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:
- 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: contact@visionstrata.com.au
P: 07 5630 6546
Leave a Reply