Neighbourhood Tree Dispute

Neighbourhood disputes can arise over a variety of matters, and have the potential to become all consuming for those involved.  One such example is neighbourhood tree disputes resulting from overhanging branches.  The question is, who is ultimately responsible for remedying these issues and any damage caused?

Who is responsible in a neighbourhood tree dispute?

The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 ("the Act") sets out who is responsible for trees located on a particular parcel of land.  That person is known as a "tree-keeper", and includes the registered owner of the property the tree is located on.

What are the owner's responsibilities in relation to trees on their property?

The tree-keeper is responsible for:

• cutting and removing any branches of the tree that overhang a neighbour's land;
• ensuring the tree does not cause serious injury to any person, property or land; and
• ensuring the tree does not cause substantial interference with a person's use and enjoyment of a neighbour's property.

A tree-keeper will also be liable for any damage caused by a tree under his or her control, such as where an overhanging branch drops and damages structures located on a neighbouring property.

How do you make a neighbour comply with their obligations in relation to trees?

Ideally, the first step would be for the parties to discuss the matter and attempt to reach a solution.  If those discussions are not possible (or unsuccessful), the Act provides a process to deal with overhanging branches.

For branches that overhang more than 0.5 metres but are less than 2.5 metres above ground

For branches that overhang more than 0.5 metres but are less than 2.5 metres above ground, a neighbour can issue a tree-keeper with a notice seeking the removal of the overhanging branches.  That notice must:

• include a timeframe for removal (at least 30 days from the date of serving the notice);
• ask the tree-keeper to provide at least one days' written notice, identifying who will carry out the works and when;
• give permission to the tree-keeper (or their contractor) to enter the neighbour's land; and
• be accompanied by a written quotation setting out the estimated cost of the work.

In the event the notice is not complied with, the neighbour can cut and remove the overhanging branches (within the bounds of their property), and seek reimbursement for the cost of same from the tree-keeper, up to a maximum of $300.00.

For branches that overhang more than 0.5 metres but are in excess of 2.5 metres above ground

For branches that overhang more than 0.5 metres but are in excess of 2.5 metres above ground, a neighbour can apply to the Queensland Civil and Administrative Tribunal ("QCAT") for an order that the overhanging branches be removed at the tree-keeper's expense.  A similar order can be sought in circumstances where a tree has grown to such heights that it causes a "substantial and ongoing unreasonable" interference with a neighbour's enjoyment of their land.  QCAT has the authority to make a variety of orders, including an order:

• that the tree-keeper carry out specific works, such as trimming branches;
• that a contractor enter the tree-keeper's property to carry out specific works; or
• for costs, such as for reimbursement for works carried out, or compensation for damages.

It is important to note that the provisions of the Act do not prevent a party from pursuing their rights under common law.  For example, notwithstanding the provisions of the Act, a neighbour is still entitled to exercise the right of abatement (that is, removing part of an overhanging branch).  Further, the Act does not prevent the parties from bringing a claim at common law, such as a claim for negligence following damage sustained due to encroaching roots.

How can we help?

We can help with all kinds of neighbourhood disputes, regardless of whether you're a tree-keeper or a neighbour.  Contact one of our expert team on 07 4963 2000 or via our online contact form below.