QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION: 	Waddell v Nethercott [2025] QCATA 50	
PARTIES:	gary allan waddell	

(first appellant)	

	And
BELINDA LEE WADDELL
(second appellant)
v	
	PETER ASHLEY NETHERCOTT	

(first respondent)
And
EILEEN MARY NETHERCOTT
(second respondent)	

APPLICATION NO/S:	APL143-24	
ORIGINATING APPLICATION NO/S:	NDR164-22	
MATTER TYPE:	Appeals	
DECISION MADE:	14 May 2025 	
HEARD AT:	Brisbane	
DECISION OF:	A/Senior Member Lember
Member Kent
	
ORDERS:	1.	The application for leave to rely on fresh evidence filed by the respondents on 17 December 2024 is refused. 
2.	Compliance with section 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) is waived with respect to the requirement of filing a formal application by the appellants for leave to rely on fresh evidence. 
3.	Leave is granted to the appellants to rely on their 12 July 2022 letter to the respondents as fresh evidence in the appeal. 
4.	The appeal filed 15 May 2024 is dismissed.  	
CATCHWORDS: 	
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – neighbourhood disputes – trees – appeal from decision that tree be removed – compensation in a tree dispute – whether appeal is attempt to relitigate
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 42, s 46, s 52, s 65, s 66, s 72, s 74, s 75 
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 61, s 146
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Briginshaw v Briginshaw (1938) 60 CLR 336
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
JM v QFG and KG [1998] QCA 228
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
Nethercott v Waddell [2024] QCAT 190	

APPEARANCES & REPRESENTATION:	
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).	

REASONS FOR DECISION
What is this application about? 
[1]	The Waddells and the Nethercotts are parties to a neighbourhood dispute described by the Tribunal below as a “long and difficult one”. 
[2]	By a decision made 7 May 2024 the Tribunal decided their tree dispute by ordering removal of some of the offending trees and by requiring the Waddells, as the tree-keepers, to compensate the Nethercotts $1,817.00 for costs incurred in relation to pipe damage caused by tree roots. 
[3]	The Waddells appeal that decision, arguing that: 
	Ground 1: Costs for clearing the drain should not have been awarded as no contact was made prior to the Nethercotts undertaking the work (the jurisdiction ground). 
	Ground 2: No evidence of significant damage was provided to the Tribunal to cause reason for the trees to be removed and, they say, a faulty drainage system is the cause of the issue (the evidence ground). 
	Ground 3: The Tribunal does not have power to order that no trees are to be planted within fifteen metres of the drain, therefore any order will not protect the Nethercotts from further damage (the utility ground). 
Factual background to the dispute
[4]	On the evidence of both parties, the Nethercotts wrote to the Waddells alleging that the tree roots had damaged their pipes by 6 July 2022 because the Waddells replied to a ‘letter of demand’ by correspondence dated 12 July 2022.  
[5]	In their reply letter, the Waddells queried whether the drain was installed correctly, whether the Nethercotts had complied with the NDA, how the offending tree was identified and whether it was reasonable to ask that shrubs be removed on a mere suspicion that they were causing damage. 
[6]	By an application for a tree dispute filed 3 August 2022 the Nethercotts complained that the root system of thirteen lilly pilly trees and a foxtail palm planted by the Waddells against the common fence line damaged underground drainage pipes on the Nethercotts land. Photographs of the trees and the roots protruding under the fence and within the pipes were annexed to the application.
[7]	The Waddells say that the lilly pillies have been planted to create privacy and amenity in their back yard and that the Nethercotts’ drain was not built fit for purpose and the application for the removal of their trees is vexatious. 
[8]	The Nethercotts allege that in rain events water should drain through the underground agricultural pipe (‘Ag pipe’) installed at the rear of their property, adjacent to the common boundary fence. They say that roots from the lilly pillies and the foxtail palm tree have entered the Ag pipe and caused a blockage in the Ag pipe. They say that this blockage causes water to pool on their property and causes water marks on their garage. There were no photographs of these water marks provided to the Tribunal. The Nethercotts also say the roots may be causing damage to the concrete underneath the Nethercotts’ garage.
[9]	The Waddells argued that: 
(a)	the Ag pipe should not have been installed so close to the back fence because the holes in the Ag pipe allow the roots to enter the Ag pipe. 
(b)	the slope of the Nethercotts’ property should allow for natural drainage and the blocked pipe should not cause water to pool on the Nethercotts’ property.
(c)	the larger roots which are alleged by the Nethercotts to be from the foxtail palm may be roots from other large trees that are on another neighbour’s property which is adjacent to the Nethercotts’ property (one of these trees is a ficus variety which is known to have very invasive root systems).
[10]	No independent evidence was provided to the Tribunal to support the Waddells’ position. The Nethercotts provided photographs and a report from No Bull Plumbing and Home Maintenance to support their claim about the lilly pilly roots entering the Ag pipe and causing a blockage to their pipe and an invoice for $1,450.00 incurred to unblock the pipe and to diagnose the blockage with the use of a camera.
[11]	The Nethercotts gave evidence that the trees were planted in 2018 and there were no historical problems with the pipe or drainage system until the trees grew bigger and caused the problems in 2022.  The plumber was not called to give evidence or provide a sworn statement but had provided photographs and commentary within his invoice/report to the respondents.  
At first instance 
[12]	The learned Member accepted evidence that roots from the Waddells’ lilly pilly trees were entering the Nethercotts’ drainage pipe: 
[19] I accept the evidence of the Nethercotts and the Plumber that the roots of the lilly pilly trees are entering the Ag pipe and causing blockage which in turn causes drainage problems on the Nethercotts’ property which will require annual maintenance to unblock. The evidence that supports my finding is Peter Nethercott’s testimony/ statements, photographs annexed to the Application and the Plumber’s account/photographs annexed to Peter Nethercott’s submission dated 9 March 2023. 
[13]	As to ‘serious damage’, the learned Member found that the roots of the lilly pilly trees are entering the Ag pipe and causing blockage which in turn causes drainage problems on the Nethercotts’ property which will require annual maintenance to unblock at a cost of $650.00 per annum. Given the frequent rain events experienced in the parties’ locality of Townsville, this amounted to, he said, serious damage to the Ag pipe and is a substantial, ongoing, and unreasonable interference with the Nethercotts’ use and enjoyment of their property.
[14]	He decided to order removal of the lilly pilly trees and to award compensation for the costs to remove the tree roots from the drainage pipe.  
Legislative framework - appeal
[15]	The first two grounds of appeal allege an error of law (although not strictly articulated as such).  Relevantly an error of law may occur where a decision maker:
(a)	makes a decision outside of jurisdiction, or 
(b)	has made a finding of fact without probative evidence to support it or drawn an inference which was not reasonably open on the primary facts. 
[16]	Factual conclusions are not infected by legal error unless there is no evidence to support it or unless it is clearly wrong. It is insufficient that the Appeal Tribunal merely disagree with a factual view of the Tribunal below. 
[17]	Under s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), the Appeal Tribunal may on an appeal on a question of law only: 
(a)	confirm or amend the decision; or
(b)	set aside the decision and substitute its own decision; or
(c)	set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration—
(i)	with or without the hearing of additional evidence as directed by the appeal tribunal; and
(ii)	with the other directions the appeal tribunal considers appropriate; or
(d)	make any other order it considers appropriate.
Application for leave to rely on fresh evidence
[18]	By an application for miscellaneous matters filed 17 December 2024, the Nethercotts seek leave to rely on fresh evidence, being: 
(a)	photographs of the trees as they then currently were, having grown since the initial hearing, and 
(b)	examples of similar orders made by the Tribunal in other matters (but not the reasons for them). 
[19]	Without an application for leave, the Waddells included in their Appeal Book their letter to the Nethercotts of 12 July 2022 and current state photographs of the trees. For the sake of expedience in the appeal, we waive the requirement for the Waddells to file a formal application for leave to rely on fresh evidence pursuant to section 61 of the QCAT Act. 
[20]	For fresh evidence to be admitted on the appeal, the Appeal Tribunal need be satisfied that: 
(a)	the evidence could not have been obtained with reasonable diligence for use at the trial,
(b)	the evidence must be such that if given, it would probably have an important influence on the result of the case, although it need not be decisive, and
(c)	the evidence must be such as is presumably to be believed, or in other words it must be apparently credible, though it need not be incontrovertible.
[21]	With respect to both applications relating to updated photographs, we do not grant leave to either party to rely on the fresh evidence, because the current-state photographs have no bearing on the jurisdiction ground or the evidence ground. 
[22]	With respect to the Nethercotts’ application to rely on the example orders, we do not grant leave to rely on them as they are not ‘evidence’, but rather, form part of the respondents’ submissions in respect of which leave it not required. In any event, without the reasons that ought to have accompanied the decisions tendered, the orders offer little to no value in this proceeding. 
[23]	With respect to the Waddells’ letter of 21 July 2022, although this was clearly in the possession of both parties when the application was heard at first instance, and referred to in their respective material, we admit it into evidence on the appeal because it is directly relevant to the jurisdiction ground, (see paragraphs [27] and [28], below). 
[24]	For those reasons: 
(a)	The Nethercotts’ application for leave to rely on fresh evidence in the appeal is refused.
(b)	Compliance with section 61 of the QCAT Act is waived with respect to the requirement of filing a formal application by the Waddells for leave, and leave is granted to them to rely on fresh evidence in the appeal to the extent of their 12 July 2022 letter only.  
The appeal grounds
The jurisdiction ground
[25]	Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDA) applies to trees situated on land recorded in the freehold land register (subject to some exclusions) and makes tree keepers responsible for their trees.  
[26]	Section 65 of the NDA prevents the tribunal from making an order in relation to trees unless the applicant neighbour: 
(a)	has made a reasonable effort to reach agreement with the tree-keeper,
(b)	has taken all reasonable steps to resolve the issue under any relevant local law, local government scheme or local government administrative process, and
(c)	has given the copies of the application to the tree-keeper under section 63.
[27]	To that end, a Form 51 Application for tree dispute asks, in question five, whether and, if so, how, an application has attempted to resolve the dispute with their neighbour prior to filing.  
[28]	In his application filed 13 August 2022, Mr Nethercott answered question five as follows:
I sent the respondent the details of the damage and my costs to date. I asked for the trees to be moved or removed. I also asked for reimbursement by 29 July 2022. The trees have not been moved and I have not been reimbursed. 
[29]	By a response filed 26 August 2022, Mr Waddell stated: 
QUESTION 5. 
I agree the applicant contacted me regarding damage alleged caused by trees located on my property on the 29/07/2022. The trees have not been removed, and I have not paid Mr Nethercott any money. 
The applicant had a non-emergency inspection on the suspected blocked pipes on the 1/6/2022…no consultation or notice was given after Mr Nethercott became under the impression my trees were the cause of his damage until all works were completed. 
Further works were carried out without consultation on the 2nd, 8th, 23rd, and 24th of June 2022 as well as the 6/07/2022, even though Mr Nethercott was of the understanding my trees were the sole cause of his damage. 
[30]	On the evidence before the Tribunal below, therefore, the Nethercotts appear to have made a reasonable attempt to resolve the matter with the Waddells before bringing the dispute to the Tribunal. They asked for relief, and the Waddells refused to give it. The parties had a long history of other disputes, and it was not unreasonable for the Nethercotts to proceed to the Tribunal without making additional attempts to speak with the Waddells. 
[31]	Section 46 of the NDA provides: 
Land is affected by a tree at a particular time if— 
(a) any of the following applies— 
…
(ii) the tree has caused, is causing, or is likely within the next 12 months to cause— 
…
(B) serious damage to the land or any property on the land; or 
… 
(b) the land— 
(i) adjoins the land on which the tree is situated…
[32]	Section 66 of the NDA empowers the tribunal to make an order requiring the tree-keeper to pay compensation to a neighbour for damage to the neighbour’s land or property on the neighbour’s land.  
[33]	Nothing in the NDA requires the applicant to contact the respondent tree keeper before undertaking work necessary to repair damage caused by the tree. 
[34]	There is no merit in this ground of appeal. 
The evidence ground 
[35]	Under section 66(2) of the NDA, the tribunal can order the removal of a tree to: 
(d)	prevent serious injury to any person; 
(e)	remedy, restrain or prevent -
(i)	serious damage to the neighbour’s land or any property on it; and
(ii)	substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land. 
[36]	When assessing damage or unreasonable interference the tribunal may (but does not need to) have regard to: 
(a)	anything other than the tree that has contributed to the damage/interference; 
(b)	steps taken by the parties to rectify or prevent the damage or to reduce the interference; and
(c)	with respect to interference only,
(i)	the size of the neighbours’ land; and
(iii)	whether the tree existed before the neighbours purchased the land. 
[37]	The tribunal must be satisfied that the tree-keeper’s tree caused the damage, and with the evidence as to the quantum of the damage suffered before ordering compensation. 
[38]	Pursuant to section 72 of the NDA, an order for tree removal is an outcome of last resort: 
A living tree should not be removed or destroyed unless the issue relating to the tree can not otherwise be satisfactorily resolved. 
[39]	The requisite standard of proof is the balance of probabilities, albeit to a sliding scale. Whilst the rules of evidence are relaxed in the tribunal, it nonetheless makes its decisions on the balance of probabilities based upon the evidence before it. Justice Dixon said in Briginshaw v Briginshaw that: 
In such matters “reasonable satisfaction” should not be provided by inexact proofs, indefinite testimony, or indirect references. 
[40]	A factual conclusion made at first instance is not infected by legal error unless there is no evidence to support it or unless it is clearly wrong. It is insufficient that the Appeal Tribunal merely disagrees with a factual view of the Tribunal.
[41]	The learned Member relied upon Mr Nethercott’s oral testimony and written statements, photographs annexed to the application, together with the Plumber’s account/photographs. It was open to the learned Member to do so and in the absence of any other evidence, particularly any other expert evidence, the damage to the Ag pipe by the tree roots is, on balance, established by that evidence. Examination of the parties was thorough with respect to the layout of the parties’ properties and the situation of trees and improvements upon them to exclude other causes. 
[42]	Orders were made for the removal of the lilly pilly trees, as opposed to any lesser order (such as cutting roots or installing a root barrier). It is not clear from the reasons given for ordering removal of the trees why alternatives were not considered and why the order of ‘last resort’ was made. However, no evidence of available alternatives was offered to the Tribunal by either party. We find, therefore that removal was the only order available to the member on the evidence as the order to resolve the issue of the intruding roots. 
The utility ground 
[43]	This ground of appeal seems to rely on an argument that the order to remove the trees lacks utility because it does not prevent the planting of replacement trees that may cause damage in the future. 
[44]	Respectfully, there is no merit in this argument: it is a matter for the tree keepers to make decisions about replacing the removed trees, which should, if those decisions are made sensibly, follow a consideration of the suitability of certain species to be located close to a boundary fence and drainage pipes, whether and to what extent root barriers should be included in any replanting activities to prevent or mitigate the risk of the trees or their roots causing damage. 
[45]	As writer and philosopher George Santayana said, “those who cannot remember the past are condemned to repeat it.” If replacement trees cause damage or interference in the future, the respondents know their rights under the NDA and how to enforce them. 
Decision
[46]	There being no successful grounds of appeal, the decision of the Appeal Tribunal is to dismiss the appeal.