Is Your Home Really Your Castle?

We all like to believe that Darryl Kerrigan was right and that our homes are our castles but what happens if your neighbours are making life difficult?

The most common causes of tension between neighbours include:-

  • Dividing fences between two properties – who pays for the design and upkeep?
  • Your neighbour wanting trees on your property cut back; and
  • Noise complaints.

The best option is always to try and resolve the difference of opinion through mediation to reach agreement, but where this can’t be achieved litigation is the next step. It is always better to resolve the dispute quickly and as amicably as possible, so both neighbours can continue to enjoy living in their homes peacefully for many years to come and avoid bitter disputes. Consider approaching a Dispute Resolution Centre for free neighbour mediation at an early stage if informal discussions with the neighbour don’t resolve the dispute.

Fence and Tree disputes can be dealt with in applications to the Queensland Civil and Administrative Tribunal (QCAT) under the Neighbourhood Disputes Resolution Act (2011). Often for these kinds of disputes, the parties are not represented by lawyers and represent themselves. While you can obtain legal advice, you generally cannot be represented by a lawyer in the Tribunal. The QCAT will require the parties to undertake mediation and conciliation conferencing before any trial date can be obtained in non-urgent applications. It is worth noting that any QCAT orders concerning fences or trees on residential land must be communicated to any potential buyer before the land is sold again in the future, and will be one of the searches undertaken in future conveyancing of the property.

Tree disputes between neighbours can be caused by interference with one neighbour’s use and enjoyment of their land from consequences of a tree on the neighbouring property. This can include:-

  • Risk of serious injury from falling branches (not normal tree litter including leaves, flowers, seeds and deadwood. That is usually not enough to get an order to cut back a tree)
  • Risk of serious damage to property (for example by falling heavy branches, or the tree entirely falling onto a neighbour’s property)
  • Interference with quiet enjoyment, including interference with solar panelling, television satellite reception or access to sunshine and light through windows.

In these cases, tree owners (usually the owner of the neighbouring property) can be held liable for damages as assessed by the QCAT. Sometimes the Orders made will be for annual maintenance of the tree, removal of overhanging branches with notice to the neighbour (in cases where access to the neighbouring property is necessary to complete the removal work), for a specialist arborist report to be obtained or even for the removal of the tree. Removal of a living tree is an option of last resort for the QCAT.

The Neighbourhood Disputes Resolution Act (2011) also provides a mechanism for notice to be given about cutting and removal of overhanging branches in circumstances where the branch extends at least 50 centimetres from the boundary line and the branches are less than 2.5 metres tall. In these cases, the neighbour receiving the notice is expected to comply with it. A notice to remove overhanging branches can only be given once every calendar year and must be accompanied by at least one quote for the cost of removal of the overhanging branch. Where a tree owner doesn’t comply in 30 days with the notice, the neighbour can take their own reasonable steps to engage branch removalists to safely remove the overhanging branches and forward the account for their reasonable expenses to the tree-owner (of not more than $300, confirmed by providing the receipt for payment of the expense).

Dividing Fence disputes include disagreements about the cost of erection or repair of fences marking a boundary line between properties. The starting point is both neighbours are required to share equally the costs of repairs to a fence or re-building it after destruction, for example due to storms or fires. Disputes arise where neighbours disagree on the style or cost of the fence. Again, the QCAT will encourage mediation and conciliation at the commencement of the application process.

To ask your neighbour to contribute to the cost of a dividing fence, a Notice to Contribute can be given under Part 4 of the Neighbourhood Disputes Resolution Act (2011) (“The Act”).

The neighbour is required to share the cost equally where the fence is “sufficient” as defined in section 36 of the Act. In considering sufficiency, QCAT will look a number of things including what the fence looked like previously, what is common in the area and whether or not there are any applicable Council regulations concerning fencing. A neighbour who wants to erect an expensive fence beyond what is actually required for “sufficiency” will be required to pay more toward the cost of the fence.

Noise complaints are made to different authorities depending on the type of complaint. Loud music and parties may be reported to police online at the QPS website. Reporting a Noise Complaint | Queensland Police Service

Organisers of “out of control” parties can be charged with criminal offences involving the imposition of fines or up to one year’s imprisonment. It is worth noting that, if the party is organised by a child, the child’s parents can be charged with the offence and subject to the same penalties. The Court can also order that the party organisers pay costs of the police response in dealing with out of control parties.

Police are also the agency to contact to complain about “hooning”; including loud car street racing and burnouts. Complaints can be made online at the QPS website Reporting Hooning or Traffic Complaint | Queensland Police Service It will be helpful to include descriptions of the vehicles involved.

Barking dog or squawking bird complaints are made to Council. Again, mediation is strongly encouraged between the parties and free neighbourhood mediation is available at Dispute Resolution Centres. Dispute Resolution Branch | Your rights, crime and the law | Queensland Government (www.qld.gov.au)

With all neighbourhood disputes, a calm, respectful and resolution focused attitude will be of great assistance in helping neighbours resolve issues quickly and effectively. Informal discussions between neighbours are always a good starting point. If further assistance is required, use of a free community mediation service with the assistance of an independent third party mediator will help neighbours in resolving their dispute. Filing an application in the QCAT is an option to consider if informal attempts to resolve the issue are unsuccessful.

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