QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Kendall and Anor v Melenewycz and Anor [2024] QCAT 598 	
PARTIES:	Matthew James Kendall
(applicant)
Stephanie Clare Foley 
(applicant)
v
Christopher Joseph Melenewycz
(respondent)
Tracey Angeline Pugin
(respondent)	
APPLICATION NO:	NDR147-22  	
MATTER TYPE:	Other civil dispute matters	
DELIVERED ON:	  28 November 2024	
HEARING DATES:	20 November 2024	
HEARD AT:	Brisbane	
DECISION OF:	Member Roney KC	
ORDERS:	1.	The respondents cause there to be reduction pruning of the Forest Red Gum to reduce its canopy back to the approximate alignment of the dividing fence line structure with 99 Woodlands Drive, Rochedale South, Qld, 4123 and that such reduction pruning be carried out within 40 days of the date of the making of this order. 
2.	In the course of having the reduction pruning carried out as referred to in order 1, that the respondents cause there to be removal of all accessible deadwoods greater than 25mm in diameter throughout the canopy of the Forest Red Gum. 
3.	The respondents cause there to be future maintenance of the Forest Red Gum at intervals not exceeding three (3) years to remove the deadwood and maintain the spread of the canopy at the size it attains after the initial prune to the Forest Red Gum.
4.	All of those works shall be performed by a minimum Australian Qualifications Framework (AQF) level three (3) qualified arborist.
5.	The attending Arborist / company shall provide proof of current Public Liability and Work Cover insurances prior to works onsite.
6.	The respondents cause an attending climbing Arborist to also perform an inspection of the upper canopy not visible from ground level and rectify/ report any issues found during each climbing event.
7.	The respondents cause all tree debris to be removed from the applicants’ property and the respondents’ property after the recommended pruning and maintenance is performed.
8.	All pruning shall be performed in compliance with the requirements of Australian Standard 4373-2007 "Pruning of amenity trees" and the Arborist performing the work is to be so instructed.
9.	Climbing spurs/ climbing gaffs/ climbing irons shall not be used during pruning works.
10.	The respondents pay within 30 days, the sum of $500 to reimburse the applicants for their share of the costs of the report from the tribunal-appointed Arborist.
11.	I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.	
CATCHWORDS:	ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION –
DISPUTES BETWEEN NEIGHBOURS – whether trees have or are likely to cause serious damage to the neighbours’ land or property – whether a substantial Forest Red Gum tree causing substantial, ongoing and unreasonable interference –
– where s 46 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) provides land is affected by a tree if the tree has caused, is causing, or is likely to cause serious injury to a person; serious damage to land or property; or substantial, ongoing and unreasonable interference with the use and enjoyment of land – where applicants commenced proceedings in QCAT seeking orders requiring the respondents’ tree be trimmed or removed
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 47, s 61, s 65, s 66, s 72, s 73
Belcher v Sullivan [2013] QCATA 304 
Body Corporate – Highlands Vista v Taylor [2018] QCAT 244
Cacopardo v Woolcock [2017] QCAT 214
Bunyard v McManus [2013] QCAT 258
Hewitt & Hewitt v BCC & Gorman [2018] QCAT 282
Hoy v Fox & Anor [2013] QCAT 728
Laing v Kokkinos (No.2) [2013] QCATA 247 
Street v Smith & Rogers [2018] QCAT 193
Thomsen v White [2012] QCAT 381 
Watson-Brown v Heaton & Anor [2014] QCAT 346 
Webb v Dwyer & Clarke [2014] QCAT 219	
APPEARANCES & REPRESENTATION:		
Applicant:	The applicants were represented by the applicant Foley	
Respondent:	The respondents were self-represented and assisted by an agent T Stewart
	
REASONS FOR DECISION
[1]	The applicants and the respondents own adjoining suburban properties in Rochedale South, Brisbane. The applicants’ property is at 99 Woodlands Drive, Rochedale South, Qld 4123 and adjoins the respondent tree-keepers’ property at 20 Glengala Drive, Rochedale South, Qld and they are separated by a chain-wire fence structure.
[2]	On 14 July 2022 the applicants filed an application (Application for a tree dispute) under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the ND Act’) for the pruning or removal of a large tree growing adjacent to the boundary line of the two properties but within the boundary of the respondents’ property. 
[3]	The tree is a Forest Red Gum also known as a Blue Gum botanically known as Eucalyptus tereticornis. It has the characteristic of losing long lengths of bark particularly around March each year, according to the applicants.
[4]	In the application the applicants seek that the tribunal make the following orders;
(a)	that the respondents carry out work on the tree to remove the tree.
(b)	that the respondents carry out work on the tree to remove or prune branches of the tree.
(c)	that the respondents carry out work on the tree to remove or prune roots of the tree.
(d)	that the respondents carry out other tree work.
(e)	that a person can enter the respondents’ land to carry out an order.
(f)	that a person can enter the respondents’ land to obtain a quote to carry out an order.
(g)	that the respondents pay the costs for carrying out these orders.
(h)	an order that the respondents pay compensation for damage to their land or property in the amount of $367.00.
(i)	that an appropriately qualified arborist prepares a report.
(j)	Other orders. If the tree is not removed, that the tribunal make an order that the tree-keeper has to pay a professional to regularly clean the gutters and remove the tree debris from their property; and that if an Arborist report shows that the tree poses a risk to the applicants’ house (in the event of severe weather), that the tree is to be removed. This will solve the risk to the house, as well as the ongoing maintenance costs for the tree-keeper. 
[5]	They seek an order in relation to the requirements for management of the tree which will allow for consideration of all parties, taking into account that one tree would not be the sole cause of the leaf litter and issues raised by the applicants and also taking into account that no agreement can be reached between the parties for either removal or maintenance. 
[6]	Before bringing the application the applicants properly communicated with the respondents’ agent, since their property was rented to a tenant. This correspondence went back to 2018, six years ago.
[7]	The first letter from the applicants was on 18 November 2018. That said;
I am writing regarding the very large gum tree at the rear of your rental property, which partly overhangs our shared fence. I have attached photos so you can understand the scale of this tree - it's certainly the tallest tree in our area.
I am concerned by both its size (i.e. what is the owner doing to ensure it does not fall onto my house during the upcoming storm season) but also to complain about the tree's reach- across the shared fence and into my property.
This tree is so large that it has the potential to fall onto any of the three houses in the immediate vicinity during the upcoming storm season. Small branches, have, in the recent past, fallen onto my property which I have disposed of at my own cost.
Could you please liaise with the property owner and advise what can be done regarding removal/reducing this tree, before the 2018/2019 storm season.
[8]	The response came from the agent and took some time to come, having been sent on 14 January 2019. That said;
I have spoken with the owner in relation to the tree and have come up with the following:
The owners have previously had council out who have noted that, while the tree was large it did not pose a threat to either property. Please note that this was approx. 2 years ago and I have made the owners aware of that. Taking that into consideration they have approved for me to get a quote on the tree and should an expert deem the tree a risk, we will look at removing it. 
Should they note that the tree does not need removal the only way they would like to see if removed is if you would be willing to either cover or split the cost.
Please take some time to consider these possible outcomes and once I have had a quote done, will let you know of the outcome.
[9]	The promised quote was not then forthcoming until an email of 10 July 2019 which said;
I am emailing you to let you know that I have sent out a tree lopper to the property to quote on how much it will cost for the tree branches to be trimmed back, he has estimated about $1100. 
Considering that the tree is in good health and is not posing a direct threat to you or any other neighbour, we simply can't remove it just because it is dropping leaves.
As per legislation, leaf litter is not substantial enough to get a tree removed or cut. However, in order to try and solve this issue, our owner is more than happy to pay her $300 limit to get the overhanging branches trimmed if you are happy covering the rest of the cost. 
Alternatively, you are also more than welcome to trim the branches yourself at your own cost.
[10]	The next relevant letter from the applicants was two days later on 12 July. It said relevantly;
I have to presume the legislation you are (mis)quoting below is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. Is that correct?
Fortunately, I am familiar with this legislation, and I need to inform you that you have misinterpreted both Chapter 3 Part 4 of the Act, and secondly, this matter.
Firstly, I am alleging that my land is affected by this tree, not limited to the substantial, ongoing and unreasonable interference with the use and enjoyment of my land, and further, the overhanging branches of this tree are more than 2.5m above ground, therefore Chapter 3 Part 4 does not apply to this matter. · -
Secondly, even if Chapter 3 Part 4 did apply to this matter (which it doesn't - again) the reference to $300 is irrelevant. This is because I have not, and will not, make an offer to the tree-keeper to remedy this as resolution by neighbour. As I stated, I am seeking the removal of this tree.
Thank you for asserting that this tree is not posing a direct threat to myself or any other neighbour. Are you able to share the arborist report which lead you to make this statement?
[11]	The material does not suggest there was any response to that letter.
[12]	The next letter was a letter from the applicants addressed to the respondents via the agent again on 10 January 2021 stating;
I write in relation to the large tree (herein referred to as 'this tree') located at the rear of your property known as 20 Glengala Drive Rochedale South Queensland 4123. This tree, presumed to be a species of Australian Eucalyptus, contains branches which overhang the common boundary between your property [located at the above address] and an adjoining property to which I am the registered owner and occupier, at 99 Woodlands Drive Rochedale South Queensland 4123.
The use and enjoyment of my land is affected by this tree. This tree causes substantial, ongoing and unreasonable interference to my property due to extensive accumulation of leaf litter, deadwood, tree bark and tree seeds on my dwelling roof, inside my dwelling downpipes and on my land.
It is my claim that you have failed some of your responsibilities as prescribed by the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011
[13]	The letter went on to refer to the provisions of the Act and their effect, and then said;
• You are the tree-keeper of this tree, as defined by section 48 of the Act.
• I am the neighbour of this tree, as defined by section 49 of the Act.
• You have breached your responsibility as prescribed by section 52 subsection 1 of the Act as evidenced by this tree's branches which overhang my land. Further, you have failed to act on the previous occasions where I have made you aware of such claims. At your request, I can provide copies of previous contact being initiated via electronic mail correspondence to your agent, First National Real Estate Rochedale, on 18/11/2018 ·& 07/07/2019.
• You have breached your responsibility as prescribed by section 52 subsection 2 (c) of the Act as evidenced by the photographs attached to this correspondence.
• The threat of serious injury to my property prevails pursuant to section 73 subsection 1 (i) of the Act. Minor injury to my property has occurred in the past.
[14]	The 10 January 2021 letter went on to propose a resolution as follows;
Resolution 1:
You agree, in writing, to remove this tree wholly at your cost. A tree rem oval contractor will be engaged by you and you will confirm, in writing, that relevant and current insurances are held by the contractor at the time of tree works. These agreed tree works will be completed within three months of the date of this letter. Or; -
Resolution 2:
You agree, in writing, to engage a tree removal contractor to remove the overhanging branches only. The common boundary line is identifiable by the cadastral surveyor works undertaken at my property (wholly at my cost) in 2020. A tree removal contractor will be engaged by you and you will confirm, in writing, that relevant and current insurances are held by the contractor at the time of tree works. These agreed tree works will be completed within three months of the date of this letter. You agree to these works being wholly at your cost. 
And; -You agree, in writing, to procure a certified Arborist (AQF level 5) report which confirms this tree's health. I deem this necessary due to the >4m-long branch which fell onto my property on the night of 31/12/2020 - a date where no significant rainfall or wind occurred in the local area. 
Further, your agent, First National Real Estate Rochedale, confirmed that I am not the only neighbour who has made you aware of the potential threat [of serious injury] that this tree poses, primarily due to its age and scale. 
If the qualified person assesses the tree to be healthy, and poses no threat to my property, then you agree, in writing, to procure a report of this condition every five years for the duration of your prescribed status as tree-keeper according to the Act and provide me with a legible copy of each report within one month of the reporting date. 
The first report will be completed within three months of the date of this letter.
You agree to this ongoing procurement being wholly at your cost. 
And; - You agree, in writing, to engage a landscape maintenance contractor to remove this tree's extensive nuisance materials from my dwelling roof, dwelling downpipes and land once in every three-month period, for the duration of your prescribed status as tree-keeper according to the Act. 
A landscape maintenance contractor will be engaged by you and you will confirm, in writing, that relevant and current insurances are held by the contractor at the time of works. The first works will be completed within three months of the date of this letter. You agree to these works being wholly at your cost.
This is no less than my third attempt to contact you to resolve this dispute. Due to the substantial, ongoing and unreasonable interference caused to me by this tree and the lack of acceptable resolution enacted by you at previous requests, I, as this tree's neighbour, will lodge an application for dispute resolution with the Queensland Civil and Administrative Tribunal if no acceptable resolution has been agreed in writing by 15 February 2021.
[15]	There appeared to be no response to this letter. The attached photos did show a substantial branch had fallen onto a pathway on the applicants’ land.
[16]	As a side issue, the applicants complained about the lack of communication from the respondents themselves at any stage, and the lack of action or response from their agents. Those criticisms were well made. During the course of the hearing the respondents undertook to provide the applicants with a direct contact email address for them to be able to be contacted about this tree or issues associated with it. The tribunal expects this undertaking to be met.
[17]	The Form Number 52 (Response to application for a tree dispute) response was completed by the respondent "tree-keepers" in QCAT on 21 September 2022. They oppose the order for reimbursement of the application fee. They provide the reasons why they consider the orders sought should be made. Those reasons failed to focus upon the real issues that were raised, particularly in the detail in which they were raised in the 10 January 2021 letter and seemed to want to dismiss the entire application as one without merit because there were a lot of other trees and vegetation in the surrounding area and “leaf litter” could not be solely attributed to that gum tree. It resisted the removal of the tree on the basis that it was unnecessary but said nothing about the alternative arrangements for its maintenance and care
[18]	There have been QCAT Directions dated 29 July 2022, 23 November 2022, 25 November 2022, 24 January 2023, 17 February 2023, 6 March 2023, 14 March 2023 and 21 April 2023 as well as some orders this year critically that of 31 January 2024.
[19]	Over opposition from the second applicant, I gave leave to an agent of the respondents’ property to appear to represent them although the respondent Pugin was present for the conference call by which the hearing was conducted.
The relevant provisions of the ND Act
[20]	Under s 46 of the ND Act land is taken to be affected by a tree only in limited circumstances. Accordingly, the land is only tree-affected if it satisfies one of the following, namely:
(ii) 	the tree has caused, is causing, or is likely within the next 12 months to cause—
(A) 	serious injury to a person on the land; or
(B) 	serious damage to the land or any property on the land; or
(C) 	substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land;
[21]	The applicants bear the onus of establishing on the balance of probabilities their entitlement to orders under the ND Act. The tribunal has broad powers to hear and decide: “…any matter in relation to a tree in which it is alleged that, as at the date of the application to QCAT, land is affected by the tree”.
[22]	The Arborist report concludes and I accept that branches from this Forest Red Gum/ Blue Gum (Eucalyptus tereticornis) extend over the applicants' land and thus satisfy the definition in s 46(a)(i) of the ND Act as to when land is affected, that is in this case because the “branches from the tree overhang the land”.
[23]	The ND Act defines “tree” to mean any woody perennial plant or any plant resembling a tree in form and size. This definition has been held in case law to include roots and stumps rooted in land and a dead tree.  
[24]	Land is ‘affected by a tree’ if the tree has caused serious damage to the land or any property on the land, or substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land, and the land adjoins the land on which the tree is situated. A tree is situated on land if the base of the tree is or was previously situated wholly or mainly on the land. 
[25]	Under s 66 of the ND Act the tribunal has broad powers to make an order it considers appropriate about a tree to:
(i)	prevent serious injury to any person; 
(ii)	remedy, restrain or prevent serious damage to the applicants’ land or any property 
(iii)	remedy, restrain or prevent substantial, ongoing and unreasonable interference with the applicants’ use and enjoyment of the neighbour’s land.
[26]	What constitutes serious injury or damage, or substantial, ongoing and unreasonable interference has generated much case law in this tribunal over time.
[27]	In Belcher v Sullivan [2013] QCATA 304 Judicial Member Dodds held: 
 	
[22] 	“Serious‟ is a word in common usage. It is not given any special meaning in the Act. In the context of this matter its meaning may be regarded as “not slight or negligible”. 
[23] 	“Substantial‟ also is a word not given any special meaning in the Act. It is a word in common usage. In the context in which it is used in the Act it indicates on-going and unreasonable interference with enjoyment or use of land which has substance, is of real or considerable importance. 
[24] 	Both require a decision maker to assess the degree of damage or interference in the light of all the evidence provided.
[28]	The ND Act s 72 recognises the importance of trees in residential neighbourhoods. It makes clear that a living tree should not be removed or destroyed, unless the issue cannot otherwise be satisfactorily resolved. I am required to consider various matters including the contribution to amenity the trees make to the respondents’ land including their contribution to privacy and protection from noise.
[29]	I am satisfied that the applicants have met the relevant pre-requisites set out in section 65 of the ND Act for the making of an order under section 66 of the ND Act in that they have made reasonable efforts to resolve this dispute prior to commencing this proceeding.
Arborist report
[30]	A Tree Assessor’s Report was prepared for the tribunal by Mr Michael Sowden on 12 June 2023 after his site visit on 10 June 2023. 
[31]	Neither party called Mr Sowden or cross examined him. Neither party sought to criticize his methods or its conclusions.
[32]	As I have said, the applicants’ property is at 99 Woodlands Drive, Rochedale South, Qld, 4123 and adjoins (on the western side boundary) the respondent tree-keepers’ property at 20 Glengala Drive, Rochedale South, Qld.
[33]	The tree subject to this application is a large Forest Red Gum/ Blue Gum (eucalyptus tereticornis) that is located 1 metre from the boundary within the north-western corner of the respondents’ property.  This tree has a diameter at breast height of 730mm and a canopy height of approximately 24 to 26m, a canopy width of 16-18 metres and a canopy spread over the applicants’ property in excess of 8 metres.
[34]	The Arborist report concludes and I accept that the tree presents as a typical example of its species with its health and general appearance being consistent with other examples of similar species in the adjacent local area.
[35]	The Arborist report concludes and I accept that the canopy has multiple deadwoods with some being over 100mm in diameter and over 4 metres long. Some minor twig dieback is occurring on the canopy's perimeter with the visible foliage being typical in size and colouration. No pruning wounds were visible from ground level however decaying stubs from limb failures were visible throughout the canopy.
[36]	No pathogen activity was visible with the tree having the typical excurrent tree form of this species with a single vertical trunk developing into a spreading canopy. The trunk and basal root crown appear as typical with no visible pathogen activity or structural abnormalities.
[37]	The Arborist report concludes and I accept that located on both the tree-keeper's and applicants’ property large amounts of shed bark, twig and leaf debris that can be identified as originating from this Forest Red Gum had accumulated.
[38]	The Arborist report concludes and I accept that the area within the applicants’ property adjacent to the tree-keepers’ Forest Red Gum has multiple large trees of varying species with each contributing greatly to the accumulated debris within the applicants’ property.
[39]	In their application the applicants claim an interference with or obstruction of sunlight or a view and provide “... - Our solar installer designed a system around the limitations of solar access on the eastern side of our property.”
[40]	The Arborist report concludes and I accept that at the time of his assessment, at 9 am on June 10 2023 the sunlight reaching the applicants’ dwelling was not being severely obstructed by the Forest Red Gum as the tree is located almost directly east of the applicants’ dwelling and therefore is only able to cause a partial obstruction of light reaching the applicants’ dwelling during the very early morning hours.
[41]	The Arborist report concludes and I accept that at the time of his assessment large amounts of tree leaf debris was accumulated within the applicants’ property and on the roof of the applicants’ dwelling. Some of this tree leaf debris could be identified as originating from the Forest Red Gum the subject of this application however a significant amount of this debris had likely originated from the multiple species of large trees in the garden within the applicants’ property. 
[42]	The Arborist report concludes and I accept that at the time of his assessment, there were several large dead tree branches within the applicants’ property and given their form and structure it is highly probable that they originated from the Forest Red Gum the subject of this application and several broken stubs within the tree indicated that limb failures had occurred.
[43]	The Arborist report concludes and I accept that the applicants have multiple species of large trees right throughout their garden landscape which are also greatly contributing to the issues complained of in the application. The canopy overhang of this Forest Red Gum and the evidence of limb failures does however mean that this tree represents a risk to property and people should the failure of the visible deadwoods within its canopy occur. I accept the Arborist’s evidence on that issue.
[44]	Sections 71 and 72 of the ND Act provide that the primary consideration is the safety of any person, but that the removal or destruction of a living tree is to be avoided.
[45]	The Arborist report concludes and I accept that this tree is a typical mature example of its species. Removal is not recommended. However, as the primary consideration is the safety of people, then pruning could satisfactorily resolve the issues raised by the applicants. He concludes that 
Pruning therefore is recommended within the guidance of Australian Standard 4373-2007 "pruning of amenity trees" to reduce the overhang of the canopy back towards the alignment of the dividing fence structure and the removal of all accessible deadwoods greater than 25mm in diameter throughout its canopy. Given the location of this tree these works would likely need to be performed by a suitably qualified and experienced climbing arborist with access to both properties…. Given the normal growth response of Eucalypt trees to pruning events it would be expected that ongoing maintenance would be required every three (3) years.
[46]	The Arborist report concluded that the applicants had agreed in principle to his proposed recommendations and agreed to provide access to their property if required.
[47]	He recommended;
(a)	Reduction pruning of the Forest Red Gum to reduce its canopy back to the approximate alignment of the dividing fence line structure with 99 Woodlands Drive, Rochedale South, Qld, 4123. 
(b)	The removal of all accessible deadwoods greater than 25mm in diameter throughout the canopy of the Forest Red Gum. 
(c)	Future maintenance at intervals not exceeding three (3) years to remove the deadwood and maintain the spread of the canopy at the size after the initial prune to the Forest Red.
(d)	The attending climbing Arborist should also perform an inspection of the upper canopy not visible from ground level and rectify/ report any issues found during each climbing event.
(e)	All tree debris to be removed from the applicants’ and the tree keepers’ property after the recommended pruning is performed.
(f)	All pruning to be performed in compliance with the requirements of Australian Standard 4373-2007 "Pruning of amenity trees".
(g)	Climbing spurs/ climbing gaffs/ climbing irons shall not be used during pruning works.
(h)	All works shall be performed by a minimum Australian Qualifications Framework (AQF) level three (3) qualified arborist.
(i)	 The attending arborist / company shall provide proof of current Public Liability and Work Cover insurances prior to works onsite.
[48]	It was common ground that there was an earlier oral concession made to the tribunal by the respondents on 31 January this year that they were prepared to do the things which were referred to in clause 4.8 of that report as recommendations and that concession was made during the hearing before me.
The contribution of the tree to amenity 
[49]	In the report of the Arborist, he states the Forest Red Gum subject to this application has extremely high ecological and amenity values as it is the dominant feature of the local urban landscape. In his opinion it is only partially causing an obstruction to sunlight reaching the applicants’ dwelling and is only partially contributing to the accumulation of tree leaf debris within the applicants’ property.
Disposition
[50]	The precise orders that the applicants sought were not precisely or thoughtfully articulated by the applicants and in the course of seeking to ascertain precisely what it was that they sought, I was referred to numerous examples of orders that have been made in other cases as examples of the kinds of orders that might be made here. That included orders that had specific reference to particular situations where a tree keeper was required to conduct maintenance and an annual inspection and also another order that the Order be entered on the register of the orders of the tribunal. I do not consider it necessary or appropriate to adapt orders which have been made in other particular cases to this case.
[51]	The applicants principally want an order for the destruction and removal of the offending tree but in the alternative want some other orders that relate to the tree being kept, but trimmed and maintained in some particular way which was not fully articulated. Suffice it to say that the applicants did not appear content with the outcome which was proposed in the Arborist report or if they were they did not indicate in their submissions that was the position that they were prepared to adopt.
[52]	One matter raised by the applicants in the course of the hearing concerned the fact that they contended that there was a sewer pipe or sewer line which ran underneath the trunk of the tree and that this in some way or another justified an order for removal of the tree. The owner of the asset comprised by the sewerage pipeline is most likely Urban Utilities or some other statutory corporation. Threats to its assets by the presence of trees is a matter for the owner of that asset or if it be the respondents, then the respondents. The applicants’ concerns about risks to the sewer line not on their land by reason of the presence of the tree on the respondents’ land are in my view ill-conceived and not supported by any specific evidence of any risk to those assets.
[53]	It was submitted that if the tree was not removed the tree had to be pruned to the fence line. The Arborist report is ambiguous in relation to that because in one place it refers to the tree being pruned towards the alignment of the dividing fence structure but elsewhere concludes that it should be the subject of reduction pruning to reduce its canopy back to the approximate alignment of the dividing fence line. In the end it is apparent that the Arborist is saying that it is to be pruned back to the approximate alignment of the dividing fence line.
[54]	The applicants seem to be reluctant to accept that outcome because they contend that this would cause some asymmetry in the tree and so it would necessarily mean that the canopy on the respondents’ side would also need some kind of work. There is no opinion in the Arborist report which supports that view. The Arborist does not suggest that the reduction pruning needs to occur on the respondents’ side or that there would be some risk to the tree if the reduction were to occur to only one side of it.
[55]	In my view the necessity for an order to be made is obvious and the legal basis for making one has been made out. I will not order the removal of the tree but will make an order that accords with the recommended maintenance regime proposed by the Arborist.
[56]	The applicants also ought to be reimbursed for the cost to them of the Arborist report of $500. As I mentioned elsewhere, the respondents gave an undertaking that they would do the matters set out in clause 4.8 of the Arborist report which is to the effect of the orders which I made here. It was common ground that there was an earlier oral concession made to the tribunal by the respondents on 31 January this year that they were prepared to do the things which were referred to in clause 4.8 of that report as recommendations. They did not in fact do those things and did not put in any open correspondence or in a submission that they were prepared to offer or agree to abide by that outcome and the concession was only made during the course of the hearing when I invited comment from the respondents’ representative about the Arborist’s recommendations. 
[57]	In my view it is appropriate that the respondents be ordered to pay the sum of $500 to reimburse the applicants for their share of the costs of the report from the tribunal-appointed Arborist. I do not consider it appropriate to order that the respondents pay the filing fee having regard to the usual position in this tribunal that parties meet their own costs.
[58]	I order that;
(a)	The respondents cause there to be reduction pruning of the Forest Red Gum to reduce its canopy back to the approximate alignment of the dividing fence line structure with 99 Woodlands Drive, Rochedale South, Qld, 4123 and that such reduction pruning be carried out within 40 days of the date of the making of this order. 
(b)	In the course of having the reduction pruning carried out as referred to in order 1 that the respondents cause there to be removal of all accessible deadwoods greater than 25mm in diameter throughout the canopy of the Forest Red Gum. 
(c)	The respondents cause there to be future maintenance of the Forest Red Gum at intervals not exceeding three (3) years to remove the deadwood and maintain the spread of the canopy at the size it attains after the initial prune to the Forest Red Gum.
(d)	All of those works shall be performed by a minimum Australian Qualifications Framework (AQF) level three (3) qualified arborist.
(e)	The attending Arborist / company shall provide proof of current Public Liability and Work Cover insurances prior to works onsite.
(f)	The respondents cause an attending climbing Arborist to also perform an inspection of the upper canopy not visible from ground level and rectify/ report any issues found during each climbing event.
(g)	The respondents cause all tree debris to be removed from the applicants’ property and the respondents’ property after the recommended pruning and maintenance is performed.
(h)	All pruning shall be performed in compliance with the requirements of Australian Standard 4373-2007 "Pruning of amenity trees" and the Arborist performing the work is to be so instructed.
(i)	Climbing spurs/ climbing gaffs/ climbing irons shall not be used during pruning works.
(j)	The respondents pay within 30 days, the sum of $500 to reimburse the applicants for their share of the costs of the report from the tribunal-appointed Arborist.
(k)	I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.