Relations between neighbours are often strained over fence and tree disputes. These disputes can become costly and consume valuable court resources.

On 1 November 2011 The Neighbourhood Disputes Act 2011 (QLD) came in to force and broadly speaking the Act has attempted to clarify respective neighbours’ positions for these two issues.

The Act also confers jurisdiction on the Queensland Civil and Administrative Tribunal (QCAT) in an attempt to keep legal costs at a minimum for neighbours that find themselves the centre of such a dispute.

Set out below is a brief overview of the changes.

Dividing Fences

Definition of a Dividing 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.

There should be a sufficient dividing fence between two parcels of land if an adjoining owner requests one. Generally neighbours must contribute equally to the cost of building and maintaining a sufficient dividing fence.

For the first time, the definition of a fence includes hedges and vegetative barriers.

A residential dividing fence must be between 0.5 metres and 1.8 metres in height and constructed substantially of prescribed materials such as timber or masonry.

That does not mean that fences being any shorter need to be replaced. If an existing fence is sufficient to divide and is serving this purpose well, it should be retained.

Who has to pay for fencing work?

Adjoining neighbours are each liable for half the cost of a sufficient dividing fence. However, if one neighbour wants to have more work done than is necessary then
that neighbour will be liable for the extra expense.

However, there are exceptions. For instance, if an adjoining owner attaches things to a dividing fence (a carport, a shade sail), the other owner can contact QCAT and apply for an order restoring the fence to a reasonable standard in regard to its state before the attachment.

There will also be occasions in which it is necessary to undertake fencing work urgently (e.g. catastrophic events like floods or fires) without notice to the other owner. When that occurs the owner may recover the costs of carrying out the fencing work by giving a notice to contribute to the expenses.

If a fence is damaged by a negligent or deliberate act, the owner of the land must restore the dividing fence to a reasonable standard taking into account the state of
the fence before the damage occurred.

How to I give notice to contribute to (urgent) fencing work?

For the first, time there will be an approved form for the notice an owner can give to an adjoining owner. Unlike the 1953 Act, it is only necessary to attach one written quotation to the notice.

A copy of all relevant forms can be obtained from the Attorney General’s website at: http://www.justice.qld.gov.au/justice-services/justice-initiatives/neighbourhood-disputes-resolution-act-2011

If adjoining owners do not agree to the proposed fencing work or their contributions to it within one month, then either owner may apply to QCAT. This application has to be submitted within two months of the notice being provided. Unless there is a need for urgent fencing work, neither adjoining owner can undertake fencing work until agreement is reached about the proposed fencing work or until QCAT has made an order.

Trees

Compared to the 1953 Act, the Neighbourhood Disputes Resolution Act 2010 provides greater choices for neighbours about trees affecting their property. Generally, neighbours are encouraged to resolve the issue about the tree informally. If that is not feasible, the affected neighbour may exercise the common law right of abatement or apply to QCAT for resolution of the dispute.

Is my property affected by a tree?

Land is affected by a tree if branches from the tree overhang the land, or the tree causes serious injury to a person on the land, serious damage to the land or any property on the land, or there is substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.

Which rights do I have as an affected neighbour?

The right of a landowner to exercise the common law right of abatement (e.g. by looping branches and roots to the boundary) is not affected by this Act except to the extent that there is no obligation under this Act to return the removed part of the tree to the
tree-keeper. Under the common law adjoining owners must return the cut branches, roots or fruits to the tree-keeper. Under the new Act, the neighbour can choose to either return the removed parts or dispose of the parts themselves.

If a neighbour wants the tree-keeper to take responsibility for looping branches, they can serve a written notice upon the tree-keeper. This notice can be used for branches which are more than 5 m over the boundary and less than 2.5 m above the ground.

The notice must ask the tree-keeper to carry out the work on the tree within 30 days of the day the notice is given. It must be accompanied by at least one written quotation from a contractor specifying the estimated cost. If the tree-keeper does not respond, the neighbour can proceed to have the looping done and recover from the tree-keeper a maximum of $300.00 annually.

How can I apply to the Queensland Civil and Administrative Tribunal (QCAT)?

Before an application is made to QCAT a neighbour should undertake alternative administrative processes for resolution of a dispute about a tree (e.g. notice to the tree-keeper).

A QCAT application should be considered in the following cases:

if a neighbour cannot resolve the issue by giving notice to the tree-keeper;
if the neighbour’s land is affected by roots of a tree which are blocking underground pipes;
if the tree has grown to such height or thickness that it is blocking light to the windows;
if the neighbour is afraid of potential poisoning of water supply by the dropping of leaves into a water tank.

Normal tree litter such as leaves, flowers, fruit or seeds would ordinarily not provide the basis for ordering removal of or intervention with a tree.

Need advice?

For further information or advice about dividing fences and trees or anything else related to your property, contact our Property law team on 07 3232 5700 or email property@whd.com.au.

Many of us as drivers like to believe that if we are involved in an accident as a result of someone else entering an intersection without stopping at a stop sign or give way sign, the law is on our side. It is important to note that this is not strictly the case. Case law tells us that even if the other driver breaks the law, we may find ourselves, even if just in part, liable for the accident.

Motorists should be aware of the potential for liability and what is required of us to satisfy the fault. A review of the recent decision of Schimkev Clements v Suncorp Metway Insurance Limited and a general discussion of driver obligations is important to put us squarely in the picture of responsibility.

In that case two drivers in opposite directions were approaching a single lane bridge one party approaching the bridge had a give way sign the other party approaching the bridge was travelling in excess of the speed limit. The driver faced with the give way sign past straight through it without stopping and entered the single lane bridge before the other vehicle reached it. At the trial the speeding driver stated his belief that the other vehicle would stop at the give way sign and therefore believed it would be safe to enter the bridge.

Upon seeing the “give way” car enter the bridge the speeding vehicle applied his breaks causing a trailer he was dragging to jack knife across the breadth of the bridge which the “give way” driver collided with, causing his death.

In this decision the Judge stated that the “give way” driver had seen the speeding vehicle approaching the bridge and believing that he would reach the bridge first elected to drive through the give way sign without stopping and as such was negligent in not stopping at the give way sign. The Court however did condemn the driving of the speeding driver, in quoting the decision of Sibley v Kais for the speeding drivers excessive speed and lack of control of his vehicle in entering a fairly dangerous situation.

The Court in its decision found contributor negligence on both drivers part and apportioned the damage and liability as 35% to the speeding vehicle and 65% to the give way driver.

Schimkev is a specific example of the downfall that results from assuming a car will give way at a give way sign, but long established principals go even further to requiring motorist to ensure all care is taken on the roads.

A High Court of Australia Decision of Sibley v Kais defined what is required to satisfy ‘reasonable care’ each driver must display when approaching an intersection:

“What amounts to “reasonable care” is, of course, a question of fact to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact should he find another vehicle approaching from his right or from his left in such a fashion that, both vehicle continue, a collision may reasonably be expected.”

This means that regardless of signage at an intersection it is a requirement of all drivers approaching any intersection, to take reasonable care and control their vehicle in such a way that even if another driver disobeys a traffic sign they are capable of bringing their vehicle to a halt or steering it in such a manner as to avoid the collision.

This tells us as motorists that simply hiding behind the shield of “But they ran the red light!” or “They failed to give way!” is absolutely not a total defence in the event of an accident.

As noted from the case of Schimkev courts can apportion 35% and upwards of liability for an accident to driver who does not control his vehicle in a way that ensures he is ready for anything from other motorists.

This principal has serious implications for each motorist and their insurance, keeping in mind that your insurer will be forced to wear a percentage of the damages in the event you are found to be in part liable and this can have very serious consequences for your premiums, as well as overheads for the insurers.

We must let go of the assumption “That everyone is going to obey all road rules, driving carefully at all times”, only to be disappointed when they don’t. Rather we must always “assume that all drivers WILL break the rules, run red lights, cruise through a give way sign and thrash their machines to beat the yellow light”, and simply be grateful when they don’t.

It is important to keep in mind that every time we get behind the wheel of a car, we take control of a 1 tonne wrecking ball and it is our responsibility to ensure we are in full control of that tonne of steel and combustion and be ready for any and all eventualities on the road.

For further information contact our Litigation team on 07 3232 5700 or litigation@whd.com.au

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Monthly Archives: November 2011

‘Love thy neighbour’ made easier by new laws