Court Orders for the Removal of Trees & Structures

April 26, 2022

Section 333 of the Property Law Act 2007 allows an owner or occupier of land to seek orders from the Court requiring the owner or occupier of other land to remove, repair or alter a structure or remove or trim a tree.

 

If the issue involves a structure on the other land, orders may only be sought if the structure does not have a building permit or building consent (or in the case of a Crown-erected structure, would have required a building permit or building consent).

 

The Court may grant orders regardless of whether or not the structure or tree causes a legal nuisance or could be the subject of other proceedings.

 

Before making an order, the Court must be satisfied that the order is fair and reasonable and that the hardship that would be caused by refusing to make an order is greater than the hardship that would be caused by the making of the order.

 

The Court must also be satisfied that the order is necessary to remove, prevent, or prevent the recurrence of certain matters, which include:

 

  • An actual or potential risk to the applicant’s life or health or property, or the life or health or property of any other person lawfully on the applicant’s land;

 

  • An undue obstruction of a view that would otherwise be enjoyed from the applicant’s land, if that land may be used for residential purposes under rules in a relevant proposed or operative district plan, or from any building erected on that land and used for residential purposes;

 

  • An undue interference with the use of the applicant’s land for the purpose of growing any trees or crops;

 

  • An undue interference with the use or enjoyment of the applicant’s land by reason of the fall of leaves, flowers, fruit, or branches, or shade or interference with access to light;

 

  • An undue interference with any drain or gutter on the applicant’s land, by reason of its obstruction by fallen leaves, flowers, fruit, or branches, or by the root system of a tree; and

 

  • Any other undue interference with the reasonable use or enjoyment of the applicant’s land for any purpose for which it may be used under rules in the relevant proposed or operative district plan.

 

In determining whether to make an order, the court must have regard to all the relevant circumstances (including Māori cultural values and various considerations relating to trees), and if applicable, take into account whether the risk, obstruction or interference complained of was already in existence when the applicant became owner or occupier of the land.

 

Applications for orders under section 333 tend to be very fact specific and the Court’s jurisdiction to make orders is exercised conservatively and cautiously. It will not always be appropriate for the Court to approach the issue solely from the perspective of the party whose view has been obstructed as cases often involve the balancing of competing legitimate interests such as an applicant’s view and the privacy of the respondent.

 

Vickery v Thoroughgood [2018] NZHC 2303 (3 September 2018) was an appeal from a District Court decision declining to make an order under s 333 Property Law Act 2007 in the main due to undertakings given by the Defendants that they would continue to trim the trees to a reasonable level, to preserve the Plaintiff’s views. The Judge also disagreed that the trees unduly interfered with the Plaintiff’s wifi signal, or otherwise unduly interfered with the Vickerys’ reasonable use and enjoyment of their land.

 

Local authorities also have extensive powers under section 133 of the Public Works Act 1981 and section 355 of the Local Government Act 1974 where trees encroach on public land obscuring visibility or interfering with public works.

 

An action for private nuisance may be another legal option where there has been an unreasonable interference with a person’s right or enjoyment of an interest in land.

 

Richard Boud

Staff Solicitor

 

For more information, contact us on 04 473 8484 or by email at reception@becker.co.nz

 

Disclaimer: The information contained in this article is general in nature and not tailored to your personal circumstances. It is only current as at the date posted and should not be relied upon as legal advice. If you require legal advice, please contact us for further assistance.