'Defective' Trees

[MAPLEMAN]

Here's some pics of a couple of dead and dying Ironbarks
Both have very defective butts :oo:
The one leaning across the road is still alive...just!
the other one is dead as a door nail and has been for many a year...and is leaning towards my house :o...around 15 degree stem bias and the head limbs are concentrated on the side of its natural lean
Who owns the land next to a road? And are they responsible for the maintenance of dead,dying or dangerous trees?
Seems like a hot potato this one as no one wants to pay for their removal :no:
Any advice appreciated...MM:)

[Lappa]

One of those isn't a "canoe" tree, it it? The area with the bark removed looks similar in shape. Could have
problems removing it if it is.

[rustynail]

Dept of Main Roads if it's a highway. Local Council for minor roads. A canoe tree doesnt make it a sacred site, but it would be a shame to see one go. A chat with the Council should bring you up to speed.

[MAPLEMAN]

. A chat with the Council should bring you up to speed.Have had a chat with council :(...quite a few in fact :rolleyes:
They said because the tree wasn't(the dead one) leaning across the road, they wouldn't take responsibility BUT i could fell it at my expense :no:
The inspecting officer that called out this week somehow didn't sight the one that WAS leaning across the road :?:~...it's right beside the dead one... go figure!
As i said...hot potato, hot potato...MM:)

[ian]

The land beside a road is usually public land (technically crown land under the care and control of the local Council). Even if unfenced, the road is usually within what is typically a 1 chain (66 ft) or 100 ft (30.48 m) road reserve -- I'll let you do the exact metric conversion for 1 chain :)
Sometimes the road will be within a travelling stock reserve which will be much wider.
Even if the road is a "main road", in NSW at least, the road reserve is Council's problem.

normally everyone dodges responsibility for the area of the road reserve outside the guide posts or table drains. There's just too much expense and angst for very little return.

If Council has said (in writing or in front of an independent witness) "you can fell it if you want", and it worries you, perhaps it's worth half a tank of fuel in the chain saw.

[MAPLEMAN]

If Council has said (in writing or in front of an independent witness) "you can fell it if you want", and it worries you, perhaps it's worth half a tank of fuel in the chain saw.Thanks for the reply Ian
The dead tree has,as i stated,a lean bias towards the house
The fact that it has a defective butt makes the operational task of felling it considerably more difficult and dangerous...it's internal integrity has most likely been compromised...when i tapped the trunk with an axe it sounded wrong and unsafe in my opinion
This tree should be methodically taken down...starting from top to bottom...a task for an experienced tree lopper!Limbs are likely to turn into deadly missiles upon the tree hitting the ground if felled in a more traditional way
If it was located in an open paddock then i would have no qualms in felling it myself however in this instance there are too many variables to deal with.
I also don't possess the relevant signage or insurance needed to perform the task safely and without fear or consequence
A job for the experts i'm afraid...MM

[rustynail]

The land beside a road is usually public land (technically crown land under the care and control of the local Council). Even if unfenced, the road is usually within what is typically a 1 chain (66 ft) or 100 ft (30.48 m) road reserve -- I'll let you do the exact metric conversion for 1 chain :)
Sometimes the road will be within a travelling stock reserve which will be much wider.
Even if the road is a "main road", in NSW at least, the road reserve is Council's problem.

normally everyone dodges responsibility for the area of the road reserve outside the guide posts or table drains. There's just too much expense and angst for very little return.

If Council has said (in writing or in front of an independent witness) "you can fell it if you want", and it worries you, perhaps it's worth half a tank of fuel in the chain saw.
That's interesting, Ian, we are currently having major upgrades to the main road in our area. This is also having some impact on the minor roads and the nearby vegetation. Local Council is making the decisions on the trees in the minor road vicinity while DMR are ruling on the main road corridor. Would this be because it is an actual road upgrade and in any other event council would do the lot?

[MAPLEMAN]

One of those isn't a "canoe" tree, it it? The area with the bark removed looks similar in shape. Could have
problems removing it if it is.No mate
Both are Ironbarks and are very common in this area
But finding it problematic removing them all the same :rolleyes:...MM:)

[Lappa]

Dept of Main Roads if it's a highway. Local Council for minor roads. A canoe tree doesnt make it a sacred site, but it would be a shame to see one go. A chat with the Council should bring you up to speed.

A friends family property near Coffs had three in the path of the Pacific Hwy upgrade. Hwy was altered to miss the trees so instead of taking just a portion of the front of their property, it now splits the property in two.

[Sturdee]

Write to the Council, refer to your discussions re tree, and advise that the tree is very dangerous and will most likely fall onto your house and you will hold them responsible for any damage that happens.

Continue on in your letter and ask for details of their public liability insurers so that you can advise them of the danger the tree is posing.

They will either remove the tree, as they should, or they will do it once you have written to their public liability insurers.

Peter.

[ian]

That's interesting, Ian, we are currently having major upgrades to the main road in our area. This is also having some impact on the minor roads and the nearby vegetation. Local Council is making the decisions on the trees in the minor road vicinity while DMR are ruling on the main road corridor. Would this be because it is an actual road upgrade and in any other event council would do the lot?
Bells line of Road is a little different, because the Commonwealth has a finger in the pie, so to speak ...
the upgrade is being delivered by RMS and will have been through some form of environmental assessment which will have identified the extent of any clearing. If you're particularly curious, you should be able to find the details on-line.

also I'm a little amused ... the "DMR" hasn't existed since January 1989

[Mobyturns]

Don't accept advice on land / tree ownership and environmental matters from people who don't have specific expertise - including me.

QLD has its own environmental, planning and land laws that while the principles of the Torrens land ownership system are broadly the same across states you can become unstuck fast with poor advice.

In QLD "roads" are public land dedicated to public use (by gazettal or other means) and may be "open" "temporarily closed" or "closed" to public use. Depending upon the classification of the road various entities may be vested with or responsible for the management and maintenance of that road, vegetation etc. The "road" is all land within the confining adjacent freehold or leased lands i.e. it includes the running surface, shoulders, verges and natural bush / landscaped environs. Typically the Local Government Authority, Dept of Transport (Main Roads) or can be others like QR or Ports Corporations etc and in very specific instances Dept of Mines etc. assume that role. At times more that one entity may be responsible for various actions within the same section of road, ownership of running surfaces may be MR, road maintenance - Roadtek, lawn mowing could be council etc.

The Department of Natural Resources and Mines is ultimately the "owner" of all "state Lands" (prev called "Crown Land") on behalf of the State and is vested with the responsibility to control the activities of other entities with an interest in the road and for the environmental and some planning legislation. LGA's also have their own set of planning laws, some of which may include preservation of trees etc. Other entities like the Wet Tropics Management Authority, and Commonwealth environmental and heritage legislation may also come into play depending upon if the tree "is in or near" a place of environmental or heritage significance.

In your case most likely the LGA is responsible for the road and vegetation maintenance, however they have to comply with DNRM and other environmental & planning laws. They and other authorities have a duty to maintain the road and its near environment in a safe state. Same is broadly true for other states.

Technically DNRM is the "owner" of the trees.

As for taking out the tree yourself, I would not recommend that course of action. There are many traps in the environmental system, such as a dead ironbark tree is a roosting site for an endangered bat as we found out on one project; or the trees proximity to a water course etc. If a complaint is raised against you for the illegal felling or removal of a tree of environmental or heritage significance then there are substantial penalties. The investigating authorities seem to have a rather zealous approach to making an example of offenders.

Best thing to do is go past the verbal enquiries and make a written complaint about the precarious nature of the trees and the potential risk to public safety. Make it the LGA / councils problem, they will then have to formalize their risk assessment and justify their intended course of action should they cause harm to others.

Use this info at your own risk!!!

as an after thought - Ironbarks don't like having their bark damaged and will typically die if a surveyor has cut a survey blaze into the tree or they have been damaged by careless machine operators. Have a look to see if they could have been damaged by a grader during road construction - i.e. near a catch drain etc. It is unlikely that both are survey reference trees but one could be, and there are also penalties under survey legislation for removal of survey marks which includes "survey reference trees."

[Bob38S]

Agree totally with Sturdee above, time to start the paper trail. Conversations are good but when the brown stuff hits the rotary oscillator it becomes a he said they said or you misinterpreted what was said.

Mobyturns also makes very valid points.

Should the worst case come to pass, the only way you can possibly "win" is with paperwork. Avoid emails, too easily lost, ignored etc, address the letter to a specific person, send it registered, start a file and keep it all together with all correspondence.

Just a thought.

[rustynail]

Bells line of Road is a little different, because the Commonwealth has a finger in the pie, so to speak ...
the upgrade is being delivered by RMS and will have been through some form of environmental assessment which will have identified the extent of any clearing. If you're particularly curious, you should be able to find the details on-line.

also I'm a little amused ... the "DMR" hasn't existed since January 1989
Thanks Ian. Yes, you are right, there were a lot of studies conducted. As for being curious, it would be a futile exercise as many of the decisions have never been set down in stone. Dont get me wrong, I am perfectly happy with any upgrade, it was desperately needed.
DMR/RMS ? I am sick and tired of constant departmental name changes giving some shinny bum a bit of job justification. In the bush its still refered to as DMR. If you called it the RMS they probably wouldnt know who you were talking about.

[MAPLEMAN]

Council in my area will only take down tree(s) if they are a threat to council assets and/or power lines (supply)
However they will most likely fell the 'dead' tree as they have deemed the one next to it (also defective) a risk to power lines...killing two birds with one stone,so to speak!
:fingerscrossed:
Thank you folks for all your replies...MM:2tsup:

[bsrlee]

I'm with Sturdee on this - write to council, require a written reply, danger to your property and road users, demand details of council's insurers. Friend of my father's had problems with an overgrown patch on council land, as soon as he mentioned liability for damage a crew was out there to clear and mow the site and they kept it mowed.

[MAPLEMAN]

I'm with Sturdee on this - write to council, require a written reply, danger to your property and road users, demand details of council's insurers. Friend of my father's had problems with an overgrown patch on council land, as soon as he mentioned liability for damage a crew was out there to clear and mow the site and they kept it mowed.Sadly council LAW states no liability in regard to dangerous trees that could pose a threat to private property or person(s)
No doubt the law is different from one Shire to another Shire
Only when a tree threatens damage to council assets(buildings,infrastructure,power lines,etc) will they act...they made this very clear to me...MM :)

[Bob38S]

Sadly council LAW states no liability in regard to dangerous trees that could pose a threat to private property or person(s)
No doubt the law is different from one Shire to another Shire
Only when a tree threatens damage to council assets(buildings,infrastructure,power lines,etc) will they act...they made this very clear to me...MM :)

Don't mean to flog a dead horse, but once again, verbal??

Start your file, demand all / any of their "rulings" in writing. Ask for a copy of the relevant "council laws".

Seek a legal opinion on negligence, anyone can basically do or say what they like but it becomes a whole new game should there be any negligence especially if they have been told and choose to do nothing.

[ian]

Sadly council LAW states no liability in regard to dangerous trees that could pose a threat to private property or person(s)
No doubt the law is different from one Shire to another Shire
Only when a tree threatens damage to council assets(buildings,infrastructure,power lines,etc) will they act...they made this very clear to me...MM :)I'll let one of the lawyer WWs come in with the details, but what you're describing is termed nonfeasance. For roads in Australia the principle (and protection) of nonfeasance was based on an 1804 act of the British parliament, which at the time it was enacted applied to that part of Australia called NSW -- basically all of Australia east of the 135 E meridian. In 2001 the Australian High Court essentially struck down the 1804 act which resulted in the states legislatures creating what is known as a statutory defence for authorities like councils which in essence says
an authority [in your case this is probably the Council] is not liable where:

• it has no actual knowledge of a hazard;
• it has a plan for carrying out inspections and repairs that is reasonable in all of the circumstances; and
• that any such plan has been implemented and followed.


If you've written to Council notifying them of the hazard, you should be able to connect the dots ...


I think you will find that the only LAW that is different council to council, is the statute of bluff

[MAPLEMAN]

Glad to report that the trees will be felled in the very near future :)
Tree lopper arrived this morning to ascertain the work involved in their removal and to deliver subsequent quote to council
Hoping they will hit the dirt this coming week
Happy council has come to the party and taken a common sense approach
For that i applaud them
Will post some pics when they are horizontal...MM:2tsup: