Trees can add significant amenity to the public environment and are often used by homeowners to provide privacy. Equally, views and sunlight are commodities highly prized by homeowners. This is reflected in the prices paid for properties with panoramic views or that are drenched in all day sun. Any obstruction of these features can potentially cause a significant reduction in the value of a property.
The collision of these competing interests means that trees often become the centre of neighbourly disputes. What options do you have when the neighbours are unwilling to trim or remove a tree that is unduly obstructing your views and/or sunlight?
The Property Law Act
The Property Law Act may provide a remedy for homeowners that find themselves in this predicament. If your neighbour’s tree:
you may be able to apply to the District Court for an order removing or altering the offending tree. The court’s power also extend to altering or removing “unauthorised structures” which is defined as a structure that does not require a building consent, such as a deck or a fence.
“Undue”
In determining whether an obstruction is “undue” the court must balance the competing interest of the parties in dispute. In most cases of this nature this requires the balancing of one neighbour’s right to privacy against the other parties’ right to a view. Generally, the court has held that there is no legal right to a view, particularly from ground level. However, where the size of the tree in question goes beyond what is required for the neighbours’ privacy, the court is more likely to make an order.
Other factors to be considered
The court will take into account whether the offending tree was in place when the complainant purchased their property however this does not prevent the court from making an order. Further, the court must (when dealing with trees) have regard to:
Hardship
Before making an order the court must also be satisfied that the refusal to make an order would cause more hardship to the party seeking the order than the party whose tree will be removed or altered. In most cases where the court finds that an obstruction is undue, the hardship test will also be met.
Please contact our litigation team if you have any question regarding the content of this article.
Facebook
LinkedIn