Gibbs v Bancroft [2025] QCAT 535

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9

McHugh v Withers & Anor [2017] QCAT 346

• [1] On 15 February 2022 Daniel John Gibbs and Marilyn Calin Gibbs ("the Applicants") made an application to the Tribunal for the removal of a "Silky Oak" tree which was located in an adjoining neighbour's property owned by Leah Dora Bancroft ("the Respondent").
• [2] The Applicants claim that the tree is a danger to them due to falling branches. They are unable to let their children play during the day while it is "breezy" and the leaf litter and debris is causing the roof of a shed to rust and continually blocking drainage from gutters. They say they are unable to keep up with the cleaning of the backyard and it is affecting their mental health.

• [3] The evidence before the Tribunal includes current title searches of the properties of the parties which state that:

(a) the Applicants became the registered proprietors of their property at Lot 537 on 9 February 2016. The title to the Lot was created on 1 May 1968; and

(b) the Respondent became the registered proprietor of her property at Lot 355 on 17 May 2016. The title to the Lot was created 27 May 1958.

• [4] Both parcels of land abut each other at the rear common boundary fence of those properties.
• [5] Located on the Respondent's property is a Silky Oak tree of some considerable height and it is positioned close to the common fence between the parties' properties.
• [6] The parties have been in dispute about the Silky Oak tree situated on the Respondent's land for some time. They have endeavoured to resolve that dispute but have been unable to do so. The source of that dispute is principally from a large tree branch that extends from the Respondent's property across the common boundary and across the Applicants' land. Leaf litter and debris from the branch and the tree itself falls onto the Applicants' property.
• [7] On 15 February 2022 the Applicant filed in the Tribunal an Application for a tree dispute seeking the removal of the Silky Oak tree located in the Respondent's property. The concerns of the Applicants about the tree include:

(a) the tree is a danger to the Applicants due to falling branches;

(b) the Applicants cannot let their children play during the days that are breezy through fear of falling branches;

(c) the leaf litter and debris are causing the roof of the Applicants' shed to rust and the gutters to continually block drainage;

(d) the Applicants cannot keep up with the cleaning of their backyard because of the constant leaf litter and debris;

(e) this is affecting the mental health of the Applicant, Daniel Gibbs.

• [8] On 22 March 2022 the Respondent filed a Response to the Application for a tree dispute. The Response refers to these matters:

(a) admits that one branch of the tree extends over the Applicants' shed but not the pool;

(b) did not agree that he ever agreed to the removal of the tree; the heaviest part of the branches of the Silky Oak are wholly within his property and so would fall in his own property in the event that a branch were to brake; a photo is provided of a single branch extending over the shed (but the photo does not include the tree canopy which could possibly also extend over the shed); safety was never cited as a concern by the Applicants, the shed is at least 20 years old and the leaf matter built-up has been a result of the Applicants' lack of maintenance, there are not plants growing from his gutters which are directly under the tree and has offered to provide assistance to clean gutters;.

(c) the Applicants' children have always played in the backyard and spend a lot of time in the cubby house which is under the tree;

(d) the Silky Oak is semi deciduous and only drops its leaves a couple of times a year;

(e) photos are included which are said to show a cubby house under the tree and other matters including white faced heron chicks and other bird life in the tree;

(f) the removal of overhanging branches should be sufficient.

• [9] On 16 November 2022 the Tribunal made Directions that:

An appropriately qualified arborist is appointed as an assessor to carry out an inspection of the tree(s) and provide a report to the Tribunal on the issues raised in the application.

• [10] On 23 November 2022 the Arborist, Stephen Richards, provided a Tree Assessment Report in respect of the tree the subject of these proceedings. The Arborist identified the tree in the Respondent's property as being a Grevillea robusta (Silky Oak) Tree. The Report recommended pruning of the Silky Oak tree and did not recommend the removal of the tree.
• [11] On 23 November 2022 the Applicants sent an email to the Tribunal, copied to the Respondent, stating that the tree is causing significant problems in that;

(a) the children are not allowed to play outside after witnessing a large limb fall off and land on the Respondent's roof;

(b) it is only a matter of time before a giant branch will fall on their property, this is making the Applicant wife very anxious and affecting the family's way of life and relationships;

(c) the cost of maintenance is increasing due to the foliage that continually falls off the Silky Oak tree;

(d) the Applicants' daughter has terrible eczema and there is a strong possibility that the cause of that condition could be coming from the poisons in the Silky Oak tree;

(e) any Tree Assessor or any person cannot say the tree definitely will not fall; the Assessor when asked if the tree will not fall replied that there is no way possible to say as a strong wind will take down the strongest of trees.

The Applicants contend that not taking the tree down is leaving an accident or fatal outcome possible. They are not prepared to take the risk and want the trees removed.

• [12] Further evidence was provided by the Applicants on 23 November 2022 in a letter from Mike Bartlett of the Pool Supply Co advising that:

Due to the surrounding fauna at the above-mentioned address, in particular the Silky Oak tree, the skimmer basket and pump basket are both needing to be cleaned and emptied every second day

Failing to do this small amount of periodic maintenance will cause major damage long-term, leading to a costly outlay for replacement swimming pool equipment.

• [13] On 2 January 2023 the Respondent filed further documents which included photographs and a discussion which included that trees can significantly reduce radiant and thermal heat as well as mitigate the effects of extreme weather events,[1] and a discussion on Silky Oak trees and swimming pool maintenance.
• [14] On 11 January 2023 the Tribunal sent a Proposed Agreement to the parties to give effect to the Tree Assessor's recommendations and said:

If the parties agree to resolve the tree dispute in terms of the attached proposed agreement they must sign and date the agreement and return it to the Tribunal by 1 February 2023 whereupon the application will be dismissed and the parties will be bound by the agreement.

• [15] On 21 January 2023 the Applicants sent an email stating;

We strongly disagree with the findings of the tribunal. The arborist comments about our poor judgement and that the shed and pool were put in after we purchased the house is ridiculous; the shed was there long before I bought the house, and we should be able to use our yard in any way we like while feeling safe doing so.

I can assure you the tree is a burden to everybody on the western side and a danger to the family on our property. At the very least, we want any limbs hanging over our property taken down, we don't feel safe, and this is irresponsible to leave it like this, as it is a suburban area with a tree known to lose limbs; the respondent has put in 8 magnolia trees that are rapidly growing these grow up to seven metres and mature within four years I'm sure they will substitute as a good home for all the birdlife and shade to her house while not be a danger to my family.

The Applicants signed the Tribunal document of 11 January 2023 stating that they do not consent to the agreement.

• [16] On 6 March 2023 the Respondent provided a quote from Treesafe Australia Pty Ltd for pruning of the Silky Oak tree at a cost ranging from $2,100.00 to $3,500.00.
• [17] On 16 November 2023 the Applicant filed in the Tribunal a letter from Melanie Harding of Welcome Ready of Moffat Beach relating to leaves in the pool. The letter stated:

The silky oak tree located next to the property on two occasions has damaged the pool equipment and on one occasion needed to be replaced at cost to the owner. This has affected guest satisfaction due to the large amount of debris and resulted in guests choosing to leave and cancel their booking resulting in an income loss to the owner.

• [18] On 11 March 2024 the Applicants sent an email to the Tribunal, and copied to the Respondent, stating that they had another large branch fall on their shed roof during moderate winds that morning. They enclosed with the email a photograph of that branch.

• [19] On 7 November 2022, Stephen Richards, Tree Assessor, attended the Respondent's property and provided a Tree Assessment Report which:

Identified the respondent tree as a "Silky Oak" which was located approximately 2.5 m inside the common boundary [on the Respondents property] between the parties properties.

• [20] According to that Report, the Silky Oak canopy extended over the Applicants' land including the shed but not as far as the pool or the house. That description of the tree canopy is supported by an aerial photograph contained in the Report.
• [21] The Report describes the tree as being "mature" and is approximately 50-60 years of age and was present prior to the construction of both adjoining dwellings. The shed was constructed beneath the tree "within the zone of influence and the tree was pre-existing." Final certification of the pool was finalised in 2021. The Report also stated:

Part of the western aspect of the tree extends 6 m across the dividing fence with a clearance of approximately 8 m from ground level.

The lower western limb has the greatest extension, and the extremities are laterally orientated.

The subject tree has a relatively symmetrical canopy with predominantly upright (strong) branching structure.

There is a moderate amount of smaller (10-20 mm diameter) deadwood throughout the canopy which is normal for this species and will occasionally absciss, although it is not deemed hazardous.

A failure which occurred on the lower section of the subject tree on the respondent's property in January 2022 was caused by torsional movement of an extended lateral limb. No other limbs on the subject tree bear the same characteristics and Visual Tree Assessment (VTA) prior to the failure could have identified this as a point of probable weakness.

There is a low likelihood of limb failure that could result in damage or serious injury within the next 12 months.

The subject tree is a valuable amenity asset that contributes numerous benefits to local fauna as well as providing shade from the afternoon sun for the respondent. The subject tree is a nesting site for several species of birds and also provides a source of food for nectar feeding birds

There are no developmental conditions or tree protection overlays on the subject tree which means the developers actively chose to keep the tree despite there being nothing preventing removal. Removal would have assisted with the ease of construction by eliminating the burden of having to protect and build around the tree, further demonstrating the tree has an amenity presence.

Removal of the tree would be a loss to the community whereas simple pruning management strategies can ensure the health and safety of the subject tree for years to come.

(a) hazardous dead wood removal and minor extended and weight reduction be carried out on the Silky Oak tree; and

(b) works must be completed by a minimum AQF level 3 arborist with appropriate insurances and professional affiliations; and

(c) all works must be carried out in accordance with AS 4373-2007 Pruning of amenity trees using the recommendation set out above

• [23] The Tribunal has jurisdiction to deal with matters it is empowered to deal with under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ("QCAT Act") or an enabling Act.[2]
• [24] The Applicant brings these proceedings in the Tribunal in reliance upon the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ("NDA").
• [25] The Tribunal is given jurisdiction 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 a tree.[3] A neighbour is entitled to apply, as provided under the QCAT Act, to the Tribunal for an Order.[4] In these proceedings the Applicant alleges that his property is affected by the Silky Oak tree located on the Respondent's property. As has already been referred to, the Applicant and the Respondent are the owners of adjoining parcels of land separated by a common boundary fence at the rear of their respective parcels of land. In these circumstances, the NDA is the "enabling Act" and the Tribunal has jurisdiction to hear and determine these proceedings.

• [26] The Tribunal may make an order under the NDA if it is satisfied about a number of matters which include:[5]

(a) the neighbour has made reasonable efforts to reach agreement with the tree keeper;

(b) the neighbour has taken all reasonable steps to resolve the issue under any relevant local law etc;

(c) to the extent the issue relates to land being affected because branches overhang a boundary fence;

(i) the branches extend over the neighbour's land that is at least 50 cm from the common boundaries; and

(ii) the neighbour cannot properly resolve the issue using the process under part 4.

• [27] In the material before the Tribunal, it establishes that the matters in (a), (b) and (c) above have been complied with according to witness statements or documents filed in the Tribunal.
• [28] The Tribunal has broad powers to make Orders in relation to a tree dispute. This includes orders the Tribunal considers appropriate in certain circumstances and includes orders requiring the tree keeper or allowing the neighbour to carry out work on a tree on a particular occasion or on an ongoing basis.[6]
• [29] Where there is a "living tree", such as the Silky Oak tree in these proceedings, the NDA provides:[7]

A living tree should not be removed or destroyed unless the issue relating to the Tree cannot otherwise be satisfactorily resolved.

• [30] In making an Order under the NDA, the Tribunal must take into account a number of matters which include the location of the tree in relation to the boundary of the land on which the tree is situated and any premises, fence or other structure affected by the location of the tree as well as a number of other considerations.[8]

• [31] In the Application for a tree dispute the Applicants seek an order from the Tribunal for the removal of the Silky Oak tree. The Tribunal is not sure that the Applicants have necessarily moved from that position in these proceedings although it is noted that in an email of 23 January 2023 in response to the Arborist Report they stated:

At the very least, we want any limbs hanging over our property taken down, we don't feel safe, and this is irresponsible to leave it like this, as it is a suburban area with a tree known to lose limbs; the respondent has put in 8 magnolia trees that are rapidly growing these grow up to seven metres and mature within four years I'm sure they will substitute is a good home for all the birdlife and shade to her house while not be a danger to my family.

• [32] The Tribunal proceeds on the basis that notwithstanding the email of 23 January 2023, the primary position of the Applicants is that they still require the removal of the tree on the Respondent's property.
• [33] The Applicants rely upon the Tribunal decision in McHugh v Withers & Anor[9] in which Member Traves decided that a Silky Oak tree should be removed and the tree keeper was responsible for the cost of the tree removal. In that decision Member Traves stated:[10]

However, I also find that the tree is likely within the next 12 months to cause serious injury to a person on Mr McHugh's land or serious damage to his land or property. Branches have fallen from the tree on previous occasions, the tree is over-mature to senescent and, due to past pruning, has areas of decay. I am also satisfied that the dispute could not be resolved using Part 4. This is because Part 4 provides a process of resolving disputes relating to branches which are 2.5 m or less above the ground. It has no relevance to branches over that height.

In those proceedings the appropriate order was the tree should be removed to prevent serious injury to persons or serious damage to property.

• [34] The Applicants' approach in these proceedings is in accordance with s 71 of the NDA which states:

The primary consideration is the safety of any person.

• [35] This provision for the safety of a person is followed in the NDA by the provision which prevents a living tree being removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.[11] This issue was stated in McHugh v Withers & Anor by Member Traves in these terms:[12]

In my view, the issue will not be "satisfactorily resolved" if, without the removal, there is a risk to safety of a person

General matters for consideration[13]

• [36] The location of the Silky Oak tree is approximately 2.5 m inside the Respondent's property from the common boundary fence between the adjoining parcels of land of the parties.
• [37] Evidence before the tribunal is that carrying out work on the tree would not require consent or overall authorisation under another Act.
• [38] In terms of any historical, cultural, social or scientific value, the evidence is that the Silky Oak tree:

(a) is approximately 50-60 years of age;

(b) existed much to its current size prior to the construction of both residences of the parties;

(c) is a valuable amenity asset that contributes numerous benefits to local fauna as well as providing shade from the afternoon sun for the Respondent;

(d) is a nesting site for several species of birds and also provides a source of food for nectar feeding birds;

(e) has a relatively symmetrical canopy with predominantly strong branching structure;

(f) removal of the tree would be a loss to the community.

• [39] There is evidence by the Applicants of their concern for risks associated with the tree in the event of extreme weather events. The Respondent relies on the article provided to the Tribunal on 21 April 2022 relating to "A review deaths in Australia from accidental treat failures" which examined the death rate over a period and came to the following conclusion:

The compilation and analysis of fatalities from Tree Failures in Australia is a valuable tool in understanding the risk associated. The comparatively small mortality rate of 1 in 5,000,000 associated with these failures can be used to inform tree managers and owners as well as assist in better communicating with the media and the public.

• [40] The Tree Assessor's Report discusses this topic and stated:

There is a low likelihood of limb failure that could result in damage or serious injury within the next 12 months

• [41] The Tree Assessor's Report identified the tree the subject of these proceedings as being a Grevillea robusta, the common name of which is "Silky Oak". There is no evidence that the tree is a pest or a weed or falls under a similar category under an Act or local law.

Serious injury to a person or serious damage to property or land[14]

• [42] The Applicant alleges the tree has caused, is causing, or is likely to cause serious injury to a person or serious damage to land or property.
• [43] As has already been referred to, the Respondent refers to the article "A review of deaths in Australia from accidental tree failures" which puts the mortality risk at 1 in 5,000,000.
• [44] The Expert Report provided by the Tree Assessor considered the issue of safety and stated:

A failure which occurred in the lower section of the subject tree on the respondent's property in January 2022 was caused by torsional movement of an extended lateral limb. No other limbs on the subject tree bear the same characteristics and Visual Tree Assessment (VTA) prior to the failure could have identified this as a point of probable weakness.

There is a low likelihood of limb failure that could result in damage or serious injury within the next 12 months

• [45] The Tree Assessor says that removal of the tree would be a loss to the community and also states:

simple pruning management strategies can ensure the health and safety of the subject tree for years to come

• [46] In these proceedings there is no evidence that the tree is likely to cause serious injury to a person on the Applicants' land or serious damage to the Applicants' land or property. The Tribunal is very aware of the Applicants' statements filed in these proceedings where the assertion is made of their concerns of danger to his family, including his young children while playing in the backyard and of damage to the roof of the shed. However, apart from that assertion there is no evidence of any threat of danger to his family or children while being in the backyard of his premises with simple pruning management of the tree. The Tree Assessor's Report in fact contradicts any such danger as does the article provided for the hearing by the Respondent. The Applicants' evidence does not contain any facts to the contrary. A photograph is in evidence of a branch of the Silky Oak on the roof of the Applicants' shed. But the photograph is just that - namely a broken branch apparently from the Silky Oak tree on the Applicants' shed roof but not showing any damage to the roof. The Applicant says that there is leaf matter and debris from the Silky Oak tree on the roof of his shed and says it is causing rust to occur on the roof. The evidence also is that the shed was constructed on the Applicants' land many years previously and there is no evidence that the Silky Oak is the cause of the rust to the exclusion of any other causes such as weathering over time. The Tree Assessor states in the Report that:

The tree protection zone (TPZ) for the subject tree is 8.65 m in radius, meaning the shed was constructed beneath the tree, within the zone of influence and the tree was pre-existing.

• [47] Otherwise, there is no evidence that the Silky Oak tree in these proceedings has, or is likely to cause, serious injury or damage. In these proceedings the evidence is different and is distinguishable from the evidence in the proceedings of McHugh v Withers & Anor where the evidence was sufficient for the Tribunal to make the following finding:

I also find that the tree is likely within the next 12 months to cause serious injury to a person on Mr McHugh's land or serious damage to his land or property. Branches have fallen from the tree on previous occasions, the tree is over-mature to senescent and due to past pruning has areas of decay.

• [48] There is a no decay on the Sily Oak tree in these proceedings although there is some deadwood in the canopy of the tree. The Tree Assessor's Report states:

The subject tree has no obvious defects and is considered to be mechanically robust. It offers food, shelter and shade and is an asset to the area.

The tree has not grown to be a nuisance, rather, infrastructure has encroached upon the growing environment of the tree and now the tree is being blamed for poor oversight.

• [49] The answer to that issue whether the tree is a danger is contained in the Tree Assessor's Report which demonstrates that adopting safety as a primary consideration, pruning could be performed to the Silky Oak tree to reduce the canopy and satisfactorily resolve the issues raised by the Applicants. This will give effect to the intention of the NDA to preserve a living tree where there is an otherwise satisfactory outcome.
• [50] The Tribunal is satisfied that the evidence does not establish that the Silky Oak tree is causing, or is likely to cause, serious injury to a person or serious damage to the neighbour's land. The Tribunal will dismiss that part of the Application for a tree dispute which seeks orders for the removal of the Silky Oak tree.
• [51] The other issue which the Applicants raise is whether the Silky Oak tree has caused, or is causing, ongoing and unreasonable interference with the use and enjoyment of the Applicants' land.[15] The Applicants refer to tree branches and leaf matter debris falling within the boundaries of their land including onto the roof of the shed.
• [52] The evidence is that the Silky Oak tree was growing and was well established prior to either the Applicants or the Respondent constructing their residences and other buildings or improvements. Both parties knew of the existence of this tree from the very beginning of their residence on their respective parcels of land.
• [53] The Applicants refer to the interference with their lifestyle and use of the yard and their loss of amenity. The Respondent resides much closer to the Silky Oak but does not have a similar loss of amenity or lack of use of her yard. The Respondent disagrees that the Applicants suffered any interference with the use of the yard. The evidence is that the Applicants' shed is within the tree protection zone ("TPZ") and within the zone of influence of that tree which was pre-existing. The Tree Assessor in the Report states:

The tree has not grown to be a nuisance, rather, infrastructure has encroached upon the growing environment of the tree and now the tree has been blamed for poor oversight

It may have been unwittingly however it is difficult to conceive that the applicant was not aware of the habitat of the tree having resided at the property for four years before installing the pool.

The tree existed, much to its current size prior to the construction of both residences and as such cannot be blamed for doing what it does naturally

Trees cannot be simply removed because we find them a burden or arguments such as "what if a cyclone claim" are used.

• [54] The Tribunal has considered the evidence of the parties and has come to the conclusion that the evidence of the Tree Assessor as well as the evidence of the Respondent is preferred to the evidence of the Applicants. This preference is based upon a number of factors. The Tree Assessor is in effect a Tribunal appointed expert. As such, the Tree Assessor is an independent person with qualifications appropriate for the appointment and for providing the Report to the Tribunal. Nothing has been brought to the attention of the Tribunal why the independent Report from the Tree Assessor should not be accepted. The Respondent has in the material filed in these proceedings attempted to provide independent and science based evidence relating to the relevant issues, particularly the article concerning the risk of mortality from tree failures. The Applicants, on the other hand, have provided their own evidence which the Tribunal considers was very subjective, rather than being provided in an objective, manner. The Applicants' property title was created on 1 May 1968 but they have been the registered proprietors since at least 9 February 2016. In each of the six years that have lapsed prior to commencing these proceedings in the Tribunal the Applicants' evidence failed to address any instances of lack of safety or damage to the property (other than rust etc to the roof of the shed). Rather, the Applicants provided to the Tribunal their opinion or speculation of what could or might happen without relevant supporting evidence. The Tribunal is not satisfied by the Applicants' evidence and makes a finding that it accepts the evidence of the Tree Assessor as well as the evidence of the Respondent.
• [55] These findings made on the evidence then permit the Tribunal to make further findings based upon the evidence of the Tree Assessor and the Respondents that the dispute will be "satisfactorily resolved" by pruning the tree. The Tribunal is satisfied and makes a finding that the pruning of the trees will satisfactorily resolve the dispute on the basis of the evidence to date but more particularly based upon the professional opinion of the Tree Assessor that "simple pruning management strategies can ensure the health and safety of the subject tree for years to come." Nothing has been shown in these proceedings that would contradict that opinion of the Tree Assessor. Accordingly, the Tribunal makes it the following findings:

(a) that with proper pruning of the Silky Oak tree, as recommended by the Tree Assessor, the primary consideration of safety of any person is satisfied;

(b) that it is not appropriate to remove or destroy the Silky Oak tree as management of the tree can satisfactorily be resolved by pruning as recommended by the Tree Assessor;

(c) the Tribunal has taken into account the general matters it is required to consider in s 73 of the NDA and is satisfied that none of those matters would contradict the satisfactory resolution of this dispute by having the tree pruned as recommended by the Tree Assessor;

(d) the Tribunal is not satisfied that an unreasonable interference has been caused, or is causing, substantial, ongoing use and enjoyment of the Applicants' land.

• [56] For these reasons the Tribunal will make Orders recommended by the Tree Assessor.

• [57] Neither party made submissions whether the Human Rights Act 2019 (Qld) ("HR Act") applies to these proceedings.
• [58] The Tribunal must consider the human rights of the Applicant and the Respondent under the HR Act in reaching its decision in these proceedings.
• [59] The Tribunal is an entity which acts in an administrative capacity and is bound to comply with the HR Act in conducting the review jurisdiction in relation to the Application filed by the Applicant.
• [60] In considering the provisions of the NDA and the QCAT Act, the Tribunal must, to the extent possible that is consistent with the purposes of the HR Act, interpret that legislation in a way that is compatible with the Applicants' human rights.
• [61] The human rights of the Applicants and the Respondent include:

(a) recognition and equality before the law;

(b) property rights;

(c) fair hearing.

• [62] These human rights have to be considered by the Tribunal in the light of its exercise of the jurisdiction in these proceedings.
• [63] The Tribunal has made findings about the Applicants' Application and the Respondent's Response to that Application. These findings can possibly be a limitation on the human rights of the Applicants and the Respondent under the HR Act. This limits their entitlements by imposing, in effect, a liability and limits the parties' equal treatment with other applicants making Application to the Tribunal.
• [64] However, any such limitation on the parties' human rights arises from the provisions of the NDA. While the Tribunal is required to make a decision that is compatible with human rights and is to give proper consideration to human rights relevant to the decision, the Tribunal can make such a decision if the Tribunal could not reasonably have acted differently or made a different decision because of a statutory provision.
• [65] The NDA creates a legislative scheme in relation to the effective management of neighbourhood disputes relating to trees and promotes responsible management of the environment. It has the purpose of protecting the community by providing rules about each neighbour's responsibility for trees so that neighbours are generally able to resolve disputes about trees without a dispute arising. The NDA is to facilitate resolution of any disputes about trees that do arise between neighbours.
• [66] This decision under the NDA is made in accordance with statutory provisions and is not an arbitrary decision. It is a decision based upon the legislative scheme and is reasonable and justified in accordance with s 13 of the HR Act in the light of the purposes of the NDA. The decision in these proceedings is made in a way that is consistent with the purpose of the legislation and has been interpreted in a way that is compatible with human rights as required by s 48 of HR Act. In these circumstances any limitation on the human rights of the Applicants and or the Respondent is reasonable and is justified in terms of section 8(b) of the HR Act.

• [67] Leah Dora Bancroft shall perform the following work in respect of the Grevillea robusta (Silky Oak) tree on land at 46 Palmer Avenue, Golden Beach in the State of Queensland:

(a) hazardous dead wood removal to tree limbs down to a diameter of 10 mm; and

(b) minor extended and weight reduction to the tree and limbs of the tree.

• [68] The work is to be undertaken by a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist with a minimum qualification of Australian Qualifications Framework (AQF) level 3 in Arboriculture at the sole cost of Leah Dora Bancroft.
• [69] All work to the Grevillea robusta (Silky Oak) tree referred to above must be carried out in accordance with AS 4373-2007 Pruning of amenity trees.
• [70] Should the work not be completed on before 4:00 pm on Thursday, 12 February, 2026, then Daniel John Gibbs and Marilyn Calin Gibbs shall be entitled to have the work referred to in (1) above performed by a suitably qualified tree lopper with appropriate insurance cover under the supervision of a suitably qualified arborist and in accordance with AS 4373 2007 Pruning of amenity trees, on or before:

• [71] Should Daniel John Gibbs and Marilyn Calin Gibbs be required to carry out the work in the fault of it being done by Leah Dora Bancroft, a suitably qualified tree lopper with appropriate insurance under the supervision of a suitably qualified arborist engaged by Daniel John Gibbs and Marilyn Calin Gibbs shall be entitled to enter the property at 46 Palmer Avenue, Golden Beach in the State of Queensland to carry out the work subject to Daniel John Gibbs and Marilyn Calin Gibbs giving 7 days written notice after Thursday, 12 February, 2026 to Leah Dora Bancroft at her last known address of their intention to have the works carried out by the suitably qualified tree lopper under the supervision of those suitably qualified arborist.
• [72] The reasonable costs incurred by Daniel John Gibbs and Marilyn Calin Gibbs engaging a tree lopper and arborist to do the work in default of it being performed by Leah Dora Bancroft shall be recoverable from Leah Dora Bancroft.

[9] [2017] QCAT 346.

[12] McHugh v Withers & Anor [2017] QCAT 346, [17].