Tree disputes

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.

To access information on the responsibilities of a tree keeper please follow the link here.

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

To access information on how to avoid tree disputes please follow the link here.

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.

To access information on what to do if your neighbour’s tree is affecting you and resolving tree disputes follow the link here.

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.

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.

Search the Queensland Heritage Register and contact your local government authority (council) to check if a tree is protected. You should ask for details in writing.

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.