Who is liable if a neighbour's tree damages my fence or roof?

A fallen tree or dropped branch can cause immense property damage and immediate tension between neighbours. On the Gold Coast, where severe storms are a regular occurrence, fence and roof damage caused by trees is incredibly common. The central question for homeowners is usually straightforward: Who is paying for the repair?

The rules regarding trees and dividing fences in Queensland are straightforward and outlined in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.

Liability for Falling Trees: Negligence vs. “Act of God”

It is a common misconception that tree damage liability is automatic simply because a tree crossed a boundary. Under section 42 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, liability hinges on whether the tree-keeper committed a negligent or deliberate act or omission ¹. The word negligent is critical.

Whether liability attaches depends heavily on the condition of the tree:

• Healthy, well-maintained tree: If a healthy tree is toppled in a severe storm, the tree-keeper is generally not liable, as they can rely on the “Act of God” defence.
• Dead, diseased, or dropping limbs: If the tree was physically unhealthy, the tree-keeper is likely liable, because they knew or ought to have known the tree posed a risk ².
• Previously warned: If a neighbour formally put the tree-keeper on notice about the dangerous condition of the tree before the storm, the “Act of God” defence collapses entirely ³.

In short, the claimant (the damaged neighbour) bears the burden of proving that the tree-keeper failed out of negligence. However, courts have repeatedly held that failing to properly inspect and address an existing, visible hazard (like dead branches) satisfies this burden of proof (a principle solidified by the High Court in Schiller v Council of the Shire of Mulgrave).

If your tree causes damage, but only due to an unforeseeable freak storm, you may only be liable for replacing the fence to a “sufficient” standard, rather than full restorative damages.

The “Sufficient Fence” Rule

An essential factor to understand is the “sufficient fence” rule. Neighbours in Queensland are required to contribute equally to building and maintaining a “sufficient dividing fence” ².

If a fence is destroyed by your tree, you will be liable to replace or repair the fence back to the standard of a sufficient fence. If your neighbour had previously decided to build an elaborate, high-cost brick fence entirely at their own expense while a standard wooden fence would have been “sufficient”, your liability may be limited to the cost of a standard wooden fence.

However, if the fence was a standard Colorbond or timber fence and was effectively destroyed by your tree, you will simply be liable for the repair or replacement costs to make it whole.

How to Proceed if You Suffer Damage

If a neighbour’s tree damages your property:

1. Document the damage extensively with photographs and video.
2. Obtain quotes for the repair cost.
3. Approach your neighbour formally and request they cover the damage, noting their liability under the Neighbourhood Disputes Act.
4. If they refuse, you can lodge a claim in the Queensland Civil and Administrative Tribunal (QCAT). QCAT is designed to cheaply and effectively handle minor civil disputes including tree and fence disputes up to $25,000 ³.

If your neighbour’s tree is currently dangerous or overhanging significantly but hasn’t yet caused damage, you also have specific rights to demand they remove the hazard, or apply to QCAT for an order to have the tree pruned or removed ⁴.

Related Topics

• QCAT Fence Disputes in QLD
• What is QCAT and how do I apply on the Gold Coast?
• The Southport Courthouse Guide
• Legal & Government Contact Directory

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