Tree, Fence and Neighbourhood Disputes

Property owners and tenants in Queensland are afforded a variety of legal rights, including to exclude other people from their property, and to enjoy their property quietly and peacefully.

When these rights are interfered with, there are legal mechanisms in place that allow those property rights to be enforced.

Interference with property rights can occur as a result of a number of common scenarios. For example:

  • A person might plant a tree on their property that grows until its branches are overhanging over another property, causing it to drop leaves, branches, seeds, or fruit.
  • A person might construct, alter, or destroy a dividing fence without having first consulted their neighbour.

Accordingly, neighbourhood disputes tend to arise frequently for a number of different reasons, ranging from excessive noise from a lawnmower at 6:00 am every Sunday morning, to complaints about the placement of garbage bins on the road, to your neighbour’s tree causing damage to your property, and all matters in between.

These types of disputes can be resolved in a variety of ways, and it is essential to know what your rights are in order to know how to best address a dispute that you are involved in. The subject matters of these types of disputes are regulated by the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).

Tree disputes

A tree dispute is a disagreement between neighbours about trees growing on and/or affecting adjoining properties.

Common tree disputes involve trees causing damage to a neighbouring property, overhanging branches and costs related to removing branches and general tree maintenance.

The first step in resolving a tree dispute is to determine who the ‘tree-keeper’ is (this is not necessary the legal owner of the tree). Generally, the tree-keeper will be the owner of the lot on which the tree is situated. If that lot is leased, then the tree-keeper will be the tenant.

The tree-keeper is responsible for making sure that their tree does not overhang onto their neighbour’s land, and that there is no risk of it causing damage or injury.

If a tree is situated on your neighbour’s land, and its branches overhang onto your land, then you may be able to exercise your common law right of abatement and cut those branches off. If those branches have fruit on them, you are usually entitled to keep the fruit.

However, destruction of another person’s property could constitute both criminal offences and civil penalties, so it is best to obtain legal advice before taking any action.

The tree-keeper will be liable for your expenses in having branches that are overhanging over your property removed, at a maximum of $300.

If a tree branch extends more than 50cm onto your property and is 2.5 metres or less off the ground, you can provide your neighbour with a notice under the Act that they must cut and remove the overhanging branches.

The notice must allow at least thirty days for them to do so from the day they are provided with the notice. If they have to come onto your property to cut the branches, you may ask them to give you notice at least one day before the work will be carried out to confirm when, and by whom, the overhanging branches will be removed.

If you give notice under the Act and your neighbour fails to cut the branches as per your request, you may cut them yourself, and either keep or return them.

Fencing disputes

Disputes can arise in regard to dividing fences between adjoining properties where the respective owners of adjoining land disagree about whether a fence should be constructed, modified, or removed.

Disagreements can also occur regarding where the property boundary actually is.

A dividing fence separating adjoining land is, under the common law, jointly owned by the adjoining property owners.

Where one party wants to build or remove a dividing fence, they have a number of legal options, as well as some general legal responsibilities, regarding how they should go about having the fence built or removed.

Because both parties are the joint owners of the fence, they are jointly liable for its construction and maintenance. However, unless the work done to construct a dividing fence is urgent or ordered by the Queensland Civil and Administrative Tribunal (QCAT), liability will only arise where the joint owners have agreed to carry out the work.

An owner may give their neighbour a notice under the Act which requires them to contribute to the carrying out of the fencing work. That notice must include:

  • A description of the land where the work is to be carried out (including the line on which the proposed construction or repair will take place);
  • The type of fencing work to be carried out;
  • The estimated costs (including labour and materials); and
  • A quotation for the works to be done.

If a dispute has arisen between you and your neighbour about precisely where the property boundary lies between your adjoining properties, you can engage a cadastral surveyor to determine the boundary line.

You should give your neighbour notice that you are engaging a cadastral surveyor to determine the boundary before the works are carried out.

If you believe that your neighbour intends to construct or demolish a dividing fence without authorisation, you can apply to QCAT for an order preventing them from carrying out the works. If they have already carried out the works, you can apply to QCAT for an order that they remove, modify, or rectify the fence.

For more information about QCAT proceedings, see our QCAT Disputes page.

If a dispute has arisen between you and your neighbour about precisely where the property boundary lies between your adjoining properties, you can engage a cadastral surveyor to determine the boundary line.

You should give your neighbour notice that you are engaging a cadastral surveyor to determine the boundary before the works are carried out.

Neighbourhood disputes

Disputes between neighbours can arise for a large number of reasons, and the rights which apply in resolving those disputes will depend heavily on the cause of the issue. For instance, the common law tort of nuisance will apply where someone’s peaceful enjoyment of their property is being interfered with, such as through excessive noise. The tort of trespass will also be available if your neighbours are entering your property without your consent.

Exercising common law rights can often require engaging in court litigation. Although part or all of the legal costs are often ordered to be paid by the losing party, neighbourhood mediation is also available attempt to resolve a matter without going to court.

The Queensland Government offers mediation through its Dispute Resolution Centres. Mediation can be an effective way to resolve a dispute where the parties are willing to agree to a resolution; however, it is important to note that no decision made at mediation will be legally binding on the parties to the dispute.

If your neighbours are threatening you or your family, then mediation will generally not be appropriate. Instead, you can apply for a ‘Peace and Good Behaviour Order’.

These types of orders can be made by the Magistrates Court and will prevent someone from doing anything that may threaten you or your family. It is important to note that a Peace and Good Behaviour Order does not cover situations involving harassment or verbal abuse, but rather applies to more serious conduct, such as where your neighbour is threatening or attempting assault or causing damage to your property.

If at any point, you fear for your or your family’s immediate safety due to the behaviour of a neighbour or anyone else, you should call 000.

A litigation lawyer may be able to assist in obtaining court orders to help prevent ongoing threats from occurring (without the person breaching a court order and being arrested).

Talk to a lawyer today

If you have any questions regarding any of our services, or just need a question answered about a tree, fence or neighbourhood dispute, then make an enquiry and our litigation team will be in touch with you as soon as possible.

Dispute prevention and amicable resolution

The cheapest (and often easiest and quickest) way to resolve any type of dispute that you may have with your neighbour is to communicate with them. In some circumstances, your neighbour might not even know that the problem exists, and by addressing the issue in a civil manner, you may be able to resolve it amicably without escalation and maintain a respectful relationship with your neighbour.

Being on good terms with your neighbour and talking to them before doing things, such as erecting a dividing fence or chopping branches off their tree and sending them the bill, can avoid potential disputes altogether.

If your neighbour is aware of the issue and is unwilling to work with you, obtaining experienced legal representation may obtain relief from a court or tribunal that you need.

How we can help you

If you have an issue with a neighbour, whether it be because of an overhanging branch, a dividing fence, a garbage bin consistently placed on the road, or for any other reasons, the first step in resolving that issue is to understand your legal rights.

Our experienced solicitors can help you determine what your legal rights and responsibilities are in order to help you resolve any dispute that you might be a party to.

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