Neighbourhood Disputes: What homeowners can take on board from the Boyle Case
The recent Queensland Civil and Administrative Tribunal (QCAT) case of Weerasena v Boyle and Anor [2024] QCAT 327 is a contemporary example of the nature of neighbourhood disputes with respect to trees and other vegetation, especially where competing interests, for example Local Government may add layers of complexity and difficulty that you may not be aware of at the time of entering into or considering taking action.
Background
The above case relates to a dispute between two neighbouring properties in the Brisbane City Council Area, where a number of trees on the First Respondent’s (Boyle and Anor) land grew so that they hung over the Applicant’s (Weerasena) land. While there were 4 trees in total differing in species, two (2) Scribbly Gum (Eucalyptus Racemosa) were the only in dispute.
The Applicant’s position was for the trees to be removed in their entirety or pruned to the extent that they did not cross the property boundary, all at the First Respondent’s cost. To contrast, the First Respondent denied these claims as the trees in questions were subject to Local Laws and that a Vegetation Protection Order had been implemented by the Council to prevent any action being taken to intervene.
This Order noted that the disputed trees provide a positive value to the local wildlife and the ecosystem, which included threatened species and fauna, they provide privacy and amenity and improve overall biodiversity.
The case in its entirety spanned approximately 3 years, being 2021 to 2024. During this time 2 independent expert reports were sought, firstly a Tree Assessor’s Report in October, 2022 and Arboriculture Impact Assessment Report in August, 2023, both of which highlighted the positive attributes noted in the Council’s Protection Order and some of the implications raised by the Applicant in relation to the trees’ age and structural integrity.
Key Issues:
Throughout the case, several key issues arose requiring assessment by the Tribunal Member:
What role does Council and Local Laws play in property owners’ maintenance of vegetation on their (presuming freehold) land?
What consideration is placed on a party’s “use and enjoyment of the land” and what qualifies as interference of this?
What is the importance of specificity in relation to facts of the case and are there grounds to dismiss based on this?
Have any reasonable attempts been made to rectify the issues before reaching Tribunal?
What outcome can be reached so that each party may maintain their use and enjoyment of the land without interference?
Court’s Finding:
In response to the issues raised, the Tribunal Member ordered the following:
The Council’s Protection Order will remain, and the trees will not be removed;
The First Respondent, to the best of their ability will be required to maintain/prune the trees on a regular basis so that they do not interfere with the Applicant’s land (noting that this had also occurred throughout the course of the matter);
The First Respondent will engage a qualified party to conduct yearly inspections of the tree to assess integrity, identify defects and mitigate any risk. The same is to also occur after each significant weather event (cyclones, flash flooding).
The cost of these inspections and any maintenance is the responsibility of the First Respondent, copies of all reports are also to be provided to the Applicant; and
The parties were to bear their own costs.
These orders effectively balanced the interests of the Applicant’s earlier submissions, the First Respondents obligations as the property owner and the Council’s interest in the maintaining a “Green City”.
Notably from the above, the comments in the Applicant’s submissions and responses in relation to specificity of the number of trees, species types, physical attributes and size were rejected due to the reputable quality of the reports provided and the minimal impact on the issues in dispute.
Key Take Aways:
Location of Trees and other vegetation on your property: In particular, keep note of any vegetation that may cross property boundaries or flag as a possible safety risk and seek appropriate maintenance (subject to any relevant legislation or local law in your area) where required.
Alternative Dispute Resolution: any course of legal action can incur significant cost and time spent, we emphasise the Member’s comments in their decision that the one of the goals of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) is to mitigate these types of disputeshutterstock
s where possible, providing a framework with the responsibilities of neighbours with respect to their own property and each other’s, so to not impact each other’s use and enjoyment of their properties or cause undue interference.
Clear and Precise Information: The Member’s comments in relation to the number of trees that affected the two properties, being a total of four 4 where the applicant had made their submissions on the two (2) Scribbly Gum (Eucalyptus racemose), being the large and more obvious trees. As a result, the Tribunal only assessed the matter against these 2 trees, possibility limiting the Applicant’s prospects.
How this may apply to you:
If any of items of the case resonate with you or whether are looking to sell or rent your property where you think that dispute may arise, these key takeaways highlight the importance of engaging a lawyer early and how it can often lead to a faster, cost effective and lasting resolution which is satisfactory to all parties.
Please contact our experienced team for professional advice about your specific circumstances.