The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 provides a number of options for resolving tree disputes. It is important to understand the responsibilities of a tree keeper and how neighbours can avoid tree disputes.
Generally, before you make an application to QCAT to resolve a tree dispute, parties need to have attempted to resolve the dispute informally. Here we outline recommended resources to help you understand the responsibilities of a tree keeper and the tree dispute process.
What do I do when a tree dispute arises?
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 leaf litter, branches, damage to property or pools, blocking sunlight to solar panels and root damage. Taking the following steps 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.
3. If you cannot resolve the dispute, consider making an application to QCAT
Generally, QCAT can make decisions about one or more trees between neighbours’ adjoining properties situated on residential land regarding:
- recovering a debt from a neighbour for overhanging branch removal (click for more information)
- other disputes involving a tree affecting neighbouring land, including damaging property or causing injury, or interfering with the use or enjoyment of land.
What is the QCAT tree dispute process?
You must first attempt to resolve the tree dispute informally. If you cannot resolve the tree dispute informally, you can apply to QCAT to make a decision on the tree dispute. Before you decide to make an application, you need to consider the following information about the tree dispute process.
If you do not own the land the tree is affecting, contact your landlord or real estate agent and advise them of the issue. The landlord must make the application for a tree dispute. If the landlord refuses to act you can then lodge an application to QCAT provided you submit evidence the landlord has refused to act.
If you own a unit in a body corporate, the body corporate is the owner for the purposes of the Act, not the unit owner. The body corporate must make the application for a tree dispute.
If a tree on a tree-keeper’s property affects more than one adjoining property, owners of the adjoining properties cannot join together and lodge one application. As the effect of the tree/s on the adjoining properties would have to be assessed separately, each affected adjoining owner must lodge a separate application.
Before you lodge an application for a tree dispute you need to consider if QCAT has the power to hear and decide your dispute. All trees are not covered under the relevant laws.
When QCAT does not have jurisdiction
If the tree/s are located in a park owned by the local government, or council or on a community reserve, QCAT does not have the power to make decisions about these trees and you cannot apply to QCAT for a remedy relating to them. Contact your local council or seek independent legal advice.
Also, if the tree/s are:
- situated on a parcel of land greater than four hectares or on rural land;
- planted or maintained for commercial purposes
- planted or maintained as a condition of a development approval; or
- planted or maintained under an order of a court or tribunal
QCAT does not have the power to make decision about these trees, and you cannot make an application in relation to them. The laws apply to trees on residential land only.
If a tree is protected by another law
QCAT may not have the power to make an order for a person to carry out work on a tree if the work is restricted or prohibited under another Act.
QCAT can make orders if the tree is protected under local laws or is subject to a vegetation protection order.
As part of the tree dispute process, QCAT may order that a qualified arborist (tree assessor) visit the site of the tree/s to:
- undertake an assessment with the applicant and the owner of the neighbouring land
- inspect the tree/s and any alleged damage
- provide a report to QCAT including recommendations on the most efficient and fair resolution of the tree dispute.
A tree assessment can take a considerable period of time. The length of time it can take for the tree to be assessed is dependent upon the availability of a qualified tree assessor, the busy schedule of the tree assessor, access to the property, the nature and size of the tree/s and the complexity of the site of the tree/s.
When completed, QCAT will provide a copy of the report to the parties to the dispute. The tree assessor is a neutral party and their role is to provide an expert opinion. The tree assessor may be used as an expert witness during any QCAT proceedings.
The cost of the tree assessment of up to $1000 is to be divided between the parties at QCAT’s discretion. QCAT may seek submissions from the parties before deciding on payment of tree assessment. If a party does not comply with the direction to pay their share of the tree assessment fee, this may delay the case and require QCAT to consider further avenues to proceed.
For further information on the role of the tree assessor see Practice Direction 7 of 2013.
If you have considered the information and your dispute falls within QCAT’s jurisdiction, you need to consider the costs that will be incurred and take these into account before you apply. These include:
- an initial application fee
- potential costs to engage a surveyor or engineer to establish the position of a tree or how a tree is affecting land
- costs for appointing a QCAT tree assessor to provide a tree report ($1000 divided between parties at QCAT’s discretion) or funding of a private arborist at each parties discretion
- costs and time taken to complete the tree dispute process and attend proceedings
- costs you may incur to comply with QCAT’s decision or directions.
You should consider if there are options to resolve the dispute informally without the need to make an application to QCAT. QCAT does not fund a dispute brought to QCAT.
When you file your application for a tree dispute, QCAT may:
- issue directions to the parties. Directions are instructions to the parties involved on how the case will proceed. The directions will include time for filing of evidence, other material and joining of further parties if required
- list the case for a directions hearing or further dispute resolution proceeding to assist the parties to reach agreement even though informal mediation may have occurred
- engage a qualified arborist (tree assessor) to conduct an assessment of the tree/s and provide a report with recommendations on fair resolution of the dispute
- if no agreement is reached, ask the parties to gather and file their evidence to support their side of the argument
- list the case for final hearing, after the parties have filed their evidence
- after the hearing, QCAT will then make a final decision based on the law and the evidence provided by the parties
Participating in the tree dispute process can take a considerable length of time and resources and parties should consider other options to resolve the dispute with the other party before making an application to QCAT.
QCAT has the power to make orders. QCAT may make an order if it is satisfied you have first made a reasonable effort to reach agreement with the tree-keeper.
When QCAT comes to deciding the dispute, QCAT will look at, for example, whether a tree may cause serious injury or damage, if something other than the tree may have caused or contributed to the problem, the potential impact of any maintenance works or if the tree poses a risk in the event of an extreme weather event.
Orders made by QCAT may include:
- annual maintenance work
- compensation for damage to land or property caused by a tree
- removal of a tree (removal of a tree will only be ordered if no other satisfactory outcome can be achieved)
QCAT will not necessarily make an order if branches from a neighbour’s tree overhang your land or a tree deposits leaf litter in your garden.
Tree orders remain in force for 10 years unless QCAT decides that the order has been satisfied.
Orders made by QCAT are added to the tree orders register which also shows the affected land where the tree is located. Learn more about QCAT's tree register here.
There are some key steps you need to take as the respondent in a tree dispute case. You must:
- read the above information about avoiding and resolving tree disputes informally. Become aware of your responsibilities as a tree keeper
- consider making attempts to resolve the dispute with the applicant in the case to save time and costs
- read the above information and understand the QCAT process and how the case will be progressed to a final hearing
- respond to the tree dispute application using the correct response form
My neighbour is not the owner of the property and I cannot find the property owners details, what should I do?
If your neighbour is not the owner of the property, in certain circumstances you may obtain the correct property owner’s name by conducting a title search through Titles Queensland at www.titlesqld.com.au or by calling them on (07) 3497 3479.
Alternatively, when you lodge your tree dispute application, you can ask QCAT to waive the procedural requirement to serve the respondent/s with your application directly. QCAT may direct you to serve your tree dispute application either on the real estate agent or tenant of the property for them to provide to the owner in certain circumstances.
You can make this request by lodging a Form 42 – Application to extend or shorten a time limit or for waiver of compliance with procedural requirement.
Can I access information about the orders QCAT has made?
Yes. A public register of orders about trees is made available (including any order affecting land, the timeframe in which the order is to be carried out and who is responsible for carrying out the order). The tree register is free to access for previous decisions made. You can access the tree register here www.qcat.qld.gov.au/matter-types/tree-disputes/tree-order-register
Can QCAT make tree dispute orders that are ongoing?
Yes. QCAT may order maintenance of a tree be undertaken at specified intervals to avoid future disputes.
Can I still sell my house if there is a tree dispute application pending on my property or an order has been made?
Yes. You must provide the buyer of the property with a copy of the existing QCAT application or order. Where the copy of the application is given, the buyer is added as a party to the QCAT proceeding when they enter the contract of sale. The buyer becomes responsible for ensuring the order is complied with on the day of transfer of property. If you do not provide the buyer of your house with a copy of the order, you will remain responsible for ensuring the order is complied with.
Can I apply if the tree which caused damage or injury has been removed?
Yes. You may apply for compensation for damage to land or property even if the tree has been completely removed, except if the tree-keeper has sold the land on which the tree was situated, since the damage was caused.
What types of tree issues may interfere with enjoyment?
Depending on the circumstances, this may include severe obstructions of existing views or sunlight or interference with solar panels. When you apply for a tree dispute you should clarify this in your application.
Can I make an application about tree roots encroaching on my property?
Yes. An application may concern an entire tree, part/s of the tree including roots encroaching on your property. A tree also includes a bare trunk, a stump rooted in the land and a dead tree.
What can I do if a neighbour is harassing me or making threats?
If you are receiving threats of violence, threats to damage property, verbal abuse or harassment you should report these matters to the police by calling your local police station. If it is an emergency, call 000.
In some situations, if you are being threatened you may be able to take out a peace and good behaviour order. Legal Aid Queensland provides comprehensive information about neighbourhood matters which you can find here.
QCAT can only deal with issues relating to the trees in dispute. If you wish to provide information that is relevant to the tree dispute you should put your concerns in writing and send it to QCAT.
QCAT does not have the power to address violence or harassment concerns.
The time for QCAT to finalise a case may vary depending on QCAT’s workload and the number of steps to be completed by the parties as required by QCAT to resolve the dispute. The current average time to review and finalise your tree dispute can be found on our expected timeframes page.
How do I make a tree dispute application?
To make an application, please select from the list below to apply:
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.
The relevant practice direction is Practice Direction 7 of 2013.
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 firstname.lastname@example.org 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 case – this depends on your individual case