Neighbour Disputes (Qld)
Common disputes between neighbours arise over noise, trees and fences. Neighbours should first try to resolve the problem with each other. If this does not work, the aggrieved neighbour may be able to complain to an authority, such as police or a local council, or take legal action.
Local councils can deal with some residential noise problems such as those involving noise from lawn mowers, swimming pool pumps, air conditioners, power tools and generators, which can be used only during specified hours and at specified volumes.
Police can deal with complaints about excessive noise from:
- musical instruments;
- stereos and amplifiers;
- private gatherings, such as parties;
- music and other noise emitted from vehicles on private property, on the road or in public places;
- residential alarms.
Barking dogs can be considered a private nuisance when the barking is consistent and continues to the point it disrupts a person’s peace, comfort or convenience. Upon a complaint to a council, the dog owner can be fined and taken to court.
The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 governs tree disputes between neighbours. The definition of tree includes a vine, a trunk, a stump or a dead tree.
The Act states a property is affected by a tree if branches are overhanging, or the tree has caused, or is likely within the next 12 months to cause:
- serious injury to a person; or
- serious damage to property; or
- substantial ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.
It provides that tree maintenance is the responsibility of the tree keeper. If branches intrude by more than 50cm over the boundary and are 2.5m or less from the ground, the neighbour can give a written notice to the tree keeper to cut and remove the branches. The notice must give the tree keeper at least 30 days to carry out the work, ask for notice of the day the work will be done, and give authority for the tree keeper or their contractor to enter the neighbour’s property between 8am and 5pm on that day to carry out the work.
If the work is not carried out as required by the notice, the neighbour can cut and remove the branches, or have someone do it. They can return the removed parts to the tree keeper if they choose but this is not required. The tree keeper is liable for the reasonable expenses of the work, up to $300.
The neighbour also has a right to apply to the Queensland Civil and Administrative Tribunal (QCAT) for resolution of the issue. QCAT can make an order if it is satisfied the neighbour has taken all reasonable steps to resolve the dispute. In deciding on an order, it must consider matters including:
- whether the tree has any historical, cultural, social or scientific value;
- any contribution of the tree to:
- the local ecosystem and biodiversity;
- public amenity;
- the natural landscape and scenic value of the site;
- privacy, landscaping, garden design, or protection from sun, wind, noise, odour or smoke;
- any impact of the tree on soil stability, the water table or other natural features;
- any risks posed by the tree in an extreme weather event.
A QCAT order in relation to a tree dispute last for 10 years unless it expressly provides otherwise.
Damages may be available if a person can prove a tree caused damage to a property.
Dividing fences can be a source of disagreements between neighbours. A dispute can arise when the owners of adjoining properties disagree about the fence construction, maintenance or position.
Under the Act, an adjoining neighbour is liable to contribute equally to the cost of a building or replacing a standard dividing fence. However, if an adjoining neighbour or their guest damages or destroys the fence through negligence or a deliberate act, that owner is liable for the whole cost. A neighbour must not attach anything to a dividing fence, without the other neighbour’s consent, that unreasonably and materially alters or damages the fence, such as a carport, shade sail, sign or lattice work.
A neighbour should issue a notice to the adjoining neighbour that fencing work needs to be done and that the adjoining neighbour should contribute to the cost. The notice must state the boundary line where the work will be done, the type of work and the cost. If a fence is damaged or destroyed and urgent fencing work is required, and there is no chance to issue a notice, a neighbour can carry out fencing work and issue a notice to the adjoining neighbour to contribute half of the cost of the work.
If an agreement on work, or the payment of the cost of urgent work, is not reached within a month of the notice being given, either party can apply to QCAT for resolution within 2 months of the notice being given.
QCAT orders can include determinations about:
- the boundary where the work is to be done;
- the work to be done, including the type of fence;
- the contributions from each of the adjoining neighbours;
- the portion of the fence to be built or repaired by either neighbour;
- the time frame for the work to be done;
- any compensation to be paid for loss of land;
- whether a fence is needed.
For advice or representation in any legal matter, please contact Armstrong Legal.