The Queensland government is proposing to provide clearer and more practical solutions to tree and fence issues in the community, with the release of the Neighbourhood Dispute Resolution Bill (Bill) for public consultation.

The Bill proposes to update and modernise the approach to resolving fence disputes, by replacing the 57 year old Dividing Fences Act (Act). The Bill removes present uncertainty by confirming that a dividing fence on a common boundary is owned equally by neighbours. The Bill provides a clear framework by setting out comprehensive forms that aggrieved neighbours can use to give adjoining land owners for contribution to fence construction.

The driving principle is that a sufficient dividing fence ought to be constructed between adjoining properties if requested. A clearer definition of what is a ‘sufficient dividing fence’ is also dealt with, which includes hedges but excludes retaining walls. However, flexibility is preserved as consideration of particular factors may be permitted, including the type of land (i.e. agricultural) and the type of proposed fence (i.e. the types of fences in the surrounding neighbourhood).

The Bill also focuses on public safety by proposing certain requirements regarding tree maintenance. The key development is the concept of a ‘tree keeper’, being generally the owner of the property where the trees are located. The tree keeper must ensure the tree does not cause injury or damage to a neighbour’s property. Property owners will generally be able to trim overhanging trees to the boundary line, and are not required to return the overhanging parts.

A key structural change is the proposal of a notice system requiring a tree keeper to arrange for removal of overhanging branches at the tree keeper’s cost. While the Bill provides ways for neighbours to avoid and reduce disputes, ultimate jurisdiction to decide disputes rests with the Queensland Civil and Administrative Tribunal (QCAT), which promotes a speedy, cost effective and straight forward resolution.

Importantly for property sellers, information regarding any application to or order made by QCAT about trees must be provided to potential buyers. If they do not do so, the buyer may terminate the contract at any time up until settlement. The deposit must be refunded within 14 days of the termination and the seller and the agent will be liable for the buyer’s reasonable expenses, including legal fees in relation to the contract. QCAT is required to maintain an electronic register of all orders made regarding trees, which is to be publicly available.

The public consultation period on the Bill is now underway, with feedback closing on 9 July 2010.

For further assistance or enquiries please contact:

Ian Hazzard on 07 3233 8976.