BY: HELENE JOHANSEN
Every year thousands of people in Australia find themselves in the middle of a neighbourhood dispute about a fence or a tree.
To address this problem the new Neighbourhood Disputes Resolution Act 2011 commenced on 1 November 2011 and aims to make it easier for neighbours to resolve their disputes over trees and fences.
The State of Queensland (Department of Justice and Attorney-General?) provides the following clarifications of the Act:
The word ‘tree’ under the Act includes any woody perennial plant or any plant resembling a tree in form and size such as a shrub, bush, vine, bamboo, banana plant, palm or cactus. It also includes a bare trunk, a stump rooted in the land, and a dead tree. A tree is ‘situated’ on land if the tree is, wholly or mainly, on the land, and includes a tree that has been removed.
Under the Act the proper care and maintenance of a tree is the responsibility of the tree-keeper. The tree-keepers are registered owners of a lot recorded in the freehold land register under the Land Title Act 1994 (for the purpose of the act the State is not considered a tree-keeper).
Further, the body corporate for the common property in a community titles scheme (under the Body Corporate and Community Management Act 1997) and the body corporate for the common property in a plan (under the Building Units and Group Titles Act 1980) are tree-keepers.
Normal tree litter such as leaves, flowers, fruit, seeds or small elements of deadwood would ordinarily not provide the basis for ordering removal of, or intervention with, a tree.
If there is ongoing and unreasonable interference with use and enjoyment of the neighbour’s land, like interference with television or satellite reception or interference with the proper functioning of solar panelling action must be taken by the tree-keeper.
If either obstruction of sunlight to the windows or roof of a property or obstruction of a view which existed before the neighbour took possession of the land is alleged, the applicant must show that the branches of the tree are more than 2.5 metres above the ground.
The Act does not apply to trees situated on rural land, land that is more than four hectares in size, or land owned by a local government that is used as a public park. It also excludes trees planted and maintained for commercial purposes or as condition of a development approval.
For more information see the fact sheets at Living In Strata Tree Fact Sheet.
A fence is a structure, ditch or embankment, or a hedge or similar vegetation barrier, enclosing any land, whether or not it extends along the whole boundary of the land separating the neighbours. It includes any gate, cattle grid, or apparatus necessary for the operation of a fence.
A dividing fence is constructed on the common boundary line of adjoining land. Sometimes a dividing fence can be built off the common boundary line when it is impractical due to the physical features of the land.
The Act does not affect the common law position. A dividing fence is owned equally by the adjoining neighbours if it is built on the common boundary line. However, a fence or part of a fence built on one neighbour’s land is owned by that neighbour, even if the other neighbour contributed to the construction of the fence.
There should be a sufficient dividing fence between two parcels of land if an adjoining owner requests one – even if one or both parcels of land are vacant.
Generally neighbours must contribute equally to the cost of building and maintaining a sufficient dividing fence and should not attach something to a dividing fence that unreasonably and materially alters or damages it. If a tenant is asked by their neighbour about a dividing fence issue, this should be referred to the property owner or the agent.
For more information see the fact sheets at Living In Strata Fence Fact Sheet.