What to do if a neighbour's tree is affecting you

Trees are a common cause of disagreement between neighbours. Disputes can be about:

• branches overhanging your fence
• branches or fruit dropping into your yard
• roots causing damage to your property
• branches blocking sunlight from solar panels or TV reception.

There are a number of things you can do if your neighbour’s tree is affecting you in this way; however, if possible you should always talk about a solution with your neighbour as a first step.

It is always best to keep on good terms with you neighbour and resolve any potential tree issues between you before they get out of hand. This will be quicker, cheaper and less stressful than taking legal action. Our step-by-step guide to resolving tree and fence disputes can help.

Your legal rights concerning trees growing on a neighbour’s land which are affecting you are covered by the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.

Find out 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 neighbouring land the tree is growing on. 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.

What you can legally do yourself

If you have a neighbour’s tree hanging over your land, you can:

• 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 do not have to return anything you trim from the neighbour’s tree but you may do so.

When exercising the right of abatement, take care to comply with any applicable tree or vegetation protection orders.

Written notices to remove overhanging branches

If your neighbour’s tree is causing you problems and you have not been able to come to an agreement by talking to your neighbour, you can give them a notice to remove the problem branches, using a Form 3—Notice for removal of particular overhanging branches.

This applies only where branches overhang more than 50cm and are less than 2.5m above the ground—and to trees not covered by a vegetation protection order (a local council order protecting a tree from having its branches lopped (cut off).

The notice must:

• state a time by which the branches must be removed (at least 30 days from the date your neighbour receives the notice)
• ask your neighbour to give at least 1 day’s written notice of when the branches will be removed, showing
  • who will do the work
  • the day it will happen
• give permission to your neighbour or their contractor to enter your land on the agreed day between 8am and 5pm
• include at least 1 written quote for the cost of the work and a copy of part 4 of the Act.

If your neighbour does not remove the branches by the specified time, you can remove them yourself or have a contactor remove them at your neighbour’s expense—they are liable to pay up to $300 a year for removing branches from their trees.

Out-of-reach branches

Where tree branches are more than 2.5m above the ground and overhang by at least 0.5m, you can apply to the Queensland Civil and Administrative Tribunal (QCAT) for an order.

Resolving tree disputes through QCAT

QCAT can help resolve neighbourhood tree disputes. QCAT can make a legally enforceable decision on the matter. Going to QCAT should be seen as a last resort. It is much better if you can resolve the problem together and stay on good terms with your neighbour.

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 (e.g. if the tree drops branches into your yard and you can’t use that area for fear of being hurt).

Risks posed by a tree and interference with your use and enjoyment of your land

Your neighbour’s tree may affect your land if the tree has posed, currently poses or may in the future pose a risk of causing:

• serious injury to a person
• serious damage to your land or property on your land.

Your neighbour’s tree may unreasonably interfere with the use and enjoyment of your land if it:

• interferes with television or satellite reception
• interferes with the proper functioning of solar panelling
• shades sunlight to a window or the roof of your dwelling if the tree is at least 2.5m high
• creates a substantial and ongoing accumulation of tree litter in your yard
• obstructs a view from a dwelling on the land that existed when you took possession of the land provided the tree is at least 2.5m high (see note).

Note: QCAT has ruled on numerous occasions that there must be a dwelling on the land when you took 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 usually not sufficient to obtain an order for the removal or cutting back of a tree.

Applying to QCAT for an order

When you are affected by a neighbour’s tree and you cannot resolve the issue any other way, you can apply to QCAT who can make a legally enforceable decision—an order—on the matter.

Find out more about QCAT.

Orders QCAT can make

QCAT can make different orders depending on your particular situation. This can include an order:

• that the tree must have annual maintenance work
• that 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
• for compensation or repair costs for damages to your property
• for an arborist—a tree specialist—to check and write a report on the tree
• that the tree is removed.

Failing to comply with an order under the trees chapter of the Act

If your neighbour fails to comply with QCAT’s order and they don’t have a reasonable excuse, they can be fined up to $100,000.