Your responsibilities as a tree-keeper

One of the best ways to avoid problems with neighbours over your trees and shrubs is to know your rights and responsibilities as tree-keeper.

Your legal rights and responsibilities about trees and their impact on a neighbour’s property are covered by the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (the Act).

What the Act covers

The Act covers trees that are:

• in urban areas
• on land that adjoins the neighbour’s property
• on land separated by a road.

The Act does not apply to trees:

• situated on rural land
• on land that is more than 4 hectares in size
• on land owned by a local government that is used as a public park
• planted or maintained for certain purposes, such as for commercial production
• planted as a condition of a development approval.

Definitions under the Act

What is a tree and when is it your responsibility

Under the Act, a ‘tree’ is more than what most people think of as a tree—a single trunk with branches and leaves rising to a significant height, such as a gumtree, fig tree or fruit tree. It also includes some shrubs and even dead trees.

A tree is defined as:

• any woody perennial plant or any plant resembling a tree in form and size, such as a shrub, bush, vine, bamboo, banana plant, palm or cactus
• a bare trunk, a stump rooted in the land including a dead tree.

And remember, you are responsible for the whole tree, not just what is above ground. If your tree’s roots affect your neighbour’s property, that is also your responsibility.

• It is your responsibility as a tree-keeper if the tree is ‘wholly or mainly situated on your land’; so even if the tree is on the boundary line, if the majority is on your land you are classed as the tree-keeper.
• You are also the tree-keeper if the tree was previously ‘wholly or mainly situated on your land’; so it can be proved a tree that was on your land damaged your neighbour’s property, you are still liable as the tree-keeper.
• Where a tree sits on multiple properties—for example where it is exactly on the boundary line between the properties—then each owner equally shares the responsibilities and liabilities.

Who is the tree-keeper?

The meaning of a tree-keeper is central to the Neighbourhood Disputes Resolution Act 2011.

In most cases, a tree-keeper is the registered owner of the land the tree is growing on. If you own the land, you are responsible for caring for and maintaining trees growing on that land. If you don’t know who owns the land, you can find out in the freehold land register under the Land Title Act 1994.

It’s not just individuals who could be a tree-keeper; it could be an organisation or body corporate.

The state is not considered a tree-keeper for certain types of land, such as a national park; however, the holders of certain interests in these lands are defined as tree-keepers, such as the holder of an occupation permit, stock grazing permit or a permit under a stock grazing permit.

Who is your neighbour?

Generally, a neighbour is someone who owns adjacent land affected by your tree.

A neighbour may also be an occupier of land—a tenant of a rented property—affected by your tree, except in the case of overhanging branches.

In the case of overhanging branches on rental property, the neighbour is the occupier’s landlord. However, an occupier can apply to the Queensland Civil and Administrative Tribunal (QCAT) for an order—see below for details of QCAT orders against you—if they can demonstrate that the landlord has refused to bring an application to get overhanging branches cut back.

If your tree is causing a problem

If a tree on your property is affecting one of your neighbours, you should:

• cut and remove any branches overhanging your neighbour’s land—as long as there is not a Vegetation Protection Order (VPO) protecting the tree
• ensure that in the next 12 months your tree does not, or is not likely to:
  • seriously injure anyone on your neighbour’s land
  • seriously damage your neighbour’s land or any of their property
  • unreasonably get in the way of your neighbour’s use and enjoyment of their land (for example if your tree drops branches into your neighbour’s yard and they can not use that area for fear of being hurt).

Is your tree interfering with the use and enjoyment of their land?

Your tree may be classed as unreasonably getting in the way of your neighbour’s use and enjoyment of their land if it:

• interferes with television or satellite reception
• interferes with the proper functioning of solar panelling
• shades sunlight from the windows or roof of their property if the tree branches are more than 2.5 metres above the ground
• obstructs a view from a dwelling on the land that existed when the neighbour took possession of the land, provided the tree is at least 2.5 metres high (see note)
• creates a substantial and ongoing accumulation of tree litter in their yard.

Note: QCAT has ruled many times that there must be a dwelling on the land when someone takes possession of the land. Obstruction of a view from vacant land on which a dwelling is subsequently built is not covered.

Normal tree litter—leaves, flowers, fruit, seeds or small elements of deadwood—would not be classed as substantial and therefore is not sufficient to get an order for the removal or cutting back of a tree.

What is a vegetation protection order (VPO)?

A VPO is an order a local council can make to protect a tree from being cut down or having its branches lopped (cut off). It is a way of preserving our natural assets.

A VPO can even protect a dead tree if a protected bird or animal—such as a possum—is using it to nest.

You can be fined if you damage a tree that has a VPO protecting it; even if the tree is causing problems on your land. Contact your local council for more about VPOs.

Check the Queensland Heritage Register and contact your local government authority (council) to find out if a tree is protected.

You may be able to overturn a VPO through QCAT.

Entering a neighbour’s yard

If you need to enter, or have someone enter, a neighbour’s land to cut and remove overhanging branches from your tree, you must give the neighbour written notice no later than the day before.

The notice must state who will cut and remove the overhanging branches, and the date and time they will do the work.

The work must be done within 30 days after the date you give the notice, and between 8.00am and 5.00pm, or as agreed.

Insurance

You must know your insurance obligations when engaging contractors and giving permission for people to enter land to carry out work.

• As the tree-keeper it is your responsibility to consider contractor’s insurance before engaging a contractor to do work on a tree even if it is on a neighbour’s land.
• It is your neighbour’s responsibility to consider public liability insurance before permitting someone to enter their land.