Body Corporate for Elron Court - CTS2566 v Doyle [2023] QCAT 279

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Body Corporate for Elron Court - CTS2566 v Doyle [2023] QCAT 279 PARTIES: BODY CORPORATE FOR ELRON COURT CTS2566 (applicant) v SHANE DOYLE & MARGARET DOYLE (respondents) APPLICATION NO: NDR025-20 MATTER TYPE: Other civil dispute matters DELIVERED ON: 7 July 2023 HEARING DATES: On the papers 27 June 2023 HEARD AT: Brisbane DECISION OF: Member Roney KC ORDERS: The application filed 10 February 2020 under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) for the full removal of the tree it refers to is dismissed. CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether a tree has or is likely to cause serious damage to the neighbours’ land or property – whether trees causing substantial, ongoing and unreasonable interference – where roots and trunk from a tree on respondents’ property causing or contributing to cracking and uplifting of applicants‟ driveway – 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 removed as well as the cost of rectifying the damage caused by the roots to the driveway -- 1 of 12 -- 2 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 Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225 Robertson v Darvas [2016] QCAT 136 Thomsen v White [2012] QCAT 381 Young v Salmon [2016] QCAT 508 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) (QCAT Act). REASONS FOR DECISION [1] The Applicant and the Respondents own adjoining suburban properties in New Farm Brisbane. The respondents own a heritage listed home at 186 Moray Street New Farm. The Applicant Body Corporate owns the common property at a Elron Court, a 2-storey apartment building, which is referred to in the material as once having been flats, at 176 Moray Street New Farm. [2] On 10 February 2020 the Applicant filed an application under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ND Act) for the full removal of a tree growing over the common boundary to the properties. Only that remedy is sought. [3] The offending tree is a mature Albizia, possibly Lebbeck, commonly known as Indian Siris, growing mainly on the respondents’ land adjacent to a common fence between the properties and extends onto one of the driveways on the Applicant’s land. It is specified as common ground that the tree is the property of the respondents and that the growth of the tree has encroached upon the applicant’s driveway. [4] Elron Court is a 1930 style apartment which has driveways which run on the eastern and western side of the main building. There is car parking and garages at the back or northern end of the property. The driveways are only 2.75 metres wide. The relevant tree is shown to be approximately six point five metres on to the eastern driveway side. The application filed contends that the tree prevents the Body Corporate from reinstating the driveway surface. It contends that the leaves from the tree build up in the building’s gutter and it needs to be cleaned by a professional because of the height of it. It contends that that the tree is an obstruction to vehicles using the driveway and could cause damage to the vehicles. It contends that the position of the tree is such that the Body Corporate cannot restore the building to its 1939 design. [5] The matter has a long history. The Application was filed almost 3 and a half years ago on10 February 2020. Then there was a QCAT Tree Assessment Report dated 21 October 2020. There were statements and reports submitted by the Respondents under cover of a letter dated 17 June 2021, including statements by the Respondents a proposal dated 26 April 2021 from Heritage Tree Care for installation of a porous dynamic driveway on the Applicant’s property, with a cost estimate of $31,396.20, and a Heritage Tree Care Arboricultural Assessment & Report dated 4 March 2020. -- 2 of 12 -- 3 [6] There was a report dated 30 May 2021 from Heritage Tree Care regarding the proposal for a replacement driveway on the Applicant’s property designed to protect the tree and a copy of the Entry in the Queensland Heritage Register relating to the Respondents’ property. [7] There was additional information submitted by the Applicants on 9 July 2021, including an email dated 16 March 2020 from the Environment Management Team of Brisbane City Council, and an Arborist Report from The Consulting Arborists dated 4 May 2021. The Applicant filed submissions dated 19 August 2021 and put in photographs by email of 5 April 2022 [8] On 3 May 2022 the Applicant filed a submission in which it contended that given that “no progress to resolution has been made” in the more than two years since the application was filed, that QCAT should, as a matter of urgency, order the removal of the tree at the expense of the Respondents. [9] The Respondents rely on a considerable body of evidence and submissions themselves: (a) The report dated 30 October 2020 of David Gunter the Tribunal appointed expert arborist; (b) The report of Dean Butcher of SLR Consulting Australia Pty Ltd dated 13 March 2020 (with a further letter dated 23 April 2021). (c) The report of David Norton of Heritage Tree Care dated 4 March 2020 (with a further letter dated 23 April 2021). (d) The report of David Francis of Cardo dated 4 March 2020 (with a further letter dated 4 May 2021). (e) The letter from Flow on Services (plumbing), Drew Beal. (f) The report from Daniel Oaten of Heritage Tree Care dated 30 May 2021 (together with the quote and brochure provided to the Respondents by Heritage Tree Care for the installation of what they describe as a porous driveway). (g) The statement of Margaret Doyle and exhibits. (h) The statement of Shane Doyle. [10] The evidence is that tree is comparatively rare in the inner city. The Applicant contends that this is because it is not native to the area and is regarded in a number of adjacent local authorities as an environmental weed. It is not regarded as such by the relevant local authority here. It may or may not be an Australian native tree, albeit not native to the Brisbane area. [11] The tree to all appearances is on and across the boundary (albeit more on the Respondents’ land than on the Body Corporate’s land. It has matured and was on both parties’ land long before the Respondents purchased 186 Moray Street, which was also before any of the current owners of lots in the Body Corporate company acquired their units. I refer in that regard to the searches which are attachment N to the -- 3 of 12 -- 4 statement of Mrs Doyle. For all practical purposes it is on both parties’ land and has been there since before these owners came along. The relevant provisions of the ND Act [12] Under s 46 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; [13] 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”.1 [14] 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.2 [15] 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.3 [16] 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 Applicant’s land or any property (iii) remedy, restrain or prevent substantial, ongoing and unreasonable interference with the Applicant’s use and enjoyment of the neighbour’s land. [17] It is the 3rd, and possibly the 2nd of these that is relevant here. [18] What constitutes serious injury or damage, or substantial, ongoing and unreasonable interference has generated much case law in this tribunal over time.4 1 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ND Act), s 61. 2 Watson-Brown v Heaton & Anor [2014] QCAT 346; Street v Smith & Rogers [2018] QCAT 193; Cacoardo v Woolcock [2017] QCAT 214; Hewitt & Hewitt v BCC & Gorman [2018] QCAT 282. 3 ND Act ss 46(a), 46(b), s 47(1). 4 Hewitt & Hewitt v BCC & Gorman [2018] QCAT 282; a claim for $817 was not sufficient to be ‘serious damage’; Bunyard v McManus [2013] QCAT 258, [23]; Belcher v Sullivan [2013] QCATA 304, [22] to [26] (Judicial Member Dodds); Hoy v Fox & Anor [2013] QCAT 728; Cacopardo v Woolcock [2017] QCAT 214 (roots); Belcher v Sullivan [2013] QCATA 304 (roots); Laing v -- 4 of 12 -- 5 [19] In Belcher v Sullivan [2013] QCATA 304 Judicial Member Dodds held in relation to a similar situation: [21] As to the cracking and lifting of portions of the driveway the Tribunal considered whether, in the worst-case scenario on the evidence, (the evidence of the engineer) the applicants‟ land was “affected” by the tree. It was not satisfied it was because it did not consider the crack to and the lifting in one area of the driveway was serious damage nor amounted to on-going and unreasonable interference with the applicants’ use and enjoyment of their land which was substantial. [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. [20] 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 noise5. [21] I am satisfied that the Applicant has 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 it has make reasonable efforts to resolve this dispute prior to commencing this proceeding. Arborist and other reports [22] A Tree Assessor’s Report was prepared for the Tribunal by David Gunter after his site visit on 21st of October 2020. The Tree Assessor’s report identifies and I accept that the tree shows good vitality, form and structure and has been well maintained and professionally pruned. The tree is approximately 15-20 metres tall and has an approximate stem diameter of 700mm. There are no arboriculturally significant issues to report. [23] As to whether the applicant’s land is affected by the tree he concluded and I accept that some minor overhanging branches from the subject tree extend into the applicant’s property. The base of the stem/trunk of the subject tree protrudes through Kokkinos (No.2) [2013] QCATA 247 (view); Thomsen v White [2012] QCAT 381 (sunlight); Body Corporate – Highlands Vista v Taylor [2018] QCAT 244; (view re body corporate and multiple units), Webb v Dwyer & Clarke [2014] QCAT 219 (vine). 5 ND Act, s 73(1)(g). -- 5 of 12 -- 6 the dividing fence and onto the applicant’s land. The fence has been built to abut the tree stem. Buttress roots from the subject tree extend through the dividing fence and onto the applicant’s land, impacting the edge of the drive. [24] The Tree Assessor’s report identifies and I accept that the subject tree bisects the property boundary fence with buttress roots extending into the applicant’s property to the extent that they impede the applicant’s ability to reinstate the driveway to its original design. As the tree continues to grow there is potential for further, ongoing encroachment into the applicant’s property. Severance of buttress roots is not recommended, as the extent of cut required has the potential to destabilise the tree and/or allow colonisation by pathogenic decay fungi. [25] The Tree Assessor’s report identifies and I accept that the encroachment onto the applicant’s property from the subject tree in the form of buttress roots and the lower stem of the tree. It is also clear that this encroachment (particularly from the buttress roots) impacts upon the ability of the applicants expressed desire to reinstate the concrete strips which constitute the original driveway design. Future growth of the tree is likely to exacerbate these issues. Severance of buttress roots has the potential to destabilise the tree and/or lead to root decay, (which also has the potential to destabilise the tree over time. a smaller vehicle (standard size car) can utilise the driveway but does impact the exposed buttress roots. This damage is likely to increase over time as the roots increase in girth with age. [26] The Tree Assessor’s report identifies and I accept that removal of the tree would remove the issues (both current and future), but would constitute a loss to the tree keeper in terms of summer shade and landscape amenity. [27] The Applicant relies upon its own arborist report written by Tim Scott.in May 2021. He had regard to the report of Mr Gunter and also a report of Daniel Oaten of Heritage Tree Care dated 26 April 2021 for the Doyles. [28] Mr Scott concludes that the lower trunk and buttress roots of the tree are impeding the driveway area. He says that tree roots have previously entered old sewer pipes on the applicant’s site, although he did not apparently see this. He says that there has been no subsidence or cracking to the buildings in the development. There has been some damage caused to the buttress roots on the driveway side, presumably by vehicles driving over them or striking them. The affected driveway has separated concrete drive way strips. And on the boundary side, the strip has been removed completely because of the tree intrusion. Photographs with the tree in leaf show the branches in close proximity to the gutters and roof of the apartments. [29] The respondent’s property is recognised historic property. The Scott says that the property and all the vegetation on it is protected under the Qld Heritage Act 1992. It also refers to a vegetation protection under the Brisbane City Council Natural Assets Local law. A few weeks ago, on 5 June 2023 that protection order was revoked in respect of this tree, identified as an Indian Siris. [30] Mr Scott refers to recommendations made on behalf of the. Respondents that there be a permeable driveway built at the location. He suggested for various reasons that this might not be practically possible. And a hump on the driveway would result. Additionally, he opined, there would need to be ongoing pruning off the roots. The Cost to construct that driveway was assessed as being $31,396. -- 6 of 12 -- 7 [31] In the end, he concludes that the tree should be entirely removed because putting in the new driveway will still result in the driveway being narrowed and, in his opinion, it is not “fair and reasonable” that there be a narrowed drive away. Nor does he think it “fair and reasonable” to expect. the body corporate to limit usage of the driveway due to the encroachment. [32] In the end, Mr. Scott's opinions about what are fair and reasonable expectations by an owner are personal opinions rather than professional opinions based on expertise as an arborist. Ultimately, they are matters for the Tribunal not an arborist. [33] The arborist’s report that the Respondents originally obtained from Heritage Tree Care is now almost nine years old, having been prepared in October 2014. Apart from identifying the condition of the tree and the encroachment, its ultimate conclusion was that there would be no pruning required and for there to be continual monitoring of it by an arborist every 2 years. There were also later reports by that consultant concerning this tree, and a particular one of July 2017 which makes the recommendations about replacing the driveway with a raised surface and the need to construct the driveway with concrete edging to protect the tree from impact damage. I do not need to decide if that is a satisfactory solution which would provide a driveway surface. The second driveway point [34] The Applicant accepts that there is a second driveway on the other side of the Elron Court building. And says that this driveway is designed to service the four units on that side of the building. It submits that the current situation is that the “tree has caused residents to be forced to restrict their entrance/exit to the western driveway for fear of damaging their vehicles using the eastern one. It says that to suggest that if this driveway were to be unusable it would not impact on the ability of the users of the Appellant’s property to access their parking spaces is to deny the unit holders of the body corporate the same rights of quiet enjoyment of their property' that other residents, including the Respondents, enjoy”. It says that it has not 'accommodate[d] alternative driveway access’, and that the building was built with two driveways because that is what is required to service the number of apartments on the block. That amounts to speculation about what the original builder of this prewar set of flats intended, and how many of them would have owned cars at that time. [35] It submits that that the idea that the Applicant should abandon the use of the driveway affected by the tree and instead rely on the driveway on the other side of their property to service all 8 units, or alternatively to use ‘on street’ parking should the Applicant’s driveways not be accessible should be rejected “as completely unjustified restrictions of their quiet enjoyment of their own properly as it was designed and constructed”. [36] Assuming that to be the solution which the respondent has identified to there being restricted access on the driveway where this tree is located, i.e., to use the other driveway, the issue then is whether that property right should be recognised in a way which results in this tree being entirely removed. In my view, it this case it does not. The ND Act implicitly recognises that property rights including that to quiet enjoyment of a property may properly be restricted when it comes to the effects caused by trees. -- 7 of 12 -- 8 [37] I accept that for the Body Corporate, there is uninhibited access to the rear of the Body Corporate’s property via one driveway and serviceable access for other than the large vehicles via the eastern access. The substance of its complaint is that for those larger vehicles the users are not able to make a choice between two serviceable accesses to reach their garages. It is not controversial that the eastern driveway affected by the tree is presently useable. The Body Corporate’s arborist suggests that over time with on-going growth it may eventually be passable only to the smallest vehicles. I refer to the report by Mr Scott page 14 para 14.3. In my view it would be premature to order the removal of the tree in anticipation of that event. Subsidence, pipe and other damage [38] The Applicant contends that it has concerns about the future structural implications for the property as a result of the tree, and refers to the report from “The Consulting Arborists” which states that if constructed the driveway reconstruction proposed by the Respondents as a remedy to the problem ‘will result in a very high ‘hump' in the driveway that will alter; its ease of use, the waterflow during rain events, clearance with the awning and have possible implications for the complex structure. In my view the fact that an alternative solution to removal of the tree may have those outcomes is relevant but not determinative of the issue. [39] There is a suggestion by the Applicant that it poses a potential structural risk to the Body Corporate’s building, however I accept that this claim is not supported by any evidence from any qualified person, or indeed by observation of any damage. Rather what is pointed to is the fact that roots exist and seem to pass under the border of the Body Corporate’s building. [40] The Applicant also points to damage to the footpath and council having to repair it.it contends that the Council has attempted to reduce trip hazards for pedestrians by a quick fix of applying some bitumen to the uneven surface. And says that this is not a permanent solution. Again, that is a matter for the Council, which has not sought to be heard on this application. [41] The Applicant also contends that during very heavy rain in February 2022 a sink hole was created in a section of ground, adjacent to the base of the tree. The Applicant contends that it is clear that the driveway is unusable, and that this has been caused by subsidence of the land due to the undermining of the driveway by the tree roots. Accepting that there may well have been such subsidence, it has clearly been remedied. And any further similar issues could also be remedied. The evidence shows that the driveway is not unusable, and is and has been in regular, albeit restricted use. [42] The arborist engaged by QCAT was able to park a large tray-utility vehicle on the driveway between the tree and the Body Corporate’s building. I refer to figures 5 and 6 of the report of David Gunter dated 30 October 2020. The respondents accept that it cannot readily be used by large cars or four-wheel drive trucks or vans and the like. It is usable for medium and small cars, bikes and pedestrian traffic. The Body Corporate’s own arborist’s report does not say that the driveway is unusable. [43] There is reference in Mr Scott’s report and elsewhere to damage to sewerage or drainpipes caused by the roots of the subject tree. This damage is said to have occurred over a decade ago. It is not shown to have reoccurred. It appears from some of the material relied on by the Applicant that the work may have been done was said to be -- 8 of 12 -- 9 done about 14 years ago and that the Respondents contributed to the cost of it. The Respondents have no recollection of it. [44] There was also repair work carried out in mid-2019. There is no detail on it in the Body Corporate’s evidence. It is not shown that this was attributable to the subject tree alone. The evidence includes a letter from Flow on Services, a plumber concerning dealing with tree roots affecting pipes. He states that tree root damage to underground pipes is ‘a usual occurrence’. It is treated by clearing the pipes (by Jet- rodding) and by repair or replacement when required’. He goes on that he “would not expect anything which is not readily capable of correction by maintenance or treatment as outlined’ in his letter. I accept the evidence that root penetrations are readily overcome by minor plumbing rectification works and consider that, rather than the destruction of the tree, to be the appropriate response. Storm risk [45] The Body Corporate submits that the tree may pose a risk in the event of a cyclone. That is entirely speculative and not supported by the opinion of any expert arborist, although common experience suggests that trees can fall in cyclones. The evidence is that in the violent January 2020 storm the tree stood firm. The respondents have obtained an arborist’s report which confirms that the tree is in good health. I do not consider the risk to be significant. Common law right of abatement [46] The Applicant contends that the alternative to the making of such an order is that the Applicants exercise their common law right of abatement, which it says is specifically preserved by section 54 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). It says that as a matter of law, this entitles the Applicants to “remove those parts of the tree and its root system that are physically located on our land. We have sought to avoid this outcome so as to avert any potential risk to the Respondents^ property should they fail to adequately address the health of the tree after such abatement”. The evidence and submissions for the parties do not otherwise address this issue, and I express no view about it. It may be said however that if it is correct, then it demonstrates that an order for the removal of the tree is neither necessary nor appropriate. The contribution of the tree to amenity [47] In the reports of Dean Butcher of SLR Consulting dated 13 March 2020, David Norton of Heritage Tree Care and David Francis of Cardo dated 4 March 2020 the substance of which I accept, it is shown that that the tree contributes a significant benefit of shade and biodiversity. It provides an important refuge for bird life. It provides privacy and amenity to the respondent’s home. In particular it provides shading on the western side of the property. [48] I accept that the tree contributes significantly to the amenity of the Respondents’ property, and to the visual and other amenity of the neighbourhood (and its fauna). It is a large mature specimen which contributes a significant benefit of shade and biodiversity to the streetscape. I accept that it provides an important refuge for birdlife which seek out large trees such as the subject tree, without which such birdlife would relocate, thereby denying the local community and residents the contribution which -- 9 of 12 -- 10 their birdsong makes to the local ambience. I accept also that it provides significant privacy and amenity to the Respondents who have managed the tree by using properly qualified arborists over many years, and who will continue to do so. Heritage listing on the Respondents’ property [49] The Body Corporate submits that the subject tree is not specifically identified as the basis for heritage listing. It does not say that this makes the heritage listing an irrelevant factor, and nor is it so. The whole of the site of 186 Moray Street is listed on the Heritage Register. As a result, to conduct any development work an exemption certificate is required under s 74 of the Queensland Heritage Act 1992 (Qld). [50] The expression development work in the Queensland Heritage Act refers to the Planning Act which relevantly for a heritage place includes “altering, repairing, maintaining or moving a built, natural or landscape feature on the place”. This would appear to me to potentially include removal of a tree, although I should not be taken to have reached ant view about that. It would be a surprising outcome if any alteration to any plant on a property listed the Heritage Register would be treated as development work. Were that the case no lawns could be mowed ! [51] Be that as it may, the circumstance that the tree is located on a Heritage Place is one of the things to which I am to have regard under s 73 (2) of the ND Act, and it has some historical, cultural, social or scientific value and it is an additional factor that weights against making an order for removal of the tree. Other considerations- the respondents’ undertakings [52] In his statement of 17 June 2021, the respondent Mr Doyle says that they have always maintained the tree by professional pruning since purchasing the property at 186 Moray street in 2002, and will continue to have it inspected periodically by an arborist and to have it maintained for as long as they own their property. He says that this is because they recognise the amenity it provides and for the biodiversity features. He offers an undertaking to that effect on the part of the respondents that they will continue to have it inspected periodically by an arborist and to have it maintained for as long as they own their property. Mrs Doyle says the same. [53] He points to the fact that the damage caused to sewage apparently occurred more than a decade ago. Again, in relation to any remedial works that might be required in the future to the driveway, gutters, plumbing and sewage, he says they would be willing to arrange it or contribute to the cost of it. [54] I can also have regard to the statement of Margaret Doyle. She too gives and undertaking to have periodically inspected and maintained by an arborist. [55] It was no part of the application by the Body Corporate to rely on overhanging branches as may be seen from item 8 of the application filed 10 February 2020.They can be dealt with in any event without removal of the tree. [56] There is also mention in the application to leaf litter on the Body Corporate’s land. It is not said to be attributable to or only to the subject tree. I am not persuaded that it amounts to a substantial, ongoing and unreasonable interference with the use and enjoyment of land. In that regard however, the Respondents submit that if some -- 10 of 12 -- 11 provision of this kind is thought to be appropriate then the Respondents have advised they are willing to arrange it or contribute to it. -- 11 of 12 -- 12 The rights of the Appellants to the enjoyment of their own property [57] The Applicant also contends that the tree should be urgently ordered to be removed and says that “the Respondents have no respect for the rights of the Appellants to the enjoyment of their own property as it was designed and constructed”. [58] As I have set out above the respondents have acted responsibly and have undertaken to continue to do so. There is no substance to the submission that they lack respect of the kind suggested. Disposition [59] Accepting and applying the approach identified above in Belcher v Sullivan [2013] QCATA 304 by Judicial Member Dodds, I am not satisfied that the damage to pipes or the driveway was serious damage nor amounted to on-going and unreasonable interference with the applicant’s use and enjoyment of its land which was substantial. [60] Even if I had been persuaded that it was serious damage or amounted to on-going and unreasonable interference with the applicant’s use and enjoyment of its land which was substantial, it does not follow that the tree must now be removed. Under S 66 of the ND Act the Tribunal has broad powers to make an order it considers appropriate about a tree to remedy a situation where that situation was held to exist. There are other remedies available to deal with that interference or potential further interference in the future [61] I am not satisfied that removal of the tree is required or desirable to remedy, restrain or prevent serious damage to the Applicant’s land or any property. Nor am I satisfied that removal of the tree is required or desirable to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the Applicant’s use and enjoyment of its land. [62] For those reasons I refuse the application. -- 12 of 12 --