Neighbourhood Tree Disputes: Report (html)

12. Community resources for neighbourhood tree disputes

Introduction

12.1 The resolution of tree disputes is hindered by a poor understanding of the law and a lack of supporting information. Community members must piece together information published by different government and community agencies to work out a possible resolution process. The Commission has also been told that the community does not have a good understanding of which experts can assist them. In particular, there is limited awareness of the role and qualifications of arborists.

12.2 This chapter considers what supporting material should be created to help the community to understand how the new Act works in practice and better prepare people to resolve their disputes both through the Victorian Civil and Administrative Tribunal (VCAT) and informally.

Current resources

12.3 There are already some information sources available to the community to help prevent tree disputes and to resolve them as they arise. These range from information about responsible tree planting to information that supports alternative dispute resolution. Not all of these resources are easy to find and they are not universally available across Victoria.

Responsible tree planting

12.4 It was widely recognised in responses to the Commission that appropriate planting of trees—by species and location—may minimise the occurrence of tree disputes.^[1] Around Victoria some councils provide information to residents about sustainable planting and some provide helpful guidance about planting more generally.

12.5 Sustainable Gardening Australia (SGA) has produced comprehensive booklets on sustainable gardening for some local government areas within Victoria.^[2] The booklets contain information on plant selection to suit local conditions of soil and climate.

12.6 For example, the City of Mildura Rural City Council SGA booklet classifies a range of plants according to their growing requirements (such as drought-tolerant), the origin of the plant (native or nonnative) and the growing habit of the plants (such as its anticipated

height and width).^[3] It also lists plant species that are invasive in the Mildura area and should not be considered for planting.^[4]

12.7 Some council nurseries are directly involved in sustainable planning programs in their communities. The Mornington Peninsula Shire nursery grows an extensive range of indigenous plants from locally collected seed for retail sale to the public.^[5] The range includes groundcovers, grasses, wildflowers, shrubs and trees. Banyule City Council also encourages the planting of native tree species and provides a buy-one-get-one-free voucher as an incentive for residents to select native plants.^[6] Vouchers can be redeemed at selected nurseries, with a link to the Victorian Indigenous Nurseries Cooperative provided on council’s website.^[7] In this way, council nurseries play a role in advising people about what species are appropriate to plant on their land.^[8]

12.8 In addition, some councils have helpful information on their websites and in policy documents about which plant species are most suitable for the local environment.^[9] For example, the City of Boroondara has a website dedicated to ‘choosing suitable trees’ and advises residents to take certain steps prior to selecting trees. These include considering:

• whether the tree will have enough space to grow healthily

• whether the size of the tree when fully grown could affect built structures on the land and on neighbouring land

• whether root growth could cause damage to underground pipes.^[10]

Talking with your neighbour

12.9 Chapter 2 identifies that a break-down in communication between neighbours is an underlying factor that contributes to tree disputes in our community.

12.10 Some government and community organisations have published useful resources aimed at helping neighbours to resolve their tree disputes. Chapter 3 briefly canvassed some of the strategies promoted in these materials about how to negotiate effectively with your neighbour.

12.11 The Dispute Settlement Centre of Victoria (DSCV) has a section on its website about resolving tree disputes. It advises affected neighbours to engage a tree professional and obtain a quote about any proposed tree works prior to talking with the tree owner.^[11] It suggests the following approach:

Find out your neighbour’s concerns over an informal chat. Ask yourself:

“Have I really listened to them and tried to come up with a solution?”

“What am I willing to negotiate over?”

“Is there a different way to resolve this?”^[12]

12.12 If an informal discussion does not resolve the issue and the parties have been unable to reach a solution on their own, DSCV recommends its free mediation services as a possible next step.

12.13 The Fitzroy Legal Service’s Law Handbook offers practical tips and encourages neighbours to resolve disputes informally:

Clear and open communication between neighbours with the aim of working out a dispute in a cooperative and friendly way is more likely to bring about a long-term outcome that all parties are able to live with.^[13]

12.14 The Law Handbook provides a brief overview of the common law action in nuisance as well as the self-help remedy of abatement.^[14] People are encouraged to discuss any proposed branch removal with neighbours prior to undertaking the work.^[15]

12.15 The Victorian Law Foundation has published a guide, Neighbours, the Law and You, on how to be a good neighbour, explaining individual rights and responsibilities in relation to common issues that arise such as overhanging tree branches or roots.^[16] The guide provides information about how local councils may be able to help because actions could be dependent on local law and planning schemes. It also includes information about abatement, and provides links to DSCV and to the Magistrates’ Court websites. The clearing of vegetation in rural areas is also addressed, with individuals advised to contact the Country Fire Authority or the Metropolitan Fire Brigade if they are concerned about vegetation on neighbouring land posing a bushfire risk.

12.16 Local council websites and customer service centres often provide a range of information and links, with significant variation in detail between councils. Individuals can find relevant information about their local council on a dedicated government website.^[17]

Engaging an arborist

12.17 The City of Port Phillip noted that the community is generally unaware of how to obtain advice from a suitably qualified arborist.^[18]

12.18 Many people work in the tree care industry and some have undertaken little or no training.^[19] However, Dr Gregory Moore OAM noted that arborists in Victoria are generally well trained. He suggested that there are approximately 1000 arborists with qualifications of level 4 or above.^[20]

12.19 ENSPEC noted that ‘arboriculture is an unregulated profession, meaning that there is a wide variation in the quality of training, experience and up-to-date knowledge amongst practitioners. There is also no professional recourse to address unethical behaviour as there is in licenced professions.’^[21] Arboriculture Australia, the national peak body for arborists, has introduced a voluntary industry licence to promote quality of practice.^[22]

12.20 The City of Port Phillip advises the community to ‘be aware of unsolicited door knockers’ who are usually ‘unqualified tree loppers who try to intimidate people … into removing healthy trees’.^[23]

12.21 Arborist Robert Mineo commented that the community does not generally understand the different qualification levels of arborists.^[24]

12.22 Arboriculture Australia, the peak national organisation promoting and representing arborists, has established an online directory for consulting and practising arborists.^[25] Arboriculture Australia distinguishes between practising and consulting arborists to help the community to understand arborist qualifications.^[26]

Alternative dispute resolution

12.23 DSCV maintains a comprehensive and informative website which gives a general outline of the law, sets out answers to frequently asked questions about trees, and provides a step-by-step guide to seeking a reasonable resolution.^[27] During consultations Baw Baw Shire Council commended DSCV’s website, especially the case studies, as providing information that is clear, simple and helpful.^[28]

12.24 A helpful case study of a mediation on DSCV’s website steps the community through the process and explains what to expect.^[29] It also includes information about community mediation more generally that covers determining whether a matter is suitable for mediation, what happens in mediation and the benefits of mediation.^[30]

Court/Tribunal resources

12.25 VCAT has existing online resources to help parties to resolve their case in a timely, cost-effective and efficient way.^[31] Resources include practice notes and factsheets, as well as application guides for particular types of dispute.^[32] VCAT’s website clearly outlines the ‘Steps to Resolve Your Case’ from lodging an application with VCAT through to what to expect at the final hearing.^[33]

12.26 The website encourages applicants to represent themselves, discussing the resolution of cases by agreement and detailing the alternative dispute resolution services that are available at VCAT. Making an agreement legally binding via Consent Orders at VCAT is also canvassed.

12.27 Some people commented on the effectiveness of proceedings in the Magistrates’ Court under the Fences Act 1968 (Vic).^[34] The Magistrates’ Court provides helpful information for neighbours contemplating action under the Fences Act. A comprehensive Information Guide provides general information about the civil process for fencing disputes in the Court and outlines key definitions under the Fences Act.^[35] The guide strongly advises people to seek advice or mediation through DSCV and also outlines how to commence a proceeding.^[36]

12.28 These resources provide a useful foundation for the development of specific materials to underpin the new Act.

Other jurisdictions—community resources

12.29 Interstate jurisdictions that have enacted specific tree dispute Acts have produced a range of very helpful material to assist the community.

New South Wales

12.30 Community Justice Centres (CJCs) provide free mediation services and encourage parties to resolve their dispute before taking the matter to court. The Community Justice Centre website provides information about resolving neighbourhood disputes, including talking to your neighbour, asking a third party for help and contacting the CJC to arrange a mediation.^[37] The website refers people to a NSW State Library-published guide to neighbours and the law which covers tree issues.^[38]

12.31 The NSW Act is supported by a wide range of useful resources for the community. The Commission has been impressed by this information and found it particularly helpful in its preliminary research for this inquiry.

12.32 First, the NSWLEC maintains a comprehensive website dedicated to the resolution of neighbourhood tree disputes.^[39] Helpful materials include:

• a detailed step-by-step Plain English guide to understanding the application of the NSW Act

• an annotated version of the NSW Act ^[40]

• tree dispute principles which guide the community on the interpretation of the Act^[41]

• case studies

• a Practice Note

• court forms and fees.

12.33 The NSWLEC emphasised the usefulness of its step-by-step Plain English guide,^[42] which explains the requirements and process at each stage of the Court proceedings, helping parties to be better prepared for their court appearances.^[43]

12.34 The annotated version of the NSW Act available on the NSWLEC website outlines key cases to elaborate on sections of the NSW Act and explains how the law applies to particular fact scenarios. A 2009 review of the NSW Act undertaken by the NSW Department of Justice and Attorney General found:

Generally, annotated legislation is published in textbook or looseleaf format, and is not available for free. It is highly unusual – if not unique – for a Court to have developed, published and maintained such a valuable resource, and made it available without charge.^[44]

12.35 In a submission to that review, the Law Society of NSW commented:

The level of information and assistance provided to applicants, tree owners and Local Councils contributes greatly to the Court being able to deliver a simple and low cost dispute resolution system.^[45]

12.36 In terms of educating the community about the NSW Act, the NSWLEC has run seminars in conjunction with professional bodies, such as the Law Society of NSW.^[46] Commissioners have also given speeches to tertiary institutions and professional arboricultural associations. A journal article was also published detailing the background and operation of the Act.^[47]

Queensland

12.37 QCAT has a website dedicated to tree dispute hearings.^[48] It has links to various resources, including:

• an information guide about the Queensland Act

• an application checklist

• a fact sheet on overhanging branches and debt recovery

• a list of frequently asked questions

• a list of tree professionals at the Queensland Arboricultural Association

• a tree order register

• a neighbourhood mediation kit

• tips on how to manage conflict.

12.38 The application checklist requires applicants to ensure upfront that their tree dispute falls within QCAT’s jurisdiction. It also informs them about fees and provides links to relevant Tribunal forms.^[49]

12.39 The neighbourhood mediation kit contains information about the mediation process at a Dispute Resolution Centre within Queensland and contains a workbook for individuals to fill out in preparation for mediation. The workbook helps people to organise their thoughts and think about how and what they may wish to say during the mediation.^[50]

12.40 The tree order register enables individuals to search for a tree order made by QCAT, either by location or the name of the applicant or the respondent in the matter.^[51] The register shows what land is affected by an order and includes who is responsible for carrying out the order and in what timeframe.^[52]

12.41 QCAT has recently introduced a chatbot^[53] on its website, known as SANDI. People can type in questions, or note issues such as ‘overhanging branches’ in a search box, and SANDI responds by providing information and links to the QCAT webpages and forms.^[54]

12.42 QCAT told the Commission that the range of resources currently available to the community is working effectively to help people to resolve their disputes.^[55]

12.43 The Queensland Government also has a webpage about resolving disputes about fences, trees and buildings.^[56] It contains information about avoiding tree disputes, for example, by keeping on good terms with neighbours and putting some thought into appropriate planting. A step-by-step guide to resolving tree disputes provides information about mediation through dispute resolution bodies, and explains how tree disputes can be resolved at QCAT.

12.44 The Queensland Government website directs users to resources to resolve particular types of neighbourhood dispute, including problems with next-door-neighbours about trees.^[57] This website aims to make services easier to find and use.^[58]

12.45 The Queensland Government website has also introduced a chatbot, named MANDI, which provides information about common neighbourhood issues, including trees.^[59]

Tasmania

12.46 A Practice Direction published by RMPAT in September 2018 is available on RMPAT’s website.^[60] It provides a guide to completing the application forms and information about the tribunal process.^[61] A link is also provided to the Tasmanian Government Department of Justice website where there is a detailed overview of the Tasmanian Act and information about how to resolve tree disputes informally.^[62]

12.47 A database containing details of orders and applications has been established by RMPAT. People can search the database by submitting an application and paying the prescribed fee.^[63] Information in the database includes: the terms of the order, when it takes effect, when any work is to be carried out and by whom.^[64]

Community responses—community resources

12.48 Chapter 2 canvassed community concerns about the lack of information and assistance available to help people resolve tree disputes in Victoria. DSCV highlighted that there is low awareness in the community about existing rights and obligations and that many people contact DSCV ‘purely to enquire about their rights and obligations with regards to tree issues’.^[65]

12.49 Specific suggestions from the community included:

• a dedicated website that promotes informal dispute resolution as a first step to resolving tree disputes^[66]

• information about responsible tree planting, including types of species and suitable locations^[67]

• information to help applicants fill out prescribed forms and navigate other processes under new laws^[68]

• information about where to go for professional arboricultural advice^[69]

• a tree order register or database.^[70]

12.50 Pointon Partners emphasised that assisting the community to access relevant planning and local law controls would be of great assistance.^[71] This view was echoed by Nillumbik Shire Council in relation to planning scheme provisions.^[72]

12.51 The Commission met with some councils who provided information about ways to get information to the community. Nillumbik Shire Council and Baw Baw Shire Council suggested that they may be in a position to provide educational resources to support new laws.^[73] The City of Port Phillip believed it could play a role recommending sensible tree planting guidelines to prevent tree disputes.^[74]

12.52 Baw Baw Shire Council emphasised that planting guidelines about what people could plant in their backyards should complement new laws.^[75]

12.53 Some arborists explained that they often educate neighbours about the law.^[76] Arborists can help parties with tree disputes at multiple stages, from initially communicating with neighbours to providing expert evidence during the formal resolution of disputes. One arborist explained that he is usually called ‘at the quoting stage’ and can sometimes end up next door to talk to the other party about the tree, manage the dispute and effectively act as a mediator. The arborist estimated that he achieves good outcomes for both parties nine times out of ten.^[77] It will be important that arborists understand the operation of the new Act, given their central role as information disseminators in the community.

12.54 Some arborists noted that contracts for sale of land should be required by law to contain information and guidelines about how to live with neighbours so that new owners understand their responsibilities about trees, fences, drainage, and other matters likely to be subject to neighbourhood disputes.^[78]

The Commission’s conclusions—community resources

A new tree disputes website

12.55 The Commission agrees with the community’s views about the need for a website dedicated to the resolution of neighbourhood tree disputes. A website would ensure that information is widely available, including in regional areas.

12.56 The Commission recommends that this website be established and hosted by the Department of Justice and Community Safety. This department already hosts a helpful webpage about the Fences Act. Information about the new Neighbourhood Tree Disputes Act could be co-located with this.^[79]

12.57 The website should include the following key information:

• guidance on how to negotiate with your neighbour, including a sample standard letter which affected neighbours can use to communicate with the tree owner about a problem tree

• information about informal resolution options, including abatement

• detailed information on alternative dispute resolution (ADR) and a link to the DSCV website highlighting that DSCV provides a free service to the community outside of the VCAT hearing process

• guidance on engaging appropriately qualified arborists to help resolve tree disputes, with a link to the online directory maintained by Aboriculture Australia

• a step-by-step overview of the law

• information to help people decide whether they can commence proceedings under the new Act and how to go about doing this, with links to the VCAT webpage containing application forms and prescribed fees

• information about how to identify their local council, and the zone of the property.

• other laws (planning scheme overlays and local, environmental or heritage laws) that may apply to the problem tree and links to relevant government authorities such as the Department of Environment, Land, Water and Planning, Heritage Victoria and Aboriginal Victoria.

12.58 The Department of Environment, Land, Water and Planning has a website where property reports can be generated free of charge.^[80] A ‘Basic Property Report’ identifies the relevant council, the planning zone, the application of any planning overlays, whether the area is of Aboriginal Cultural Heritage Sensitivity, and whether the property is in a designated bushfire prone area. There is also a downloadable PlanningVIC app for Apple and android phones.^[81]

12.59 The recommended website could prompt people to ask their councils whether local tree protection laws apply to the land that the tree is situated on or the tree itself.

12.60 The recommended sample letter for communicating with neighbours could be similar in format to the letter published by Community Legal Centres Queensland, suggesting affected neighbours:

• identify themselves, their address and the problem tree (this may include a sketch plan showing the location of the tree)

• outline how the problem tree is affecting their land or property on their land

• ask the tree owner if they would be willing to set aside a time to discuss the issue to determine whether the issue can be resolved.^[82]

12.61 Another useful guide for material to include in a standard letter is contained in the prescribed notice under section 22 of the Tasmanian Act. This notice can be used when a formal branch removal notice cannot be issued under the Tasmanian Act.^[83] The Commission notes that this prescribed notice is more formal than that envisaged for the new Act but it asks for useful information such as how the plant affects the neighbour’s land and what actions the affected neighbour would like the tree owner to take to resolve the issue.

Information provided by VCAT

12.62 The VCAT Practice Note for matters in the Planning and Environment List is helpful and outlines general procedures and timeframes for matters in that list.^[84] The Commission considers that a more detailed guide, similar in format to the guide developed by the Magistrates’ Court for fencing disputes, would greatly assist applicants in matters under the new Act.

12.63 A further consideration is making the reasoning behind tree dispute outcomes public. This would enable people to understand how and why tree disputes decisions have been made and help them to anticipate how their matters might be resolved. It would also give the community information about how the law applies.

12.64 It is VCAT’s current practice to publish all written decisions on the Australian Legal Information Institute website (AustLII). VCAT also publishes high-profile decisions on its website.^[85] Decisions that are handed down orally are not always published, but a party can request written reasons for final orders under section 117 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Currently, under clause 4J of schedule 1 to the VCAT Act, a request for written reasons in a small claim proceeding must be made before or at the time of the hearing. Under the Justice Legislation Amendment (Access to Justice) Act 2018 clause 4J will be repealed thereby allowing parties to request written reasons for decisions for small claims within 14 days of the hearing in accordance with s 117. This reform is expected to commence by 1 July 2019.^[86] It was suggested that proposed changes could lead to fewer oral decisions being made at VCAT.^[87]

12.65 The Commission has been informed that NSWLEC’s an annotated version of the NSW Act is ‘very helpful to community members’ and it is of the view that such a resource would assist both informal and formal dispute resolution processes.^[88] VCAT advised the Commission that it has prepared annotated Acts for Owners Corporations and Residential Tenancies legislation which are published by ANSTAT. ANSTAT then publishes and maintains the electronic versions of these Acts for VCAT. The Commission observes that free public access to an annotated Act is important. Any cost associated with its use may limit its usefulness to professionals.

12.66 In Chapter 8 it was recommended that VCAT develop a specific Practice Note about the need for a causal link between the tree and any harm that is the subject of an application. It was also recommended that VCAT’s Practice Note about expert evidence be modified to include additional requirements for tree disputes. The Commission considers that information about the new Act on VCAT’s website should include a link to the recommended Practice Note about establishing harm and to other relevant Practice Notes, including those about expert evidence^[89] and ADR.^[90] Reminding parties about VCAT’s powers to refer parties to mediation and other ADR processes may encourage them to use community-based mediation before initiating an application.

Improving awareness of DSCV

12.67 DSCV receives a large number of enquiries about tree disputes.^[91] However, the Commission was told that its services are not widely known to arborists^[92] or some councils.^[93] This should be addressed because arborists often act as intermediaries between disputing neighbours^[94] and often play a pivotal role in helping to resolve disputes. It would therefore be beneficial for arborists to refer parties to DSCV.

12.68 DSCV undertakes community education workshops including sessions about the services offered by DSCV.^[95] Arborists and councils should be targeted for such information sessions about the services offered by DSCV to assist with the resolution of neighbourhood tree disputes.

Local council resources

12.69 The Commission is cautious about recommending that councils take on additional responsibilities given that public land is outside the scope of the new Act. However, some councils have advised that they are often contacted for advice from residents about private disputes and are therefore in a good position to direct parties towards practical information that may prevent these disputes arising, or ensure that they are resolved swiftly.^[96] The Commission’s recommendations below are within the scope of activities that councils currently perform. The Commission also notes that a continuing role for councils is contemplated in the recommendations that consider the overlap between the new Act and existing local laws in Chapter 10.

Responsible planting

12.70 Supporting new laws with information about responsible planting would help prevent tree disputes occurring. This information should include guidance about what species would be sensible to plant and where to plant these in relation to neighbouring land. This information will encourage property owners to think more carefully about how particular plants grow and whether they are likely to drop fruit and leaves. It will also encourage people to think about the longterm consequences of planting particular species on their properties.

12.71 Councils should be encouraged to develop tree planting guidelines to disseminate to the local community. As noted earlier, some councils already do this. This information should be more broadly available across our communities. For neighbourhoods with little vegetation, guidance could simply consist of advice about which types of trees may not be suited to urban spaces or fence lines. Councils may also provide useful information about tree height relevant to the size of the land.^[97]

More accessible information about local laws

12.72 Chapter 10 identified that it would be helpful for the community to have better access to information about the local laws that apply to trees in council areas and how these laws work. There is confusion in the community about how and when local laws may apply to trees on private land. This was also recognised as an issue in the review of the Queensland Act.^[98]

12.73 Councils with local tree protection laws should ensure there is publicly accessible information about these laws on council websites. This information, even when available on websites, is often hard to find. The City of Port Phillip has published a factsheet about local tree protection laws. This is a good example of the information that should be more widely available.^[99]

Guidance about hiring an arborist

12.74 The Commission was told that councils regularly employ arborists to protect, maintain and plant new trees on public land.^[100] Councils are well placed to give local residents information about what to look for in an arborist; how arborists can help with disputes; and arborists’ qualification levels. Some councils already provide good information and this could be supplemented with a link to Arboriculture Australia that could provide easily accessible information about qualification levels.

Further community education

12.75 The proposed Act will not only impact the parties to a dispute but also professional bodies, in particular arborists. For example, the new Act will modify abatement and outline decision-making principles to guide the resolution of tree disputes in VCAT and include requirements for expert evidence. Given that arborists are often involved early on in tree disputes, it is vital that they have access to information about the operation of the new Act.

12.76 To that end the Commission is of the view that educational sessions should occur for arboricultural groups, councils, DSCV and other interested organisation or bodies that are likely to be involved in, or contacted for information about, the new Act.

Recommendations

56 A website should be established by the Department of Justice and Community Safety which would provide:

(a) guidance on how to negotiate with your neighbour, including a sample standard letter that affected neighbours can use to communicate with the tree owner about a problem tree

(b) information about informal dispute resolution mechanisms

(c) detailed information on alternative dispute resolution and a link to the Dispute Settlement Centre of Victoria website

(d) guidance on engaging appropriately qualified arborists

(e) a step-by-step overview of the Act

(f) information on how to commence proceedings

(g) guidance about how to seek information about other laws that may apply from government authorities and local councils.

Recommendations

57 The Victorian Civil and Administrative Tribunal should provide supporting information for parties about the operation of the Act and Tribunal processes. Resources could include:

(a) a detailed information guide, similar in format to the guide developed by the Magistrates’ Court for fencing disputes

(b) information about key decisions made under the Act

(c) an annotated version of the Act outlining how the Tribunal has interpreted particular provisions and highlighting key cases

(d) a link to the Dispute Settlement Centre of Victoria website

(e) key Practice Notes relevant to tree disputes, for example, about the provision of expert evidence and alternative dispute resolution.

58 The services of the Dispute Settlement Centre of Victoria should be promoted more broadly. Community engagement workshops could be conducted for the arboricultural industry and other interested organisations and professional bodies.

59 Local councils should continue to provide resources to the community relevant to tree disputes. These resources could include:

(a) tree planting guidelines suited to local areas

(b) fact sheets on the application of local tree protection laws

(c) information about engaging appropriately qualified arborists.

60 The arboricultural industry should provide information to the community about how people can identify and engage appropriately qualified arborists.

1. Submissions 1 (Ian Collier), 5 (Name withheld), 22 (Name withheld), 24 (Name withheld); Consultations 4 (Participants in facilitated discussion at VTIO ArborCamp2018), 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.

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2. Sustainable Gardening Australia, Gardening Booklets for Local Areas (Booklets, 2019) <https://www.sgaonline.org.au/sustainable-gardening-booklets/>. Sustainable Gardening Australia is a not-for-profit organisation promoting environmentally sustainable gardening. It offers gardening booklets for these local government areas: Brimbank, Casey, Darebin, East Gippsland and Wellington Shire, Frankston, Hobsons Bay, City of Melbourne, Hume, Melton, Mildura Region, Mitchell/Strathbogie, Moonee Valley, Moreland, Nillumbik, Stonnington, Whittlesea, Wyndham and the Yarra Ranges.

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3. Mildura Rural City Council and Sustainable Gardening Australia, Sustainable Gardening in the Mildura Region (Booklet, 2011) 21–31.

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4. Ibid 33.

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5. Morning Peninsula Shire, Shire (Briars) Nursery (Web Page, 2019) <https://www.mornpen.vic.gov.au/Activities/The-Briars/Shire-Nursery>.

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6. Banyule City Council, Native Plant Vouchers (Web Page) <https://www.banyule.vic.gov.au/Council/Environment-and-Sustainability/Trees-and-Plants/Native-Plant-Vouchers>.

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7. Ibid.

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8. Consultation 10 (Baw Baw Shire Council).

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9. See, eg, Moreland City Council, Gardening with Indigenous Plants (Web Page) <https://www.moreland.vic.gov.au/environment-bins/gardening-and-food/gardening-indigenous-plants/>; City of Casey and Cardinia Shire Council, Indigenous Plant Guide (Booklet) <https://www.casey.vic.gov.au/indigenous-plants>; City of Boroondara, Choosing Suitable Trees (Web Page, 2019) <https://www.boroondara.vic.gov.au/waste-environment/trees-and-naturestrips/choosing-suitable-trees>.

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10. City of Boroondara, Choosing Suitable Trees (Web Page, 2019) <https://www.boroondara.vic.gov.au/waste-environment/trees-and-naturestrips/choosing-suitable-trees>.

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11. Dispute Settlement Centre of Victoria, Trees (Web Page, 24 April 2019) <https://www.disputes.vic.gov.au/information-and-advice/trees-0>.

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12. Ibid.

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13. Peter Cotter, ‘Neighbour Disputes’ in Naomi Saligari (ed), The Law Handbook 2019: Your Practical Guide to the Law in Victoria (Fitzroy Legal Service, 41st ed, 2019) 539.

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14. Ibid 542–3.

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15. Ibid.

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16. Victoria Law Foundation, Neighbours, the Law and You: Your Guide to Neighbourhood Laws in Victoria, Victoria Legal Aid (Brochure, March 2015) <https://www.legalaid.vic.gov.au/find-legal-answers/free-publications-and-resources/neighbours-law-and-you>.

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17. Victorian Government, Know Your Council (Web Page) <https://knowyourcouncil.vic.gov.au/home>.

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18. Consultation 12 (City of Port Phillip).

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19. Consultation 12 (City of Port Phillip). This is also recognised by Arboriculture Australia, Australian Qualification Framework (AQF) and Australian Training Programs (Web Page) <http://arboriculture.org.au/Qualification>.

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20. Consultation 2 (Dr Gregory Moore OAM).

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21. Submission 18 (ENSPEC).

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22. Arboriculture Australia, Australian Arborist Industry Licence (Brochure, version 4, 2017) <http://arboriculture.org.au/License>.

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23. Consultation 12 (City of Port Phillip); see also City of Port Phillip, City Permits—Fact Sheet Significant Tree Permits (29 November 2017) 2.

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24. Consultation 14 (Robert Mineo).

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25. Arboriculture Australia, Directory Listing (Online Directory) <http://arboriculture.org.au/listings.aspx>. Arboriculture Australia arborists are qualified to at least AQF Level 3 and are required to continually update their knowledge on the latest arboricultural techniques.

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26. Consultation 8 (City of Boroondara). Practising arborists are able to undertake practical operations in tree care, for example to carry out tree pruning. Consulting arborists have the skills, experience and educational backgrounds to provide specialised arboricultural services, such as tree hazard and risk assessments: Arboriculture Australia, Directory Listing (Online Directory) <http://arboriculture.org.au/listings.aspx>.

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27. Dispute Settlement Centre of Victoria, Trees (Web Page, 6 June 2019) <https://www.disputes.vic.gov.au/information-and-advice/trees-0>.

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28. Consultation 10 (Baw Baw Shire Council).

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

    ↑

30. Dispute Settlement Centre of Victoria, Mediation (Web Page, 3 June 2019) <https://www.disputes.vic.gov.au/about-us/mediation-0>.

    ↑

31. Victorian Civil and Administrative Tribunal, Forms, Guides and Resources (Web Page) <https://www.vcat.vic.gov.au/resources>.

    ↑

32. Ibid.

    ↑

33. Victorian Civil and Administrative Tribunal, Steps to Resolve Your Case (Web Page) <https://www.vcat.vic.gov.au/steps-to-resolve-your-case>.

    ↑

34. Submissions 21 (Pointon Partners Lawyers); Consultation 3 (HVP Plantations).

    ↑

35. Magistrates’ Court of Victoria, Fencing Disputes Information Guide (9 January 2019) <https://mcv.vic.gov.au/news-and-resources/publications/fencing-disputes-information-guide>.

    ↑

36. Ibid.

    ↑

37. Department of Justice (NSW), Neighbours (Web Page, 5 June 2018) <http://www.cjc.justice.nsw.gov.au/Pages/cjc_whatis_mediation/com_justice_neighbours.aspx>.

    ↑

38. Nadine Behan, Neighbours and The Law (LIAC, State Library of New South Wales, 2nd ed, 2017) <https://legalanswers.sl.nsw.gov.au/neighbours-and-law>.

    ↑

39. Land and Environment Court of New South Wales, Helpful Materials (Web Page 22 November 2018) <http://www.lec.justice.nsw.gov.au/Pages/types_of_disputes/class_2/Trees-hedge-disputes-process/Treedisputes-helpfulmaterials/treedisputes_helpfulmaterial.aspx#Legislation>.

    ↑

40. Land and Environment Court of New South Wales, Annotated Trees (Disputes Between Neighbours) Act 2006 (14 January 2013) 24.

    ↑

41. The NSWLEC website states that a tree dispute principle is ‘a statement of a probable outcome from a chain of reasoning aimed at reaching a list of appropriate matters to be considered in making a decision concerning an application which has been made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW)’: Land and Environment Court of New South Wales, Tree Dispute Principles (Web Page, 25 September 2017) <http://www.lec.justice.nsw.gov.au/Pages/practice_procedure/principles/tree_principles.aspx>.

    ↑

42. Land and Environment Court of New South Wales, Tree Disputes: Understanding the Law (Information Sheet) <http://www.lec.justice.nsw.gov.au/Pages/types_of_disputes/class_2/trees_and_hedges.aspx>

    ↑

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

    ↑

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

    ↑

45. Department of Justice and Attorney General (NSW), Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Report, 2009) 13.

    ↑

46. Ibid.

    ↑

47. The Hon Justice Brian J Preston and Commissioner Tim Moore, ‘The Trees (Disputes Between Neighbours) Act 2006—Background and Operation’ (2008) 14 Local Government Law Journal 84.

    ↑

48. Queensland Civil and Administrative Tribunal, Tree Disputes (Web Page, 29 February 2019) <https://www.qcat.qld.gov.au/matter-types/tree-disputes>.

    ↑

49. Queensland Civil and Administrative Tribunal, Application Checklist: Tree Dispute Resolution (Form, version 3, 3 March 2017)

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

    ↑

50. Department of Justice and Attorney General (Qld), Neighbourhood Mediation Kit (19 May 2015) <https://publications.qld.gov.au/dataset/neighbourhood-mediation-kit/resource/050c6991-1e22-4933-b185-c92f770eb78a>.

    ↑

51. Queensland Civil and Administrative Tribunal, Tree Orders Register (Database, 21 February 2019) <http://www.qcat.qld.gov.au/matter-types/tree-disputes/tree-orders-register>.

    ↑

52. Ibid.

    ↑

53. A Chatbot is a conversational agent that creates live conversational interaction between the chatbot and another user through voice commands or text: Joanna Goodman, ‘Chatbot Pioneer Builds Free Tool for Law Firms’ (17 October 2016) The Law Society Gazette

    (Online) <https://www.lawgazette.co.uk/news/chatbot-pioneer-builds-free-tool-for-law-firms/5058339.article>.

    ↑

54. Queensland Civil and Administrative Tribunal, QCAT Welcomes SANDI to the Team! (Web Page, 12 February 2019)

    <https://www.qcat.qld.gov.au/about-qcat/sandi>.

    ↑

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

    ↑

56. Queensland Government, Ways to Approach Your Neighbour (Web Page, 8 January 2019) <https://www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings>.

    ↑

57. Queensland Government, How to Resolve Neighbourhood Disputes (Web Page, 2 September 2015) <https://www.qld.gov.au/law/housing-and-neighbours/resolve-disputes>. This website was discussed as the key online tool for community members to use to resolve issues about trees: Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, December 2015) 192.

    ↑

58. Ibid.

    ↑

59. Queensland Government, Ways to Approach Your Neighbour (Web Page, 8 January 2019) <https://www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings>.

    ↑

60. Resource Management and Planning Appeal Tribunal, Practice Directions (Web Page, 8 November 2018) <https://www.rmpat.tas.gov.au/practice_directions>.

    ↑

61. Resource Management and Planning Appeal Tribunal, Practice Direction No 18: Applications Under the Neighbourhood Disputes About Plants Act 2017 (Practice Document, 19 November 2018 <https://www.rmpat.tas.gov.au/>.

    ↑

62. Department of Justice (Tas), Neighbourhood Disputes About Plants (Web Page) <https://www.justice.tas.gov.au/mediation_and_dispute_resolution/neighbourhood-disputes-about-plants>.

    ↑

63. Resource Management and Planning Appeal Tribunal, Neighbourhood Disputes About Plants Act 2017 (Web Page)

    <https://www.rmpat.tas.gov.au/neighbourhood-disputes-about-plants>. It costs individuals $23.70 to search the database pursuant

    to section 37(4) of the Neighbourhood Disputes About Plants Act 2017 (Tas): Resource Management and Planning Appeal Tribunal,

    Table of Fees (effective from 1 July 2018) <https://www.rmpat.tas.gov.au/fees>.

    ↑

64. Tasmania, Parliamentary Debates, Legislative Council, 22 June 2017 (Leonie Hiscutt).

    ↑

65. Information provided by the Dispute Settlement Centre of Victoria as part of a data request from the Commission, August 2017 and clarification of data provided in May 2019.

    ↑

66. Submission 4 (Name withheld); Consultation 8 (City of Boroondara); Survey Respondent 19.

    ↑

67. Submissions 1 (Ian Collier), 5 (Name withheld), 22 (Name withheld), 24 (Name withheld); Consultations 4 (Participants in facilitated discussion at VTIO ArborCamp2018), 10 (Baw Baw Shire Council).

    ↑

68. Submissions 19 (Name withheld), 20 (Name withheld); Survey Respondent 123.

    ↑

69. Submissions 2 (Name withheld), 9 (Dr Karen Smith); Consultations 8 (City of Boroondara), 14 (Robert Mineo).

    ↑

70. Consultation 9 (Nillumbik Shire Council).

    ↑

71. Submission 21 (Pointon Partners Lawyers).

    ↑

72. Consultation 9 (Nillumbik Shire Council).

    ↑

73. Ibid, 10 (Baw Baw Shire Council).

    ↑

74. Consultation 12 (City of Port Phillip).

    ↑

75. Consultation 10 (Baw Baw Shire Council).

    ↑

76. Consultation 4 (Participants in facilitated discussion at VTIO ArborCamp2018).

    ↑

77. Ibid.

    ↑

78. Ibid.

    ↑

79. Department of Justice and Community Safety, Fencing Law in Victoria (Web Page, 31 January 2019) <https://www.justice.vic.gov.au/justice-system/laws-and-regulation/civil-law/fencing-law-in-victoria>.

    ↑

80. Department of Environment, Water, Land and Planning (Vic), Land.vic.gov.au (Database, 2017) <https://services.land.vic.gov.au/landchannel/content/addressSearch>.

    ↑

81. Department of Environment, Land, Water and Planning (Vic), PlanningVIC: Planning Property Report Mobile App (27 April 2018)

    <https://www.planning.vic.gov.au/schemes-and-amendments/get-information-about-your-planning-scheme/planningvic-planning-property-report-mobile-app>.

    ↑

82. See, eg, Community Legal Centres Queensland, Writing to Your Neighbour (Letter Template) <https://www.qldneighbourhoods.com/writing-to-your-neighbour.html>.

    ↑

83. Neighbourhood Disputes About Plants Act 2017 (Tas) s 22; see also Department of Justice (Tas), Neighbourhood Disputes About Plants (Web Page) <https://www.justice.tas.gov.au/mediation_and_dispute_resolution/neighbourhood-disputes-about-plants>.

    ↑

84. Victorian Civil and Administrative Tribunal, Practice Note PNPE1: Planning and Environment List General Procedures, 31 December 2018 <https://www.vcat.vic.gov.au/resources/practice-note-pnpe1-planning-and-environment-list-general-procedures>.

    ↑

85. Victorian Civil and Administrative Tribunal, Decisions (Web Page) <https://www.vcat.vic.gov.au/decisions>.

    ↑

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

    ↑

87. Ibid.

    ↑

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

    ↑

89. Victorian Civil and Administrative Tribunal, Practice Note PNVCAT2: Expert Evidence, 1 October 2014.

    ↑

90. Victorian Civil and Administrative Tribunal, Practice Note PNVCAT4: Alternative Dispute Resolution (ADR), 19 December 2018.

    ↑

91. Consultation 7 (Dispute Settlement Centre of Victoria). See Ch 2 for more information.

    ↑

92. Consultation 4 (Participants at facilitated discussion at VITO ArborCamp 2018).

    ↑

93. Consultations 4 (Participants in facilitated discussion at VTIO ArborCamp2018); 7 (Dispute Settlement Centre of Victoria).

    ↑

94. Consultations 4 (Participants in facilitated discussion at VTIO ArborCamp2018), 6 (Ben Kenyon).

    ↑

95. Dispute Settlement Centre of Victoria, Community Engagement Workshops (Web Page, 21 March 2019) <https://www.disputes.vic.gov.au/training-and-room-hire/community-engagement-workshops>.

    ↑

96. Consultations 8 (City of Boroondara), 9 (Nillumbik Shire Council), 10 (Baw Baw Shire Council), 12 (City of Port Phillip).

    ↑

97. Consultation 12 (City of Port Phillip).

    ↑

98. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, December 2015) [3.126].

    ↑

99. See, eg, City of Port Phillip, City Permits—Fact Sheet Significant Tree Permits (29 November 2017) <http://www.portphillip.vic.gov.au/significant-tree-permit.html>.

    ↑

100. Consultations 8 (City of Boroondara), 9 (Nillumbik Shire Council), 10 (Baw Baw Shire Council), 12 (City of Port Phillip).

     ↑