It is said that a good fence makes for a good neighbour however, unfortunately, sometimes it is actually that fence or the trees along it which can send the relationship very sour. In 2011, Queensland introduced new laws to, better assist in heading off these types of disputes, below are some of the more frequently asked questions and their answers:
- What trees on a property are potentially affected? An offending tree does not necessarily need to be on or even near a boundary line. Any tree which has the potential to cause serious injury to a person, damage to property and/or is substantially and unreasonably interfering with the flow of sunlight or the view from a property is caught by the new law. An offending tree is typically in the next door neighbour’s property but can also be on the opposite side of the street. It cannot however be more than 1 neighbour over. Trees on any adjoining Government land or being grown for commercial use on a property are all exempt.
- Are there any special rules were the complaint is about impeding sunlight or view? Yes, lost sunlight is only actionable where the offending tree is more than 2.5 metres in height and can be shown to be substantially and unreasonably shading a window or a roof to a dwelling. There is no complaint open for excessive shade to a pool area or a yard. If the issue is an alleged loss of view, then again the offending tree(s) must be more than 2.5 metres in height and the neighbour must show that the view existed from their dwelling at the time when the neighbour personally took possession of their property.
- Who may complain and who is liable? Both a registered land owner and/or any tenant legally occupying an affected property have rights of complaint/action over a neighbouring tree(s). Responsibility however to manage trees on the property so as to not offend the laws rests only with the registered owner. The responsibility does not extend to a person who occupies the property as a tenant.
- What can be done about an offending tree? The tree keeper can be required to destroy and remove the tree or prune the tree as necessary to remove the threat of injury to a person, damage to property or interference with sunlight/view. If a tree is to be destroyed/removed, the type, location and/or height/maturity of any replacement tree can also be stipulated.
- How can conflict over an alleged offending tree be resolved? Wherever possible effected neighbours are encouraged to negotiate and resolve disputes directly between themselves in a civil and orderly way. Where this is not possible, assistance from a mediator can be obtained and/or an Application can be made to the Queensland Civil Administrative Tribunal (“QCAT”) which is a simplified Court set up to deal directly with the public (no lawyers) and can where necceasry make Orders either compelling a tree keeper to prune or remove a tree or conversely a ruling that a suspect tree is legal.
- What is the rule about tree branches which overhang a boundary line? The effected neighbour can require the cutting and removal of any overhanging branches but only if a branch is extending more than 50cm from the boundary line and equal to or less than 2.5 metres in height from the ground.
- Who is required to do the tree pruning/removal work? When agreed, this can be done by the land owner themselves or a professional contractor. If not agreed, QCAT Orders typically will compel the landowner to either do the work or have it done by any person they choose to engage and failing this, the local council can be authorised to go onto the property to carry out the Order.
- What are the rights and responsibilities for buyers/sellers of land affected by tree disputes? Under the new laws, a seller of any land affected by either an Application for an Order from QCAT or an Order that has already been made, must disclose the existence of that Application/Order on any contract for the sale of that land. Failure to do so, gives the buyer an absolute right to both terminate the contract and seek a refund of the deposit. If the buyer only becomes aware of the Application/Order after settlement, the seller (former owner) remains personally liable to comply with any Order which exists or is subsequently made on any Application and the new owner is left completely exempt. These obligations of disclosure do not however, extend to an Order which was made at some earlier time that has now become “obsolete”. Presently there are no clear guidelines on what type of Order can be considered obsolete but presumably an Order for the removal of a tree which has been fully carried out would fit the category. Any buyer for a property under a contract can and routinely will search QCAT to determine if there are any existing Orders or unresolved Applications in place.
- Does the tree have say? The Act makes it clear that a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved and other more broader considerations such as whether the tree has any historical, cultural or social or scientific value, the contribution the tree makes to the natural landscape and scenic value of the land or locality, any contribution it might make to public amenity, contribution to the amenity of the land on which is situated such as contributing or relating to privacy, the impact the tree has on soil stability, the water table or other natural features of the land, any risk associated with the tree in the event of cyclone or other extreme whether event, the likely impact on the tree of pruning it, including the impact on the tree of maintaining it to a particular height, width or shape, the type of tree including whether the species of tree is a pest or weed.
- What about problem trees that predated the new laws? Although the Act only came into effect in 2011, a recent decision from QCAT (Mahoney v Corrin  QCAT318 has now made it clear that this new legislation can be applied towards resolving disputes that relate to trees that had been planted and had been already causing problems before the new law came into effect. The decision is quite revolutionary and breaks with the normal tradition which says that laws should not be made retrospective so as to render an action that was previously legal to become illegal, yet with this decision, trees which were perfectly legally standing in properties before the 2011 Act was passed, can now potentially become illegal and required to be removed by virtue of this decision.
Michael Zande is the Principal of Zande Law Solicitors, with 25 years experience in practice. Michael and his team have had extensive experience in conveyancing matters. Please feel free to review our firm and staff profiles at www.zandelaw.com.au
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.