Legal experts Peter Clarke, Barbara McDonald and Cinzia Donald unpack your questions about neighbourhood disputes - ABC News

2023-02-19 01:32:52 By : Andy luo

Legal experts Peter Clarke, Barbara McDonald and Cinzia Donald unpack your questions about neighbourhood disputes

Where do you stand with the law when you are fighting with your neighbour over things like noise, solar panels or trees? Sliding Door Opener

Legal experts Peter Clarke, Barbara McDonald and Cinzia Donald unpack your questions about neighbourhood disputes - ABC News

Look back on our live Q and A with legal experts Peter Clarke, Barbara McDonald and Cinzia Donald alongside ABC RN's Law Report presenter Damien Carrick as they answered your questions about neighbourhood disputes.

This article contains general information only. You should consider obtaining independent professional advice in relation to your particular circumstances.

Thank you for joining us and a big thank you to our legal experts Peter Clarke, Barbara McDonald and Cinzia Donald, and to the team at the Law Report for organising the Q and A.

Don't forget, if you're loving this content, you can get more by tuning into the Law Report.

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You can head to the ABC News website and our app for the latest news.

Can a neighbour install an air conditioner that hangs over the wall, into your property?

Hi Ellen, thanks for sending this one through.

Here's what Cinzia Donald says:

Where the air conditioner intrudes into the airspace of the neighbour, it may amount to trespass to the neighbour’s land.

In some cases, factors such as the height, nature and extent of that intrusion of the air conditioner can be relevant to whether a trespass has taken place.

Where the installation amounts to a trespass, the neighbour may be able to take steps to require the removal of the air conditioner.

Thanks for your question Michael, Here's Peter Clarke:

Michael, this is a specific area of interest for me, and I’m sorry to hear about your circumstances. Regrettably, there is no clear course of action for you based on the tree-specific legislation in various states and territories and in consideration of a number of decisions in various state courts of superior record (with Victoria being the best state for the protection of solar access to photovoltaic arrays).

You would need to mount a novel argument that the negligence of your neighbour (by allowing the trees to grow to a certain height) has resulted in loss and damage to your property (flowing from the reduced/eliminated function of your solar panels and the resulting increase in electricity consumption). I am not aware of any decision of any Court in which compensation was awarded in the circumstances you describe, but every precedent was set for the first time at some point!

Hi the house next door to us is a large block and has a massive pile of rubbish on it and long grass. It's a fire danger and we constantly have issues with vermin what can we do?

Hi Craig, Peter Clarke has answered this question:

You should let your local council know of this issue immediately, particularly if there’s any risk of fire. Ordinarily councils have a discretion to act on resident complaints, meaning that they don’t technically have to do anything, but when it comes to a fire risk, it’s a different story.

Council should be issuing the owner of the subject property with a direction/notice/order (depending on the state/territory in which you live) to make the property safe, detailing exactly what needs to be done to the house and grounds to reduce the identified risks.

However, how quickly that written notice is acted upon by the owner of the property is another story – there are plenty of instances in NSW in particular where hoarders and/or owners of derelict homes either avoid service of the notices or seek to delay compliance with the notices for lengthy periods of time via frivolous Court action.

I can’t say whether the vermin issue would reach the level of actionable nuisance, though. This is a matter in which I would recommend that you seek specific and timely legal advice from a specialist lawyer who can advise you on what urgent steps you need to take yourself, and to correspond with the local council on your behalf so that council does all of the heavy lifting in dealing with the fire risk issue in particular.

windows and privacy my neighbours have submitted and application for 2nd storey with a floor to ceiling window the size of a garage roller door. It happens to look directly into my kitchen, living area. Approached neighbours with concern but was dismissed. Approached council only to be informed they do not consider bedroom windows a privacy issue. Where do I stand ?

Hi Peter, this question reminded some of us of the "naked guy" on Friends!

It's definitely a valid concern, here's what Cinzia Donald says:

Generally, there are no rights of privacy between neighbours. That said, most people value their privacy and many local planning development laws now prescribe design requirements for new residential builds or developments aimed at preventing this kind of intrusion on the privacy of neighbours.

For example, many local design codes often require outdoor spaces and large windows that overlook parts of neighbouring properties to include appropriate screening to restrict the cone of vision from the large window or outdoor space onto neighbouring property. The prescribed screening can usually take various forms such as obscure glazing, window hoods or window shutters.

It is worth reviewing any design codes that apply to a neighbour’s build to see whether they include similar screening requirements or prescribe other design requirements to protect neighbour privacy. A formal objection to the build may be possible where such requirements exist and have not been complied with.

In some cases, a person may have other legal rights against their neighbour where a build or other actions of their neighbour results in a level of surveillance that constitutes an unreasonable level of interference with the use and enjoyment of their property.

Our neighbours trees have grown so tall they rob us of our winter sun. Can we ask for them to be trimmed down to a reasonable height? We are in the very south of WA and rely on the warmth of the sun to help heat our passive solar home.

Hey there Judy, we've put this question to Barbara McDonald:

Judy, I do sympathise. Having sunlight in winter is an important environmental benefit to reduce reliance on expensive and fossil-based power.

While there is increasing community recognition of the benefits of sunshine for heating, there is unfortunately no legal right to sunlight or to relief either from street trees or between neighbours. The trees would not be a nuisance unless they encroach or cause damage to you or your property.

Under most planning laws, councils have the power to regulate the height of building to reduce shadowing over neighbours but cannot regulate trees. Of course, try to negotiate with your neighbours on basis of neighbourliness but perhaps they will not co-operate. At a minimum, make a polite request. They may ask you to pay or contribute. 

I cannot see any legislation in WA about disputes about trees but I see that the Citizens Advice Bureau may be able to help with mediation. You could also talk to your local council just to see if there are any regulations about species of tree or space from boundary etc.

What are my rights when excess stormwater from my neighbour’s property flows onto my property and causes minor flooding in my garage? Thanks.

Hi Jonathan, there have been a few questions similar to yours.

My neighbours stormwater runs directly onto my property, they didn't install correct drainage. What can I do to protect my house? - Jane

My neighbours stormwater overflow discharges across our common fence and into my property. What rights do I have? Also, we have common property. Is the stormwater pipe located on his property before it connects into the common property area his responsibility or the body corporates? - Hugh

Peter Clarke is answering this one for you here:

This is technically a nuisance matter, as flooding is a common form of nuisance complaint. There are certain evidentiary thresholds that you would need to meet to have the Court order that the flooding be abated, but you should first contact your local council and alert them to the issue in addition to speaking to the owner of the offending property.

In many cases, council can issue orders/directions to your neighbour requiring them to address/abate the flooding issue from their side of the boundary, whether by fixing their stormwater system or putting a drain in place to redirect the overland flow to council’s stormwater infrastructure.

In certain circumstances (particularly in NSW), you can take civil enforcement action on the basis that your neighbour is failing to comply with specific conditions of their development consent requiring stormwater to be properly discharged, but it is always preferable to speak to your neighbour and council before resorting to Court proceedings.

If a neighbour has purposely shifted and placed large rocks next to a footpath/sidewalk that extends to the edge of the nature strip, is it a council complaint?

Hi Sharon, thanks for contributing to our blog.

Here's Cinzia Donald with her expertise:

If the footpath or nature strip forms part of a public thoroughfare, usually your local council or shire should be your first port of call. Your council or shire will likely intervene where the rocks obstruct the thoroughfare or creates a hazard for others who use the footpath or nature strip.

However other rules can apply if the footpath or nature strip is not public property but a privately owned strata property. Strata properties have rules which explain what neighbours are allowed to do, or not allowed to do, in relation to common property such as footpaths. If the footpath or nature strip forms part of a strata property, check to see whether the neighbour has broken any of the strata rules by moving the large rocks.

Who is responsible for repairing a damaged dividing fence and retaining wall caused by recent storms

Here's Peter Clarke to explain:

In most cases, each neighbour is jointly responsible. The difficulty here is that if you want to avoid having to contribute 50 per cent of the costs of fixing the fence/wall, you will need proof of what (on the balance of probabilities) caused the failure of the retaining wall and the fence above it.

It may be that a recent storm event was the straw that broke the camel’s back, but the actual reason for the failure of the wall/fence may in fact be because the wall was built poorly/incorrectly, was not structurally adequate or fit for purpose, or the owner of the uphill property may have built structures or carried out works near the ‘zone of influence’ of the retaining wall below the fence. It’s a real can of worms situation.

Different states/territories have different mechanisms dealing with the apportionment of costs and duties of care for removal of support of land which will have some bearing on which neighbour is responsible for remediation costs.

I would strongly recommend that you get an engineer to attend your property to make sure the boundary and nearby land is stable and that no urgent remedial works are required, and engage amicably with your neighbour to see if a 50/50 split of the necessary engineering/construction works can be agreed to.

Court proceedings are always the least desirable outcome and should be the absolute last resort.

My next door neighbour owns five or six cars. One had been parked in front of my house for two years. It has cobwebs it’s been there so long. Is this legal?

Hi Sue, that does sound frustrating!

Here's Barbara McDonald to explain:

This sort of behaviour is really annoying, particularly when street parking is limited, or if the car or boat or whatever is an eyesore.

However, no-one owns a public street. And there is no legal right to a pleasant view.

The best way to deal with this to report to the local council or check with the motor registry or police that the car is registered.

If it has been abandoned or is unregistered, then the council may have power to tow it away.

Or you could ask your council for a local residents’ parking scheme which may limit the number of cars a person can park for long periods in the street, but that requires residents’ consensus and council action.

I live in an apartment in NSW and some of my neighbours smoke, often leading to us having to close our windows and doors to avoid smoke. Is there anything that can be done?

Hi Daniel, here's Barbara McDonald:

Daniel, it has been found that smoke from neighbours is a nuisance. Noxious fumes, smells or pollution from neighbouring properties have long been held to be a nuisance. They not only interfere with use and enjoyment but may actually be harmful to health, according to the NSW Cancer Council website.

Recently, it has been reported that strata occupiers in Kingscliff, New South Wales, were successful in obtaining an order from the NSW Civil and Administrative Tribunal that a neighbour must not smoke on his balcony or where the smoke would escape to the complainants’ unit.

Unfortunately, this is a process.

You should also first press your Body Corporate to pass a by-law either limiting or prohibiting smoking.

What can you do when a neighbour plays loud music, all day, every day, all hours. We have politely asked them to turn it down, they did that day but back to loud the next. Most residents on the street agree it's excessive but everyone feels powerless to intervene.

Hi Maria, Peter Clarke has answered this one for you:

Most states have mechanisms in place to deal with neighbourhood noise, primarily through a combination of complaints being made to the police and local Council, with police able to issue orders/directions to the person responsible for the offensive noise (in NSW, that’s in the form of a noise abatement direction from police, or a noise prevention notice from Council). The first step is always to talk to your neighbour

In Victoria, it is an offence for your neighbour to emit ‘unreasonable’ noise from their residence. Similar to the situation in NSW mentioned above, whether the noise is ‘unreasonable’ depends on a range of factors which are set out pretty clearly in the relevant Act and Regulation.

You can also obtain relief through the Courts if the issue is ongoing despite the efforts of the police or Council compliance officers. In NSW, that is in the form of a noise abatement order made by the Local Court – you’d need to have a fair body of evidence to successfully obtain an order, for example the combination of noise logs obtained from a proper noise logger from an acoustic engineer (or a decibel recording app on a smartphone) with a diary of when the noise occurred and what the result of the ongoing noise is/was (sleep disturbance, having to keep windows closed etc).

Sophie Kestevan wrote this story all about noisy neighbours for the Law Report, check it out with the link below.

If you're enjoying this live blog as much as I am, you might be wondering where you can find more content like this.

Well, we've got you covered.

Damien Carrick presents the Law Report, which provides stories about law reform, legal education, test cases, miscarriages of justice and legal culture without all of the legal jargon.

Listen live on ABC RN every Tuesday at 6pm or subscribe and listen any time on the ABC listen app.

My neighbours bamboo is out of control - they cut it back twice a year and the bamboo falls into my yard, am I allowed to put the fallen bamboo that lands in my yard, back over their fence for them to clean up?

Hi Nat. We've had a few questions like this, some from the other side of the fence:

The neighbour complains our trees drop leaves in his gutter (they do) and so he cuts down branches (sizeable one too). The problem is some branches are half a metre onto our side of the boundary fence and do not even reach up to the height of the gutter. He then dumps the branches onto our side. - Michael Holm

So for all of you asking about trees crossing onto your property, or having your own trees cut by neighbours, here's Barbara McDonald to answer Nat's question:

Yes, you are simply returning their property.  Do so in a reasonable manner. There are limited rights of self-help or ‘abatement’ of a nuisance.

Again, if things get serious or are the cause of dispute, you would be well advised to check whether you need to resolve the dispute officially through the channels provided in your state by legislation for neighbourhood disputes about trees.

Bamboo is also a creeping plant so if it begins to encroach onto your land, and you cannot resolve it by giving notice to your neighbour and negotiating a solution, you should follow the official procedure.

What are the legalities around picking fruit from trees that are inside a neighbour's front yards?

Hey there Sam, I'm sure many of us can relate to wanting to pick a ripe mango from next door's tree.

Here's Barbara McDonald to explain it in a legal sense:

The common law answer was that an occupier of property A was allowed to cut down branches that extended over their own property from neighbour B’s property, so this would include the ability to bring down the fruit, but at the same time the fruit belonged to the neighbour.  Negotiation is advised!

While it used to be the case that A could safely cut off the branches or roots that extended onto A’s property , as long as A did not cause damage to the tree, depending on which state or territory you are in, you may find that you now need court permission or follow alternative dispute resolution means: there is legislation about neighbour disputes in NSW, Queensland and Tasmania.

If a body corporate says no pets can weigh more than 10kg and there are dogs that clearly weigh more, including your own well behaved 45kg quiet dog, can you do anything to change the rules as an apartment owner and ensure the dogs are “safe” from eviction?

Thanks for your question Julie, we've got RN's Law Report presenter Damien Carrick himself to answer your question:

In one of our Know Your Rights episodes, Professor Cathy Sherry from Macquarie University said: "It's really standard for apartment buildings to try to ban all dogs over 10 kilos. Now you probably don't have to know very much about dogs to know that it's often small dogs, for example, fox terriers that are much more likely to bark than a large Labrador, or a large greyhound that will snooze on the sofa, all day.

So, what you end up is with really irrational regulation, so that you're actually prohibiting the dogs who are less likely to do the thing that's going to be a problem in an apartment building, and that is barking."

My general advice is your first port of call is to contact your body corporate to discuss the issue individually.

Thank you to everyone who has sent in a question so far, we're loving the enthusiasm.

Our experts are working away at answering them for you, so keep them coming!

We all have different levels of tolerance to noise. When it comes to noise levels that prevent you from getting to sleep – how do you prove that the noise levels are greater than reasonable? How can you convince everyone you aren’t just being sensitive? 

Thank you for sending your question in, We have asked Cinzia Donald from Perth's Lavan law firm to answer it for you:

We all have different sensitivities around noise. What might seem incredibly loud noise to one person may not even register as a distraction by another. Because of this, for noise to be unlawful, it needs to be substantial and unreasonable.

Some of the ways you can prove that the noise keeping you awake is substantial and unreasonable (and not just you being overly sensitive) is by:

Is it legal to park so close to someone’s driveway entrance affecting easy access for the homeowner? - Josie

Hey Josie, we've had a couple of questions about this already!

We put it to Professor Barbara McDonald, here's her response:

Blocking another person's driveway may well amount to a private nuisance as an occupier needs to have access to his or her property. Your question refers to "easy" access so the issue would be whether the blocking unreasonably interferes with the occupier's use and enjoyment and access to the land. Continuous or repeated or malicious behaviour is more likely to be a nuisance.

Local council rangers will enforce parking rules and access so that is an avenue to explore.

Theoretically it could also amount to a public nuisance but that is less likely unless it obstructed the whole road.

What can I do about my neighbour’s cameras next door which look onto my property?

Hi there, thanks for sending your question in, we've put it to Professor Barbara McDonald from the University of Sydney:

Unfortunately, we do not yet have a private law action for invasion of privacy, such as you might find in other countries such as NZ, the UK, and Canada.

The Australian Law Reform Commission inquiry of 2013-2014 which I headed, designed a statutory action, but the federal Parliament has not taken up the recommendations. And the common law has not developed a general action for invasion of privacy.

We do protect privacy of occupiers of property by the action of trespass to land but there has to be some direct physical invasion of the land by a person or thing.

There is no general right not to be photographed. And there is no general right not to be overlooked by neighbouring properties.

However, there are cases where the law of nuisance has protected an occupier from being kept under surveillance and disturbed by a neighbour's filming or watching. And the NSW Supreme Court has issued injunctions to stop neighbours filming the claimant's property on a continual basis.

I would generally advise people to talk to their local council to ensure that any equipment being used does not breach local government ordinances and in serious cases involving disturbing conduct, talk to the local police

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Legal experts Peter Clarke, Barbara McDonald and Cinzia Donald unpack your questions about neighbourhood disputes - ABC News

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