ARCHERS - connecting strata communities

The Neighbourhood Dispute Resolution Act 2011 was passed by the Queensland Parliament on 2 August 2011.  The Bill had been under consideration for some time, after having been tabled in Parliament originally on 25 November 2010.

Directly as a result of work undertaken by the Strata Community Australia (Qld) Legislative Committee, of which the writer is the Chairperson, critical amendments to the Bill were made before the Act was passed.

Particularly, the key provision dealing with nuisance trees was amended to make it clear exactly who the "tree-keeper" is when a tree is located within scheme land.  The tree-keeper is responsible for maintaining the tree and ensuring that it does not become a nuisance.  After the Act receives royal assent and is proclaimed into force, the tree-keeper, where a tree is located within scheme land, will be:-

• If the tree is located primarily within a lot, then the owner of that lot; or
• Where the tree is located primarily within common property, then the Body Corporate.

These rules will hold true even if the scheme was created under the Building Units and Group Titles Act 1980.

Disappointingly, Parliament did not amend the Bill in response to similar submissions made in relation to dividing fences.  The new Neighbourhood Dispute Resolution  Act 2011 is intended to work the same way as the old Dividing Fences Act 1953 with respect to dividing fences within community title schemes and between community title schemes and their adjoining neighbours.  That is, the adjoining owners in the following scenarios are intended to be the following people:-

• Where the fence is between a part of scheme land (whether a lot or common property), and other land which is not scheme land - the Body Corporate and the owner of the adjacent land;
• Where the fence is between two lots inside a community title scheme - each of the owners of those two lots; and
• Where the fence is between a lot and common property within a community title scheme - the owner of the lot and the Body Corporate.

The new Act is clear, when taken in conjunction with the Body Corporate and Community Management Act 1997 in relation to the first two examples above.  The new Act is not so clear, however, with respect to the third example.

While it is the writer's view that the old Rule still holds true, it may take a QCAT decision or two before enterprising, and disgruntled, owners cease trying to use the (avoidable) ambiguity.

The Act will commence on a date to be fixed by proclamation