Is the law really an ass?

[artme]

I have posted a little about this in another thread but thought it deserved its own thread.

Neighbours' tree -a petophorum pterocarpum - grows 5.5 metres into our place. Sheds pods that fly across the
the yard and into the swimming pool. Three times we have had to replace the Creepy Crawly diaphragm because
smaller pods can be sucked up, jam in the diaphragm and rupture it. It sheds rubbish in the way of leaves and dead
branches also whic clog up the shed gutter.

I have the posts up to build a carport next to the shed but no builder will touch the job because the branches are in
the way and present a work hazard.

Neighbour refuses to remove branches. We have taken every possible action to get him to do this but he refuses to
even talk to us. So we went to QCAt.

We had a directions hearing via the phone with QCAT yesterday. It was only after some plading and extra explanation
that the senior member decided the best way to resolve the problem was to send a QCAT member to have an on site
inspection in January. A decision will be made after that.

In the meantime the Senior meber refused to allow the trimming of the tree on what I understand are the following grounds:

We cannot cut the offending branches because they are more than 2.5 metres above the ground.

No order would be given unless the tree actually harms a person!! I guess when some one is killed or loses an eye then
an apology is OK!!!! The tree has not caused injury to any person. Apparently financial loss and inconvenience is not a consideration.

It is the natural habit of trees to grow and spread!!!!

Now all throughout this process the neighbour has failed to contact us or QCAT, even when he is required to do so by QCAT!! No
consequences have accrued to him!!!

I am totally miffed!!!

[Bob38S]

"We cannot cut the offending branches because they are more than 2.5 metres above the ground."

Physically or legally?

Surely a pole pruning saw, manual or motorised would get most down. Legally speaking, I was of the understanding that branches overhanging the boundary could be removed so long as they were returned to the owner otherwise it could be theft.

[artme]

"We cannot cut the offending branches because they are more than 2.5 metres above the ground."

Physically or legally?

Surely a pole pruning saw, manual or motorised would get most down. Legally speaking, I was of the understanding that branches overhanging the boundary could be removed so long as they were returned to the owner otherwise it could be theft.




Your understanding, and mine, have been overtaken by QCAT and the law. Any branches up to 2.5m above the ground may be lawfully pruned. Any above that actually requires QCAT authorization!!!

I am NOT going to do anything because QCAT has forbidden me. I have to wait until after the on site meeting in January and then the decision made as a result of that.

[ian]

I have the posts up to build a carport next to the shed but no builder will touch the job because the branches are in
the way and present a work hazard.

Neighbour refuses to remove branches. We have taken every possible action to get him to do this but he refuses to
even talk to us. So we went to QCAt.
Maybe you need to get Workcover (or the Qld equivalent) involved. You'd be looking for an voluntary "order" to make the garage work site safe

[Sturdee]

Any above that actually requires QCAT authorization!!!



Interesting case as from my reading of the Queensland Gov website (https://www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings/resolving-tree-and-fence-disputes/what-to-do-if-a-neighbours-tree-is-affecting-you/) you have the right to cut down any overhanging branches according to your common law right of abatement.

However if you want the other party to do it or pay for it then the QCAT option comes into play.

If I had that problem rather then put up with it over the years (and possibly end up with unrecoverable cost) I would have cut them down a long time ago and shoved the branches back over the fence. Better to buy a pole pruner then put up with it.

Peter.

[Big Shed]

Yes Peter, I agree. It is usually better to ask for forgiveness than ask for permission, particularly where bureaucracy is concerned.

[doug3030]

Interesting case as from my reading of the Queensland Gov website (https://www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings/resolving-tree-and-fence-disputes/what-to-do-if-a-neighbours-tree-is-affecting-you/) you have the right to cut down any overhanging branches according to your common law right of abatement.

Following Sturdee's link I found -

Interference with your use and enjoyment of your land

Your neighbour’s tree may be classed as unreasonably getting in the way of your use and enjoyment of your land if it:


interferes with television or satellite reception
interferes with the proper functioning of solar panelling



Find yourself a nice satellite dish or some solar panels and set them up under the tree branches:2tsup:

Cheers

Doug

[cava]

Two words...."Fee Simple".

Look it up in a law dictionary such as 'Blacks Law Dictionary' and then check the Title to your property to see if "Fee Simple" is noted on it.

[artme]

Looked up fee simple but really don't know that it will help my case. A solicitor should have abetter insight.

Will check on abatement issues as suggested by Sturdee!:2tsup:

A couple of builders have told me they will not touch the carport build unless the offending tree is trimmed.

There was a case in Burnie, Tas. Where a foreseeable event was was deemed to have taken place and this has set a precedent for the rest of Australia.

I have looked through case on the QCAT website. There seem to ba a great deal of inconsistency in the decisions mad by both this member and among members.
This may well be a good avenue for strengthening my case.

Thanks all for your suggestions.

[cava]

In simple terms Fee Simple means that you can do pretty much anything on your property provided it does not affect your neighbours.

Councils and Magistrates Courts hate this with a passion and will typically rule against it. However, at the higher courts it is given valid credence and there is so many High Court rulings backing this up.

The following is very simplistic, but may help.

http://larryhannigan.com/feesimple.htm (http://larryhannigan.com/feesimple.htm)

[snowyskiesau]

The following is very simplistic, but may help.

http://larryhannigan.com/feesimple.htm (http://larryhannigan.com/feesimple.htm)

It's good to see the lunatic fringe is alive and well.

[artme]

Yes Peter, I agree. It is usually better to ask for forgiveness than ask for permission, particularly where bureaucracy is concerned.

The penalty for disobeying a ruling of QCAT can be up to $100 000 !!!! Methinks my pocket would not stand the strain!:no::no:

I am seeking details of other rulings by both this member and others so that I can attack any decision that is unfavourable to me
on the grounds of inconsistency. The original intent of the legislation was to provide consistent rulings.

[Big Shed]

The penalty for disobeying a ruling of QCAT can be up to $100 00 !!!! Methinks my pocket would not stand the strain!:no::no:

I am seeking details of other rulings by both this member and others so that I can attack any decision that is unfavourable to me
on the grounds of inconsistency. The original intent of the legislation was to provide consistent rulings.

Arthur, my (partly tongue in cheek) statement was intended to imply that it is usually better to go ahead and do it BEFORE getting involved with bureaucracy.

I had two trees in the nature strip that were in the way of getting my houseboat being craned out of my backyard. I could have gone to the council and asked permission but was fairly sure the answer would be no, so I cut them down under cover of darkness.

A week later the houseboat was craned out, problem solved.

The funny part came a month or so later when the council turned up with a stump cutter and removed the stump. When I asked the guy operating it why he was removing the stump he told me the council didn't want the tree to grow back as it could be dangerous.

[ian]

I am seeking details of other rulings by both this member and others so that I can attack any decision that is unfavourable to me on the grounds of inconsistency. The original intent of the legislation was to provide consistent rulings.Generally this is not a good idea unless you have very very deep pockets.

Magistrates (and tribunal members) are usually quite happy for you to go trotting off to a higher court -- they know what the fees involved are and also that most aggrieved parties can't afford them.

[ian]

Arthur

I suggest you take a really deep breath and start again

from https://www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings/resolving-tree-and-fence-disputes/what-to-do-if-a-neighbours-tree-is-affecting-you/

"Going to QCAT should be seen as a last resort"



earlier on the same page ...


What you can legally do yourself

If you have a neighbour’s tree hanging over your land, you can:


[*=1]exercise the common law right of abatement—your right to remove overhanging branches and roots to your boundary line
[*=1]decide whether to return the lopped branches, roots or fruit to your neighbour, or dispose of them yourself. You do not have to return anything you trim from the neighbour’s tree but you may do so.


When exercising the right of abatement, take care to comply with any applicable tree or vegetation protection orders.



and in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 ...

The [neighbour] is liable for the reasonable expenses incurredby [you] involved in cutting and removing theoverhanging branches, but only to a maximum of $300


IMO seeking to recover $300 from an uncooperative neighbour is just throwing money away.


again IMO, I think the order you should seek from QCAT is one that will allow you to remove the overhanging branches.
Based on what you have written, if QCAT does order your neighbour to remove the branches, the neighbour won't comply and then where will you be?

[artme]

Yes Fred, I knew it was tongue in cheek but it did prompt me to look up the penalties for disobeying.


Ian, my intention was not well put. What I aim to do get this info - if others are willing to share - and present it when the case comes to a hearing.
Deep pockets for legal eagles are not, unfortunately, part of my armory.


I fought a debt case in QCAT and won but that was a different matter as I had all the bills and receipts, plus supporting statements from others.
While it involved a lot of running around on my part and a lot of detailed preparation it was not determined on finer points of law or matters of legal opinion.

[rustynail]

As you have already taken the step of getting a determination from QCAT, you are bound by their rules. Therefore the wait until January. If you had taken it upon yourself to trim back the branches to the boundary, the only person you would have needed to consult would be your wife.

[Poppa]

And to answer your original question, yes, the law really is an ass. And councils and state governments take the stupidity to a whole new level...

[Evanism]

What would happen if the tree were to ....die... in the mean time?

Sudden, unexpected and very sad.

[Bushmiller]

What would happen if the tree were to ....die... in the mean time?

Sudden, unexpected and very sad.

Autopsy :rolleyes:


Regards
Paul

[elanjacobs]

What would happen if the tree were to ....die... in the mean time?

Sudden, unexpected and very sad.
Got some friends who have a problem with a tree on a block they're planning to build on. I asked them the same question and, apparently, if the tree were to mysteriously die (and council could show that there was foul play) they would still have to build like it was there for 12 months afterwards.

Don't know how local councils are in QLD (sounds like they suck as much as everywhere else), but I'm guessing they could go after you for something.

[doug3030]

"and council could show that there was foul play"

And to show that they would really need to have a conviction recorded against you in a court of law, or itwould not be enforcible, although it might be still a lengthy process to prevent them illegally stopping you....

[artme]

Well, went to see a pro-bono solicitor last night.

She advised that since I started out doing "the right thing" then I have basically snookered myself when it comes to taking unilateral action.

The solicitor did say . however, that the fact that QCAT has seen fit to send a rep. for an onsite conference is a good thing.

I am to look up the laws on trespass and some other area that I can't remember ( :doh: didn't take a note :doh:).

Apparently trespass laws can apply in these situations. The law is one thing and can be used as a means of defeating regulations, which is what QCAT
is all about.

[Evanism]

God it's hot. Everything is soooo dry.

Since we can't "trim" the tree, what would happen should it "catch fire"....say, just on your side?

[Kuffy]

God it's hot. Everything is soooo dry.

Since we can't "trim" the tree, what would happen should it "catch fire"....say, just on your side?

Im no legal eagle, but at a guess Evanism, I reckon you would find out that the law isn't a complete joke. Whatever you do, don't pick up the soap in your new residence.

[rustynail]

Trees do not spontaneously combust. What you are suggesting sounds more like a signal fire and it won't take long for someone to fine/find you.
God it's hot. Everything is soooo dry.

Since we can't "trim" the tree, what would happen should it "catch fire"....say, just on your side?

[cava]

Any progress with this?

Just curious.

[artme]

We have had a compulsory meeting with an ädjudicator/member from QCAT.

The neighbours finally agreed to remove the tre but only after my wife suggested we pay half the cost!!

I was annoyed by the whole process. The neighbour carried out a character assassination in order to justify his stand.
He also lied and uttered statements that were based based on speculation and supposition. Our approach has been to
stick to facts backed up by evidence. We had, days prior to the meeting, requested friends to go over our statement and
they had suggested some revisions because they considered parts were bordering an character assassination. I was
dumbfounded when the member did not make any comment on the neighbour's approach.

The letter from QCAT setting up the meeting clearly stated that no other appointments should be made by the parties
for the time set down for the meeting. The member said such meetings normally took 3-4 hours. An hour and a half into
the meeting the neighbour said he had to go to work!!. We now have another meeting on 4th March with the member
of QCAT saying he would consult with the head of the tribunal to see if the verbal agreement we reached was
satisfactory!!

I fthings go our way we are up for 1/2 the cost of removal, if not the thing goes to a full hearing in Brisbane and who
knows what will happen.

No matter what the outcome I am considering writing to the tribunal and outlining my reasons for being displeased with the whole process.

[Bob38S]

We have had a compulsory meeting with an ädjudicator/member from QCAT.

The neighbours finally agreed to remove the tre but only after my wife suggested we pay half the cost!!
.
.
.
.

No matter what the outcome I am considering writing to the tribunal and outlining my reasons for being displeased with the whole process.

If I could suggest, say nothing, do nothing until all is done and dusted ie tree gone and hopefully your neighbour's contribution paid.

You need to continue to be calm, reasonable and fair until you get your resolution, any comments, letters or complaints re the process you make before you get what you want can really only cloud the issue and could possibly "paint" you as being the unreasonable person and could jeopardise the outcome you desire.

Just a thought.

[cava]

If I could suggest, say nothing, do nothing until all is done and dusted ie tree gone and hopefully your neighbour's contribution paid.


+1 Don't tick off the person who could give you remedy to the situation prior to the determination.

[artme]

Wise words Bob and Cava but I was planning on the letter once the dust has settled, the tree is gone and I can compose a considered
epistle to the tribunal.:):):)

[doug3030]

Wise words Bob and Cava but I was planning on the letter once the dust has settled, the tree is gone and I can compose a considered epistle to the tribunal.:):):)

Writing to the tribunal about how its members carry out their duties would be like complaining about your wife to your mother-in-law.

If you seriously believe that the system is wrong or is not being implemented correctly and fairly (and from what you have said here you would be justified in believing), write the letter to your State Member of Parliament. The tribunal is after all an instrument of the State Government.

Cheers

Doug

[ian]

:whs:

[MrSunny]

The neighbour carried out a character assassination in order to justify his stand.
He also lied and uttered statements that were based based on speculation and supposition. Our approach has been to
stick to facts backed up by evidence. We had, days prior to the meeting, requested friends to go over our statement and
they had suggested some revisions because they considered parts were bordering an character assassination.

Well done on working to show a balanced and fair view of things. Even though you have been slandered, your efforts are well worth it, don't give in to the temptation to reciprocate. People who slander others in the manner you have described are generally sad unfortunate beings. Pity is perhaps the most suitable response towards anyone who uses such behaviour, and duplication is perhaps the worst. If you genuinely believe that you are a good person, and that you can improve yourself and the things around you, you don't slander. Reverse the previous sentence to get a broad idea as to why people who do slander are sad unfortunate beings.

[rustynail]

You went for mediation and you got mediocre, nothing new in that. A mediator sees their roll as finding a suitable outcome for both parties. It would appear they have achieved that.
If you required something a little more definitive and judgmental then court may have been a better option.

[artme]

You went for mediation and you got mediocre, nothing new in that. A mediator sees their roll as finding a suitable outcome for both parties. It would appear they have achieved that.
If you required something a little more definitive and judgmental then court may have been a better option.

So true RN!! We don't want to go to court, partly because of costs and partly because we don't really see this as a matter for the court's attention.

Really - let common sense and decency prevail!

The great pity about all this in one way is that the tree is really a beautiful thing but it happens to be in the wrong place and is causing us problems.

I am not into removing trees willy nilly. In fact since moving here I have removed three very sad near dead lilly pilly trees that I have replaced, and planted 16 or so others:

3xJacarandas, 2x Colvillea racimosa ( Many thanks to Wizend of Oz for those), a poinciana, 8 different fruit trees, frangipanis, a palm and some others whose names escape me.