NEIGHBOURHOOD DISPUTES RESOLUTION ACT Presented by Bronwyn Ablett

Transcription

1 NEIGHBOURHOOD DISPUTES RESOLUTION ACT 2011 Presented by Bronwyn Ablett

2 Overview The Act commenced on 1 November 2011 The objects of the Act are to: provide rules about dividing fences and trees to enable resolution of issues without disputes arising; and facilitate the resolution of disputes that do arise

3 Dividing Fences Section 7 (2) Neighbours must contribute equally to building and maintaining a dividing fence and not attach something to a dividing fence that unreasonably alters or damages it Section 7 (4) QCAT has jurisdiction to resolve a dispute about a dividing fence

4 Dividing Fences Parts 3 to 6 of Chapter 2 do not apply to a fence or part of a fence that is a barrier of a regulated pool under the Building Act 1975 Chapter 2 does not affect: a covenant or agreement between adjoining owners; a by-law under the BCCMA or BUGTA about a dividing fence; a law about retaining walls or rights of support, including easements of support

5 Dividing Fences Section 11 gives a very broad nonexhaustive definition of a fence, which does not include: a retaining wall; or a wall that is part of a house, garage or other building

6 Dividing Fences Section 12 defines a dividing fence to mean a fence on the common boundary of adjoining lands or on a line other than the common boundary in certain circumstances set out in the Act

7 Dividing Fences Section 13 defines a sufficient dividing fence for residential land as one that: is between a minimum of 0.5m and a maximum of 1.8m in height; consists substantially of prescribed material (wood, chain wire, metal panels or rods, bricks, rendered cement, concrete blocks, hedge or other material of which a dividing fence is ordinarily constructed) the owners agree is a sufficient dividing fence; QCAT decides is a sufficient dividing fence

8 Dividing Fences Section 20 (1) provides that an adjoining owner is liable to contribute to carrying out fencing work for a sufficient dividing fence (either by payment or provision of labour or materials) However, section 20 (3) provides that the above is only enforceable if: the adjoining owners have agreed about carrying out the fencing work; or QCAT has ordered that the fencing work be carried out Therefore, need agreement or order prior to carrying out work in order to recover contribution from adjoining land owner (except where urgent fencing work)

9 Dividing Fences Section 26 provides that where a fence is damaged or destroyed by a negligent or deliberate act or omission of an owner or a person on land with the owner s consent, the owner must restore the dividing fence. If the owner does not comply with section 26, the adjoining owner may give a notice to fence under section 31 or carry out urgent fencing work under section 31

10 Dividing Fences Section 28 enables urgent fencing work to be carried out without agreement or a notice under section 31, provided a notice is subsequently issued under section 32 Section 32 requires that the notice be in the approved form and state those matters in sub-section 32 (3): a description of the land; the reason the urgent fencing work was carried out; the type of fencing work carried out; any cost incurred and a receipt for that If within one month after the notice is given the adjoining owners have not agreed either may apply to QCAT for an order under section 35

11 Dividing Fences Section 31 provides for an owner to issue a notice to an adjoining owner for a contribution to fencing work The notice must be in the approved form and state those matters in subsection 31 (2): a description of the land and the line if the work is to construct or replace a fence; the type of fencing work proposed; the estimated cost, including labour and materials The notice must be accompanied by at least one quotation The owner giving the notice may propose that the cost is to be borne other than in equal proportions, provided those are stated If within one month after the notice is given the adjoining owners have not agreed either may apply to QCAT for an order under section 35

12 Dividing Fences - QCAT Section 34 provides that an owner may be represented by a real estate agent without leave Section 35 sets out the orders QCAT may make about a dividing fence: the line; the fencing work, including the kind of fence; the contributions; the time by which the work is to be carried out; any other necessary work, including for a retaining wall; that none is required; that an existing fence is sufficient; an amount of compensation payable for damage or destruction; the removal of an attachment

13 Dividing Fences - QCAT Section 36 sets out matters that may be considered to determine whether a fence is a sufficient dividing fence: any existing or previously existing fence; the purposes for which the two parcels of land are used or intended to be used; the kind of fence normally used in the area; whether the fence is capable of being maintained by the adjoining owners; any policy or local law about fences by a relevant local government

14 Dividing Fences - QCAT Section 37 provides that QCAT can make an order in the absence of an adjoining land owner when that owner cannot be located after making all reasonable inquiries The order continues to apply to the adjoining land owners even if either or both transfer the land after the order is made The adjoining land owner may apply to QCAT for a variation of the order within 1 month of being given a copy of the order

15 Dividing Fences - QCAT Section 38 provides QCAT with jurisdiction to make an order preventing an adjoining land owner from constructing or demolishing a dividing fence upon receipt of an application based on reasonable grounds The owner must give the adjoining land owner a copy of the application at least 1 day before the application is heard

16 Dividing Fences - QCAT Under section 39 an owner may apply to QCAT for an order requiring an adjoining owner to remove, modify or rectify a fence constructed or demolished without authorisation The owner must give the adjoining owner a copy of the application at least 3 days before the application is heard QCAT may also make an order in respect of the costs of the removal, modification or rectification

17 Dividing Fences If the adjoining owners cannot agree on the boundary for the purposes of carrying out fencing work for a dividing fence, either may give notice of the intention to have that determined by a cadastral surveyor Upon receipt of a notice, an adjoining owner may within 1 month either: (a) engage a surveyor to determine the boundary and provide written advice of the common boundary as defined by the surveyor to the owner; or (b) give the owner written advice of the common boundary if they are satisfied of the accurate position of the common boundary If an owner does not receive the written advice in (a), they may engage a surveyor to determine the boundary If the common boundary is in about the same position as the written advice in (b) the adjoining owner is not liable for any of the cost of the surveyor Otherwise, the adjoining owners are each liable for half the reasonable cost

18 Dividing Fences - Test Rosemary and David are adjoining land owners who cannot agree on the type of dividing fence to be constructed. Rosemary wants a 3 foot white picket fence, while David wants a 6 foot colour bond fence (to keep Rosemary from talking to him over the fence). Q 1. What can they do under the Act to resolve this dispute? Q 2. What can Rosemary do if agreement has not been reached and she sees a delivery of 6 foot colour bond panels to David s residence?

19 What is a tree for the purposes of the Act? A tree is any of the following, as set out in s45: a woody perennial plant; a plant resembling a tree in form or size such as bamboo, banana plant, palm or cactus; a vine; a bare trunk; a stump rooted in the land; or a dead tree.

20 Who is a tree keeper for the purposes of the Act? A tree keeper includes a body corporate for a community titles scheme if the tree is situated on common property under the BCCMA or the Building Units and Group Titles Act 1980

21 When is a tree situated on the land? Section s47(1) - a tree is situated on the land if the base of the tree is, or was previously, situated wholly or mainly on the land.

22 When is land affected by a tree? Section 46 sets out when land is affected by a tree if: branches from the tree overhang the land; the tree has caused, is causing, or is likely within the next 12 months to cause: serious injury to a person on the land; or serious damage to the land or any property on the land; or substantial, ongoing and unreasonable interference with the neighbour s use and enjoyment of the land; and the land: adjoins the land on which the tree is situated; or would adjoin the land on which the tree is situated if it were not separated by a road.

23 Who is a neighbour for the purposes of the Act? Each of the following is considered a neighbour under Section 49: if the land is recorded in the freehold land register, a registered owner of the lot and an occupier of the land; if the land is scheme land under the BCCMA then the body corporate for the community titles scheme; and if the land is a parcel of land that is the subject of a plan under the Building Units and Group Titles Act 1980, the body corporate for the plan.

24 Responsibilities of a tree keeper Section 52 cutting and removing any branches of the tree which overhang a neighbour s land, provided there is no vegetation protection order protecting the tree; ensuring the tree does not cause serious injury to a person on the neighbour s land or serious damage to a neighbour s land or any property on a neighbour s land or substantial, ongoing and unreasonable interference with a person s use and enjoyment of their land; if there is more than one tree-keeper then the responsibilities and liabilities will be shared equally between them.

25 Removing overhanging branches Section 55 provides that if a neighbour s land is affected by a tree because branches form the tree overhang the land and the neighbour wants these overhanging branches removed, they are encouraged to resolve the issue informally pursuant to Section 56, however the neighbour can either exercise the common law right of abatement (for example, cut the overhanging branches themselves) or use the formal resolution process set out under the Act.

26 Notice required under the Act to remove branches A neighbour may give a tree-keeper written notice and state a time of at least 30 days after the day the notice is given by which the branches are to be cut and removed under Section 57 at the tree-keepers cost but only if: the tree overhangs more than 50cm from the common boundary; and the branch is less than 2.5 metres in height. The notice must also ask the tree-keeper to give the neighbour a written notice as to who will be removing the overhanging branches, the day the work will be carried out and giving permission to the treekeeper under Section 57(3)(c) to enter the neighbour s land at an agreed date and time to perform the work. Section 57 provides that the notice must be accompanied by at least 1 written quotation giving an estimate of the cost of the work and a copy of Section 57 of the Act.

27 Notice required under the Act to remove branches cont. A limitation in the Act provides that the neighbour may not give notice under Section 57(5) if the neighbour has given another notice within the previous 12 months for any tree to the tree-keeper or anyone else who is a tree-keeper for the tree with the overhanging branches. The notes under Section 57(3)(c) remind neighbour s about their obligations with respect to public liability insurance prior to giving a person permission to enter the neighbour s land and tree-keeper s are reminded about their obligations with respect to contractor s insurance before engaging a contractor to carry out work on the tree. Care must be taken not to breach any vegetation protection order imposed over the tree by the state or local council. The relevant local council should be contacted to find out if a vegetation protection order is in place over a tree.

28 What happens if the neighbour does not respond and remove the branches? Section 58 applies if the overhanging branches are not cut and removed within the timeframe provided in the notice to the tree-keeper under Section 57(3)(a). In the event the branches aren t removed, the neighbour may cut and remove the overhanging branches or arrange for someone else to do so and the tree-keeper may, but is not required to, return the branches to the tree-keeper. The tree-keeper is liable for the reasonable costs and expenses incurred by the neighbour involved in cutting and removing the overhanging branches, to a maximum of $300, and the neighbour may recover this amount as a debt, with or without interest, in minor civil dispute proceedings under the QCAT Act.

29 When can a neighbour apply to QCAT? Section 59 provides a mechanism for a neighbour to apply to QCAT, where the neighbour s land is affected by a tree and the neighbour cannot resolve the issue using the process under part 4 of the Act, eg branches overhang the neighbour s land and the neighbour is seeking a remedy that is more than the cutting and removal of branches or the neighbour s land is affected by a tree other than because branches overhang the land or if the tree is more than 2.5 metres above the ground. To make an order about a tree, QCAT must be satisfied that: the neighbour has made a reasonable effort to reach agreement with the tree-keeper and taken all reasonable steps to resolve the issue under local law, local government scheme or local government administrative process; the tree-keeper has been given a copy of the application as required by Section 63, except when this requirement has been waived by QCAT.

30 Process of QCAT Application 21 days before the date the application is to be heard, the neighbour must give the treekeeper, government authority, if entitled to appear in proceedings relating to the tree, an occupier of the tree-keeper s land that would be affected by the order, each registered owner of the land, a copy of the application. If QCAT considers that the tree poses an imminent threat of serious injury to a person or damage to the neighbour s land or property then QCAT may waive the requirement to give a copy of the application and may vary the minimum period before the hearing of the application, if it considers appropriate in the circumstances.

31 Orders QCAT can make Section 66 Any orders it considers appropriate to prevent serious injury or to remedy, restrain or prevent serious damage to the neighbour s land or any property on the neighbour s land or substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour s land

32 Matters to be taken into account QCAT must take into account the following, when deciding to make an order under Section 66: the location of the tree in relation to the boundary; whether carrying out work on the tree would require any consent or other authorisation under another Act and whether such consent has been obtained; whether the tree has any historical, cultural, social or scientific value in respect of the Aboriginal cultural heritage, the Torres Strait Islander cultural heritage or is a registered place under the Queensland Heritage Act 1992; any contribution the tree makes to the local ecosystem, to biodiversity, the natural landscape and the scenic value of the land or locality, to public amenity, the amenity of the land on which it is situated, including its contribution relating to privacy, landscaping, garden design or protection from sun, wind, noise, odour or smoke; any impact the tree has on soil stability, the water table or other natural features of the land or locality; any risks associated with the tree in the event of a cyclone or other extreme weather event; the likely impact on the tree of pruning it, including the impact on the tree of maintaining it at a particular height, width or shape; the type of tree, including whether the species of tree is a pest or weed or falls under a similar category under an Act or a local law.

33 Overriding other laws Section 67 provides that if QCAT is satisfied the application was made because of a genuine dispute then it may make an order to carry out work on a tree, even though the work is restricted under a local law, or consent is withheld by the local government or the tree is subject to a vegetation protection order.

34 Failure to comply with QCAT order, lapsing and register Section 77 provides that a person who fails to comply with a requirement imposed by an order of QCAT, unless the person has a reasonable excuse is facing a maximum penalty of 1000 penalty units. An order lapses under the Act 10 years after the day the order was made unless the order expressly provides otherwise. QCAT is required under Section 79 to maintain an electronic register of the decisions made pursuant to the Act, which can be searched, for no fee, to obtain a certified copy of the information about an order that is included in the register.

35 Questions? Bronwyn Ablett Senior Associate NICHOLSONS Solicitors Level 12, 379 Queen Street, Brisbane QLD 4000 GPO Box 454, Brisbane, Queensland, 4001 P (07) F (07) E bha@nicholsons.com.au W