Tree disputes questions and answers
The Neighbourhood Disputes Resolution Act 2011 (the Act) commenced on 1 November 2011.
The word ‘tree’ under the Act includes any woody perennial plant or any plant resembling a tree in form and size such as a shrub, bush, vine, bamboo, banana plant, palm or cactus. It also includes a bare trunk, a stump rooted in the land, and a dead tree. A tree is ‘situated’ on land if the tree is, wholly or mainly, on the land, and includes a tree that has been removed.
Under the Act the proper care and maintenance of a tree is the responsibility of the tree-keeper. The Act provides greater choices for neighbours about trees affecting their property.
First, if a neighbour exercises the common law of abatement, (e.g. by lopping branches and roots to the boundary), the neighbour can decide whether or not to return the lopped branches or roots, or they can dispose of them themselves. When exercising the right of abatement, neighbours must take care to comply with any applicable tree or vegetation protection orders.
Second, if a neighbour wants the tree-keeper to take responsibility for lopping the branches of their tree hanging over the boundary, they can serve a Notice for removal of particular overhanging branches upon the tree-keeper. This notice can be used for branches which are more than 50cm over the boundary and less than 2.5 metres above the ground. If the tree-keeper does not respond to the notice, the neighbour can proceed to have the lopping done and recover from the tree-keeper a maximum sum of $300 per annum. If there is a vegetation or tree protection order over the tree, enquiries would have to be made to the local council before cutting the tree.
Finally, responsibility is placed on the tree-keeper to ensure that their neighbour’s land is not affected by a tree growing on the tree-keeper’s land. For the purposes of the Act, land is affected by a tree if a neighbour can demonstrate that the tree caused serious injury to a person, serious damage to a neighbour’s land or property or substantial, ongoing or unreasonable interference with a person’s use and enjoyment of the person’s land.
The Queensland Civil and Administrative Tribunal (QCAT) has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that the land is affected by the tree. QCAT provides a single tribunal through which the community can access justice. QCAT provides the community with a more accessible, informal and responsive means of resolving disputes about trees and dividing fences. For more information about how to make an application about a tree or dividing fence matter visit Queensland Civil and Administrative Tribunal (QCAT).
The Act does not apply to all trees
The Act does not apply to trees situated on rural land, land that is more than four hectares in size, or land owned by a local government that is used as a public park.
The Act excludes trees planted or maintained for certain purposes such as for commercial purposes or as a condition of a development approval.
The application of the trees provisions is limited to urban areas and to cases where the land affected by a tree adjoins the neighbour’s property or where the lands are separated by a road.
Tree-keepers and neighbours
The meaning of tree-keeper is central to the trees provisions in the Act.
A tree-keeper is limited to the holders of the property interests specified in the Act. In most cases, tree-keepers are registered owners of a lot recorded in the freehold land register under the Land Title Act 1994.
The state is not considered a tree-keeper for the purposes of the Act in respect of certain types of land, for example, a national park. However, the holders of certain types of interests in respect of these lands are defined as tree-keepers, for instance, the grantee for an occupation permit or stock grazing permit under the Forestry Act 1959 or the grantee for a permit under a stock grazing permit under the Nature Conservation Act 1992.
The body corporate for the common property in a community titles scheme under the Body Corporate and Community Management Act 1997 and the body corporate for the common property in a plan under the Building Units and Group Titles Act 1980 are tree-keepers.
The application of the trees chapter is limited in urban areas to cases where the land affected by a tree adjoins the neighbour’s property. QCAT also has an option to consider cases where land is separated by a road.
A neighbour is a person or entity that is the registered owner of the land affected by a tree. A neighbour also includes an occupier of land affected by the tree except for the part dealing with notices for overhanging branches. An occupier can apply to QCAT for an order where it can be demonstrated that the landlord has refused to bring an application.
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 within the next 12 months:
- serious injury to a person on the land
- serious damage to the land or property on the land
- substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.
Responsibilities of a ‘tree-keeper’
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 serious injury to a person on the neighbour’s land or serious damage to a neighbour’s land or any property on a neighbour’s land or substantial ongoing and unreasonable interference with a person’s use and enjoyment of their land.
If a tree has more than one tree-keeper then the responsibilities and liabilities will be shared equally between them.
Advising the tree-keeper that overhanging branches should be trimmed
A neighbour can give a tree-keeper 30 days written notice, using the Act’s proposed Notice for removal of particular overhanging branches to cut and remove the overhanging branches at the tree-keeper’s cost.
This applies only where branches of the tree overhang more than 50 cm and are less than 2.5 metres in height. In order to use the notice system, the neighbour must give the tree-keeper (or their contractor) permission to enter the neighbour’s land to perform the work at an agreed date and time at least 30 day after the notice is given. A quote should be attached to the notice. A maximum amount of $300 is recoverable from the tree-keeper in any 12 month period. Neighbours and tree-keepers are reminded about insurance obligations when engaging contractors and giving permission to persons to enter land to carry out work.
Care must be taken not to breach any vegetation protection order imposed over the tree by the state or local council. The relevant local council should be contacted to find out if a vegetation protection order is in place over a tree. If the tree-keeper wishes to undertake the lopping themselves or engage a contractor, they can do so.
I can’t reach the overhanging branches to trim them back. They’re more than 2.5 metres above the ground. What do I need to do?
When tree branches are more than 2.5m above the ground, and overhang by at least 0.5m, you can apply to QCAT for an order.
It is important to note that the right to make an application to QCAT is not restricted to any height of the branches, except in the situation where you are seeking an application about interference that is an obstruction of sunlight or a view. In this case the tree (not the branches) must be at least 2.5m above the ground.
What happens if the tree-keeper does not respond?
If the tree-keeper does not respond to the Notice for removal of particular overhanging branches, the neighbour may cut and remove the overhanging branches or arrange for someone else to do so, provided there is no vegetation protection order placed over the tree, in which case enquiries would have to be made to the local council.
The tree-keeper will be liable for all reasonable expenses incurred by the neighbour for cutting and removing the branches to a maximum of $300 (no matter how many trees).
Applying to QCAT
A neighbour can apply to QCAT, where the neighbour alleges that:
- the tree has caused, is causing or is likely to cause serious injury to any person
- the tree has caused, is causing or is likely to cause serious damage to a neighbour’s land or property
- the tree has caused or is causing, substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
What are some examples of substantial, ongoing and unreasonable interference with the use and enjoyment of a neighbour’s land?
Depending on the circumstances, interference with television or satellite reception or interference with the proper functioning of solar panelling may constitute substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
If either obstruction of sunlight to the windows or roof of a property or obstruction of a view which existed before the neighbour took possession of the land is alleged, the applicant must show that the branches of the tree are more than 2.5 metres above the ground.
Normal tree litter such as leaves, flowers, fruit, seeds or small elements of deadwood would ordinarily not provide the basis for ordering removal of, or intervention with, a tree.
However, there may be cases where substantial and ongoing accumulation of tree litter may be found unreasonable by QCAT.
QCAT orders under the Act
QCAT provides a single tribunal through which the community can access justice across a wide range of matters. QCAT provides the community with a more accessible, informal and responsive means of resolving neighbourhood disputes about trees and dividing fences.
To make an order about a tree QCAT must be satisfied 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 as required by the Act.
The type of orders QCAT can make
QCAT can make the orders it considers appropriate in the circumstances including:
- 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
- an order that the tree be removed.
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 on the tree.
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.
Failing to comply with an order under the trees chapter of the Act
A person must not fail to comply with a requirement imposed upon them by QCAT unless the person has a reasonable excuse. The maximum penalty is $100,000.
Selling 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.
Once the copy of the application is given, on the day of transfer the buyer is added as a party to the QCAT proceeding.
If there is a tree subject to a QCAT order, once the copy of the order is given to the buyer, 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.
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.
Action in nuisance
An action in nuisance may still be brought where a tree causes injury, damage or interferes with a neighbour’s property. In such cases the action will have to be taken after damage has occurred and steps to mitigate damage must also be demonstrated. It will be up to the applicant, their legal adviser or the courts to choose the appropriate forum.
Please note: The information provided is a general guide to the key changes in the Act. The resolution of each neighbourhood situation depends on its own unique circumstances. This information provides a general guide only. Legal advice should be sought if in doubt about legal rights, visit the Queensland Law Society to find a solicitor in your local community. The best policy is to try to seek an amicable agreement with a neighbour so as to avoid any possibility of a legal dispute and keep your neighbourly relations intact.