Neighbour duties concerning fences, lost views, trees and sunlight – and disputes in relation to them – are regulated under Queensland’s Neighbourhood Disputes (Dividing Fences and Trees) Act.
Neighbourhood disputes – whether due to trees, fences, walls, noise, machines or vehicles – can be expensive and stressful as no one deserves to feel uncomfortable in their own home.
It is always better to resolve neighbourhood issues constructively so as to reach a mutually acceptable solution. In some cases, though, this may not be achievable and legal options must be pursued. See here for an example of poor neighbourly relations over a boundary fence that had a disastrous outcome.
Talking face-to-face is much better and far more effective than phone calls, emails, letters and messages. Before talking with the other person, think about what you want to say. It is important to state clearly what the problem is and how you feel about it. – QLD Government
House buyers inherit tree obligations owed to neighbouring owners and tenants in relation to the cost of removal or trimming of offending trees on the property they are buying.
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 neighbours’ 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.
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.
Want an assessment of the rights and wrongs in your Neighborhood Dispute? Try our interactive assessment tool to test whether you are on strong grounds to maintain your dispute. Otherwise contact our Neighborhood Disputes Lawyers today!
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.
Either neighbour is entitled to require a common boundary 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, one month after a ‘notice to fence’ is given, no agreement is reached on the proposed fencing work, 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 will pay.
Adjoining owners have a shared duty to maintain retaining walls. As higher landowner, you benefit from the wall by it retaining your soil and creating more land for your use above the wall. The lower landowner gets an equivalent benefit.
Neither the higher landowner nor the lower landowner is obliged to bear sole responsibility for erection, maintenance or replacement of a retaining wall unless the need to do so arises from what they have done on their property.
Either owner can be compelled to provide access to their property to allow for the completion of the necessary work.
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).
Neighbourhood disputes – whether due to trees, fences, walls, noise, machines or vehicles – can be expensive and stressful as no one deserves to feel uncomfortable in their own home.