Last updated 9 August 2016
The most commonly used remedy for a person affected by a neighbouring tree overhanging their property (which is not a protected tree or a tree growing on council land) is to cut the tree back to the boundary line and tidily return the branches to the tree owner.
The pruning must not occur in such a way that the health of the tree will be damaged. The right to cut back extends to roots. It is important when engaging tree loppers to consider whether sufficient insurance is held by them to cover any damage which might occur; if not, a neighbour should take care to clarify that they have appropriate insurance.
The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (Neighbourhood Disputes Act) provides that the proper care and maintenance of a tree will be the responsibility of the tree-keeper and provides greater choices for neighbours about trees affecting their property:
- If a neighbour exercises the common law of abatement (e.g. by lopping branches and roots to the boundary), the neighbour can decide whether or not to return the lopped branches or roots. When exercising the right of abatement, neighbours must take care to comply with any applicable tree or vegetation protection orders.
- If a neighbour wants the tree-keeper to take responsibility for lopping the branches of their tree hanging over the boundary, they can serve a notice for overhanging branches upon the tree-keeper. This notice can be used for branches which are more than 50 cm over the boundary and 2.5 metres or less above the ground. If the tree-keeper does not respond to the notice, the neighbour can proceed to have the lopping done and recover from the tree-keeper a maximum sum of $300 (s 58 Neighbourhood Disputes Act). The notice system cannot be used if there is a vegetation or tree protection order over the tree, and the Neighbourhood Disputes Act lists a number of requirements for a valid notice (s 57 Neighbourhood Disputes Act).
- Responsibility is placed on the tree-keeper to ensure that their neighbour’s land is not affected by a tree growing on the tree-keeper’s land. For the purposes of the Neighbourhood Disputes Act, land is affected by a tree if a neighbour can demonstrate that branches from the tree overhanging their land, or the tree caused or is likely within the next 12 months to cause serious injury to a person, serious damage to a neighbour’s land or property or substantial, ongoing or unreasonable interference with a person’s use and enjoyment of the person’s land (s 46 Neighbourhood Disputes Act). The Queensland Civil and Administrative Tribunal (QCAT) has jurisdiction to hear and decide any matter in relation to a tree that allegedly affects the land.
The Neighbourhood Disputes Act provides that in any decision by QCAT, the primary consideration is the safety of any person (s 71 Neighbourhood Disputes Act).
If trees are growing through power lines, telephone lines, cable television lines and are on council land, it is necessary to contact the relevant power, telephone or television company, or council to trim the trees. Some of these entities have lists of trees that are recommended for planting under their lines. Local councils may have local laws about the pruning of trees on council land, and it may be necessary to contact the local council for approval before lopping branches of a council tree, even if it overhangs a neighbouring property.
A tree owner can also be liable under the ordinary principles of negligence if the tree causes damage or injury that the neighbour ought to have foreseen and that could, with reasonable care, have been avoided. If you are concerned about a tree growing on your neighbour’s property, it is a good idea to let your neighbour know about your concerns and confirm your conversation in writing. This way you have evidence that you have alerted your neighbour about the potential danger (see the Accidents and Injury chapter).
Many local councils have local laws that deal with the protection of vegetation.
These local laws restrict the ways landowners deal with trees. In most cases, landowners need a permit to remove protected trees but are still able to prune trees (with restrictions) and may remove trees that present an imminent hazard to life or property (although photographic evidence of the threat may be required).
However, unless it is an emergency, it would be prudent to check with the local council first because there are on-the-spot fines and significant court-imposed penalties for breaches of local laws.
Nominating a tree for protection
Trees with significant biodiversity or environmental value, landscape character or cultural and historical value are considered worthy of protection.
There are two ways to nominate a tree for protection. The first is to write to the local council requesting a vegetation protection order be made over the tree. The second is, if a tree is associated with a place of cultural heritage significance, to make an application to the Department of Environment and Heritage Protection requesting that the tree be registered on the Queensland Heritage Register.
Landholders should contact the State Assessment and Referral Agency or their local council before they clear any trees, no matter how few trees are threatened. There are exemptions to the law for some activities for example routine clearing for fence lines, yards, firebreaks and burning off.
Smaller landowners (especially in urban areas) should contact their local council. For more information see the Laws Affecting the Environment chapter.
Noxious plants and weeds
The Biosecurity Act 2014 (Qld) contains a list of plants that are restricted invasive plants, and the Biosecurity Regulation 2016 (Qld) prescribes methods of disposal for certain invasive plants. Local councils also have biosecurity obligations in relation to managing invasive plants, and may also have an additional list of plants that are declared pests at a local level.
If a neighbour has plants or trees in their garden that are declared pests or weeds, especially if there is a concern that they might spread or affect the health of people in the local area, the neighbour should be informed of the concern.
If the neighbour takes no action after the matter is raised with them, the local council should be contacted. The council may issue a notice for the landowner to control or remove the offending plants. If the notice is ignored, the local council may remove the plants themselves and present the landowner with a bill. For a list of declared pests and any weeds relevant to a specific local area, the local council should be contacted. However, local councils are reluctant to become involved in disputes about plants or trees on private property.