The Queensland Law Reform Commission (Commission) has been asked to review the operation and effectiveness of the Neighbourhood Disputes (Dividing Fences and Trees) Act2011 (Act), which has been operating for three years. The Act intends to regulate neighbours’ responsibilities with respect to dividing fences and trees so that these common issues are able to be resolved.
The Commission has released a Discussion Paper calling for submissions from those who have an interest in the issues raised in the Discussion Paper, some of which (in relation to tree disputes) include the following:
- Does the Act appropriately deal with trees on different types of land across Queensland?
- The Act specifically preserves the common law right of abatement in relation to a tree.Should this right be modified?
- Are the height and depth triggers for a notice to a tree-keeper to cut overhanging branches appropriate?
- Should the relevant sections of the Act be changed to limit its operation to a view that existed at or after the commencement of the Act (or after a person became an owner)?
- Should the Act provide for cost arrangements for meeting the costs of reports from arborists or other experts?
- Should the provisions which encourage neighbours to resolve the issue “informally” be retained?
The Discussion Paper can be found here.
We set out below a snapshot of some recent cases dealing with tree disputes under the current Act.
Obstruction of a view from a dwelling that existed when the neighbour took possession
Vecchio v Papvasiliou  QCAT 70
This case concerned a hedge that was already in existence at the time the neighbour took possession of their vacant block of land in 2008. The neighbour subsequently built a house on the land in 2010 and sought orders that the hedge be removed (or pruned), arguing that it restricted a pre-existing view.
The Act creates a right to a view from a dwelling that existed at the time the neighbour took possession of the land. The Tribunal therefore held that because there was no house on the land at the time the neighbour took possession, there was no view capable of protection by the Act.
Tree shade rendering installation of solar panels ineffective
Durrington and Kruger v Cassar and Anor  QCAT 609
In this case, the applicants argued that they were unable to install solar panels on the roof of their home because their neighbour’s tree obstructed sunlight. The applicants received advice from a solar panel installation company that it would not be viable for them to install a solar system because their roof was subject to too much shade.
The Tribunal held that the trees were causing a severe obstruction of sunlight to the roof and made orders in relation to the removal and pruning of the trees.
QCAT’S jurisdiction in respect of council road reserves
Pearson v Noosa Shire Council  QCAT 48
The applicants in this case resided next to an area of land controlled by the Council that had several trees. They alleged that the trees posed a high risk in storm season and cause a build up of debris on their roof.
The application was dismissed on the basis that QCAT does not have jurisdiction to hear applications about trees on a reserve for community purposes (which includes roads).