Step 1 – Determining The Issue
Legally, your neighbour’s tree is regarded as affecting you if, in the next 12 months, it is likely to:
- Seriously injure anyone on your land
- Seriously damage your land or any of your property
- Unreasonably get in the way of your use and enjoyment of your land
- Interferes with television or satellite reception
- Shades sunlight from the windows or roof of your property if the tree branches are more than 2.5 metres above the ground
- Obstructs a view that existed before you took possession of the land if the tree branches are more than 2.5 metres above the ground
- Creates a substantial and ongoing accumulation of tree litter in your yard
Step 2 – Talk To Your Neighbour
First, it is always a good idea to have a calm, friendly chat with your neighbour about your concerns regarding the offending tree. It is always best to be face-to-face, as notes and letters may come across passive aggressive and worsen the situation. They might not have been aware of the issue the tree was causing and be happy to help solve the problem.
Attempt to find a time and place where you both have ample time to discuss the problem, think beforehand about what you might say – be clear and concise, not aggressive and demanding.
Once you’ve explained your issue, give your neighbour a chance to tell their side of the story, there could be factors you had not considered affecting the situation. Show that you are listening by maintaining an appropriate level of eye-contact and nodding, be sure that your body language is welcoming and understanding – this could be having both hands clasped in front of you resting towards your stomach, or both hands politely held behind your back with correct posture. Avoid negative body language such as crossed arms or hands on hips, this can be misconstrued as intrusive and antagonizing.
Try working on a resolution together, being aware that this solution could take time and work to get it right, so do not expect a quick fix. Once a resolution has been agreed upon, get it in writing to show you have both agreed on the same outcome. Agree to meet again soon to discuss the resolution you’ve come up with together – do not forget or postpone this meeting, it is important to show you are serious about getting the issue resolved.
Once the issue is fixed, it is imperative to maintain healthy communication with your neighbours in the future so if another issue was to arise – you would be civil enough to discuss the matter again and collectively agree on a solution.
Unfortunately, we do not live in a perfect world and this outcome may not happen, therefore we’ve provided you a helpful step-by-step process on resolving tree disputes.
Follow the next steps to take below.
Step 3 – What You Can Do
Depending on the outcome of the discussion with your neighbour, it is important to know what you can legally do yourself if you have a neighbour’s tree hanging over your land:
- Exercise the common law right of abatement – your right to remove overhanging branches and roots to your boundary line.
- Decide whether to return the lopped branches, roots or fruit to your neighbour, or dispose of them yourself. You are under no obligation to return anything you trim from the neighbour’s tree but you may do so as a sign of good will depending on the situation.
- You can give them a formal notice to remove the problem branches using this form. This applies only where branches overhang more than 50cm and are less than 2.5 metres above the ground – and trees not covered by a vegetation protection order.
The form will ask for the following details:
§ Name & address of your neighbour
§ Description of land (e.g. street address lot number, identifying factors of property)
§ Description of your land (e.g. street address lot number, identifying factors of property)
§ A date to carry out the work (removal, pruning of tree, etc.) – which must be at least 30 days after the day the notice is given to your neighbour
§ Location of the tree on your neighbour’s property
§ Description of the tree on your neighbour’s property
§ The following documents must be attached to this form.
- o A copy of one (1) written quotation which states that the estimated cost of work on the tree is. (This will require you to get a quote from an arborist or “tree doctor” contact B&R Tree Services to assist you)
- o A copy of Chapter 3 Part 4 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011
Step 4 – Seeking Legal Advice
If you have exhausted all these options, or you need more specific information about how the law applies to the situation including your options to solve the dispute, legal advice may be required. Legal advice can be obtained from:
- Your local community legal centre, browse the directory here.
- A private lawyer – the Queensland Law Society can refer you to a lawyer suitable for your needs.
From there, legal counsel can advise on what steps to take in resolving the issue.
Step 5 – Go To Mediation
Dispute Resolution Centres are one of the last resorts to settle disputes between neighbours without going to court. Find your nearest centre in Brisbane here. The centres have trained mediators who can act as a neutral third party, guiding you through a structured mediation process to resolve your dispute. In many cases, the process is free. Find out more about the mediation process including how to arrange and prepare for your first mediation session here.
Step 6 – Resolving A Dispute Through QCAT (Queensland Civil and Administrative Tribunal)
QCAT can make legally binding decisions about disputes over trees growing on residential land and fence disputes. The decisions are enforced through the courts, however resolving a dispute through QCAT is often cheaper than taking a case to court. QCAT can help you come to an agreement through mediation and if a tribunal hearing is necessary you do not need a lawyer to represent you.
You can apply to QCAT to make a legally enforceable decision – an order – on the matter.
QCAT can make different orders depending on your situation, this can include:
- The tree must have annual maintenance work
- A survey is undertaken to clarify who owns the tree
- Authorising a person to enter your neighbour’s land to obtain a quote for work or to carry out work on the tree
- Compensation or repair costs for damages to your property
- A tree specialist to check and write a report on the tree
- Have the tree removed
The situation can feel overwhelming, especially when it’s your home that is being affected therefore it’s important to take time to consider all your options before making any rash decisions.