Judge demands action in neighbour tree dispute

A bitter neighbourhood dispute over a trees has ended with a judge ordering action - with a deadline.

The owner of 32 Pine Ave, Surfers Paradise, took on his neighbours because of overhanging trees.

A bitter neighbourhood dispute over the size of flowering trees hanging over the fence has heard claims they block the sun and drop leaves in the pool, and has ended with a judge ordering they be trimmed to a hedge.

Rodney Ernest O’Kane, from the exclusive Budds Beach enclave on the Gold Coast, took his neighbours Mark Francis Caughley and Roberta Rosina Battaglia to the Queensland Civil and Administrative Tribunal (QCAT) in a bid to get them to cut trees overhanging his rental property.

In her decision handed down on June 2, QCAT member Kate Chapple ruled that Mr Caughley and Ms Battaglia must prune three golden penda trees to the fence line to form a hedge in winter each year.

The first pruning should be done by an August 24 deadline this year, and the couple must pay the trimming costs.

“I consider that, without containment, the trees’ branch overhang and the associated leaves, pollen, and debris is, by now, or is likely in the next 12 months to cause substantial, ongoing and unreasonable interference with (Mr O’Kane’s) use and enjoyment of the corner garden and pool,” Ms Chapple wrote in her decision.

“Over time, if not already, (Mr O’Kane’s) corner garden and pool would be increasingly difficult to access and maintain due to the trees’ overhanging branches,” she wrote.

When an arborist visited the garden in September last year he said one of the penda tree branches were overhanging into Mr O’Kane’s yard by two metres.

“It is also reasonable to expect that, without containment, the branch overhang will continue to increase,” she wrote.

Once mature the trees will reach eight to ten metres tall with a six to eight metre crown spread. 

Mr Caughley and Ms Battaglia paid $940,000 for the three-bedroom home at 30 Pine Ave during the early days of the pandemic, and it is now estimated to be worth $1.5m.

They bought the home from neighbour Mr O’Kane, who owns the house at 32 Pine Ave, having paid $1.1m in 2021.

Mr O’Kane listed number 32 to rent for $1175 per week in November last year.

Both homes are just metres from the Nerang River.

A tree assessment report filed in the tribunal states that the pendas were planted as a screening hedge about 20 years ago.

Mr O’Kane also complained the trees had damaged his landscaping and pool, and blocked his sunlight, claims denied by Mr Caughley and Ms Battaglia, and rejected by Ms Chapple.

“All morning sun is blocked by the trees,” Mr O’Kane stated in his application filed in QCAT on 19 February 2024.

“Leaves, pollen, and debris from the trees strangle shrubs, clog the pool skimmer box and filter basket, and build up on the pool coping and in the pool; the pollen dries to a black colour and leaches through the pebbles surrounding the pool. The stronger the winds the bigger the mess. It is a daily task to keep the property and pool clean,” Mr O’Kane stated.

He has hired a pool cleaner to keep the area tidy for his tenants, the tribunal heard.

Before the dispute went to the tribunal the neighbours had exchanged text messages in 2023 about Mr Caughley and Ms Battaglia arranging a contractor to cut their trees overhanging the fence to the fence line, the decision states.

Mr O’Kane requested the trimming be completed by September when his tenant was moving in, but Mr Caughley and Ms Battaglia replied that they could not currently afford the tree lopping.

Mr Caughley and Ms Battaglia submitted to the tribunal that they reject Mr O’Kane’s claims that his landscaping and pool has been damaged by the tree, or claims that their trees had interfered his use of his land or blocked sunlight.

The couple submitted that during the three years Mr O’Kane lived at 32 Pine Ave, before leasing the property, he never raised an issue with flowers, leaves, seeds and related maintenance and damage.

They submitted that Mr O’Kane only began texting them about the trees when their “relationship deteriorated” when they complained their red brick fence was damaged by Mr O’Kane “removing his attached roof pergola” from the fence, after they asked him to remove it.

They told the tribunal that the trees were home to local birds, reptiles and bees and they are not responsible for fallen seeds and flowers during spring or when birds are feeding.

Originally published as Judge demands action in neighbour tree dispute