Neighbourhood Tree Disputes: Report (html)

9. Orders, appeals and enforcement in neighbourhood tree disputes

Introduction

9.1 The new Act should allow for timely, practical and effective remedies for tree disputes. This section considers the types of order available in interstate Acts and community responses. The Commission’s recommendations respond to some of the limitations with the common law remedies of negligence, nuisance and trespass. They aim to provide greater clarity about the range of likely outcomes if matters proceed to hearing at VCAT.

9.2 This chapter considers:

• the types of order that the Victorian Civil and Administrative Tribunal (VCAT) should be able to make under the new Act

• rights to seek an appeal or a variation of orders

• how orders should be enforced.

Other jurisdictions—orders available

New South Wales

9.3 Section 9 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the NSW Act) sets out the types of orders that the Land and Environment Court of New South Wales (NSWLEC) can make in tree disputes. The NSWLEC has broad jurisdiction to make ‘such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person’ and is not limited to making orders requested by the parties to the dispute.^[1]

9.4 The NSWLEC may make orders that:

• require specified action to be taken to remedy damage to property or restrain or prevent damage or future damage to property

• require specified action to be taken to prevent injury to any person

• authorise the applicant to take specified action to remedy, restrain or prevent damage or future damage to property

• authorise the applicant to take specified action to prevent injury to any person

• require a party to make an application to obtain consent or authorisation that is required under another Act

• authorise the entry onto land for the purposes of carrying out an order^[2]

• require the payment of costs for works specified in an order

• require the payment of compensation for property damage

• require a replacement tree to be planted and specify that the new tree is to be of a mature growth.^[3]

9.5 It is common for the NSWLEC to adjust or deviate from the order that the parties seek. For example, instead of ordering the removal of the tree, the Court may order ongoing pruning of overhanging branches.^[4]

9.6 Applications for an award of legal costs are usually sought by the successful party in the NSWLEC and are heard by judges. Commissioners who hear tree disputes cannot make orders for legal costs.^[5] The NSWLEC power to award costs is similar to those of RMPAT and QCAT,^[6] in that the NSWLEC may not order payment for costs unless the Court considers that an order for the whole or any part of the costs is fair and reasonable in the circumstances [of each individual case].^[7]

Queensland

9.7 The Queensland Civil and Administrative Tribunal may make any order it considers necessary to prevent serious injury or prevent, remedy or restrain serious damage to property or substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.^[8]

9.8 The range of orders are similar to those in New South Wales, but the Queensland Act additionally provides that orders may:

• require the production of a report by an appropriately qualified arborist

• require that a survey be undertaken to clarify the tree’s location in relation to the common boundary.^[9]

9.9 Where an affected neighbour’s application relates to a tree that has been completely removed after causing damage, QCAT can make an order about the removed tree, for example to pay compensation or repair costs, provided the tree owner did not sell their land in the meantime.^[10]

9.10 If QCAT makes an order for the destruction or removal of a tree, it can also make an order for the tree to be replaced with one that is more appropriate to the surroundings, or of a different maturity, or to be placed in a more appropriate location.^[11]

9.11 The Queensland Act provides that a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.^[12]

9.12 In QCAT each party is expected to bear their own costs of proceeding. The Tribunal may order costs if it is in the interest of justice to do so.^[13]

Tasmania

9.13 The Resource Management and Planning Appeal Tribunal (RMPAT) may make the orders it considers appropriate to prevent, restrain or reduce the likelihood of serious injury to a person or serious damage to a person’s land or any property. It may also make orders to ensure a branch does not overhang another person’s land^[14] and make orders to prevent, restrain or reduce substantial, ongoing and unreasonable interference with a person’s use and enjoyment of land caused by a plant.^[15]

9.14 Orders under the Tasmanian Act largely mirror those that QCAT may make under the Queensland Act.^[16] The Tasmanian Act provides an order is not to be made requiring the removal or destruction of a living plant to which the order relates unless the Tribunal is satisfied that the purpose for which the application was sought could not otherwise be met.^[17]

9.15 In RMPAT each party is to pay its own costs. The Tribunal may order costs if it considers that it is fair and reasonable to do so.^[18]

Community responses—orders available

9.16 The Commission received a number of suggestions in response to the question about what types of orders should be available under a new Act.^[19] Suggestions included that orders should provide for:

• pruning or other maintenance of the tree^[20]

• removal of the tree^[21]

• installation of root barriers^[22]

• recovery of costs for ongoing tree maintenance^[23]

• orders that mirrored the NSW approach^[24]

• the replacement planting of trees.^[25]

9.17 Some community members were cautious about trees being removed too readily and thought other remedies should be explored first.^[26] For example, Dr Gregory Moore OAM stated ‘removing a tree can also cause future structural issues for properties’ and ‘can lead to wind damage to roof tiles and structures’.^[27] Arborist Robert Mineo advised that the removal of a significant number of branches can lead to the growth of ‘emergency branches’ which are more prone to failure.^[28]

9.18 Baw Baw Shire Council identified that one of the aims of a new Act should be to require the replanting of suitable species in the same location in order to discourage people who simply want a tree removed even if it is not causing damage or harm.^[29] Under Baw Baw’s Planning Scheme, the council must consider the future development of the land and whether planting, replanting or other treatment should be undertaken on any part of the land prior to determining an application that may result in interference with vegetation under schedule 3 of the Significant Landscape Overlay.^[30]

9.19 The City of Boroondara advised that it may require a replacement tree to be planted where residents illegally remove, damage, kill or destroy protected trees without a permit under its local law.^[31] A fine may also be issued under local law. Replacement planting may include planting an established tree of a particular species and in the same position on the site to neutralise potential advantage gained from illegal tree works and to ensure that the benefits of the removed tree are restored in the longer term.^[32]

9.20 One submission proposed that the remedies available to the decision-making body should not be limited to those requested by an affected neighbour.^[33]

9.21 Baw Baw Shire Council stated that any new adjudicating body should have the power to award legal costs for vexatious or unmeritorious matters.^[34] However, Barwon Community Legal Service suggested that costs should not be awarded where one or both parties may be of lower socio-economic backgrounds.^[35]

9.22 The NSWLEC reported that the types of orders set out in the NSW Act are sufficient for the Court’s purposes and that tree pruning is the most common order made by the Court.^[36]

The Commission’s conclusions—orders available

9.23 Chapter 3 identified some of the limitations of the remedies available for nuisance, negligence and trespass at common law when applied to tree disputes. These common law remedies generally only react to interference, damage or trespass to land after it has occurred. They also focus solely on the civil aspects of the dispute and do not necessarily take into consideration the broader role of trees in the community.

9.24 The new Act should give the decision-making body broad discretion to remedy, restrain or prevent damage to property or prevent harm to a person on adjoining land. The list of remedies suggested by the community aligns with the remedies that are available under the NSW Act. The Commission is of the view that the range of orders provided for in the NSW Act would be appropriate in Victoria.

Access to a neighbour’s land

9.25 The new Act should allow for access to land to carry out orders or to obtain a quote to carry out works to the tree that is the subject of an order. This will also ensure that the problem can be properly assessed from both properties and that tree works can also be carried out in the most effective way and in accordance with the Australian Standards.^[37] It is common for the NSWLEC to order access to an applicant’s property (affected neighbour) to permit effective pruning or other tree works.^[38] The Commission notes that other Victorian Acts allow entry onto neighbouring land in similar circumstances. For example, under section 33 of the Fences Act 1968 (Vic), an owner of land can be granted authority to enter adjoining land to carry out fencing works.

Planting a replacement tree

9.26 The new Act should specifically include the power to order that a replacement tree is planted if VCAT considers that this is appropriate in the circumstances. Replacement planting is an approach that received widespread support from councils and community members involved in this inquiry.^[39]

9.27 Replacement planting is a feature of the NSW and Queensland Acts.^[40] Replacement planting can be required under Victorian planning permits as well as local tree protection laws. The City of Port Phillip and the City of Boroondara often order replacement planting.^[41] Heritage Victoria also advised that it will generally require replanting or replacement of a heritage-listed tree that has been removed.^[42]

9.28 Replacement tree planting may help to ensure that any environmental and social benefits lost from the tree’s removal are restored, although the Commission notes the caution expressed by ENSPEC that:

planting a new tree is not a replacement of the loss of a mature tree, even if it is replaced by the same species, as the decades of growth required to develop to maturity are lost. It is therefore necessary to prevent the removal of mature trees without solid justification.^[43]

9.29 It may also deter people from illegally removing vegetation, for example, in breach of a local law or planning scheme regulation, or deter applications made simply because a neighbour has unreasonable expectations about living near vegetation. A neighbour may be less likely to seek the removal of a tree simply because they do not like it or to think twice about removing it illegally if another tree is ordered to be planted in its place.

Ongoing maintenance orders

9.30 The new Act should allow for ongoing maintenance orders if VCAT determines that this is appropriate in the circumstances. VCAT told the Commission that it is rare for it to make an order with ongoing obligations when exercising original jurisdiction.^[44] VCAT stated that any requirement for it to monitor or follow up on orders would not be appropriate.^[45] However, the Commission is of the view that an ongoing order may be appropriate in certain circumstances in a tree dispute, such as where the tree needs to be pruned or inspected at regular intervals.

9.31 Ongoing maintenance orders can be made under the interstate Acts.^[46] These orders often require maintenance at specified intervals to prevent future disputes.^[47] Ongoing maintenance orders were supported by a number of community members.^[48]

9.32 In New South Wales, for example, the Commission was told that orders made for ongoing maintenance they are typically for periods of 12 to 18 months.^[49] The NSWLEC advised that ongoing maintenance orders are less likely for claims relating to damage and harm. Claims based on the obstruction of sunlight and views caused by high hedges are more suited to ongoing orders.^[50] The NSW Act allows maintenance orders to bind successors in title, provided the affected neighbour or the immediate successor in title of the affected neighbour gives a copy of the order to the new tree owner.^[51] Only the immediate successor in title to the applicant is entitled to benefit from the original order. ^[52]The issue of new purchasers of land is discussed further in Chapter 11.

9.33 QCAT advised that many of the orders it makes do not place ongoing obligations on tree owners. However, when ongoing orders are made (for example, for annual pruning), they will remain active for 10 years unless otherwise specified.^[53] Likewise, in Tasmania, an order lapses after a period of 10 years from the day on which it was made unless the order expressly states otherwise.^[54]

9.34 DSCV provides an example of ongoing maintenance featuring in a mediation agreement on its website.^[55] In the example, a mediated agreement provided that the affected neighbour would be responsible for pruning back the overhanging branches on a day-to-day basis, but the parties agreed that the trees would be maintained annually by a professional with the costs to be split between them.^[56]

9.35 The Commission does not support limiting the duration of orders in the new Act as occurs in Tasmania and Queensland. Instead the duration of orders should be left to VCAT’s discretion or otherwise apply indefinitely until revoked.

Australian Standards and arborist qualifications

9.36 Work carried out pursuant to orders made under the Act should be made in accordance with the Australian Standards Pruning of Amenity Trees^[57] and Protection of Trees on Development Sites^[58] and carried out by a suitably qualified arborist.

9.37 The Commission is of the view that incorporating the Australian Standards into tree works ordered by the Tribunal will ensure that those tree works are more likely to be effective and less likely to damage the tree, thereby reducing the likelihood of future problems. The new Act should refer to the Australian Standards generally rather than list them specifically because the relevant standards may change over time.

9.38 Some councils advise community members to prune in accordance with the Standards and that failure to do so may result in damage to the tree. It was suggested that the best way to satisfy the Standards is to hire an arborist.^[59] VCAT was supportive of any works ordered under a new Act to be carried out by a person with relevant expertise.^[60]

9.39 A suitably qualified arborist is likely to hold a qualification equivalent to Level 3 of the Australian Qualification Framework (AQF),^[61] to prune or remove a tree, or a qualification of AQF Level 5 for more complex tree issues involving an assessment of whether the tree may fail. AQF Level 5 arborists are trained to draft expert reports.^[62]

9.40 The NSWLEC typically requires orders for pruning or tree removal to be undertaken by an AQF Level 3 arborist with appropriate insurance cover and in compliance with the Australian Standard Pruning of Amenity Trees.^[63] QCAT noted that orders made pursuant to the Queensland Act will usually specify that tree works are to be conducted by an appropriately qualified arborist.^[64]

9.41 The qualification level should be determined by VCAT depending on the circumstances of the case and the work that needs to be done. The Commission is of the view that requiring work to be carried out by a suitably qualified arborist will also educate and guide the community more generally about arborists’ qualifications and practice standards.

Not recommended: Tree removal as a last resort

9.42 The recommendations in this report should avoid the need for the Act to specify that tree removal should be ordered as a last resort. In Chapters 7 and 8 the Commission emphasises that the new Act should be underpinned by a requirement for arboricultural evidence that shows that the tree is the real and actual cause of damage or harm that has occurred or is likely to occur in the next 12 months. The decision-making principles in Chapter 8 also require consideration of a wide range of factors that recognise the contribution of the tree to amenity, local eco-systems and biodiversity, and its social, cultural and scientific value. The combined effect of these recommendations is that tree removal is only likely to occur as a last resort.

Legal costs

9.43 Parties are expected to bear their own legal costs in VCAT.^[65] However, VCAT may order legal costs in certain circumstances such as where the matter was brought without merit or to harass, annoy or distress someone, or is not well supported in fact or law.^[66]

9.44 It may be appropriate for VCAT to exercise this power where a tree dispute is initiated by a neighbour purely to annoy or distress the tree owner.

Recommendations

28 The Act should provide the decision maker with broad discretion to make such orders as it considers appropriate, including:

(a) requiring the taking of specified action

(b) enabling entry to land for the purposes of carrying out an order or to obtain a quote for carrying out the tree works

(c) requiring the payment of the costs of tree works

(d) requiring the payment of compensation for property damage

(e) requiring a replacement tree to be planted in a specified location and to be maintained to mature growth if a tree is ordered to be removed, or

(f) requiring ongoing maintenance for a specified time period.

29 The Act should require that work that is carried out pursuant to orders complies with the relevant Australian Standards and undertaken by a suitably qualified arborist as determined by the Victorian Civil and Administrative Tribunal.

Notification of orders

9.45 VCAT should ensure that any party who appeared in the proceeding should be provided with a copy of the order under the new Act. Any party who would otherwise be required under other laws to provide consent or authorisation for tree works should also be notified of an order regardless of whether they attend the hearing. This recommendation aligns with those in Chapter 5 about notice of an application under the new Act. It also mirrors interstate requirements.

9.46 The NSWLEC must provide a copy of any order it makes to the council of the local government area on which the tree is situated, regardless of whether the local council appeared in the hearing, and also to the Heritage Council if it appeared in the proceedings.^[67] The same requirement applies in QCAT.^[68] In Tasmania RMPAT will provide a copy of the order made to the council in relation to the land on which the tree is situated and any government body or party who appeared in the proceedings.^[69]

9.47 Nillumbik Shire Council stated that if a new statutory scheme were to be adopted in Victoria, then it would want to be notified of any orders made as the relevant local council.^[70]

Recommendation

30 The Act should require the Victorian Civil and Administrative Tribunal to provide a copy of any orders made to any relevant authority who would otherwise be required to authorise or consent to works on the tree.

Appeals

9.48 An appeal is an application to a court with jurisdiction to hear an appeal (also known as ‘appellate jurisdiction’) on the ground that there has been an error in the original decision.^[71] Where the decision has been made by a lower court in the first instance, an appeal must be made to a higher court. Where the decision has been made by VCAT in the first instance, an appeal must be made to the Supreme Court of Victoria.^[72] An appeal may be as of right or by leave. An appeal as of right means that the appeal can be pursued without the need to obtain leave (or permission) of the appellate court. For appeals by leave, the appellate court must grant permission to a party wishing to pursue the appeal.^[73]

Appealing VCAT orders

9.49 The VCAT Act provides for only a limited right to appeal.^[74] Most VCAT decisions are final and binding.^[75] The limit on appeals in VCAT is designed to provide certainty and clarity once VCAT makes a determination.^[76]

Appeal on a question of law

9.50 Appeals of VCAT decisions are limited to questions of law and determined by a court with leave.^[77] An appeal on a question of law is made where a party believes that VCAT made a mistake in the way it applied the law.^[78] In order to appeal on a question of law, a person needs to seek leave of the Court of Appeal of the Supreme Court of Victoria, if the VCAT decision was made by the president or the vice president^[79] of VCAT (even if other members also heard the matter),^[80] or of the Trial Division of the Supreme Court if the decision was made by a VCAT member other than the president or vice president.^[81]

9.51 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.^[82]

9.52 The Court of Appeal or the Trial Division may make an order affirming, varying or setting aside: the order of the Tribunal; an order that the Tribunal could have made in the proceeding; an order remitting the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court; or any other order the Court thinks appropriate.^[83]

9.53 In the 2017–18 financial year, the total number of appeals lodged from VCAT was 82. Only nine applicants were granted leave to appeal to the Supreme Court of Victoria. Of these, four appeals were dismissed and five appeals were upheld.^[84]

Reopening an order

9.54 VCAT may reopen an order on substantive grounds in limited circumstances under the VCAT Act.^[85] If a matter is reopened on substantive grounds, VCAT may make an order that revokes or varies the original order.^[86]

9.55 The VCAT Act allows VCAT to reopen an Order where a ‘person in respect of whom an order is made’ did not attend or was not represented at the hearing.^[87] In deciding whether to reopen an order, VCAT may consider whether the applicant had a reasonable excuse for not attending or being represented at the hearing and that it is appropriate to conduct a re-hearing.^[88]

9.56 If an application to reopen a matter is successful, the original order is suspended until the subsequent hearing takes place.^[89] These hearings are conducted internally within VCAT and not by a court. If the application is unsuccessful, the original order remains in place.^[90]

Re-hearing

9.57 Some enabling statutes also allow a person to apply for a rehearing^[91] in VCAT. Re-hearings are generally limited to matters that involve human rights matters, for example, a Guardianship and Administration case.^[92] These re-hearings are conducted within VCAT and not by a court.^[93]

Other jurisdictions—appeals

New South Wales

9.58 The appeal of tree disputes determined under the NSW Act is governed by the Land and Environment Court Act 1979 (NSW), the Act governing the Land and Environment Court of New South Wales (NSWLEC).

9.59 The NSWLEC is a superior court.^[94] An appeal of a tree dispute order made by NSWLEC can be made on a question of law only.^[95] If the appeal is against a decision of a commissioner of the NSWLEC, it is determined by a judge in the NSWLEC.^[96] If the appeal is against a decision of a judge of the NSWLEC, it is heard by the NSW Court of Appeal.^[97]

9.60 For tree disputes, an appeal will be in the form of a rehearing and ‘fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal’.^[98]

Queensland

9.61 The appeal of tree disputes determined under the Queensland Act is governed by the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

9.62 As noted in Chapter 7 QCAT is a ‘court of record’^[99] (or a ‘court of the State’)^[100] ‘capable of being invested with the judicial power of the Commonwealth’.^[101] Unlike VCAT, QCAT has an internal Appeal Tribunal. A person can appeal the decision of a QCAT member on a question of law, fact or combination of law and fact in certain circumstances.^[102] A person must seek leave of the Appeal Tribunal to appeal a decision.^[103] A person seeking leave needs to show that ‘there is a reasonable argument the QCAT decision was wrong, for example, if the tribunal applied the wrong legal test and/or there has been a substantial injustice and an appeal is necessary to correct the decision’.^[104]

9.63 If leave is granted, then the appeal will be decided by way of a rehearing in which the original information and evidence are presented again.^[105] New information and evidence can also be presented with leave.^[106]

9.64 However, if the original QCAT decision was made by a judge sitting in QCAT then a party may appeal the decision to the Queensland Court of Appeal.^[107] Appeals on a question of law only are as of right.^[108] Appeals on questions of fact or mixed fact and law require leave of the Court.^[109]

9.65 A person may also apply for QCAT to reopen a matter if they did not attend the hearing or if they would suffer substantial injustice if the matter were not reopened due to the availability of significant new evidence since the original hearing.^[110] The hearing will be conducted in QCAT as a new hearing on its merits.^[111]

Tasmania

9.66 The appeal of tree disputes determined under the Tasmanian Act is governed by the Resource Management and Planning Appeal Tribunal Act 1993 (Tas), the Act governing the Resource Management and Planning Appeal Tribunal (RMPAT).

9.67 Any decision of RMPAT may be appealed as of right to the Tasmanian Supreme Court on questions of law.^[112]

9.68 The Tasmanian Supreme Court can make any orders it considers appropriate, including orders affirming or setting aside the original RMPAT decision; substituting its own decision for the original RMPAT decision; or remitting the matter to RMPAT for reconsideration in accordance with any directions.^[113]

Community responses—appeals

9.69 Community responses about the grounds and scope of appeals of orders made under a new Act were not sought in the consultation paper. However, some respondents provided views on this topic.

9.70 One suggestion was that matters should start in VCAT and then be appealed to the Magistrates’ Court of Victoria.^[114]

9.71 The NSWLEC also provided insight into its appeals processes. The Court considers it important to confine all appeals to questions of law because a broader right of appeal may raise complex legal issues related to the legal doctrines of estoppel^[115] and res judicata, a legal principle that prevents a party from re-litigating an issue or a defence which has already been determined.^[116] By confining an appeal to a question of law, the Court is able to provide certainty to parties about the outcome of its decisions.

9.72 The NSWLEC noted that the subject matter of a tree dispute that has already been determined by the Court cannot be the subject of a new application to the Court unless there is a change in circumstances or fresh evidence is presented. It was suggested that this prevents parties from seeking to have the matter re-heard before a more favourable commissioner. ^[117]

The Commission’s conclusions—appeals

9.73 VCAT, like other tribunals that derive their powers from enabling statutes, is intended to be a forum that provides for the final resolution of matters. Rights of appeal are thus often limited to questions of law in a court with appellate jurisdiction.

9.74 Chapter 7 recommends that VCAT be given original jurisdiction and not exclusive jurisdiction to hear and determine neighbourhood tree disputes under the new Act.^[118] This means that VCAT’s rights to review a decision would be limited to an appeal on a question of law to the Supreme Court and the re-opening of an order on substantive grounds in the interests of fairness as provided for in the VCAT Act, where a person did not attend or was not represented at the hearing.^[119] The Commission is of the view that these existing appeal processes are appropriate for tree disputes under the new Act.

9.75 The costs of commencing an appeal in the Supreme Court may be prohibitive, and there is a high level of formality and complexity in its processes, which is at odds with the policy objectives of the new Act. However, on balance it is more important to provide for the resolution of party–party tree disputes in a final and timely manner. The Commission also notes that appeal processes at VCAT were recently considered in the 2016 Access to Justice Review which concluded that ‘it is preferable not to introduce an internal appeal mechanism in VCAT’.^[120]

Varying or revoking an order

9.76 Trees are dynamic living organisms and therefore circumstances relating to the trees in dispute can change.

9.77 In New South Wales, Senior Commissioner Moore and Acting Commissioner Thyer explained:

Trees, whether living or dead, are evolving, changing dynamic structures. Living trees may grow, flower, fruit or react to climatic changes such as drought… They are also subject to the influence, malignant or benign depending on the species and the circumstances, of all four of the ancient elements – earth, air, fire or water.^[121]

9.78 Arborists advised that predictions about how trees will live and grow are not necessarily precise because of the variations in arboricultural assessments and dynamic environmental factors.^[122]

9.79 As tree problems can also change over time, an order may no longer accommodate the original problem, or may no longer be able to be complied with, through no fault of the parties. For example, an order may specify that the branches of a tree are to be pruned in a certain manner. This may not be possible where weather events permanently change the character of the tree. As a tree changes with age, it may become necessary to enter a neighbour’s land in order to prune it and this may not be accommodated in an original order.

9.80 The new Act should provide VCAT with the power on application by the tree owner or affected neighbour (or immediate successors in title^[123]) to vary or revoke an order. This may be necessary if VCAT is satisfied that the original circumstances that caused the damage or harm have changed, and that the new circumstances are not accommodated in the original order. VCAT should be empowered to vary the original order by altering the terms of the order or by substituting any other order. VCAT may also need to revoke an order where it is no longer relevant in the circumstances—for example, where there is an order for ongoing maintenance of a tree but the tree owner (or their successor in title) subsequently decides to remove the tree. The tree owner may want to revoke the order to formally remove the payment obligation. Alternatively, a vendor may want to revoke an order for ongoing maintenance to ensure clear title before the sale of a property.

9.81 These powers should be specified in the new Act rather than relying on s 51(2) of the VCAT Act. This provision outlines VCAT’s powers when reviewing a decision and will not generally be applicable to a situation where the VCAT decision maker is exercising original jurisdiction.^[124] This is similar to the approach in the Tasmanian Act, which provides that either party to a tree dispute may apply to RMPAT for a variation or revocation of an order.^[125]

9.82 The Queensland Act provides that QCAT may revoke an order by its own motion but does not provide QCAT with the right to vary an order. However, the Queensland Act provides QCAT with the power to renew its orders where the order cannot be complied with due to difficulties with ‘interpreting, implementing or enforcing’ the order.^[126] The effect of this provision is similar to that proposed by the Commission and in the Tasmanian Act—for example, there may be difficulties interpreting the way in which the tree is ordered to be pruned.^[127] A party can apply for a renewal of an order and ‘QCAT may make the same decision or another decision that could have been made when the proceeding was originally decided. That decision is then enforceable as a final decision of QCAT.’^[128] An order can only be reviewed once under this division.^[129]

9.83 It is important to limit the number of times a party may seek to have an order varied or revoked under the new Act to one application per year. This is consistent with the Commission’s recommendation concerning damage or harm anticipated to occur within the following 12 months.^[130] This requirement should limit opportunities for the matter to be repeatedly revisited at VCAT.

9.84 The applicant would have to provide notice to the original parties to the dispute as well as any other interested parties that were given notice of the original application. Successors in title may also need to be notified if either of the original parties sold the land.

9.85 Where circumstances change such that there is an entirely new set of circumstances that were not considered in an original application or order, or where new evidence becomes available, the applicant would need to commence a new matter in VCAT. A new application would be needed if there is evidence that the health of a tree has declined since the original application, such that there is greater support for an applicant’s claim that the tree may cause damage or harm. Another example may be where a tree grows a new branch, not contemplated in the original application, which overhangs neighbouring land and may cause future damage or harm.

Recommendations

31 Where new circumstances are not accommodated in the original order, the Act should allow the tree owner or affected neighbour or immediate successors in title to apply to the Victorian Civil and Administrative Tribunal to vary or revoke the original order.

32 The Victorian Civil and Administrative Tribunal’s powers in determining the application to vary or revoke the order should be stated in the Act as the power to:

(a) affirm the original order

(b) vary the original order by altering the terms of the order or by substituting any other order that the Victorian Civil and Administrative Tribunal may make under the new Act

(c) revoke an existing order.

33 The applicant should provide notice in writing of the application to vary or revoke the original order to the original parties to the dispute as well as any other affected parties that were given notice of the original application or any successors in title.

34 The Act should only provide for one application to vary or revoke the order

per year.

Enforcement of orders

9.86 The consultation paper asked how orders issued under a new Act should be enforced when a party fails to comply with them.

Enforcement in VCAT

9.87 The options for a person to enforce an order where the other party refuses to comply are set out in the VCAT Act. They are:

• Enforcement of a monetary order. A monetary order requires a party to pay money to another party.^[131]

• Enforcement of a non-monetary order. A non-monetary order is any other order that does not involve monetary payments.^[132]

• Contempt is a broad term for a body of law that seeks to prevent or punish conduct that interferes with the proper administration of justice, including failure to comply with a Tribunal order.^[133]

9.88 VCAT itself does not have power to enforce monetary or non-monetary orders.^[134]

9.89 Enforcement proceedings in VCAT will be more accessible with the implementation of Part 10 Division five of the Justice Legislation Amendment (Access to Justice) Act 2018 (Vic) (the amending Act).^[135] The amending Act will alter some of the procedural requirements for the enforcement of VCAT orders.^[136]

Enforcing monetary orders

9.90 At present, when a person does not comply with a VCAT monetary order, the aggrieved party can pursue the amount as a judgment debt in the court of relevant jurisdictional limit by filing the order in the relevant court.^[137] For tree disputes under the new Act, this is mostly like to be the Magistrates’ Court which has a jurisdictional limit of $100,000.^[138]

9.91 A person will need to file in the Magistrates’ Court a certified true copy of the VCAT order and an affidavit about the amount not paid. There is no fee for filing an order.^[139] Once filed, the VCAT order will be taken to be an order of the Magistrates’ Court and enforced accordingly.^[140]

9.92 When the relevant provisions of the amending Act come into operation, the aggrieved party will no longer need to take any additional procedural steps to file the VCAT order in the relevant court. The VCAT order will be automatically deemed to be an order of the court and enforced accordingly once enforcement proceedings are commenced.^[141] This is intended to avoid additional procedural burden to the successful party.^[142]

Enforcing non-monetary orders

9.93 When a person does not comply with a non-monetary order issued by VCAT, the aggrieved party can seek to compel performance in the Supreme Court of Victoria.

9.94 A person who does not comply with a non-monetary VCAT order is guilty of an offence.^[143] Penalties include imprisonment^[144] or a fine for 20 penalty units ($3223.80) with 5 penalty units ($805.95) added for each day of non-compliance, up to a maximum of 50 penalty units ($8059.50); or both imprisonment and a fine.^[145] Criminal proceedings take place in the Magistrates’ Court.^[146]

9.95 If a person wishes to compel their neighbour to carry out the nonmonetary order, then the matter needs to be taken to the Supreme Court for enforcement. The aggrieved party will need to file a certified true copy of the VCAT order; an affidavit about the non-

compliance; and a certificate from VCAT stating that the order is appropriate for filing in the Supreme Court.^[147] There is no fee for filing an order.^[148] Once filed, the VCAT order will be taken to be an order of the Supreme Court and enforced accordingly.^[149]

9.96 The Access to Justice Review recommended that this process should be repealed so that parties are not directed to the Supreme Court to seek enforcement of a non-monetary order. Instead, the Access to Justice Review recommended that non-monetary orders of VCAT ‘should be enforced, in exceptional circumstances, using VCAT’s existing contempt powers’.^[150]

9.97 The amending Act does not implement this recommendation but will make it easier for a party to pursue enforcement by removing some of the existing procedural burdens.^[151] As is the case with monetary orders, the amending Act will no longer require the aggrieved party to take any additional procedural steps to file the VCAT order and other documents in the Supreme Court. Instead, the VCAT order will be automatically deemed to be an order of the Supreme Court and can be enforced accordingly.^[152]

9.98 An enabling Act may also contain separate enforcement mechanisms. For example, under the Planning and Environment Act 1987 (Vic), if a party fails to carry out any work specified in an enforcement or interim enforcement order issued by VCAT under the Act, then a local council or, with the consent of VCAT, any other party, may carry out those works themselves. Any costs incurred as a result of carrying out these works may then be recovered from the defaulting party in the relevant court as a debt.^[153]

Contempt

9.99 In limited circumstances, VCAT’s contempt powers can be used to enforce an order.^[154] VCAT’s contempt power reflects:

the importance of compliance with Tribunal Orders and the importance of preserving the authority and standing of the Tribunal. However, the power should be exercised cautiously and should not be used unless there is no other effective way of enforcing the Tribunal’s Order.^[155]

9.100 When a person is found guilty of contempt, VCAT can order imprisonment, a fine or both.^[156] The prison term is to be not more than five years. The fine is to be not more than an amount that is 1000 times the value of a penalty unit ($161,190).^[157] An example of a finding of contempt in VCAT can be found in the case of Kanter v Milroy Investments Australia Pty Ltd (Owners Corporations)^[158] where the respondent was fined $10,000 for failing to comply with previously issued VCAT orders.^[159] VCAT told the Commission that proceedings for contempt can be lengthy and complex.^[160]

9.101 The amending Act will broaden VCAT’s contempt powers. Once the amendments come into operation, VCAT will be able to hold a person guilty of contempt where they fail to comply with an order ‘in circumstances where, if the Order were an Order of the Supreme Court, the failure would constitute contempt of that Court’.^[161]

Reopening an order

9.102 As discussed earlier in the context of appeals, VCAT can reopen a matter on substantive grounds when a party did not appear or was not represented at the time of the hearing and making of an order.^[162]

9.103 The Access to Justice Review recommended that VCAT’s powers to reopen orders should be expanded for enforcement reasons. The review recommended:

The VCAT Act should be amended to enable VCAT to reopen or renew a proceeding where there has been a problem with enforcement, similar to section 133 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). This would provide an easy way to convert a non-monetary order to a monetary order where there has not been compliance with the former.^[163]

9.104 Once the relevant provisions of the amending Act come into operation ‘a person in whose favour an order of the Tribunal is made may apply to the Tribunal for review of the order to remedy a problem with enforcing or complying with the order’.^[164] The Tribunal must be satisfied that there are problems with enforcing or complying with the order and that it is therefore appropriate to vary, revoke or make any other order.^[165]

Other jurisdictions—enforcement of orders

New South Wales

9.105 The NSW Act states that failure to comply with an order is an offence with a maximum of 1000 penalty units.^[166] This equates to a maximum of $110,000.^[167] Prosecution of this offence takes place in the summary jurisdiction of the NSWLEC.^[168]

9.106 The NSW Act also provides an enforcement mechanism through local government. On the request of the affected neighbour, the 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.^[169] The local council can bring legal action to recoup any costs incurred in carrying out the order. A judgement debt can be registered as a charge on the tree owner’s land.^[170] During the statutory review of the NSW Act it was found that local councils usually do not agree to enforce orders on the request of neighbours.^[171]

9.107 Where the NSWLEC makes a monetary order, such as for the payment of compensation of the cost of works, then the order can also be enforced through an action to recover a debt in the Local Court or District Court depending on the amount.^[172]

Queensland

9.108 The Queensland Act states that substantial compliance with an order will be considered adequate.^[173] The Queensland Law Reform Commission (QLRC) explains that this provision ‘recognises that minor deviations from precise specifications are a practical reality of the sort of work required by an Order’ and that QCAT has recognised that minor variations are ‘not of such magnitude as to constitute noncompliance’.^[174]

9.109 However, if the tree owner fails to follow an order without reasonable excuse, they can be held liable under the Queensland Act for an offence with a maximum of 1000 penalty units.^[175] This equates to a maximum of $130,550.^[176]

9.110 During its statutory review of the Queensland Act, the QLRC recommended the removal of the penalty under section 77 of the Queensland Act for failing to comply with a QCAT order.^[177] The QLRC thought that it was unclear whether the penalty ‘has a deterrent effect’^[178] and a better approach may be to create practical measures that would give effect to orders.^[179] The QLRC noted that the penalty under section 213 of the QCAT Act ($13,055) was ‘sufficient to deal with contravention of an order…’.^[180] This recommendation has not been implemented.

9.111 The QLRC also recommended a new provision in the Queensland Act where the affected neighbour could apply to carry out work that had was not performed in accordance with an Order and recover the reasonable costs from the tree owner as a debt.^[181] The QLRC noted that, in some cases, ‘the failure of one party to comply with an order may be addressed in the way the original order is framed’.^[182] These are known as ‘guillotine’ orders which ‘build in the consequences of non-compliance’ by providing that the other party can carry out the works and recover the costs from the defaulting party.^[183] However, such orders are not frequently used.^[184] The QLRC’s recommendation has not been implemented.

9.112 Like the NSW Act, the Queensland Act also provides a ‘last resort’ enforcement mechanism through local councils in the case where the tree owner fails to carry out a QCAT order. The affected neighbour can contact their local council and ask it to carry out the order because the tree owner has failed to do so. The local council is under no obligation to follow this request.^[185] The QLRC reported that this mechanism is not frequently used.^[186]

9.113 QCAT does not have jurisdiction to enforce its own orders when there is noncompliance. A person wishing to enforce a monetary order must file the QCAT order and an affidavit confirming non-compliance in a court of competent jurisdiction, usually the Magistrates’ Court.^[187] A person wishing to enforce a nonmonetary order must file the QCAT order and an affidavit confirming noncompliance in the Supreme Court.^[188] The Supreme Court may transfer the application to either the District Court or Magistrates Court.^[189]

Tasmania

9.114 The Tasmanian Act does not set out penalties for parties who fail to follow RMPAT’s orders as the New South Wales and Queensland Acts do.

9.115 RMPAT does not have power to enforce its own orders. Where an order is not complied with, the aggrieved party may take legal action for noncompliance in a court of competent jurisdiction, such as the Civil Division of the Tasmanian Magistrates’ Court.^[190]

Community responses—enforcement of orders

9.116 There was general agreement that orders under any new Act should be binding and enforceable.^[191] Suggestions were made about how orders should be enforced.

9.117 A number of people submitted that local councils should enforce orders when a party fails to comply with them.^[192] Others argued that it was not appropriate for local councils to play an enforcement role because of the private nature of tree disputes and the substantial council resources this would require.^[193]

9.118 The City of Boroondara submitted:

Council would not support legislation which requires local government to enforce Orders made by the Court/Tribunal. This would require local government to enforce what are essentially Court orders about civil matters. This would also have resourcing implications for local government.^[194]

9.119 Nillumbik Shire Council told the Commission that the NSW approach of enforcement through local councils would not be appropriate. Nillumbik stated that it is reluctant to become involved in private civil disputes between neighbours and would not have the resources to carry out an enforcement process.^[195]

9.120 Baw Baw Shire Council advised that enforcement should not be the responsibility of local councils. Baw Baw explained that any new statutory scheme for tree disputes should not generate additional work for local councils. Baw Baw also expressed significant safety concerns for Council officers if they were required to enforce orders.^[196]

9.121 The NSWLEC and QCAT told the Commission that they are not aware of any local councils exercising their discretion to enforce orders despite the provisions in the NSW and Queensland Acts.^[197] The NSWLEC further surmised that it is unclear why a local council would choose to enforce the orders issued by the NSWLEC as there is no obvious benefit to be gained by the local council.^[198] VCAT also told the Commission that in the context of the Planning and Environment Act 1987 (Vic), local councils rarely take up the option of carrying out works that a party has failed to complete under an enforcement or interim enforcement order.^[199]

9.122 Some respondents suggested that orders should be enforced through the existing enforcement processes in the court or tribunal that made the order.^[200] Boroondara further stated that ‘continued non-compliance should be prosecuted as a criminal offence.’^[201] Another person suggested that VCAT orders should have the same status as orders of the Magistrates’ Court and be enforced accordingly.^[202]

9.123 One respondent expressed concern about VCAT’s enforcement powers and noted that, in their view, VCAT orders in other existing matters are often disregarded without significant repercussions or recourse for the affected party.^[203]

9.124 VCAT noted that the enforcement provisions under the Planning and Environment Act 1987 (Vic) could provide a possible model for enforcement under the new Act. VCAT suggested that a party could be given the right to carry out the work prescribed in an order themselves when it has not been performed, and to recover the costs incurred as a debt in the relevant court.^[204]

9.125 Other suggestions were that orders be enforced by the Department of Justice and Community Safety^[205] or through ‘substantial fines’.^[206]

The Commission’s conclusions—enforcement of orders

9.126 The Commission acknowledges that sometimes a party will simply refuse to comply with a VCAT order if they do not agree with it. At times, it may be expedient for a party to simply incur the cost of a fine, especially if the fine is less than the cost associated with the order. As the Access to Justice Review noted:

While most people comply with VCAT’s orders as a matter of course, there are some who disregard them. It can be difficult to compel an unwilling person to comply with an order. This challenge is not unique to VCAT.^[207]

9.127 Reviewing the general enforcement powers of VCAT is beyond the scope of this inquiry. However, the Commission refers to the findings of the Access to Justice Review which illustrate the complexity of the issue:

One option for reform would be to amend the VCAT Act to enable VCAT to enforce its own orders, both monetary and non-monetary, similar to the Magistrates’ Court’s powers to enforce its orders. However, this would require VCAT to establish rules and processes that reflect those used in the courts to compel payment. Further, VCAT would have to allocate the time of members and registry staff to deal with these processes, which would require either more staff or redirection of resources within VCAT. In addition, giving VCAT power to enforce its own orders would further fragment the process for enforcement of monetary orders, creating greater procedural variations between Victorian jurisdictions.^[208]

9.128 Amendments contained in the Justice Legislation Amendment (Access to Justice) Act 2018 (Vic) will make it easier for aggrieved parties to pursue the enforcement of both monetary and non-monetary orders with respect to tree disputes under the new Act. An aggrieved party will have the option of recouping any money owed to them as a debt in the Magistrates’ Court, compelling performance of an action in the Supreme Court of Victoria, or applying to have their matter reopened in VCAT due to problems with compliance.

9.129 The Commission concludes that the enforcement mechanisms under the VCAT Act should be relied upon and supplemented by practical enforcement provisions in the new Act.

Penalties for failure to comply

9.130 As discussed, the NSW and Queensland Acts both provide for fines where a party does not comply with an order.

9.131 The Commission acknowledges the comments of the QLRC about the effectiveness of the penalty provision in the Queensland Act. However, on balance it would be helpful to include a maximum penalty provision in the new Act.

9.132 Existing penalties under the VCAT Act,^[209] which would also apply for non-compliance with orders under a new Act, are significantly smaller than the penalty provisions in interstate tree dispute Acts.

9.133 On balance the Commission considers that including a penalty provision in the new Act will send a clear message to the community about the seriousness of the hearing process.^[210] It will be also be easier for the community to identify a monetary penalty in new Act than it would be to determine penalties for non-compliance of orders under the VCAT Act. It should also be easier to revise and update a penalty in the new Act if needed in the future. For the sake of simplicity the Act should as far as possible contain a full statement of rights and obligations of parties. The Commission recommends that the new Act disapply section 133 of the VCAT Act and include a specific penalty provision instead.^[211]

9.134 The Government should determine the appropriate amount for the penalty provision in consultation with VCAT.

Councils should not enforce VCAT orders

9.135 There was strong community support for the enforcement of tree dispute orders under the new Act to be undertaken by local councils.^[212] However, the Commission is persuaded by councils and others who advised that such a role would be at odds with the role of local councils to provide for the collective public benefit of residents. Councils are understandably reluctant to adjudicate private disputes between residents.

9.136 The Commission is also persuaded by concerns expressed by Baw Baw Shire that this role would require significant resources and may affect the safety of council staff tasked to enforce orders in often emotive and potentially hostile circumstances.^[213]

9.137 Further, the Commission received advice that local councils generally refuse to enforce orders where requested to in New South Wales and Queensland where voluntary enforcement provisions exist.^[214]The same is also true for similar enforcement provisions under the Planning and Environment Act 1987 (Vic).^[215] The Commission can therefore see little practical benefit in such provisions.

Empowering the applicant to give effect to a VCAT order

9.138 Rather than empowering council to enforce a VCAT order, the new Act should empower the applicant to carry out tree works where a tree owner fails to comply with an order within the specified time.^[216]

9.139 This approach aligns with VCAT’s powers under the Planning and Environment Act 1987 (Vic)^[217] and with the approach under the Fences Act.^[218] The Commission agrees with the approach recommended by the QLRC^[219] and is of the view that this enforcement mechanism will provide practical benefit to neighbours and provide certainty about the resolution of the dispute.

9.140 Such an order may be necessary where the tree owner has deliberately refused to comply with the order within the required time, or where the tree owner has failed to comply with the order and the affected neighbour is unable to identify or locate the tree owner. The reasonable costs of carrying out tree works should be able to be recouped as a debt against the non-complying party in the relevant court. The affected neighbour would need to make a new application to VCAT for this order.

9.141 The Commission is mindful of the possibility of trespass and recommends that any works carried out by the affected neighbour pursuant to this power should require VCAT’s permission to enter the tree owner’s land. Additional safeguards in line with the approach taken by the NSWLEC for third-party access to adjoining land to carry out an inspection^[220] may also be prudent, namely:

• that reasonable notice is given to the landowner or occupier whose land is to be accessed by the applicant

• that access only occur at a reasonable time during the day

• any other limitations that VCAT considers are appropriate.

Recommendation

35 The Act should include a penalty, to be determined by Government, for the failure to comply with an order.

Recommendations

36 If an order has not been complied with by the required time, the Act should provide that a party may apply to the Victorian Civil and Administrative Tribunal to seek permission to enter the tree owner’s land and carry out the works specified in the order themselves. Reasonable costs incurred as a result of carrying out the order should be able to be recouped from the non-complying party as a debt in the relevant court.

37 The right of the affected neighbour to enter a tree owner’s land should be subject to the requirement that:

(a) reasonable notice is given to the owner of land or occupier whose land is to be accessed by the applicant

(b) access only occurs at a reasonable time during the day

(c) any other requirements that the Victorian Civil and Administrative Tribunal considers are appropriate, for example, that relevant insurance is obtained by the applicant.

1. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 9(1); Department of Justice and Attorney General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Report, 2009) 8.

   ↑

2. This includes entry onto land for the purposes of obtaining quotations for the carrying out of work on the land.

   ↑

3. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 9(2).

   ↑

4. Consultation 11 (Land and Environment Court of New South Wales).

   ↑

5. Ibid. An order of a court of tribunal stipulating that legal costs be paid by one party to another. Also known as ‘party–party’ costs. These costs are ‘either the amounts lawyers charge their clients for providing legal services or amounts recoverable by the successful party for the work done by their lawyers in legal proceedings. Legal costs include charges for the lawyers’ services and disbursements, including barristers’ fees, doctors’ reports and the reasonable costs of court recordings and transcripts’. Parties can also agree that one party will pay the other parties’ costs to settle their dispute: Supreme Court of Victoria, Costs Court (Web Page, 2019) <https://www.supremecourt.vic.gov.au/law-and-practice/areas-of-the-court/costs-court>.

   ↑

6. See discussion below.

   ↑

7. Land and Environment Court Rules 2007 (NSW) cl 3.7(2).

   ↑

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

   ↑

9. Ibid s 66(5)(b), (g).

   ↑

10. Ibid s 68.

    ↑

11. Ibid s 69.

    ↑

12. Ibid s 72.

    ↑

13. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 101,102

    ↑

14. Neighbourhood Disputes About Plants Act 2017 (Tas) s 33(2)(a),

    ↑

15. Ibid s 33(2)(d).

    ↑

16. Ibid s 33(6).

    ↑

17. Ibid s 33(5).

    ↑

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

    ↑

19. Submissions 2 (Name withheld), 4 (Name withheld), 7 (Ben Kenyon), 9 (Dr Karen Smith), 19 (Name withheld), 20 (Name withheld),

    21 (Pointon Partners Lawyers), 25 (City of Boroondara), 29 (David Galwey); Consultations 2 (Dr Gregory Moore OAM), 10 (Baw Baw Shire Council), 11 (Land and Environment Court of New South Wales).

    ↑

20. Submissions 2 (Name withheld), 4 (Name withheld), 7 (Ben Kenyon), 9 (Dr Karen Smith), 19 (Name withheld), 21 (Pointon Partners Lawyers).

    ↑

21. Submissions 2 (Name withheld), 9 (Dr Karen Smith), 19 (Name withheld), 21 (Pointon Partners Lawyers).

    ↑

22. Submissions 4 (Name withheld), 21 (Pointon Partners Lawyers), 25 (City of Boroondara).

    ↑

23. Submission 7 (Ben Kenyon).

    ↑

24. Submissions 20 (Name withheld); Confidential submission.

    ↑

25. Consultation 10 (Baw Baw Shire Council).

    ↑

26. Submission 25 (City of Boroondara); Consultations 2 (Dr Gregory Moore OAM), 9 (Nillumbik Shire Council).

    ↑

27. Consultation 2 (Dr Gregory Moore OAM).

    ↑

28. Consultation 14 (Robert Mineo).

    ↑

29. Consultation 10 (Baw Baw Shire Council).

    ↑

30. Baw Baw Shire Council, Baw Baw Planning Scheme (3 May 2019) cl 42.03 sch 3, 4.0 Decision guidelines.

    ↑

31. Consultation 8 (City of Boroondara); see also Tree Protection Local Law 2016 (City of Boroondara).

    ↑

32. Consultation 8 (City of Boroondara).

    ↑

33. Submission 20 (Name withheld).

    ↑

34. Consultation 10 (Baw Baw Shire Council).

    ↑

35. Submission 31 (Barwon Community Legal Service).

    ↑

36. Consultation 11 (Land and Environment Court of New South Wales).

    ↑

37. Standards Australia, Pruning of Amenity Trees (AS 4373-2007) (Sydney, NSW: Standards Australia, 2007); see also Standards Australia, Protection of Trees on Development Sites (AS4970-2009) (Sydney, NSW: Standards Australia, 2009).

    ↑

38. Land and Environment Court of New South Wales, Annotated Trees (Disputes Between Neighbours) Act 2006 (14 January 2013) 16.

    ↑

39. Submissions 1 (Ian Collier), 5 (Name withheld), 22 (Name withheld), 24 (Name withheld); Consultations 4 (Participants in facilitated discussion at VTIO ArborCamp2018), 8 (City of Boroondara), 10 (Baw Baw Shire Council), 11 (Land and Environment Court of New South Wales), 12 (City of Port Phillip); Survey Respondents 1, 3, 18, 20, 27, 51, 52, 59, 76, 93, 109, 111, 123.

    ↑

40. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 9(2)(j); Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 69.

    ↑

41. Consultations 8 (City of Boroondara), 12 (City of Port Phillip).

    ↑

42. Consultation 16 (Heritage Victoria).

    ↑

43. Submission 18 (ENSPEC).

    ↑

44. Original jurisdiction means VCAT is the first instance decision maker under the Act. See Victorian Civil and Administrative Tribunal, Application to VCAT to Make an Original Jurisdiction Decision (Web Page) <https://www.vcat.vic.gov.au/case-types/review-and-regulation/application-to-vcat-to-make-an-original-jurisdiction-decision>.

    ↑

45. Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal).

    ↑

46. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 9; Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 66(5)(a); Neighbourhood Disputes About Plants Act 2017 (Tas) s 33(6)(a). See, eg, Urquhart v Hayman (No 2) [2012] NSWLEC 269; in this case the respondent was ordered to have the roots of the trees pruned to the boundary between the applicant’s property and the respondent’s property at intervals of not less than every 12 months. See also Adamski v Betty [2007] NSWLEC 200 (maintenance de-coning of a Bunya pine); Sahyoun v Jessop [2009] NSWLEC 1313 (periodic removal of deadwood).

    ↑

47. See, eg, Queensland Civil and Administrative Tribunal, Frequently Asked Questions—Tree Disputes (Web Page, 21 February 2019)

    <https://www.qcat.qld.gov.au/matter-types/tree-disputes/faq-tree-disputes>.

    ↑

48. Submissions 2 (Name withheld), 4 (Name withheld), 7 (Ben Kenyon), 9 (Dr Karen Smith), 20 (Name withheld).

    ↑

49. Consultation 11 (Land and Environment Court of New South Wales).

    ↑

50. Consultation 11 (Land and Environment Court of New South Wales).

    ↑

51. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 16(2).

    ↑

52. Ibid s 16A.

    ↑

53. Consultation 15 (Queensland Civil and Administrative Tribunal); Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 78(1).

    ↑

54. Neighbourhood Disputes About Plants Act 2017 (Tas) s 35.

    ↑

55. Dispute Settlement Centre of Victoria, Case Study—Tree Dispute (Web Page, 3 June 2019) <https://www.disputes.vic.gov.au/information-and-advicetrees/case-study-tree-dispute>.

    ↑

56. Ibid.

    ↑

57. 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’.

    ↑

58. See also Standards Australia, Protection of Trees on Development Sites (AS4970-2009) (Sydney, NSW: Standards Australia, 2009). The objective of this standard is to ‘provide guidance on the principles for protecting trees on land subject to development’.

    ↑

59. Consultations 8 (City of Boroondara), 12 (City of Port Phillip).

    ↑

60. Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal).

    ↑

61. The Australian Qualifications Framework (AQF) is the agreed policy of Commonwealth, state and territory ministers for regulated qualifications in the Australian education and training system: Australian Qualifications Framework, What is the AQF? (Web Page)

    <www.aqf.edu.au/what-is-the-aqf>.

    ↑

62. Information provided by Robert Mineo to the Commission, 20 March 2019.

    ↑

63. Land and Environment Court of New South Wales, Annotated Trees (Disputes Between Neighbours) Act 2006 (14 January 2013) 14–15.

    ↑

64. Consultation 15 (Queensland Civil and Administrative Tribunal).

    ↑

65. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 109(1).

    ↑

66. For a full list of circumstances in which VCAT can award costs, see Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 109(3); Victorian Civil and Administrative Tribunal, Who Pays for My Legal Costs? (Web Page) <https://www.vcat.vic.gov.au/steps-to-resolve-your-case/on-hearing-day/who-pays-for-my-legal-costs>.

    ↑

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

    ↑

68. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 76.

    ↑

69. Neighbourhood Disputes About Plants Act 2017 (Tas) s 34(3).

    ↑

70. Consultation 9 (Nilumbik Shire Council).

    ↑

71. Peter Butt (ed), Butterworths’ Concise Australian Legal Dictionary (LexisNexis/Butterworths, 3rd ed, 2004) ‘appeal’.

    ↑

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

    ↑

73. Peter Butt (ed), Butterworths’ Concise Australian Legal Dictionary (LexisNexis/Butterworths, 3rd ed, 2004) ‘appeal by leave’.

    ↑

74. See generally Victorian Civil and Administrative Tribunal Act 1998 (Vic) pt 5.

    ↑

75. Victorian Civil and Administrative Tribunal, Annual Report 2017–18 (Report, 2018) 10; see also Victorian Civil and Administrative Tribunal, Appeal a VCAT Decision (Web Page) <https://www.vcat.vic.gov.au/steps-to-resolve-your-case/what-to-expect-after-the-final-hearing/appeal-a-vcat-decision>.

    ↑

76. Victorian Civil and Administrative Tribunal, Annual Report 2017–18 (Report, 2018) 10.

    ↑

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

    ↑

78. 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 (LexisNexis/Butterworths, 3rd ed, 2004) ‘question of law’.

    ↑

79. The president of VCAT is a judge of the Supreme Court; vice-presidents of VCAT are judges of the County Court: Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 10(1); 11(2).

    ↑

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

    ↑

81. Ibid s 148(1)(b).

    ↑

82. Ibid s 148(2); Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) ord 4; Supreme Court (General Civil Procedure) Rules 2015 (Vic) ord 64. See also order 64.19 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), which permits the Court of Appeal constituted by two or more judges to treat an application for leave to appeal as the hearing of the appeal.

    ↑

83. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(7)(a)–(d).

    ↑

84. Victorian Civil and Administrative Tribunal, Annual Report 2017–2018 (Report, 2018) 82.

    ↑

85. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 120.

    ↑

86. Ibid s 120(4)(b).

    ↑

87. Ibid s 120(1). A person seeking to reopen an order must apply and obtain the leave of VCAT within 14 days after they become aware of the order: Victorian Civil and Administrative Tribunal Rules 2018 (Vic) reg 4.24(1).

    ↑

88. VCAT must also consider whether the applicant had a reasonable case to argue in relation to the subject matter of the order as well as any prejudice that may be caused to another party if the application is heard and determined: See Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 120(4)(a)(i), (ii), 120(4A).

    ↑

89. Victorian Civil and Administrative Tribunal, ‘Application to Reopen An Order (Application for Review Section 120)’, Forms, Guides and Resources (Online Form, 26 July 2016) 1 <https://www.vcat.vic.gov.au/resources/application-to-reopen-an-order-application-for-review-section-120>.

    ↑

90. Ibid.

    ↑

91. Rehearings are a form of appeal which allows a case to be reopened and determined on both issues of fact and law. New material that was not produced in the original hearing may also be considered: Peter Butt (ed), Butterworths’ Concise Australian Legal Dictionary (Lexis Nexis/Butterworths, 3rd ed, 2004) ‘re-hearing’.

    ↑

92. In limited circumstances it is possible to apply for a re-hearing of a Guardianship and Administration case, Power of Attorney case, Disability Act case or Medical Treatment Planning and Decisions Act case. Guardianship and Administration Act 1986 (Vic), s 60A; Disability Act 2006 (Vic) s 197; Powers of Attorney Act 2014 (Vic) divs 4–5; Medical Treatment Planning and Decisions Act 2016 (Vic) s 88.

    ↑

93. Guardianship and Administration Act 1986 (Vic), s 60C; Medical Treatment Planning and Decisions Act 2016 (Vic) s 89; Disability Act 2006 (Vic) s 198; Powers of Attorney Act 2014 (Vic) ss 127, 129.

    ↑

94. Land and Environment Court Act 1979 (NSW) s 5(1).

    ↑

95. Ibid ss 56A(1), 57(1).

    ↑

96. Ibid s 56A(1). See, eg, Li v Fang [2018] NSWLEC 33.

    ↑

97. Ibid ss 57(1), 57(4)(a)–(b).

    ↑

98. Ibid s 39(3).

    ↑

99. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 164.

    ↑

100. Within the meaning of section 77(iii) of the Australian Constitution: Owen v Menzies (2012) 293 ALR 571. See also Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 164.

     ↑

101. Pamela O’Connor, Tribunal Independence (The Australasian Institute of Judicial Administration Incorporated, 2013) 3 n [19].

     ↑

102. Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 146, 147; Queensland Civil and Administrative Tribunal, Decision About a Minor Civil Dispute (Web Page, 15 February 2019) <https://www.qcat.qld.gov.au/qcat-decisions/appealing-a-qcat-decision/decision-about-a-minor-civil-dispute>.

     ↑

103. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3); Queensland Civil and Administrative Tribunal, Decision About a Minor Civil Dispute (Web Page,15 February 2019) <https://www.qcat.qld.gov.au/qcat-decisions/appealing-a-qcat-decision/decision-about-a-minor-civil-dispute>.

     ↑

104. Queensland Civil and Administrative Tribunal, Minor Civil Disputes—Appeals (Factsheet, version 3, May 2017) 1 https://www.qcat.qld.gov.au/qcat-decisions/appeals-in-minor-civil-disputes; Queensland Civil and Administrative Tribunal Act 2009 (Qld) sch 3 Dictionary ‘reopening ground’.

     ↑

105. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 147(2). For appeals concerning a question of fact or mixed law and fact, the appeal is decided by way of rehearing.

     ↑

106. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 147(2). In Bailey v Sullivan [2017] QCATA 86 Member Hughes explains, ‘The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce fresh evidence must satisfy three tests. Could the parties have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?’: [19], citing Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408.

     ↑

107. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 149(2).

     ↑

108. Ibid s 149(3)(a)–(b).

     ↑

109. Ibid s 149(3)(b).

     ↑

110. Ibid div 7; sch 3 Dictionary ‘reopening ground’.

     ↑

111. Ibid s 140(2).

     ↑

112. Resource Management and Planning Appeal Tribunal Act 1993 (Tas) s 25(1). See also Justice Alan Blow, Chief Justice of Tasmania, ‘Planning, Environment and Heritage Litigation and Legislation in Tasmania’ (Speech, Australasian Conference of Planning and Environment Courts and Tribunals, 5 March 2014) < https://www.supremecourt.tas.gov.au/publications/speeches-articles/>.

     ↑

113. Resource Management and Planning Appeal Tribunal Act 1993 (Tas) ss 25(5), 25(6)(a)–(b).

     ↑

114. Confidential submission.

     ↑

115. The doctrine of estoppel ‘is designed to protect a party from the detriment which would flow from that party’s change of position if the assumption or execution that led to it were to be rendered groundless by another’: Peter Butt (ed), Butterworths’ Concise Australian Legal Dictionary (LexisNexis/Butterworths, 3rd ed, 2004) ‘estoppel’.

     ↑

116. Consultation 11 (Land and Environment Court of New South Wales). Res judicata is ‘the rule that if a dispute is judged by a court of competent jurisdiction, the judgment of the court is final and conclusive as to the rights and duties of the parties involved. Res judicata constitutes an absolute bar to a subsequent suit for the same cause of action’: Peter Butt (ed), Butterworths’ Concise Australian Legal Dictionary (LexisNexis/Butterworths, 3rd ed, 2004) ‘res judicata’.

     ↑

117. The Court compared the outcomes in two cases: Zangari v Miller (No 2) [2010] NSWLEC 1093 and Hinde v Anderson [2009] NSWLEC 1148. In Zangari v Miller (No 2), the application was dismissed because further evidence from excavation works, which were not carried out in the first instance, did not present a change in circumstances or new evidence, as the evidence was available at the time of the original application: [3]–[5]. In Hinde v Anderson, where the applicant alleged the tree had caused damage subsequent to the original decision, the application for a new hearing was allowed because the Court considered there was scope to consider on substantive grounds these new circumstances and whether fresh evidence had become available: [39]. In the proceeding case, Hinde v Anderson (No 2) [2009] NSWLEC 1258, the application was considered on substantive grounds but dismissed due to a lack of evidence [15].

     ↑

118. Original jurisdiction means VCAT is the first instance decision maker under the Act. VCAT has original jurisdiction under Acts such as the Local Government Act 1989 (Vic) and the Owners Corporations Act 2006 (Vic). See Victorian Civil and Administrative Tribunal, Application to VCAT to Make an Original Jurisdiction Decision (Web Page) <https://www.vcat.vic.gov.au/case-types/review-and-regulation/application-to-vcat-to-make-an-original-jurisdiction-decision>.

     ↑

119. Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 120, 148(1).

     ↑

120. Department of Justice and Regulation (Vic), Access to Justice Review Report and Recommendations (2016) vol 1 [4.3.7].

     ↑

121. Hinde v Anderson [2009] NSWLEC 1148 [1]–[2].

     ↑

122. Consultations 2 (Dr Gregory Moore OAM), 4 (Participants in facilitated discussion at VTIO ArborCamp2018), 14 (Robert Mineo).

     ↑

123. Successors in title are discussed in Ch 11.

     ↑

124. Section 51(2) of the VCAT Act outlines the orders VCAT may make when reviewing a decision.

     ↑

125. Neighbourhood Disputes About Plants Act 2017 (Tas) ss 36(1), (6).

     ↑

126. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 133(1)(a)–(b); Queensland Civil and Administrative Tribunal, Renewal of QCAT’s Final Decision (Web Page, 26 May 2017) <https://www.qcat.qld.gov.au/qcat-decisions/enforcing-a-qcat-decision/renewal-of-qcats-final-decision>.

     ↑

127. Consultation 15 (Queensland Civil and Administrative Tribunal).

     ↑

128. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 134; Queensland Civil and Administrative Tribunal, Renewal of QCAT’s Final Decision (Web Page, 26 May 2017) <https://www.qcat.qld.gov.au/qcat-decisions/enforcing-a-qcat-decision/renewal-of-qcats-final-decision>.

     ↑

129. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 134(4).

     ↑

130. See Ch 5 for more information about the recommended causes of action under the new Act.

     ↑

131. Victorian Civil and Administrative Tribunal 1998 (Vic) s 121; see also Victorian Civil and Administrative Tribunal, VCAT Decisions and Orders (Web Page) <https://www.vcat.vic.gov.au/steps-to-resolve-your-case/what-to-expect-after-the-final-hearing/vcat-decisions-and-orders>.

     ↑

132. Victorian Civil and Administrative Tribunal 1998 (Vic) s 122; see also Victorian Civil and Administrative Tribunal, VCAT Decisions and Orders (Web Page) <https://www.vcat.vic.gov.au/steps-to-resolve-your-case/what-to-expect-after-the-final-hearing/vcat-decisions-and-orders>.

     ↑

133. Victorian Civil and Administrative Tribunal 1998 (Vic) s 137; see, eg, Julie R Davis, ‘Contempt in the Tribunal’, Foley’s List (Research Paper, 23 May 2014) <https://www.foleys.com.au/mobile/CpdResources.aspx>; Peter Butt (ed), Butterworths’ Concise Australian Legal Dictionary (LexisNexis/Butterworths, 3rd ed, 2004) ‘contempt of court’.

     ↑

134. Victorian Civil and Administrative Tribunal, Enforcing VCAT Orders (Web Page) <https://www.vcat.vic.gov.au/steps-to-resolve-your-case/what-to-expect-after-the-final-hearing/enforcing-vcat-orders>.

     ↑

135. See Justice Legislation Amendment (Access to Justice) Act 2018 (Vic) pt 10 div 5.

     ↑

136. The enforcement of orders in VCAT are in Part 10, Division 5 of the Amending Act. Part 10 comes into operation on a day or days to be proclaimed: s 2(2). If a provision of division 5 of part 10 does not come into operation before 1 July 2020, it comes into operation on that day: s 2(5).

     ↑

137. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 121(4).

     ↑

138. ‘Jurisdictional limit’ in a civil proceeding means $100,000: Magistrates’ Court Act 1989 (Vic) s 3.

     ↑

139. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 121(2).

     ↑

140. Ibid s 121.

     ↑

141. Justice Legislation Amendment (Access to Justice) Act 2018 (Vic) s 68.

     ↑

142. Department of Justice and Regulation (Vic), Access to Justice Review Report and Recommendations (2016) vol 1 288.

     ↑

143. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 133.

     ↑

144. Imprisonment is to last until compliance occurs or for three months (whichever is sooner): Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 133(1).

     ↑

145. Ibid s 133(1). The current value of a penalty unit is $161.19 (as at 1 July 2018 to 30 June 2019): Victorian Government Gazette, ‘Notice Under Section 6, Fixing the Value of a Fee Unit and a Penalty Unit’ (GG No S135, Thursday 29 March 2018) <https://www.dtf.vic.gov.au/financial-management-government/indexation-fees-and-penalties>.

     ↑

146. See, eg, Magistrates Court Act 1989 (Vic) s 25.

     ↑

147. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 122(1).

     ↑

148. Ibid s 122(2).

     ↑

149. Ibid s 122(3). A non-monetary order is commonly enforced in the Supreme Court by proceedings for contempt of court: Access to Justice Review Report and Recommendations (2016) vol 1, 254. A person found to be in contempt will face a fine, imprisonment or both. Imprisonment may be appropriate as ‘a coercive sanction, to compel compliance with the order, disregard of which constituted the contempt’: Judicial College of Victoria, ‘8.7 Sentencing in Contempt Cases’, Victorian Criminal Proceedings Manual (26 February 2018) <http://www.judicialcollege.vic.edu.au/eManuals/VCPM/index.htm#48747.htm>.

     ↑

150. Department of Justice and Regulation (Vic), Access to Justice Review Report and Recommendations (2016) vol 1, 288.

     ↑

151. Justice Legislation Amendment (Access to Justice) Act 2018 (Vic) s 69.

     ↑

152. Ibid s 69.

     ↑

153. Planning and Environment Act 1987 (Vic) s 123.

     ↑

154. A person is guilty of contempt of the Tribunal if they insult a member of the Tribunal while that member is performing functions as member; insult, obstruct or hinder a person attending a hearing before the Tribunal; misbehave at a hearing before the Tribunal; interrupt a hearing before the Tribunal; obstruct or hinder a person from complying with an order of the Tribunal or a summons to attend the Tribunal; do any other act that would, if the Tribunal were the Supreme Court, constitute contempt of that Court: Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 137(1).

     ↑

155. Kanter v Milroy Investments Australia Pty Ltd (Owners Corporations) [2015] VCAT 90 [222].

     ↑

156. Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 137(1), 137(5).

     ↑

157. Ibid s 137(5)(a). The current value of a penalty unit is $161.19 (as at 1 July 2018 to 30 June 2019): Victorian Government Gazette, ‘Notice Under Section 6, Fixing the Value of a Fee Unit and a Penalty Unit’ (GG No S135, Thursday 29 March 2018) <https://www.dtf.vic.gov.au/financial-management-government/indexation-fees-and-penalties>.

     ↑

158. [2015] VCAT 90.

     ↑

159. Kanter v Milroy Investments Australia Pty Ltd (Owners Corporations) [2015] VCAT 90 [268], [274].

     ↑

160. Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal).

     ↑

161. Justice Legislation Amendment (Access to Justice) Act 2018 (Vic) s 70(1)(ea).

     ↑

162. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 120(1).

     ↑

163. Department of Justice and Regulation (Vic), Access to Justice Review Report and Recommendations (2016) vol 1, 288, Recommendation [5].

     ↑

164. Justice Legislation Amendment (Access to Justice) Act 2018 (Vic) s 67(1).

     ↑

165. Ibid s 67(4).

     ↑

166. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 15(1).

     ↑

167. Land and Environment Court of New South Wales, Enforcement (Web Page, 2 May 2015) <http://www.lec.justice.nsw.gov.au/Pages/coming_to_the_court/end_of_a_case/enforcement.aspx>; see section 17 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which provides that ‘unless the contrary intention appears, a reference in any Act or statutory rule to a number of penalty units (whether fractional or whole) is taken to be a reference to an amount of money equal to the amount obtained by multiplying $110 by that number of penalty units’.

     ↑

168. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 15(2); Land and Environment Court Act 1979 (NSW) s 21. See also Land and Environment Court of New South Wales, Practice Note Class 5: Proceedings, 29 March 2018 <http://www.lec.justice.nsw.gov.au/Pages/practice_procedure/practice_notes.aspx>. Enforcement of a non-monetary order may also be pursued based on the Uniform Civil Procedure Rules 2005 (NSW) pt 40 div 2, which also set out criminal penalties for non-compliance.

     ↑

169. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 17.

     ↑

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

     ↑

171. Department of Justice and Attorney General (NSW), Review of the Trees (Dispute Between Neighbours) Act 2006 (NSW) (Report, 2009) 1.

     ↑

172. Land and Environment Court of New South Wales, Enforcement (Web Page, 2 May 2015) <http://www.lec.justice.nsw.gov.au/Pages/coming_to_the_court/end_of_a_case/enforcement.aspx>.

     ↑

173. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 91.

     ↑

174. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, December 2015) [5.25] citing Franchi v Yazdani (No 2) [2015] QCAT 112, [11].

     ↑

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

     ↑

176. Queensland Government, Sentencing Fine and Penalties for Offences (Web Page, 5 July 2018) <https://www.qld.gov.au/law/fines-and-penalties/types-of-fines/sentencing-fines-and-penalties-for-offences>. The penalty unit value in Queensland is $130.55 (current from 1 July 2018).

     ↑

177. Instead it was suggested that the general penalty for non- compliance under the QCAT Act would be sufficient. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 213.

     ↑

178. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, (Report No 72, December (2015) [5.125]

     ↑

179. Ibid [5.127]

     ↑

180. Ibid [5.126]

     ↑

181. Ibid 242.

     ↑

182. Ibid [5.68].

     ↑

183. Ibid [5.68]; see, eg, Attwell v Oman [2017] QCAT 251.

     ↑

184. Ibid [5.69].

     ↑

185. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 88.

     ↑

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

     ↑

187. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 131. The Magistrates Court has jurisdiction to enforce monetary orders up to and including $150,000. For larger amounts, the QCAT order may need to be enforced through the District Court (from $150,000 up to $750,000) or the Supreme Court (more than $750,000): Queensland Civil and Administrative Tribunal, Enforcing a QCAT Decision (Web Page, 13 November 2018) <https://www.qcat.qld.gov.au/qcat-decisions/enforcing-a-qcat-decision#Non-monetary%20decisions>.

     ↑

188. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 132(6)(a). Non-monetary QCAT Orders for minor civil disputes can be filed in the Magistrates’ Court: s 132(7)(a); however tree disputes under the Queensland Act are not considered minor civil disputes (cf. fence disputes): Queensland Civil and Administrative Tribunal, Minor Civil Disputes (Web Page, 25 October 2018) <https://www.qcat.qld.gov.au/matter-types/minor-civil-disputes>.

     ↑

189. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 132(5).

     ↑

190. Resource Management and Planning Appeal Tribunal, Practice Direction No 14—Civil Enforcement Proceedings, amended 1 March 2016) 14.12 <https://www.rmpat.tas.gov.au/practice_directions>.

     ↑

191. Submissions 5 (Name withheld), 6 (Name withheld), 7 (Ben Kenyon), 20 (Name withheld), 21 (Pointon Partners Lawyers), 23 (Name withheld), 27 (Name withheld).

     ↑

192. Submissions 4 (Name withheld), 5 (Name withheld), 6 (Name withheld), 7 (Ben Kenyon).

     ↑

193. Submissions 2 (Name withheld), 25 (City of Boorondara); Consultations 9 (Nillumbik Shire Council), 10 (Baw Baw Shire Council).

     ↑

194. Submission 25 (City of Boorondara).

     ↑

195. Consultation 9 (Nillumbik Shire Council).

     ↑

196. Consultation 10 (Baw Baw Shire Council).

     ↑

197. Consultations 11 (Land and Environment Court of New South Wales), 15 (Queensland Civil and Administrative Tribunal).

     ↑

198. Consultation 11 (Land and Environment Court of New South Wales).

     ↑

199. Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal).

     ↑

200. Submissions 11 (Name withheld), 25 (City of Boorondara).

     ↑

201. Submission 25 (City of Boorondara).

     ↑

202. Submission 23 (Name withheld).

     ↑

203. Consultation 2 (Dr Gregory Moore OAM).

     ↑

204. This is a similar approach to section 123 of the Planning and Environment Act 1987 (Vic).

     ↑

205. Submission 27 (Name withheld).

     ↑

206. Submission 19 (Name withheld).

     ↑

207. Department of Justice and Regulation (Vic), Access to Justice Review Report and Recommendations (2016) vol 1, 288.

     ↑

208. Ibid vol 1, 288.

     ↑

209. For example, the VCAT Act states that for non-compliance with a non-monetary order, a person may be fined $3223.80 plus an additional $805.95 for each day of non-compliance up to a maximum of $8059.50: Victorian Civil and Administrative Tribunal Act 1998 (Vic)

     s 133(1). The current value of a penalty unit is $161.19 (as at 1 July 2018 to 30 June 2019): Victorian Government Gazette, ‘Notice Under Section 6, Fixing the Value of a Fee Unit and a Penalty Unit’ (GG No S135, Thursday 29 March 2018) <https://www.dtf.vic.gov.au/financial-management-government/indexation-fees-and-penalties>.

     ↑

210. VCAT noted that several enabling Acts contain penalty provisions for failure to comply with orders, for example, the Motor Car Traders Act 1986 and the Owners Corporations Act 2006: Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal).

     ↑

211. See, eg, Victorian Civil and Administrative Tribunal Act 1998 (Vic), sch 1 cl 77A.

     ↑

212. Submissions 4 (Name withheld), 5 (Name withheld), 6 (Name withheld), 7 (Ben Kenyon), 38 (L. Barry Wollmer).

     ↑

213. Consultation 10 (Baw Baw Shire Council).

     ↑

214. Note also during the NSW Act’s statutory review the NSW Department of Justice and Attorney General found that local councils usually do not agree to enforce orders on the request of neighbours: See Department of Justice and Attorney General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Report, 2009) 17.

     ↑

215. Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal).

     ↑

216. See Ch 11 for discussion of options when a purchaser of land is not properly informed about an existing action in VCAT or an order.

     ↑

217. Planning and Environment Act 1987 (Vic) s 123.

     ↑

218. Fences Act 1968 (Vic) s 30F and 30I.

     ↑

219. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, December 2015) Recommendation 5-1(a)–(b).

     ↑

220. Land and Environment Court of New South Wales, Practice Note Class 2: Tree Applications, 1 December 2018, 10

     <http://www.lec.justice.nsw.gov.au/Pages/practice_procedure/practice_notes.aspx>; Land and Environment Court of New South Wales, Schedule A. Usual Directions on the Preliminary Hearing for Tree Applications (November 2018) cl 13 <http://www.lec.justice.nsw.gov.au/Pages/types_of_disputes/class_2/Trees-hedge-disputes-process/treedisputes_prelimhearing.aspx>.

     ↑