Sunlight, Views, and Trees: 5 Tips to Handle Neighbourly Disputes

Sunlight, Views, and Trees: 5 Tips to Handle Neighbourly Disputes

The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011[1] (NDA) enables the Queensland Civil and Administrative Tribunal (QCAT) to resolve disputes arising from the impact of trees on neighbouring properties. Here are a few pointers explaining the operation of the jurisdiction in the context of strata title schemes in Queensland.

Tip#1 – be sure who is a neighbour or tree keeper

There are some key terms to be familiar with. A property owner, or their tenant, who wants a result is a ‘neighbour’.  A body corporate[2] for a scheme can in principle be a neighbour but they are rarely involved in an NDA dispute in that capacity. More typically an owner of a lot in the scheme or their tenant will be affected by excessive leaf litter, or be concerned about danger from dropping branches, and they can apply for relief without involvement of the body corporate. The other key term is ‘tree keeper’, being the owner of the land on which the troublesome tree is situated.

In a recent QCAT case [3] where the offending tree was situated on common property of an adjacent scheme, and where the tree keeper was accordingly the body corporate for that adjacent scheme, the body corporate claimed that lot owners in an adjacent scheme lacked standing, i.e. they were not the proper neighbour for the purposes of the NDA. The tribunal member found the opposite and emphasised that the NDA confirmed that ‘each’ [4] of a lot owner in a scheme or the body corporate can be the neighbour who makes the application per the NDA. The tribunal member also iterated that a body corporate is the tree keeper per the applicable definition in the NDA[5] where the offending tree is situated in the scheme’s common property. It follows that where a scheme is configured by a standard plan[6] and the tree is situated on an owner’s lot, then the lot owner would be the tree keeper.

QCAT can order a tree keeper to prune offending branches of a tree to ensure that the tree doesn’t cause ‘serious injury to any person, serious damage to the neighbour’s land or any property on their land or substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land’ [7].

Tip#2 – if in doubt about location of the offending tree, insist on an identification survey

In another recent QCAT case[8], a body corporate was on the receiving end of an application by adjoining owners who claimed that multiple trees on the common property were adversely affecting them, but a preliminary issue arose as to the precise location of the trees. An identification survey demonstrated that several of the trees were on the first applicant’s land, others were on the second applicant’s land, and none of the trees were in fact situated on the adjacent scheme land. So the body corporate was not the tree keeper.

Tip#3 – QCAT has no jurisdiction if the neighbour is a lot in a scheme where the tree keeper is the body corporate for the same scheme

We can dispose of this short point quickly. Another recent decision[9] confirms that the dispute resolution provisions of the BCCMA, and not the NDA, are the only route for a lot owner in a scheme who wants a tree in the scheme’s common property to be trimmed or removed.

Tip#4 – watch out for a condition in a development approval (DA) that the tree has to be planted or maintained

If a DA for the adjacent property contains a condition requiring the preservation or planting of trees and their maintenance, then the NDA is not applicable under a specific jurisdiction exclusion in the NDA[10]. In this case the local government would be the final arbiter where the adjacent owner is affected by the tree/s concerned. This issue came into focus in 2 recent QCAT cases. In the first[11], the Application was dismissed because of clear evidence that the tree was one of several which the DA required be planted within the property boundary. In another case [12],  heard by the Queensland Civil and Administrative Appeal Tribunal (QCATA) on appeal from QCAT which had determined that it had jurisdiction (and the DA exemption did not apply), the evidence for the exclusion to apply was far less satisfactory. In its fight to prevent the removal of a substantial Norfolk Island Pine, the body corporate as tree keeper claimed that the exclusion applied but was unsuccessful because the DA condition said that any trees exceeding a minimum girth were not to be removed without consent of the local government’s Chief Engineer. However the DA went on to say that prior to design or construction work commencing, arrangements were to be made with the local government’s Environmental Officer to identify trees which were to be preserved. Absent relevant evidence as to girth of particular trees at the time of the DA and any such consultation with the Environmental Officer, QCATA dismissed the body corporate’s appeal.

Tip#5 – use the NDA with care to preserve sunlight or a view – plus the more assured route

QCAT can order pruning or removal of a tree exceeding 2.5 m in height to preserve the neighbour’s access to sunlight, or to preserve a view, but stringent criteria apply. For an order enabling access to sunlight there must be ‘severe obstruction’[13] of sunlight to a window or roof.  For preserving a view, not only must the obstruction by the tree be severe, but the view must have existed when the neighbour took possession of the land.[14] QCAT recently dismissed an application[15] where the evidence was that the offending trees were already in existence on the tree keeper’s land when neighbour bought their lot in the scheme and the buyer could not produce any reliable evidence of the view that existed at the time of purchase.

The less contentious way to ensure unimpeded interference with views is to rely on an easement. The Queensland Supreme Court recently refused an application to modify an easement which secured for the benefited property ‘unimpeded access and enjoyment of light and air to through and for the dominant tenement and the windows, lights and apertures of the existing building or later building above …(a stated elevation)’[16].  Applications to modify easements raise a whole other range of considerations and are never granted lightly.

– Phil Pennington, Special Counsel

© Bugden Allen Group Legal Pty Ltd. All information contained in this article is of a general nature only and you should obtain specific legal advice in relation to any property-related affairs on any of the topics mentioned

[1] For the NDA and sections mentioned – https://www.legislation.qld.gov.au/view/html/inforce/current/act-2011-025

[2] Building Units and Group Titles Act 1980 applies to schemes registered before 13 July 2000 and Body Corporate and Community Management Act 1997 applies to schemes created after that date

[3] Morton & Anor v The Body Corporate for Halcomb Manor CTS 33521 [2024] QCAT 374

[4] Section 49(1)(a) of the NDA

[5] Section 48(1) of the NDA

[6] Scheme land can be configured either by a ‘standard plan’, where the boundaries are surveyed land points, or by a ’building format plan’ where the owner’s lot boundary is midway between the interior and exterior of a building. In the latter, the grounds external to the building is common property.

[7] Paraphrasing sections 66(2)(a) and (b) of the NDA

[8] Ginardi Wright Holdings Pty Ltd and Anor v Body Corporate for Whitehaven CTS3635

https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QCAT/2024/321.html

[9] Jenkin v Body Corporate for Gemstone – Stones Corner CTS 50567 [2024] QCAT 287

[10] Section 42(4)(c) of the NDA

[11] Conway v The Station Quarters CTS 45738 [2024] QCAT 420

[12] Body Corporate for Oceana on Broadbeach v 21 Broadbeach Blvd Pty Ltd & Ors [2024] QCATA 65

[13] Section 66(3)(b)(i) of the NDA

[14] Section 66(3)(b)(ii) of the NDA

[15] Van Bovene v Gay [2024] QCAT 319

[16] Litfin v Wenck [2024] QSC 170