Andrew Suttie's slides on: Dividing Fences Trees Retaining Walls Parking/Towing Private Short-Term Letting as presented to Body Corporate Systems, 29th September 2015

1. Dividing Fences
Trees
Retaining Walls
Parking/Towing
Private Short-Term Letting
Presented by Andrew Suttie
for Body Corporate Systems

2. Dividing Fences

3. Dividing Fences
Dividing fences are dealt with under the
Neighbourhood Disputes (Dividing
Fences and Trees) Act 2011.
The definition of dividing fence is very
broad (even includes a moat) but does not
include retaining walls or part of a wall that
is a house, garage or other building

4. Dividing Fences
• A dividing fence must be on the
common boundary of adjoining land (or
elsewhere if it is impracticable to
construct a fence precisely on the
boundary)
• Neighbours must contribute equally to
building and maintaining a dividing
fence
• Pool fences are regulated under the
Building Act 1975

5. Dividing Fences
If there is no sufficient dividing fence
between two parcels of adjoining land, an
adjoining owner is liable to contribute to
carrying out fencing work for a sufficient
dividing fence.
Adjoining owners are generally liable to
contribute equally
An adjoining owner who wants a fancy
fence has to pay the difference between
that and a sufficient dividing fence

6. Dividing Fences
A sufficient dividing fence is:
• Between 0.5m and 1.8m in height
• Consists substantially of prescribed
material (wood, chain wire, metal panels or
rods, bricks, rendered cement, concrete
blocks, hedge or other common materials)
• The owners agree it is a sufficient dividing
fence
• QCAT decides it is a sufficient dividing
fence

7. Dividing Fences
Probably not a sufficient dividing fence

8. Dividing Fences
Definitely not a sufficient dividing fence

9. Dividing Fences
Not a sufficient dividing fence, but brilliant!

10. Dividing Fences
Before you build, demolish, alter or attach
something to a dividing fence and before you
seek a contribution from the adjoining owner
you need to:
• Notify the adjoining owner (Notice to
Contribute) and obtain their consent; or
• Obtain an order from QCAT
However, if urgent fencing work is required
because the dividing fence has been
destroyed or damaged and it is impracticable
to give notice to the adjoining owner, you
needn’t obtain their consent to restore the
fence to its previous condition (but you might
need to go to QCAT to get their contribution)

11. Dividing Fences
In community titles schemes:
• Where the dividing fence is between a lot
and common property, the adjoining
owners are the owner of the lot and the
body corporate
• Where the dividing fence is between 2 lots,
the adjoining owners are the 2 lot owners
• Where the dividing fence is between a lot
and a property outside the scheme, the
adjoining owners are the body corporate
and the owner of the neighbouring property
• However, a by-law can change the above
obligations.

12. Trees

13. Trees
Disputes about trees are also dealt with under
the Neighbourhood Disputes (Dividing Fences
and Trees) Act 2011.
The definition of tree is also very broad and
includes any woody perennial plant or any
plant resembling a tree in form and size such
as a shrub, bush, vine, bamboo, banana plant,
palm or cactus. It also includes a bare trunk, a
stump rooted in the land and a dead tree.

14. Trees
A tree-keeper has responsibilities and obligations
under the Act.
You are a tree-keeper if a tree is wholly or mainly
situated on your land. So, even if the tree is partly
located on the boundary between two lots, if most of
the tree is located on your lot, you are liable as the
tree-keeper.

15. Trees
If the tree is located centrally on the boundary of two
or more lots, each lot owner shares the responsibilities
and liabilities equally

16. Trees
A tree-keeper must:
• Cut and remove any branches overhanging
its neighbour’s land (subject to any
vegetation protection order – check at
Council for those)
• Ensure the tree does not cause, or is not
likely to cause within the next 12 months:
• Serious injury to anyone
• Serious damage to the neighbour’s land
or personal property
• Unreasonable interference with the
neighbour’s use and enjoyment of their
land

17. Trees
Unreasonable interference includes:
• Interfering with TV or satellite reception
• Interfering with proper functioning of solar panels
• Shades sunlight from the window’s or roof of the
neighbour’s property where tree branches are
more than 2.5m above the ground
• Obstructs a view that existed when the neighbour
took possession of the land if the tree branches are
more than 2.5m above the ground
• Creates a substantial and ongoing accumulation of
tree litter in their yard
• Normal amounts of tree litter (dropping leaves and
fruit) will not constitute unreasonable
interference)

18. Trees
If your neighbour’s tree has overhanging branches,
the common law right of abatement entitles you to
remove the overhanging parts (and you no longer
need to return them to the tree-keeper)
Alternatively, you can use the formal process under
the Act

19. Trees
The formal process applies only if the branches are
extending at least 50cm from the boundary and are no
more than 2.5m above the ground (for branches
higher than that – QCAT)
The neighbour can give the tree-keeper a Notice for
removal of particular hanging branches requesting it
remove the branches within (at least) 30 days
The notice must include a quote for someone else to
do the work
The notice gives the tree-keeper permission to enter
the neighbour’s land once the tree-keeper has agreed
to do the work and has given the neighbour a formal
response advising when the work is to be done and
the name of the person doing the work

20. Trees
If the time in the notice has elapsed and the tree-
keeper has not responded, the neighbour may remove
the branches or engage a contractor to remove them
and can claim up to $300 from the tree-keeper
(annually)
If the costs are not paid by the tree-keeper, the
neighbour can make an application to QCAT (minor
debt claim)

21. Trees
In a community titles scheme:
• If the tree is located on a lot, the tree keeper is the
owner of the lot
• If the tree is located on common property, the tree
keeper is the body corporate
• If the tree is located on a lot outside the scheme
and is affecting a lot or common property within
the scheme, the neighbour is the body corporate
• A by-law cannot alter the rights and obligations of
tree-keepers and neighbours under the Act

22. Retaining Walls

23. Retaining Walls
• A retaining wall is a structure that supports
excavated or filled earth
• An owner of land must not cause support to
be withdrawn from any other land or
building on the land (s179 Property Law Act
1979)
• An infringement of s179 is actionable in
nuisance. A nuisance claim may also arise
under the common law
• Remedies are damages and/or an injunction
to stop the act threatening withdrawal of
support.

24. Retaining Walls
• Where land is filled without providing an
adequate retaining wall and this causes soil
to fall on adjoining land and/or cause
damage to buildings, the owner is liable in
trespass at common law (and possibly in
nuisance).
• Retaining walls are also subject to planning
laws and may require development
approval (e.g. height of more than 1
metre).

25. Retaining Walls
Unlike the position with dividing fences,
usually the owner who derives the greater
benefit will be liable for the costs of
maintaining, repairing and replacing the wall
… so it’s often not clear who is responsible for
maintaining retaining walls

26. Parking/Towing

27. Parking/Towing
Problems:
• By-laws can’t impose monetary liability on
owners or occupiers
• By-laws can’t be oppressive or
unreasonable
• Committee has to make decisions that are
reasonable
• Body corporate is responsible for enforcing
the by-laws (and has to observe due
process)
• Body corporate cannot delegate its powers
(so building manager cannot “enforce” by-
laws)

28. Parking/Towing
Problems:
• Dispute resolution process in the BCCMA is
not effective to resolve parking disputes:
• Can’t impose fines
• Can’t tow
• Can’t delegate enforcement to building
manager
• Too slow to get an outcome –
particularly ineffective for emergencies
(i.e. vehicle blocking car park entry)

29. Parking/Towing

30. Parking/Towing
What can be done?
• Weigh up risk vs outcome:
o there is a risk that if someone’s car
is towed the owner will sue the
body corporate for the towing cost
o Reduce the risk by adopting a by-
law that enables the body
corporate to tow illegally parked
vehicles – ensure there is a process
including display of prominent
signage, log registration details,
give warnings before towing

31. Parking/Towing
What can be done?
• If an illegally parked car is owned by
someone who is not an owner or
tenant (or their guests) – then the
validity of the by-law is irrelevant
because that owner has no standing
under the BCCMA

32. Parking/Towing
The Building Manager’s role
• Caretaking duties in respect of by-law
enforcement have been eroded
because of the prohibition on
delegation by the body corporate
• Good building managers implement
systems to deal with illegally parked
vehicles and the by-laws consequently
never need to be “enforced”

33. Private Short-Term Letting

34. What’s the big deal?
Possible higher use of common
facilities by guests
= greater (unaccounted) cost to body
corporate

35. What’s the big deal?
Possible less sense of responsibility by
guests
= nuisance to others

36. What’s the big deal?
Guests unfamiliar with property
= safety issues

37. If the Body Corporate doesn’t want
short-term letting, what can it do?
• Change it’s by-laws?
NO CAN DO!
Body Corporate Laws

38. Section 180(3) of the BCCMA:
If a lot may lawfully be used
for residential purposes, the by-
laws cannot restrict the type of
residential use.
Body Corporate Laws

39. Can we amend the by-laws so short-
term renters are banned from having
parties and from using the pool and
other facilities?
NO CAN DO!
Body Corporate Laws

40. Section 180(5) of the BCCMA:
A by-law must not discriminate
between types of occupiers.
Body Corporate Laws

41. Can we impose a bond on an owner who
wants to operate short-term letting
in their lot and fines for renters who
misbehave?
NO CAN DO!
Body Corporate Laws

42. Section 180(6) of the BCCMA:
A by-law (other than an
exclusive use by-law) must not
impose a monetary liability on the
owner or occupier of a lot included
in a community titles scheme.
Body Corporate Laws

43. What can a body corporate do under
the BCCMA to deal with problems
arising from short-term letting?
• Review by-laws
• Noise
• behaviour
• Parking
• Use of common facilities
• Nuisance provisions
• Dispute resolution (but timing
issues!)
Body Corporate Laws

44. Any Questions?