Neighbourhood Tree Disputes: Consultation Paper

6. Options for reform to the law of neighbourhood tree disputes

Introduction

6.1 The Commission has identified three options for reform to the current process of resolving tree disputes in Victoria:

• Option 1: Make no change and rely on the services provided by the Dispute Settlement Centre of Victoria and the common law.

• Option 2: Introduce a statutory scheme dedicated to the resolution of tree disputes.

• Option 3: An alternative option for reform.

6.2 Community members and stakeholders may wish to simply state which option they are for or against. However, as Option 2 raises detailed questions about how best to give effect to this option, the Commission invites comments in relation to these questions under parts (a)–(m) of Option 2.

6.3 Relevant features of the existing schemes in New South Wales, Queensland and, to a lesser extent, the newly introduced scheme in Tasmania, are outlined and discussed as examples of what may or may not be considered appropriate for the Victorian context under Option 2.

Option 1: Retain existing system

6.4 This option preserves the existing process in Victoria for resolving tree disputes, discussed in more detail in Chapter 3. The current self-help and mediation-focussed process allows parties to access free mediation and allows for some interim steps before litigation.

6.5 Initially, neighbours can abate any unreasonable interference caused by the tree. Neighbours can cut back encroaching branches or roots up to the boundary line but must return severed parts of the tree to the tree owner.^[1]

6.6 If abatement is inappropriate or does not help resolve a dispute, parties can access free mediation services via the Dispute Settlement Centre of Victoria (DSCV). Mediation through DSCV is a confidential and flexible process that encourages cooperation between neighbours. It allows them to formulate their own resolution of the tree dispute without the cost and formality of legal action. The form of mediation can be adapted to suit the dispute. DSCV centres are widely accessible, with offices in Melbourne and 12 regional locations.^[2]

6.7 If neither abatement nor mediation is appropriate or resolves the dispute, neighbours can bring legal action for nuisance, negligence or trespass^[3] in the Magistrates’ Court of Victoria or the County Court of Victoria, depending on the size of their claim.^[4] Taking legal action in response to a tree dispute usually involves expenses in the form of filing fees, legal representation and obtaining expert opinions.^[5]

Question

6 If the existing system is retained, are there any specific changes necessary to improve it?

Option 2: Introduce a statutory scheme

6.8 As discussed in Chapter 5, New South Wales, Queensland and Tasmania have enacted statutory schemes specific to resolving tree disputes.

6.9 These schemes were enacted in order to provide neighbours with access to a fairer and more effective legal mechanism than that offered by the common law. Some of the overarching aims of these schemes include:

• clarifying rights and responsibilities of tree owners and affected neighbours so that tree disputes can be prevented from arising

• enabling people to more easily take legal action without legal representation

• allowing people to resolve tree disputes quickly

• reducing the cost of taking legal action.

6.10 As outlined in Chapter 1, many people believe the process in Victoria for resolving tree disputes is confusing, ineffective and costly. Some common criticisms include:

• The available common law causes of action are hard to navigate and understand.

• The rights and responsibilities of neighbours at common law are unclear.

• Mediation may not be appropriate in all disputes, particularly where the dispute has escalated.

• Any agreement reached in DSCV-led mediation is not binding and depends on voluntary action.

• The cost of taking legal action to obtain a binding resolution (eg lawyers’ fees and/or court fees) may be prohibitive.

6.11 In its report Problem Trees and Hedges: Access to Sunlight and Views, the Tasmanian Law Reform Institute concluded that the Victorian model, based predominantly on alternative dispute resolution for resolving tree disputes, was able to provide only limited relief and was therefore undesirable to adopt in Tasmania.^[6]

6.12 A statutory scheme dedicated to tree disputes may be more accessible and easier to navigate than the common law. Such a scheme may help to resolve tree disputes about damage and harm in more fair and efficient ways, and to bring the law up-to-date with the community’s views about the obligations neighbours owe to each other with respect to the trees growing on their land.

Question

7 Should a statutory scheme for resolving tree disputes be adopted in Victoria? What should the overarching aims of a new scheme be?

6.13 If a statutory scheme is to be adopted, there are further details that need to be considered.

6.14 The Commission considers below some specific elements of a possible statutory scheme, exploring options and providing a comparison between jurisdictions which have already enacted statutory schemes.

6.15 Community feedback is sought on these and any other elements that should be considered in assessing the desirability of a statutory framework for Victoria:

a) which trees and vegetation should be covered by the scheme

b) the relevant location of trees, including zoning considerations and the nature of adjoining land

c) who can bring an action (standing) and who can be found liable for harm or damage caused

d) the degree and subject of damage or interference that could be considered under a new scheme

e) the degree and subject of harm that could be considered under a new scheme

f) the appropriate jurisdiction for determining disputes under a new scheme

g) preconditions to be met in order to bring an action under the new scheme

h) factors to be considered by a decision maker under a new scheme

i) the types of orders and enforcement available under a new scheme

j) the effect of a new scheme on the current law

k) processes for handling expert evidence

l) the impact on and responsibility of new owners of land

m) enhancing useability.

6.16 Key features of both the New South Wales and Queensland schemes have informed the Commission’s identification of further issues that need to be considered. Each of these features are discussed in further detail below and provide examples of possible approaches. The general features of the newly-introduced Tasmanian scheme are also discussed.

(a) Trees and vegetation covered by the scheme

6.17 In designing a statutory scheme for Victoria, it is important to consider what type of vegetation would be covered.

6.18 Defining trees too broadly may create a lack of clarity for those without arboricultural expertise; conversely, defining a tree too narrowly may exclude some disputes.

6.19 The Trees (Disputes Between Neighbours) Act 2006 (NSW) (the NSW Act) defines a tree as ‘any woody perennial plant, any plant resembling a tree in form and size, and any other plant prescribed by the Regulations’.^[7]

6.20 Bamboo, technically a type of grass, was originally excluded from the definition of ‘tree’ under the NSW Act, but since 2007 has been prescribed under the Trees (Disputes Between Neighbours) Regulation 2014 (the NSW Regulations), having the effect of including it in the relevant definition.^[8]

6.21 Vines were also excluded from the definition of ‘tree’.^[9] In Buckingham v Ryder,^[10] a dispute between neighbours over a pink trumpet vine was dismissed because it was determined that vines generally do not meet the definition of a ‘tree’ under the Act—vines do not display the self-supporting characteristics of trees and instead require a surface to grow along.^[11]

6.22 However, following statutory review of the Act by the New South Wales Government in 2009, it was decided that vines can cause damage to, for example, ‘the paintwork on the outside of a house, or caus[e] water damage by blocking a downpipe or drain’, or pose a risk of injury. The review concluded that there was no reason why disputes relating to vines should have to be resolved by ‘the more complicated procedure in nuisance’^[12] and recommended that vines be declared a prescribed plant under the NSW Regulations. This was done in 2014.^[13]

6.23 The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the Queensland Act) defines a tree more broadly, as ‘any woody perennial plant or any plant resembling a tree in form and size as well as a vine and anything listed in regulation’.^[14] Examples listed in the legislation are bamboo, banana plant, palm, cactus and vine.^[15] It also includes parts of a tree in its definition, such as ‘a bare trunk; and a stump rooted in the land; and a dead tree’.^[16]

6.24 In its review of the Queensland Act, the Queensland Law Reform Commission (QLRC) recommended that the definition of a tree should also include ‘a root or the roots of any living or dead tree’.^[17] The QLRC reasoned that roots, on their own, can be a cause of disputes between neighbours and incorporating roots into the definition of a tree would make it consistent with other provisions in the Act referring to the cutting back of roots.^[18] However, this has not yet been adopted into the Queensland Act.

6.25 In 2017 the Tasmanian Parliament introduced the Neighbourhood Disputes About Plants Act 2017 (the Tasmanian Act). Section 4 of the Tasmanian Act defines a plant to include a ‘tree; a hedge or group of plants; fruits, seeds, leaves or flowers of a plant; a bare trunk; a stump rooted in land; any root of a plant and a dead plant’.^[19] The definition in the Tasmanian Act is the only one expansive enough to cover products of trees.

6.26 As noted in Chapter 2, some local laws also define ‘tree’ in the context of council tree protection mechanisms and tree maintenance works. The Melbourne City Council’s definition includes ‘the trunk, branches, canopy and root system of the tree’.^[20] Nillumbik Shire Council defines a tree as a ‘long lived woody perennial plant (usually) greater than

3 metres in height with one or relatively few main stems or trunks’.^[21] This definition is found in Australian Standard 4373-2007-—Pruning of Amenity Trees.^[22]

6.27 There is a variety of tree definitions in the above discussion. Some incorporate taxonomical descriptions and refer to individual parts of the tree and their size. Other types of vegetation that resemble a tree or have been known to trigger disputes have also been recognised in relevant Acts and Regulations.

Question

8 What type of vegetation should be covered by a statutory scheme? Is there any vegetation that should not be covered?

(b) Location of trees and land

6.28 The location of a tree may be determinative of an owner’s or neighbour’s rights to manage the tree. Three main elements are discussed below: the zone in which the tree is located, to what extent the tree must be located on this land, and how this land adjoins an affected neighbour’s land.

Zoning

6.29 In some jurisdictions, the zone in which a tree is located may determine whether neighbours are able to use the relevant statutory dispute resolution schemes.

6.30 Two main reasons have been given for this in reviews conducted in New South Wales and Queensland. The first is that neighbours involved in a tree dispute on rural land may not require the same remedies as those in urban areas,^[23] and because of the vast spaces associated with rural land, disputes do not commonly arise.^[24] The second reason is that any Act governing tree disputes may have the potential to contravene or contradict existing legislation that protects biodiversity, especially in particular zones. For example, in Victoria, this could include the Catchment and Land Protection Act 1994 and Flora and Fauna Guarantee Act 1988.^[25]

6.31 In its earlier incarnation, the NSW Act only applied to ‘urban land’. However, following a statutory review of the Act by the New South Wales Government in 2009, it was considered that this limit excluded some community members who needed to resolve disputes:

[some individuals] were not able to bring proceedings relating to damage or risk of injury under the [NSW] Act, because the zoning of the private land on which the tree was situated was outside the scope of the Act. One of these related to a tree that had reportedly been found unsafe by the Local Council. When the owner of the tree did not do any work, the adjoining neighbours applied to the Land and Environment Court for orders that work be done on the tree. However, after a preliminary hearing their

application was dismissed because the tree was found to be on land zoned ‘rural–residential’. In these situations, the only legal recourse is to sue in nuisance.^[26]

6.32 A recommendation to broaden the application of the NSW Act to cover rural–residential zones was later enacted.

6.33 Currently in New South Wales, the Act applies to trees located on land zoned as residential, rural–residential, village, township, industrial or business under an environmental planning instrument.^[27] The NSW Act does not apply to trees on public land.^[28]

6.34 In Queensland, the scheme is more limited and applies to trees in urban areas only. More specifically, it does not apply to trees on rural land, on land that is more than four hectares in size, on land owned by a local government that is used as a public park, trees planted or maintained for certain purposes (such as for commercial production), or trees planted as a condition of a development approval.^[29]

6.35 In its statutory review of the Queensland Act, the QLRC rejected the inclusion of rural land because it would have an impact on Queensland’s Planning Principles and their objectives.^[30]

6.36 The Tasmanian Act does not apply to plants on ‘excluded land’: council-owned or managed land, rail network land, reserves, and certain forestry land.^[31] Plants ‘necessary or desirable for the management or operation’ of certain farms will also be exempt.^[32]

6.37 The Second Reading Speech preceding the enactment of the Tasmanian Act explains the reasoning behind their exclusion:

these excluded categories are more likely to capture large parcels of land that are located in rural or remote locations—the land is often unoccupied, or it may have high conservation value or serve some other kind of public purpose or be of benefit to the broader community.

It should also be noted that these exclusions are largely consistent with the types of land excluded under the Boundary Fences Act and under similar laws in Queensland and New South Wales.^[33]

Tree wholly or partially on land

6.38 In Victoria, the location of a tree on private land and therefore the ownership of the tree is usually determined by reference to the location of its trunk.^[34] A tree is considered a ‘fixture’ on the land—a tangible item of personal property that is attached to and therefore forms part of the land.^[35] However, it is possible for a tree to grow between two parcels of land and ‘straddle’ the boundary line. This may create ambiguity as to who owns the tree for the purposes of new legislation.

6.39 In New South Wales, the tree affecting a neighbour must also be ‘wholly or principally’ on adjoining land.^[36] In Barker v Kyriakides,^[37] the affected neighbour brought an application in respect of a tree that overhung his property and straddled the boundary of two adjoining neighbours to the rear of his land. The application was brought against the neighbour on whose land the majority (80 per cent) of the tree’s trunk was located.^[38]

6.40 In Queensland, the base of the tree trunk must be ‘wholly or mainly’ on neighbouring land. It does not matter if the tree has been removed by the time the application is heard. It is enough for the tree to have once been wholly or mainly on the land.^[39]

6.41 In Tasmania, a tree is ‘situated on land’ if the base of the trunk, or the place at which the stem of the plant connects with the roots of the plant, is in whole or in part, on the land.^[40] Even if a tree straddles the boundary of adjoining properties, for the purposes of bringing an action under the Act, the tree will be treated as if it lies wholly on the neighbouring land. That is, either neighbour, although both are technically tree owners, can have recourse if the tree is affecting them in the ways covered by the Act. In determining the extent to which the tree is affecting a neighbour, the proportion of the tree situated on each area of land will be taken into account.^[41]

Adjoining land

6.42 As a Victorian Act would aim to provide effective resolution of tree disputes between neighbours, the land on which the tree is located may need to be within a certain proximity to or in a particular relationship to the land of the person who brings an action. In New South Wales and Queensland, the two parcels of land must be directly adjoining in order to fall under the scope of their respective Acts, whereas in Tasmania, neighbours on non-adjoining land can take legal action.

6.43 In New South Wales, adjoining land:

includes properties that abut each other, but might also include properties that are separated by other land, such as a public road or drainage easement, provided there is a relevant connection in the sense that the tree growing on one property is capable of causing damage to the other property or injuring persons on that other property.^[42]

6.44 In Dive v Lin,^[43] an affected neighbour’s application in respect of a Sydney blue gum, which had previously dropped branches and caused damage, was dismissed by the Court because his land was ‘separated … by another residential allotment’ and was, more specifically, ‘two properties to the east’ of the tree owner’s land. The affected neighbour’s application was therefore beyond the jurisdiction of the Court, and the potentially hazardous nature of the tree could not be considered through that application.^[44] This decision was upheld on appeal.^[45]

6.45 If the tree has caused damage to multiple properties on adjoining land, then separate applications for each affected property would be required.^[46]

6.46 In Queensland, adjoining land is the land on either side of a common boundary. The tree must be on land that adjoins the tree owner’s land, or would adjoin the land if it were not separated by a road.^[47] For larger, agricultural parcels of land, the Queensland Act specifies that land will be considered to be adjoining even where it is on the other side of a road, if the neighbours agree to this construction, or if the Queensland Civil and Administrative Tribunal (QCAT) decides a fence has been or could be used to divide the two parcels of land.^[48]

6.47 In Tasmania, an affected neighbour may take action under the Tasmanian Act even if their land does not adjoin the tree owner’s land,^[49] as long as part of their land is within 25 metres of the base of the trunk or where the stem connects to a root system.^[50] This broader provision ‘recognises that in some cases tree roots can extend horizontally to a distance of up to 25 metres’.^[51]

Questions

9 Should the application of a statutory scheme be limited to land in particular zones? If so, which zones?

10 Should there be a requirement that the affected neighbour’s land adjoin the tree owner’s land? If so, how should the relevant degree of proximity be defined?

11 How should trees that are partially on the tree owner’s land be dealt with under a statutory scheme?

6.48 A Victorian Act would need to address the appropriate location of the tree affecting a neighbour. This comprises the zoning classification of the land on which the tree is located, whether the tree is to be wholly or partially on the land, and whether the land on which the tree is located needs to adjoin the affected neighbour’s land.

(c) Standing and liability

6.49 The question of which neighbours can make an application (that is, who has ‘standing’) and who can be held liable is usually determined based on the person’s relationship to the land.^[52]

6.50 Not all people who are present on the land affected by the tree may be able to take legal action as the affected neighbour. Similarly, not all people present on the land on which the tree is located may be held liable as the tree owner.

6.51 The possible requirements for standing and basis of liability are explored below.

Standing of affected neighbour

6.52 Currently in Victoria, in order to have standing to bring a legal action for nuisance, the affected neighbour must be in possession of the land affected by the tree: as its owner, tenant or licensee with exclusive possession.^[53]

6.53 In New South Wales, in order to bring an action under the NSW Act, an affected neighbour must be an owner or an occupier of the land.^[54] If there are multiple owners or occupiers then any one of them can make an application.^[55]

6.54 The same is true in Queensland:^[56] owners or occupiers of registered freehold land, or a body corporate, can bring legal action.^[57] However, tenants are first advised to raise their concerns with their landlord or agent. If this does not resolve the matter, they may take legal action, but must show that the landlord refused to take any action.^[58]

6.55 In Tasmania, owners or occupiers of land can bring legal action under the Tasmanian Act.^[59] An occupier who is not an owner of land may bring legal action if ‘the person has, in writing to the owner, requested the owner of the land to make an application’ and the owner has refused to comply.^[60]

6.56 An occupier is a ‘person who is entitled to the immediate possession and occupation of the land’.^[61] However, ‘tenants under the Residential Tenancy Act, will not have responsibility for plants under the provisions of the [Act]. That responsibility will rest with the owner of the land.’^[62]

Liability of tree owner

6.57 Currently in Victoria, in order to be held liable, the tree owner must have created, adopted or continued the nuisance.^[63]

6.58 In New South Wales, actions under the NSW Act can be brought against the owner or occupier of the land on which the tree is situated.^[64] The NSW Act does not contain any provisions detailing liability or notice requirements for multiple tree owners.^[65]

6.59 In Queensland, actions can be brought against a tree owner who owns, occupies or has control over the land on which the tree is located. This includes: the owner of registered freehold land, tenant, licensee, grantee of a permit, body corporate, or, if the land on which the tree is located is in a reserve, then the trustee of the reserve.^[66] If there is more than one tree owner then they all share equal liability, but notice of the application in QCAT can be satisfied by notifying any one of the tree owners.^[67]

6.60 In Tasmania, actions can be brought against an owner of land on which the tree is located. If there are multiple owners of land on which the tree is located then each owner is jointly and severally liable for the tree. Notice of an application in the Resource Management and Planning Appeal Tribunal (RMPAT) can be given to any of the owners.^[68]

Questions

12 Who should have standing to bring a legal action in tree disputes under a new scheme?

13 Who should be liable for harm or damage caused under a new scheme?

(d) Damage or interference

6.61 Damage claims relate to property rather than people. The scope of damage that is to be captured by any new scheme is important to consider, and comprises three key elements: the degree of damage, the subject of damage, and future damage. These three elements are discussed in more detail below.

Degree of damage or interference

6.62 Whether a new scheme should broadly capture damage of any kind or only damage that is of a significant degree will determine what sort of claims for damage will be actionable.

6.63 In New South Wales, any sort of damage, regardless of its degree, can be claimed before the NSW Land and Environment Court (NSWLEC).^[69] However, a tree that merely causes interference, which in turn causes annoyance or discomfort to the affected neighbour without causing any actual damage, does not fall within the jurisdiction of the NSW Act.^[70] For example, dropping of leaf litter into neighbouring land will not constitute damage, neither will the cleaning of resultant mould or slime.^[71]

6.64 In Queensland, the scope of damage is narrower because only ‘serious’ damage will qualify.^[72] However, unlike the NSW Act, Queensland also covers ‘interference’ which is ‘substantial, ongoing and unreasonable’; it is not necessary for actual damage to have been caused.^[73] For example, the ‘substantial, ongoing and unreasonable’ accumulation of leaf litter in a neighbour’s gutters^[74] or pool^[75] will be sufficient for QCAT to intervene and make orders. However, in most cases concerning leaf litter, this threshold is not likely to be satisfied. Leaf litter is generally considered ‘to be expected in urban or suburban areas with trees’ and it is reasonable to expect that residents ‘will perform some level of regular maintenance, including cleaning gutters and leaf litter’.^[76]

6.65 The Tasmanian Act also mandates that damage must be ‘serious’ and that any interference with the ‘use and enjoyment’ of the affected neighbour’s land must be of a ‘substantial, ongoing and unreasonable’ nature in order to be actionable.^[77]

Subject of damage or interference

6.66 The subject of damage relates to whether damage to any property on neighbouring land (such as a house, a garden shed, or car), or also to the land itself (such as a garden), should be considered actionable damage.

6.67 In New South Wales, the subject of damage must be ‘property on the land’,^[78] which is not only real property but also extends to ‘buildings, fences, paving or other structures, or to fruit trees, crops, ornamental gardens or other vegetation growing on a neighbour’s land’ and ‘moveable objects or corporeal chattels, such as animals,^[79] vehicles or furniture, that may be located on, but are not attached to or part of the ground’.^[80]

6.68 Tree disputes determined by the NSWLEC have considered garden plants, outdoor furniture and motor vehicles ‘property on the land’.^[81] Moreover, ‘property on the land’ need not be above ground, as shown by cases concerning sewer pipes.^[82] However, ‘damage to the surface of the land such as raising a mound of earth or drying the soil without consequential damage to other property’ is not covered.^[83]

6.69 In Queensland and Tasmania, the subject of damage must be ‘the land or property on the land’.^[84]

Future damage or interference

6.70 Trees that have not caused problems in the past may, after growth, or a change in health, go on to affect a neighbour’s land.^[85]

6.71 It is important to consider whether, under a Victorian scheme, affected neighbours can seek relief where a tree has not yet caused damage but is expected to do so. If so, the question must be considered of how far into the future expected damage should extend.

6.72 The New South Wales, Queensland and Tasmanian schemes allow neighbours to bring legal action for expected future damage.

6.73 In New South Wales, people are allowed to bring claims to prevent damage. Orders to prevent the damage cannot be made unless the court is satisfied that the damage is likely to occur in the ‘near future’, which has been interpreted to mean within the next 12 months.^[86]

Questions

14 Should interference (not causing damage) be actionable under a new scheme? If so, what degree of interference?

15 What degree of damage should be sufficient to bring an action under a new scheme?

16 What kind of damage should be covered under a new scheme? Should damage include damage to land itself, or only to property on the land?

17 Should future damage be actionable under a statutory scheme? If so, should a particular time period be specified?

6.74 In Queensland, the Act explicitly states that future damage must be likely to ‘occur within the next 12 months’.^[87] This is also the case in Tasmania.^[88]

6.75 A Victorian scheme would need to address each of these considerations in relation to damage and interference.

(e) Harm

6.76 Harm in this paper refers to harm to people—causing injury or otherwise affecting their health or safety. Under the New South Wales, Queensland and Tasmanian schemes, harm is called ‘injury’.^[89]

6.77 It is important to consider the degree of harm to be captured under any scheme, as well as the subject of harm and future harm. These three elements are discussed in more detail below.

Degree of harm

6.78 In considering the degree of harm caused by a tree to a person, a Victorian scheme would need to make clear the degree of harm which is actionable. For example, whether there must be significant harm caused to a person or whether any type of harm, even mere discomfort to a person, would be sufficient.^[90]

6.79 Currently in Victoria, a number of Acts contain definitions of ‘injury’ and require claimants to have sustained a certain degree of harm in the form of a ‘significant’ or ‘serious’ injury in order to be compensated.^[91]

6.80 In New South Wales, there is no definition of the term ‘injury’ or a required threshold degree of harm stipulated in the Act. Decisions of the NSWLEC indicate that exacerbations of medical conditions such as asthma and allergies will constitute an injury in addition to bodily injury.^[92]

6.81 Affected neighbours must produce ‘medical or arboricultural evidence and any supporting medical or arboricultural peer-reviewed literature’ that supports their claim that the tree is the cause of the injury.^[93]

6.82 In Queensland and Tasmania, injury to persons must be ‘serious’.^[94] The Queensland Act does not define serious injury but does state that ‘a severe allergic reaction’ would meet the definition.^[95]

Subject of harm

6.83 The question also arises whether, in addition to occupants of a property, temporary visitors should be covered.

6.84 In New South Wales, Queensland and Tasmania, any person injured on the land affected by the tree can make an application.^[96]

6.85 Further, in New South Wales, a neighbour can bring an application if they believe injury may be caused to another person not on the affected neighbour’s land. In Ashworth v Joyce, ^[97] the affected neighbour argued that some dead trees on adjoining land ‘were likely to cause injury to persons on an adjacent public beach reserve’. In Reuben v Lace,^[98]

a tree was ordered to be removed because it was considered it may cause injury not only to people on the affected neighbour’s land but also people on the tree owner’s land.

6.86 As noted above, in Tasmania, the harmed or injured person does not need to be on land that adjoins the tree owner’s land. Instead, land needs to be within 25 metres of the tree.^[99]

Future harm

6.87 Trees are dynamic, living organisms. It is therefore important to consider whether an affected neighbour can seek relief in relation to a tree that has not yet caused harm but is expected to do so. If so, it is also important to consider how far into the future the likelihood of harm should extend.

6.88 The schemes in New South Wales, Queensland and Tasmania allow neighbours to bring legal action for injury likely to occur in the future.

6.89 In New South Wales, people may make claims to prevent injury. Unlike the case for future damage, there is no requirement that harm is likely to occur ‘in the near future’.^[100]

6.90 However, in Queensland and Tasmania, ‘serious injury’ must be likely within 12 months.^[101] In Queensland, factors such as the size and health of the tree and weather conditions may be taken into account to assess the likely seriousness of the future injury.^[102]

Questions

18 What degree of harm should be sufficient to bring an action under a statutory scheme?

19 How should the relevant subject of the harm be determined? Should harm include harm to occupiers only, to others on the land, or to anyone at all?

20 Should future harm be actionable under a statutory scheme? If so, should a particular time period be specified?

6.91 A Victorian scheme would need to address the degree of harm, the subject of harm and future harm.

(f) Jurisdiction

6.92 Which court or tribunal should have decision-making jurisdiction over a new scheme is another important consideration.

6.93 Tree disputes are heard in the Land and Environment Court (NSWLEC) in New South Wales, the Queensland Civil and Administrative Tribunal (QCAT) in Queensland and the Resource Management and Planning Appeal Tribunal (RMPAT) in Tasmania.

6.94 The NSWLEC is a superior court, with equal status to the NSW Supreme Court, where tree disputes are heard and determined by commissioners with specialised expertise in areas such as arboriculture, town planning, environmental science, land valuation, urban design, and law.^[103] Hearings are often conducted on site.^[104]

6.95 QCAT is an independent tribunal that determines and reviews disputes and administrative decisions.^[105] Matters are heard by members who are either lawyers or who have knowledge, expertise or experience about the matter being heard.^[106]

6.96 RMPAT is an independent tribunal that determines and reviews matters relating to the management of natural and physical resources and planning. Members are appointed for their specialist knowledge in ‘planning, engineering, architecture, science, and environmental management’.^[107]

6.97 Some other notable approaches that could help inform Victoria’s choice of jurisdiction include the Australian Capital Territory Civil and Administrative Tribunal (ACAT) and Singapore’s Community Disputes Resolution Tribunals.

6.98 ACAT can hear and determine small civil claims, including those based on nuisance, negligence and trespass where the claim is under $25,000.^[108]

6.99 This approach is to be contrasted with Victoria, South Australia, Western Australia and the Northern Territory, where tree disputes are heard and determined by the courts.

6.100 ACAT aims to resolve disputes in a timely, economical and less formal manner where parties are able to represent themselves instead of having to engage legal counsel.^[109]

6.101 As discussed in Chapter 5, in Singapore, neighbour disputes are resolved in specialised Community Disputes Resolution Tribunals (CDRTs) under the Community Disputes Resolution Act 2015.^[110] CDRTs operate under a division of state courts and deal exclusively with neighbour disputes. Matters are heard by tribunal judges who are appointed district judges of the State Courts.^[111]

6.102 In Victoria, tree disputes can currently be heard in the Magistrates’ Court, County Court and (very rarely) in the Supreme Court.^[112] Whether or not jurisdiction should remain with these courts, or another forum, such as the Victorian Civil and Administrative Tribunal (VCAT) or an alternative forum altogether, needs to be considered. The current and possible Victorian jurisdictions are discussed below.

6.103 As each of these jurisdictions has recently been examined by the 2016 report Access to Justice, some of the resulting observations and recommendations from that review which are most pertinent to the resolution of tree disputes are also considered.^[113]

Magistrates’ Court of Victoria

6.104 The Magistrates’ Court has jurisdiction to hear civil matters such as tree disputes where amounts claimed are no more than $100,000. The cost of commencing a tree dispute can range between $142 and $677.50 and depends on the amount claimed. This basic filing fee cost is independent of other applicable court fees and legal representation.

6.105 Unlike comparable lower courts in other states and territories, the Magistrates’ Court also has equitable jurisdiction, meaning that it may ‘hear and determine any claim for equitable relief’, which may include injunctions and damages in equity.^[114] The jurisdictional limit for claims for equitable relief is also $100,000.

6.106 The Magistrates’ Court has the power to grant injunctions at any time during proceedings,^[115] or in urgent cases, before proceedings have started.^[116] Within the limits of its monetary jurisdiction, the Court’s powers to grant injunctions are as extensive as those of the Supreme Court or the County Court.^[117]

6.107 The Magistrates’ Court has the same power to make orders and directions in civil proceedings as the Supreme Court and County Court, under the Civil Procedure Act 2010 (Vic).^[118] The Court may give any directions it considers appropriate about the use of alternative dispute resolution to assist in the resolution of a civil case.^[119]

Subject matter expertise

6.108 The Magistrates’ Court has a specific process for dealing with smaller claims, such as neighbourhood disputes, which is designed to keep costs down, encourage early resolution and divert simpler cases away from full hearings. Where parties are seeking relief under $10,000, they will be referred for compulsory arbitration.^[120] Parties may also mutually agree to undertake arbitration, or one party will apply and the other will be required to participate.

6.109 The arbitration process is less formal and simpler than a hearing, as it may involve a relaxation of the rules of evidence and procedure, and fixed costs, depending on the facts of the case.^[121] The parties’ cases are heard by an independent arbitrator, who is empowered to make a binding decision about the case.

6.110 The Magistrates’ Court monitors the accessibility and ease of use for people claiming in this jurisdiction, including reviewing court information, forms and procedures, ‘to ensure that best practices are in place to secure efficient resolution of cases’.^[122]

6.111 Relevantly, the Magistrates’ Court currently hears fence disputes under the Fences Act 1969 (Vic), based on the new scheme effected by the Fences Amendment Act 2014 (Vic).^[123] These disputes include matters regarding the construction or repair of a dividing fence, such as who pays, what type of fence is built and where it is placed.^[124] The Magistrates’ Court has power to make a broad range of orders in relation to fencing disputes.^[125]

Flexibility

6.112 The Magistrates’ Court has attributes which allow it to respond flexibly and efficiently to a wide range of civil matters. The Magistrates’ Court sits at 51 metropolitan and regional locations in Victoria^[126] and also operates through specialist court models that are comparatively informal and flexible.^[127] These have been adapted for distinct issues, and are reflected in the Koori Court, the Drug Court of Victoria and the Victims of Crime Assistance Tribunal. The Neighbourhood Justice Division of the Magistrates’ Court also sits at the Neighbourhood Justice Centre in the City of Yarra and has jurisdiction to hear a range of matters including fence disputes.^[128]

6.113 Of all Victorian courts, self-represented litigants appear most frequently in the Magistrates’ Court.^[129] The number of people representing themselves in the Magistrates’ Court is steadily increasing and the Court is working towards updating its website and forms with clearer information so that self-represented litigants can more easily navigate the Court’s practices and procedures.^[130] Furthermore, the 2016 Access to Justice Review recommended that the Magistrates’ Court should ‘develop materials, improve procedures and make increased use of technology to assist self-represented litigants’.^[131]

Alternative dispute resolution

6.114 As well as compulsory arbitration for matters under $10,000, the Magistrates’ Court also offers a variety of mechanisms to support early resolution of disputes, including pre-hearing conferences,^[132] mediation, ‘early neutral evaluation’ and arbitration.^[133]

6.115 Pre-hearing conferences, if directed by the Court, are compulsory for the parties and their lawyers to attend and are generally heard before an experienced Registrar. The Registrar assists the parties by identifying and exploring the issues and by promoting settlement.^[134] If no resolution is reached, the Registrar may make directions for the dispute to proceed to a hearing.^[135]

6.116 With or without the parties’ consent,^[136] the Court may refer them to mediation with a Registrar, a Judicial Registrar or an external mediator such as the DSCV.^[137] As noted above, mediations conducted by the DSCV are free of charge to the parties.^[138] Mediation before a Registrar costs $252.30, and $437.70 before a Judicial Registrar.^[139] If the parties select a mediator from the Court’s list of approved mediators, there is a flat fee of $1,320 plus the cost of a mediation venue to be shared between the parties.^[140] The standard timeframe for a matter to be mediated as part of the Magistrates’ Court process is 60 days.^[141]

6.117 A Registrar can also direct a matter to proceed to early neutral evaluation.^[142] This process involves a magistrate, in the presence of the parties and their legal representatives, hearing a statement of the relevant evidence and principles of law from each party, facilitating discussion between the parties and presenting a non-binding opinion on the likely outcome of the dispute.^[143]

6.118 If the parties do not reach a resolution in that forum, their matter can proceed to a hearing. Early neutral evaluation does not prejudice parties’ chances in any future hearing, as the magistrate who presided over the process will not determine the case at hearing.^[144]

Appeals

6.119 Appeals from decisions of judicial registrars are to the Court constituted by a magistrate.^[145]

6.120 Appeals from civil decisions of the Magistrates’ Court can be heard by the County Court or the Supreme Court.^[146]

6.121 Appeals on questions of law from final orders of the Magistrates’ Court must be heard in the Supreme Court.^[147]

County Court of Victoria

6.122 The County Court has original, unlimited jurisdiction in all civil matters and can hear tree disputes for claims over $100,000. The cost of bringing a tree dispute in the County Court is higher than the Magistrates’ court, with a basic filing fee of $851.80. This cost is independent of other applicable court fees, such as daily hearing fees and legal representation.

Subject matter expertise

6.123 Claims based on tort are heard in the Court’s Common Law Division, which comprises eight specialist lists.^[148] Tree disputes will generally be heard in the General List.^[149]

6.124 Most tree disputes heard in the County Court have been transferred from the Magistrates’ Court.^[150]

Flexibility

6.125 As set out in the governing practice note: ‘The aim of the County Court in civil litigation is to list, hear and determine cases quickly and cost-effectively, consistent with the demands of justice and, in particular, with the requirements of the Civil Procedure Act 2010 (Vic).’^[151]

6.126 The County Court sits in Melbourne and in 12 regional locations. These are Bairnsdale, Ballarat, Bendigo, Geelong, Horsham, Mildura, La Trobe Valley (Morwell), Sale, Shepparton, Wangaratta, Warrnambool and Wodonga.^[152]

6.127 The Court has instituted the County Koori Court, a specialist model that demonstrates the flexibility and adaptability of the Court’s practices and procedures to specific matters.^[153]

6.128 The Court has also published a practice note which outlines the management of self-represented litigants in the Common Law Division.^[154] The practice note applies to any matter where one or more litigants are self-represented. It appoints a judge in charge of self-represented litigation and a self-represented litigant coordinator who work together to manage self-represented litigants and the proceedings in which they are a party. For example, once a matter is listed, self-represented litigants are able to contact the coordinator for assistance with the form and content of documents to be filed or issued.^[155] Furthermore, after the initial directions hearing, the judge in charge will

undertake ‘total pre-trial management of the proceeding’^[156] which is intended to ensure that ‘as far as is possible, the matter is in the best position to proceed on the day of trial’.^[157]

6.129 The Court has published information for self-represented litigants on its website. A webpage, ‘Are You Representing Yourself?’, contains contact details of the self-represented litigant coordinator and a short film containing a ‘step by step guide to each major step in a civil proceeding’.^[158] There is also a downloadable guide for self-represented litigants.^[159]

6.130 However, it was noted in the Access to Justice review that the ‘practices and procedures in the higher courts are more complicated and technical than in the Magistrates’ Court or VCAT’^[160] and that self-represented litigants may be disadvantaged and ‘feel disempowered’ by these ‘formal and opaque’ court practices.^[161] The review recommended ways the higher courts should improve the way they work with self-represented litigants as well as improving interpreter services and establishing a ‘self-representation service’ in conjunction with the community legal sector.^[162]

Alternative dispute resolution and judicial mediation

6.131 The County Court also employs alternative dispute resolution (ADR) processes and judicial mediation. The Court’s ADR practice, established in 2009, aims to provide parties ‘with a timely and cost effective avenue to have their matter resolved’.^[163] ADR such as mediation is encouraged in the majority of cases.^[164] Section 47A of the County Court Act 1958 (Vic) provides that the Court may, with or without the consent of the parties, refer the whole or any part of a civil proceeding to mediation or arbitration.^[165]

6.132 The Standard Mediation Procedures also sets out the Court’s ‘expectations as to how … mediation is to be conducted’, including that the parties agree on a mediator, and take all necessary steps to ensure the mediation goes ahead at the appointed day and time.^[166]

6.133 Mediation is initially ordered two to three months before hearing,^[167] and further mediation may be ordered at or just before the trial.^[168]

6.134 Mediation is mandatory before any matter proceeds to trial where one or both of the parties are self-represented, unless otherwise ordered by the judge in charge.^[169] If the judge in charge is satisfied that it is appropriate, parties may undertake case conferencing instead of mediation.^[170]

6.135 The Court may also use judicial resolution conferences, a form of judicial mediation, in certain matters. Judicial mediation differs from standard mediation in that judicial officers instead of private mediators conduct these conferences.^[171] For example, in family provision

claims where the estate is under $700,000, parties are ‘automatically referred to a judicial resolution conference conducted by a judge, while for claims above that amount, parties can choose private mediation instead. No fee is charged for a conference.’^[172]

Appeals

6.136 Appeals from decisions of the County Court are to the Court of Appeal (if the Court of Appeal grants leave to appeal).^[173] Where the County Court decision was made by an Associate Judge, the right of appeal is to the Trial Division of the Supreme Court.^[174]

Supreme Court of Victoria

6.137 The Supreme Court is the highest court in Victoria and deals with the most serious criminal and civil matters.^[175] As discussed at [3.76]–[3.80], the Supreme Court has original, unlimited jurisdiction to hear all civil matters, and is theoretically able to hear large tree disputes under its Common Law Division’s Major Torts List. The Supreme Court very rarely hears neighbourhood tree disputes as such, unless a case also involves other legal issues.^[176] Costs of bringing a tree dispute in the Supreme Court are higher than the Magistrates’ Court and County Court, with a basic filing fee of $1065.10. This cost is independent of other applicable court fees, such as daily hearing fees and legal representation.

Subject matter expertise

6.138 The Court’s Major Torts List ‘is designed to facilitate and expedite the passage of large or otherwise significant tortious claims to trial’.^[177]

6.139 Procedure followed in the Major Torts Lists is set out in a practice note,^[178] which outlines the types of proceedings ‘suitable for inclusion in the list’. Those potentially relevant to neighbourhood tree disputes are:

• large, complex or otherwise significant tortious claims^[179]

• tortious claims for economic loss or property damage^[180]

• nuisance claims, including land contamination claims^[181]

• claims based on intentional torts^[182]

• tortious claims of significant public interest.^[183]

Flexibility

6.140 The Supreme Court is located in Melbourne. Where a cause of action arises in regional Victoria, parties are directed to initiate the matter in the Civil Circuit List of the Regional Circuit Court, which sits in 12 regional districts across Victoria on scheduled dates throughout the calendar year.^[184] The regional districts are Ballarat, Mildura, Bendigo, Sale, Geelong, Shepparton, Hamilton, Wangaratta, Horsham, Warrnambool, Morwell and Wodonga.^[185]

6.141 The Supreme Court has taken steps to create greater clarity for self-represented litigants. The Court provides a suite of resources for self-represented litigants on a webpage, ‘Representing yourself’.^[186] Resources include ‘self-help information packs’ about starting, defending and appealing a legal action.^[187] Litigants can contact and make appointments with the Court’s specialist self-represented litigant coordinator who ‘is available to assist self-represented litigants with procedural advice, information about alternative dispute resolution, organisations that provide low cost legal services and self-help packs on various types of proceedings’.^[188]

6.142 However, the Access to Justice report identified that self-represented litigants in higher courts still experience disadvantage and difficulty in navigating the courts’ complex procedures.

6.143 The Court has the power to waive its fees under section 129(3) of the Supreme Court Act 1986 (Vic) on the basis of financial hardship. A person wishing to have their fees waived must complete an application form. In the majority of circumstances, fees are only waived for self-represented litigants.^[189]

Alternative dispute resolution and judicial mediation

6.144 The Supreme Court actively encourages the use of ADR to resolve legal disputes via mediation. The Court also conducts judicial mediation where this process would be most efficient in reaching a resolution.^[190]

6.145 The Court may order parties, even where they do not consent, to undergo mediation at any stage of a proceeding.^[191] Parties may also ask the Court to refer them to a mediator at any stage of a proceeding.^[192]

6.146 Judicial mediation is ordered selectively and ‘is not a substitute for mediation by appropriately qualified private mediators’.^[193] Judicial mediation may be ordered in the following circumstances:

• an earlier unsuccessful private mediation

• one or more parties has limited resources

• a substantial risk that the costs and time of a trial would be disproportionately high compared to the amount in dispute or the subject matter of the dispute

• an estimated trial length that would occupy substantial judicial and other court resources

• aspects that otherwise make it in the interests of justice that the matter be referred to judicial mediation.^[194]

Appeals

6.147 The Trial Division of the Court hears and determines cases. Decisions of the Trial Division can be appealed to the Court of Appeal.

6.148 The Court of Appeal also has jurisdiction to ‘hear an appeal against civil judgments made by the County Court and Supreme Court. The Court may also hear appeals against civil judgments made by the President or Vice-President of VCAT.’^[195]

6.149 In almost all matters, a direct right of appeal does not exist,^[196] and leave must be granted by the Court.^[197]

Transfer to County Court

6.150 While the Supreme Court has jurisdiction over all matters, including tree disputes, research by the Commission has found only one case of this kind being heard by the Court in the last 30 years.^[198] There are very few published decisions of the Supreme Court relating to neighbourhood tree disputes.^[199] It is likely that solicitors advise clients to initiate in the County Court, as that court also has unlimited jurisdiction, and is likely to provide a cheaper and quicker resolution than the Supreme Court.

6.151 Cases may be (and would likely be) transferred to the County Court where, in the opinion of the designated judicial officer:

• the Supreme Court does not have exclusive jurisdiction to hear and determine it, and

• the County Court has the appropriate skill, experience and authority to hear and determine it having regard to its gravity, difficulty and importance, and

• it is just and convenient that it be transferred.^[200]

6.152 These considerations are made to further the overall aim to ‘improve efficiency in the administration of civil justice in Victoria’.^[201]

Victorian Civil and Administrative Tribunal (VCAT)

6.153 VCAT is a tribunal that hears small civil claims. It was established under the Victorian Civil and Administrative Tribunal Act 1998. VCAT is a ‘modern, accessible, efficient, cost-effective, and independent judicially-governed tribunal’.^[202]

6.154 VCAT comprises four main divisions: the Administrative Division, Civil Division, Human Rights Division and the Residential Tenancies Division. Claims brought before VCAT can be monetary and non-monetary in nature.

6.155 The Civil Division, in which disputes over matters such as consumer issues, domestic building works, and retail tenancies are heard, deals largely with monetary claims.

6.156 In other divisions such as the Residential Tenancies Division and Human Rights Division, claims are more likely to be non-monetary in nature, dealing with issues such as anti-discrimination, tenancy or guardianship.^[203]

6.157 VCAT derives its jurisdiction to hear and determine claims in these specialised areas from various statutes.^[204]

6.158 Although VCAT is known to handle smaller civil claims,^[205] there is no limit on the amount that can be claimed in the Civil Division.^[206] Even more complex claims over the value of $100,000 can be heard in VCAT.^[207]

6.159 VCAT is headed by a president who is a judge of the Supreme Court of Victoria. VCAT also has 13 vice-presidents who are judges from the County Court of Victoria. The president and vice-presidents are responsible for the management and administration of VCAT.

6.160 Claims are determined by members who ‘have specialist knowledge and qualifications’, most of whom also have a legal background.^[208]

6.161 VCAT deals with a high volume of matters and is significantly less formal than the courts. VCAT’s website states that it is the busiest tribunal of its kind in Australia, finalising 87,448 matters in the 2015–16 financial year.^[209]

6.162 Fees to bring a claim at VCAT are significantly lower than in the courts, with most areas applying a sliding scale depending on the amount in dispute. VCAT revised its fees in July 2016, making it more affordable.

6.163 The Access to Justice report found that this ‘new fee structure adequately meets concerns about the affordability of commencing applications for small civil claims’.^[210] Individuals are charged lower fees than corporate parties, and those with a health-care concession card can often have their fees waived.^[211]

Subject matter expertise

6.164 As VCAT does not have jurisdiction over common law matters, it does not currently hear tree disputes.^[212]

6.165 However, VCAT does have substantial jurisdiction over a number of areas that intersect with planning, environment and land issues. Some of the areas in which VCAT hears matters include:

• disputes over the use or development of land, including applications relating to natural resources (including unreasonable flow of water from surrounding properties), and applications relating to protection of the environment and removal of vegetation

• building and construction, including domestic building claims and applications for injunctions

• land valuation

• disputes about co-owned land and goods under the Property Law Act 1958

• residential tenancies disputes

• owners corporation disputes.

6.166 As stated above, VCAT has specialist divisions and lists dealing with specific types of disputes, and its members have, in addition to legal backgrounds, various types of specialist expertise.^[213] There were 237 VCAT members in the 2015–16 financial year.^[214]

6.167 VCAT’s specialist members ‘must possess in-depth and up-to-date expert knowledge’ of the relevant subject matter.^[215] Similar requirements apply to commissioners of NSWLEC and members of QCAT and RMPAT.

Flexibility

6.168 VCAT’s primary location is in central Melbourne. VCAT also hears cases in various Magistrates’ Court locations and local council customer service offices across metropolitan Melbourne and regional Victoria.^[216] VCAT also sits at the Neighbourhood Justice Centre in the City of Yarra.^[217]

6.169 VCAT’s processes differ from those of a court.^[218] On the webpage entitled ‘Steps to resolve your case’, parties are informed that ‘VCAT is deliberately less formal than a court and we encourage you to represent yourself where possible’.^[219] In fact, parties may only appear with legal representation in limited circumstances, with VCAT’s permission.^[220]

6.170 Through VCAT’s website parties can access informative materials to help guide them through VCAT’s processes. VCAT has also produced a video entitled Taking it to VCAT, available on YouTube and the VCAT website. ^[221] Information about VCAT’s process and procedures is also available through the registries and the litigant in person co-ordinator.

6.171 The Access to Justice report noted that VCAT’s active case management is also of assistance to parties. It provides an example of active case management in VCAT’s Human Rights List:

once a person has filed their matter, VCAT will serve the documents on the respondent and, in some cases, contact the parties to discuss the matter proceeding direct to a compulsory conference or mediation. Alternatively, the case will be listed for a directions hearing where VCAT’s processes are explained and discussed with the parties.^[222]

Alternative dispute resolution

6.172 VCAT uses a range of ADR processes to help parties resolve their dispute without a full hearing. They are conducted by ‘members, staff, and external mediators from a panel who are engaged on a sessional basis’.^[223]

6.173 The principal registrar may require parties to undergo compulsory conferencing, a private and confidential meeting in which a member will assist the parties identify the issues in contention, and questions of fact and law. Compulsory conferences take place before a hearing and allow the member to take an active role in helping to resolve the dispute.

If resolution cannot be achieved through the compulsory conference then the member can issue orders and directions for the final hearing. Parties do not incur additional costs for compulsory conferencing.^[224]

6.174 Parties may also, with or without consent, undergo mediation with a member or accredited mediator. Conversations during mediation are confidential and cannot be used in hearings. Mediation may target all the issues in a proceeding or a subset of them. The mediator or member’s role is less active than in compulsory conferencing, as they cannot ‘give advice about a party’s prospects of success’ or ‘put forward options for settlement of the proceeding’.^[225]

6.175 For some Civil Division claims for goods and services under $3000 (without counter claims), parties may participate in VCAT’s Short Mediation and Hearing Program which consists of a one-hour mediation session conducted by VCAT registry staff with suitable accreditation. If unresolved, the dispute will proceed to a final hearing on the same day.^[226]

6.176 If parties resolve their dispute and reach an agreement, VCAT can confirm the agreement in legally binding consent orders.^[227]

6.177 The Access to Justice report made recommendations to improve and expand VCAT’s ADR processes. These include partnering with the Dispute Settlement Centre of Victoria to expand its ADR services and expanding its short mediation and hearing program, including into regional areas.^[228]

Appeals

6.178 There is a limited right to appeal VCAT decisions, with most decisions being final and binding.^[229] A party may appeal a VCAT decision to the Supreme Court but only on questions of law (legal errors).^[230] This limit on appeals is designed to provide certainty and clarity once VCAT makes a determination. ^[231]

6.179 Parties who wish to appeal a decision made by a VCAT member must seek leave to appeal a question of law from the Supreme Court.

6.180 Parties who wish to appeal a decision made by the President or Vice-President of VCAT must seek leave to appeal a question of law from the Court of Appeal.^[232]

6.181 An application seeking leave to appeal must be made no later than 28 days after VCAT makes an order and in accordance with the rules of the Supreme Court.^[233] VCAT advises parties to seek legal advice or contact the Supreme Court’s self-represented litigant coordinator for assistance as soon as VCAT makes a determination.^[234]

6.182 If leave to appeal is granted then the appeal must be filed in the Supreme Court within

14 days.^[235]

Concurrent jurisdiction and transfer to the Magistrates’ Court

6.183 VCAT can hear civil claims under $100,000. This coincides with the jurisdiction of the Magistrates Court, particularly in relation to ‘debts, damages for breach of contract, other contractual disputes, and claims under the Australian Consumer Law’.^[236]

6.184 Reasons why a person may elect to bring a matter in VCAT rather than the Magistrates’ Court include:

• The proceedings are less formal.

• It is easier to bring a claim without legal representation.

• The costs are lower.

6.185 However, VCAT does not have the same powers as the Magistrates’ Court in relation to similar claims. For example, VCAT ‘cannot award costs in small civil claims in the Civil Claims List, whereas costs are usually awarded to the successful party in a Magistrates’ Court matter’.^[237]

6.186 Actions brought in the Magistrates’ Court can also be transferred to VCAT on the request of the person against whom the action is brought if it would be more appropriate for the case to be heard by VCAT.^[238]

VCAT and 1998 Fences Review

6.187 The possibility of conferring jurisdiction to hear neighbourhood disputes about fences was previously explored in Victoria by the Parliamentary Law Reform Committee (a different body from the Victorian Law Reform Commission) in its 1998 review of the Fences Act. In its report, the Committee provides useful commentary on its recommendation that VCAT, rather than the Magistrates’ Court, should be given power to hear comparable neighbourhood disputes:

VCAT could perform a larger role in providing an efficient and cost effective forum for the resolution of a wider range of neighbour disputes. Consequently, the Committee recommends the creation of a ‘Neighbour Disputes’ Division of the Tribunal with the jurisdiction under the proposed Boundaries and Dividing Fences Act at its core.^[239]

6.188 This recommendation was not, however, implemented. The government’s 2001 response to this recommendation provides some context:

The Government … notes that there are complex issues to be considered in the relocation of any jurisdiction. In particular, the Government is concerned that regional and rural Victoria remain serviced in the comprehensive manner in which they are currently serviced by local Magistrates’ courts. It proposes to consider further the necessity of an entirely new Division at the Tribunal, and whether broader disputes would be better resolved in another arena.^[240]

6.189 The government also stated that if jurisdiction were to be given to VCAT, then the powers conferred on VCAT ‘would not be large but limited to determination of disputes on defined matters under that Act, ensuring that there was no overlap with building or planning legislation’. Currently, fencing disputes are heard in the Magistrates’ Court.

6.190 Whether or not tree disputes should continue to be heard in the Magistrates’ Court or in another forum is a key consideration in the design of a new scheme.

6.191 Stakeholders may wish to take into account the following factors when considering which jurisdiction should hear tree disputes:

• the cost of proceedings

• the formality of proceedings

• the capacity of parties to participate in proceedings/ability to represent themselves

• the expertise of the arbiters

• the powers available to the arbiters

• the resources of the court/tribunal

• the location of the court/tribunal.

Question

21 Which court/s or tribunal should have jurisdiction over neighbourhood tree disputes under a statutory scheme?

(g) Preconditions

6.192 Some preconditions (or ‘jurisdictional facts’) must be met before a court (or tribunal) can make orders.^[241]

6.193 In New South Wales, the NSWLEC needs to be satisfied that the following preconditions have been met before making any orders:

• Parties have made a reasonable effort to resolve the dispute among themselves before commencing an application.^[242]

• Appropriate notice has been given. An affected neighbour must give the tree owner, local council or any other person likely to be affected by an order at least 21 days notice of the lodging of the application and the orders they wish to seek.^[243]

• The tree concerned has caused or is likely to cause the damage or harm claimed by the affected neighbour.^[244]

6.194 One of the ways a reasonable effort to reach an agreement may be demonstrated is by writing to the other party informing them of any concerns or engaging in mediation.^[245] The presence of parties at a hearing may also demonstrate a reasonable effort in and of itself. Chief Justice Preston in Robson v Leischke explained that this requirement is ‘less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement’^[246] and that exhaustive negotiation is not required.^[247] A reasonable effort does not need to be made before the filing of an application but does need to be made before the court makes any orders.^[248]

6.195 In order for the tree concerned to have caused or be likely to cause damage or harm, there must be a relationship between the tree and the damage or harm alleged in the application.^[249] Although the tree does not need to be the sole cause of the damage or harm alleged, ‘something more than a theoretical possibility is required in order to engage the power under [the NSW Act]’.^[250] Furthermore, the tree itself must be the cause of damage or harm. Chief Justice Preston explains in Robson v Leischke:^[251]

although a tree when it flowers might attract bees seeking nectar in the flowers, and the presence of the bees might increase the risk of persons in the vicinity being stung by bees, it is not the tree itself that is likely to cause such injury of bee sting to any person, but rather it is the bees: see Immarrata v Mourikis [2007] NSWLEC 601. Similarly, the fact that an animal which has caused, is causing or is likely to cause in the near future damage to property on adjoining land, uses a tree as habitat, such as for feeding, roosting or nesting, does not result in the tree itself having caused, causing or being likely to cause in the near future damage to the applicant’s property: Dooley v Newell [2007] NSWLEC 715 at [22]–[23].

6.196 In Queensland, QCAT needs to be satisfied that the following preconditions have been met before the making of any orders:

• The affected neighbour has made a reasonable effort to reach an agreement with the tree owner.

• The affected neighbour has taken all reasonable steps to resolve the issue under any other applicable law or scheme.

• The affected neighbour has provided the tree owner with copies of the application with at least 21 days notice.

• In the case of overhanging branches, that the branches extend into the affected neighbour’s land by at least 50 centimetres and the dispute cannot be resolved under the Part 4 branch removal process.^[252]

6.197 One way a reasonable effort to reach an agreement may be demonstrated is by writing to the tree owner to request certain works to be performed on their tree,^[253] engaging in mediation^[254] or participating in compulsory conferencing ordered by the Tribunal. A reasonable effort does not need to be made before an application is filed but does need to be made before a final decision in a proceeding.^[255]

6.198 In Tasmania, the affected neighbour must give ‘notice in writing of an application, the grounds of the application and the nature of the relief sought’ to the tree owner and any other interested party.^[256] Additionally, RMPAT must consider, before hearing an application, whether ‘reasonable attempts to resolve the matter … have been made by the parties’.^[257] This differs from New South Wales and Queensland, where the decision maker must be satisfied a reasonable effort to resolve the matter has been made before making orders.^[258]

6.199 In determining whether a reasonable attempt has been made, RMPAT will consider whether the notice and request processes set out in the Tasmanian Act have been followed, and any refusals to carry out work for reasons of the health and safety of the tree or people on the land.^[259]

6.200 If reasonable efforts have not been made, RMPAT ‘may direct the parties to an application to attempt to resolve the matter’. In doing so, RMPAT may take into account whether parties have made any threats of violence; have successfully obtained orders restraining any behaviour; or have already participated in any form of dispute resolution.^[260]

6.201 In Victoria, parties in a dispute being litigated in the Magistrates’ Court, County Court and Supreme Court are bound by the ‘overarching obligations’ set out in the Civil Procedure Act 2010 (Vic).^[261] These overarching obligations place similar emphasis on attempting to resolve a dispute as the New South Wales, Queensland and Tasmanian Acts.

6.202 Parties have an overarching obligation to:

• use reasonable endeavours to resolve a dispute by agreement if appropriate, including by appropriate dispute resolution^[262]

• narrow the issues in dispute. If parties cannot resolve a dispute wholly by agreement then parties must use reasonable endeavours to resolve issues that can be resolved and narrow the scope of remaining issues.^[263]

6.203 Although the Civil Procedure Act 2010 (Vic) applies to all Victorian courts, it does not apply to matters heard in VCAT.^[264]

6.204 However, if the overarching obligations are not fulfilled, this does not prevent parties from commencing litigation. As noted in the 2016 Access to Justice Review:

The Civil Procedure Act, as passed, included a general preaction protocol that prevented litigants from commencing proceedings (with some limited exceptions) before they had taken reasonable steps to resolve the dispute by agreement, or to clarify and narrow the issues in dispute. Following a change of government, those provisions were repealed before the Act commenced, due to concerns that they would add to the complexity, costs, and delays of civil proceedings, and could be used to frustrate proceedings.^[265]

6.205 Any necessary preconditions under a new scheme, and their interaction with the Civil Procedure Act 2010 obligations would need to be clearly defined.

Question

22 What preconditions, if any, should parties have to satisfy under a statutory scheme before any orders are made?

(h) Decision-making factors

6.206 The New South Wales, Queensland and Tasmanian Acts require the decision makers to take certain factors into account when coming to a decision. Decision makers in New South Wales and Queensland must consider all of these factors.^[266] In Tasmania, decision makers must consider these factors but only to the extent that they are relevant.^[267]

6.207 Factors to be considered which are common to all three Acts include:

• contribution the tree makes to the local ecosystem and to biodiversity

• public amenity of the tree

• impact of works such as pruning to the health of the tree

• soil stability, the water table or other natural features of the land or locality

• local laws and Acts, and what consent is needed

• type of tree and whether it is native, protected or considered a pest

• seasonal changes

• contribution to natural landscape, privacy and protection from natural elements.

6.208 Decision makers in each of these jurisdictions are not limited to these factors and are able to consider other factors they consider relevant.

6.209 Factors to be considered in each jurisdiction are set out below.^[268]

Table 2: Decision-making factors in New South Wales, Queensland and Tasmania

6.210 By way of further guidance, the Queensland Act explains that a tree’s ‘historical, cultural, social or scientific value’ includes whether the tree comes under the Aboriginal Cultural Heritage Act 2003, Torres Strait Islander Cultural Heritage Act 2003 or is situated in a Queensland heritage place under the Queensland Heritage Act 1992.^[269]The Queensland Act also states that ‘no financial value or carbon trading value may be placed on a tree’.^[270]

6.211 The Queensland and Tasmanian Acts set out some additional factors that may be considered by the decision makers in particular circumstances, such as claims about injury, damage or unreasonable interference, and when deciding to order the destruction of a tree. The decision maker is not bound to consider all these additional factors.

6.212 In relation to claims about injury, damage or unreasonable interference, the decision maker may consider:

• whether anything other than the tree has contributed, or is contributing, to the injury or damage or likelihood of injury or damage, including any act or omission by the neighbour and the impact of any tree situated on the neighbour’s land

• any steps taken by the tree-keeper or the neighbour to prevent or rectify the injury or damage or the likelihood of injury or damage.

6.213 In relation to claims concerning substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land, the decision maker may consider:

• anything other than the tree that has contributed, or is contributing, to the interference

• any steps taken by the tree-keeper or the neighbour to prevent or minimise the interference

• the size of the neighbour’s land

• whether the tree existed before the neighbour acquired the land.

6.214 The Tasmanian Act goes on to state that the decision maker may also consider any other matter considered to be relevant.^[271]

6.215 In relation to orders for the destruction of a tree, the decision maker may consider:

• how long the neighbour has known of the injury or damage

• any steps that have been taken by either neighbour to prevent further injury or damage

• anything other than the tree that may have caused, or contributed to, some or all of the injury or damage

• any other matter considered to be relevant.^[272]

6.216 As can be seen in Table 2, some of the general factors from New South Wales have been replicated in the later Queensland Act. Most of the general and specific factors from the Queensland Act have then been replicated in the more recent Tasmanian Act. These factors may provide a basis from which to model any similar factors in Victoria. However, as reflected by differences in the existing state Acts, there may also be unique factors relevant to Victoria that should be taken into account by the decision maker.

Questions

23 What factors should be taken into account by the decision maker before making any determinations under a statutory scheme?

24 Should there be a hierarchy or relative weight for each of these factors? If so, how should this be determined?

(i) Types of orders and enforcement

6.217 The NSW Act sets out the types of order that the NSWLEC can make in tree disputes.^[273] The NSWLEC has broad jurisdiction to make ‘such orders as it thinks fit to remedy, restrain or prevent’ and it is not limited to orders requested by the parties.^[274] Examples of such orders include:

• seasonal or annual maintenance works

• authorisation to enter land to carry out work or obtain quotations for work

• payment of costs of works

• payment of compensation

• replacement of trees ordered to be removed.^[275]

6.218 Payment of compensation is only available for claims based on damage.^[276] The NSWLEC cannot make orders as to costs^[277]—parties must instead file a Notice of Motion that would be heard by a Registrar or judge of the court.^[278]

6.219 Failure to comply with an order is an offence with a maximum of 1000 penalty units.^[279] On the request of the affected neighbour, local council may also arrange for an authorised person to enter the tree owner’s land to ascertain whether any orders relating to tree works have been carried out and, if not, arrange for the works to be carried out. The local council must give a signed notice to the tree owner that contains details such as the relevant provisions of the NSW Act, the day the authorised person will enter and for what purpose.^[280] The local council can bring legal action to recoup any costs incurred for carrying out the order. A judgment debt can be registered as a charge on the tree owner’s land.^[281]

6.220 The Queensland Act also sets out the types of orders that can be made.^[282] QCAT can make any orders it considers necessary to remedy, restrain or prevent. The content of these orders depends on the circumstances of the dispute and can include orders for:

• annual maintenance work

• a survey to clarify who owns the tree

• a person to enter the tree owner’s land to obtain a quote or to carry out work

• compensation or repair costs relating to damage caused

• an arborist to check and write a report on the tree

• removal of the tree.^[283]

6.221 If QCAT orders the removal of a tree, it can also make orders for the replacement of the tree with a more appropriate tree of different maturity or species and, if appropriate, for it to be placed in a more appropriate location on the tree owner’s land.^[284]

6.222 QCAT can make orders to compensate the affected neighbour for damage, even if the tree has already been completely removed. However, QCAT can not do so in respect of a tree completely removed if the tree owner has since sold the land.^[285]

6.223 Each party in a QCAT matter must bear their own costs. QCAT usually does not make orders as to costs except where it ‘considers the interests of justice require it’.^[286] QCAT may consider factors set out in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) in coming to a decision.^[287]

6.224 If the tree owner fails to follow an order without reasonable excuse, they can be held liable for an offence with a maximum of 1000 penalty units.^[288]

6.225 Like the Act, the Queensland Act also provides a ‘last resort’ enforcement mechanism through local council in the case where the tree owner fails to carry out a QCAT order. The affected neighbour can contact their local council and ask that it carry out the order because the tree owner has failed to do so. The local council is under no obligation to follow this request.^[289]

6.226 In its statutory review of the Queensland Act, the Queensland Law Reform Commission (QLRC) reported that this mechanism is not frequently used but ‘considers it appropriate for the [Queensland] Act to continue to include provisions to allow a local [council] to carry out work under a tree order if the tree-keeper has failed to comply, particularly for cases where the tree poses a significant danger’.^[290]

6.227 The QLRC also stated that the non-obligatory nature of this mechanism should be retained because it ‘is concerned that, if assistance were made obligatory, local [councils] would need to establish new procedures with additional attendant expenses, which may have unintended implications’.^[291]

6.228 In Tasmania, the tribunal can make orders in relation to a tree to:

• ensure that parts of the tree do not overhang

• prevent or reduce the likelihood of a serious injury

• prevent, restrain or reduce the likelihood of serious damage

• prevent or reduce the likelihood of substantial, ongoing and unreasonable interference

• remedy damage caused to a person’s land or any property on that land.^[292]

6.229 Parties to a proceeding in RMPAT must bear their own costs. However, as in QCAT, RMPAT can make orders as to costs if it considers it ‘fair and reasonable’.^[293] The Resource Management and Planning Appeal Tribunal Act 1993 sets out factors RMPAT may take into consideration in coming to a decision.^[294]

6.230 Specific examples of these types of orders include:

• compelling the tree owner to carry out final or ongoing tree works

• requiring a survey to be undertaken to clarify the tree’s position in relation to a boundary line

• requiring an application for consent from a relevant authority

• authorising the entry of a person onto land to carry out an order

• requiring the tree owner to pay the costs of carrying out an order or pay the affected neighbour compensation for damage

• requiring a report to be obtained from an appropriately qualified arborist.^[295]

6.231 The Tasmanian Act does not set out penalties for parties who fail to follow RMPAT’s orders.^[296] Where an order is not complied with, the aggrieved party may take legal action for non-compliance in the Civil Division of the Tasmanian Magistrates’ Court.^[297]

Questions

25 What types of orders should be available under a statutory scheme?

26 How should these orders be enforced?

6.232 Consideration must be given to appropriate orders and enforcement under any new Victorian scheme.

(j) Effect on current law

6.233 As described in Chapter 3, the resolution of tree disputes is governed by tort law, with neighbours relying primarily on the common law self-help remedy of abatement, and seeking relief under the law of nuisance.

6.234 As described in Chapter 4, trees on private land may be subject to environment and planning legislation as well as local laws.

6.235 It is therefore important to consider how a new scheme would interact with torts, such as nuisance, as well as how orders issued by any decision-making body in relation to a tree dispute would interact with environment and planning legislation and local laws.

6.236 Approaches in New South Wales, Queensland and Tasmania are explored below and provide examples of possible approaches.

Nuisance and abatement

6.237 The NSW Act abolishes the right to bring common law actions in nuisance in relation to tree disputes that fall under the remit of the Act.^[298]

6.238 In Robson v Leischke,^[299] Chief Justice Preston noted, however, that this provision does not affect other common law actions such as trespass and negligence. He stated that despite the provision barring nuisance claims, the NSW Act:

contains no limitation on bringing common law actions in trespass or negligence, regardless of whether the tree concerned is one to which the [Act] applies. The Land and Environment Court, however, has no original jurisdiction to hear and determine such common law actions, nor would such actions be ancillary to a matter that falls within jurisdiction such as an application under the [Act] but rather are separate causes of action[.]

6.239 Furthermore, Chief Justice Preston stated that ‘if the damage is caused by a tree to which the NSW Act does not apply’, such as a tree on land outside permitted zones or on public land, then ‘a common law action in nuisance can still be brought’.^[300]

6.240 Although an affected neighbour cannot bring a claim for nuisance in respect of a tree that is captured by the NSW Act, they can still exercise the self-help remedy of abatement. However, it has been noted that an affected neighbour’s ability to abate may be significantly limited, due to the prevalence of local council tree protection orders which require not only the local council’s but also the tree owner’s consent to remove encroaching parts.^[301]

6.241 In Queensland, nuisance claims are not prohibited under the Queensland Act in the explicit manner of the NSW Act. However, the actions available under the Queensland Act, such as for the ‘substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land’,^[302] are underpinned by general principles of nuisance^[303] and are likely to make reliance on separate nuisance actions an unattractive option.

6.242 Abatement is still available to affected neighbours in Queensland, although it has been modified to the extent that the affected neighbour is no longer required to return the removed parts of the tree to the tree owner.^[304]

6.243 In some cases, the common law remedy of abatement is displaced by the removal process set out in Part 4 of Chapter 3 of the Queensland Act. The Part 4 removal process comprises four main aspects.

6.244 First, it is available only where overhanging branches are at least 50 centimetres long and a maximum of 2.5 metres above the ground.^[305] In its review of the Queensland Act, the QLRC explained that ‘overhanging branches that are 2.5 metres or less above the ground may impede the passage of a person or vehicle. It is also a lower and safer height range to carry out the work of cutting and removing the branches’ and that a depth of 50 centimetres provides a ‘reasonable balance between the right of a neighbour to have uninterrupted use of their property, and the burden that a tree-keeper may experience as a result of the ongoing need to trim or lop trees close to the boundary.’^[306]

6.245 Secondly, an affected neighbour must give the tree owner notice that they seek removal. The notice must:

• state the day by which the branches must be removed (at least 30 days from the date of the notice)

• ask for at least one day’s written notice of the date on which the branches are scheduled to be removed and notice of who will do the work

• give permission to the tree owner or their contractor to enter the affected neighbour’s land on the agreed day between 8am and 5pm

• include at least one written quote for the cost of the work

• include a copy of Part 4 of the Queensland Act which deals with overhanging branches.

6.246 A pre-drafted government form is available which satisfies these notice requirements.^[307]

6.247 Thirdly, the onus for arranging the works is on the tree owner and costs are incurred by the tree owner. If the tree owner refuses to comply, or does not remove the encroaching branches by the specified time, the affected neighbour can remove the branches themselves or via a contractor at the tree owner’s expense. Tree owners are liable to pay up to $300 a year for the removal of branches from their tree.^[308]

6.248 Fourthly, an affected neighbour exercising this right by removing an overhanging branch is not required to return the removed part to the tree owner.

6.249 The Tasmanian Act largely mirrors the Queensland Act’s implied limitation on nuisance claims and its notice provisions for the removal of overhanging branches.^[309] The Tasmanian Act process for non-compliance differs slightly from Queensland, and the Act provides additional notice requirements for other tree works that are not branch removal.^[310]

6.250 An affected neighbour who abates the nuisance caused by the tree is no longer required to return any severed parts of the tree to the tree owner.^[311] If the parts intended to be abated are branches that are at least 50 centimetres long and a maximum of 2.5 metres above the ground, then a ‘branch removal notice’ must be given to the tree owner. The form and process of furnishing the tree owner with this notice mirrors Queensland’s

Part 4 removal process.^[312]

6.251 The Tasmanian Act also states that a branch removal notice concerning the same tree cannot be issued to the same tree owner within the 12-month period after the day the previous notice was given.^[313]

6.252 If the tree owner does not comply with the notice, then the affected neighbour may remove the overhanging branches themselves. Although they do not need to return the branches to the tree owner, they are not prohibited from doing so.

6.253 The affected neighbour is entitled to recoup reasonable expenses incurred in the removal of the branches as a debt owed to them by the tree owner but only up to a maximum prescribed amount. If the tree owner takes issue with the amount of the debt, they may apply to have the issue heard and determined by a magistrate. The magistrate can determine that another amount should be owed if the original amount is ‘not fair and reasonable’ up to the prescribed maximum.^[314]

6.254 If other parts of the tree that do not come under the branch removal provisions are affecting a neighbour, then the affected neighbour ‘may give notice in writing’ to the tree owner outlining the ways the tree is affecting their land or property and how it should be remedied. The notice must also request that the tree owner respond to the notice in writing within a period of not less than 14 days.^[315]

Legislation and local laws

6.255 Chapter 4 sets out how trees on private land may be affected by local laws and other legislation in Victoria.

6.256 In New South Wales, orders made by the NSWLEC can override local laws such as tree protection orders or any other permission required by local councils. However, permission required under legislation cannot be overridden.^[316]

6.257 Copies of orders are provided to the local council and other relevant authorities via a standard letter from the NSWLEC.^[317] This letter also informs the local council ‘of its obligations [under the Environmental Planning and Assessment Act 1979 (NSW)] to make the appropriate notation [of the order] on the database for planning certificates’.^[318]

6.258 The 2009 statutory review of the NSW Act recommended that notations on planning certificates should be deleted or amended when the work ordered is finally completed (but not for work which is of an ongoing nature, eg maintenance orders).^[319]

6.259 Similarly, in Queensland, orders made by QCAT can override local laws to the contrary, such as the need for consent of the local council or tree owner before undertaking any work on a protected tree.^[320] However, QCAT cannot make an order for work on a tree that is prohibited by or contrary to legislation.^[321]

6.260 QCAT must give the local council or any other relevant authority that appears in a proceeding a copy of any order it makes.^[322]

6.261 The Tasmanian Act does not allow RMPAT to make orders that would be unlawful under legislation. However, unlike New South Wales and Queensland, it also does not allow local laws, such as those that require local council permission for certain works, to be overridden.^[323]

6.262 The Second Reading Speech for the Tasmanian Act explains:

Parties who are seeking redress under the Bill will be required to obtain the relevant permit from the planning authority in the first instance, or if the permit has not been obtained when the matter comes before the Tribunal, the Tribunal may put a stay on proceedings in order to enable the relevant permit to be obtained. In this way, the bill retains the current policy settings for decision-making under other legislative regimes, including notification and rights of appeal.^[324]

Questions

27 Should the common law right of abatement remain available to affected neighbours under a statutory scheme? Should it be modified in any way?

28 To what extent, if any, should orders made under a statutory scheme override or modify:

(a) local laws?

(b) other legislation?

6.263 As set out in Table 2, in all jurisdictions, the question of permission is taken into account when coming to a decision. In New South Wales and Queensland, if permission is required, then this consideration is weighed against the issuing of an order in favour of the aggrieved neighbour.^[325]

(k) Expert evidence

6.264 Proving in court that damage or harm has been caused by a particular tree or group of trees, often requires an expert opinion. This may be given by a variety of experts, in the form of a written report or oral evidence in a court or tribunal (‘expert evidence’).

6.265 Expert evidence is given in court proceedings by expert witnesses who have ‘specialised knowledge’ based on their ‘training, study or experience’.^[326] Expert evidence in tree disputes, particularly in relation to large trees, trees with ‘any historical, cultural, social or scientific value’ and trees that contribute to the ecosystem and to biodiversity, will likely be given by arborists.^[327] Expert evidence from structural engineers, horticulturalists, botanists and plumbers has also been given in court.^[328]

6.266 Because an expert has been contracted by either the affected neighbour or tree owner, there is a risk that their expert reports and evidence may contain an ‘adversarial bias’.^[329] This bias may result in divergent reports between parties’ experts.^[330]

6.267 Adversarial bias is not limited to tree disputes, and may arise in any type of dispute, civil or criminal.^[331] Combatting this bias is the reason behind the trend for courts in many areas to order ‘experts’ conclaves’, or a ‘hot tub’, in which experts are required to compare reports, and to produce a joint report detailing what they agree on, and what they disagree on, and why. Sometimes they are also required to give evidence concurrently.

6.268 It is important to consider the obligations and duties expert witnesses are bound by, the quality of expert reports, and any practical mechanisms a decision-making body can employ to reduce adversarial bias.

6.269 The obligations of expert witnesses in civil proceedings in Victorian courts are discussed below. This is followed by discussion of the role and obligations of expert witnesses in tree disputes heard by the NSWLEC, QCAT and RMPAT.

Victoria

6.270 The Victorian legislature and the courts have sought to clarify the duties and obligations of expert witnesses in the Civil Procedure Act 2010 (Vic) and court rules.

6.271 The Civil Procedure Act 2010 (Vic) applies its overarching obligations to expert witnesses in all Victorian courts.^[332] These include a paramount duty owed to the court to further the administration of justice,^[333] as well as obligations to:

• act honestly at all times^[334]

• not engage in conduct that is, or, is likely to be, misleading or deceptive^[335]

• narrow down issues in contention.^[336]

6.272 Court rules also seek to reduce adversarial bias of expert witnesses by setting out their duties and obligations.^[337] For example, expert witnesses must abide by the Code of Conduct found in Form 44A of all Victorian courts’ rules.^[338] The Code of Conduct states that an expert witness:

• owes an overriding duty to assist the court impartially

• is not an advocate for a party

• must acknowledge in their report that they have read the Code of Conduct and agree to be bound by it

• must provide a supplementary report to the court and parties if they change their opinion on a material matter

• if required by the court, must provide a joint report specifying matters in agreement and in contention.^[339]

6.273 The Code of Conduct also sets out the required content of expert reports and supplementary reports.^[340]

6.274 Courts may also issue practice directions about expert witnesses as needed.^[341]

6.275 In Victoria, there is no consistent or mandatory industry reporting standard for arboricultural expert evidence in tree disputes. Council Arboriculture Victoria and some local councils have published guidelines for report writing.^[342] Arborists may choose to follow these guidelines.^[343]

6.276 Unlike arborist reports submitted to local councils for the removal of protected or council-owned trees, expert evidence in court does not need to be from an arborist with particular minimum qualifications or expertise.^[344]

New South Wales Land and Environment Court

6.277 In New South Wales, as set out in Chapter 5, parties are able to engage their own experts to provide expert evidence.

6.278 Experts owe a general duty to the court and must agree to be bound by the code of conduct set out in Schedule 7 to the Uniform Civil Procedure Rules 2005 (NSW).^[345]

6.279 The Court may direct experts to engage in joint conferencing and to produce a joint report.^[346]

Queensland Civil and Administrative Tribunal

6.280 The QCAT framework for expert evidence in tree disputes arguably does more to reduce adversarial bias and encourage a greater degree of objectivity.

6.281 Although parties are able to engage their own experts to provide expert evidence, QCAT practice directions stipulate that:

• Only one expert for each area of expertise is allowed.

• Experts owe a duty to assist QCAT which overrides any obligation to the party that engages them.

• All experts in a proceeding must participate in an ‘experts’ conclave’ convened by QCAT and produce a joint report which identifies the matters agreed and disagreed about, and the reasons for any disagreement. The joint report must be prepared by the experts without instruction from the parties.^[347]

6.282 Where parties do not engage their own experts and expert evidence is required, QCAT will generally appoint an independent expert tree assessor to provide expert evidence. Tree assessors are appointed to a panel of casual appointees, which is reviewed annually, and receive remuneration from QCAT for their assessment and reports.^[348]

6.283 The tree assessor is a qualified arborist of ‘Australian Qualifications Framework Level 5 Diploma in Arboriculture (or verified equivalent), with a minimum of 5 years’ experience in local government tree management, or private tree industry tree assessment’.^[349] QCAT also recommends that its tree assessors show ‘commitment to continued professional development through membership of a professional organisation such as Arboriculture Australia Ltd and Queensland Arboricultural Association Inc’.^[350]

6.284 The tree assessor will inspect the tree and the land before providing QCAT with a report on the possible solutions to the issues in dispute.^[351] The tree assessor may also help each party understand the evidence their conclusions are based on.^[352] Parties share the cost of the tree assessor equally and QCAT will generally make an order requiring each party to pay half the cost up to a total of $1000.^[353]

6.285 Once QCAT receives the appointed tree assessor’s report, parties cannot produce further expert evidence without leave. If leave is granted, additional expert witnesses must participate in an experts’ conclave with the tree assessor.^[354]

Resource Management and Planning Appeal Tribunal

6.286 The Tasmanian Act does not contain any provisions dealing with expert evidence. As the Act was only recently enacted, RMPAT has not issued any comments or practice directions concerning expert evidence specific to tree disputes. This may change as tree disputes begin to be brought before RMPAT.

6.287 At the time of writing, RMPAT had issued one general practice direction concerning expert evidence.^[355] The key expectations of expert witnesses and requirements of their evidence are summarised below.

6.288 Expert witnesses must comply with an Expert Witness Code of Conduct. The Code of Conduct states that expert witnesses owe a general duty to RMPAT. This general duty comprises:

• an overriding duty to assist RMPAT impartially on matters relevant to their area of expertise

• a paramount duty to RMPAT and not to any party to the proceedings (including the person retaining the expert witness)

• the requirement that an expert witness is not to advocate for a party.^[356]

6.289 The Code of Conduct also sets out the required content of expert evidence—that experts are expected to work cooperatively with other experts and that they must participate in joint conferencing or produce a joint report when instructed by RMPAT.

6.290 As soon as an expert is engaged by a party, they must be given a copy of the Code of Conduct. An expert’s statement or report cannot be produced in RMPAT as evidence unless it contains an ‘acknowledgment that the author has read the Code of Conduct and agrees to be bound by it’.^[357]

6.291 These different approaches may be of assistance in determining how any Victorian system manages the provision of expert evidence.

Questions

29 What factors should be taken into account in relation to the appointment or qualifications of experts giving evidence about neighbourhood tree disputes?

30 Should the decision-making body issue guidelines or model reports to guide expert evidence?

(l) New owners of land

6.292 Tree disputes may continue throughout and even after the sale of one of the properties involved. Buyers of the tree owner’s land also buy the tree that is affecting their neighbours. Buyers of the affected neighbour’s land may also inherit the issues caused by the neighbouring tree. The New South Wales, Queensland and Tasmanian schemes set out the legal position of new owners (successors in title), where the relevant tree disputes have already been the subject of legal action.

6.293 The point at which the relevant provisions apply to new owners differs in each state. In New South Wales, new owners will be bound by the outcome of legal action after title to the land has passed to them, whereas in Queensland and Tasmania, new owners will be bound by the outcome of legal action when, as purchasers of land, they enter into a contract of sale. These schemes are explored in more detail below.

6.294 In New South Wales, if ownership of the land passes to another person before an order for any work on the tree is carried out, then the new owner must carry out the order as if they were the original tree owner but only if they have been served with a copy of the order by the affected neighbour.^[358]

6.295 Copies of orders made by the NSWLEC are sent to the affected neighbour ‘with a standard letter advising the [affected neighbour] of the provisions … and, as a consequence, the steps that the [affected neighbour] must take to ensure that the orders remain in force if the tree owner sells the property in which the tree is located’.^[359]

6.296 In its original incarnation, the NSW Act was silent on what should happen if the affected neighbour’s land passes to a new owner before an order is carried out by the tree owner. Following the 2009 statutory review of the Act, a new provision was enacted, which now allows immediate new owners of the affected neighbour’s land to be entitled to the same benefits given to the original affected neighbour under the order.^[360]

6.297 The NSW Environmental Planning and Assessment Regulations 2000 require that where a local council has been informed, its planning certificates must specify any orders made under the NSW Act. The 2009 statutory review of the NSW Act found this to be an ‘appropriate safeguard for potential buyers of the property’.^[361]

6.298 In Queensland, once the purchaser enters into a contract for sale and has been given a copy of the application, the purchaser is joined as a party to the QCAT proceeding.^[362]

6.299 Similarly, once given a copy of an order and after entering into a contract of sale, the purchaser is bound by the order as if the purchaser were the original tree owner to the extent the order has not been carried out. Any period of time mentioned in the order for carrying out the required work begins from the transfer of land.^[363]

6.300 The Queensland Act also sets out the purchaser’s right to terminate the sale of contract and recoup their deposit if they have not been given a copy of the application or order before the transfer of land.^[364]

6.301 QCAT also administers a searchable tree orders register. Any person, including prospective buyers, can search a property by its address to see if any tree on the land is subject to an order.^[365]

6.302 The Tasmanian Act is similar to the Queensland Act. An owner of land, whether the tree owner or affected neighbour, may be fined if they fail to provide purchasers with a copy of any application or order relating to the land.^[366] If the purchaser is not notified, they may terminate the contract of sale and retrieve their deposit.^[367]

6.303 If the original owner fails to provide copies of a relevant order before entering into a contract for sale, and fails to carry out any works required under the order before settlement, they remain liable to ensure that that work is carried out, despite the fact that they no longer own the property.^[368]

6.304 If an application before RMPAT has not yet been determined, then a purchaser who enters into a contract of sale must be joined, as soon as practicable, as a party to an application of which they have been notified and given a copy.^[369] A fine is applicable if this is not done.

6.305 Local councils are to be informed of any orders, and ‘information certificates’ about the tree to which the orders relate are to be provided to prospective purchasers of land by the council, as explained in the Second Reading Speech:

These provisions will ensure that prospective purchasers of land on which problem plants are situated are aware that matters relating to plants may need to be dealt with in the future. This will also ensure that landholders who are affected by a plant will not, in most cases, be required to seek fresh orders if the owner of the plant fails to fulfil his or her obligations under the order before selling the property.^[370]

Questions

31 Should new owners of land who take the place of the affected neighbour be bound by the outcome of legal action regarding relevant trees on the land?

32 Should new owners of land who take the place of the tree owner be bound by the outcome of legal action regarding relevant trees on the land?

33 At what point during the sale and/or transfer of land process should a purchaser become bound by the outcome of legal action:

(a) on transfer of title?

(b) on entering into a contract of sale?

(c) at some other time?

34 Should new owners be joined as a party to a proceeding that is already underway? If so, at which point of the sale and/or transfer of land process?

35 Should a searchable database of orders relating to trees be made available in Victoria?

6.306 The Tasmanian Act also provides for a publicly available database of orders and applications, maintained by RMPAT. Information will ‘include the terms of the order, when the order takes effect, when any work is required to be carried out and who is required to carry out the work’.^[371] This information is to be made available on the database within 14 days after an order is made.^[372] Any member of the community can search the database for a fee.^[373]

6.307 In order to provide clarity about their rights and responsibilities, the impact of orders or outstanding disputes on new owners of land may need to be considered in any new Victorian scheme.

(m) Enhancing useability

6.308 A statutory scheme for resolving tree disputes could be complemented by supplementary materials and tools to help people to understand the law, identify their rights and responsibilities, navigate the available options and in some cases, resolve their dispute before taking legal action.

6.309 Easily accessible online resources and information, and online dispute resolution (ODR) techniques are some of the ways in which the useability of a statutory scheme could be enhanced.

6.310 Resources and information currently available to community members in New South Wales, Queensland and Tasmania are set out below at [6.311]–[6.319]. The possible use of ODR for resolving tree disputes is explored at [6.320]–[6.333].

Resources and information

6.311 The schemes in New South Wales and Queensland aim to equip people to represent themselves and so are complemented by a variety of publicly available online resources.

6.312 The NSWLEC has published particularly useful resources for neighbours seeking information and guidance. These include:

• an annotated version of the NSW Act containing explanatory case law and examples^[374]

• information sheets^[375]

• step-by-step guides, setting out the Court’s process^[376]

• information about how to prepare applications.^[377]

6.313 The Court also, from time to time, publishes tree dispute principles to promote consistent decision making.^[378]

6.314 The Queensland Government and QCAT websites are particularly useful resources for neighbours seeking information and guidance. The government webpage entitled ‘Disputes about fences, trees and buildings’^[379] sets out resources such as step-by-step guides to resolving and avoiding tree disputes.^[380]

6.315 QCAT has published informative fact sheets and practice directions^[381] and administers a searchable tree orders register where people can search for a property or the name of a party to a tree dispute to see if any orders against trees on the land have been made.^[382]

6.316 The QCAT application is supported by an application checklist to help applicants correctly complete the form and determine whether their tree dispute falls under the remit of the Queensland Act.^[383]

6.317 The new Tasmanian scheme will be supported by ‘Plain-English guidance material and practice directions’ aimed at providing ‘further assistance to members of the general public who wish to use the new scheme’.^[384]

6.318 RMPAT will administer a searchable database of orders made in tree dispute matters. This database will be available to the public and can be searched for a fee.

6.319 In all three jurisdictions, community resources inform people about their rights and responsibilities, empower them to resolve their tree dispute and help them to navigate the procedures and processes associated with taking legal action. Whether or not such resources, and of what kind, should be made available in Victoria to complement a statutory scheme may be relevant to consider.

Question

36 What types of resources should be made available to community members to complement a statutory scheme?

Online dispute resolution

6.320 As the information and resources on tree disputes in Australian jurisdictions are increasingly presented online, the potential benefits of online dispute resolution (ODR) are also starting to be recognised.

6.321 ODR is a general term, describing a range of technology-assisted forms of dispute resolution. The styles of ODR are outlined in the Access to Justice report:

Online dispute resolution techniques range from methods where parties have full control of the procedure, such as in an online negotiation, to methods where a neutral third party is in control of both the process and the outcome, such as online arbitration. In online dispute resolution, the information management role is often carried out not by physical persons, but by computers and software.^[385]

6.322 There is no one format of ODR, with each jurisdiction that uses it employing a different range of ODR tools in combination with traditional methods. Some examples of this include:

• self-navigated ‘smart forms’ and interactive tools for exploring options and solutions

• technologically assisted problem diagnosis

• automated negotiation tools

• password-protected online chat platforms

• assisted mediation and arbitration

• online adjudication.

6.323 ODR is generally used for smaller, simpler disputes, which can be ‘triaged’ with threshold questions, and potentially resolved with good quality information and tools. In its 2008 Civil Justice Review, the Commission noted that ‘online ADR is an important development with considerable potential for wider use, including by parties who may be distant from each other and the court’.^[386] Some of the benefits of ODR methods include:

• Accessibility: Those in non-metro areas, or without access to a physical court or tribunal may find it easier to interact with online tools and processes. ODR tools may also be available around the clock, meaning that parties need not be in the same place at the same time to participate in resolving their dispute.

• Physical removal of parties: In some cases, being in a room together, as is usually the case in traditional mediation, can exacerbate the problem. In ODR, there is no need to meet or speak with the other party.

• Lower cost: The cost to the user (parties) is generally much lower, as is the cost of resource use by the relevant tribunal or decision maker. An increase in settlement before hearing as a result of successful ODR would also represent a significant decrease in costs otherwise incurred.

• Ease of use: Assuming a certain level of technological literacy, ODR systems are generally simple and user-friendly.

• Enforceable orders: Agreements made through ODR may be able to be simply converted into consent orders by the relevant decision maker.

• Secure and documented communications: Conducting negotiations online provides better opportunities to accurately record and document each stage of the process.

6.324 One of the most successful examples of ODR is the Civil Resolution Tribunal (CRT) in British Columbia, Canada, which deals with debts, personal property disputes, enforcement of specific performance, strata title disputes, some personal injury disputes, among others. The CRT uses a cumulative model of ODR, offering different levels of support if disputes cannot be resolved. The CRT process is discussed in more detail at [5.96]–[5.100].

6.325 An ODR pilot program was conducted in the NSW Civil and Administrative Tribunal (NCAT) in 2014. Intended as an ‘innovative and convenient web-based tool for parties in dispute to negotiate online without the need to attend NCAT in person’, the pilot focused on selected, single-issue consumer disputes under the value of $5000.^[387]

6.326 Parties were invited to participate on a voluntary basis, and the matters were concurrently listed for conciliation and hearing, presumably to ensure that no time was lost and the parties were not at a disadvantage should the ODR mechanism not prove successful. Parties were then guided by automated software through the identification of issues and priorities, the joint development of solutions and the generation of a negotiated agreement. If the parties reached an agreement, it would be converted into a consent order. Where no agreement was reached, the matter would proceed to hearing on the scheduled date.^[388]

6.327 Feedback from this pilot was generally positive, and showed that:

• 65 per cent of participants agreed or strongly agreed that ODR was convenient and that they would use it again.

• 63 per cent agreed or strongly agreed that the ODR website was easy to access and use.

6.328 Analysis of the uptake of matters included in the pilot showed an increase in finalisations before hearing, an increase in resolutions at hearing, a reduction of adjournments at hearing, and an overall projected saving of 12 hearing days per month.^[389]

6.329 It is unclear whether the NCAT pilot will be extended to deal with other areas of civil dispute, or whether other New South Wales jurisdictions such as NSWLEC will introduce ODR methodology.

6.330 In Victoria, following the Access to Justice report, the Victorian Government has pledged almost $800,000 to establish an online dispute resolution system for the resolution of small civil claims in VCAT. This is intended to serve as a pilot program to gauge the suitability of broader introduction of ODR in Victoria.^[390] The review also recommended the establishment of an online dispute resolution advisory panel. ODR is currently in use in Victoria for some Worksafe dispute resolutions.^[391]

6.331 For neighbourhood tree disputes, ODR tools may be useful in providing structure and clarity in the resolution process, and could be particularly complementary to a statutory scheme outlining rights and responsibilities.

6.332 An ODR system may also be a valuable way to link up existing tools and sources of information, as parties could move through the dispute resolution in a guided, linear way, and be given access to the information that best suited their dispute, as is the case in the CRT in British Columbia.

6.333 ODR tools may be delivered by the court or tribunal with jurisdiction to determine disputes or by a body independent of the adjudication process such as a government agency or community organisation. The delivery of ODR for neighbourhood tree disputes would depend on the applicable jurisdiction—for example, VCAT, in line with the pilot proposed under the Access to Justice report, or the Magistrates’ Court. An ODR neighbourhood tree disputes website could be hosted by the Victorian Government under the auspices of the DSCV, or by Victoria Legal Aid Legal.

Question

37 Should an online dispute resolution platform dedicated to neighbourhood tree disputes be introduced in Victoria? If so, what tools should be made available on this platform and who should administer it?

Other features

6.334 Introducing a new scheme for resolving tree disputes in Victoria would require careful consideration of a number of factors. Many of these have been set out above in parts (a) to (m), with examples of approaches from New South Wales, Queensland and Tasmania.

Question

38 Are there any other specific features of a statutory scheme that the Commission should consider?

6.335 The Commission is aware that this list may not be exhaustive and that there may be further issues relevant to the Victorian context that require consideration.

Option 3: An alternative option for reform

6.336 The above options and elements were selected from the range of approaches that emerged out of the Commission’s cross-jurisdictional review of common law and legislative responses to tree disputes.

6.337 The Commission welcomes proposals for alternative options. Alternative options for reform could be an entirely different option, not considered above, or an amalgam of elements from the current Victorian system and other jurisdictions.

Question

39 Do you have an alternative option for reform that you would like to see introduced in Victoria?

6.338 Any proposal must address the key question for the Commission’s review, which is how tree disputes can be resolved in simpler, clearer and fairer ways.

1. See [3.17]–[3.26] for more information about abatement.

   ↑

2. Dispute Settlement Centre of Victoria, Mediation (13 October 2017) <www.disputes.vic.gov.au/about-us/mediation>.

   ↑

3. See [3.97]–[3.226] for more information about these causes of action.

   ↑

4. Claims over $100,000 are heard in the County Court: Magistrates’ Court Act 1989 (Vic) ss 3 (‘jurisdictional limit’), 100(1).

   ↑

5. See [3.65]–[3.80] for more information on litigation.

   ↑

6. Tasmanian Law Reform Institute, Problem Trees and Hedges: Access to Sunlight and Views, Report No 21 (2016) 35 (Recommendation 3).

   ↑

7. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 3.

   ↑

8. Trees (Disputes Between Neighbours) Regulation 2007 (NSW) r 4.

   ↑

9. A vine can also be referred to as a creeper or climber.

   ↑

10. [2007] NSWLEC 458 (25 July 2007).

    ↑

11. Ibid [28]–[32].

    ↑

12. Department of Justice and Attorney General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) 19–20.

    ↑

13. Trees (Disputes Between Neighbours) Act 2006 (NSW) r 4.

    ↑

14. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 45(1).

    ↑

15. Ibid s 45(1)(b).

    ↑

16. Ibid s 45(2).

    ↑

17. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, Report No 72 (2015) (Recommendations 3–4).

    ↑

18. Ibid.

    ↑

19. Neighbourhood Disputes About Plants Act 2017 (Tas) s 4(1)–(2). Note that the plant must be situated within 25 m of the affected land:
    
    s 7(4). This allows for the roots of a plant to travel some distance. The plant also does not have to be on adjoining land: s 7(6).

    ↑

20. Activities Local Law 2009 (Melbourne City Council), cl 1.11.

    ↑

21. Nillumbik Shire Council, Nillumbik Tree Management Guidelines 2015 (2017) 7 <www.nillumbik.vic.gov.au/Council/Council-property/Maintenance>.

    ↑

22. Standards Australia Pruning of Amenity Trees (AS 4373-2007) (Sydney, NSW: Standards Australia, 2007) [4]. The objective of the standard is to ‘provide arborists, tree workers, government departments, property owners, and contractors with a guide defining uniform tree pruning procedures and practices in order to minimize the adverse or negative impact of pruning on trees’. Part 3.5 defines a ‘branch’ as ‘a lateral shoot on a main axis such as trunk or another branch. A branch arising off a trunk is a first order branch. A branch arising off a first order branch is a second order branch and so on. Second and successive orders of branches may be referred to as ‘lateral branches’.’

    ↑

23. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, Issues Paper No 72 (2015) 48.

    ↑

24. Department of Justice and Attorney General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) 35.

    ↑

25. Ibid 40; Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, Report No 72 (2015) 74. See Chapter 4 for a more comprehensive review of relevant legislation.

    ↑

26. Department of Justice and Attorney General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) 40.

    ↑

27. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 4.

    ↑

28. Ibid s 4(1).

    ↑

29. Queensland Government, Your Responsibilities as a Tree Keeper (20 October 2015) <www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings/avoiding-fence-tree-and-building-disputes/your-responsibilities-as-a-tree-keeper/>.

    ↑

30. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, Report No 72 (2015) 74. Queensland Planning Provisions are made under s 54 of the Sustainable Planning Act 2009 (Qld).

    ↑

31. Neighbourhood Disputes About Plants Act 2017 (Tas) ss 5, 9.

    ↑

32. Ibid s 5(1)(b).

    ↑

33. Tasmania, Parliamentary Debates, House of Assembly, 4 April 2017, 3 (Rene Hidding); Neighbourhood Disputes About Plants Bill 2017 (Tas).

    ↑

34. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 4(3); Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 47(1); Neighbourhood Disputes About Plants Act 2017 (Tas) s 4(4).

    ↑

35. Margaret Davies and Kynan Rogers, ‘Tale of a Tree’ (2014) 16 Flinders Law Journal 43; Permanent Trustee Australia v Shand (1992) 27 NSWLR 426; Clos Farming Estates Pty Ltd v Easton (2002) 11 BPR 20, 605. By contrast, a tree that becomes severed from the land is considered a chattel, as it can be moved.

    ↑

36. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 4(3).

    ↑

37. [2007] NSWLEC 292 (24 May 2007).

    ↑

38. Ibid [11]. See also Dive v Lin [2017] NSWLEC 1348 (3 July 2017) [11].

    ↑

39. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 47.

    ↑

40. Neighbourhood Disputes About Plants Act 2017 (Tas) s 4(4).

    ↑

41. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 8.

    ↑

42. Robson v Leischke (2008) 72 NSWLR 98 [157]. See also Dive v Lin [2017] NSWLEC 1348 (3 July 2017).

    ↑

43. [2017] NSWLEC 1348 (3 July 2017).

    ↑

44. Ibid [15]–[17]. See also Barker v Kyriakides [2007] NSWLEC 292 (24 May 2007) [4]–[8], where the Court decided it could not intervene with respect to some trees that the affected neighbours alleged could potentially damage nearby council sewers that ran adjacent to their land.

    ↑

45. Dive v Lin [2017] NSWLEC 153 (16 November 2017).

    ↑

46. New South Wales Land and Environment Court, Annotated Trees Act January 2013 (1 September 2016) 8 <www.lec.justice.nsw.gov.au/Pages/types_of_disputes/class_2/Trees-hedge-disputes-process/Treedisputes-helpfulmaterials/treedisputes_helpfulmaterial.aspx>.

    ↑

47. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 46.

    ↑

48. Ibid s 15.

    ↑

49. Neighbourhood Disputes About Plants Act 2017 (Tas) s7(6).

    ↑

50. Ibid.

    ↑

51. Tasmania, Parliamentary Debates, House of Assembly, 4 April 2017, 1 (Rene Hidding) 4.

    ↑

52. See, eg, Russell v Parsons [2009] NSWLEC 1026 (6 February 2009).

    ↑

53. Stockwell v Victoria [2001] VSC 497 (17 December 2001) [241].

    ↑

54. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 3 (‘owner of land’), s 7.

    ↑

55. Treeves v Hedge [2010] NSWLEC 1344 (10 December 2010) [17]–[21].

    ↑

56. In relation to registered freehold land.

    ↑

57. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 49.

    ↑

58. Ibid s 62(2); Queensland Civil and Administrative Tribunal, FAQ—Tree Disputes <www.qcat.qld.gov.au/resources/faqs/faq-tree-disputes>.

    ↑

59. An owner of land is considered to be a person with joint or several freehold possession of land; a life tenant; the lessee of a lease over
    
    99 years; licensees with a right to occupy or manage Crown land; a body corporate, or any other person with an interest in the land prescribed under the Regulations: Neighbourhood Disputes About Plants Act 2017 (Tas) s 3.

    ↑

60. Within 42 days of the request being made: Neighbourhood Disputes About Plants Act 2017 (Tas) s 23(4).

    ↑

61. Ibid s 3.

    ↑

62. Tasmania, Parliamentary Debates, House of Assembly, 4 April 2017, 1 (Rene Hidding) 4.

    ↑

63. This is discussed in more detail at [3.125]–[3.139].

    ↑

64. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 3 (‘owner of land’); see, eg, s 14E.

    ↑

65. In contrast to Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 53.

    ↑

66. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 48.

    ↑

67. Ibid s 53.

    ↑

68. Neighbourhood Disputes About Plants Act 2017 (Tas).

    ↑

69. ‘An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.’: Trees (Disputes Between Neighbours) Act 2006 (NSW) s 7.

    ↑

70. Robson v Leischke (2008) 72 NSWLR 98 [168]–[173].

    ↑

71. See tree dispute principle following Barker v Kyriakides [2007] NSWLEC 292 (24 May 2007) and Hendry v Olsson [2010] NSWLEC 1302 (14 October 2010). Commentary in the NSW Annotated Act suggests, however, that these circumstances could constitute damage if the applicant is able to convince the Court that ‘exceptional circumstances’ are present—’There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the applicant has convinced the Court of exceptional circumstances’: New South Wales Land and Environment Court, Annotated Trees Act January 2013 (1 September 2016) 9. However, this is not explicitly stated in the Act itself.

    ↑

72. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 46(a)(ii)(B).

    ↑

73. The obstruction of sunlight and views fits into the category of substantial, ongoing and unreasonable interference in the Queensland scheme.

    ↑

74. Ferraro v Body Corporate of ‘Omaru’ Brisbane City Council [2013] QCAT 343 (3 July 2013); Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 7(1)(b)(ii)–(iii).

    ↑

75. Oberhoffer v Tarlton [2013] QCAT 495 [18] (19 September 2013). The affected neighbour also told QCAT that ‘[f]ronds and debris fall from the trees on to the tin garage roof, causing noise at night’, but this aspect of the claim was determined by QCAT not to constitute substantial ongoing unreasonable interference: [2], [19].

    ↑

76. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, Report No 72 (2015) [3.551].

    ↑

77. Although what would constitute damage that is ‘serious’ remains undefined: Neighbourhood Disputes About Plants Act 2017 (Tas) ss 7, 7(1)(b)(ii)–(iii).

    ↑

78. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 7.

    ↑

79. An example is found in the English case of Crowhurst v Amersham Burial Board (1878) 4 Ex D 5, where branches of a tree, the leaves and branches of which were poisonous to stock, projected over the neighbour’s land and were eaten by the neighbour’s horse, which later died from poisoning. This was found to constitute nuisance at common law.

    ↑

80. Robson v Leischke (2008) 72 NSWLR 98 [162]–[167].

    ↑

81. See Lee v Martin [2010] NSWLEC 1146 (11 June 2010) (garden plants); McHugh v Schmiedte [2010] NSWLEC 1163 (28 June 2010) (outdoor furniture); Russell v Parsons [2009] NSWLEC 1026 (6 February 2009) (car).

    ↑

82. Ding v Phillips [2008] NSWLEC 1268 (3 July 2008); Payn v Allen [2010] NSWLEC 1315 (15 Nov 2010).

    ↑

83. Robson v Leischke (2008) 72 NSWLR 98 [166]; Ardagh v Ellston [2012] NSWLEC 1235 (23 August 2010) [41]–[42].

    ↑

84. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 46; Neighbourhood Disputes About Plants Act 2017 (Tas) s 7(1)(b)(ii): ‘property’ is not defined.

    ↑

85. See Moreno v Parer [2017] QCAT 223 (12 June 2017) 18.

    ↑

86. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 10(2)(a); Yang v Scerri [2007] NSWLEC 592 (31 August 2007).

    ↑

87. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 46(a)(ii)(A).

    ↑

88. Neighbourhood Disputes About Plants Act 2017 (Tas) s 7(b)(2ii).

    ↑

89. Trees (Disputes Between Neighbours) Act 2006 (NSW) pt 2; Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 46; Neighbourhood Disputes About Plants Act 2017 (Tas) s 7(1)(b).

    ↑

90. A specific example in the Victorian context is pollen from trees, which is known to cause hay fever, and may need to be considered. In New South Wales, hay fever was put forward by community members as a type of interference caused by trees: New South Wales Law Reform Commission, Neighbour and Neighbour Relations, Report No 88 (1998) [2.16].

    ↑

91. See, eg, Workplace Injury Rehabilitation and Compensation Act 2013 (Vic); Transport Accident Act 1986 (Vic); Wrongs Act 1958 (Vic).

    ↑

92. See, eg, Tuft v Piddington [2008] NSWLEC 1249 (3 June 2008) where the injury was an asthmatic reaction to pollen.

    ↑

93. New South Wales Land and Environment Court, Practice Note — Class 2 Tree Applications, 13 May 2014, [15] sch B; New South Wales Land and Environment Court, Annotated Trees Act January 2013 (1 September 2016) 10. Without this evidence, injury as a consequence of the tree concerned will not be successfully made out. See, eg, Hurditch v Staines [2008] NSWLEC 1351 (22 August 2008); Oakey v Owners Corporation Strata Plan 22678; Oakey v Owners Corporation Strata Plan 5723 [2009] NSWLEC 1108 (19 March 2009); Turner v O’Donnell [2009] NSWLEC 1349 (9 October 2009).

    ↑

94. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 10(2)(b); Neighbourhood Disputes About Plants Act 2017 (Tas) s 7(1)(b)(i).

    ↑

95. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 4 (‘injury’); Leonardi v Watson [2015] QCATA 192 (22 Dec 2015) [11].

    ↑

96. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 7 (‘any person’) and Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 48 (‘a person on the land’); Neighbourhood Disputes About Plants Act 2017 (Tas) s 7(1)(b)(i).

    ↑

97. [2007] NSWLEC 357 (15 June 2007).

    ↑

98. [2010] NSWLEC 1024 (27 January 2010).

    ↑

99. Neighbourhood Disputes About Plants Act 2017 (Tas) s 7(6).

    ↑

100. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 10(2)(b).

     ↑

101. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 46(a)(ii)(A); Neighbourhood Disputes About Plants Act 2017 (Tas)
     
     s 7(1)(b)(i).

     ↑

102. Finch v Grahle [2017] QCAT 80 (14 March 2017).

     ↑

103. Land and Environment Court Act 1979 (NSW) s 12; New South Wales Land and Environment Court, Annual Review (2015); New South Wales Land and Environment Court, Who’s Who in Court <www.lec.justice.nsw.gov.au/Pages/coming_to_the_court/whos_who.aspx>.

     ↑

104. New South Wales Land and Environment Court, Annotated Trees Act January 2013 (1 September 2016) 12.

     ↑

105. For a full list of matter types, see Queensland Civil and Administrative Tribunal, Matter Types <www.qcat.qld.gov.au/matter-types>.

     ↑

106. Queensland Civil and Administrative Tribunal, Organisational Structure <www.qcat.qld.gov.au/about-qcat/organisational-structure>.

     ↑

107. Resource Management and Planning Appeal Tribunal, Annual Report 2014–2015 (2015) 7.

     ↑

108. ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 16, 18. Actions in negligence and trespass can also be brought but as
     
     explained in Ch 3, nuisance is the more common cause of action for tree disputes. See, eg, Campbell v Blackshaw (Appeal) [2017] ACAT 64 (30 August 2017).

     ↑

109. Campbell v Blackshaw (Appeal) [2017] ACAT 95 (2 November 2016).

     ↑

110. A full list of actionable neighbour disputes is listed in s 4 of the Community Disputes Resolution Act (Singapore, 2015 rev ed).

     ↑

111. Community Disputes Resolution Act (Singapore, 2015 rev ed) s 14.

     ↑

112. Court proceedings are discussed at [3.65]–[3.80].

     ↑

113. Department of Justice and Regulation (Vic), Access to Justice Review (2017).

     ↑

114. Magistrates’ Court Act 1989 (Vic) ss 100(1)(a)–(b); 3(1) (‘jurisdictional limit’).

     ↑

115. Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 38.0.

     ↑

116. Ibid r 4.08. Injunctions may only be granted where a person intends to bring proceedings and undertakes to do so within such time as the court directs.

     ↑

117. An inferior court exercising equitable jurisdiction has the same power to grant equitable relief, redress or remedy as the Supreme Court would have in a like case: Supreme Court Act 1986 (Vic) s 31.

     ↑

118. See generally Civil Procedure Act 2010 (Vic) pt 4.2.

     ↑

119. Ibid s 48(2)(c).

     ↑

120. Unless the Court determines otherwise, or if the parties’ application to have the matter heard without arbitration is approved by the Court: Magistrates’ Court Act 1989 (Vic) s 102(1)–(3).

     ↑

121. Ibid s 103(2).

     ↑

122. Magistrates’ Court of Victoria, Annual Report 2014–2015 (2015) 27.

     ↑

123. See Magistrates’ Court of Victoria, Annual Report 2014–2015 (2015). See also Magistrates’ Court of Victoria, Information Guide: Fencing Disputes <www.magistratescourt.vic.gov.au/publication/mcv-information-guide-fencing-disputes>.

     ↑

124. Magistrates’ Court of Victoria, Fencing Disputes <www.magistratescourt.vic.gov.au/jurisdictions/civil/fencing-disputes>.

     ↑

125. Department of Justice and Regulation (Vic), Fencing Law in Victoria (12 October 2017) <www.justice.vic.gov.au/home/justice+system/laws+and+regulation/civil+law/fencing+law+in+victoria>.

     ↑

126. Magistrates’ Court of Victoria, Annual Report 2014–2015 (2015) 1.

     ↑

127. Magistrates’ Court of Victoria, Specialist Jurisdictions <www.magistratescourt.vic.gov.au/jurisdictions/specialist-jurisdictions>.

     ↑

128. Magistrates’ Court Act 1989 (Vic) ss 4M, 4O; Magistrates’ Court (Miscellaneous Civil Proceedings) Rules 2010 (Vic) r 11.02(a).

     ↑

129. Department of Justice and Regulation (Vic), Access to Justice Review Background Paper—Self-Represented Litigants (2015) 2.

     ↑

130. Magistrates’ Court of Victoria, Annual Report 2014–2015 (2015) 15.

     ↑

131. Department of Justice and Regulation (Vic), Access to Justice Review Summary and Recommendations (2016) 40 (Recommendation 8.5).

     ↑

132. Magistrates’ Court Act 1989 (Vic) s 107.

     ↑

133. See Magistrates’ Court General Civil Procedure Rules 2010 (Vic) o 50; Magistrates’ Court of Victoria, Mediation Process 2011—Single List of External Mediators (2017) <www.magistratescourt.vic.gov.au/ jurisdictions/civil/procedural-information/mediation-process-2011-single-list-external-mediators>.

     ↑

134. Magistrates’ Court of Victoria, Annual Report 2014–2015 (2015) 29.

     ↑

135. Magistrates’ Court Act 1989 (Vic) ss 107, 107(2)(a); Magistrates’ Court of Victoria, Pre-Hearing Conferences and Mediation (2017)
     
     <www.magistratescourt.vic.gov.au/procedural-information/ pre-hearing-conferences-and-mediation>.

     ↑

136. Magistrates’ Court Act 1989 (Vic) s 108(1).

     ↑

137. This is the Court Civil Claims program referred to at [3.59]. ‘Most defended civil claims in the Magistrates’ Court of less than $40,000 value (or of any value when they relate to an incorporated association) are referred to mediation conducted by the Dispute Settlement Centre of Victoria’: Department of Justice and Regulation (Vic), Access to Justice Review Report and Recommendations, (2016) vol 1,202.

     ↑

138. Dispute Settlement Centre of Victoria, Frequently Asked Questions <www.disputes.vic.gov.au/frequently-asked-questions>.

     ↑

139. Magistrates’ Court of Victoria, Court Fees and Costs Ready Reckoner (effective 1 July 2017).

     ↑

140. Magistrates’ Court of Victoria, Mediation Process 2011—Single List of External Mediators (2017) <www.magistratescourt.vic.gov.au/ jurisdictions/civil/procedural-information/mediation-process-2011-single-list-external-mediators>.

     ↑

141. Magistrates’ Court of Victoria, Annual Report 2014–2015 (2015) 29. The Magistrates’ Court website states that the standard court procedure is that once the court indicates that a matter is suitable for mediation, the parties have 21 days to raise any concerns. After
     
     21 days have passed, the court will make a mediation order, and within 14 days the parties nominate a mediator or the court appoints one from a list of approved mediators. Once the parties agree on a mediator, mediation is to be completed within 30 days.

     ↑

142. Magistrates’ Court of Victoria, Mediation Process 2011—Single List of External Mediators (2017) <www.magistratescourt.vic.gov.au/ jurisdictions/civil/procedural-information/mediation-process-2011-single-list-external-mediators>. Early Neutral Evaluation was recognised as a permanent feature of the Magistrates’ Court’s alternative dispute resolution processes pursuant to Magistrates’ Court of Victoria, Practice Direction No 7 — Early Neutral Evaluation, 10 September 2012.

     ↑

143. Magistrates’ Court of Victoria, Annual Report 2014–2015 (2015) 29.

     ↑

144. See Magistrates’ Court of Victoria, Court Fees and Costs Ready Reckoner (effective 1 July 2017).

     ↑

145. Magistrates’ Court Act 1989 (Vic) s 16K.

     ↑

146. As to appeals to the County Court of Victoria, see: County Court Civil Procedure Rules 2008 (Vic) o 58.01(a). As to appeals to the Supreme Court of Victoria, see: Magistrates’ Court Act 1989 (Vic) s 109.

     ↑

147. Magistrates’ Court Act 1989 (Vic) s 109(1). These matters will be heard in the Supreme Court Judicial Review and Appeals List. See Supreme Court of Victoria, Practice Note SC CL 9 — Judicial Review and Appeals List, 20 January 2017. See, eg, City of Richmond v Scantlebury [1991] 2 VR 3. A question of law, also known as a ‘legal error’, is ‘a question to be resolved by applying legal principles, rather than by determining a factual situation; an issue involving the application or interpretation of a law and reserved for a judge’: Peter Butt (ed) Butterworths’ Concise Australian Legal Dictionary (Lexis Nexis, 3rd ed, 2004) ‘question of law’.

     ↑

148. County Court Civil Procedure Rules 2008 (Vic) r 34A.04. The eight lists are as follows: General List; Defamation List; Family Property List; General List; Medical List; Serious Injury Applications List; WorkCover List; Confiscation List.

     ↑

149. See, eg, Owners’ Corporation SP020030 v Keyt [2016] VCC 1656 (24 October 2016).

     ↑

150. ‘Uplifted’, where matters have a complexity or value more suited to the County Court jurisdiction; see [3.73].

     ↑

151. County Court of Victoria, Practice Note No 3 of 2017 — Operation and Management of the Lists within the Common Law Division, 23 August 2017, 3.1. ‘Practice Notes provide information about the Court’s practice and procedure. They also set out the Court’s expectations of parties coming before the Court. While they do not have the force of law, lawyers with the conduct of proceedings are expected to be familiar with their content and follow their requirements where applicable. The Court may take a failure to comply with a Practice Note into account in the exercise of its case management and costs powers’: Supreme Court of Victoria, Practice Note SC Gen 1 — Practice Notes and Notice to the Profession, 30 January 2017, 4.3.

     ↑

152. County Court of Victoria, Court Locations <www.countycourt.vic.gov.au/court-locations>.

     ↑

153. Ibid; County Court of Victoria, County Koori Court <www.countycourt.vic.gov.au/county-koori-court>.

     ↑

154. See County Court of Victoria, Practice Note No 5 of 2016 — Common Law Division—Self Represented Litigation, 26 May 2016.

     ↑

155. Ibid 20(ii).

     ↑

156. Ibid 15.

     ↑

157. County Court of Victoria, Practice Note No 3 of 2017 — Operation and Management of the Lists within the Common Law Division, 23 August 2017, 6.1.

     ↑

158. County Court of Victoria, Are You Representing Yourself? <www.countycourt.vic.gov.au/are-you-representing-yourself>. See also County Court of Victoria, Self-Represented Litigants—County Court of Victoria (April 2017), Vimeo <https://vimeo.com/211592938>.

     ↑

159. County Court of Victoria, A Guide for Self-Represented Litigants in the Civil Jurisdiction of the County Court (23 October 2014) <www.countycourt.vic.gov.au/are-you-representing-yourself>.

     ↑

160. VCAT is discussed below at [6.153]–[6.191].

     ↑

161. Department of Justice and Regulation (Vic), Access to Justice Review Background Paper—Self-Represented Litigants 3, 9.

     ↑

162. Department of Justice and Regulation (Vic), Access to Justice Review Summary and Recommendations (2016) Recommendations 8.1–8.2, 8.4.

     ↑

163. County Court of Victoria, Civil Jurisdiction <www.countycourt.vic.gov.au/civil-jurisdiction>.

     ↑

164. The County Court Standard Mediation Process provides that all proceedings in the Common Law Division, General and Applications Lists will be referred to a mediation. The County Court website details external accredited mediators, including the Victorian Bar, Law Institute
     
     of Victoria ADR Mediation Service, The Institute of Arbitrators & Mediators Australia and LEADR: County Court of Victoria, Mediation <www.countycourt.vic.gov.au/mediation>.

     ↑

165. County Court Act 1958 (Vic) s 47A. See also County Court Civil Procedure Rules 2008 (Vic) rr 50.07, 50.07.1, 34A.21.

     ↑

166. The Standard Mediation Procedures document can be downloaded from County Court of Victoria, Mediation <www.countycourt.vic.gov.au/mediation>.

     ↑

167. County Court of Victoria, Practice Note No 3 of 2017 — Operation and Management of the Lists within the Common Law Division, 23 August 2017, 29.1.

     ↑

168. County Court Act 1958 (Vic) s 47A; County Court Civil Procedure Rules 2008 (Vic) r 50.07.

     ↑

169. County Court of Victoria, Practice Note No 5 of 2016 — Common Law Division: Self Represented Litigation, 26 May 2016, 47.

     ↑

170. Ibid 48.

     ↑

171. A judicial officer is a judge of the court, associate judge, or judicial registrar.

     ↑

172. Department of Justice and Regulation (Vic), Access to Justice Review Report and Recommendations, vol 1 (2016) 203.

     ↑

173. County Court Act 1958 (Vic) s 74.

     ↑

174. Ibid s 75.

     ↑

175. Supreme Court of Victoria, About the Court (19 April 2017) <www.supremecourt.vic.gov.au/home/about+the+court/>.

     ↑

176. See, eg Barton v Chhibber [1988] Aust. Torts Reports 67, 745 where damage to property as a result of tree roots formed a counter claim.

     ↑

177. Supreme Court of Victoria, Major Torts List (19 September 2017) <www.supremecourt.vic.gov.au/home/law+and+practice/specialist+areas+of+law/major+torts/>.

     ↑

178. Supreme Court of Victoria, Practice Note SC CL 4 — Major Torts List, 30 January 2017.

     ↑

179. Ibid 4.1.

     ↑

180. Ibid 4.2(c).

     ↑

181. Ibid 4.2(d).

     ↑

182. Ibid 4.2(e).

     ↑

183. Ibid 4.2(f).

     ↑

184. Ibid 4.5.

     ↑

185. Supreme Court of Victoria, Regional Circuit Court Calendar (20 June 2017) <www.supremecourt.vic.gov.au/home/going+to+court/court+calendar/regional+circuit+court+calendar/>.

     ↑

186. Supreme Court of Victoria, Representing Yourself (17 August 2017) <www.supremecourt.vic.gov.au/home/going+to+court/representing+yourself/>.

     ↑

187. Ibid.

     ↑

188. Department of Justice and Regulation (Vic), Access to Justice Review Background Paper—Self-Represented Litigants 4–5.

     ↑

189. Supreme Court of Victoria, Fees (2 June 2017) <www.supremecourt.vic.gov.au/home/forms+fees+and+services/fees/>.

     ↑

190. Supreme Court of Victoria, Practice Note SC Gen 6 — Judicial Mediation Guidelines, 30 January 2017, 4.1.

     ↑

191. Ibid; Civil Procedure Act 2010 (Vic) s 66; Supreme Court (General Civil Procedure) Rules 2015 (Vic) o 50. For more information about judicial mediation, see [6.135].

     ↑

192. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 50.07; Supreme Court of Victoria, Fees (2 June 2017) <www.supremecourt.vic.gov.au/home/forms+fees+and+services/fees/>.

     ↑

193. Supreme Court of Victoria, Practice Note SC Gen 6 — Judicial Mediation Guidelines, 30 January 2017.

     ↑

194. Ibid.

     ↑

195. Supreme Court of Victoria, About the Court (19 April 2017) <www.supremecourt.vic.gov.au/home/about+the+court/>.

     ↑

196. Except appeals against a refusal to grant habeas corpus and appeals under the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic).

     ↑

197. Supreme Court of Victoria, Court of Appeal—Civil Appeals (29 June 2017) <www.supremecourt.vic.gov.au/home/law+and+practice/court+of+appeal/civil+appeals/>.

     ↑

198. Barton v Chhibber [1988] Aust. Torts Reports [1988] 67, 745.

     ↑

199. But note City of Richmond v Scantlebury [1991] 2 VR 3, transferred from the Magistrates’ Court.

     ↑

200. Court (Case Transfer) Act 1991 (Vic) s 16.

     ↑

201. Ibid.

     ↑

202. Department of Justice and Regulation (Vic), Access to Justice Review Report and Recommendations, vol 1 (2016) 245.

     ↑

203. Ibid. These lists are not exhaustive.

     ↑

204. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 3 (‘enabling enactment’). See Victorian Civil and Administrative Tribunal, Annual Report 2015–16 (2016) 58.

     ↑

205. Generally considered to be claims not exceeding $10,000. ‘This is consistent with the definition of a ‘small claim’ in Part 2AB of Schedule 1 of the Victorian Civil and Administrative Act 1998 which applies to proceedings under the Australian Consumer Law and Fair Trading Act 2012; and Part 5 of the Magistrates’ Court Act 1989’: Department of Justice and Regulation (Vic), Access to Justice Review Background Paper —VCAT n 5.

     ↑

206. Ibid 3.

     ↑

207. Victorian Civil and Administrative Tribunal, Annual Report 2015–16 (2016) 33. This presents an overlap between the VCAT and Magistrates’ Court jurisdictions. This is discussed in further detail below at [6.183]–[6.186].

     ↑

208. Victorian Civil and Administrative Tribunal, Who We Are <www.vcat.vic.gov.au/about-us/who-we-are>.

     ↑

209. Victorian Civil and Administrative Tribunal, About VCAT <www.vcat.vic.gov.au/about-vcat>; Victorian Civil and Administrative Tribunal, Annual Report 2015–16 (2016) 33.

     ↑

210. Department of Justice and Regulation (Vic), Access to Justice Review Report and Recommendations, vol 1 (2016) 283–3.

     ↑

211. Victorian Civil and Administrative Tribunal, VCAT Fees Table (4 July 2017) <www.vcat.vic.gov.au/resources/vcat-fee-tables-effective-1-july-2017>.

     ↑

212. In the form of common law nuisance or negligence.

     ↑

213. Victorian Civil and Administrative Tribunal, Annual Report 2015–16 (2016) 6.

     ↑

214. Ibid.

     ↑

215. Victorian Civil and Administrative Tribunal, Member Competency Framework (2010) 4.

     ↑

216. Victorian Civil and Administrative Tribunal, Contact us <www.vcat.vic.gov.au/contact-us>.

     ↑

217. Neighbourhood Justice Centre, At Court (19 December 2014) <www.neighbourhoodjustice.vic.gov.au/home/court/at+court/index.html>.

     ↑

218. Victorian Civil and Administrative Tribunal, Submission No 34 to Victorian Government, Access to Justice Review, 2016, 1.

     ↑

219. Victorian Civil and Administrative Tribunal, Steps to Resolve Your Case <www.vcat.vic.gov.au/steps-to-resolve-your-case>.

     ↑

220. Department of Justice and Regulation (Vic), Access to Justice Review Background Paper —Self-Represented Litigants 4; Victorian Civil and Administrative Tribunal, About VCAT <www.vcat.vic.gov.au/about-vcat>.

     ↑

221. Department of Justice and Regulation (Vic), Access to Justice Review Report and Recommendations, vol 1 (2016) 113.

     ↑

222. Department of Justice and Regulation (Vic), Access to Justice Review Background Paper —Self-Represented Litigants 5.

     ↑

223. Department of Justice and Regulation (Vic), Access to Justice Review Report and Recommendations, vol 1 (2016) 204.

     ↑

224. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 83; Department of Justice and Regulation (Vic), Access to Justice Review Report and Recommendations, (2016) vol 1 204–5; Victorian Civil and Administrative Tribunal, Compulsory Conferences <www.vcat.vic.gov.au/steps-to-resolve-your-case/resolve-a-case-by-agreement/compulsory-conferences>.

     ↑

225. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 88; Department of Justice and Regulation (Vic), Access to Justice Review Report and Recommendations, (2016) vol 1 204–5; Victorian Civil and Administrative Tribunal, Mediations <www.vcat.vic.gov.au/steps-to-resolve-your-case/resolve-a-case-by-agreement/mediations>.

     ↑

226. Department of Justice and Regulation (Vic), Access to Justice Review Report and Recommendations, vol 1 (2016) 204–5; Victorian Civil and Administrative Tribunal, Mediations <www.vcat.vic.gov.au/steps-to-resolve-your-case/resolve-a-case-by-agreement/mediations>.

     ↑

227. Victorian Civil and Administrative Tribunal, Consent Orders <www.vcat.vic.gov.au/steps-to-resolve-your-case/resolve-a-case-by-agreement/consent-orders>.

     ↑

228. Department of Justice and Regulation (Vic), Access to Justice Review Report and Recommendations, (2016) vol 1 Recommendation 4.3

     ↑

229. Victorian Civil and Administrative Tribunal, Annual Report 2015–16 (2016) 6.

     ↑

230. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1).

     ↑

231. Victorian Civil and Administrative Tribunal, Annual Report 2015–16 (2016) 6.

     ↑

232. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148.

     ↑

233. Ibid s 148(2).

     ↑

234. Victorian Civil and Administrative Tribunal, Appeal a VCAT Decision <www.vcat.vic.gov.au/steps-to-resolve-your-case/what-to-expect-after-the-final-hearing/appeal-a-vcat-decision>.

     ↑

235. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(3)(a).

     ↑

236. Department of Justice and Regulation (Vic), Access to Justice Review Background Paper—VCAT 4.

     ↑

237. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s cl 4I of sch 1; Department of Justice and Regulation (Vic), Access to Justice Review Background Paper—VCAT 4.

     ↑

238. Department of Justice and Regulation (Vic), Access to Justice Review Background Paper—VCAT 4.

     ↑

239. Law Reform Committee, Parliament of Victoria, Review of the Fences Act 1968 (1998) 2.32.

     ↑

240. Victorian Government, Government Response to the Victorian Law Reform Committee Review of the Fences Act 1968 (2001) 1–2.

     ↑

241. These limit the court’s valid exercise of power to meet the ‘description of the action to which the legislation in question attaches a legal consequence’: Mark Leeming, ‘The Riddle of Jurisdictional Error’ (2014) 38 Australian Bar Review 152.

     ↑

242. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 8.

     ↑

243. Ibid.

     ↑

244. Ibid s 10(2).

     ↑

245. Aarons v MacDonell as Executor to the Estate of the late Ronald Ayres [2015] NSWLEC 1058 (18 March 2015) [15].

     ↑

246. Robson v Leischke (2008) 72 NSWLR 98 [195].

     ↑

247. Ibid citing Antipas v Kutcher (2006) 144 LGERA 289, 293 [14].

     ↑

248. Aarons v MacDonell as Executor to the Estate of the late Ronald Ayres [2015] NSWLEC 1058 (18 March 2015) [15].

     ↑

249. Robson v Leischke (2008) 72 NSWLR 98 [176]–[189].

     ↑

250. Smith v Zhang [2011] NSWLEC 29 (4 March 2011) [62] (Craig J).

     ↑

251. (2008) 72 NSWLR 98 [189].

     ↑

252. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 65.

     ↑

253. Wiseman v RPD Qld Pty Ltd [2017] QCAT 81 (9 March 2017).

     ↑

254. Queensland Civil and Administrative Tribunal, Tree Dispute Resolution (March 2017) version 4, 1.

     ↑

255. Moreno v Parer [2017] QCAT 223 (12 June 2017) [24].

     ↑

256. Neighbourhood Disputes About Plants Act 2017 (Tas) s 24.

     ↑

257. Ibid s 26(1)(a)–(b). A history of threats of violence between the parties, and any prior attempt at alternative dispute resolution will inform the Tribunal’s decision to refer the parties to resolve the dispute themselves.

     ↑

258. See [6.193], [6.196].

     ↑

259. Neighbourhood Disputes About Plants Act 2017 (Tas) ss 26(2)(a)–(b).

     ↑

260. Ibid s 26(3).

     ↑

261. Civil Procedure Act 2010 (Vic) s 1.

     ↑

262. Ibid s 22.

     ↑

263. Ibid s 23.

     ↑

264. Ibid s 3.

     ↑

265. Department of Justice and Regulation (Vic), Access to Justice Review Report and Recommendations, vol 1 (2016) 204.

     ↑

266. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 14F; Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 73(1); Neighbourhood Disputes About Plants Act 2017 (Tas) s 30.

     ↑

267. Neighbourhood Disputes About Plants Act 2017 (Tas) s 30.

     ↑

268. Sub-sections relating solely to claims about sunlight and/or views have been removed.

     ↑

269. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 73(1)(c).

     ↑

270. Ibid s 73(3).

     ↑

271. Neighbourhood Disputes About Plants Act 2017 (Tas) s 32(f).

     ↑

272. Ibid s 31(2)(a)–(d).

     ↑

273. Trees (Disputes Between Neighbours) Act 2006 (NSW) ss 9, 14D.

     ↑

274. Ibid s 14D; Department of Justice and Attorney General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) 8.

     ↑

275. Department of Justice and Attorney General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) 8.

     ↑

276. New South Wales Land and Environment Court, Annotated Trees Act January 2013 (1 September 2016).

     ↑

277. ‘Costs refer to the financial outlay incurred by a party in defending or pursuing proceedings before the Tribunal. Costs may include the retaining of a solicitor/barrister to act for a party, retaining an expert witness to give evidence or retaining a planning consultant to assist a party in an appeal. It may also include disbursements such as photocopying and faxing’: Resource Management and Planning Appeal Tribunal, Practice Direction No 15 — Costs, amended 1 March 2016, 15.2.

     ↑

278. Fang v Li [2017] NSWLEC 1503 (19 September 2017) [11].

     ↑

279. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 15.

     ↑

280. Ibid s 17.

     ↑

281. Ibid ss 17(8), 17A.

     ↑

282. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 66.

     ↑

283. Ibid s 66; Queensland Government, What to Do If a Neighbour’s Tree is Affecting You (30 October 2015) <www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings/resolving-tree-and-fence-disputes/what-to-do-if-a-neighbours-tree-is-affecting-you/>.

     ↑

284. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 69.

     ↑

285. Ibid s 68.

     ↑

286. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102(1).

     ↑

287. Ibid s 102(3).

     ↑

288. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 77.

     ↑

289. Ibid s 88.

     ↑

290. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, Report No 72 (2015) [5.93].

     ↑

291. Ibid [5.94].

     ↑

292. Neighbourhood Disputes About Plants Act 2017 (Tas) s 33(1)–(6).

     ↑

293. Resource Management and Planning Appeal Tribunal Act 1993 (Tas) s 28(1)–(2). See also Resource Management and Planning Appeal Tribunal, Practice Direction No 15 — Costs, amended 1 March 2016.

     ↑

294. Resource Management and Planning Appeal Tribunal Act 1993 (Tas) s 28(3).

     ↑

295. Ibid s 33(6). Orders that the tribunal can make are not limited to these examples.

     ↑

296. Ibid s 34(1).

     ↑

297. Resource Management and Planning Appeal Tribunal, Practice Direction No 14 — Civil Enforcement Proceedings, amended 1 March 2016, 14.12.

     ↑

298. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 5.

     ↑

299. (2008) 72 NSWLR 98 [218]–[219].

     ↑

300. Ibid.

     ↑

301. Department of Justice and Attorney General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) 43. See, eg, Northern Beaches Council, Removing and Pruning Trees on Private Land (6 October 2017) <www.northernbeaches.nsw.gov.au/planning-development/tree-management/private-land>

     ↑

302. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 46(a)(ii)(C).

     ↑

303. Tasmanian Law Reform Institute, Problem Trees and Hedges: Access to Sunlight and Views, Report No 21 (2016) [1.1.5].

     ↑

304. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 54, 54(2); Queensland Government, Step-by-Step Guide to Resolving Tree and Fence Disputes (14 July 2017) <www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings/resolving-tree-and-fence-disputes/step-by-step-guide-to-resolving-tree-and-fence-disputes/>.

     ↑

305. Where tree branches are more than 2.5 m above the ground and overhang by at least 0.5 m, an application for a QCAT order can be made.

     ↑

306. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, Report No 72 (2015) [3.295], [3.299].

     ↑

307. Queensland Government, Form 3—Notice for Removal of Particular Overhanging Branches: Neighbourhood Disputes (Dividing Fences and Trees) Act 2011—Chapter 3 Part 4 (29 October 2015) <https://publications.qld.gov.au/dataset/notices-to-neighbours/resource/fef9779b-75b4-4e60-839b-f1c44123e147>.

     ↑

308. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 54; Queensland Government, Step-by-Step Guide to Resolving Tree and Fence Disputes (14 July 2017) <www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings/resolving-tree-and-fence-disputes/step-by-step-guide-to-resolving-tree-and-fence-disputes/>. In this statutory review, the Queensland Law Reform Commission rejected the introduction of a general right to the costs of any type of abatement (eg, abating the roots by installing a root barrier) because it ‘would operate inconsistently with the policy choices and the tight controls that inform and restrict the extent of the operation of the provisions in Part 4’: Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, Report No 72 (2015) [3.260].

     ↑

309. See, eg, Neighbourhood Disputes About Plants Act 2017 (Tas) s 21.

     ↑

310. Ibid ss 21–22.

     ↑

311. Ibid s 12.

     ↑

312. See paragraphs [6.244]–[6.246] and Neighbourhood Disputes About Plants Act 2017 (Tas) ss 20–22.

     ↑

313. Neighbourhood Disputes About Plants Act 2017 (Tas) s 20(9)–(10).

     ↑

314. Ibid s 21. This mirrors the limited right to recoup the cost of abating particular overhanging branches in Queensland: Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 8.

     ↑

315. Ibid s 22.

     ↑

316. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 18; New South Wales Land and Environment Court, Annotated Trees Act January 2013 (1 September 2016).

     ↑

317. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 14.

     ↑

318. Environmental Planning and Assessment Regulation 2000 (NSW), sch 4, pt 13; New South Wales Land and Environment Court, Annotated Trees Act January 2013 (1 September 2016) 26.

     ↑

319. Department of Justice and Attorney General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) 22 (Recommendation 6).

     ↑

320. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 67.

     ↑

321. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 67(3); Queensland Civil and Administrative Tribunal, Frequently Asked Questions—Tree Disputes (18 April 2017) <www.qcat.qld.gov.au/matter-types/tree-disputes/faq-tree-disputes>.

     ↑

322. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, Discussion Paper No 72 (2015) 71.

     ↑

323. Neighbourhood Disputes About Plants Act 2017 (Tas) s 14.

     ↑

324. Tasmania, Parliamentary Debates, House of Assembly, 4 April 2017, 6–7 (Rene Hidding).

     ↑

325. Tasmania Law Reform Institute, Problem Trees and Hedges: Access to Sunlight and Views, Report No 21 (2016) 5.4.121.

     ↑

326. Evidence Act 2008 (Vic) s 78(1).

     ↑

327. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, Report No 72 (2015) [3.444].

     ↑

328. See, eg, Marshall v Berndt [2011] VCC 384 (7 April 2011); Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478.

     ↑

329. Victorian Law Reform Commission, Civil Justice Review, Report No 14 (2008) 484–5, citing New South Wales Law Reform Commission, Expert Witnesses, Report No 109 (2005) 71–4; preliminary consultations with Arboriculture Australia (17 August 2017) and Victorian Tree Industry Organisation (VTIO) (22 August 2017). For a further analysis of expert witness bias, see Deirdre M Dwyer, ‘The Causes and Manifestations of Bias in Civil Expert Evidence’ (2007) 26 Civil Justice Quarterly 425.

     ↑

330. Judy Fakes, ‘What is Required of an Expert Witness?’ (Paper presented at Treenet Symposium, Sydney, 2011); preliminary consultations with Arboriculture Australia (17 August 2017) and Victorian Tree Industry Organisation (VTIO) (22 August 2017).

     ↑

331. See Judy Fakes, ‘What is Required of an Expert Witness?’ (Paper presented at Treenet Symposium, Sydney, 2011); Justice Stuart Morris, ‘Getting Real about Expert Evidence’ (Paper presented at the National Environment Law Association Limited, 2005 National Conference, Canberra, 13–15 July 2005).

     ↑

332. Except those found in Civil Procedure Act 2010 (Vic) ss 18, 19, 22, 16.

     ↑

333. Civil Procedure Act 2010 (Vic) s 16.

     ↑

334. Ibid s 17.

     ↑

335. Ibid s 21.

     ↑

336. Ibid s 23.

     ↑

337. See, eg, Form 44A–Expert Witness Code of Conduct, cl 1 in Magistrates’ Court General Civil Procedure Rules 2010 (Vic), County Court Civil Procedure Rules 2008 (Vic) and Supreme Court (General Civil Procedure) Rules 2015 (Vic).

     ↑

338. See o 44 and Form 44A–Expert Witness Code of Conduct, pt 3 in Magistrates’ Court General Civil Procedure Rules 2010 (Vic), County Court Civil Procedure Rules 2008 (Vic) and Supreme Court (General Civil Procedure) Rules 2015 (Vic); Douglas J James and James Fitzpatrick, ‘Effective Expert Witnesses’ (2016) 90(10) Law Institute Journal 27, 29.

     ↑

339. This list is not exhaustive.

     ↑

340. See o 44 and Form 44A–Expert Witness Code of Conduct, pt 3 in Magistrates’ Court General Civil Procedure Rules 2010 (Vic), County Court Civil Procedure Rules 2008 (Vic) and Supreme Court (General Civil Procedure) Rules 2015 (Vic).

     ↑

341. See, eg, Supreme Court of Victoria, Practice Note SC CR 3 — Expert Evidence in Criminal Trials, 30 January 2017; Supreme Court of Victoria, Practice Note SC CR 7 — Expert Reports on the Mental Functioning of Offenders, 1 July 2017. See also the corresponding County Court practice notes.

     ↑

342. Council Arboriculture Victoria guide relates primarily to reports in relation to development applications, but contains a general structure that could be adapted into reports in private disputes: Council Arboriculture Victoria, Arboricultural Reporting Guidelines for Developments (November 2009) <http://www.councilarboriculturevictoria.com.au/resources/>.

     ↑

343. Preliminary consultations with Arboriculture Australia (17 August 2017) and Victorian Tree Industry Organisation (VTIO) (22 August 2017).

     ↑

344. Although the Code of Conduct requires an expert witness to note their qualifications and expertise in their report: Form 44A–Expert Witness Code of Conduct, pt 3 in Magistrates’ Court General Civil Procedure Rules 2010 (Vic), County Court Civil Procedure Rules 2008 (Vic) and Supreme Court (General Civil Procedure) Rules 2015 (Vic).

     ↑

345. Uniform Civil Procedure Rules 2005 (NSW) rr 31.23(1), r 31.23(3)–(4), sch 7. People who owe a general duty to the court must not mislead the court.

     ↑

346. New South Wales Law and Environment Court, Experts and Expert Evidence (20 April 2015) <www.lec.justice.nsw.gov.au/Pages/coming_to_the_court/expert_witnesses.aspx>; New South Wales Land and Environment Court, Practice Note — Class 2 Tree Applications, 13 May 2014, [41]–[50].

     ↑

347. See generally Queensland Civil and Administrative Tribunal, Practice Direction 4 of 2009 — Expert Evidence, 11 November 2009. For an example of an Experts’ Conclave, see Cacopardo v Woolcock [2017] QCAT 214 (12 June 2017).

     ↑

348. Queensland Civil and Administrative Tribunal, Information Kit: Tree Assessors Expression of interest (EOI) (2013) <www.qcat.qld.gov.au/>.

     ↑

349. Ibid 3.

     ↑

350. Ibid 5.

     ↑

351. Queensland Civil and Administrative Tribunal, Practice Direction No 7 of 2013 — Arrangements for Applications for Orders to Resolve Other Issues about Trees, 3 April 2014.

     ↑

352. Queensland Civil and Administrative Tribunal, Information Kit: Tree Assessors Expression of interest (EOI) (2013) <www.qcat.qld.gov.au/>.

     ↑

353. Queensland Civil and Administrative Tribunal, Practice Direction No 7 of 2013 — Arrangements for Applications for Orders to Resolve Other Issues about Trees, 3 April 2014 [6]–[7]. QCAT may also vary these proportions and make different orders, ‘having regard to the contents of the application, any other submission or document filed in the proceedings and any other matter the Tribunal may consider relevant’: Queensland Civil and Administrative Tribunal, Practice Direction No 7 of 2013 — Arrangements for Applications for Orders to Resolve Other Issues about Trees, 3 April 2014 [7]. See also [13].

     ↑

354. Queensland Civil and Administrative Tribunal, Practice Direction No 7 of 2013 — Arrangements for Applications for Orders to Resolve Other Issues about Trees, 3 April 2014 [12].

     ↑

355. Resource Management and Planning Appeal Tribunal, Practice Direction No 12 — Expert Witnesses, amended 1 March 2016.

     ↑

356. Ibid, Appendix 12A–Expert Witness Code of Conduct, 2.

     ↑

357. Ibid [12.3(c)].

     ↑

358. Trees (Disputes Between Neighbours) Act 2006 (NSW) ss 16, 16(2); Department of Justice and Attorney General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) 23.

     ↑

359. New South Wales Land and Environment Court, Annotated Trees Act January 2013 (1 September 2016) 39.

     ↑

360. Department of Justice and Attorney General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) 23; Trees (Disputes Between Neighbours) Act 2006 (NSW) s 16A.

     ↑

361. Department of Justice and Attorney General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) 22, 23.

     ↑

362. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 84.

     ↑

363. Ibid s 85.

     ↑

364. Ibid s 86.

     ↑

365. Queensland Civil and Administrative Tribunal, Tree Order Register (27 January 2017) <www.qcat.qld.gov.au/matter-types/tree-disputes/tree-order-register>. The register can also be searched by parties’ names.

     ↑

366. Neighbourhood Disputes About Plants Act 2017 (Tas) s 16(1).

     ↑

367. Ibid s 17.

     ↑

368. Ibid s 18.

     ↑

369. Ibid s 16(2).

     ↑

370. Tasmania, Parliamentary Debates, House of Assembly, 4 April 2017, 8 (Rene Hidding).

     ↑

371. Ibid.

     ↑

372. Neighbourhood Disputes About Plants Act 2017 (Tas) s 37(3).

     ↑

373. Ibid s 37(4).

     ↑

374. See New South Wales Land and Environment Court, Helpful Materials (1 September 2017) <www.lec.justice.nsw.gov.au/Pages/types_of_disputes/class_2/Trees-hedge-disputes-process/Treedisputes-helpfulmaterials/treedisputes_helpfulmaterial.aspx>.

     ↑

375. See, eg, New South Wales Land and Environment Court, Tree Disputes: Understanding the Law (22 April 2015) <www.lec.justice.nsw.gov.au/Pages/types_of_disputes/class_2/Trees-hedge-disputes-process/treedisputes_pracproc.aspx>.

     ↑

376. See, eg, New South Wales Land and Environment Court, Trees or Hedge Dispute Process (16 September 2016) <www.lec.justice.nsw.gov.au/Pages/types_of_disputes/class_2/trees_and_hedges.aspx>.

     ↑

377. See, eg, New South Wales Land and Environment Court, How to Start the Application (16 May 2015) <www.lec.justice.nsw.gov.au/Pages/types_of_disputes/class_2/Trees-hedge-disputes-process/treedisputes_how.aspx>.

     ↑

378. New South Wales Land and Environment Court, Tree Dispute Principles (29 September 2017) <www.lec.justice.nsw.gov.au/Pages/practice_procedure/principles/tree_principles.aspx>. Principles can be statements about a probable outcome; a chain of reasoning; or a list of appropriate matters to be considered.

     ↑

379. Queensland Government, Disputes About Fences, Trees and Buildings (14 December 2016) Services for Queenslanders <www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings>.

     ↑

380. See, eg, Queensland Government, Step-by-Step Guide to Resolving Tree and Fence Disputes (14 July 2017) <www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings/resolving-tree-and-fence-disputes/step-by-step-guide-to-resolving-tree-and-fence-disputes/>; Queensland Government, What To Do if a Neighbour’s Tree is Affecting You (30 October 2015) <www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings/resolving-tree-and-fence-disputes/what-to-do-if-a-neighbours-tree-is-affecting-you>.

     ↑

381. Queensland Government, Frequently Asked Questions: Tree Disputes (18 April 2017) <www.qcat.qld.gov.au/matter-types/tree-disputes/faq-tree-disputes; Queensland Civil and Administrative Tribunal, Practice Directions (1 April 2016) <www.qcat.qld.gov.au/resources/practice-directions>.

     ↑

382. Queensland Civil and Administrative Tribunal, Tree Order Register (27 January 2017) <www.qcat.qld.gov.au/matter-types/tree-disputes/tree-order-register>.

     ↑

383. Queensland Civil and Administrative Tribunal, Application Checklist: Tree Dispute Resolution, version 3 (March 2017).

     ↑

384. Tasmania, Parliamentary Debates, House of Assembly, 4 April 2017, 5 (Rene Hidding).

     ↑

385. Pablo Cortes, ‘Online Dispute Resolution Services: A Selected Number of Case Studies’ (2014) 6 Computer and Telecommunications Law Review 172.

     ↑

386. Victorian Law Reform Commission, Civil Justice Review, Report No 14 (2008) 225.

     ↑

387. NSW Civil and Administrative Tribunal, NCAT Online Dispute Resolution Pilot (August 2014) <www.ncat.nsw.gov.au/Documents/ncat_online_dispute_resolution_pilot.pdf>.

     ↑

388. Sian Leathem, ‘Alternative Dispute Resolution at NCAT’ (Speech delivered at the NSW LEADR CPD session, Sydney, 10 April 2014).

     ↑

389. Louise Clegg, ‘Achieving Efficiency—NCAT Online Dispute Resolution Pilot’ (Speech delivered at the COAT National Conference 2015, Melbourne, 4–5 June 2015) <http://coat.gov.au/events/conferences/details/16/2015-coat-national-conference.html>.

     ↑

390. Department of Justice and Regulation (Vic), Access to Justice Review (2017) 277.

     ↑

391. Accident Compensation Conciliation Service, Online Dispute Resolution <www.worksafe.vic.gov.au/conciliation-web/conciliation-process/conferences/online-dispute-resolution>.

     ↑