QLD: Q&A Body Corporate, Safety Risks and Trees

This QLD article is about removing or pruning trees on common property.

Table of Contents:

• QUESTION: Our lot’s previous owners cut down trees but left the stumps. Who is responsible for the cost of removing the trees’ roots that are causing damage to exclusive use areas?
• QUESTION: Our lot’s previous owners cut down trees but left the stumps. Who is responsible for the cost of removing the trees’ roots that are causing damage to exclusive use areas?
• QUESTION: What is the shared responsibility for trimming vegetation that extends beyond the property line between neighbouring strata properties, particularly when disagreement arises over cost allocation?
• QUESTION: Common property trees cause damage to our pipes. We need to reline the pipes. Should the body corporate pay?
• 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?

Questions: Who is responsible for deciding whether palm trees planted by the developer on common property should be removed due to perceived risk, and who pays for the removal?

A lot owner has a grassed courtyard designated common property for the lot owner’s exclusive use. The development’s original landscaping involved planting specific palm trees. Some residents in our complex view the palms as a ‘risk’. Who is liable for:

1. assessing the risk/deciding that the palms must be removed, and
2. the costs associated with the removal if deemed a risk?

Answer: It is best to refer to the CMS and consult with a solicitor to determine who is responsible.

Some of the risks posed by palm trees include:

• palm tree fronds encroaching on the building structure which can block gutters
• palm tree fronds could serve as a fuel source in the event of a fire emergency
• palm trees with fruits that fall to the ground may become a slip hazard and attract fruit bats
• large dying fronds falling to the ground could result in head impacts and injury.

Maintaining exclusive use courtyards is generally the responsibility of the owner/tenants. Still, it is best to refer to the CMS and consult with a solicitor to determine who is responsible. In some cases, trees may be protected and require council approval to undertake any work. In the past, where risks were evident, some body corporates paid the cost, sometimes the cost was shared, and sometimes, the owner paid.

Dean Potgieter
Seymour Consultants
E: dean@seymourconsultants.com.au
P: 07 5573 4011

This post appears in the December 2024 edition of The QLD Strata Magazine.

Question: Our lot’s previous owners cut down trees but left the stumps. Who is responsible for the cost of removing the trees’ roots that are causing damage to exclusive use areas?

Our townhouse complex had three large trees removed by the previous owners, leaving the stumps behind. Over time, bushes grew from the stumps. When we purchased our unit in 2021, we were unaware these bushes were trees. During heavy rain in 2022, an exclusive use area flooded due to an overflowing stormwater drainpipe. We discovered the roots from these trees had grown under the slab and caused significant cracks in the pathway.

Other owners in the complex are experiencing similar issues. I’ve requested the body corporate hire a plumber to address the root problem, but my request has fallen on deaf ears. I don’t know if the developer ever submitted a landscaping plan for the complex. Who is responsible for the cost of removing these roots?

Answer: While you may not have planted the trees, you are likely to be responsible for them if they are on land you own or control.

Without looking at all the documentation, we can’t say who is responsible with any certainty but, generally, trees are the responsibility of the person or entity whose land they are on.

Your comment doesn’t say exactly, but it sounds like they are in a courtyard that either belongs to you or you have exclusive use. If so, it seems likely they are your responsibility.

Still, you might consider whether there are any caveats to this – is there a by-law that defines the responsibility or anything on the plans?

When you say your requests to the body corporate have fallen on deaf ears, I wonder what you mean. Is it that they haven’t responded or have responded with an answer you don’t like?

Generally, it should be straightforward for a manager to confirm the responsibility for trees concerning the documentation for the scheme. We don’t have access to the documentation here, but the government website discussing the responsibility for trees is a good resource and worth checking out: Your responsibilities as a tree-keeper

Lastly, from the perspective of responding to the question, it was good to have historical information about the issue. However, it doesn’t change the outcome from a determination of responsibility perspective. When you purchase a lot, you purchase it in its entirety, including any baggage that comes with its past. Caveat emptor – buyer beware – is the overriding rule, so while you may not have planted the trees, you are likely to be responsible for them if they are on land you own or control.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in Strata News #717.

Question: What is the shared responsibility for trimming vegetation that extends beyond the property line between neighbouring strata properties, particularly when disagreement arises over cost allocation?

Our strata property borders another strata property. We have a substantial tree and a few bushes that overhang the property line by no more than a meter.

The neighbouring strata insists we trim the vegetation to the property line. I obtained a quote from a tree lopper and proposed we split the bill. They argue that the full cost is our responsibility. Is this reasonable?

Answer: You are within your rights to ask the neighbour to pay half the costs of lopping, but they are within their rights to reject the proposal.

Trees on your property are your responsibility. You are within your rights to ask the neighbour to pay half the costs of lopping, but they are within their rights to reject the proposal.

So what happens next?

Your neighbour has the right to remove overhanging trees and branches back to the boundary line. It would be at their own expense, and they can return the cut branches to your property.

If the trees are big enough, they can also issue you with a Form 3 – Notice for Removal of Particular Overhanging Branches.

This applies only where branches overhang more than 50cm and are less than 2.5m above the ground—and to trees not covered by a vegetation protection order.

Form 3 is a formal notice requiring you to cut back the trees. If you don’t respond, the neighbour could cut back the trees and pursue you for costs.

Where the branches are more than 2.5m above the ground and overhang by 0.5m, the neighbour can apply to QCAT for an order to make you have the trees cut back or removed.

Legally, your trees are regarded as affecting your neighbour if, in the next 12 months, they are likely to:

• seriously injure anyone on their land
• seriously damage their land or any of their property
• unreasonably interfere with your use and enjoyment of their land (e.g., if a tree drops branches into your yard and you can’t use that area for fear of being hurt).

If any of those conditions apply and a dispute goes to QCAT, you might expect any finding to be in the neighbour’s favour.

Broadly then, the law is on your neighbour’s side. A tree on your property is affecting them, so it is your responsibility to ensure it is under control. If you don’t, the neighbour has various legal options to pursue resolution. The reverse would be true if their tree was affecting you.

More generally, you should consider your long-term relationship with your neighbour. Maybe you refuse to cut back the tree, and they won’t take action. But at some point, you will likely need help and cooperation from your neighbour – maybe a fence will need repairing, or their CCTV will capture an incident on your property. It could be anything. At some point, you might need their help. Accepting your responsibilities and having a good relationship with those around you should benefit your scheme in the end. Otherwise, play hardball, but karma tends to come around pretty quickly in body corporates.

The Queensland Government has an excellent guide on tree disputes and the legalities of tree ownership: What to do if a neighbour’s tree is affecting you.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in Strata News #690.

Question: Common property trees cause damage to our pipes. We need to reline the pipes. Should the body corporate pay?

We live on a corner block in a lifestyle estate on the Gold Coast. The trees on the common grounds affect the plumbing pipes under our house. We get plumbers to clear the roots yearly, but they keep growing. The ongoing maintenance of the pipes is costly. The plumber has reported that the pipes now need to be relined. Should the body corporate pay for the rectification?

Answer: This may depend on the amount of evidence you have.

You can certainly request that the body corporate pay for rectification. Whether they agree to that or are obligated to pay may be a different question.

Getting to the stage where payment is agreed upon may depend on the evidence you have available. As a starting point, you should have the invoices from your plumber stating that the roots have been cleared and a quote saying the pipes need to be relined. Perhaps these also identify the tree or trees causing a problem. If not, you could go back to the plumber for clarification. Perhaps you could submit photo evidence or arrange for an onsite meeting with the committee to review.

As an owner, you have a right to submit motions to the committee or a general meeting so you can arrange a quote for removing the tree or trees and the relining of the pipes and submit these for approval. If owners vote in your favour, the matter can be resolved. If not, you can also seek legal assistance via the Commissioner’s office or QCAT.

Legally, a tree is regarded as affecting you if, in the next 12 months, it is likely to:

• seriously injure anyone on your land
• seriously damage your land or any of your property
• unreasonably get in the way of your use and enjoyment of your land (for example, if the tree drops branches into your yard and you can’t use that area for fear of being hurt).

If the tree is likely to damage your pipes, it would seem you at least have the start point of a claim. Maybe point this out to the body corporate and say you would rather reach an amicable conclusion on that basis.

Think too that if there is an agreement to make payment from the body corporate, it may well be a compromise. Be prepared to meet the body corporate in the middle and see what happens.

See the Queensland Government website for more on tree disputes: What to do if a neighbour’s tree is affecting you.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in the February 2024 edition of The QLD Strata Magazine.

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: willmarquand@towerbodycorporate.com.au
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: willmarquand@towerbodycorporate.com.au
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:

1. Search the Council records, get the development approval and check for any landscaping plan.
2. Check the local laws in the Shire and see if there is anything relevant.
3. Check the by-laws to see if they have anything relevant.
4. 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).
5. Search the body corporate records for the gardener’s contract and any communications dealing with the issue.
6. 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.
7. 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’.
8. 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: michael.kleinschmidt@bagl.com.au
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:

1. Any of the following applies
   
   1. (ii) the tree has caused, is causing, or is likely within the next 12 months to cause-

2. 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: contact@visionstrata.com.au
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: willmarquand@towerbodycorporate.com.au
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.

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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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