Neighbourhood Disputes

Neighbourhood Disputes over fences

Either neighbour is entitled to require a common boundary to be fenced, and usually, both will be required to contribute equally to the cost of building and maintaining it. A neighbour can be compelled under the NDDFTA to meet the cost of erecting a dividing fence or repairing a dilapidated one – provided the relevant notice under the Act is given before construction.

If a neighbour erects a fence partly on your land, they can be compelled to remove it. Disputations over the location of a boundary can also be adjudicated in QCAT if there has been an unsuccessful attempt to resolve the dispute.

If an owner wants the neighbour to contribute to the cost of work to be done in relation to a dividing fence, they must first give their neighbour a Notice to Contribute for Fencing Work.

“Fencing Work” can include the conduct of a survey to identify the boundary, engineering reports if required and repairs to any retaining wall to which the fence is attached.

Even if work is intended to be done without asking the neighbour to contribute to the cost, such a Notice should be given.

Where a cost contribution is sought from the neighbour the Notice must be accompanied by a quote for the work.

If one month after the Notice is given, no agreement has been reached, either party may apply to QCAT to make an order. QCAT can specify the type of fence when it should be constructed and the cost that each neighbour must pay.

Neighbourhood Disputes over retaining walls

Adjoining owners have a shared duty to maintain retaining walls. A higher landowner, generally benefits from the wall by it retaining soil and creating more land for their use above the wall. The lower landowner gets an equivalent benefit.

A lower landowner who constructs excavates on the boundary must adequately retain the higher land to provide it adequate support.

Neither the higher landowner nor, the lower landowner is usually obliged to bear sole responsibility for the erection, maintenance or replacement of a retaining wall unless the need to do so arises from what they have done on their property.

The extent to which each owner must bear the cost of the maintenance of a retaining wall therefore depends on a number of factors including the relative benefit each owner gets from the additional usable space on their side of the wall; the history of its construction; and whether one neighbour’s conduct or works has caused the wall to deteriorate.

Either owner can be compelled to provide access to their property to allow for the completion of the necessary work.

Neighbour hazards: collapsing retaining walls, landslides, rock falls

A landowner owes a duty to his or her neighbours to take reasonable steps in the circumstances to prevent hazards on the land of which he or she is aware or should be aware, causing damage to their neighbours or neighbouring land.

Thus the owner must – on becoming aware or when they ought to have become aware of a hazardous condition on their land that creates a risk to neighbouring land – take reasonable steps to prevent or minimise the risk of injury or damage to the neighbour’s property.

In practical terms, the landowner must do what is reasonable to prevent soil from slipping or rocks falling or improvements collapsing from its land onto neighbouring lands. The duty is not to take every possible step to eliminate the risk but rather to take reasonable measures to prevent or minimise the risk.

The duty is founded on the law of “nuisance” and is measured by the reasonable capabilities and circumstances of the person on whom the duty is imposed.

Circumstances that need to be considered in measuring an appropriate response include:

• the cause of the hazard;
• the likelihood of resulting injury or damage to property ;
• the likely seriousness of any such injury or damage;
• the relative complexity and expense of taking reasonable steps to reduce such risk to an acceptable level;
• the duration of such risk; the financial circumstances of each party to resolve such risk;
• the time available to the landowner to have mitigated such risk;
• the promptness of the landowner’s notification to his neighbour of the hazard

The risk of escape of fire or environmental contaminants from land is something against which the law demands reasonable prevention measures be taken.  

Neighbourhood Disputes over tree branches and tree roots

The Neighbourhood Disputes (Dividing Fences and Trees) Act (NDDFTA) makes a “tree-keeper” responsible for cutting and removing any branches that overhang a neighbour’s land. Only an owner can be a “tree-keeper”, not a tenant.

An owner or a tenant can seek redress regarding trees except if the neighbouring property is community title (units or townhouses) when the body corporate must do so, as explained in this case.

The neighbouring owner or tenant is entitled to cut overhanging branches themselves and has the option of placing the cut branches back onto the tree-keepers side of the boundary. They can compel the tree keeper to remove tree limbs extending at least 50 cm across the boundary if they 2.5 m or less above ground level by giving 30 days’ written notice. If not complied with, the neighbouring owner or tenant can get a quote for the removal of the offending branches and can compel the tree keeper to pay up to $300 (not more than once per year) to have them removed.

If an unsuccessful attempt has been made to resolve the dispute, either party may apply to the Queensland Civil and Administrative Tribunal (QCAT) for an order compelling the tree limb’s removal.

The same rights, processes and removal cost obligations apply in relation to encroaching tree roots.

Neighbourhood Disputes over trees that interfere with neighbour’s use or enjoyment of land

Trees or branches that cause “substantial, ongoing and unreasonable interference with the use and enjoyment” of the neighbouring owner’s or tenant’s land can be required to be trimmed or removed. This also applies if the tree or branch is at danger of causing serious injury to any person (see this case, for example, ) or serious damage to neighbour’s property.

If an unsuccessful attempt has been made to resolve the dispute, either party may apply to QCAT for an order compelling the tree to be trimmed or lopped at the tree-keepers expense.

See this example of a neighbour wanting a tree removed because it was dropping debris into and near the neighbour’s pool. As to the extent of interference that needs to be proved to get a tree removal order, see here.

Neighbourhood Disputes over trees that obstruct views or sunlight

Trees or branches more than 2.5m above ground level that severely and unreasonably obstruct:-

• sunlight to a window or the roof of a neighbour’s home as was alleged in this case; or
• a view that existed when the neighbouring owner or tenant took up occupation of the residence.

can be required to be trimmed or removed at the tree-keepers expense. If an unsuccessful attempt has been made to resolve the dispute, either party may apply to QCAT for an order compelling such action, for example as occurred here.

The fact that the home that claims the lost view has been renovated or redeveloped since the occupier took up residence is not necessarily an impediment to bringing the action to have a tree removed so as to restore the view – as occurred here.

Only owners and tenants of residential lots can enforce claims against tree-keepers in relation to trees that are obstructing views. Action can not be taken in relation to trees on public parks, “unallocated” State land, rural land or on lots with an area of greater than 4ha.

The “view” that the neighbour seeks to protect must be significant although not necessarily an ocean view as was the case here. If the view is of the sky or rooftops, it may not qualify as occurred in this case.

Entry on to a neighbour’s land

A person has no lawful right to enter a neighbour’s land even if access to the neighbouring land is absolutely necessary to repair one’s own building. Entry without the neighbour’s consent is a trespass to that land.

Entry is also not permitted onto a neighbour’s land to remove from there, tree branches which extend across the common boundary.

A person whose building is in need of repair has three options:-

• obtain the neighbour’s agreement on mutually satisfactory terms;
• demolish as much of their own building as is needed to get access to the problem; or
• apply to the court for an order permitting such access, where such course is possible.

An owner of land has the right to decide who will come onto the land, who will build there, who will stay off and on what terms a person will be able to enter the land.

A person who needs to remove tree branches that can only be removed from the neighbour’s side of the boundary, must obtain the neighbours’ agreement or an order from QCAT to be able to do so.

The protection given extends to the airspace over the land eg in respect of crane jibs; and the earth beneath its surface eg in respect of intruding footings or foundations.

Normally a court will grant an injunction to protect the neighbour’s rights, notwithstanding that there may be little or no actual damage and financial hardship may be sustained by the grant of the injunction.

Improvements that intrude onto a neighbour’s land are an “encroachment”.

Disputes regarding oversailing crane booms

Where cranes trespass on the airspace of other properties, builders and developers should be prepared to offer some compensation to those affected.

An affected property owner may apply to the Court to obtain an injunction preventing the encroachment of cranes into the airspace above their property. The compensation does not have to be relative to the benefit gained by the builder or developer through the use of the affected properties’ airspace. See this case for an example.

Where the property owner unreasonably refuses to grant the licence to use the airspace above their property, the builder or developer may apply to the Court for a statutory licence pursuant to Section 180 Property Law Act 1974 (Qld).

Dispute resolution regarding trees

Consider the kind of trees you plant, where you plant them and how they may affect the property around you in future. Try to stay in good relations with your neighbours and fix some disputes before they get out of control. Get familiar with your obligations.

Talk to your neighbour if their tree is affecting your property or may affect your property in the future. You can consider contacting a dispute resolution facility if you can not resolve the situation. You may submit an application to Queensland Civil and Administrative Tribunal (QCAT) if you are unable to resolve the situation through discussion.