Neighbourhood Dispute – Storm Damage

With the recent severe weather events battering the South-East Queensland, it is imperative you understand your obligations as a neighbour and a tree keeper to minimise damage that may result to yours or your neighbour’s property. Generally, any damage to a property arising from severe weather events are covered by insurance, however, there are instances where you or your neighbour could be held liable for the damage, which can include contributing to the dividing fence repairs or compensating an adjoining neighbour for the damage to their property.

Dividing Fence

In accordance with s21 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (‘the Act’), adjoining owners are each liable to contribute equally to carrying out fencing work for a dividing fence. Whether the dividing fence requires rectification due to reasonable wear and tear, or damage caused by severe weather events, this is a reasonable starting point for adjoining owners. However, if it can be established that a neighbour has caused or contributed to the damage to the dividing fence through their actions or inaction, they may be held liable for the costs required to rectify the dividing fence. An example includes an adjoining neighbour that has failed to maintain the trees located within their property, which during a severe weather event the trees have fallen causing damage to the dividing fence.

This then begs the question, what if the tree does damage to an adjoining owners’ property, can you be held liable for the damage?

Fallen Trees

Yes, in certain circumstance you can be held liable for damage to an adjoining owners’ property resulting from a neglected tree that falls during a severe weather event. Under s52 of the Act, a tree keeper is responsible for cutting and removing any branches that overhang a neighbour’s land and is also responsible for ensuring that the tree does not cause serious injury to a person, serious damage to a person’s land or any property on a person’s land.

Case Note 1

In the matter Giallousis v Malcolm [2014] QCATA 337 a branch from a tree on Mr Giallousis’ property fell onto the power lines running from the street to Mr Malcolm’s house. Mr Malcolm lost power. Mr Malcolm later arranged for the branch to be removed and power restored, as well as arranging for further repairs to his house that he considered had been caused by the fallen branch. Mr Malcolm subsequently filed a claim for $3,455.70 as compensation for the damage.

The Tribunal confirmed that the Act generally provides some protection to a tree-keeper in circumstances where a severe weather event has occurred. However, it does not completely absolve a tree-keeper from all liability if a tree falls during a storm. The relevant factors the Tribunal will consider are contained within s73 of the Act and includes but is not limited too:

  • Whether the tree-keeper neglected or failed to maintain the tree; and
  • Whether the tree may be a particular risk if there is severe weather event and
  • Whether it could have been reasonably foreseeable that damage would ensue.

It was acknowledged by the Tribunal that an applicant who brings a claim against a neighbour bears the onus of establishing that they took reasonable steps to notify the tree-keeper of the issue and that they took reasonable steps to prevent or rectify the injury or damage in accordance with s74 of the Act.

In this instance, Mr Malcolm provided evidence that highlighted that the tree had been neglected, had been undermined and was top heavy. The Tribunal formed the opinion that the way the tree fell forward onto the power lines, would not have been rectified by trimming the tree. As such, the Tribunal did not require Mr Malcolm to take steps to notify the Mr Giallousis of the issue or prevent the damage.  The Tribunal accepted majority of Mr Malcolm’s claim and ordered that Mr Giallousis pay Mr Malcolm the sum of $2,950.70.

            Case Note 2

In Inslay v Wilson [2018] QCAT 79, the Mr Inslay brought an application against Mr Wilson for compensation in the sum of $25,000.00, as Mr Wilson’s trees had fallen during a cyclone and had damaged Mr Inslay’s house and car.

Mr Inslay had attempted to speak with Mr Wilson on at least three (3) occasions regarding his trees that were growing to extreme heights. However, had never formally requested that Mr Wilson remove the specific trees prior to the trees falling or never provided Mr Wilson with a report by an arborist or any other relevant information from an expert about the likelihood of the specific trees falling in the direction of his house.

The Tribunal in this instance were not satisfied that Mr Inslay complied with s65 of the Act, as no evidence was provided to confirm that:

  • Mr Inslay had made a reasonable effort to reach an agreement with the tree-keeper; or
  • Mr Inslay had taken all reasonable steps to resolve the issue under any relevant local law or local government.

The Tribunal dismissed the application as Mr Islay failed to establish that on the balance of probabilities he was entitled to compensation, as the Tribunal were of the view that the damage was caused by the cyclone (level 5) rather than an action or inaction of Mr Wilson. On this basis, the Tribunal were not satisfied that an order for compensation against Mr Wilson was justified.

Summary

In summary, as a neighbour and a tree-keeper you have a responsibility to ensure that you maintain any trees located within your property to prevent the risk of damage or injury to another person or their property. You can be held liable for the damage caused to a neighbour’s property, even in circumstances where the tree fell due to a severe weather event.

If you need assistance in relation to a neighbourhood dispute, please feel free to call our office on 07 5444 4750 or email at [email protected]