The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 provides a number of options for resolving disputes in relation to overhanging branches between neighbouring properties. Here we outline recommended resources to help you understand the responsibilities of a tree keeper and how neighbours can avoid tree disputes.
If you cannot resolve the dispute in relation to overhanging branches informally, you can issue a notice for removal of the branches or apply to QCAT for a decision to be made on the dispute.
What do I do when a dispute arises about overhanging branches?
One of the best ways to avoid problems with neighbours over your trees is to know the responsibilities of a tree-keeper and how to avoid disputes.
What are the responsibilities of a tree-keeper?
The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 sets out the responsibilities of a tree keeper in the proper care and maintenance of trees on their property.
To assist, the Queensland Government website has detailed information and guides to help you understand the relevant legislation and responsibilities of a tree-keeper. The website includes information to help you understand key definitions under the Act and other useful information.
How can neighbours avoid tree disputes?
If you are being affected by a neighbour’s trees it is always best to resolve any problems over trees directly with your neighbour. Resolving disputes with your neighbour will be quicker and cheaper than taking legal action and may avoid damaging neighbourhood relationships. To avoid tree disputes and keep the peace in your neighbourhood you should:
- consider professional advice on tree selection, maintenance and care;
- seek help on how to avoid tree disputes via the Queensland Government website.
A tree dispute is a disagreement between neighbours about one or more trees on adjoining properties. Trees are a very common cause of disputes between neighbours. Disputes can be about overhanging branches between neighbouring properties. Taking the following steps when a dispute arises can save you time and money.
1. Try to resolve the tree dispute informally
The Queensland Government website sets out what to do if a neighbour’s tree is affecting you including a step-by-step guide to resolving tree disputes. The step-by-step guide can help you and your neighbour find a solution to your problem without having to resort to legal action.
Generally, before you make an application to QCAT to resolve a tree dispute, parties need to have attempted to resolve the dispute informally.
2. Try to resolve the tree dispute through guided mediation
If you cannot resolve your dispute, you may wish to contact a Dispute Resolution Centre to discuss free mediation options before you take any legal action. They will guide you through a structured mediation process with the aim for the neighbours to reach agreement.
What do I do if the dispute remains unresolved?
If you have tried resolving the dispute about the overhanging branches with your neighbour but the case remains unresolved, you can provide your neighbour with a Queensland Government FORM 3 – Notice for removal of particular overhanging branches. You must meet the following requirements to do so.
When you can issue a notice for removal of particular overhanging branches
You can issue a FORM 3 – Notice for removal of particular overhanging branches to the tree-keeper for removal of overhanging branches where branches:
- overhang more than 50cm over the boundary; and
- are less than 2.5m above the ground; and
- where the tree is not covered by a vegetation protection order (a local council order protecting a tree from having its branches lopped (cut off)).
The notice gives the tree-keeper 30 days to respond or rectify the problem.
If the neighbour does not act upon the notice within the required time period, you may remove the branches yourself and return them to the tree-keepers property or arrange for someone else to do so. However, you are not authorised to enter the tree-keeper’s land.
You can seek to recover up to $300 towards the cost of cutting and removing overhanging branches from the tree-keeper. If the tree-keeper does not reimburse you, then you may apply to QCAT to recover up to $300 as a minor debt dispute.
When you cannot issue a notice for removal of particular overhanging branches
You cannot issue a notice to the tree keeper for removal of overhanging branches where tree branches:
- are more than 2.5m above the ground; and
- overhang less than 50cm over the boundary.
You also cannot issue a notice for removal if the trees are covered by a vegetation protection order (a local council order protecting a tree from having its branches lopped (cut off)). The property may have protected vegetation if it:
- is located near or in river or a waterway corridor;
- is located in a bushland or rural area;
- contains large significant trees, even in an urban area; or
- has heritage values.
You can find out if a property is protected by a vegetation protection order by contacting the relevant local council.
If your dispute about overhanging branches does not meet the above criteria, you can consider making an application for a tree dispute.
Help and further information
Queensland legislation related to tree disputes includes the:
- Neighbourhood Disputes (Dividing Fences and Trees) Act 2011
- Queensland Civil and Administrative Tribunal Act 2009
The Acts are available on the Office of the Queensland Parliamentary Counsel website.
You can access a database which keeps records of previous decisions about tree disputes. This includes previous decisions made by:
- QCAT and QCATA after 1 December 2009 which can be found in the Supreme Court of Queensland Library website
QCAT registry staff cannot give you legal advice in civil cases and are not involved in QCAT decision making.
For legal advice
- Contact the private solicitor of your choice
- Use Queensland Law Society’s Find a Solicitor service
- Contact Legal Aid Queensland on 1300 65 11 88
- Contact Community Legal Centres Queensland for details on your local community legal centre on 07 3392 0092
For assistance in legal proceedings
LawRight Court and QCAT Services
LawRight is an independent, non-profit community based legal organisation that coordinates pro bono legal services for individuals and community groups. Parties with proceedings in QCAT may be able to obtain assistance from LawRight’s Court and QCAT Services to self-represent or, in limited circumstances, be given representation.
If you are unsure whether you are eligible for assistance from LawRight, or wish to make an enquiry, contact the service by phone on 07 3564 7561 or by email at email@example.com or by writing to PO Box 12217, George Street QLD 4003.
To apply for help from LawRight, please complete an application form. If you are unable to complete the online form, contact LawRight to discuss alternative arrangements.
Community legal centres
Caxton Legal Centre
The Caxton Legal Centre is an independent, non-profit community organisation providing free legal and social work advice, assistance and referrals to the general public. Please note that the Caxton Legal Centre does not provide advice about building or other business and commercial disputes.
Women's Legal Service
Women's Legal Service is a community legal centre that provides free legal advice and information to women in Queensland.
Youth Advocacy Centre
The Youth Advocacy Centre offers free confidential legal and welfare assistance to young people under 17 years who live in or around Brisbane. Telephone support is also provided to young people outside of Brisbane and throughout Queensland.
The Queensland Civil and Administrative Tribunal (QCAT)’s registry is here to administer your case and provide general information. Please see below what registry staff can and cannot do to assist with your case.
Registry staff can:
* answer questions about QCAT processes
* provide information about QCAT’s different types of forms that are available for your consideration
* provide you with information and support about how to lodge an application
* refer and/or process any request to access the QCAT register of proceedings (a publicly available list of QCAT cases) or the record of proceedings (the case files themselves)
* advise on fees and allowances, and how to apply for a waiver of fees
* guide you in checking your forms are complete before lodgement (e.g. signed in the correct places)
* give you information on legal organisations that could help.
Registry staff cannot:
* provide legal advice
* advise on whether you should submit an application and whether you are filing under the correct legal area (eg minor civil dispute – consumer or trader or minor civil dispute – minor debt)
* tell you if you should lodge an appeal or a counter-application
* recommend a specific lawyer to assist you
* instruct you on how to word your application, supporting documents or what to say at a proceeding
* contact a QCAT member or adjudicator directly on your behalf
* predict likely outcomes of a case or appeal
* help you prepare your case
* advise what orders or decisions you should seek
* explain what you should do to follow QCAT directions
* recommend your next steps regarding enforcing an order or tribunal decision
* advise on exact timeframes for resolution of a matter – this depends on your individual matter