MacKenzie v Cox[2025] QCATA 71

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Overview

1. [1]
   This is an application for leave to appeal a decision of the Tribunal dated 1 December 2023 in which the Tribunal:

   1. dismissed an application for a tree dispute brought by Mr MacKenzie in relation to a hoop pine tree on Mr Cox’s land; and
   2. ordered Mr MacKenzie pay Mr Cox’s costs of obtaining an arborist report, namely $265 (‘Order 2’).
2. [2]
   The stated Grounds of Appeal are:

1. Judgement is factually unsafe because it fails to address the subject reported 20m high young tree’s normal historic known capacity to grow to a height of 60m (similar local examples exist) that very significantly exacerbate the current 4-5M levels of branch and other trunk intrusion, demonstrated and unrefuted instability and intimidating angle of incidence.
2. Judgement is factually unsafe because it very selectively uses quotations from an arborist tree report containing a comprehensive legal disclaimer that disqualifies it from evidentiary citation oral or written in any Queensland legal proceedings that also includes numerous errors and substantial omissions whose absence and failure to note or include amount to a lack of procedural fairness.
3. Judgement is factually and legally unsafe because under the terms of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 it fails to address and issue appropriate orders where.. Chapter 3 Tree Part 1, Sub-Section (1), Part 4 Sub-Section 55 (a) and (b), Sub-Section 46 (a) and (i) Sub-Section 71 Safety, Sub-Section 72 Removal, Part 5 Sub-Section 59 (a) and Examples 2 and 3, Sub-Section 66 Orders: relating to a natural progression of the subject tree’s lean and intrusion all the above rules require judicial orders based on observable, historic and unrefuted facts in lieu of frequent inexpert abstract, subjective judicial opinions.
4. Judgement is factually unsafe because it fails to make orders relating to safety 71 particularly where typically, arborists’ advise that such trees ‘require maintenance pruning every two to three years.’
5. Judgement is legally unsafe in terms of Natural Justice as it relates to an imposed retrospective penalty punitively invoked because of my Common Law as of Right disinterest in another potentially nebulous tree report regarding $265 treeowner’s disclaimed and disowned arborist report which he initiated solely at his own discretion without prior refence to me regarding shared costs or an agreed arborist or terms of reference or any other invitation as to input or… request for vital inspection from my property’s perspective, level of current and progressive intrusion or angle of incidence and/or future potential as it relates to human safety.
6. Judgement is factually unsafe because it fails to adequately address future safety 71 where there is a “too big for backyards’ advice contained in https://sown.com.au/araucaria-cunninghamii-araucariaceae-hoop-pine/j.
7. Judgement is legally unsafe because subject tree’s disposition invites the application of the Common Law of Nuisance in Queensland.
8. No reference is made to two neighbouring witness statements who are similarly impacted by the subject tree’s trunk and/or gross branch intrusion.
9. Procedural Fairness respectfully requires visual confirmation and inspection of the facts relied upon in my submissions but repeatedly ignored with prejudice by the tribunal replaced instead with sweeping generalisations.

3. [3]
   Mr MacKenzie’s grounds of appeal can be summarised as follows:

Ground One: The Tribunal should have rejected the arborist’s report because it contained a disclaimer and numerous errors and omissions;

Ground Two: The evidence of Mr MacKenzie and from other neighbours was not taken into account or given sufficient weight;

Ground Three: The Tribunal erred in its application of relevant statutory provisions in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘NDA’), by failing to apply various provisions including s 55, s 66 (to the exclusion of Chapter 3, Parts 4 and 5) and s 71 of the NDA (and that the subject tree’s disposition invites the application of the common law of nuisance in Queensland); 

Ground Four: The order requiring Mr MacKenzie to pay the cost of Mr Cox’s arborist’s report was punitive and a breach of natural justice.

The background

4. [4]
   By an application for a tree dispute filed 30 May 2022, Mr MacKenzie sought an order for removal of a large hoop pine tree on Mr Cox’s property. Mr MacKenzie claimed the tree’s branches extended approximately four metres over his property at a height of between four and fifteen metres.^[1] Mr MacKenzie alleged that the tree presented a risk of injury to people or a risk of damage to property and had caused a substantial, ongoing and unreasonable interference with the use and enjoyment of land by generating a fear for personal safety and in precluding the construction of improvements in its fall shadow.
5. [5]
   Mr MacKenzie declined a tree assessment and the Tribunal waived the requirement for an independent tree assessment.^[2] Mr Cox relied on an arborist report he obtained in August 2021, prior to Mr MacKenzie filing his application. Mr Cox says he engaged the arborist soon after Mr MacKenzie first raised concerns about the tree.
6. [6]
   During the Tribunal Hearing, Mr MacKenzie said that the risk of the tree falling over was a ‘side issue’ and indicated that he was ‘happy’ for the overhanging branches to be cut back and continually maintained to prevent ‘overhang’, and that Mr Mackenzie appeared to ‘withdraw’ the need for the tree to be removed,^[3] although Mr MacKenzie later said that removal of overhang was the ‘primary’ issue.^[4]

At first instance

7. [7]
   The learned Member, in dismissing Mr MacKenzie’s application, made the following findings:

   1. Mr MacKenzie’s land is affected by the tree within the meaning of s 46 of the NDA because the branches (between 2.5m and 20 m in height) overhang the applicant’s land by four to five metres;
   2. An order about the tree under s 66 of the NDA could only be made if appropriate to prevent serious injury to any person or to remedy, restrain or prevent serious damage to the neighbour’s land or property, or any property on the neighbour’s land, or where there was substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
   3. An order was not required to prevent serious injury to any person or damage to Mr MacKenzie’s land or property on that land, because:
      1. he was not satisfied the tree was unstable or that the tree was at risk of toppling;
      2. Mr MacKenzie had not presented any evidence to the Tribunal to the contrary;
      3. Mr MacKenzie, in fact, had submitted that the risk of the tree falling was unknown and unquantifiable;
      4. the arborist’s finding, that the risk of harm from the tree was only one in one million, was accepted;
      5. the arborist’s finding, that although deadwood may shed in small portions, it was not a significant risk to most targets, was accepted;
      6. the tree was located far away from Mr MacKenzie’s house and, if it did topple, it was of insufficient height to reach his house.
   4. The learned Member was not satisfied the tree was causing substantial, ongoing and unreasonable interference with the use and enjoyment of Mr MacKenzie’s land because:
      1. although the branches of the tree did overhang Mr MacKenzie’s land, he accepted the arborist’s finding that the tree only sheds deadwood in small portions;
      2. the photo evidence filed by Mr MacKenzie did not convince him that the tree shed a large amount of leaf litter.
8. [8]
   In relation to the costs of $265 awarded against Mr MacKenzie, the learned Member said:^[5]

Ordinarily in QCAT, each party must pay its own costs of the proceeding. However, the Tribunal may make an order requiring a party to pay all or stated parts of the costs of any other party to the Tribunal if the Tribunal considers the interests of justice require it to make the order. In this proceeding, the applicant refused to pay the costs of appointing an independent tree assessor. Consequently, the respondents were required to bear the entire cost of engaging an assessor. The respondents in their material state the cost of the report was $265.

I consider it in the interests of justice that the applicant pay the costs of the arborist report. I also note that the respondent did make offers to share the cost of removing the tree – made offers to the applicant to share the cost of removing the tree, which the applicant rejected.

(emphasis added)

Statutory framework – appeals

9. [9]
   Mr MacKenzie has not sought to categorise the grounds of appeal according to whether they allege errors of law, errors of fact or errors of mixed law and fact. An appeal on a question of fact or of mixed fact and law requires leave to appeal^[6] and, if leave is given, must be decided by way of rehearing.^[7]
10. [10]
    Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.^[8]
11. [11]
    If an appeal application raises both questions of law and questions of mixed law and fact, the following approach is applied:^[9]

In a case in which the grounds of appeal raise both a question (or questions) of fact or mixed law and fact, and leave to appeal in respect of the latter is granted, then the distinction between the nature of the appeal and powers exercisable by the Appeal Tribunal will lose significance. However, in a case in which leave to appeal on the grounds involving fact is refused, it is important that the category of the appeal as of right on the question of law alone is preserved. That integrity will not be preserved, and the right to appeal on a question of law will be lost if the Appeal Tribunal impermissibly subjects those grounds to a requirement to obtain leave when the statute does not impose it.^[10]

12. [12]
    An assertion that, in effect, a finding was ‘against the weight of the evidence’ is not a question of law.^[11] A factual conclusion is not infected by legal error unless there is no evidence to support it or unless it is clear, beyond serious argument, that it is wrong.^[12] It is insufficient that the Appeal Tribunal merely disagrees with a factual view of the Tribunal at first instance.^[13]

Some over-arching observations

13. [13]
    Mr MacKenzie submits, correctly in our view, that he was within his rights to decline to be a party to a further tree report by an arborist at the instance of the Tribunal. Nor was Mr MacKenzie obliged to obtain his own arborist report.
14. [14]
    However, as a consequence, there was only one expert report before the Tribunal below. Further, to the extent that Mr MacKenzie sought below, and seeks in the Appeal Application, to persuade the Tribunal to reject the evidence of the arborist, we consider that Mr MacKenzie ought to have required the arborist for cross-examination and put to him the various factual matters relied upon by him to endeavour to undermine the evidence of the arborist. As we apprehend the material, the matters relied upon by Mr MacKenzie include: the extent of the lean of the tree; the surrounding soil conditions (asserted to be moist); the number of ‘self-corrections’ of the tree; the construction of an adjacent swimming pool and its impact on the stability of the tree; and the expected future growth of the tree. Additionally, Mr MacKenzie’s purported challenge to the methodology adopted in the report should also have been raised with the arborist.
15. [15]
    As a general principle, a court (and, we would add, a tribunal) will accept the unchallenged evidence of a witness, including an expert witness; and a party who fails to cross-examine a witness is taken to have accepted that evidence.^[14] However, the principle is not absolute, and even if evidence is unchallenged, a party may be able to demonstrate that the evidence (including expert evidence) is inherently illogical or unreliable, or that the evidence is based on an incorrect or incomplete history or upon unproven assumptions.^[15]

Ground One: The Tribunal should have rejected the arborist’s report because it contained a disclaimer and numerous errors and omissions;

16. [16]
    Mr MacKenzie submitted that the Member erred by placing too much weight on the arborist’s report in circumstances where the arborist was ‘solely selected, advised, instructed and paid for by the respondent.’ He also submitted that the disclaimer in the report, namely that it ‘only covers the tree at the time of the inspection’ and ‘there is no warranty or guarantee, express or implied, that problems or deficiencies of the subject tree may not arise in the future’, rendered the report ‘legally meaningless’, particularly when the future safety and stability of the tree was an issue.
17. [17]
    Mr Cox submitted that arborist reports are commonly used in QCAT cases and a standard disclaimer does not make the report invalid. The Member was entitled to rely on the arborist’s professional assessment of the tree’s condition and risk and that the Member weighed the report alongside other evidence, including Mr MacKenzie’s photographs and submissions.
18. [18]
    We note our observations at [14]-[15] above.
19. [19]
    In these circumstances, it is not surprising, much less an error of law or fact, for the learned Member to have accepted the evidence of Mr Cox’s arborist.
20. [20]
    Further, the existence of the disclaimer does not render the report ‘legally meaningless’. The disclaimer appears to be intended to restrict the liability of the arborist in circumstances where he can only review the health and stability of the tree before him and to a lesser extent, predict its health and safety in the future but based on its current condition. If Mr MacKenzie wished to obtain a report that predicted the future health and stability of the tree, he was entitled to do so.
21. [21]
    There is no reasonable basis for alleging error by the learned Member in relying on the arborist report or in the weight that he gave it.
22. [22]
    Leave to appeal on this ground is, accordingly, refused.

Ground Two: The evidence of Mr MacKenzie and from other neighbours was not taken into account or given sufficient weight;

23. [23]
    Mr MacKenzie relied on photographs in the Hearing at first instance to show that the tree, 18 months after the report was written, had not straightened up as the arborist maintained, but in fact had moved away from the vertical towards the north-west. Mr MacKenzie attributed this movement to a number of factors including: the moisture content of the soil in the area; displacement of soil around the base of the tree; and the placement of a swimming pool within six metres of the tree. Mr MacKenzie also relied on a Brisbane City Council Map which he said illustrated that the tree was located at the bottom and near the end of the Herston Valley watercourse that drains hundreds of acres of adjacent property. Mr MacKenzie claimed that the significance of this was not considered by the Member. Mr MacKenzie also relied on photographs to show the tree had self-corrected five times. Mr MacKenzie asserted that the reason for this was because the tree was established in unsound soil conditions.
24. [24]
    The learned Member said that he was not satisfied the ground around the tree was unstable or that the tree was at risk of toppling and that the applicant (Mr MacKenzie) had not presented ‘any evidence to the Tribunal to support those contentions’.^[16] The learned Member acknowledged during the Hearing that there could ‘well be …a water course that might cause instability’ but said ‘[that] there was no expert evidence about that before me’.^[17] The Member said that the photo which quoted the Queensland Department of Agriculture and Fisheries that ‘hoop pine prefers well-drained soils and does not tolerate waterlogging’ was not expert evidence because it was not annexed to a report by a particular person and the person was not available to be cross-examined. The learned Member was not prepared to infer from the photographs of the tree leaning, from photographs of its self-corrections and accepting the proximate water course, that the tree was likely to topple.
25. [25]
    We do not consider the Member erred in arriving at that conclusion. Mr MacKenzie had the onus of proving his case on the balance of probabilities, and the Member was not satisfied on the evidence before him that the tree was likely to cause serious injury to any person. The Member did not err in preferring the expert evidence to that provided by Mr MacKenzie.

26. [26]
    Mr MacKenzie also relied upon witness statements of other neighbours, namely Dr Jeanine Young, Ms Nicola Battersby and Mr Don Forbes.

27. [27]
    In relation to the witness statements from other neighbouring properties, the Member said that he was only interested in Mr MacKenzie’s property, not neighbouring properties.^[18] Dr Young provided a statement in which she said she was in support of Mr MacKenzie’s application and that she would consider a similar claim in the future to ensure the safety of her property and family. The Member said she could do that but that he could not take her concerns into account about the tree falling on her property because she was not a party to the proceeding.
28. [28]
    Mr MacKenzie said there were three properties that were affected by the tree. The Member said that he could not take that into account in any way. He said that the only potential relevance of the evidence provided by the nearby residents would be the video of the tree swaying. The Member observed that, while he might have been asked to conclude from the video that the tree was at risk of falling, Dr Young was not a party to the proceeding^[19] and, her opinion, not being that of an arborist, was irrelevant.
29. [29]
    The Member said that he did not see what qualifications Dr Young, Ms Battersby or Mr Forbes had to comment on the risk of the tree falling.
30. [30]
    In our view, whilst the fact that Dr Young, Ms Battersby and Mr Forbes were not parties to the proceeding did not, of itself, preclude receipt of their evidence, a consideration of the whole of the exchange between Mr MacKenzie and the Member on this issue^[20] indicates, first, that the Member’s statement was made in the context of Dr Young’s belief that the tree presented a serious fall threat to her family and property and would certainly strike her property and potentially ‘occupant’ family and friends and, second, that the Member was prepared to consider submissions on whether the video of the swaying of the tree was relevant to the risk of the tree falling, which suggests that the fact that Dr Young was not a party to the proceeding (or an arborist) did not preclude such potential evidence. We are not satisfied that the Member excluded evidence that was relevant to Mr MacKenzie’s application. Otherwise, we consider the matters raised are relevant to Ground Three.
31. [31]
    Leave is refused in respect of this ground.

Ground Three: The Tribunal erred in its application of relevant statutory provisions in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘NDA’), by failing to apply various provisions including s 55, s 66 (to the exclusion of Chapter 3, Parts 4 and 5) and s 71 of the NDA (and that the subject tree’s disposition invites the application of the common law of nuisance in Queensland); 

32. [32]
    Mr MacKenzie asserts that, while acknowledging that his application was based on Chapter 3 Trees, Part 5 (QCAT orders to resolve other issues about trees) the Member wrongly confined his attention to whether he could make an order under s 66 of the NDA. In our view, this raises a question of law.
33. [33]
    Mr MacKenzie argues that, on a proper reading of Chapter 3, Part 3 (s 52); Part 4 (s 46(a) and s 55); and Part 5 (s 59), all that he needed to show was that branches extended over his land by four to five metres. Mr MacKenzie says the learned Member erred by refusing to make orders under Chapter 3, Part 4 or Part 5 because the overhanging branches were more than 2.5 metres high. Mr MacKenzie says that an order to remove branches on the north-west side of the tree that protrude more than four to five metres over his property would assist the tree to straighten and ‘completely satisfy the orders sought in [his] application’.
34. [34]
    Mr Cox contends that for an order that the tree be removed, Mr MacKenzie needed to meet a high threshold, that s 66 applied and that Mr MacKenzie had not provided evidence that the tree is causing significant harm, damage, or unreasonable interference with the use and enjoyment of his land.
35. [35]
    Further, Mr Cox says that Mr MacKenzie’s interpretation of the NDA was flawed: orders under Chapter 3 do not apply here as all the branches in question are above 2.5 metres in height. The Tribunal did not err because the NDA does not require tree removal or pruning unless there is clear evidence of substantial damage or unreasonable interference.
36. [36]
    Section 61 provides that QCAT has jurisdiction to decide ‘any matter in relation to a tree’ in which it is alleged that ‘land is affected by a tree’.
37. [37]
    Section 46 sets out when land is affected by a tree.

46When is land affected by a tree

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

1. (a)
   any of the following applies—

1. (i)
   branches from the tree overhang the land;

1. (ii)
   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

1. (b)
   the land—

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

1. (ii)
   would adjoin the land on which the tree is situated if it were not separated by a road.

38. [38]
    The NDA approaches the different ways land is affected by a tree in different Parts of the Act. Part 4 deals with overhanging branches that are 2.5 metres or less in height (see s 57). Part 5 deals with the situation where land is affected by a tree but the issue cannot be resolved using Part 4, for example, because the branches are more than 2.5 metres off the ground.
39. [39]
    Section 65 provides that QCAT can make an order under s 66 if satisfied of a number of matters, including, relevantly:

    1. the neighbour has made a reasonable effort to reach agreement with the tree-keeper; and
    2. if the issue relates to the land being affected due to overhanging branches, the branches extend at least 50cm over the neighbour’s land, and the neighbour cannot use the process under Part 4.
40. [40]
    Section 66 provides:

66Orders QCAT may make

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

1. (2)
   QCAT may make the orders it considers appropriate in relation to a tree affecting the neighbour’s land—

1. (a)
   to prevent serious injury to any person; or

1. (b)
   to remedy, restrain or prevent—

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

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

…

1. (5)
   Without limiting the powers of QCAT to make orders under subsection (2), an order may do any of the following—

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

Examples—

• an order that requires the removal of the tree within 28 days

• an order that requires particular maintenance work on the tree during a particular season every year

• an order that requires particular work to maintain the tree at a particular height, width or shape

1. (b)
   require that a survey be undertaken to clarify the tree’s location in relation to the common boundary;

1. (c)
   require a person to apply for a consent or other authorisation from a government authority in relation to the tree;

1. (d)
   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;

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

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

1. (g)
   require a report by an appropriately qualified arborist. In our view, the substance of Mr Cox’s submission should be accepted. On the evidence, the Tribunal had no power to make orders for the pruning of the tree under either Part 3 or Part 4 of Chapter 3 of the NDA. Orders under Part 5 required satisfaction of the requirements of s 65 and s 66 (relevantly, either of s 66(2)(a), (b)(i) or (b)(ii)).

41. [41]
    Further, Mr MacKenzie argues that the Member wrongly omitted to consider s 71 of the NDA which provides that the ‘primary consideration is the safety of any person’.
42. [42]
    The learned Member accepted that the land was ‘affected by the tree’ because branches from the tree extended over Mr MacKenzie’s land.
43. [43]
    Orders were not made, however, because the Member was not satisfied orders needed to be made to prevent serious injury to any person; or to remedy, restrain or prevent serious damage to Mr MacKenzie’s land or any property on his land or to prevent substantial, ongoing and unreasonable interference with the use and enjoyment of his land.
44. [44]
    Mr MacKenzie says that the Member failed to take into account that s 66(2)(a) provides that an order could be made if ‘any person’ was at risk of serious injury. Under that provision, an appropriate order could be made if branches overhang the neighbour’s land and an order was appropriate to prevent serious injury as contemplated by that provision. In our view, it is not necessary that the tree be likely within the next 12 months to cause serious risk to a person on the land (that requirement only being one of the ways land is ‘affected by a tree’ under s 46). However, a question of construction arises as to whether, on the proper construction of s 66(2)(a), the reference to a risk of serious injury ‘to any person’ means serious injury to any person on the neighbour’s land or to any person anywhere (whether or not on the neighbour’s land).
45. [45]
    We prefer the former interpretation notwithstanding the generality of the reference to ‘any person’ in s 66(2)(a).^[21]
46. [46]
    First, we note the similar, but not identical, language adopted in section 46(a)(ii) in relation to when land is affected by a tree, and that in section 46(a)(ii)(A) reference is made to serious injury to a person ‘on the land’. Save for the 12 month limitation in s 46, we consider that it would be incongruous not to read s 46(a)(ii) and s 66(2) harmoniously.
47. [47]
    Second, in the Explanatory Notes to the Neighbourhood Disputes Resolution Bill 2010, the notes in relation to Chapter 3, Part 5 contain the following:

Part 5 QCAT orders to resolve other issues about trees

The part enables an owner of land to apply to the Queensland Civil and Administrative Tribunal (QCAT) for an order to remedy, restrain or prevent serious damage to the owner’s land or property on the land, serious injury to a person on the land, or substantial ongoing and unreasonable interference with the neighbour’s use and enjoyment of their land as a consequence of a tree situated on adjoining land. At common law an action in private nuisance may also be available in circumstances where a tree causes substantial and ongoing interference with a person’s use or enjoyment of land.

48. [48]
    We consider that the reference to ‘the owner’s land’ is plainly a reference to the land of a ‘neighbour’ given the context in which it is used.
49. [49]
    In our view, the notes extracted above indicate that it was Parliament's intention that Part 5 applies to address, amongst other matters, the prevention of serious injury to a person on the neighbour's land.^[22]
50. [50]
    Third, an interpretation that an order could be made to prevent serious injury to a person not on the neighbour’s land could lead to an anomalous result that a neighbour whose land is affected by overhanging branches from a tree on adjoining land could obtain orders against the tree-keeper to prevent serious injury to a person on the tree-keeper’s land or to a person on land that does not adjoin the tree-keeper’s land (whether or not separated by a road)^[23] in circumstances where there is no risk of any injury to a person on the neighbour’s land. This does not sit comfortably with the object of the NDA to resolve disputes between a neighbour and tree-keeper upon the application of a neighbour. Section 3 of the NDA provides:^[24]

The objects of this Act are—

1. to provide rules about each neighbour’s responsibility for dividing fences and for trees so that neighbours are generally able to resolve issues about fences or trees without a dispute arising; and

2. to facilitate the resolution of any disputes about dividing fences or trees that do arise between neighbours.

51. [51]
    In any event, the safety concerns raised by Mr MacKenzie’s other neighbours, raised the same safety concern, namely the risk of the tree toppling over, which was addressed by the Member in the reasons for decision. Further, as the learned Member said, the other residents were ‘not arborists and their opinion about the potential for the tree falling or not [was] irrelevant’.^[25]
52. [52]
    There is no basis for setting aside the decision on this basis.
53. [53]
    The further matter raised in relation to this ground concerns Mr MacKenzie’s contention that the Member failed to make any orders in respect of the maintenance recommendations made by the arborist and the management of risk. These submissions are made in the context of the primary consideration specified under the NDA in s 71.
54. [54]
    The Member’s reasons included the following:^[26]

I am not satisfied the tree is causing substantial, ongoing and unreasonable interference with the use and enjoyment of the applicant’s land because, firstly, although the branches of the tree overhang the applicant’s land, I accept the arborist’s finding that the tree only sheds deadwood in small portions. Secondly, the photos provided to the – provided by the applicant do not convince me that he tree sheds a large amount of leaf litter. As I am not satisfied that the orders are required to – that orders are required to prevent serious injury to any person, or to remedy, restrain or prevent serious damage to the applicant’s land or substantial, ongoing and unreasonable interference with the use and enjoyment of the applicant’s land, I propose to dismiss the application.

The parties all agree that the branches that overhang the applicant’s property are over 2.5 metres, therefore I do not propose to make any orders under chapter 3 part 4 of the relevant Act.

55. [55]
    Mr MacKenzie’s challenge in this respect raises questions of fact. We consider that these findings were open on the evidence. Leave to appeal on this issue is refused.
56. [56]
    With respect to Mr MacKenzie’s contention in relation to the application of the common law of nuisance in Queensland, Mr MacKenzie submits that Part 3 deals with a person’s right to take action to abate a nuisance. Section 60 of the NDA recognises a neighbour’s right to exercise the common law right of abatement. However, subsection 60(2) provides a neighbour with an alternative of exercising such common law right or applying to the Tribunal for resolution of the issue. In circumstances where Mr MacKenzie has brought an application under the NDA, we consider that the common law right of abatement had no relevance to the decision below, much less demonstrate some error on the part of the Member by failing to have regard to that matter. This ground, which we would characterise as a question of law, is not made out.

Ground Four: The order requiring Mr MacKenzie to pay the cost of Mr Cox’s arborist’s report was punitive and a breach of natural justice.

57. [57]
    The Member’s reasons for ordering Mr MacKenzie to pay the cost of the arborist’s report are set out at [8] above. The Member correctly observed that ordinarily each party must bear their own costs of proceeding in the Tribunal (see s 100 of the QCAT Act). As we read the Member’s reasons, the central, if not sole, reason for making the costs order was that Mr MacKenzie refused to pay the costs of appointing an independent tree assessor and, as a consequence, Mr Cox was required to bear the entire cost of engaging an assessor. In our respectful view, this premise is contrary to the facts. As noted above, the application for a tree dispute was filed by Mr MacKenzie on 30 May 2022. At the request of Mr Cox, the arborist inspected the tree in question on 12 July 2021, more than 10 months prior to the commencement of the proceeding below. The cost of that report was not incurred in the course of the proceeding and was plainly not incurred as a consequence of Mr MacKenzie declining to pay the costs of an independent tree assessor.
58. [58]
    The factual finding relied upon by the Member was in error and we consider that there is no serious argument to the contrary. In our respectful view, the Member erred in ordering Mr Mackenzie to pay a fee for a report obtained by Mr Cox prior to the time the proceeding commenced.
59. [59]
    This ground is made out. Accordingly, Order 2 is set aside and we will make an order that Mr Cox must repay to Mr MacKenzie any money paid pursuant to Order 2, within 14 days of this Order.

Conclusion

60. [60]
    The focus of Mr MacKenzie’s case below was the risk of the tree toppling over on to Mr MacKenzie’s land (or the land of one of the neighbouring properties). The arborist’s findings, referred to above, unchallenged by cross-examination and accepted by the learned Member, support the Member’s conclusion that an order was not necessary to prevent serious injury to any person (or to cause substantial, ongoing and unreasonable interference with the use and enjoyment of Mr MacKenzie’s land).
61. [61]
    For the above reasons, we make the following orders:

    1. Order 2 of the Decision at first instance dated 1 December 2023 (‘Order 2’) is set aside.
    2. Colin Cox must repay to Noel MacKenzie any money paid pursuant to Order 2 within 14 days of this Order.
    3. To the extent that leave to appeal is necessary, leave to appeal is refused.
    4. The appeal is otherwise dismissed.