VIC Council - Neighbour Killed Tree?

[Johnni]

On our property we have a large gum tree. It is on the strata council plan and the tree has gotten so large that the trunk has grown onto the neighbour's side of the property by about 30%-40%. The tree is huge, over 30 meters tall and is in our front yard. The canopy over hangs both properties as well as the public footpath, bus-shelter, road, power lines and our respective homes.

Recently I noticed discoloration in the leaves in the canopy, and on closer inspection I found white crystal like material on the neighbour's side of the fence around the base. On closer inspection I discovered there are also many holes bored into the base of the tree also on the neighbour's side. My research has led me to believe foul play.

I called the council and after internal issues with getting a response (whole other story), and several weeks later they confirmed via an arborist that the tree has been poisoned and are conducting tests on the crystal material to ensure it is not a toxic hazard. They also advised me it is a civil matter. For the moment the tree is not a hazard, but 50% of the canopy is now brown with small branches falling off. Looking forward to those gusty days.

The neighbouring property was sold last October at auction. I spoke to the the vending estate agent to track down the owner as the property has been vacant till now. The property is still under settlement, but the new owner is allowed access under terms of sale for maintenance. We have seen the new owner carrying out his routine maintenance one day by cleaning gutters of leaves and washing down the sides of the weatherboard house. That was in January and only the once we saw him do this, and the house still unoccupied.

I emailed the Estate agent to pass on request to discuss the poisoned tree with the owner, but no reply. Apparently an accountant is the owner's representative due to settlement. I do not have access to the new owner till after settlement.

In order to attempt to save the tree I need to enter the neighbour's property or get them to clean up their mess. No one seems to be able to help me and any remedial action can just as easily be reversed with more poison by whomever did this in the first place.

The police is the next port of call to report malicious property damage to my tree, but no witnesses.

For several weeks I have tried to resolved this issue and am helpless to do anything or bring anyone to account. Poisoning the tree with potential to cause a hazard to property and public is irresponsible to start with. Killing my healthy tree just angers me, not to mention the cost when the time comes to remove it.

Regards

I tried to enter tags, but "tree killer", "malicious property damage" is not available

 

[Rod]

Curious about whether the new owner is likely to redevelop. Trees in my area seem to die as well when developers move in. I still have a section of gum tree from a neighbour's house that has the ringbark cut in it. Council couldn't do anything because the person who did it is not identifiable.

Without evidence pointing to who did I don't like your chances.

Maybe a court order (Anton Piller search order?) finding out if the neighbour happens to own this mystery crystal?

 

[Johnni]

Curious about whether the new owner is likely to redevelop. Trees in my area seem to die as well when developers move in. I still have a section of gum tree from a neighbour's house that has the ringbark cut in it. Council couldn't do anything because the person who did it is not identifiable.

Without evidence pointing to who did I don't like your chances.

Maybe a court order (Anton Piller search order?) finding out if the neighbour happens to own this mystery crystal?

There have not been any plans submitted to council for developing on this property, and the new owner also owns the adjacent property on the other side of his new property. The house is an old weatherboard and paid $1.7m. I'm sure development is in the offing.

When the time comes to remove the tree, I am fortunate I don't have to apply for reason to remove a tree on the strata because it will be dead, but I will have to pay $109 to amend the council plan and plant another tree as condition of the original permit granted to build. There are other trees behind the strata complex (not my property) that I now realise are vulnerable should someone takes a dislike to them.

 

[Gorodetsky]

Hi johnni,

Ok, so aside from the problem of getting police to act, for criminal matter the cops need to prove "beyond reasonable doubt" for something criminal...(usually explained as 99% certain).

For civil, after you've paid several thousand to get a legal representation, you need to prove "on the balance of probabilities" that a given party did it (usually described as greater than 50% likely)...Fail to prove it and you are looking at paying the other parties legal costs...

Until you overcome these barriers, there's not much to be done....

I think your on the right track by considering if the tree can be saved or if the council will act for malicious damage to a ?Protected? Tree.
You ought to advise the new owners you think the tree will recover and that any damage from dead branches were not caused by you, but by some other party, maybe the previous owner...

Regards

 

[Johnni]

Hi Gorodetsky

The council have considered this matter as civil.

I think I will approach the police tomorrow. The council have supported the fact that the tree was poisoned by activity to the tree on the neighbour's side of the property. Not having proof who committed this heinous act is the only issue, especially in such a messy settlement period . The only person to benefit from such an act would most likely be the new owner, though there is no clear inference , like a building application for building works on this property.

I am no property expert, but there is substantial weirdness around my neighbours property. Settlement is still to be finalised since 29 October, 2016 till now. There were tenants prior to the sale, and for a six month settlement, the property has remained vacant. (rental income could very well be equivalent to the cost of removing a large gum tree maybe ;-) The new owner was granted permission to carry out maintenance during the settlement period according to the real-estate agent for the property. This would assume that the property was to remain vacant so the new owner could freely have access?

Then there is the new owner's brazen cleaning spree one day on the weekend in January- cleaning his gutters of my trees leaves is considered normal, washing weatherboard exterior of a house is still puzzling me and my partner especially as there is no gain for a house not being settled for another 4+ months, other than to demonstrate how anal the new owner is to cleanliness and order, or a cover to poison my tree, or both (sorry, will stick to the facts, your honour)

The tree is on a very busy road. Across the road there is a small shopping center with Greek supermarket/ Sri Lankan groceries, milk bar, takeaways, hairdresser, laundromat, 2 chemists, shisha lounge and our local state MPs office.

A bus stop is directly in front of the property where the tree is. People would pass this property by foot to access the main shopping centre and community centre 200 metres further down the road. Thousands of cars travel along this road daily. If I can get police to file a report then I can start my own crime stoppers campaign and ask the public for assistance if they have seen anything.

When taking photos of my dying tree, I have encountered unknown passersby who are horrified when I tell them what has happened to the tree. It seems everyone in the area knows the tree, as it really is large and imposing in an area of surrounding flatness . I have their sympathies of the senselessness of what has occurred. I do not hold any hope of a favourable out come. My letter to the owner for a discussion has not had a response. I do not know how to access my tree on the neighbour's side to administer treatment without trespass and potential incrimination.

If anything, this issue could be in the public interest for a news story in the local paper which may have exposure to more potential witnesses or at least give a bit of dignity to a beautiful grand tree.

My tree being violated and me having to pay for someone else/s gain is really saddening. (I have better descriptive words if required)

Regards

 

[Iamthelaw]

I called the council and after internal issues with getting a response (whole other story), and several weeks later they confirmed via an arborist that the tree has been poisoned and are conducting tests on the crystal material to ensure it is not a toxic hazard. They also advised me it is a civil matter.

Interesting..

Contrary to popular belief, certain municipalities treat the destruction and/or removal of trees as a serious matter and commence criminal proceedings. Usually such cases that are pursued are trees that are deemed 'significant' or on a form of register etc. Much like criminal prosecutions under the Building Act and the Planning and Environment Act - These matters can and do end up in the Magistrates' Court occasionally - Depends on the council.

Perhaps try again with the council.