ARE YOUR TREES UNDER THREAT FROM YOUR NEIGHBOURS

An abundance of plants and tree life in a garden is for many a wonderful thing but sometimes those same plants and trees provoke complaints from a neighbour over unwanted shade, obstruction of views or even damage from tree branches or roots. In these scenarios the affected neighbour does have some legal rights to call for the trees to be reduced in size or even removed but what happens if the neighbour acts illegally and starts cutting and pruning the trees themselves? In this scenario the tree owner has three main options available:

• Seek Police prosecution of the neighbour for wilful damage of property under s469 of the QLD Criminal Code; or
• Seek Orders from the Queensland Civil and Administrative Tribunal (QCAT); or
• Apply for a ‘Peace and Good Behaviour’ Order by filing a complaint and summons in your local Magistrates Court.

Although the threat of Police carries a good fear factor, the neighbour would usually be expected to be let off with little more than a warning due to the time and expense (for the Police) of formal criminal proceedings. Also, under a very old law known as the right of abatement, a neighbour in some circumstances can legally prune trees so this also might be a reason for the Police to decline involvement.

While QCAT is the preferred authority for tree disputes in Queensland, it (QCAT) relies on the neighbour who is claiming to be adversely affected by the trees to bring the application first rather than accepting an application from the tree owner seeking orders that obligate the neighbour to leave the trees alone.

For a tree owner seeking to stop illegal tree pruning/damage therefore, obtaining a Peace and Good Behaviour Order is usually the best option. This Order can be obtained on a threat or a reasonable fear that your neighbour will damage the trees and so doesn’t require the level of conclusive proof necessary for a Police prosecution. The Order can’t punish or compensate for any past damage but once the Order is made, any subsequent breach carries heavy penalties including fines or imprisonment and therefore usually acts as a sufficient deterrent against future damage. This style of application also is much faster than a Police prosecution and can more easily extend to every occupant on the neighbour’s property thus avoiding any difficulty with identifying which individual actually committed the past illegal pruning.

Joshua Noble is a Solicitor at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes.  To contact Joshua for advice, phone 3385 0999.

The information in this article is merely a guide and is not a full explanation of the law.  This firm cannot take responsibility for any action readers take based on this information.  When making decisions that could affect your legal rights, please contact us for professional advice.