What are your rights when it comes to tree disputes in Qld?
Queensland may be considered a slice of paradise but even our picturesque backyards are not immune from disputes.
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Queensland may be considered a slice of paradise but even our picturesque backyards are not immune from disputes.
From overgrown bushes to blocked views, these are your rights when it comes to neighbourhood battles over trees.
See below some of Queensland’s tree disputes over the years >>>
HOW DO I AVOID A TREE DISPUTE WITH A NEIGHBOUR?
According to the Queensland Government website:
■ keep on good terms with you neighbour and resolve any potential tree issues between you before they get out of hand;
■ think carefully about the trees and shrubs you are planting; and if they may become a problem in the future discuss the potential issue with your neighbour;
■ maintain and care for your trees and shrubs, particularly those that could effect your neighbour;
■ be familiar with your legal responsibilities as a tree-keeper;
■ act quickly and seek help on resolving any disputes that might arise.
Further information here.
WHAT IS MY RESPONSIBILITY AS A TREE OWNER?
Your legal rights and responsibilities about trees and their impact on a neighbour’s property are covered by The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.
Under the Act, a ‘tree’ is more than what most people think of as a tree — a single trunk with branches and leaves rising to a significant height, such as a gumtree, fig tree or fruit tree. It also includes some shrubs and even dead trees.
A tree is defined as:
■ 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
■ a bare trunk, a stump rooted in the land including a dead tree.
And remember, you are responsible for the whole tree, not just what is above ground. If your tree’s roots affect your neighbour’s property, that is also your responsibility.
■ It is your responsibility as a tree-keeper if the tree is ‘wholly or mainly situated on your land’; so even if the tree is on the boundary line, if the majority is on your land you are classed as the tree-keeper.
■ You are also the tree-keeper if the tree was previously ‘wholly or mainly situated on your land’; so it can be proved a tree that was on your land damaged your neighbour’s property, you are still liable as the tree-keeper.
■ Where a tree sits on multiple properties — for example where it is exactly on the boundary line between the properties — then each owner equally shares the responsibilities and liabilities.
Trees are a common cause of disagreement between neighbours. Disputes can be about:
■ branches overhanging your fence
■ branches or fruit dropping into your yard
■ roots causing damage to your property
■ branches blocking sunlight from solar panels or TV reception.
If you have a neighbour’s tree hanging over your land, you can:
■ exercise the common law right of abatement — your right to remove overhanging branches and roots to your boundary line
■ decide whether to return the lopped branches, roots or fruit to your neighbour, or dispose of them yourself. You do not have to return anything you trim from the neighbour’s tree but you may do so.
Source: qld.gov.au
HOW DO I KNOW IF MY TREE IS BLOCKING MY NEIGHBOUR?
Your tree may be classed as unreasonably getting in the way of your neighbour’s use and enjoyment of their land if it:
■ interferes with television or satellite reception
■ interferes with the proper functioning of solar panelling
■ shades sunlight from the windows or roof of their property if the tree branches are more than 2.5 metres above the ground
■ obstructs a view that existed before the neighbour took possession of the land if the tree branches are more than 2.5 metres above the ground
■ creates a substantial and ongoing accumulation of tree litter in their yard
Normal tree litter — leaves, flowers, fruit, seeds or small elements of deadwood — would not be classed as substantial and therefore is not sufficient to get an order for the removal or cutting back of a tree.
Source: qld.gov.au
HOW DO I GET MY NEIGHBOUR TO TRIM THEIR TREE?
If your neighbour’s tree is causing you problems and you have not been able to come to an agreement by talking to your neighbour, you can give them a notice to remove the problem branches, using a Form 3 – Notice for removal of particular overhanging branches.
This applies only where branches overhang more than 50cm and are less than 2.5m above the ground — and to trees not covered by a vegetation protection order (a local council order protecting a tree from having its branches lopped (cut off).
The notice must:
■ state a time by which the branches must be removed (at least 30 days from the date your neighbour receives the notice)
■ ask your neighbour to give at least 1 day’s written notice of when the branches will be removed, showing
■ who will do the work
■ the day it will happen
■ give permission to your neighbour or their contractor to enter your land on the agreed day between 8am and 5pm
■ include at least 1 written quote for the cost of the work and a copy of Part 4 of the Act.
If your neighbour does not remove the branches by the specified time, you can remove them yourself or have a contactor remove them at your neighbour’s expense — they are liable to pay up to $300 a year for removing branches from their trees.
Further information here.
SOME QLD TREE DISPUTES THROUGH THE YEARS
OCTOBER 2013
A Speewah woman who went to court to try to force her next door neighbours to remove 48 cherry trees and trim two wattles from their yard because they represented a danger had her claims quashed.
Rita Buzio told the Queensland Civil and Administrative Tribunal, hosted in Mareeba, that the roots of the cherry trees growing along the fence line of neighbours Terrence and Tanya O’Riley had already grown under her fence and may eventually break through the earth wall of a dam she built on her 2ha property about six years earlier.
She also said the wattles were “in danger of dropping branches and injuring anyone standing below”, according to tribunal documents, and the cherry tree branches were overhanging the fence, detracting from her land use where she wants to start an organic garden.
But the tribunal decided her claims were unfounded and she had made the decision to build the dam close to the fence line some time after the trees had already been planted.
“I find it unreasonable for a landowner to expect a neighbour to remove established trees so that the landowner can build a dam on his/her property,” Queensland Civil and Administrative Tribunal adjudicator Simon Coolican said.
Both parties agreed during the hearing that Mrs Buzio could remove sapling wattles growing through the fence, but Mr O’Riley said pruning the two larger trees in question would be difficult as they were about 10m high.
JANUARY 2017
The owners of a Chinese elm, which a neighbour said blocked city views worth $500,000 to her property’s value, won an appeal and saved the tall shade tree from being cut down.
The 9m Chinese elm, a declared environmental weed in Queensland, was the subject of a “fiercely contested’’ dispute in the Queensland Civil and Administrative Tribunal since 2014.
In 2015, Dr Kathryn Radford, of Auchenflower, won the right to have her neighbour’s tree cut down and replaced with other trees, at her expense.
Dr Radford, who bought her house in 2003, but then moved and raised it on the block, said she had lost “fabulous’’ city skyline views because of the tree.
But the tree owners, who said it provided valuable shade, said any city views only became apparent when they cleared other vegetation in 2005 and the Chinese elm grew up.
A tribunal member found the views from the house, at the time Dr Radford took possession of the land, could still be viewed from specific points in the repositioned house.
But a person had to be standing on the top of the rear stairs, lying down on the upper deck or standing on a chair on the lower level to see that same city view.
Nevertheless, tribunal member David Paratz found there was a severe obstruction of the view from Dr Radford’s home, caused by the tree and ordered it be removed.
The tree owners appealed and tribunal members Justice Tim Carmody and Senior Member Ian Brown overturned the decision.
JULY 2017
It’s the fig tree that ended a friendship but a tribunal found it didn’t block any pipes.
In a long-running neighbourhood dispute that was finally put to rest by the Queensland Civil and Administrative Tribunal (QCAT), Richard and Margaret Woolcock were cleared of having to shell out thousands to their Robina neighbours, who claimed a rogue fig tree blocked their drains.
Michael and Roseanna Cacopardo, who had lived in Trinity Place since 2000, claimed the fig tree that was 200mm inside the boundary of the Woolcocks’ home had ruined their concrete path, blocked pipes and forced them to undertake an elaborate renovation of their ensuite bathroom.
When the Woolcocks refused, claiming the drains were already damaged, their neighbours lodged a claim with QCAT for $20,353.17.
The Woolcocks, who moved into the Robina locale in 2002, removed the tree in July 2016, the decision published stated.
However the tribunal member dismissed the application.
QCAT member McLean Williams agreed with the Woolcocks that the Cacopardos has brought an “opportunistic claim” by trying to get their neighbours pay the cost of their bathroom renovations “ … by falsely attributing the need for it to the fact of the tree root blockage”.
Mr Cacopardo said he thought the QCAT decision “very unfair”.
The Woolcocks declined to comment.
JULY 2019
The owner of a view-blocking tree in Brisbane said she never ever contemplated cutting it down during her long stoush with a celebrity neighbour.
Windsor neighbours Tabitha Pendlebury and former news anchor Bill McDonald had been at loggerheads over the 30m eucalyptus grandis for two years.
The matter finally ended in compulsory mediation by the Queensland Civil and Administrative Tribunal which ordered “hazard reduction pruning” in May.
That happened last week with Ms Pendlebury cautiously hoping it’s the end of the matter.
“It’s very time consuming, I had to take time off work,” she said of the QCAT process.
“To me the flaw (in the process) is the trees are an unfortunate pawn in process.”
JUNE 2020
A Cairns couple lost a legal bid to make neighbours cut down their bamboo after the plants grew so high they obscured the couple’s stunning city views.
Russell and Noreen Prince bought land on a high scenic block on Red Hill in 2011 and began building the following year.
About the same time, their neighbours, Darryl Clark and Mengyuan Liu, planted a row of bamboo along the western boundary,
According to a decision in the Queensland Civil and Administrative Tribunal handed down, the Princes’ property is about 8m above the other property, but the bamboo has now grown to 15m high.
The tribunal heard the neighbours had originally planted the bamboo to give them shade from the western sun.
The couple took their neighbourhood dispute to court in a bid to have the trees either cut down to 2.5m or removed completely.
But their case was dismissed after a tribunal member ruled there was no house on the block when it was bought or when the trees were planted, so there had been no views to obstruct at the time.
AUGUST 2023
One of the nation’s top silks won an ugly legal stoush over a large tree with his millionaire apartment block neighbours in a leafy pocket of inner Brisbane.
The body corporate for Elron Court, a building of eight apartments on Moray Street, New Farm, applied to the Queensland Civil and Administrative Tribunal three-and-a half years ago to get the green light to cut down a tree growing mostly next door which it claimed had spread through the fence and sent roots under Elron Court’s driveway.
The body corporate argued before QCAT that Shane Doyle KC and his wife Margaret should be ordered to pay to fell the large mature Albizia tree in their garden “urgently” because they “have no respect for the rights of the (body corporate) to the enjoyment of their own property as it was designed and constructed”.
The body corporate argued the tree’s roots have made the unit block’s eastern driveway “unusable”, and submitted the roots would prevent them from reinstating the driveway to the original 1930s concrete strip style.
They also argued the roots were damaging sewer pipes and the tree was filling roof gutters with leaves.
Former High Court judge Ian Callinan owned a three-bedroom apartment in Elron Court for 27 years until July 13, a week after the QCAT ruling, when property records show he sold it for $1.25m. He bought the unit for $168,000 in 1996.
Originally published as What are your rights when it comes to tree disputes in Qld?
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