Changes to overhanging trees and dividing fences legislation

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 9^th 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.