This QLD article is about removing or pruning trees on common property.
Table of Contents:
- QUESTION: QCAT states that only the body corporate can make an application, not an owner. How does this work when the issue is about trees on common property affecting an owner’s lot?
- QUESTION: A tree on common property has caused damage to a lot owner’s paved backyard. Who is responsible for levelling the pavers?
- QUESTION: Most units in my block have fabulous river views. My view is blocked due to a few large shrubs. The committee will not trim the shrubs. What can I do?
- QUESTION: An owner has been asked to trim trees as the neighbour is not getting any light into their backyard. He has claimed the trees are for privacy and the Privacy Act overrides the bylaws. Is this correct?
- QUESTION: Due to safety concerns, I have requested trees on our site be removed or trimmed. We regularly experience high winds and are close to the coast. Is the body corporate in breach of their duty of care?
Question: QCAT states that only the body corporate can make an application, not an owner. How does this work when the issue is about trees on common property affecting an owner’s lot?
QCAT is often mentioned as the most appropriate place to resolve tree disputes. However, QCAT states that only the body corporate can make an application, not an owner.
How does this work when the issue is about trees on common property affecting an owner’s lot?
Answer: You should be able to file a claim against the body corporate if it is affecting your property.
The QCAT process can be confusing and frustrating for people making independent filings. I’ve used it myself as an individual. Even as a person with some understanding of how the process works, I found it to be the opposite of user-friendly.
However, you should be able to file a claim against the body corporate if it is affecting your property. If your case is falling between the cracks of the definitions, it may be better to file your case with the body corporate Commissioner’s Office that specifically deals with body corporate disputes.
It may be worth engaging a solicitor to assist. This can be expensive, but they know their way around the corridors of justice.
William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924
This post appears in Strata News #667.
Question: A tree on common property has caused damage to a lot owner’s paved backyard. Who is responsible for levelling the pavers?
Tree roots have caused the pavers in an owner’s backyard to lift and become uneven. The tree is on common property. Is the body corporate responsible for rectifying the pavers in the owner’s lot?
Answer: If a tree on body corporate property affects pavers in an owner’s courtyard, responsibility for rectification is likely to sit with the body corporate..
If your neighbour’s trees are affecting you, your legal rights are covered by the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 .
This Act is fairly clear in stating that responsibility for a tree rests with the person known as the ‘tree-keeper’ – essentially, the person whose land the tree is on. The Act provides a fairly broad definition of a tree. It includes branches and roots and extends to dead trees and shrubs.
A tree belongs to the tree keeper if it is ‘wholly or mainly’ situated on their land. So even if it is on a boundary, responsibility sits with the majority side.
On that basis, if a tree on body corporate property affects pavers in an owner’s courtyard, responsibility for rectification is likely to sit with the body corporate. And, vice versa, if an owner’s tree affects body corporate property, the owner is responsible for the rectification.
If you are an owner or a body corporate affected, the first step to resolution may be to start a correspondence highlighting the rules and asking for rectification. You may need to submit a quote to rectify your property once the roots have been removed.
If you want to proceed more formally, you could submit a committee motion to resolve the issue. Interestingly, the government has created an application form for the submission of overhanging branch disputes, but I couldn’t find one for disputes about roots. It would be good to know if any readers have further details on this.
If you are having problems with your body corporate, submitting a committee motion to resolve the issue may be worthwhile. Even if the response is negative, that formally sets out the position of the body corporate, and you can use that as part of your submission. If you can’t resolve this, you may need to make an application through QCAT or the BCCM. Neither process is quick or straightforward, but it may be necessary if you need to assert your rights.
The Government website has lots of good information about your rights and the steps you can take if you are affected by a tree: Queensland Government: Disputes about fences, trees and buildings
William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924
This post appears in Strata News #667.
Question: Most units in my block have fabulous river views. My view is blocked due to a few large shrubs. The committee will not trim the shrubs. What can I do?
I reside in a block of units directly across from a river. The unit block is ironically named ‘Riverview’. I reside on the raised, end ground floor apartment in a block with seven units on the same level. All other units have shrubs and plants trimmed well below their balcony rails. They have fabulous river views. However, I have three large shrubs in front of my unit that are approximately 30cm to 60cm above my balcony rail and impede my view of the river.
I have requested these shrubs are trimmed below my railing. However, the committee said the shrubs looked nice from the street and refused to trim them. This is causing me stress. How do I get the shrubs trimmed?
Answer: Follow these eight steps.
In the words of the immortal Kamahl, ‘Why are people so unkind?’. I suspect Kamahl was making a direct reference to your committee.
If I was you, this is what I would do assuming those plants are on the common property:
- Search the Council records, get the development approval and check for any landscaping plan.
- Check the local laws in the Shire and see if there is anything relevant.
- Check the by-laws to see if they have anything relevant.
- Go back over all your old photos, and find any where the bushes were trimmed to the lower level, were not there, or were another species that were not causing a problem (i.e. evidence that in times past, view interruption was not an issue).
- Search the body corporate records for the gardener’s contract and any communications dealing with the issue.
- Depending on the results of those investigations, lodge an owner’s motion to be voted on by the committee to have the bushes trimmed and to keep them trimmed.
- If the committee votes’ no’, and you have evidence that the bushes were, in fact, not an issue in the past (for example, they were trimmed lower, or a different species etc.), and you think you can prove that your use and enjoyment of your land is subject to ‘substantial, ongoing and unreasonable interference’ by virtue of the issue, then lodge a dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, against the body corporate as the ‘tree keeper’.
- In the alternate, set up a conciliation application against the body corporate for making an unreasonable, and thus unlawful, decision to refuse the trimming. Now, anyone who gets to steps 7 or 8 should get a lawyer on board before they start the proceeding!
Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: [email protected]
P: 07 5406 1280
This post appears in the August 2023 edition of The QLD Strata Magazine.
Question: An owner has been asked to trim trees as the neighbour is not getting any light into their backyard. He has claimed the trees are for privacy and the Privacy Act overrides the bylaws. Is this correct?
Our body corporate asks owners to keep trees and shrubs to a height of around 2 metres for easy maintenance. The Body Corporate has asked a lot owner to trim trees located in his exclusive use area. A request had been submitted by the neighbouring resident backing onto this property stating that the trees are blocking sunlight to his washing line and garden and he does not get any sun in his backyard.
The lot owner with the trees claims his trees are for privacy. He states he has sought outside advice on this matter and been advised that Privacy Laws overrule by-laws. If the body corporate persists with their request, he will only trim his trees when all other lot owners have done theirs. Are his claims about privacy laws correct?
Answer: Owners do have a right to natural sunlight and if a tree was blocking this, it could be deemed to be interfering with the owners’ rights.
If both owners are part of the same scheme, the body corporate may have jurisdiction over this matter.
The issue here is a tree located within the boundary of an area of common property that is the exclusive use yard area of a lot.
Firstly, is there is a by-law covering the maintenance of this area? If so, what are the requirements of this by-law? Is there a by-law that requires all trees and shrubs to be kept at a height of 2 meters as asked by the body corporate? If there is and the trees are higher than 2 meters, then the owner is in breach of the by-laws and the body corporate can take action.
If there is no such by-law then the next matter for the body corporate to consider is, if this tree causing damage to common property. For example, if branches are overhanging common property roof gutters which may cause damage to these. Is the tree in poor condition/health and is there a risk of branches falling or the tree itself falling and causing injury or damage. If yes, then the body corporate may have cause for pruning or removing the tree. If more than one owner is not complying with any relevant by-law then the body corporate should be fair handed and apply the same rule to all.
If the owner does not comply with the body corporate request, then they are in breach of the by-laws and you can issue with them a Formal Contravention Notice, Form 10 Continuing Contravention Notice. If the owner does not comply with the Notice within the specified time limit, then the body corporate can lodge a conciliation application with the Office of the Commissioner for Body Corporate and Community Management (BCCM).
Such dispute applications should not be looked at as being a threat but more for calling on professional independent assistance with a dispute.
If the owner is not in breach of any by-law and/or the tree is not causing any damage to common property, then there is no jurisdiction with the BCCM for a dispute to be considered. This would be a civil matter between the two owners and come under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.
Owners do have a right to natural sunlight and if a tree was blocking this, it could be deemed to be interfering with the owners’ rights in this regard.
Chapter 3 Trees
46 When is land affected by a tree
Land is affected by a tree at a particular time if:
- Any of the following applies
- (ii) the tree has caused, is causing, or is likely within the next 12 months to cause-
- Substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.
Depending on the circumstance, (b) could include obstruction of sunlight. There is nothing that I can see that states Privacy. However, this would be a matter for QCAT.
Karen Thompson
Vision Strata
E: [email protected]
P: 07 5630 6546
This post appears in the November 2022 edition of The QLD Strata Magazine.
Question: Due to safety concerns, I have requested trees on our site be removed or trimmed. We regularly experience high winds and are close to the coast. Is the body corporate in breach of their duty of care?
Due to safety concerns, I have requested trees on our site be removed or trimmed. If the trees fall, they would fall directly onto my first floor unit roof and balcony.
We are situated just 600 metres from the beach and regularly experience high winds and cyclones. The onsite manager and the previous Chairperson have indicated that the trees have been an ongoing concern, yet nothing is done.
Is the body corporate in breach of their duty of care as per Qld legislation?
Answer: The danger posed by a tree should really be assessed by an arborist. You could write to the committee to request this.
In terms of the legislation, the basic requirement in the standard and accommodation modules for maintaining the common property is stated as:
The body corporate must maintain common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition.
Maintaining a safe site is part of keeping a property in good condition, and that includes ensuring that trees don’t pose a danger either from falling branches or falling down completely.
Assessing the danger posed by a tree should really be done by an arborist. If you have a number of trees at the site that may be of concern, it would seem to make sense to engage someone to do that.
As a start point, you could write to the committee to request this. If they don’t agree you could table a formal motion at either the next committee meeting or general meeting to have the matter voted on.
If you really think it is dangerous, you could make an application to the commissioner’s office to force the body corporate to carry the work out. You might need to get your own report done to facilitate this. If you felt the issue was serious enough, you might engage a strata solicitor to help your applications. If you have a report and there is a risk, you might also let the scheme’s insurer know.
In terms of whether the body corporate is in breach of its duty of care, it might depend on the level of risk and what activity is being taken to mitigate this. From the question, it seems like you only have the opinion of non-experts. The trees are listed as a ‘concern’, but that word can cover a wide range of possibilities. If there is an obvious, active risk that is not being resolved that could be really problematic? Council might help if you contacted them about an issue like that. Otherwise, it is hard to make a case for this kind of thing unless substantiated evidence of a risk is being ignored.
William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924
This post appears in Strata News #597.
This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
Have a question or something to add to the article? Leave a comment below.
Read next:
- QLD: Owner Improvements
- QLD: What are the Body Corporate Requirements When Renovating Your Apartment
- QLD: Q&A Safety Hazards and Risk in a Body Corporate
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Question: Neighbours have trees whereby the branches overhang onto my property, dropping leaves etc into the gutters which the Body Corporate had cleaned. Letters from myself and the Body Coporate have been provided to the neigbours to no avail. The Body Corporate held a meeting to lodge forms through QCAT which would cost $1,500 with their solicitors. The voting came back as NO to lodge due to the cost.
What is my next option, as I am not able to lodge through QCAT, even though I am the owner and the Body Coporate, and neighbours do not seem to bother.
The Queensland Government provides a detailed guide as to how to manage tree disputes:
https://www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings/resolving-tree-and-fence-disputes/what-to-do-if-a-neighbours-tree-is-affecting-you
Have you followed all the steps listed there, including submitting a form three.
Otherwise, the QCAT process is frustrating so I can understand some reluctance on the part of owners to pay for this but it is worth remembering that the the body corporate has an obligation to maintain the common property. The body corporate has to act on that. As such, you could challenge the decision of the body corporate via the commissioner’s office. More practically though, you don’t need a solicitor to make a QCAT application – would the body corporate object to you completing the forms and representing them in this issue?
Many of the articles give QCAT as the most appropriate place to resolve tree disputes. However, QCAT state before starting an application that a unit owner cannot make an application, only the Body Corporate can.
How does this work when the issue is about trees on common property affecting an owner’s lot?
We have responded to your comment in the article above.
Re “Trees, Winds and Duty of Care” per WilliamM #597 Aug 24 2022.
I am concerned about the reference to the body corporate’s ‘duty of care’ in the same context of the rule that “the body corporate must maintain common property in good condition…” This duty to maintain is a statutory duty which I’m told is absolute…and (probably?) not discharged by taking all reasonable steps to mitigate the risk. The risk to the body corporate is that if the tree is common property and if it comes down because of high winds and damages other property, then surely the bc has breached its duty to maintain common property and is liable…QED?. With an absolute duty like this, is it not better for the body corporate to err on the side of caution before any damage is done?
In a time of increasing insurance premiums PLUS higher Excess provisions leaving someone left to cover the increasing gap between damages -v- compensation, all committees should be focussed on the risks posed by the absolute nature of the duty to maintain.
Hi,
Thanks for your comment. As ever it is hard to say without knowing all of the information. Whenever the body corporate is advised of a risk or safety issue it should do what it can to establish the facts and move forward on that basis. If that is not happening for some reason then the individual owner who reported the issue has avenues available to them to pursue the matter further. That’s the advice that can be given. I think you have to be a bit cautious in raising that level of risk and the rectification requirement too high before establishing those facts. Yes, body corporates should usually err on the side of caution but I’d be careful of confusing that with a definitive directive in terms of how to proceed as most situations rarely present themselves in absolutist terms. In other words, everyone should do what they can to try and see the wood for the trees. 🙂
Yes you are correct. Why does this happen?
My elderley person’s opinion is because OC owners throughout Australia have not yet organised State- based ‘unions’ with millions of owners with funds of many millions of dollars and most importantly union lawyers engaged to efficiently handle their strata breaches. The mere existence of these unions should be enough for any statutory breaches to be rapidly rectified.
I know that we are unable to remove a tree without Council approval, as we are covered by an approved landscape plan. This does not prevent the ability for a resident to apply to Council to have a tree removed.
Hi,
If the tree is on the common property it would be owned by the body corporate so I don’t see that an individual owner could apply to have it removed as they don’t individually own the tree. If there is a risk or safety issue posed by the tree then an individual could report the matter to council. If council then mandated that action were required it would probably require this from the body corporate.
Thanks,
Will