The Neighbourhood Disputes Resolutions Act 2011 (Q) took effect from 1 November, 2011. The Act replaces the Dividing Fences Act. It provides rules setting out the responsibilities of neighbours for dividing fences and trees. The Act allows neighbours to apply to Queensland Civil and Administrative Tribunal (QCAT) to settle disputes that neighbours cannot resolve themselves.
The Act enlarges the definition of ‘fence’. ‘Fence’ is defined as a structure, ditch or embankment, hedge or similar vegetation barrier enclosing land, regardless of whether it is continuous or extends along the entire boundary of land. Gates, cattle grids, watercourses and foundations built solely to support a fence are included. Retaining walls and walls that form part of a house garage or building are excluded. The law states that there should be a sufficient dividing fence between two parcels of land if an adjoining owner wants one.
The Act also defines what constitutes a ‘sufficient dividing fence’. Whether a fence is ‘sufficient’ depends on the type of land involved. For residential land, a dividing fence is sufficient if it is between 1.5 metres and 1.8 metres high and consists substantially of prescribed material. ‘Prescribed material’ includes wood, timber palings and lattice, bricks, concrete blocks, vegetation and other materials that are ordinarily used to build fences.
QCAT has authority to determine whether a dividing fence is sufficient. A dividing fence on the common boundary of land is owned equally by the neighbours who must equally contribute to its construction and maintenance. The procedure to compel a neighbour to contribute to the cost is largely unchanged. A formal Notice to Contribute must be served on a neighbour and agreement reached before fencing commences, unless urgent or approved by QCAT. The Notice must include at least 1 quote for the proposed fencing work. Either neighbour can apply to QCAT to resolve a dispute not settled within 2 months of serving a Notice to Contribute.
The Act sets out who is responsible for the care and maintenance of trees. It creates the term ‘tree-keeper’, who is usually the owner, lessee or body corporate of land where a tree is situated.
A tree-keeper is responsible for removing any branches that overhang a neighbour’s land, and must ensure that their trees do not cause serious injury to a person or damage to land.
Owners can remove branches that overhang property from adjoining property and can choose whether to return the branches to the adjoining owner. A land owner is able to serve a notice on a tree-keeper that requires the removal of overhanging branches.
If a tree-keeper does not do so, then the land owner may remove the offending branches and recover from the tree-keeper the reasonable costs incurred in doing so, to a maximum of $300.
QCAT will have the power to make orders in relation to the removal or pruning of a tree. Additionally it will keep a public register of tree orders affecting properties.
Sellers must disclose the existence of any applications or orders affecting trees on their land to potential buyers. If that is not done, then a buyer can terminate a contract at any time before settlement and claim refund of the deposit paid. The seller and agent will also be responsible for the buyer’s reasonable legal and other expenses relating to the contract.
This is a general overview only. For more detailed information contact our office