Tree Disputes in Queensland

Tree disputes in Queensland are primarily governed by the Neighbourhood Disputes (Diving Fences and Trees) Act 2011 (Qld) (‘the Act’).

The Act aims to provide avenues for neighbours to resolve disagreements surrounding trees on adjoining properties.

Trees Disputes – Covered Under the Act

The Act defines ‘tree’ and what is covered by the Act under section 45.

The term ‘tree’ is described to include any woody perennial plant; or any plant resembling a tree in form and size (bamboo, palm, cactus etc.); or a vine; or a plant prescribed under a regulation to be a tree for this chapter.

A tree under this act may also include a bare trunk or stump, and dead trees. Under section 42(1) of the Act states that the Act applies to trees on land recorded in the freehold land register; land the subject of a lease or licence under the Land Act 1994; land subject to an occupation permit or stock grazing permit under the Forestry Act 1959, section 35; land subject to a stock grazing permit under the Nature Conservation Act 1992; and a reserve, other than a reserve for community purposes, under the Land Act 1994.

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Trees Disputes – Not Covered Under the Act

Subsections 42(3), 42(4), and 42(5) within the Act demonstrate the types of trees not covered by the Act. These types include;

trees situated on rural land; or
a parcel of land that is more than 4 hectares; or
land owned by a local government that is used as a public park; or
land prescribed by regulation; or
trees planted or maintained for commercial purposes; or
under an order of a court or tribunal; or
planted and maintained as a condition of a development approval; or
trees situated on unallocated State land.

Dispute Resolution Process

Section 33(1) of the Act states that QCAT (the Queensland Civil and Administrative Tribunal) has jurisdiction to hear and decide any matter arising under this chapter.

Section 57(1) of the Act deals with disputes arising from overhanging branches only if the branch extends to a point over the neighbour’s land that is at least 50cm from the common boundary; and only to the extent the branch is 2.5m or less above the ground.

A person may give a written notice to the tree-keeper asking the tree-keeper to cut and remove the overhanging branches under this section in a bid to resolve the issue without QCAT.

The Act encourages neighbours to resolve tree disputes amongst themselves, however the affected neighbour may apply to QCAT if this is unsuccessful.

QCAT has the ability to make numerous orders to resolve neighbourhood tree disputes under section 66 of the Act, these include:

Orders it considers appropriate to prevent serious injury to any person; or to remedy, restrain or prevent serious damage to the neighbour’s land or any property on the neighbour’s land; or substantial, ongoing, and unreasonable interference with the use and enjoyment of the neighbour’s land.
Require or allow the tree-keeper or neighbour to carry out work on the tree on a particular occasion or on an ongoing basis. This may be an order that requires the removal of the tree within 28 days; or an order that requires particular maintenance work on the tree during a particular season every year; or an order that requires particular work to maintain the tree at a particular height, width or shape.
Require that a survey be undertaken to clarify the tree’s location in relation to the common boundary.
Require a person to apply for a consent or other authorisation from a government authority in relation to the tree.
Authorise a person to enter the tree-keeper’s land to carry out an order under this section, including entering land to obtain a quotation for carrying out an order.
Require the tree-keeper or neighbour to pay the costs associated with carrying out an order under this section.
Require the tree-keeper to pay compensation to a neighbour for damage to the neighbour’s land or property on the neighbour’s land.
Require a report by an appropriately qualified arborist.

QCAT is only able to make such orders if the affected neighbour has made reasonable efforts to resolve the dispute with the tree-keeper.

An order made under the Act lapses 10 years after the day on which the order was made unless the order expressly provides otherwise under section 78, unless ordered otherwise.

Disclosing Tree Disputes to Buyers

Under section 83 of the Act, if a person is selling land affected by an application or order, the person must give the buyer a copy of the application or order before the buyer enters into a contract of sale for the land unless the person has a reasonable excuse.

The maximum penalty for failing to disclose this is 500 penalty units. The penalty unit value in Queensland is $137.85 (current from 1 July 2021), this means you may be fined up to $68,925.00.

For the purpose of this section, an application is an application under this chapter that has not been decided, dismissed, struck out or withdrawn; and an order requires a person to carry out work on a tree the subject of the order.

Contact a Sunshine Coast Lawyer for Tree Disputes

If you require further advice regarding a tree dispute with a neighbour, please feel free to use our website’s search engine today to find a suitable lawyer from the best of the Sunshine Coast.

As seen above, the penalty for failing to disclose a QCAT application or order when selling a property is quite damaging, it may be worth while consulting with a property lawyer to avoid this.