New law to encourage the settlement of disputes regarding
dividing fences and trees with your neighbour. No need to go to
court and you can recover up to $300pa for lopping overhanging
Neighbourhoods around Queensland now have more detailed
guidelines on dividing fences and trees following the commencement
of new legislation which enables neighbours to resolve simple
disputes without heading to Court. The Neighbourhood Disputes
Resolution Act, 2011 (Act) replaces the Dividing Fences
Act, 1953 and commenced on 1 November 2011.
The Act encourages informal resolution of disputes but allows
neighbours to apply to the Queensland Civil and Administrative
Tribunal (QCAT) if a dispute cannot be resolved.
Some of the changes which will impact on disputes involving
dividing fences and encroaching trees include:-
An expanded definition of what constitutes a "fence",
for example it includes hedges but not a retaining wall. The Act
also defines what constitutes a "sufficient dividing
fence" (including height and material specifications) and
"fencing work" (which includes design, construction,
modification, replacement, removal, repair or maintenance).
Clarification of contributions to the construction and
maintenance of a dividing fence.
Clarification as to who is responsible for the care and
maintenance of trees growing on residential land. The Act creates
the term "tree keeper" who is generally the owner, lessee
or body corporate of land where a tree is located.
3 courses of action are available to neighbours for trees
affecting their land including:-
common law right of abatement – neighbours are able
to remove tree branches that overhang their property;
issue a notice to the tree keeper – the notice
however may only be used for overhanging branches that extend at
least 50cm from the common boundary and are located not more than
2.5m above the ground. If a tree keeper fails to act in accordance
with the notice, then the neighbour may remove the offending
branches and recover from the tree keeper reasonable costs to a
maximum of $300 per notice;
seek an order from QCAT.
However, these courses of action will be limited to the extent
that a tree is protected by a tree or vegetation protection
In the case of trees causing sustained interference, for
example severe obstruction of a view, or obstruction of sunlight to
a window or roof of a neighbouring dwelling, the tree must be at
least 2.5m above the ground before any action can be taken.
Discussion of the decision in Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288  HCA 36.
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