Neighbour disputes

Trees, fences, retaining walls, noise, views and sunlight – sensitive issues when living side-by-side

Neighbour duties concerning fences, views, trees and sunlight – and disputes in relation to them – have since 2011 been regulated under Queensland’s Neighbourhood Disputes (Dividing Fences and Trees) Act.

Such disputes are dealt with in a special jurisdiction of the Queensland Civil and Administrative Tribunal (QCAT).

Retaining not covered in the legislation. General law provisions apply.

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Trees, branches, tree roots

The NDDFTA has the following principles:

  • Only owners are “tree-keepers” (not tenants)
  • Owners or tenants can be “neighbours”
  • Tree keeper must remove overhanging branches but neighbour may (w/o obligation to return cuttings)
  • Otherwise if land “affected” by branch > 50cm overhang < 2.5m above ground:-
    • 30 day notice (one per 12 month)
    • One quote
    • Tree-keeper liable for expenses to remove (max $300)
  • Trees, roots or branches > 2.5m above ground “affecting” land
  • Attempt to resolve
  • Apply to QCAT:
  • to prevent serious injury to any person;
  • to remedy, restrain or prevent serious damage to neighbour’s property or prevent injury
  • Trees, roots or branches > 2.5m above ground “affecting” land …causing substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land:
  • Attempt to resolve
  • Apply to QCAT

Claims against neighbour for trees obstructing views or sunlight

  • Only residential lots can claim views
  • Most land affected but not:-
    • Parks;
    • “unallocated” State land;
    • Rural‘; or
    • Lots > 4ha
  • Concerns trees or branches > 2.5m above ground “affecting” land by way of substantial, ongoing, unreasonable interference is severe obstruction of sunlight or a view but only if—
    • sunlight obstructed to a window or roof; or
    • the view existed when the neighbour took up occupation of the residence.

House buyers inherit tree obligations – costs of removal and repair

Has to be a “view” – outlook to sky and other house walls doesn’t cut it

Neighbour must pre-date tree obstruction

Pre-occupation foliage from other trees may  already block view

Need evidence of view at date began occupation – photos, photos,

Fences

The NDDFTA has the following principles:

Neighbours can be compelled 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 – and there is an adjudicator process if there is a dispute as to the cost, nature, construction type etc of the fence.

If a neighbour directs a fence partly on your land, they can be compelled to remove it. Disputations over the location of a boundary can also be adjudicated.

Retaining walls

Adjoining owners have a shared duty to maintain retaining walls.

In Yared v Glenhurst Gardens [2002] NSWSC 11 a lower landowner sued a higher landowner after the 5m high boundary collapsed after heavy rain alleging that fill deposited above and behind the retaining wall constituted a legal nuisance and that the defendant was negligent in removing trees and vegetation on its land that had held the fill material in place.

The court noted that retaining walls benefit a higher landowner by retaining its soil and the lower landowner by protecting her from landslip thus maximising the use of both parcels of land.

It concluded the higher landowner was liable to contribute at least half of the reasonable cost of the rectification work and ordered it to provide access to its property to complete the necessary work.

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