.
61. [61]
    His suggestion that there be a visual tree assessment undertaken in 12-24 months was one that has been overtaken by the passage of time.
62. [62]
    In the report of the Arborist Mr Sowden, he states the Lemon Scented Gum, the subject of this application, has extremely high ecological and amenity values. In his opinion, it is only partially causing an obstruction to sunlight reaching the applicants’ dwelling and is only partially contributing to the accumulation of tree leaf debris within the applicants’ property.
63. [63]
    The Arborist Mr Sowden considers that the issues raised within this application can be potentially satisfactorily resolved and the future risk be significantly reduced through arboricultural pruning works and therefore it is recommended that to achieve the highest possible risk mitigation that the elongated limb within the southern canopy of this Corymbia citriodora subsp. variegata (Lemon Scented Gum) that is directly above the applicants’ property be removed at the marked point in Image 1 to his report marked “remove limb to junction point” and the remaining canopy have the accessible deadwoods removed.

Submissions of the parties and disposition

64. [64]
    In final submissions, the applicants and the other parties focussed on what the outcome should be and why.
65. [65]
    The applicants set out their ideal position as being that the tree be removed on several bases.
66. [66]
    First, that the first respondent had failed to remediate when put on notice of the problems. Secondly, his recalcitrant attitude, continually challenging the opinions of the expert arborist as to what work was required. Thirdly, that he wished to advance his own opinions and analyses from an engineering perspective over those of real experts. Fourthly, that the presence of the tree causes the family anxiety and because of the medical conditions he developed as the result of the male applicant’s military service, he is caused distress by the presence of the tree and to the extent that he and his family have had to move out of their house and live elsewhere because of this distress. Fifthly, the fact that this has been going on since 2021 and no real solution has been put forward.
67. [67]
    Sixthly, they contend that the evidence shows that there is some fungi present means the tree is at risk of dying or decaying. The arborists all disagree with that.
68. [68]
    They ask that the VPO be removed. As to the that issue the second respondent council has put on record that if the Tribunal ordered the removal of the tree, it would revoke the VPO.
69. [69]
    Having said those things, the applicants are on record as being open to a reasonable approach if the tree is not to be removed. They suggest pruning according to the expert arborists and further ongoing maintenance of the tree, including removal of deadwood. They seek orders for a report in relation to any ongoing decay. They would seek yearly inspections and a report completed at the same time at each year, and that these reports be provided annually for the rest of the life of the tree.
70. [70]
    Hence, the applicants principally want an order for the destruction and removal of the offending tree but in the alternative want some other orders that relate to the tree being kept but trimmed and maintained in some particular way which was not fully articulated.
71. [71]
    For the council, it is submitted that having a regard to safety and impact issues no one can identify any significant fault in the tree, and there is therefore little risk of catastrophic failure. I accept that submission. It submits that there should be ongoing management, including pruning, inspection and canopy reduction in accordance with the report of the Arborist Mr Sowden. It submits that there are common issues in this suburb with tree litter and debris because it is a well forested neighbourhood.
72. [72]
    Hence, the position of the second respondent council was that while it acknowledges the ongoing management of tree debris entering the applicants’ property, it considered that complete removal of the tree would be a disproportionate response to dealing with the issue of tree debris management. It submitted that pruning work carried out in accordance with recommendations as detailed in section 4.11 of the Sowden Tree Assessment Report provides a reasonable alternative to reduce vegetation debris.
73. [73]
    The first respondent submits that there were no issues in relation to the tree prior to 2021. He submits that the tree canopy is at low risk of failing and pruning is unjustified, and that the dead wood has already been removed. He submits that the tree has not caused any injury or damage to property. He submits that inspections need only be done by level three inspectors, not level five. He submits that the tree should be inspected every 3 years and pruning as required and the removal of any deadwood identified then. He submits that the tree withstood cyclonic winds this year and inferentially, always would do so.
74. [74]
    He cast doubt on the genuineness of the applicants’ claims of vulnerability and concern by reference to the fact that he too had a child who lived there and he was not concerned and felt safe. He would have the 2021 crushed roof incident treated as a “freak storm”. Sadly, such storms had become quite frequent in recent years. He contends that they have done everything they could have done.
75. [75]
    In my view, these submissions are misplaced and demonstrate a lack of appreciation of the responsibilities that are attached to a tree-keeper. His contentions seek to diminish or ignore the significant factors that justify intervention and which he says arise under s 46 that concern serious injury to a person on the land  or serious damage to the land or any property on the land but ignoring the factor in s 46 that, as here, there is substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land, and that damage has been caused to another neighbour’s property albeit not these neighbours.
76. [76]
    In my view, the necessity for an order to be made is obvious and the legal basis for making one has been made out. There is substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land, and it is “not slight or negligible”.
77. [77]
    I will not order the removal of the tree but will make an order that accords with the recommended maintenance regime proposed by the arborist but with some modification to ensure ongoing inspections occur by an independent arborist.
78. [78]
    I order that:

    1. The first respondent cause there to be reduction pruning of the Lemon Scented Gum to reduce its canopy back the marked point in Image 1 to his report marked “remove limb to junction point” and that such reduction pruning be carried out within 40 days of the date of the making of this order.
    2. In the course of having the reduction pruning carried out as referred to in order (a) that the first respondent cause there to be removal of all accessible deadwoods greater than 25mm in diameter throughout the canopy of the Lemon Scented Gum.
    3. Within 40 days of the date of the making of this order the first respondent cause an attending climbing arborist to also perform an inspection of the upper canopy not visible from ground level and rectify/ report any issues found during each climbing event.
    4. The first respondent cause there to be future maintenance of the Lemon Scented Gum at intervals of 2 years in the course of which it is to be inspected and also that there be removed deadwood and works to ensure there is maintained a spread of the canopy at the size it attains after the initial prune in order (a) to the Lemon Scented Gum.
    5. All of those works in (a) to (d) shall be performed by a minimum Australian Qualifications Framework (AQF) level three (3) qualified arborist.
    6. The attending arborist / company shall provide proof of current Public Liability and Work Cover insurances prior to works onsite.
    7. The first respondent causes all tree debris following any such works to be removed from the applicants’ property and the first respondent’s property after the recommended pruning and maintenance is performed.
    8. All pruning shall be performed in compliance with the requirements of Australian Standard 4373-2007 "Pruning of amenity trees" and the arborist performing the work is to be so instructed. Compliance with that order does not affect the requirement to perform the works in orders (a) and (b). 
    9. Climbing spurs/climbing gaffs/climbing irons shall not be used during pruning works.
    10. I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.