Neighbourhood Disputes – Trees

What can you do if your neighbours’ tree overhangs on your property? What if the trees root system is damaging your driveway? If the tree is a fruit tree, can you keep the fruit?

Many of us are likely to encounter the situation where a tree or trees on one property begin to interfere with a neighbouring property. The solution in many cases can be simple, but sometimes it will require the intervention of the Queensland Civil and Administrative Tribunal (QCAT) or the Courts.

If the tree is on your property, you are a ‘tree keeper’ under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (the Act). A ‘tree keeper’ has an obligation to ensure that the tree is not likely to cause serious injury to people, severe damage to property or a substantial interference to the use and enjoyment of a neighbouring property.

Sometimes the ‘tree keeper’ may not realise that the tree is causing an issue. If you are the neighbour affected, it is always best to approach the ‘tree keeper’ and ask that they remove the overhanging branch or branches (or the tree if it is causing damage).

If after making this approach, the problem remains, your solution will depend on what the issue is and the location of your property. If you are in a rural setting or a commercial property, different obligations may apply, and you should seek legal advice. However, in most suburban situations, the remedies are found under The Act.

A neighbour can remove an overhanging branch at the boundary line. The neighbour can then either return the branch to the tree keepers property or dispose of it. If there is fruit on the branch, the neighbour is allowed to keep the fruit.

If a professional tree-lopper is required, then the neighbour must serve a Form 3 Notice for Removal of Particular Overhanging Branches on the ‘tree keeper’. The overhanging branch must be at least 50cm over the boundary and not more than 2.5m high. The notice is a prescribed form available online from the Department of Justice and the Attorney General and must include a quote from the tree lopper. If the ‘tree keeper’ does not remove the branch within a reasonable time then the tree lopper can remove the branch, provided the tree lopper does not enter the tree keepers yard and the costs incurred in removing the branch do not exceed $300. The neighbour may then recover the costs of removing the tree branch from the ‘tree keeper’ as a minor debt.

If the branch is higher than 2.5m or the issue is damage being caused to the property, then an application will need to be made to QCAT for an order regarding the tree. A tribunal member will then determine whether the tree poses a serious risk of injury, significant risk of damage to property or substantial interference to the use and enjoyment of the neighbouring property. If the tribunal member finds the tree does fit into one of these categories, then an order will be made directing the tree keeper to take specific action such as trimming the tree or roots and in some cases removing the tree. An application to QCAT does incur a filing fee, and it is common for QCAT to order the parties to undertake mediation in an attempt to resolve the matter without a hearing.

If you are unsure of your rights or obligations, you should always seek legal advice.

Stacey O’Gorman
Solicitor
Macdonald & Michel Solicitors 
http://www.macdonaldmichel.com.au
07 4972 3644

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