New law encourages settlement of neighbourhood disputes regarding dividing fences and overhanging trees outside of court.

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 branches!

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:-

1. 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).
2. Clarification of contributions to the construction and maintenance of a dividing fence.
3. 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.
4. 3 courses of action are available to neighbours for trees affecting their land including:-
5. 1. common law right of abatement – neighbours are able to remove tree branches that overhang their property;
   2. 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;
   3. 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 order.

5. 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.

For an expanded version of this summary, click here.

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