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Who is my neighbour?

Who is my neighbour

“Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”

Donoghue v Stevenson [1932] AC 562 at 580

Lord Atkin’s seminal analysis has been the foundation of the law of negligence throughout the common law world.

But the answer to the question of ‘Who is my neighbour?’ is somewhat different in the context of tree disputes in Queensland.

A little history

Traditionally, parties in dispute over trees have had to have recourse to the law of negligence, nuisance and trespass. These causes of action can take considerable time and expense, and while courts can impose injunctions or award damages, remedies to prevent damage or harm can be problematic.1 Moreover, traditional remedies do not take into account aesthetic, cultural or environmental values associated with trees.2

Unresolved tree disputes can escalate. Unlike many commercial disputes in which the parties never have to see each other again, parties to trees disputes have an ongoing relationship as ‘neighbours’. Because of this, many unresolved tress disputes can quickly become matters involving trespass, criminal damage or other criminal behaviour.3 It is not unknown for parties to tree disputes to have taken out protection orders against each other.

Legislative intervention

In Queensland, the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) confers jurisdiction on the Queensland Civil and Administrative Tribunal (QCAT) to resolve tree disputes. The Act provides a framework to resolve tree disputes more quickly and cheaply, and thereby reduce unnecessary escalation.

QCAT’s jurisdiction

The most common reasons for tree disputes brought in QCAT are:

  • overhanging branches
  • property damage
  • obstruction of views or sunlight

However, before QCAT can decide the dispute, a person must first meet a number of jurisdictional thresholds, namely:

  • What is a “tree”?
  • Is land “affected by a tree”?
  • Is the tree in an area covered by the Act?
  • Who is a “neighbour”?

What is a tree?

Perhaps unsurprisingly, the Act broadly defines ‘tree’ to mean any woody perennial plant or any plant resembling a tree in form and size.4 This includes a vine,5 bamboo,6 bare trunk, roots,7 stump rooted in the land, and a dead tree.8 Importantly, the tribunal has held that it does not include an artificial plant.9

It is not uncommon for a tree to be identified as a noxious weed (for example, privet tree or umbrella tree). This is taken into account as a decision-making factor10 and may be balanced against other factors, for example, if there is anything special about the tree that suggests it should be retained.11

Is land affected by a tree?

Land is ‘affected by a tree’ if branches overhang the land or the tree has caused or is likely12 to cause within the next 12 months:

  • serious injury to a person on the land
  • serious damage to the land or any property on the land, or
  • substantial, ongoing and unreasonable interference with a neighbour’s use and enjoyment of the land.13

What constitutes serious injury or damage, or substantial, ongoing and unreasonable interference is beyond the scope of this article. However, the terms have generated much case law in QCAT and some useful citations are footnoted to assist practitioners.14

Is the tree in an area covered by the Act?

The Act only applies to trees that are:

  • in urban areas,15 and
  • on land that adjoins the neighbour’s property,16 or
  • on land separated by a road.17

The Act does not apply to trees:

  • on rural land18
  • on land of more than four hectares19
  • on land owned by a local government and used as a public park20
  • planted or maintained for commercial purposes,21 or
  • planted or maintained as a condition of development approval.22

The exclusion of rural land is based on the character of the land. It is common in rural land to have large properties with many large trees with overhanging branches. However, actual use of the property is not relevant to whether land is rural.23 Land is rural land if it is zoned rural land or the Valuer-General declares the land to be rural land.24

Who is a neighbour?

A ‘neighbour’ may apply to the tribunal for an order in relation to a tree.25 A neighbour is the registered owner of adjoining land affected by a tree and includes a body corporate if the land affected by the tree is community title.26 The tribunal has held the following not to be a ‘neighbour’:

  • a sub-lessee of Crown leasehold land27
  • a registered owner of community title when seeking orders relating to an area encompassing other unit owners and common property on the same community title.28

Occupiers of land other than the registered owner can make an application about a tree, but need to establish that the registered owner has refused to act.29

QCAT applies a strict interpretation of adjoining land on the basis of the Act. Adjoining land is land that ‘physically adjoins’. The only exception to the requirement of continuity is the exception of a road:

  • For land to ‘adjoin’ for the purposes of the Act it must be either physically contiguous or would, if not separated by a road, be physically contiguous.30

The applicant must discharge the onus of proving that the tree is ‘wholly or mainly’ on the tree owner’s land.31 Straddle trees can occur and it is not uncommon for parties to reach agreement to engage a surveyor.

Purchasers and new owners of land

Conveyancing practitioners in particular should note QCAT’s jurisdiction over purchasers and new owners of land. QCAT does not have jurisdiction to make orders in relation to a previous tree owner – it can only make orders in relation to current tree owners. A joinder is not activated automatically.32 A purchaser must first be put on notice.33 If a party cannot be joined under the Act, then they may be joined under the QCAT Act instead.34

The Act provides a maximum penalty of 500 penalty units for a seller not giving a purchaser a pending application before they enter into a contract of sale of land.35 Additionally, the purchaser may exit the sale and recoup their deposit if settlement has not yet occurred.36

However, it is not uncommon for a purchaser to not know about an application filed by a neighbour after they have entered into a contract of sale. The Act has no penalty provisions for the failure of a tree-keeper to give a purchaser a copy of a pending application in these circumstances. Rather, it is a contractual matter between the treekeeper and purchaser.37

If a seller of land affected by an order does not give to the purchaser a copy of the order before entering into the contract of sale and has not carried out all the work before settlement, the seller remains liable to perform the work.38

The legislative intent of these provisions is to shift the burden of the tree onto the purchaser if the current tree owner is noncompliant.39 However, a purchaser cannot be ordered to remedy damage caused by a tree before purchase that has been completely removed.40

Footnote:
1 Neighbourhood Tree Disputes, Victorian Law Reform Commission, report July 2019, xvi.
2 Margaret Davies and Kynan Rogers, ‘Tale of a Tree’, (2014) 16 Flinders Law Journal 43, 52.
3 Neighbourhood Tree Disputes, Victorian Law Reform Commission, report July 2019, Chapter 2.
4 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s45(1).
5 Webb v Dwyer & Clarke [2014] QCAT 219.
6 Watson-Brown v Heaton & Anor [2014] QCAT 346; Street v Smith & Rodgers [2018] QCAT 193.
7 Cacopardo v Woolcock [2017] QCAT 214; Hewitt & Hewitt v BCC & Gorman [2018] QCAT 282.
8 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s45(1), (2).
9 Dawes v Wiggins, unreported, 17 October 2019 (Member Kent).
10 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s73(1)(k).
11 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s71(1)(c)-(g).
12 McDonald v Henry [2013] QCAT 87, where the tribunal held that the plain meaning of ‘likely’ is probably or reasonably to be believed or expected; similar reasoning was applied in Bunyard v McManus [2013] QCAT 258 where an arborist’s finding of ‘possible’ damage was not sufficient.
13 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s46.
14 Hewitt & Hewitt v BCC & Gorman [2018] QCAT 282 where a claim for $817 was not sufficient to be ‘serious damage’; Bunyard v McManus [2013] QCAT 258, [23]; Belcher v Sullivan [2013] QCATA 304, [22] to [26] (Judicial Member Dodds); Hoy v Fox & Anor [2013] QCAT 728; Cacopardo v Woolcock [2017] QCAT 214 (roots); Belcher v Sullivan [2013] QCATA 304 (roots); Laing v Kokkinos (No.2) [2013] QCATA 247 (view); Thomsen v White [2012] QCAT 381 (sunlight); Body Corporate – Highlands Vista v Taylor [2018] QCAT 244; (view re body corporate and multiple units), Webb v Dwyer & Clarke [2014] QCAT 219 (vine).
15 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s42(3)(a).
16 Ibid, s46(b)(i).
17 Ibid, s46(b)(ii).
18 Ibid, s42(3)(a).
19 Ibid, s42(3)(b).
20 Ibid, s42(3)(c).
21 Ibid, s42(4)(a).
22 Ibid, s42(4)(c) and see Werndly & Ors v Orchard [2014] QCAT 377.
23 Capo Di Monte v Tolmie & Anor [2013] QCAT 625.
24 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s42(3)(a), Schedule definition, Land Valuation Act 2010 (Qld), s9.
25 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s62(1).
26 Ibid, s49.
27 La Bella Waters Body Corporate v Northaust Leisure Pty Ltd [2014] QCAT 372.
28 Brown & Anor v Wallace [2014] QCAT 461; cf Lowe v BGC Technical [2016] QCATA 124 where the tribunal noted the “serious injustice” to the registered owner if the body corporate elected not to bring an application. However, the nature and functions of a body corporate and the rights of a majority of lot owners in community title living were not considered.
29 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s62(2).
30 Eddes v Bourke [2018] QCAT 69, [10].
31 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s47(1).
32 Ibid, s84.
33 Ibid, s83.
34 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s42.
35 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s83.
36 Ibid, s86.
37 Putting the onus on the affected neighbour to inform new tree-keepers may be problematic because the affected neighbour may not be aware of the proposed sale of adjoining land or any other details. It may be unfair for the affected neighbour to have to monitor ownership in this way.
38 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s87.
39 Ibid, s85.
40 Ibid, s68(2).

Bevan Hughes is List Manager for Neighbour and Tree Disputes and has presided in over 5000 hearings in his role as a full-time Member of the Queensland Civil and Administrative Tribunal. He is a nationally accredited mediator and has mediated over 1200 QCAT matters with a 97% settlement rate. The views expressed are those of the author only and are not made on behalf of QCAT. The author gratefully acknowledges the assistance of QCAT President, Justice Daubney AM, in preparing this article.

This story was originally published in Proctor May 2020.

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