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disputes

Trees blocking views or sunlight: The Property Law Act process

Key Takeaway

Disputes between neighbours over trees blocking views or sunlight in New Zealand are primarily addressed through an application to the District Court under the Property Law Act 2007. The court considers factors like unreasonable obstruction, injury, or nuisance, and aims to balance the interests of both parties when deciding on orders such as trimming or removal.

Resolving Disputes Over Trees Blocking Views or Sunlight in New Zealand

Neighbourly disputes involving trees that block views or sunlight can be complex. In New Zealand, the primary legal mechanism for addressing such issues is an application to the court under the Property Law Act 2007.

The Property Law Act 2007 and Neighbouring Trees

The Property Law Act 2007 (PLA) allows a person to apply to the court for an order relating to a tree or structure on neighbouring land [Source: Property Law Act 2007, s 332]. This provision is designed to provide a remedy when a tree or structure is causing an unreasonable impact on an adjacent property.

When an Application Can Be Made

An application under the PLA can be made if a tree or structure on neighbouring land is unreasonably obstructing a view, or interfering with the passage of light or air to land, and has caused, or is likely to cause, injury (harm), loss, or inconvenience [Source: Property Law Act 2007, s 332(1)(a)-(c)].

An application can also be made if a tree or structure is causing, or is likely to cause, a nuisance (an unreasonable interference with another person's use and enjoyment of their property) [Source: Property Law Act 2007, s 332(1)(d)].

What the Court Can Order

If the court is satisfied that the criteria under section 332 are met, it may make various orders. These orders can include requiring the owner or occupier of the land on which the tree or structure is situated to:

  • Remove, trim, or alter the tree or structure [Source: Property Law Act 2007, s 333(1)(a)].
  • Pay compensation for any loss or damage suffered by the applicant [Source: Property Law Act 2007, s 333(1)(b)].
  • Undertake ongoing maintenance [Source: Property Law Act 2007, s 333(1)(c)].

The court may also include conditions in any order, such as who is responsible for the costs of carrying out the work [Source: Property Law Act 2007, s 333(2)].

Factors the Court Considers

When deciding whether to make an order, the court must consider a range of factors, including:

  • Whether the tree or structure is an unreasonable obstruction or interference [Source: Property Law Act 2007, s 333(1)].
  • The likely effect of the tree or structure on the applicant's land or the people using it [Source: Property Law Act 2007, s 333(1)].
  • The effect of any proposed order on the land where the tree or structure is located, including any benefit derived from the tree or structure by that land or its owner/occupier [Source: Property Law Act 2007, s 333(3)].
  • The general amenity (pleasantness) of the area [Source: Property Law Act 2007, s 333(3)].
  • Any relevant provisions of a district plan (a document prepared by a local council that sets out how land can be used and developed) or resource consent (permission granted by a local authority under the Resource Management Act 1991 for an activity that affects the environment) [Source: Property Law Act 2007, s 333(3)].

Jurisdiction for Tree Disputes

Applications under section 332 of the Property Law Act 2007 are made to 'the court'. In the context of the Property Law Act, 'the court' generally refers to the District Court or the High Court [Source: Property Law Act 2007, s 4].

Disputes Tribunals

While Disputes Tribunals resolve many civil disputes in New Zealand, they generally do not have the jurisdiction (the official power to make legal decisions and judgments) to make orders requiring the trimming or removal of trees under the Property Law Act 2007. Disputes Tribunals primarily deal with claims for money, goods, or services up to $30,000 (or $50,000 if all parties agree) [Source: Disputes Tribunals Act 1988, s 10(1)]. They do not typically make orders that directly alter rights in land or mandate specific actions concerning physical structures on land in the way the Property Law Act permits a court to do. Therefore, for an order directly requiring the removal or trimming of a tree, an application must be made to the District Court.

The Application Process

Before initiating formal court proceedings, it is generally advisable for neighbours to attempt to resolve the issue through direct communication or mediation (a process where an impartial third person helps parties to communicate and negotiate). If these informal approaches are unsuccessful, the formal process typically involves:

  1. Filing an Application: The applicant files a notice of proceeding (a formal document that starts a court case) and an affidavit (a written statement confirmed by oath or affirmation for use as evidence in court) in the District Court, setting out the details of the complaint and the desired order [Source: District Court Rules 2014, Rule 7.6(1)].
  2. Service: The application documents must be formally served (delivered) to the owner or occupier of the neighbouring land [Source: District Court Rules 2014, Rule 6.2(1)].
  3. Hearing: The court will schedule a hearing where both parties can present their evidence and arguments. This may involve providing expert evidence, such as from arborists (tree care specialists) or valuers [Source: Evidence Act 2006, s 4].
  4. Decision: After considering all the evidence and arguments, the court will make a decision and issue an order [Source: Property Law Act 2007, s 333].

Costs Associated with Disputes

Bringing a case to the District Court involves certain costs:

  • Filing Fees: There are fees for filing the application and other court documents [Source: District Court Fees Regulations 2008].
  • Legal Representation: Parties may incur costs if they choose to engage a lawyer to represent them [Source: Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, Rule 9.1].
  • Expert Witness Fees: If expert evidence is required (e.g., from an arborist or valuer), there will be associated fees.
  • Cost Orders: The court has the discretion to order one party to pay a contribution towards the other party's legal costs. The usual rule is that the unsuccessful party may be ordered to pay a proportion of the successful party's reasonable costs [Source: District Court Rules 2014, Rule 14.2(1)].

What to Expect from a Court Order

The court aims to balance the interests of both the applicant and the owner of the tree or structure. An order made by the court under the PLA has the same effect as if it were a covenant (a formal agreement or promise) entered into by the parties, and it may be registered against the titles of both properties, meaning it binds subsequent owners [Source: Property Law Act 2007, s 334, s 335]. This ensures that the terms of the order are enforceable over time.

If a tree is protected under a District Plan or has a resource consent, the court will also take this into account, and its orders will generally align with the requirements of the Resource Management Act 1991 [Source: Property Law Act 2007, s 340].

When to Seek Independent Legal Advice

It is important for individuals involved in or contemplating a dispute over trees or structures to seek independent legal advice. A lawyer can assess the specifics of a situation, advise on the likelihood of success, explain the court process in detail, and represent a party in proceedings. Assistance may also be available from Community Law Centres.

Key Resources