A couple purchased a property after falling in love with its location and amenities. After moving into the property, they became concerned with the large pine trees growing on the boundary of the neighbouring property blocking sunlight and causing debris to fall on their driveway. The couple were also concerned with the risk of the trees falling in a storm.

Are their neighbours obligated to cut down the trees?

Landowners have a responsibility to make sure that the trees on their property do not constitute a danger to, or interfere with, neighbouring properties.

A landowner may be liable in negligence if they fail to be a “responsible and prudent landowner” by removing the potential risk. If the landowner refuses to remove the trees the couple can apply for a Court order.

Section 335 of the Property Law Act sets out the following factors for a Judge to consider in granting an order for tree removal or trimming:

The order is necessary to remove, prevent, or prevent the recurrence of—

  1. The actual or potential risk to the applicant’s life, safety, or property; or
  2. An undue obstruction of a view that would otherwise be enjoyed from the applicant’s land if that land is used for residential purposes; or
  3. An undue interference with the use of the applicant’s land for the purpose of growing trees or crops; or
  4. An undue interference with the use or enjoyment of the applicant’s land by reason of the fall of leaves, flowers, fruit, branches, or shade or interference with access to light; or
  5. Any undue interference with the reasonable use or enjoyment of the applicant’s land for any purpose which it may be used for under the rules of the operative or proposed District Plan; and
  6. Whether a refusal to make the order would cause hardship to the applicant or to any other person lawfully on the applicant’s land that is greater than the hardship that would be caused to the defendant or any other person by making the order.

The Court can also take into account that the risk, obstruction, or interference complained of was already in existence when applicant became the owner of the land. Generally, the Court will strike a balance between both parties’ rights to use and enjoy their land.

If the application is successful, then who would pay the costs?

If this type of order is successful and the trees must be removed or trimmed, then the Court would make a costs order. Typically the costs would fall on the landowner, due to their obligations as a “responsible and prudent” landowner. 

 

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Rachel Collins / Charlotte Cameron

Associate / Law Clerk
Wellington