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Neighbourhood Disputes Resolution Bill consultation questions and answers

    The Neighbourhood Disputes Resolution Bill 2010 has been tabled in Parliament and released for public consultation. The proposed new laws provide clear and practical ways to solve neighbourhood disputes about trees and fences.

    Learn more, get involved and have your say about the proposed new Neighbourhood Disputes Resolution Bill. Submissions close on 9 July 2010.

    This information does not provide legal advice. This is a guide only to the Bill for the purposes of the consultation process.

      What general changes have been proposed in the Bill?

      For more than 50 years, the Dividing Fences Act 1953 has been the statutory authority on dividing fences. The Neighbourhood Disputes Resolution Bill 2010 modernises many sections of the Act and uses modern drafting styles and language. It will provide more effective remedies for neighbours to help them resolve disputes about dividing fences and trees and gives jurisdiction to the Queensland Civil and Administrative Tribunal (QCAT) to deal with these matters.

      What general changes are proposed for fences?

      The Bill proposes a wider definition of the term fence (including hedges) and clearer definition of the term ‘sufficient dividing fence’. Other general changes include a single ‘Notice for contribution to fencing work’ form; clarification that the ownership of the dividing fence on a common boundary is shared equally; distinction between a retaining wall and a fence, and; clearer rules for pastoral and agricultural fences.

      What general changes are proposed for trees?

      The Bill proposes that the proper care and maintenance of a tree will be the responsibility of the tree keeper. The Bill will promote public safety. Responsibility will be placed on the tree keeper to ensure that their tree does not cause injury to persons or damage property of the neighbour. A neighbour will not have to return to a tree keeper, branches, roots or fruit which encroach on the neighbour’s land. The common law right of abatement still applies, subject to state and local laws about trees. This means that, generally, property owners/occupiers are able to trim branches of a neighbour’s tree to the boundary line. The Bill proposes the introduction of a notice system for cutting and removing overhanging branches at the tree keeper’s cost and the creation of new legislative solutions to deal with trees in the neighbourhood. Sellers of land must give potential buyers information about any application to, or orders made in relation to a tree by QCAT. The environmental importance of trees is also reflected in the Bill.

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      Dividing Fences

      What is a dividing fence?

      A fence is a structure, ditch or embankment, or a hedge or similar vegetation barrier, enclosing any land, whether or not it extends along the whole boundary of the land separating the neighbours. It includes any gate, cattle grid, or apparatus necessary for the operation of a fence. A dividing fence is constructed on the common boundary line of adjoining land. Sometimes a dividing fence can be built off the common boundary line when it is impractical due to the physical features of the land. 

      Who owns a fence?

      The Bill does not affect the common law position. A dividing fence is owned equally by the adjoining neighbours if it is built on the common boundary line. However, a fence or part of a fence built on one neighbour’s land is owned by that neighbour, even if the other neighbour contributed to the cost of construction of the fence.

      What are the basic rules proposed by the Bill for dividing fences?

      There should be a sufficient dividing fence between two parcels of land if an adjoining owner requests one – even if one or both parcels of land are vacant. Generally neighbours must: contribute equally to the cost of building and maintaining a sufficient dividing fence, and; not attach something to a dividing fence that materially alters or damages it.

      Are there any circumstances where a dividing fence is not required? 

      Yes, there some circumstances where a dividing fence is not required:

      • if both neighbours of adjoining land do not want a dividing fence
      • where either parcel of land is excluded land (land that is outside the scope of the bill. See definition in the Bill in clause 7)
      • where both parcels of land are agricultural land
      • where there is no owner of the land, for example, where land under the Nature Conservation Act 1992 is not subject to a lease or stock grazing permit.

      What happens if a fence is built without complying with the Bill?

      In such cases, generally neighbours will need to rely on any agreement reached with the neighbour or the common law. It would be worthwhile recording the terms of any such agreement. However, those agreements generally would not bind subsequent purchasers of either property. 

      Why doesn’t the Bill apply to retaining walls?

      Retaining walls serve a different purpose than fences. They are engineered to support built up or excavated earth. Retaining walls are not normally a matter of joint responsibility for neighbours because a retaining wall is usually of more benefit to one neighbour.

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      When will a dividing fence be sufficient?

      A dividing fence is considered a ‘sufficient dividing fence’ in the following circumstances:

      • where two parcels of residential land are adjoined, the fence must be between 0.7 metres and 1.8 metres in height and constructed substantially of prescribed material
      • where two parcels of pastoral land are adjoined, the fence must be able to restrain livestock of the type grazing on each of the parcels of land
      • in any case:
        • the owners agree a particular fence is a sufficient dividing fence
        • QCAT decides that a particular fence is sufficient. There are specific factors which QCAT must take into account (e.g. types of fences in the neighbourhood).

      What is QCAT?

      QCAT stands for the Queensland Civil and Administrative Tribunal, which began its operations on 1 December 2009. QCAT amalgamated 23 of the State’s tribunals and bodies, providing a single tribunal through which the community can access justice. QCAT provides the community with a more accessible, informal and responsive means of resolving neighbourhood disputes. People will be entitled to reasons and will have improved appeal rights. For more information about QCAT visit www.qcat.qld.gov.au

      Who has to pay what?

      Adjoining neighbours are each liable for half the cost of fencing work required to have a sufficient dividing fence. However, where one neighbour wants to have more work done than is necessary for a sufficient dividing fence then they will be liable to pay the extra expenses. This does not mean that QCAT will order that the fence will be built according to their wishes. In those circumstances, QCAT would consider the wishes of each neighbour and other factors which QCAT is required to take into account. These are explained in the Bill (see clause 36).

      What happens when a neighbour decides to use a swimming pool fence as a dividing fence?

      The owner of a swimming pool fence must ensure that the fence complies with the standards set out in the Building Act 1975. Under that Act if a swimming pool fence is also a dividing fence, the owner of the pool will be liable to pay the costs of any changes to the fence that maybe required over and above a ‘sufficient dividing fence’. For more information about swimming pool fencing visit the Department of Infrastructure and Planning at www.dip.qld.gov.au

      Under the Bill, a pool owner will be able to make some changes to the boundary fence (including raising its height to 1.8 metres) without consulting the neighbour. This is to enhance the safety of children. Some other changes require notification to the neighbours.

      What happens if a neighbour’s fence is destroyed by a negligent or deliberate act?

      The owner of the land must restore the dividing fence to a reasonable standard. They must take into consideration the state of the fence before the damage occurred. If the owner does not restore the fence then they will be liable to pay the adjoining owner the cost of restoring the fence to a reasonable standard.

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      Trees

      What is the meaning of ‘tree’ and ‘situated’?

      The word ‘tree’ in the Bill includes a woody plant, shrub, bush, vine, bamboo or herbaceous plant. It also includes a bare trunk, a stump, a dead tree and a tree that has been removed. A tree is ‘situated’ on land if the tree is, wholly or mainly, on the land, including a tree that has been removed.

      Does the Bill apply to all trees?

      Generally, the Bill applies to trees except those situated on excluded land (land that is outside the scope of the bill) or on parcels or land for which there is not an owner.

      Who is a ‘neighbour’?

      A neighbour is a person or entity that is the registered owner of the land affected by a tree.

      What is ‘land affected by a tree’?

      Land is ‘land affected by a tree’ if:

      • branches from the tree overhang the land
      • the tree causes or is likely to cause:
      • injury to a person on the land
        • damage to the land or property on the land
        • substantial, ongoing and unreasonable interference with the neighbour’s enjoyment of the land.

      What are the responsibilities of a ‘tree keeper’?

      In general terms, a person is a tree keeper if they are the registered owner of the land on which the tree is situated. If a tree has more than one keeper then the responsibilities and liabilities will be shared equally between them.

      A tree keeper is responsible for:

      • cutting and removing any branches of the tree which overhang a neighbour’s land, provided there is no vegetation protection order protecting the tree
      • ensuring that a tree does not cause injury to a person on the neighbour’s land or damage to a neighbour’s land or any property on a neighbour’s land or cause substantial ongoing and unreasonable interference with a person’s enjoyment of their land.

      Imposing these responsibilities upon a tree keeper will promote public safety.

      How should a neighbour advise the tree keeper that the overhanging branches should be trimmed?

      A neighbour can give a tree keeper 30 days written notice, using the Bill’s proposed ‘Notice for overhanging branches’ to cut and remove the overhanging branches at the tree keepers cost.  The tree keeper (or their contractor) must be granted permission to enter the neighbour’s land to perform the work at an agreed date and time within the 30 day notice period. 

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      What happens if the tree keeper does not respond?

      If the tree keeper does not respond the neighbour may cut and remove the overhanging branches or arrange for someone else to do so. The tree keeper will be liable for all reasonable expenses incurred by the neighbour for cutting and removing the branches. 

      When can a neighbour apply to QCAT about a tree?

      A neighbour can apply to QCAT, where the neighbour alleges that:

      • the tree has caused, is causing or is likely to cause injury to any person
      • the tree has caused, is causing or is likely to cause damage to a neighbour’s land or property
      • the tree has caused or is causing, substantial, ongoing and unreasonable interference with the neighbour’s land.  

      What are some examples of substantial, ongoing and unreasonable interference with the enjoyment of a neighbour’s land?

      Depending on the circumstances, interference with television or satellite reception, loss of light, interference with the proper functioning of solar panelling and interference with a previously existing view, which diminishes the value of the land may constitute substantial, ongoing and unreasonable interference with the enjoyment of the neighbour’s land.

      Are there any requirements before QCAT can make an order under the Bill?

      To make an order QCAT must be satisfied that:

      • that the matter is within QCAT’s jurisdiction
      • the neighbour has a made a reasonable effort to reach an agreement with the tree keeper
      • the tree keeper has been given a copy of the application.

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      What sorts of orders can QCAT make?

      An order:

      • for the removal of a tree within a 28 day period
      • an order that a tree have annual maintenance work
      • an order that a survey be undertaken to clarify the location of a tree
      • an order authorising a person to enter the land to obtain a quote for work or to carry out work on a tree
      • an order for compensation or repair costs for damages
      • an order for an arborist’s report to be obtained.

      Can QCAT override other laws?

      QCAT may not make an order for a person to carry out work on a tree if the work is restricted or prohibited under another Act. However, if the work is restricted under a local law, or consent is withheld by the local government or the tree is subject to a vegetation protection order, QCAT has the authority to make orders for work to be carried out.

      What factors should QCAT consider?

      The primary consideration for QCAT is the safety of any person. Some of the other considerations include the location of the tree in relation to the boundary of the land, whether carrying out the work would require consent of a state or local authority, the contribution the tree makes to the local eco-system and the contribution the tree makes to the natural landscape.

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      What happens if a person fails to comply with an order?

      A person must not fail to comply with a requirement imposed upon them unless the person has a reasonable excuse. The maximum penalty is $110,000.

      Is there a record kept of orders made by QCAT relating to trees?

      QCAT will keep a publicly available electronic register of orders, including any order affecting land, the time frame in which the order is to be carried out and the person responsible for carrying out the order.

      What happens if a person wants to sell land affected by an application or order about a tree?
      The person who is selling the land affected by the application or order must give the buyer a copy of the application or order before the buyer enters into a contract of sale for the land.

      Are there any consequences if the person gives a copy of any application about a tree to a buyer?

      Once the copy of the application is given, on the day of transfer the buyer is added as a party to the QCAT proceeding.

      Are there any consequences if the person gives a copy of any order about a tree to a buyer?

      Once the copy of the order is given then, on the day of transfer, the buyer is joined as a party to the QCAT proceeding to the extent that work is required under the order.

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      Are there any consequences if the person does not give a copy of any application or order to a buyer before transfer of the land?

      If a copy of any application is not given to the buyer, the buyer may terminate the contract at any time before the contract settles by giving a signed and dated notice of termination to the seller or the seller’s agent. Once the contract is terminated the seller has 14 days to refund any deposit paid under the contract to the buyer. The seller and the seller’s agent will be liable for any reasonable and legal expenses incurred by the buyer in relation to the contract for the sale of the land.

      Are there any consequences if a person selling land fails to give a copy of any order before the buyer enters into a contract of sale?

      Where the seller has not given the buyer a copy of the order, before the buyer enters into a contract for the sale for the land, the person selling the land remains liable to carry out the work required under the order.

      How can I find out more about the draft Bill?

      Learn more, get involved and have your say about the proposed new Neighbourhood Disputes Resolution Bill. Submissions close on 9 July 2010.

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      Comments and feedback

      Please provide any comments or feedback by close of business on 9 July 2010 via email to:

      NeighbourhoodDisputesResolution@justice.qld.gov.au

      or by mail to:

      Neighbourhood Disputes Resolution Bill consultation
      Department of Justice and Attorney-General
      Strategic Policy
      GPO Box 149
      Brisbane Qld 4001

      Last reviewed
      12 May 2010
      Last updated
      7 March 2012
       
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