Davies & Anor v Gaus & Ors [2023] QCAT 127

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Davies & Anor v Gaus & Ors [2023] QCAT 127 PARTIES: GERALDINE INGRID DAVIES WAYNE DAVIES (applicants) v CAROLINE GAUS MARK JOHN O’DONOHUE RODNEY WEBSTER CHRIS WEBSTER BRISBANE CITY COUNCIL (respondents) APPLICATION NO/S: NDR023-20 MATTER TYPE: Other civil dispute matters DELIVERED ON: 31 March 2023 HEARING DATE: 15 March 2023 HEARD AT: Brisbane DECISION OF: Member Deane ORDERS: The application is dismissed. CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether the Tribunal has jurisdiction to make an order - whether the tree is maintained as a condition of a development approval – whether an order would be appropriate if the Tribunal had jurisdiction Natural Asset Local Law 2003, s 3, s 17, Schedule 1, Schedule 4 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 41, s 42, s 46, s 47, s 48, s 52, s 61, s 65, s 66, s 72, s 74, s 75, s 84 Planning Act 2016 (Qld), s 73 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 -- 1 of 15 -- 2 Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225 Robertson v Darvas [2016] QCAT 136 Thomsen v White [2012] QCAT 381 APPEARANCES & REPRESENTATION: Applicants: G I Davies First Respondents: Second Respondents: Third Respondent: M J O’Donohue R Webster W Manners REASONS FOR DECISION [1] Mr and Mrs Davies commenced these proceedings under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ND Act).1 At the time the Application was filed Drs Gaus and O’Donohue were registered proprietors of the land on which a mature weeping fig tree (Tree) was located (original Treekeepers).2 The evidence is that the Davies purchased their property in 2010 and the original Treekeepers purchased their property in 2012. The Tree is located near the common boundary of their properties. [2] The Davies originally sought the following orders in relation to the Tree: (a) Remove or prune branches; (b) Remove or prune roots; (c) Other tree work; (d) The treekeepers apply for consent or other authorisation from a government authority; (e) The treekeepers pay the costs of carrying out the tree work; (f) Compensation for damaging land or property in the amount of $4,958; (g) Appropriately qualified arborist prepare a report. [3] During these proceedings Mr and Mrs Webster purchased the land on which the Tree is located and were joined as respondents (current Treekeepers).3 [4] The undisputed evidence is that: (a) the canopy of the Tree extends over a number of adjoining lots including that of the Davies. 1 Exhibit 1, filed 7 February 2020. 2 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 48 (the ND Act). 3 Ibid, s 84. -- 2 of 15 -- 3 (b) the branches extend more than 50 cm over the Davies’ land at a height of more than 2.5 m such that the common law right of abatement does not assist to resolve the dispute. Jurisdiction [5] I find that the Tribunal does not have jurisdiction to make orders because the Tree is a tree maintained as a condition of a development approval. [6] The Brisbane City Council (the Council) has participated in these proceedings. Drs Gaus and O’Donohue, the Websters and the Council say that the Tribunal does not have jurisdiction to make an order. [7] Section 42(4) of the ND Act relevantly provides: This chapter does not apply to trees planted or maintained— (a) …. (b) ….. (c) as a condition of a development approval. Is the Tree the tree referred to in the 2003 Development Approval? [8] I find, on the balance of probabilities, that the Tree is the tree referred to in the 2003 Development Approval. [9] The undisputed evidence is that in 2003 a Development Approval (DA) was granted in respect of a large parcel of land neighbouring the land on which a large fig tree was located. The DA refers to an arborist report, which describes the tree as being located on neighbouring land near the southeast corner of the land being developed, having a canopy of about 30 m and trunk approximately 4 m from the boundary of the site the subject of the DA (DA Site). [10] The Davies say that the tree referred in the DA is not the Tree and that any evidence before the Tribunal, which suggests that it is the same tree, is inconclusive. They say that there were a number of other fig trees, which existed in the locality at the time of the DA, some of which remain in place today and in particular point to a tree on ‘lots 25 and 27’ as likely being the tree referred to in the DA. They rely upon communications with Council employees, which they say support this conclusion. Mrs Davies says she has included in the documents filed an extract of the information provided.4 It identifies three Council employees. One of them, Mr Manners, gave a statement on behalf of the Council.5 [11] Mr Manners’ evidence is that from his review of the Council files he believes the Tree is the same tree as that referred to in the DA. He accepts there were a number of fig trees in the locality. His evidence is that none of the other fig trees match the description in the DA and associated arborist report and the tree on lots 25 and 27 could not be construed as being located near the southeast corner of the DA Site. He attached a 2001 aerial photograph to his statement.6 The photograph shows a number of trees. It shows a large tree near the southeast corner of the DA Site, which based 4 Exhibit 2, p5. 5 Exhibit 11. 6 Ibid, attachment 6. -- 3 of 15 -- 4 on the scale attached to the photograph I estimate had a canopy of approximately 30 m. Mr Manners says, and I accept, that none of the other trees on neighbouring properties in the photograph are of similar dimensions. [12] The other Council employees referred to by the Davies did not give a statement in these proceedings, nor were the actual emails or other written communications put into evidence. I prefer the evidence of Mr Manners, who confirmed his statement and was questioned by Mrs Davies and by me. His evidence is consistent with the documentary evidence before me. Is the Tree a tree maintained as a condition of the 2003 DA? [13] I find that the Tree is a tree maintained as a condition of the 2003 DA. [14] The DA conditions relevantly state: 8. Protect and enhance existing trees on the subject site (a) Arrange a pre-start meeting with the Delegate, Licensing and Compliance: (b) Protect, enhance and manage vegetation by implementing the requirements and carrying out the works in accordance with the approved ‘John Mulholland & Associates Arborist’s Report”– R8230581 and received 20 February 2003. GUIDELINE This condition is imposed where the site contains vegetation that should be retained, protected and/or managed. For enquiries about this condition, please contact the Ecologist, Development Assessment Timing As indicated Prior to site works commencing While site works are occurring and then to be maintained [15] The Davies say that even if the Tree is the tree referred to in the DA it only protected it during the development as the Tree is not on the DA Site. [16] Mr Manners submitted, and I accept that more likely than not, given the size of the tree referred to in the DA the roots of the tree would have extended into the DA Site. I find that at least part of the Tree was located on the DA Site. [17] Further Mr Manner submits, and I accept, that such a condition was imposed to protect the Tree while the site works were occurring but because the words ‘and then to be maintained’ were used it clearly shows an intention that the condition was not to only apply during the site works but it was to be ongoing. [18] The Davies also say the Tree was not the subject of a Vegetation Protection Order (VPO) until more recently. This is not in dispute. The Davies say the more recent -- 4 of 15 -- 5 protection should override the earlier protection. They did not refer me to any legislative or other authority for that proposition. [19] Mr Manners submitted, and I accept, that the two protection regimes are separate. The DA continues to attach to the DA Site and binds the owner and the owner’s successors, and any occupier of the DA Site.7 On the evidence before me this does not include the Treekeepers. [20] The VPO is made under the Natural Asset Local Law 2003(NALL).8 [21] Section 17 of the NALL provides: (1) A vegetation protection order takes effect upon being notified and remains effective until it is revoked. (2) An affected person is bound by a vegetation protection order immediately upon service of notice under section 9(1)(a), whether or not a notice has been published in accordance with section 9(1)(b). (Footnote omitted) [22] The NALL defines ‘affected person’ to mean any person other than Council who is the owner of land in the root zone, as depicted in Schedule 1.9 [23] Schedule 1 is set out below: 7 Planning Act 2016 (Qld), s 73. 8 Now regarded as made under the City of Brisbane Act 2010 (Qld). 9 Natural Asset Local Law 2003, s 3(1), Schedule 4 (definition ‘affected person’) (NALL). -- 5 of 15 -- 6 [24] The VPO therefore binds the Treekeepers whereas the DA condition does not. I find that they are separate protections for the Tree. Summary [25] The Tree is not a tree to which Chapter 3 of the ND Act applies. The Tribunal has no jurisdiction to make any order with respect to the Tree. The application must be dismissed. This does not mean that the Davies are without remedy, but it does mean that a remedy is not available from the Tribunal under the ND Act. [26] If I am wrong and the Tribunal has jurisdiction, I have considered whether an order should be made. [27] The Davies claim the Tree: (a) has caused serious injury and serious damage in the past and is likely to cause serious injury to a person or serious damage to their land or property on their land within the next 12 months; (b) causes substantial, ongoing unreasonable interference with their use and enjoyment of their land due to the debris and by causing an obstruction of sunlight. Mrs Davies says the Tree: -- 6 of 15 -- 7 (a) branches have fallen on her and her mother, on separate occasions, causing injury; (b) debris caused damage to their pool, pool equipment, pergola roof, garden, and paving; (c) debris requires significant cleaning effort; (d) shades their garden; (e) has not been regularly maintained for many years. [29] The Davies as applicants bear the onus of establishing their entitlement to orders on the balance of probability. [30] Mrs Davies says that their issues with the Tree have been ongoing for 12 years. There is no specific evidence of how or when they brought their issues to the original Treekeepers’ attention nor to the attention of the previous owners of the land on which the Tree is located earlier than when the Davies wrote to the original Treekeepers in mid May 2019. The original Treekeepers deny they were made aware of the Davies’ concerns prior to May 2019. [31] I am not satisfied, on the balance of probability, that the Davies’ concerns were raised with the original Treekeepers prior to May 2019. [32] The evidence is, and I accept, that following the Davies making contact with the original Treekeepers in May 2019: (a) they took steps to have branches identified by the Davies as of concern pruned and this work was performed by late May 2019; (b) they took steps in relation to the Council approving a tree management plan (TMP) in respect of the Tree and this process involved consultation with the Davies and other neighbours. On 7 December 2019 the original Treekeepers informed the Davies that they were applying for a long-term management permit in respect of the Tree. There is no evidence before me that the Davies informed the original Treekeepers they had any concerns in relation to the TMP.10 [33] The Tree was placed under a VPO on 5 June 2019, which was confirmed by letter dated 5 September 2019. [34] On 23 January 2020 the Council granted a 10-year permit to carry out works in accordance with the TMP dated November 2019. [35] The Davies commenced these proceedings after the TMP had been prepared. [36] A tree assessor was appointed by the Tribunal and provided a report.11 The Tree Assessor described the Tree as 18-20 m in height with a canopy spread in excess of 25 m12 with the trunk being within 3 m of the dividing fence.13 10 Exhibit 8. 11 Exhibit 12. 12 Ibid, 2.2.2. 13 Ibid, 2.2.11. -- 7 of 15 -- 8 [37] The Tree Assessor recommended pruning work be undertaken to the branches of the Tree and that ongoing work be performed not more regularly than 12 monthly and not less frequently than 18 monthly. The Tree Assessor’s report did not recommend any work to the roots. The work recommended was slightly more extensive than that set out in the TMP. A proposed agreement was prepared based on the Tree Assessor’s recommendations. The original Treekeepers agreed with the recommendations. The Council agreed that the works were consistent with the TMP and agreed to the plan’s amendment. The current Treekeepers agreed with the recommendations. Ultimately the Davies did not agree with the proposed agreement and required amendments, which were not agreed by the Treekeepers. [38] The undisputed evidence is that the original Treekeepers caused the initial recommended works to be undertaken in June and July 2022. There is evidence before me that the original Treekeepers have prepaid for the next round of ongoing tree work to be performed.14 The current Treekeepers agree to undertake the ongoing recommended works as part of the TMP. The Council’s position is that it does not oppose an agreement being reached but raised the jurisdictional point in relation to the Tribunal’s power to make an order in respect of the Tree. [39] The Davies are seeking an order in relation to the ongoing tree work and for compensation. Have the pre-requisites of the ND Act been satisfied? [40] I am satisfied that the Davies have complied with 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. [41] There is evidence that Mrs Davies wrote to the original Treekeepers on 15 May 2019, 5 June 2019, 15 December 2019, on or about 8 or 11 January 2020, on or about 14 or 15 January 2020 and to the Council on 24 January 2020 in relation to the Tree to seek to resolve the claimed issues with the Tree. [42] The letter dated 8 January 2020 emailed on 11 January 2020 made a claim for damages to their pool and property in the sum of $4,958.99 ‘for the last 4 years of damage’ but did not set out how that amount was calculated. The original Treekeepers’ evidence is that this was the first time they were informed of such damage. There is no specific evidence of prior communications. [43] I am not satisfied, on the balance of probability, there was prior communication of damage. [44] As referred to earlier, the evidence demonstrates that: (a) in May 2019 the original Treekeepers took steps to remove alleged hazardous branches nominated by the Davies and that such work was carried out by late May 2019. (b) during 2019 the original Treekeepers caused a TMP to be prepared, which involved consultation between the arborist preparing the TMP and the Davies. 14 Exhibit 10, attachment. -- 8 of 15 -- 9 (c) On 15 January 2020 the original Treekeepers applied to the Council for a long- term permit to carry out works on the Tree in accordance with the TMP, which was granted on 23 January 2020. Should an order be made? [45] I am not satisfied, on the balance of probabilities, that an order is appropriate for the reasons set out below. [46] As stated earlier, the Davies are the applicants and bear the onus of establishing on the balance of probabilities their entitlement to orders under the ND Act. [47] The Tribunal has broad powers to hear and decide:15 …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. [48] Land is ‘affected by a tree’ at a particular time if branches overhang the land, the tree has caused, is causing or is likely within the next 12 months to cause serious injury to a person on the land, or serious damage to the land or any property on the land, or substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land,16 and the land adjoins the land on which the tree is situated.17 A tree is situated on land if the base of the tree is or was previously situated wholly or mainly on the land.18 [49] It is not disputed that the Davies’ land is affected by the Tree as branches of the Tree overhang the Davies’ land and the Tree is situated on adjoining land. [50] The Tribunal has broad powers to make an order it considers appropriate about a tree to: (a) prevent serious injury to any person;19 (b) remedy, restrain or prevent serious damage to the Davies’ land or any property on their land;20 or (c) remedy, restrain or prevent substantial, ongoing and unreasonable interference with the Davies’ use of their land.21 [51] The ND Act 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.22 The Davies do not seek removal of the Tree. [52] Under the ND Act the treekeeper is responsible for ensuring the Tree does not cause serious injury to a person or serious damage to a person’s land or property or 15 The ND Act, s 61. 16 Ibid s 46(a). 17 Ibid s 46(b). 18 Ibid s 47(1). 19 Ibid s 66(2)(a). 20 Ibid s 66(2)(b)(i). 21 Ibid s 66(2)(b)(ii). 22 Ibid s 72. -- 9 of 15 -- 10 substantial, ongoing and unreasonable interference with a person’s use and enjoyment of a person’s land.23 Serious injury and serious damage [53] The Davies say the Tree has caused serious injury and serious damage and is likely to cause such injury and damage within 12 months. [54] Where there is a claim that a tree has caused or is causing or likely to cause serious injury or serious damage, I may consider whether there is anything other than the tree which has contributed or is contributing to the injury or damage and any steps taken by the treekeeper or the neighbour to prevent or rectify the injury or damage or the likelihood of injury or damage.24 Serious injury [55] I am not satisfied the evidence supports a finding of serious injury. [56] Mrs Davies says a branch fell and hit her mother. Some evidence is before me that this occurred in December 2017.25 Mrs Venter was not available to confirm her evidence and be questioned. The evidence is that Mrs Venter required first aid. There is some, but limited, evidence that she experienced ongoing pain at the time of the statement, as a result of the incident. There is no medical information in evidence before me to support her statement that the ongoing pain was caused by the branch falling on her. [57] Mrs Davies says a branch fell and hit her. There is little information as to when this occurred, and the extent of any injury sustained. [58] By using the phrase ‘serious injury’ the Parliament clearly intended that not all injury would be sufficient to trigger entitlement to orders. [59] There is no evidence before me that the Davies raised these incidents with the original Treekeepers shortly after they occurred. This suggests that the injuries were not serious injuries. [60] While I accept that there is evidence of injury, I am not satisfied the evidence supports a finding of serious injury. The Davies say the Tree is ‘excessively’ dangerous. [61] I am not satisfied that this statement is supported on the evidence. The evidence is that overall, the Tree is healthy and with the pruning recommended by the Tree Assessor the risk of deadfall is minimised. Such recommended pruning was substantially the same as the pruning provided for in the original TMP. This is a factor that is not in favour of the making of an order. [62] Even if I was satisfied that the Davies had established the Tree caused serious injury, the undisputed evidence is that the original Treekeepers were taking steps to address the safety and debris issues raised in a relatively timely manner. This is a factor in favour of not making an order. 23 Ibid, s 52. 24 Ibid, s 74. 25 Exhibit 3. -- 10 of 15 -- 11 Serious damage [63] I am not satisfied that the Tree caused serious damage to the Davies’ land or any property on their land. [64] The Davies say that the Tree has caused significant damage to their pool, pool equipment/creepy crawly. They say they have replaced their pool pump, creepy crawly and pool pipes on a regular basis. They say the Tree causes the pool pump to burn out and need replacement. [65] By using the phrase ‘serious damage’ the Parliament clearly intended that not all damage would be sufficient to trigger entitlement to orders. [66] The Davies’ evidence is largely in generalities with little specific information as to how often their pool pumps and other equipment have needed to be replaced. [67] They say they need to replace the creepy crawly every 6-8 months as a direct result of the Tree.26 Towards the end of the oral hearing Mrs Davies gave somewhat contradictory evidence that they replace the creepy crawly ‘almost every year’. [68] Further Mrs Davies gave oral evidence that if they are awarded compensation, they will use the money to replace equipment. A copy of an invoice for a pool pump and creepy crawly is in evidence.27 It is dated April 2019. There is no specific evidence as to why they were replaced or how old they were at that time. There is no specific nor documentary evidence whether the equipment has been replaced since 2019. [69] There is no evidence before me: (a) of the usual life of a pool pump and other equipment. (b) that the Davies raised these issues with the original Treekeepers prior to January 2020. (c) from a pool maintenance professional to support the contentions made by the Davies. (d) that the Davies’ have particular expertise in pool equipment. [70] The Davies did not give evidence as to the steps they have taken to address any potential damage. Photographs filed show that the Davies have a pool cover for their pool. There is no evidence of whether and how often the Davies use their pool cover to mitigate any damage to the pool pump and other pool equipment. They did not give any specific evidence as to how the claimed damage occurred despite the use of the pool cover. [71] I am not satisfied that the Davies have established, on the balance of probabilities, that the equipment was required to be replaced due to the Tree. [72] Even if I accepted that damage was more likely than not caused by debris from the Tree, about which there is considerable doubt due to the limited evidence, I am not satisfied that such damage could be said to be ‘serious’. [73] Even if I was satisfied that the Davies had established the Tree caused serious damage or was likely to cause serious damage the undisputed evidence is that the original 26 Exhibit 2, p 8. 27 Ibid, p 53. -- 11 of 15 -- 12 Treekeepers were taking steps to address the safety and debris issues raised in a relatively timely manner. This is a factor in favour of not making an order. Substantial, ongoing and unreasonable interference [74] I am not satisfied, on the balance of probability, that the Tree causes substantial, ongoing and unreasonable interference. [75] The Davies say the Tree causes substantial, ongoing and unreasonable interference. They rely upon excessive debris and obstruction of sunlight. [76] Where there is a claim that a tree has caused or is causing substantial, ongoing and unreasonable interference, I may consider whether there is anything other than the tree which has contributed or is contributing to the interference and any steps taken by the treekeeper or the neighbour to prevent or minimise the interference.28 Debris [77] The Davies say, somewhat inconsistently, that Mr Davies cleans up tree branches and leaves nearly every day or alternatively every weekend. The Davies’ evidence was that the debris from the Tree was such that they are required to regularly clean up and that this was a substantial, ongoing and unreasonable interference. There are photographs of tree debris and leaf litter but there is no evidence of the period of time over which the debris shown has accumulated. There was no written evidence of how long the clean-up takes. The original Treekeepers’ evidence is that they cleaned up every two weeks on their side of the Tree. Mr Webster gave oral evidence that it takes him about 15-20 minutes a week to clean up. Towards the end of the hearing Mrs Davies gave oral evidence that Mr Davies takes ‘hours’ each weekend to clean up the debris. [78] On many occasions the Tribunal has found that tree debris will not justify an order unless there is a finding that the debris is excessive.29 [79] I am not satisfied, due to the state of the evidence, that the debris is excessive. Obstruction of sunlight [80] Where the interference claimed is an obstruction of sunlight the tree must rise at least 2.5 metres above the ground and the obstruction to a window or roof of a dwelling must be severe.30 [81] There is evidence that the Tree: (a) rises at least 2.5 metres; and (b) shades the Davies’ yard and pool. There is also evidence that the double story dwelling to the northwest also casts shade on the Davies’ property.31 [82] The Tree Assessor’s report indicates a partial obstruction of sunlight to the Davies’ dwelling by the Tree.32 There is no specific evidence about which window or part of 28 ND Act, s 75. 29 Thomsen v White [2012] QCAT 381; Robertson v Darvas [2016] QCAT 136; Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225. 30 ND Act, s 66(3). 31 Exhibit 12, 2.2.15.1 32 Ibid, 2.2.15.2. -- 12 of 15 -- 13 the roof of the dwelling it shades and how this interferes with the Davies use and enjoyment. The Tribunal has previously found that a severe obstruction is one that must be considerable.33 [83] The Davies’ evidence centres on the impact of shade on their yard and the pool. On the evidence before me, I am not satisfied the obstruction of sunlight to a window or roof of the dwelling by the Tree is severe. [84] Even if I was satisfied that the Davies had established the Tree causes substantial, ongoing and unreasonable interference either because the debris is excessive or as a result of obstruction to sunlight, as previously stated the undisputed evidence is that the original Treekeepers were taking steps to address the issues raised in a relatively timely manner. This is a factor in favour of not making an order. [85] The evidence is that the Tree was planted many years ago by a previous owner of the Treekeepers’ property, well before the Davies purchased their property in 2010. The Davies say that the Tree has not been appropriately maintained, which has resulted in the issues raised. The Davies have provided little supporting evidence for their contentions. The 2001 aerial photograph and other aerial photographs in evidence demonstrate that the Tree was likely of similar dimensions by 2010, when the Davies purchased, as of 2020 when the proceedings were commenced. The Tree Assessor’s report indicates that it is a mature to senescent tree34 and there is some evidence that the Tree is estimated to be between 80 to 100 years old. [86] This is a factor in favour of not making an order.35 Other considerations [87] I am required to consider various matters including the contribution to amenity the Tree makes to the Tree-keepers’ land, the local ecosystem, public amenity and privacy.36 [88] These are factors in favour of not making an order. [89] I may consider any steps taken by the treekeeper or the neighbour to prevent or rectify the injury or damage or interference or the likelihood of injury or damage or interference.37 [90] The undisputed evidence is that the original Treekeepers were taking steps to address the safety and debris issues raised in a relatively timely manner. This is a factor in favour of not making an order. Should compensation be awarded? [91] I am not satisfied that any compensation or costs should be awarded to the Davies. [92] The Davies seek: (a) compensation in the amount of $4,633.25; 33 Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247; Robertson v Darvas [2016] QCAT 136. 34 Exhibit 12, 2.2.3. 35 ND Act, s 75(d). 36 Ibid, s 73(1). 37 ND Act, s 74, s 75. -- 13 of 15 -- 14 (b) filing fee of $358; (c) Tree-assessor’s fee of $500. Compensation [93] I am not satisfied, on the balance of probability, that the amounts sought should be awarded. [94] The Davies say they have expended a lot of money over the years because of the Tree and that the amounts claimed are a ‘snapshot’ or selection of their expenses. I am required to assess the evidence before me. The Davies have provided some documentary evidence in relation to their claims for: (a) Pool pump and creepy crawly - $3,141.60; (b) Council charges for an additional green waste bin - (i) 2020 - $21.51/quarter x 4; (ii) 2021 - $22.32/quarter x 4; (iii) 2022 - $22.32/quarter x 4; (c) Payments to Proswim Pool Care and Neptune’s Pool Care in 2020 and 2021; (d) Titles office fees - $41.20. [95] For the reasons set out earlier at [66] on the evidence before me, I am not satisfied, on the balance of probability, that the Tree caused serious damage to the pool pump and creepy crawly. I am not satisfied any amount should be awarded in respect of pool equipment. [96] For the reasons set out earlier at [79] on the evidence before me, I am not satisfied, on the balance of probability, that the Tree debris is excessive. I am therefore not satisfied any amount should be awarded in respect of green bin charges. [97] There is no specific evidence as to what the amounts paid to the pool care suppliers were for and how they relate to the Tree. On the evidence before me, I am not satisfied, these amounts should be awarded. In view of the state of the evidence, I would not be satisfied they should be awarded even if I was satisfied that the Tree caused serious damage to the pool or was satisfied the debris was excessive. Costs [98] The filing fee, titles office fees and the Tree Assessor’s fee are costs of the proceeding. Each party usually bears their own costs38 unless the Tribunal makes an order requiring a party to pay all or a stated part of the costs of another party where the Tribunal considers the interests of justice require it to make the order.39 [99] The original Treekeepers were taking steps to address the safety and debris issues raised in a relatively timely manner prior to the Davies commencing these proceedings. I am not satisfied that the costs incurred by the Davies in bringing these 38 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100 (QCAT Act). 39 Ibid, s 102(1). -- 14 of 15 -- 15 proceedings should be awarded in the interests of justice.40 The original Treekeepers do not seek any costs. Against whom should the orders be made? [100] Any ongoing orders for maintenance of the Tree must be directed to the current Treekeepers because they are in control of the Tree and the land on which it is situated. [101] In view of my findings that no compensation or costs orders should be made it is not necessary to make findings in relation to whether the Tribunal has power to make such orders against the original Treekeepers or whether the Tribunal’s power to make orders is restricted to making them against the current Treekeepers. Summary [102] Even if the Tribunal had jurisdiction, which I have found it does not, the Application should be dismissed. The Davies have failed to make out their contentions to the required standard. Their written evidence largely consisted of generalities with little explanation and supporting evidence. They were given an opportunity to explain and clarify their written evidence at the oral hearing but largely were content to rely upon their written evidence. [103] Even if I had been satisfied that the Tree had caused serious injury or serious damage or substantial, ongoing and unreasonable interference or was likely to do so, which I am not, I would not be satisfied that orders are appropriate to prevent serious injury or remedy, restrain or prevent serious damage or substantial, ongoing and unreasonable interference with the use and enjoyment of their land41 because the original Treekeepers took timely action to address the issues, a TMP is in place and the Council have issued a 10 year permit for such work. An order is not required and therefore an order is not appropriate. 40 QCAT Act, s 102(3). 41 ND Act, s 66(2). -- 15 of 15 --