McLachlan v Williams (No 2)[2025] QCAT 312

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Overview

1. [1]
   The parties are immediate neighbours in an urban residential suburb of Brisbane. Mr Garnett’s address is 56 Beauvardia St, Cannon Hill where he has lived there for several years. The trees on his land are well established, but regrettably the growth of them has now got to a point where their root systems are spreading into the McLachlan’s property. The McLachlans address 60 Beauvardia St, Cannon Hill. They assert that the root growth from Mr Garnett’s trees has caused serious damage to their land and structures thereon.
2. [2]
   Their efforts to resolve their complaints with Mr Garnett were not successful, and so they sought relief in this Tribunal. Such has been a tumultuous ride.
3. [3]
   Their original effort was dismissed in 2018 as a result of an absence of evidence to support their action.^[1] Their second attempt is this proceeding, it being commenced in December 2020. It too was initially dismissed in January 2024 once again due to an absence of sufficient evidence to support their action, but then following a successful application made by them to have it reopened it continued from early November 2024 ultimately leading to a hearing before me.
4. [4]
   But the tumult continued given once again an absence of sufficient evidence being presented. On the occasion of the first hearing day they were absent the requisite degree of evidence to support their claim for payment of damages. Without objection they were afforded one more opportunity to present their case in its entirety, such causing the second hearing day.
5. [5]
   Their tumultuous ride was made even more cumbersome due to the manner in which Mr Williams chose to conduct his response to the claims against him. He did not file any written material, such including the absence of a Form 52 – Response to Application for a Tree Dispute. Yet, he appeared at the hearing and sought to challenge the proceeding against him.
6. [6]
   Notwithstanding the absence of any written material having been filed, given the need for a return for a second day of hearing to allow the McLachlans the opportunity to shore up their evidence, I allowed Mr Williams the opportunity to present any oral evidence from himself he wished to in that second day. Whilst he took up that opportunity, he did not present any substantive case in response, his arguments absent any supporting evidence, they being nothing more than at best mere conjecture and hypothesizing by him.
7. [7]
   Whilst the McLachlans’ case was at times clumsy and disjointed, overall they are to be commended as lay persons for the presentation of their case. In the end it got there. For the reasons I discuss herein, they succeeded on the majority of their case against Mr Williams. Mr Williams, as the relevant tree-keeper, failed to take the requisite steps to ensure damage to the McLachlan’s property was avoided. He should have acted promptly when the issues became readily apparent several years ago. But he did not, seemingly either choosing to ignore it or holding the opinion that it was a problem the McLachlans should live with given their choice to build their house as a slab-on-ground structure without having first identified the risk of root encroachment. Either way, it was an entirely misguided approach to take. As the tree-keeper the responsibility fell squarely on to Mr Williams.
8. [8]
   Accordingly, orders were made requiring the destruction of the trees on his land and their root systems which are the cause of the McLachlans’ problems. I also accepted their case for payment of damages and so made the relevant compensation orders. To the extent they did not succeed, such was limited solely to certain costs of bringing these proceedings against Mr Williams.

The Competing Cases

For the McLachlans

9. [9]
   Eleven (11) trees are growing on Mr William’s land, such which are approximately one (1) metre inside the boundary common with the McLachlans’ land.^[2] They are of various species, such which appear to have been planted as landscape amenity, or are naturally occurring weed species. Six (6) of them are identified as being ‘melaleuca’, two (2) are identified as being ‘Chinese elm’, with the remaining three (3) being separate different species. In March 2022 they were recorded as being ranging in height from 3 metres to 23 metres.^[3] By November 2024 it was reported that these trees overhang the common boundary by up to six (6) metres.^[4] (the Trees).
10. [10]
    The McLachlans purchased their property in October 2013, demolishing the existing dwelling thereon and engaging a builder to build a new house on the land. They moved in to their new home in December 2014. Since then things have not gone well for them in terms of their dealings with Mr Williams. They have experienced problems with branches from his trees overhanging the common boundary, and root encroachment from the trees on to their land. As they explained it, their efforts to have engaged with Mr Williams were often not answered, or when answered it was often weeks or months later.^[5]
11. [11]
    The root systems of the Trees have since caused damage to structures on the McLachlan’s land, namely heaving of the concrete driveway,^[6] has affected stormwater drainage,^[7] and it is reported that such will cause constant drying and swelling of the foundation material to their house.^[8] The McLachlans assert that to the date of the second hearing day, they have incurred in total $9,790 to repair the damage.^[9]
12. [12]
    The relief the McLachlans seek from this Tribunal is:^[10]

    1. The Trees be destroyed including their stumps and root systems;
    2. Monetary compensation from Mr Williams of:
       1. (i)
          The repair costs of $9,790; and
       1. (ii)
          Their costs of this proceeding, namely the filing fees for the application that commenced this proceeding plus the reopening application, the costs of the arborists’ reports, and the costs of the plumber for inspection of the stormwater drainage, which they say is a total of $3,657.50;^[11]
    3. Leave to apply for further relief in terms of other consequential damage if discovered.

For Mr Williams

13. [13]
    As I noted it earlier, Mr Williams failed to file any written material, and his oral evidence was sparse in detail. At its highest he made the following bare assertions:

    1. He purchased his land towards the end of 1990 and planted the Trees having taken advice from people at a nursery;
    2. The Trees filter water and air in the area;
    3. The soil in the area is clay and so requires special construction;
    4. The McLachlans did not have an adequate and proper site investigation performed prior to building their house. Had they done so they would have recognised the need for alternative construction to allow for the effect of the Trees.
14. [14]
    However, notwithstanding these statements made by him when giving his evidence-in-chief, under cross-examination he agreed:

    1. Branches from the Trees overhang the common boundary with the McLachlans;
    2. The Trees are causing substantial and unreasonable interference to the McLachlans;
    3. The Trees have caused damage to the McLachlans’ property;
    4. There is no alternative available option to deal with the root encroachment and the Trees should be removed together with their stumps.
15. [15]
    He did however maintain under cross-examination that he should not be held liable for compensation. He said this was because the McLachlans should have taken steps before they had their house built to recognise the risk of, and allow for, root encroachment.
16. [16]
    In presenting his closing, whilst on questioning from me he agreed that the root system of the Trees should be destroyed, he repeated this last argument effectively submitting that the Trees were there first and thus, as I understood what was at times a confused and confusing submission, he should not be held liable for the expense of doing same or at the very the costs the McLachlans were claiming compensation for.

The Issues

17. [17]
    This contest falls to be decided under Chapter 3 Part 5 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ND Act).
18. [18]
    It is not in issue that each of the Trees is a ‘tree’ for the purposes of that Act, and that there is more than one of them to be dealt with. It is common ground that the parties’ respective properties adjoin each other, and that the Trees are on Mr William’s land such that for the purposes of the Act he is the tree-keeper and so is responsible for the proper care and maintenance of the Trees, and that the McLachlans are a neighbour relative to Mr Williams as the tree-keeper, all being terms used in the ND Act. As such no issue arises for determination in regard thereto.
19. [19]
    The sole issue is whether the McLachlans’ land is ‘affected by a tree’ as that term is used in the Act, more specifically one or more of the Trees; and if so what is the relief the McLachlans are entitled to.

Relevant Law

20. [20]
    For ease of reference, extracted here are the relevant provisions of the ND Act:

Part 1 Introduction

41  Overview

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

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

1. …;

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

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

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

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

…

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

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

2. …

Part 2 Interpretation

46  When is land affected by a tree

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

1. any of the following applies—

1. branches from the tree overhang the land;

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

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

1. (B)
   serious damage to the land or any property on the land; or

1. (C)
   substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land; and

2. the land –

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

1. (ii)
   …

47 When is a tree situated on land

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

2. …

50  Meaning of work

Work, on a tree, includes—

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

2. …; and

3. destroying the tree.

51 Meaning of destroy

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

Part 3 Responsibilities, liabilities and rights

52  Responsibilities of a tree-keeper

1. A tree-keeper is responsible for cutting and removing any branches of the tree that overhang a neighbour’s land.

2. A tree-keeper is responsible for ensuring that the tree does not cause—

1. serious injury to a person; or

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

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

3. ….

Part 4 Removal of overhanging branches

57 Notice for particular overhanging branches

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

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

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

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

3. The notice must—

  (a) …

Part 5 QCAT orders to resolve other issues about trees

61 Jurisdiction

QCAT has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that, as at the date of the application to QCAT, land is affected by the tree.

…

65  Requirements before order may be made

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

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

2. …;

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

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

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

4. the neighbour has given copies of the application under section 63, other than to the extent the requirement has been waived.

66  Orders QCAT may make

1. Division 4 states the mattes for QCAT’s consideration in deciding an application for an order under this section.

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

1. to prevent serious injury to any person; or

2. to remedy, restrain or prevent—

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

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

1. (3)
   …

5. Without limiting the powers of QCAT to make orders under subsection (2), an order may do any of the following—

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

…

4. authorise a person to enter the tree-keeper’s land to carry out an order under this section, including entering land to obtain a quotation for carrying out an order;

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

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

7. require a report by an appropriately qualified arborist.

Division 4 Matters for QCAT consideration

70  Application of div 4

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

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

71 Safety

The primary consideration is the safety of any person.

72 Removal or destruction of living tree to be avoided

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

73  General matters to consider

1. QCAT must consider the following matters—

1. the location of the tree in relation to the boundary of the land on which the tree is situated and any premises, fence or other structure affected by the location of the tree;

…

4. any contribution the tree makes to the local ecosystem and to biodiversity;

5. any contribution the tree makes to the natural landscape and the scenic value of the land or locality;

…

7. any contribution the tree makes to the amenity of the land on which it is situated, including its contribution relating to privacy, landscaping, garden design or protection from sun, wind, noise, odour or smoke;

8. any impact the tree has on soil stability, the water table or other natural features of the land or locality;

10. the likely impact on the tree of pruning it, including the impact on the tree of maintaining it at a particular height, width or shape;

11. the type of tree, including whether the species of tree is a pest or weed (however described) or falls under a similar category under an Act or a local law.

2. …

74 Other matters to consider if serious injury or damage alleged

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

1. anything other than the tree that has contributed, or is contributing, to the injury or damage or likelihood of injury or damage, including any act or omission by the neighbour and the impact of any tree situated on the neighbour’s land; and

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

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

1. how long the neighbour has known of the injury or damage; and

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

3. anything other than the tree that may have caused, or contributed to, some or all of the injury or damage; and

4. any other matter QCAT considers relevant.

75  Other matters to consider if unreasonable interference alleged

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

…

2. any steps taken by the tree-keeper of the neighbour to prevent or minimize the interference;

…

4. whether the tree existed before the neighbour acquired the land; and

…

Discussion on the Contest between the Parties

Threshold issues

21. [21]
    I am satisfied that the requirement of s 65(a) of the ND Act has been met. As I noted it earlier herein, the McLachlans explained the efforts they had made to engage with Mr Williams which I infer was in an attempt to reach an agreement with him about the Trees. As they described it, those efforts were met with Mr Williams effectively being non-responsive.
22. [22]
    As I noted it earlier herein in ‘Overview’, the manner in which Mr Williams conducted his response to this proceeding against him seemed to me consistent with that as described by the McLachlans. I interpreted it as demonstrating a belligerent attitude having been adopted by Mr Williams, which I accept at face value was that in which he engaged in with the McLachlans. As such it could not be said that the McLachlans did not make a reasonable effort to reach an agreement with Mr Williams. I am also satisfied that the remaining relevant provisions of s 65 of the ND Act as I extracted them earlier herein have been met.^[12]
23. [23]
    For these reasons there was no statutory prohibition to the McLachlans pursuing the relief they sought in this proceeding.

The Relevant Evidence

24. [24]
    In the section of these reasons entitled ‘The Competing Cases’ I identified the essence of the McLachlans’ complaint and Mr Williams’s response to it. I need not expand on it in any detail. It suffices to simply observe that this demonstrates the extent to which the McLachlans assert they have been affected by the Trees, and will continued to be affected by them should substantial remedial action not be taken. Their case is supported by the two Arborists who have provided reports to the McLachlans, a Mr Naylor and a Mr Mumford.
25. [25]
    As stated by Mr Naylor:^[13]

Majority of the subject trees are classified as inappropriate specimens from an aboricultural (sic) perspective and are problematic now which will only increase in the near foreseeable future.

… The subject trees interfere with reasonable enjoyment of land …

The form of interference is both physical and unduly. The continual impacts from the tree root encroachment … cannot be successfully mitigated through convention (sic) arboricultural (sic) practices. Continual tree pruning will result in high expenditure and elongated branch formation which could influence branch and/or total tree failure. The placement of a root barrier less than one (1) metre from the lower trunk region will likely result in total tree failure.

The organic nature of trees makes them inherently variable, which in turn is compounded by an almost unlimited range of environmental influences. In the face of such variability, it is clearly apparent the retention of the subject trees is no longer viable …

… The subject tree are to be removed the mitigate the associated risks …

26. [26]
    Mr Naylor was not presented as a witness to confirm his report or be cross-examined, however Mr Mumford was, he giving evidence that he had read Mr Naylor’s report and save only to the extent he provided some additional comment or made a correction in terms of the identification of one or more of the Trees he opined it to be correct and adopted it.^[14]
27. [27]
    In referencing the Trees by specific T# as given by Mr Naylor, Mr Mumford expressed the following opinions:

    1. In terms of T#2 & # 5, identified  by Mr Naylor as a ‘Chinese Elm’, they are a large stature tree when mature achieving a height of up to 30 m, and declared to be a “significant environmental weed”, and should be removed.
    2. In terms of T#9, Mr Naylor had not correctly identified it, Mr Mumford identifying it as a 'Himalayan Ash’, which he stated is declared by the Brisbane City Council as ‘Council Pest Vegetation’, describing it as having “an invasive root system” which “can develop a root spread of up to 15m to 20m and should (be) (sic) planted no closer than 4 m to structures …” and recommending it be removed.
    3. He had identified root growth on the McLachlan’s land as being consistent with growth from the trees identified as ‘melaleuca’.
    4. He recommended against root severance and installation of a root barrier due to a resulting adverse effect on “tree health and vitality as well as tree stability”, such that will “compromise the structural integrity and long-term health of the subject trees”.
    5. He opined “Removal of the subject trees will eliminate the impacts to concrete infrastructure and potential future matric suction forces on the founding soil beneath the dwelling at 60 Beauvardia St.
28. [28]
    This evidence, which is uncontradicted by Mr Williams, shows that the McLachlan’s land is affected by the Trees in a manner consistent with that provided for under s 46 of the ND Act. In terms of the application of that provision, Judicial Member Dodds expressed this observation in Belcher v Sullivan:^[15]

‘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”.

‘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.

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

29. [29]
    The evidence provided to which I have just referred shows the damage to be more than slight or negligible, and the interference to be real and of considerable importance. The Trees are the cause of not only serious damage to the land and property on the land, but also a substantial, ongoing, and unreasonable interference with the McLachlan’s use and enjoyment of their land.
30. [30]
    In turn, Mr Williams, as the tree-keeper, was and is responsible for ensuring that neither of these circumstances was to have occurred, such as is provided for under s 52 of the Act. But he has not done so. It is thus appropriate that this Tribunal exercises the jurisdiction it is afforded and make the relevant and appropriate orders under s 66(2) of the Act to remedy that which has occurred and prevent the continuing damage and/or interference.
31. [31]
    Noting that which the Tribunal must consider under s 73 of the Act, the following should be observed:

    1. The Trees are very close to the common boundary;
    2. Notwithstanding the unsubstantiated comments by Mr Williams as to the benefits the Trees allegedly give to the area, there is no evidence that they contribute to the local ecosystem and biodiversity, or to the natural landscape and scenic value of the land or locality. Nor is there any evidence that the Trees contribute to the amenity of his land.
    3. There is evidence contained in the reports of both Mr Naylor and Mr Mumford that the Trees have an adverse impact on the soils in the area of the McLachlans’ building, that the Trees will be adversely impacted if pruned, and moreover that some of the Trees are declared weed species.
32. [32]
    On the basis of that contained in the reports of both Mr Naylor and Mr Mumford, it seems to me that the only solution is to destroy all of the eleven (11) trees, including the removal of the stumps, and to take steps to ensure that the root system of each is destroyed so as to ensure that there is no chance of regrowth, all falling within the ambit of ‘work’ and ‘destroy’ as those terms are defined in s 50 and s 51 of the Act.
33. [33]
    This is so notwithstanding the provisions of s 72 of the Act. Once again in reference to the reports of Mr Naylor and Mr Mumford, there is no manner in which the issues can otherwise be satisfactorily resolved, root severance and root barrier systems not being a viable alternative.
34. [34]
    Finally, and for completeness, one further point should be made, such addressing in part that contained in s 74 and s 75 of the Act. The evidence as it was before me was overwhelming in terms of showing the absence of positive steps being taken by Mr Williams to deal with the issues of concern to the McLachlans. As I noted it in the opening passage of these reasons, there has been a long history to this proceeding. From that single fact I readily draw the inference that Mr Williams has known about the issue for a very long time. Yet, he effectively did not do anything to deal with it, and moreover failed to respond in any way in terms of this proceeding other than to attend the substantive hearing in an effort to make a case in defence, albeit one which ultimately conceded the Trees had to be removed. But it was no excuse to say that the trees were there first. Whilst that may be a fact, and thus sometimes one appropriately considered given that included in s 75(d) of the Act, it is not in this instance a relevant fact given what I observed in paragraph [31](b) herein.
35. [35]
    For all these reasons, I did not see any reason not to adopt the recommendations of Mr Naylor and Mr Mumford in terms of the work to be performed to the Trees so as to alleviate the detrimental effect on the McLachlan’s land. Orders were thus ultimately made to give effect to those recommendations, namely the destruction of the Trees.

The Compensation Claims

36. [36]
    The remaining issue thus was whether Mr Williams should compensate the McLachlans for the cost they have incurred in having works attended to on their land, such being necessitated as a result of damage caused by root infestation, and in turn their conduct of this proceeding.
37. [37]
    Under s 66(5)(f) of the ND Act, compensation may be ordered for damage to the land or property. It is this provision the McLachlans rely on in seeking an order that Mr Williams pay them the $9,790 they have expended.
38. [38]
    Mr Williams case in response was that the Trees were there first, and an asserted failure by the McLachlans to have undertaken a proper and adequate investigation of the land before they had their house built. He thus submitted that he should not be held liable for these costs.
39. [39]
    I did not accept that as being a valid reason. Not only was his assertion of an inadequate investigation bare and devoid of any supporting evidence to give it some substance, thus it being mere conjecture and speculation, he failed to recognise that some of the trees are declared weed species, that in most instances they have a very invasive root system, and overall that they are entirely inappropriate species to be planted in an urban environment very close to a boundary. That being so, in my opinion it was not a matter for the McLachlans to have informed themselves, prior to having a house built, of any risk resulting from the presence of the Trees and that upon becoming so informed chosen a method of construction of the house so as to provide for future root invasion from the Trees and so avoid damage to the building elements. It was for Mr Williams as the tree-keeper to have taken all relevant steps to have ensured that root invasion, that had the potential to cause such damage, did not occur.  
40. [40]
    I was satisfied on the evidence as presented by the McLachlans that they had incurred this cost and that it was both reasonably incurred and of a reasonable amount. I did not see any reason why Mr Williams should not be required to compensate them for this loss, such having been incurred solely as a result of the root invasion from his Trees. An order was thus made for same.
41. [41]
    As to the balance of the compensation claimed by the McLachlans, namely the $3,657.50 for the costs of this proceeding, they press their claim reliant on s 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Three things only need be said about that, namely:

    1. I will allow the claim for recovery of the application fee they paid of $352 for commencing this proceeding because in my opinion, notwithstanding it was originally dismissed but then later reopened, as it has been shown by virtue of its outcome it was a proceeding appropriately commenced by them given Mr William’s attitude in response to their efforts to have the problems dealt with;
    2. I will not allow the claim for recovery of the application fee of $379.50 for applying to have the proceeding reopened, because the dismissal and the corresponding need to seek to reopen the proceeding was a direct result of their second failure to have adequately presented their case. Notwithstanding the attitude adopted by Mr Williams that necessitated the bringing of this action, there is no reason why he should be burdened with a cost arising solely as a result of the McLachlan’s inability to properly present their case initially.
    3. I will not allow the claim as made for the costs of the arborists’ reports or the cost of the plumber, because there is no evidence before the Tribunal of what that cost was nor that it has been paid other than a bare assertion of same by the McLachlan. However, I accept at face value that the work has been done and it would ordinarily have come at a cost. That being so, I will allow the McLachlans a total of $1,000 as a cost of obtaining an arborist’s report, such being the cost as noted by this Tribunal in its Directions given in this proceeding on 15 November 2021 as a cost of obtaining the help of a Tree Assessor. Such is in my opinion a reasonable cost. I will not however allow any cost for the plumber in the absence of any evidence of such cost being incurred.
42. [42]
    For these reasons, an order was made requiring Mr Williams to pay to the McLachlans a total of $11,142.00.

Relief sought to apply for further orders re other damage if identified

43. [43]
    The McLachlans also seek an order or orders that provide for a future unknown, described by Mr McLachlan in his oral closing submission as being in the event further damage is discovered. He also sought that which was described as being a ‘direction requiring a management plan if regrowth is discovered’. In doing so he sought to advance his and his wife’s case reliant on s 66(2)(b), (5)(a), (d), (e) and (f) of the ND Act.
44. [44]
    In  presenting his case for this relief he referred me to the decision of this Tribunal in Kendall and Anor v Melenewycz and Anor [2024] QCAT 598. However on my reading of the reasons of Member Roney KC in that matter, there is nothing contained therein which provides support to the McLachlans in this regard. Whilst the legislative provisions to which Mr McLachlan referred provide a means by which an order for future work to be performed can be made, and in particular to ‘restrain or prevent’ which by its very nature suggests something yet to occur, they are not a premise for the broad and very general nature of the order the McLachlans seek. As Mr McLachlan put it, it was for something as yet unidentified and unknown without any degree of certainty that it would arise at some point in the future.
45. [45]
    I was thus unable to conclude that such an order was appropriate at this juncture. Should circumstances be identified in the future that can not be resolved with Mr Williams then it will be a matter for the McLachlans to press further in this Tribunal should they choose to do so by way of a new application.

Conclusion

46. [46]
    On reading and considering the evidence as it was presented to me in the hearing, to the extent I have referred to it herein I was satisfied that the McLachlans had a valid complaint. I was also satisfied it was one being ignored by Mr Williams.
47. [47]
    The Trees are a risk if left as is. There is no solution that can satisfactorily resolve the issues complained of. They must be destroyed. Orders were made to this effect with the relevant consequential orders for attendance to same.
48. [48]
    It was also appropriate that Mr Williams compensate the McLachlans. Orders were also made to that effect.