Background on Tree Disputes Between Neighbours
A tree dispute could be defined as disagreement between the neighbours about one or more trees on the adjoining properties. This dispute is accompanied with the involving the cases affecting the neighbouring land and damaging, and causing injury with the use of land. In this research paper, we will consider significant matters related to the disputes between neighbours regarding trees. Recently this is one of the largest disputes which are presented before the dispute settlement Board. The term neighbourhood contains several commendable values in itself which includes mutual help, sharing of resources, social gathering, community existence and safety in particular environment. Same as this, trees also has significant values in human life i.e. shading, cooling, biodiversity, birdlife and aesthetics (Sourdin, 2017).
In rapidly increasing urbanised environment, people become very particular about their lands and trees. They make decisions which significantly affect their neighbour’s homes and properties. The disputes related to tress are the issues regarding encroaching roots and branches, trees damaging paths and driveways and about the trees which cause danger to people. Initially, people resolve such matters through mutual discussion and informal negotiation but these measures have been proved out as quite unsure and unclear methods. To identify the clear perspective of rights and responsibilities of parties, some people have enacted for a proper resolution method. It is analyzed that these matters are resolved by several means and one may resolve the dispute through negotiation or may go for the legal procedure. In order to provide platform for speedy justice i.e. the concept of online dispute resolution. The concept is of advance nature and focus on the fast track trial. These methods focus on convenience of parties, expertise, impartialness, fairness and cost cutting of proceedings. In order to understand the concept of dispute resolution between neighbours related to tress, we will consider some academic decided case laws and will discuss the issues and conclusion announced in those cases (Cortés, & Lodder, 2014).
In the case given, Watson v Barua [2013] QCAT 465 (NDR113-13) Jim Allen, Member 3 September 2013, it was found that a person named Watson filed an application for tree dispute against Mr Barua who was a tree keeper. Watson claimed in application regarding the ownership of trees which was located on the land of easement. Here the tribunal determined that whether Mr Barua had the title of tree keeper or not. Watson stated in his application that the trees were not on the land of Barua and according the relevant act the ownership of trees depends on the ownership of land on which the trees were situated. Both the parties had given with an opportunity of being heard before the tribunal. Watson provided with the copy of original certificate which made the ownership of Barua doubtful and proved the land as the land of easement. He claimed that there is a partial copy of sale which bears the shape of a particular plan, as per which Barua was not the real owner of trees. Against which Barua provided an affidavit to tribunal which proved that the land is not subject to easement. Tribunal has considered the facts given by both parties and stated that the owner of the easement is entitled to obtain the benefits attached with such easement. Hence it declared Mr Barua as the owner of such trees in its decision (Clark, Cho, & Hoyle, 2013).
Overview of Online Dispute Resolution
In another case given under Hauff v Barnes-Thygesen [2013] QCAT 296 (NDR190-12) Gerald T Byrne, Member 5 June 2013, it was found that for the removal of boab trees, the application was filed by Mr Hauff who was a neighbour of Barnes, and owner of such tree. Hauff claimed in his application that the boab tree situated in the property of Barnes is hazardous for the public safety and due to no pouring of water on plant since a week when Barnes was out for holidays and someparts of tree died as well. He and his wife were concerned about the chances of the tree falling on his house. To prove all these facts, Mr Hauff provided with some evidences to the Tribunal (Hörnle, 2012) . Barnes also presented some photographic evidences to prove that the tree is not poisonous and during her holidays her friend watered the trees. She also alleged that Hauff poisoned the trees. After considering all the findings regarding the matters, tribunal decided that the removal of trees shall be done by Banes and the cost of such process shall also be borne by her. The removal of boab tree shall be done by any appropriately qualified and insured arborist.
The case regarding to tree planted on level 3 of a multi storey building was discussed under the case of Mirana Investments Pty Ltd and Ors v Coupe [2012] QCATA 187 Hon James Thomas AM QC, Member27 September 2012. The tree was planted in the balcony garden by Mr Coupe who was the owner of a unit at level 3. The tree was big and fast growing in nature. By the findings of facts the adjudicator came to know that the tree was of exotic nature and was similar to a big weeping fig (Beelen, Kanoulas, & van de Velde, 2017). The huge size and rapid growth of tree was the reason of conflict. The application made by Mirana Investment Pty Ltd, who was the owner of other units in building. All the owners of other units were in favour of removal of tree because it could cause the falling off part of building due to heavy weight of tree and also it interrupts the view of other units. In order to decide the case the adjudicator ordered to maintain the tree within the suitability of the neighbours. Both the parties were not satisfied with the decision and they filed an appeal against the order. The appeal was allowed and in lieu of thereof it was ordered that the tree was to be removed by Mr Coupe or on the failure of the same by Mr Coupe, the body corporate may enter into the unit to remove the tree (Austin, 2018).
In the case of Beriley Pty Ltd v Novadeck Pty Ltd t/as Heran Building Group [2017] QCAT 29 (NDR148-16) Senior Member Brown 23 January 2017, Beriley filed an application for removal of tree situated on the land of Novadeck. He stated in his application that the tree likely to cause serious injury and damage to his land and also the tree unreasonably interfere the use and enjoyment of his land. Novadeck claimed that the tree was retained pursuant to the order of Planning and Environment Court as a condition of a development approval. After all the findings the application made by Beriley it was found as misconceived, without merit and out of the jurisdiction. On these grounds the application was deemed as frivolous, vexatious and otherwise an abuse of process and tribunal has dismissed the application.
Analysis of Case Laws
In case of Collins v McNeil [2013] QCAT 429 (NDR035-12) K Roseby, Member 19 August 2013, it was found that Mr Collins and Mr McNeil were neighbours and McNeil had Kauri pine tree in his property. The tree was big in height and width and its branches falls into the property of Mr Collins. Mr Collins filed an application for removal of the tree with the compensation against the damage of his property by stating several grounds i.e. his allergic reaction to pollen form tree, volume of tree damage his property, risk of tree falling, branches of tree overhanging his property, inability to install solar system because of the tree and significant reduction in the view of his property due to such tree (Exon, 2017). Against which Mr McNeil claimed before the tribunal that while deciding to purchase the property, such tree was the significant factor attached to the property and they could not afford to remove it because they had family values related to the tree. After hearing both the parties and considering all the facts the tribunal made its decision and ordered to Mr McNeil to remove the tree within a specified time and to pay the compensation to Mr Collins for the damage of his property (Reznik, 2017).
In the case of, Thomas V Barker, MD of Santa Cruz, CA (95065) it was held that Miss Barker had a tree in her property that was an issue of concern for her neighbours due to its damaged and likely to fall condition. On the application filed by one of her neighbour named Catherine Thomas for the removal of tree in the interest of public safety, the tribunal evaluated the facts of matter. After evaluating the situation of tree the tribunal ordered to Miss Barker to remove such tree on her own cost and to arrange the grinding and removal of the stump to prevent its re-growth (Kaufman, Ozawa, & Shmueli, 2018).
In case of Minahan v Kosky and Kosky, it was held that in such case the application made by Minahan due to the plantation of trees by his neighbour toward the canal which caused the lack of sunlight to his property. He further claimed that the falling of any of the tree can cause the personal injury and litter from the tree destroyed the view of his property. After all the findings the Tribunal found the grounds of applicant unreasonable and the interference claimed by the applicant was not severe. The shade of trees does not constitute substantial, ongoing and unreasonable interference with the use of the property. Hence the tribunal has dismissed the application made by applicant (Sela, 2017).
It is analysed that online dispute resolution platform is the upcoming method designed to facilitate the communication between the parties to the disputes to resolve the case in fast track mode. It is like the online body which allows parties to the dispute to raise their concern and present the evidences so that their matters could be resolved in easy and fast track approach. However, Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 formerly known as Neighbourhood Disputes Resolution Act 2011 has also suggested that tree dispute case is small in nature and should be resolved without any delay. Therefore, the court itself supported the application of the online dispute resolution mechanism.
References
- Austin, C. (2018). Online and Automated Dispute Resolution in New Zealand: A Law Reform and Regulation Perspective.
- Beriley Pty Ltd v Novadeck Pty Ltd t/as Heran Building Group [2017]QCAT 29 (NDR148-16)
- Clark, E., Cho, G., & Hoyle, A. (2013). Online dispute resolution: present realities, pressing problems and future prospects. International Review of Law, Computers & Technology, 17(1), 7-25.
- Cortés, P., & Lodder, A. R. (2014). Consumer dispute resolution goes online: reflections on the evolution of European law for out-of-court redress. Maastricht Journal of European and Comparative Law, 21(1), 14-38.
- Exon, S. N. (2017). Ethics and Online Dispute Resolution: From Evolution to Revolution. Ohio St. J. on Disp. Resol., 32, 609.
- Hörnle, J. (2012). Encouraging Online Dispute Resolution in the EU and Beyond-Keeping Costs Low or Standards High?.
- Kaufman, S., Ozawa, C., & Shmueli, D. (2018). Negotiations in the public sector: Applying negotiation theory to multiparty conflicts. Négociations, (1), 59-73.
- Minahan v Kosky and Kosky
- Mirana Investments Pty Ltd and Ors v Coupe [2012]QCATA 187 Hon James Thomas AM QC, Member27 September 2012
- Reznik, R. S. (2017). Alternative Cross-Border Consumer Dispute Resolution. Law: J. Higher Sch. Econ., 111.
- Sela, A. (2017). The Effect of Online Technologies on Dispute Resolution System Design: Antecedents, Current Trends, and Future Directions. Lewis & Clark L. Rev., 21, 635.
- Sourdin, T. (2017). Justice in the age of technology:’The rise of machines is upon us’. Precedent (Sydney, NSW), (139), 4.
- Thomas V Barker, MD of Santa Cruz, CA (95065)
- Watson v Barua [2013] QCAT 465(NDR113-13) Jim Allen, Member 3 September 2013,
- Collins v McNeil [2013] QCAT 429 (NDR035-12) K Roseby, Member 19 August 2013,
- Hauff v Barnes-Thygesen [2013] QCAT 296 (NDR190-12)Gerald T Byrne, Member 5 June 2013
- Beelen, K., Kanoulas, E., & van de Velde, B. (2017, August). Detecting Controversies in Online News Media. In Proceedings of the 40th International ACM SIGIR Conference on Research and Development in Information Retrieval(pp. 1069-1072). ACM.
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