Monthly Archives: September 2011

Changes to overhanging trees and dividing fences legislation

Posted on by

Please note: For the most up-to-date information on the Neighbourhood Disputes Resolution Act 2011, please see the more recent post, posted to the Queensland Law Blog on 25/11/11.

The Neighbourhood Disputes Resolution Act 2011 (the ‘NDR Act’) was assented on the 9th August 2011 and will replace the previous legislation covering disputes between neighbours, the Dividing Fences Act 1953 (Qld) (the ‘DF Act 1953’). The NDR Act will commence on a date to be fixed by proclamation (s2). The NDR Act deals with disputes arising between neighbours, particularly in relation to fences and trees.

Objects and reasons of the NDR Act

The objects of the Act are:

  • to provide rules about each neighbour’s responsibility for dividing fences and for trees so that neighbours are generally able to resolve issues about fences or trees without a dispute arising; and
  • to facilitate the resolution of any disputes about dividing fences or trees that do arise between neighbours.

The NDR Act aims to modernise the old dividing fences legislation, change the common
law of abatement in relation to overhanging tree branches and introduce a simplified, low-cost remedial path to neighbourly disputes, in large by conferring jurisdiction on the Queensland Civil and Administrative Tribunal (QCAT) in relation to these matters.

Reasons for the introduction of the NDR Act

The main reasons for the introduction of the Act (which are outlined in more detail in the
Explanatory Notes to the NDR Bill 2010) are as follows:

  • Despite neighbour disputes mostly being minor matters, these types of disputes can (and do) potentially develop into very serious and distressing situations for
    neighbours.
  • Studies/surveys found that the overwhelming community consensus was that the DF Act (1953) needed to be replaced with more contemporary legislation that reflected the wants and needs of the community and that was drafted in a more comprehensible, clear manner.

Major changes to this area of law

The NDR Act has substantially modified the DF Act (1953) regarding two key areas;
fences and trees. The NDR Act has also conferred jurisdiction on the QCAT to hear disputes between neighbours in order to provide a practical and low-cost form of effective relief.

Fences: The NDR Act clarifies the meanings of a fence (s 11), dividing fences (s 12), sufficient dividing fences (s 13), retaining walls (sch 2) and destruction or alteration of a fence by a neighbour (s 28).

Trees: The main change resulting from the NDR Act with regards to tree legislation is that
the onus is placed on the tree keeper(s) to give proper care to and keep up maintenance of his/her trees (s 52). Also, s 54(2) of the NDR Act stipulates that a neighbour who exercises their common law right of abatement by removing part of a tree (e.g. an overhanging branch containing fruit) may, but is not required to, return the removed part to the tree-keeper.

According to Paul Lucas MP, “one of the key elements of the new laws is provisions to help people recover the cost of tree branch removal if a neighbour would not remove them”. Mr. Lucas is here referring to an aggrieved neighbour’s right to apply to the QCAT (schedule 2 NDR Act) for an amount up to $300 for the tree removal (s 58(4) NDR Act).

For further information about the new legislation or for assistance with property law matters email us at property@whd.com.au or call 07 3232 5700.

Final cost of Hale St Bridge still to be determined

Posted on by

Today the Queensland Court of Appeal set aside an earlier decision of the Land Court regarding the valuation of land compulsorily acquired to make way for the Hale Street Bridge.

In 2007, the council compulsorily acquired 5,643m2 of land for the purpose of constructing the new river crossing.

A dispute arose as to the value of the land which came before the Land Court for an assessment of compensation in 2009.  The Land Court determined that the pre-acquisition value of the land be $25,600,000.

The owner and the mortgagee of the land appealed the assessment which was successful in November 2010.  Whilst no monetary value was given by the judges in the Land Appeal Court decision, the land owner and the mortgagee (who is now in liquidation) argued that the valuation was in the order of $40,000,000.

The Land Appeal Court held that the earlier decision had wrongly disregarded a planning proposal published subsequently to the date of resumption in consideration of the size of the development which a prudent vendor and purchaser would have expected to have been approved.

Today the Queensland Court of Appeal allowed the Brisbane City Council’s Appeal, and returned the assessment to the Lower Court for a redetermination of the value of land.  However it also urged the parties to agree on an amount without the need for further costs of a further hearing.

Walsh Halligan Douglas were the Queensland solicitors assisting the interstate liquidators’ lawyers, Griffins Lawyers of Adelaide, in this matter.

For further information, contact us at litigation@whd.com.au.

Threshold for damages for gratuitous care provided to an injured person

Posted on by

The most significant head of damage awarded to an injured person is almost always economic loss. However, the next “big ticket item” in many personal injuries case can be the damages awarded for gratuitous care.

Within the legal profession, damages for gratuitous care and assistance are known as Griffiths v Kerkemeyer damages, named after the case of the same name. The Civil Liability Act 2003 (QLD) (“the CLA”) however provides minimum thresholds to be met for an injured person to be awarded Griffiths v Kerkemeyer damages (See section 59 of the CLA). The CLA was enacted by the Queensland Government in response to the “insurance crisis” and the “Ipp Report” of September 2002.

The thresholds specify that damages should only be awarded to an injured person for gratuitous services provided, which are:

  1. Necessary;
  2. Arise solely out of the injury in relation to which damages are awarded; and
  3. Are provided, or are to be provided for at least six hours per week and for at least six months.

Section 59 of the CLA has not yet been tested in any Court within Queensland.  The generally accepted interpretation is that both limbs of point 3 above must be met before any award for gratuitous services can be given.  As such, gratuitous services must be provided for at least six hours per week and for at least six months. Whilst the section is clear about the requirement of 6 hours per week, the requirement for six months does not state whether this period is cumulative or continuous. There are differing views on this point, although the generally accepted practice is that the period must be continuous. The exception to the rule would appear to be if the injured person has been required to spend time in hospital, or a like facility, which has temporarily severed the continuous period of six months.

For future Griffiths v Kerkemeyer damages to be awarded, the threshold tests must be met. This view was upheld in Kriz v King & Anor [2006] QCA 351 which is authority for the proposition that once the threshold in section 59 of the CLA is met, Griffiths v Kerkemeyer damages can be awarded even if the services thereafter are provided, or are to be provided, for less than six hours per week.

Of interest is the New South Wales case of Harrison v Melham [2008] NSWCA 67.  It considered the interpretation of section 15 of the Civil Liability Act 2005 (NSW). The section provided that no damages were to be awarded where gratuitous care services were provided for less than six hours per week and for less than six months.  The Court determined that an injured person would only have to show that the services were provided for a significant period of time per week or over a long period of time (six months) to be able to claim damages for gratuitous care.  Justice Mason observed that in order to meet the six month threshold, it was necessary for the six months to accumulate consecutively. Section 15 was subsequently amended and is now constructed in a similar manner to section 59 of the CLA.

Whilst only of persuasive value, this case is an example of the uncertainty of the interpretation of section 59 of the CLA, should it be brought before the Queensland Courts for determination.

It is for this reason that it is imperative that injured people keep a detailed record of any gratuitous services provided to them by family or friends that were not provided to them prior to sustaining their injuries, and were required as a result of the injuries.

If you would like further information please contact us via our website or email info@whd.com.au