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 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 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

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!

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

[snowyskiesau]

The following is very simplistic, but may help.

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!

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!

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-a...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:

• exercise the common law right of abatement—your right to remove overhanging branches and roots to your boundary line
  
• 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?