Withers v McHugh[2018] QCATA 186

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is this appeal about?

1. [1]
   There is a large silky oak tree on Mr Withers’ property (‘the tree’). Mr McHugh, who lives with family in a property adjoining that of Mr Withers, applied to the tribunal for an order that the tree be removed. The focus of the application was the risk, said Mr McHugh, of branches falling into his property. There is a swimming pool on Mr McHugh’s property that is near the tree. In 2008 some large branches fell from the tree into the pool.
2. [2]
   The tribunal ordered that the tree be removed.^[1] Mr Withers appeals against that decision.

Appeals – the statutory framework

3. [3]
   An appeal on a question of law is as of right.^[2] An appeal on a question of fact or mixed law and fact may only be made with the leave of the Appeal Tribunal.^[3]
4. [4]
   If an appeal is one against a decision on a question of fact only or a question of mixed law and fact, and subject to leave to appeal being granted, the appeal must be decided by way of rehearing with or without the hearing of additional evidence as decided by the Appeal Tribunal.^[4] In deciding the appeal, the Appeal Tribunal may confirm or amend the decision or set aside the decision and substitute its own decision.^[5]
5. [5]
   The relevant principles to be applied in determining whether to grant leave to appeal are: is there a reasonably arguable case of error in the primary decision?;^[6] is there a reasonable prospect that the applicant will obtain substantive relief?;^[7] is leave necessary to correct a substantial injustice to the applicant caused by some error?;^[8] is there a question of general importance upon which further argument, and a decision of the appellate court or Tribunal, would be to the public advantage?^[9]
6. [6]
   If an appeal involves a question of law, unless the determination of the error of law decides the matter in its entirety in the appellant’s favour, the proceeding must be sent back to the tribunal for reconsideration.^[10]

Tree disputes – the statutory framework

7. [7]
   The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (ND Act) applies to trees situated on land recorded in the freehold land register.^[11] A ‘tree’ is defined.^[12] A ‘tree keeper’ includes the registered owner of freehold land on which a tree is situated.^[13] A ‘neighbour’ includes the registered owner of freehold land which is affected by a tree.^[14]
8. [8]
   Land is ‘affected by a tree’ if both of the following conditions are met:

   1. any of the following apply: branches from the tree overhang the land;^[15] the tree has caused, or is likely within the next 12 months to cause: serious injury to a person on the land or serious damage to the land or property on the land;^[16] or substantial ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.^[17]
   2. the land affected by a tree adjoins the land on which the tree is situated^[18] or would adjoin the land on which the tree is situated if it were not separated by a road.^[19]
9. [9]
   A neighbour may apply to the Tribunal for an order in relation to a tree.^[20] On application to the Tribunal, the Tribunal may make orders it considers appropriate in relation to a tree^[21] after giving due consideration to a range of specified matters.^[22] The Tribunal 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 the Tribunal, land is affected by the tree.^[23]

A brief history of the proceedings in NDR035-16

10. [10]
    Mr McHugh filed an Application for a tree dispute in February 2016. The parties were directed to file statements of evidence.^[24] Following a compulsory conference on 29 July 2016 the tribunal made the following directions by consent:

    1. (a)
       The tribunal appoint an independent tree assessor to inspect the tree;
    2. (b)
       The assessor provide the tribunal with recommendations for the maintenance or removal of the tree;
    3. (c)
       The tribunal incorporate the assessor’s recommendations into a consent order and the parties would be bound by its terms;
    4. (d)
       The parties bear equally the costs of the assessor.^[25]
11. [11]
    Mr Michael Sowden was subsequently appointed as the tree assessor. Mr Sowden provided his report in January 2017.^[26] In addition to Mr Sowden’s report, the  following reports of arborists were in evidence:

    1. (a)
       report of Peter Bishop dated 15 November 2006, commissioned by Mr McHugh;
    2. (b)
       report of Nick Smith dated 23 March [2016], commissioned by Mr Withers;
    3. (c)
       report of Tony Randall dated 20 May 2016, commissioned by Mr McHugh;
    4. (d)
       report of Adam Tom dated 21 June 2016, commissioned by Mr Withers.
12. [12]
    Mr Bishop, Mr Randall and Mr Sowden recommended the removal of the tree. Mr Smith and Mr Tom recommended retention of the tree.
13. [13]
    The tribunal made directions for the parties to file submissions addressing why orders should not be made in the proceedings in accordance with the earlier consent orders made following the compulsory conference.^[27] The directions also provided for the application for a tree dispute to be determined on the papers. The tribunal subsequently decided the matter.

The decision below

14. [14]
    Relevant to the present appeal the learned member found:

    1. (a)
       That the upper canopy of the tree extended over Mr McHugh’s land by approximately 4 metres;^[28]
    2. (b)
       Mr McHugh’s land was affected by the tree;^[29]
    3. (c)
       The tree was likely within the next 12 months to cause serious injury to a person on Mr McHugh’s land or serious damage to his land or property;^[30]
    4. (d)
       Branches had fallen from the tree on previous occasions;^[31]
    5. (e)
       The tree was over-mature to senescent and due to past pruning had areas of decay;^[32]
    6. (f)
       The appropriate order was for the removal of the tree because:

       1. The tree was situated 0.27 metres from the boundary fence between Mr Hugh’s property and Mr Withers’ property;^[33]
       2. The tree was 23 metres high with a 10 metre canopy;^[34]
       3. The tree canopy was overhanging 4 metres into Mr McHugh’s property;^[35]
       4. The structural root zone of the tree was estimated to extend to an area of 3.04m radius around the trunk of the tree;^[36]
       5. The tree protection zone, which measures the distance around the tree required for its continued health is estimated to be 8.64m;^[37]
       6. The roots of the tree extended well into Mr McHugh’s land and under the pool located on the land;^[38]
       7. Other infrastructure at risk of damage from the tree included the dwellings on both properties and a child’s cubbyhouse;^[39]
       8. The tree leant towards Mr McHugh’s land, having an asymmetrical canopy due to at least three major pruning events and had areas of swelling to the trunk and signs of decay at the places where branches have been lopped;^[40]
       9. There were risks that the tree could cause injury or damage in the event of a cyclone or other extreme weather event;^[41]
       10. The tree was exposed to the wind;^[42]
       11. The tree was between 60 to 70 years old and considered to be “over-mature to senescent”;^[43]
       12. The tree had a long history of limb failure;^[44]
       13. The tree had visible decay within old pruning wounds on several limbs;^[45]
       14. There were numerous epicormically derived branches throughout the canopy which were prone to fail in strong winds due to poor branch attachment;^[46]
       15. The age of the tree meant that the ability of the tree to resist decay in the future will likely decline and that pruning of this tree at this stage of its life and in view of its location is not a reasonable alternative to its removal.^[47]

The grounds of appeal and what the parties say

What does Mr Withers say?

15. [15]
    The grounds of appeal set out in the Application for leave to appeal or appeal are:

    1. (a)
       The learned member failed to consider that the assessment of the tree by the tribunal appointed assessor, Mr Sowden, was not conducted in accordance with the ND Act;
    2. (b)
       The learned member failed to consider that the findings by Mr Sowden set out in his report did not comply with the ND Act;
    3. (c)
       The learned member failed to consider that the assessment undertaken by Mr Sowden ‘is contradictory and does not provide quantifiable justification’;
    4. (d)
       The learned member failed to consider that Mr Withers was fulfilling his obligations as tree keeper under the ND Act.
16. [16]
    Subsequent to filing the appeal, Mr Withers was directed to file submissions addressing, among other things, the errors in the decision below. In the submissions Mr Withers sets out what are, in effect, further grounds of appeal:

    1. (a)
       The evidence did not support a finding that, within the next 12 months, it was likely that the tree would cause serious injury to a person on Mr McHugh’s land or serious damage to his land or property;
    2. (b)
       The learned member erred in finding that the tree had been most recently pruned in May 2016 by an arborist engaged by Mr Withers on the basis that the tree had in fact been last pruned in June 2017;
    3. (c)
       The QCAT appointed assessor, Mr Sowden, did not conduct an industry standard best practice Quantified Tree Risk Assessment which Mr Withers refers to by the acronym ‘TRAQ’;
    4. (d)
       There was no evidence before the learned member that any person had sustained injury as a result of the failure of the tree;
    5. (e)
       The learned member erred in finding that the tree was over-mature to senescent on the basis that evidence was that the tree continued to grow in both height and foliage growth;
    6. (f)
       The learned member erred in finding that the dwellings on both properties and the child’s cubbyhouse situated on Mr McHugh’s property were at risk of damage by the tree;
    7. (g)
       The learned member erred in finding that the tree had no historical, cultural, social or scientific value;
    8. (h)
       There was no evidence to support the finding by the learned member that the land on which the tree is situated is level;
    9. (i)
       There is uncertainty regarding the meaning of the order requiring the ‘removal’ of the tree, as it is unclear whether ‘removal’ includes the tree roots.
17. [17]
    Mr Withers further clarified his grounds of appeal to some extent at the hearing of the appeal. While he remained critical of the deficiencies in the report of Mr Sowden, Mr Withers was also critical of the methodology used by Mr Sowden in undertaking a risk assessment in respect of the tree. This latter issue was first raised by Mr Withers in his written submissions.^[48] As we have identified, this is a fresh ground of appeal. As no objection has been taken by Mr McHugh to Mr Withers’ advancing this submission we will consider the further ground of appeal.  Mr Withers’ submissions on the further ground of appeal can be summarised as follows:

    1. (a)
       Best practice in relation to the assessment of the tree required the use of an approved risk matrix;
    2. (b)
       The TRAQ was required to be undertaken in respect of the tree.
18. [18]
    In essence, Mr Withers says that the methodology used by Mr Sowden in his report was deficient. Mr Withers says that a TRAQ assessment should have been undertaken by Mr Sowden.
19. [19]
    In his Appeal Book and in oral submissions at the hearing Mr Withers expanded upon ground of appeal relating to the assessment undertaken by Mr Sowden:

    1. (a)
       industry best practice for tree assessment requires the use of a quantified assessment tool, such as the tool/s used by Mr Tom;
    2. (b)
       the professional association for arborists expects Level 5-accredited arborists to use a quantified assessment tool;
    3. (c)
       a tree risk assessment using a quantified assessment tool is accurate because it involves a standardised, statistically-based evaluation of risk, and clearly identifies the location of any limbs that pose a hazard;
    4. (d)
       in contrast, other types of assessments, such as that used by Mr Sowden, merely rely on judgments, and involve prediction calls, uncertainty and generalisations;
    5. (e)
       a judgment-based assessment can be affected by unstated assumptions, unconscious biases, and other forms of human fallibility;
    6. (f)
       Mr Sowden’s opinions should not have been relied upon because he did not use a quantified assessment tool;
    7. (g)
       the learned member commented on areas of swelling to the trunk and signs of decay at places where branches had been lopped, but ‘the swelling and signs are subjective’^[49] as no assessment using a quantified assessment tool was conducted by Mr Sowden;
    8. (h)
       Mr Randall’s evidence of ‘numerous epicormically derived branches throughout the canopy’ that were ‘likely to fail in strong wind events due to poor branch attachment’,^[50] which was by accepted the learned member, was not supported by Mr Tom’s assessment using a quantified assessment tool;
    9. (i)
       the learned member’s conclusion that pruning was not a reasonable alternative to removal is not supported by Mr Tom’s assessment using a quantified assessment tool;
    10. (j)
        the learned member said that it was not argued that the tree caused any substantial, ongoing and unreasonable interference with the use and enjoyment of Mr McHugh’s land, but this contradicts other passages in her reasons;
    11. (k)
        the learned member did not discuss the written submissions (particularly at pages 3 to 6 of 22) filed by Mr and Ms Withers following the April 2017 directions hearing, which argued, relevantly, that

        1. Mr Sowden’s report was not conducted in accordance with the Neighbourhood Disputes Act (particularly in assessing the likelihood of serious injury or damage within 12 months) because it did not use a ‘certified methodology based risk assessment’,^[51]
        2. Mr Sowden’s recommendation for removal should not be relied upon because he had not used a quantified assessment tool and was based on a number of statements which ‘cannot be justified by symptomatic evidence’,^[52]
        3. the ‘last Quantified Tree Risk Assessment (TRAQ)’,^[53] which had been conducted by Mr Tom, found an acceptable risk; and
        4. Mr and Ms Withers are complying with their obligations as tree-keepers under section 52 of the Neighbourhood Disputes Act;^[54]
        5. the removal order is uncertain because Mr Withers believes that  removal of the tree would necessarily involve removal of roots, and this would require significant excavation which may damage Mr McHugh’s pool, whereas Mr McHugh contends that removal of roots is unnecessary.

What does Mr McHugh say?

20. [20]
    Mr McHugh says that the ND Act does not mandate a process for the assessment of a tree. The corollary of this is that Mr Sowden was not required to carry out a TRAQ assessment and that it was a matter for Mr Sowden as to how he undertook the assessment of the tree and any recommendations he considered appropriate in relation to the tree.
21. [21]
    Mr McHugh says that there is no uncertainty regarding the order made by the learned member for the removal of the tree. He says that the common practice in removing a tree is for a stump grinder to remove the stump to ground level.
22. [22]
    As to the submission by Mr Withers that the learned member erred in finding that the tree had last been pruned in May 2016, Mr McHugh agrees that the tree was last pruned in 2017 but that nothing turns on the error in this appeal.  

Consideration

23. [23]
    Before proceeding to consider the various grounds of appeal it is appropriate to address Mr Withers’ principal criticism of Mr Sowden’s report, that Mr Sowden did not use the ‘Quantified Tree Risk Assessment (TRAQ)’ tool.
24. [24]
    The mismatch between the name and the acronym warrants comment. Mr Tom’s report reveals that he used two assessment tools: one called the Quantified Tree Risk Assessment (‘QTRA’) and the other called the International Society of Arboriculture (‘ISA’) Tree Risk Assessment Qualification (‘TRAQ’).
25. [25]
    Mr Tom in his report lists his QTRA licence number, and mentions that he is ‘ISA TRAQ Certified’. Mr Randall likewise cites his QTRA licence number, and lists ISA TRAQ in his list of qualifications. Mr Sowden’s list of qualifications mentions TRAQ but not QTRA.
26. [26]
    Mr Withers’ written submissions in the appeal use the acronym QTRA, but in oral submissions he also used the acronym TRAQ. However, nothing appears to turn on this because it is evident that both QTRA and TRAQ involve the use of standard checklists, descriptors and scoring systems. We will refer to these tools as ‘quantified assessment tools’.
27. [27]
    Mr Tom in his report describes QTRA and TRAQ as ‘two … industry accepted best practice assessment tools’.^[55]

The grounds of appeal - questions of law or fact?

28. [28]
    Several of the grounds of appeal raised by Mr Withers involve questions of fact including whether the level of risk found by the member was supported by the evidence, whether the evidence supported the findings that the tree had no historical, cultural, social or scientific value and whether the evidence supported the finding that the tree was over-mature to senescent.
29. [29]
    The appeal grounds also raise questions of law:

    1. (a)
       does the ND Act require the use of a quantified assessment tool?
    2. (b)
       if not, is the use of a quantified assessment tool otherwise necessary?
    3. (c)
       was Mr Withers denied procedural fairness?
    4. (d)
       is the removal order too uncertain?

Grounds of appeal - questions of law

30. [30]
    We will address first the questions of law.

Does the ND Act require the use of a quantified assessment tool?

31. [31]
    The ND Act does not prescribe the use of a quantified assessment tool such as the QTRA or the TRAQ, or indeed any other particular method.

Is the use of a quantified assessment tool otherwise necessary?

32. [32]
    Each of the reports of the arborists contains a mix of observational evidence, expert opinion, and recommendation.
33. [33]
    Mr Withers concedes that there was no evidence before the tribunal below that the use of a quantified assessment tool is a requirement of a tree assessment undertaken by a qualified arborist. In any event, such a requirement would not be determinative of whether evidence could be accepted in QCAT or the weight to be given to such evidence.
34. [34]
    It is not axiomatic that the use of a quantified assessment tool by an arborist undertaking a tree assessment will necessarily produce a highly reliable result. Both Mr Randall and Mr Tom used the TRAQ assessment form and arrived at different conclusions. It is apparent that the forms used as part of the assessment rely in part on judgment-based evaluations by the assessor, such as which tree parts have ‘conditions of concern’ and whether failure in any of those tree parts is improbable, possible, probable or imminent.
35. [35]
    An examination of Mr Sowden’s report shows that he attended the site to make observations of the tree and the surrounds. He had the other arborists’ reports, including those of Mr Tom and Mr Randall who had used quantified assessment tools. His report explained his observations in detail. He expressly addressed the criteria in the ND Act, and gave explanations for his opinions and recommendations. There was nothing inherently flawed about how he approached his task. We are not persuaded that Mr Sowden was required to use a quantified assessment tool in order that his evidence be considered and relied upon by the tribunal below.
36. [36]
    Accordingly, there was no error by the learned member in taking Mr Sowden’s evidence into account despite the fact that he had not used a quantified assessment tool.
37. [37]
    The weight to be attached to his evidence was a matter for the learned member to assess. If she considered that more weight should have been attached to other reports because of the use by their authors of a quantified assessment tool or tools, it was open to her to do so.

Was Mr Withers denied procedural fairness?

38. [38]
    A denial of procedural fairness will occur if QCAT fails to have regard to relevant submissions made by a party.
39. [39]
    Mr Withers, in substance, submits that he was denied procedural fairness because the learned member appears not to have considered the arguments that he and Mrs Withers advanced in their submissions following the April 2017 directions hearing.
40. [40]
    The submissions in question addressed matters relating to the various bases upon which Mr and Mrs Withers challenged Mr Sowden’s assessment of the tree including whether Mr Sowden should have used a quantified assessment tool. The submissions referred to the assessment undertaken by Mr Tom and his use of a quantified assessment tool and queried Mr Sowden’s opinions on a wide range of matters many of which have been raised in this appeal. 
41. [41]
    The learned member was required to consider the evidence and submissions filed by the parties and to reach a determination as to whether or not it was appropriate to make orders in relation to the tree. It was not necessary for the learned member to refer to each and every submission made by the parties nor was it necessary for the learned member to consider whether the ND Act requires the use of a quantified assessment tool.
42. [42]
    As we have found, the ND Act did not require the use by an assessor of a quantified assessment tool. The submission that Mr Sowden’s recommendation was based on statements that could not be justified by ‘symptomatic evidence on the tree’^[56] related to an issue the learned member was clearly aware was a live one in the proceedings, namely that different experts had made different assessments of the tree’s health and the level of risk. The learned member acknowledged that Mr Tom had concluded that the tree is healthy and poses a low risk to safety.^[57] The submission that Mr and Ms Withers were complying with their obligations as tree-keepers alluded to their obligations to ensure that the tree does not cause serious injury or serious damage. This submission may be relevant to a consideration of the matters under s 74 of the ND Act. It should however be noted that whereas the tribunal must consider the matters set out at s 73 of the ND Act, consideration by the tribunal of the matters set out at s 74 relating to allegations of serious injury or damage is not mandatory.
43. [43]
    Mr Withers was not denied procedural fairness.

Is the removal order uncertain?

44. [44]
    The making of an order that is too uncertain to enforce may constitute an error of law.^[58]
45. [45]
    However, we do not consider that the removal order is uncertain. The order requires that Mr and Mrs Withers ‘must arrange for the removal of the Grevillia Robusta (Silky Oak) situated on their land ….’ A reasonable interpretation of the order is that it requires only the removal of the tree to ground level. Had the learned member intended roots be excavated in Mr McHugh’s property, she could have ordered accordingly. The tree roots are mentioned only once in the reasons^[59] and then only to observe that the roots likely extended well into Mr McHugh’s land.

Grounds of appeal – questions of fact

46. [46]
    The remaining grounds of appeal raised by Mr Withers involve questions of fact.
47. [47]
    As is often the case where expert witnesses are involved, the experts in this matter held differing opinions. Mr Tom regarded the tree as structurally sound, with only insignificant decay. He said that if a failure occurred it would probably be during a storm while people were indoors. He said the risk of harm posed by the tree, assessed on QTRA criteria, is less than one in a million. On TRAQ criteria, he said, the risk posed by the tree is low.
48. [48]
    Mr Randall, in contrast, said the tree had a useful life expectancy of less than five years and displays extremely low vigour. He said that overhanging branches are at significant risk of falling into Mr McHugh’s property. Mr Randall opined that it was likely that the tree has a central decay pocket through its heartwood and that branches are likely to fail in strong wind events. He said that while the tree presents a moderate risk on TRAQ criteria the consequences of failure would be extreme to Mr McHugh’s property. Mr Randall concluded that the tree was not suitable to have in its current condition in a highly contested piece of real estate with infrastructure placed well within the tree protection zone (TPZ) and fall zone.^[60]
49. [49]
    Mr Sowden said the tree has reached the end of its useful lifespan. He said that the tree has a ‘high potential for limbs to impact’^[61] within Mr McHugh’s property within 12 months. Mr Sowden opined that it was highly likely branches will fail at an increasing rate due to internal decay pockets within the upper canopy and should failures occur they have the potential to impact Mr McHugh’s property. Mr Sowden expressed the view that pruning of the tree could not be performed to an extent that would reduce the risk posed by the tree to a satisfactory level and recommended the tree be removed.^[62]
50. [50]
    It was the task of the learned member to consider and make findings on the evidence. As the reasons reveal, the learned member considered the experts’ reports. It was open to the learned member to prefer the evidence of Mr Tom over the evidence of Mr Sowden. She did not do so. This does not reveal error. Findings of fact will rarely be disturbed even if another view is available.^[63] In Azzopardi v Tasman UEB Industries Ltd, then President Kirby held:

If there is evidence, or if there are available inferences which compete for the judge’s acceptance, no error of law occurs simply because the judge prefers one version of evidence to another or one set of inferences to another. That is his function.^[64]

51. [51]
    Mr Withers refers to the finding by the learned member that the tree was likely within 12 months to cause serious injury to a person on Mr McHugh’s land or serious damage to his land or property.^[65] He says that it is more than 12 months since the decision and no such injury or damage has been caused by the tree. The thrust of Mr Withers’ submission is that the absence of injury or damage caused by the tree since the original decision demonstrates the error of the learned member in relying upon the report of Mr Sowden. This argument is also linked to Mr Withers’ submission that since 2008 there have been no reported incidents involving limb failure and that this is evidence the tree is not likely to cause injury or damage within the next 12 months.
52. [52]
    The tribunal’s jurisdiction to hear and decide disputes about trees is found in Chapter 3, Part 5 of the ND Act. The tribunal has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that at the date of the filing of an application in the tribunal, land is affected by the tree.^[66] Where the requirements of s 59 and s 61 of the ND Act have been met, and the tribunal is satisfied that land is affected of the matters set out in s 65 of the ND Act, the tribunal may make the orders it considers appropriate in relating to a tree to, among other things, prevent serious injury to any person or serious damage to the neighbour’s land or property.^[67] In considering whether it is appropriate to make an order under s 66(2) the tribunal is not required to be satisfied that a tree is likely to cause injury or damage within the next 12 months.
53. [53]
    It is not disputed between the parties that the tree’s branches overhang Mr McHugh’s land. Mr McHugh’s land is therefore affected by the tree.^[68] The tribunal had jurisdiction to hear and decide the dispute. The learned member was empowered to make such orders as she considered appropriate to prevent serious injury or to remedy, restrain or prevent serious damage to Mr McHugh’s land or property.
54. [54]
    Mr Sowden said that the tree had the potential to cause injury or damage within the next 12 months. Mr Randall said that while it was impossible to precisely predict, branch failure could occur at any time including with the next 12 months.
55. [55]
    The fact that the tree has not, since the original decision, caused injury or damage, does not demonstrate error on the part of the learned member in finding as she did that the tree was likely within the next twelve months to cause serious injury to a person on Mr McHugh’s land or serious damage to his land or property. The learned member was required to undertake a consideration of the evidence and make findings. On the evidence, it was open to the learned member to make findings as she did regarding the risk posed by the tree.
56. [56]
    As to the complaint by Mr Withers that the learned member misstated the date of the last pruning, there is no consequence said to flow from such error. Similarly, nothing flows from the error complained of by Mr Withers in respect of the finding by the learned member that the land is level. There was no suggestion in the reports that the tree plays a necessary role in stabilisation of the soil. 
57. [57]
    While Mr Withers may regard the tree as having significant historical and social value, there was no compelling evidence to that effect. In the absence of such evidence it was open to the learned member to reach a different conclusion.
58. [58]
    Mr Withers says that the evidence did not support the finding by the learned member that the roots of the tree extend under the pool on Mr McHugh’s land and that the dwellings on both properties and the child’s cubbyhouse were at risk of damage from the tree. The learned member found that the TPZ, measuring the distance around the tree required for its continued health, was estimated to be 8.64m. The evidence of Mr Randall was that the TPZ extended beyond the swimming pool on Mr McHugh’s property.^[69] The evidence of Mr Randall was that the child’s cubbyhouse was also within the TPZ.^[70] Mr Randall also opined that a decay pocket existed in the upper canopy of the tree on a limb directly overhanging the property and house in the likely fall zone at Mr McHugh’s property.^[71] It was open to the learned member on the evidence to make the findings regarding the risk of damage to infrastructure on Mr McHugh’s property.
59. [59]
    There is no reasonably arguable case of error in the primary decision that would entitle Mr Withers to obtain substantive relief. Leave to appeal is not necessary to correct a substantial injustice to Mr Withers nor is there any question of general importance in relation to which a decision of the appeal tribunal would be to the public advantage.
60. [60]
    Leave to appeal is refused.

Application to introduce new evidence

61. [61]
    In the course of his oral submissions, Mr McHugh sought leave to rely upon fresh evidence in the form of building plans relating to an extension to the dwelling on Mr Withers’ property. The plans were in fact attached to Mr Withers’ appeal submissions.^[72] The plans were not before the tribunal below. In his submissions, Mr Withers said that the plans demonstrate the land on which the tree is situated is not level. We have dealt with this particular ground of appeal.
62. [62]
    As we have decided the appeal in Mr McHugh’s favour it is unnecessary to decide the application to rely upon fresh evidence.

Conclusion

63. [63]
    Leave to appeal is refused. The appeal is dismissed.