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Fences, Retaining Walls And Trees – Neighbours At War!

By Claire Coe, Monday, 25 August, 2008,

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Paul’s neighbours decided to build a new fence between their property and his, and he let them know he was happy for this to happen.  While they were at it, they removed a small retaining wall on their side of the fence.  They forwarded the builders’ bill to Paul and demanded that he pay half of the total bill.  

 

Paul came to us wondering what he was legally required to pay for as he had agreed to pay half of the fence, but didn’t know that that would include removal of a retaining wall!

Issues between neighbours are unfortunately a certainty for a lot of people at some point in their life.  Whether it’s trees blocking your sun, your neighbour damaging your fence, or simply contributions to a new fence, the likelihood of problems arising when people live in close proximity to each other is high.  We clarify what some of your obligations are below.

Trees

My Neighbour’s Trees Are Starting To Block My View

A landowner has the right to the ordinary use and enjoyment of land as long as this does not unreasonably interfere with neighbours.  There is normally no legal right to a view, so a neighbour allowing trees to block your view is probably not acting unreasonably so you would be unlikely to be able to have the trees removed or topped. 

My Neighbour’s Trees Are Starting To Block My Sun

You might be able to have the trees trimmed because the shading, if serious, could very likely amount to an unreasonable interference with your enjoyment of your property.

I’m Worried My Neighbour’s Tree Might Fall Onto And Damage My Property

Again you are likely to be able to have it removed because it is likely that it amounts to what legally constitutes a nuisance.

Can I Prune Branches That Overhang My Property?

Yes, you are entitled to cut overhanging branches and roots back to the boundary.  However, in some cases trees are protected under district plans so you should check with your local Council first.

Who Owns The Cuttings?

Your neighbour owns the cuttings, and you are entitled to ask them to remove them.  You are also entitled to put them back onto the neighbour’s property but if you do this you should be careful not to cause any damage.  Having a discussion with your neighbour beforehand is always best if it is practicable. 

Who Pays?

Without agreement otherwise, you will have to pay for cutting back branches on your side.  Where a tree on your neighbour’s property actually damages your property, the neighbour should pay for making good the damage. 

Fences

Does My Neighbour Have To Contribute To The Cost Of A New Fence?

Yes, in many cases they do.  You should always try to reach agreement with your neighbour before you go ahead and have a new fence built.  However, if your neighbour will not agree to what you propose you must follow the requirements of the Fencing Act.  These are as follows: 

  • You must give your neighbour a Fencing Notice.
  • This must set out clearly the boundary to be fenced, the type of fence, who will build it, what it will cost and when the work will start.
  • The Notice must also explain that the neighbour has 21 days to object or to make any counter proposals.

What If My Neighbour Doesn’t Want A New Fence?

The neighbour will have to give you a Cross Notice saying why they object to the new fence being built.  Then if agreement cannot be reached the matter will have to be dealt with by the Disputes Tribunal (if the cost is less than $7,500.00) or the District Court.  

My Neighbour Has Damaged The Fence And Wants Me To Contribute To The Cost Of Repairs

You do not have to.  The neighbour who caused the damage is liable.  The same is obviously true if you have damaged their fence.

What Sort Of Fence Can I Build?

The Fencing Act sets out specimen types of fence for both urban and rural boundaries.  Urban fences include post and rail fences, close bordered fences, paling fences, panel fences and masonry walls.

What About Paul In The Above Example?  Does He Have To Pay For The Retaining Wall Given That He Agreed To The Fence To Start With?

No he doesn’t.  The removal of the retaining wall was not Paul’s decision and was solely for the neighbour’s benefit.  He agreed to pay half of the fence and that was all.  He is not liable to pay for the removal of their wall.

These are just some of the many issues that can arise between neighbours.  Usually some civilised and reasonable discussions between you should result in some kind of solution or compromise, but it pays to know what your rights are before you agree to anything.

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