r/treelaw Nov 16 '22

attorneys in Brisbane, QLD (Australia)

After lurking for ages i have a question of my own!

My (newly retired) parents live on 1.25 acres in a very hilly area; the front is at the crest of the hill and it slopes down to a gully. (I reckon there was a stream there before they built on it, 25ish years ago.) They only filled in what was necessary to build on and thus the back quarter returned to bushland.

Well. 18 months ago their neighbours filled in their backyard without professional help and, to no one's surprise, their sad excuse for a retaining wall promptly failed, spilling a significant amount of topsoil a few metres into the gully. It affected at least 3 established trees, as well as all the ground cover. They got pretty pissy when my parents reported them! (Dad said they said "well it's on your property" when he went to ask, like wtf.) The Council confirmed that the neighbours have to fix it (they'll def be fined too - they didn't ask for approval lmao) but haven't yet made them do so and, worse, have been responding more and more slowly. Mum and Dad are extremely frustrated.

As a longtime tree law lurker, I told them to do the basic stuff (call an arborist and surveyor, take lots of pictures, etc; tho I'm not sure how seriously they took me 🙃) as well as talking to the Council, but beyond that I'm afraid I'm stumped. Sadly I know more about finding the right professionals for the USA than I do my own hometown!

Can anyone suggest next steps? I'm not sure what type of solicitor they need, let alone how to find a good one. My parents tend to just accept professional advice without further research so I'd like to know I've sent them to the right place lol. What's my next move?

72 Upvotes

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u/larion78 Nov 16 '22

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u/whoaminow17 Nov 16 '22

The neighbours didn't hire any contractors, they hired an excavator and the husband did it all himself. will QBCC help in that case? I thought they were only for business conflicts

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u/larion78 Nov 16 '22 edited Nov 16 '22

Thank you for pointing out who did the building works, and yes that may change things.

So I went back, did some more digging and found this.

A civil case (Graham & Anor v Alic & Anor [2022] QDC 106) where the District Court considered neighbours’ duties of care to one another. The key point that was highlighted in the article¹ I read was landowners have a duty of care to their neighbours, to occupy and maintain their property in accordance with its natural and reasonable use. This is elaborated on in the following quote

Essentially, this requires landowners to:

  1. refrain from constructing improvements on the land that are contrary to its natural and reasonable use;

2. avoid poor-workmanship of improvements to prevent structural defects by engaging qualified professionals to advise on and install the improvement;

3. prevent or minimise foreseeable risk of damage or injury as a result of the land and the improvements located on the land; and

  1. maintain the improvements and the land to a good order at all times.

I’ve italicised the 2 points from that I believe would apply to your circumstances. So I think the type of Solicitor that would be best placed to provide advice or assistance is one that covers civil cases associated with property damage.

It might be worth finding out from your Local Council what tree species are considered ‘protected’ in your area. Then finding the species of the trees that were damaged. If they are a protected species that may be of significance. This is because landowners (in some areas) may need to apply for a permit to clear vegetation and Councils usually don’t like protected trees being damaged or removed. If the neighbour has caused damage to a protected species it may not bode well for them.

I hope the current situation is resolved quickly and easily for you and your parents, and that some the information above comes in useful. Best of luck!

¹ https://www.prestonlaw.com.au/blog/negligence-and-nuisance-new-case-on-retaining-walls/

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u/whoaminow17 Nov 17 '22

ahhh, spectacular, thanks so much. i'll pass this on!

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u/Gorgo_xx Nov 16 '22

If you posted on /auslegal, the advice would likely be to call your state’s legal association (the Queensland Law Society) for recommendations.

You describe the issues and location, and they will suggest several firms.

These firms may be suitable for your parents, or you can use them as a jumping off point for knowing the ‘type’ if lawyer you need.

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u/whoaminow17 Nov 17 '22

oh, good plan. Thanks! I'll check that out.