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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
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Experience:  34 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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a neighbour who does not adjoin my boundary is threatening

Resolved Question:

a neighbour who does not adjoin my boundary is threatening to take me to court over my trees shading them. Do they have this right?
Submitted: 1 year ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 1 year ago.

christhelawyer : HiWelcome to JustAnswer. My first response will follow shortly. Please feel free to follow up if anything is not clear
christhelawyer : The statute which covers this problem is the Property Law Act which says
christhelawyer : At section 333
christhelawyer : Court may order removal or trimming of trees or removal or alteration of structures(1)A court may, on an application under section 334, order an owner or occupier of land on which a structure is erected or a tree is growing or standing—(a)to remove, repair, or alter the structure; or(b)to remove or trim the tree.(2)An order may be made under subsection (1) whether or not the risk, obstruction, or interference that the structure or tree is causing—(a)constitutes a legal nuisance; and(b)could be the subject of a proceeding otherwise than under this section.
christhelawyer : Nothing in this part of the act restricts the application to neighbours however.
christhelawyer : They have to pay for the trimming however
Customer:

thank you,

Customer:

so the criteria is weather or not the court agrees to their argument that it is a legal nuisance? What is the definition of a legal nuisance and what sort of proof of this do they require for the court to feel satisfied of this?

christhelawyer : The proof of nuisance is the amount of shading, the leaves and material which fall from the tree and any danger from falling limbs. This is proved by experts usually, such as tree surgeons.
christhelawyer : Section 335 says
christhelawyer : (a)the order is fair and reasonable; and(b)the order is necessary to remove, prevent, or prevent the recurrence of—(i)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; or(ii)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; or(iii)an undue interference with the use of the applicant’s land for the purpose of growing any trees or crops; or(iv)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; or(v)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; or(vi)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; and
christhelawyer : This gives some guidance as to the factors
Customer:

the trees in question are over 20 meters from their home. what info do I need to fight this?

christhelawyer : If you look at the section I have quoted, and consider whether any of those factors are present, that will give you an idea of what they need to prove.
christhelawyer : I expect shading is not an issue, unless the trees are very tall
Customer:

They also serve as a selter belt to me from the prevailing southerly winds. is this a good argument against?

christhelawyer : It is up to them to prove the nuisance, not for you to show why the trees should be saved. The burden of proof is on them
Customer:

The tree is probably 40 or 50 foot. and it does shade them in winter mostly.

Customer:

What demands of proof should I ask for? a model of sun angles through the year to show different shade patterns?

christhelawyer : That would be a good start.
christhelawyer : Photos showing the shadow may be useful too
Customer:

What about native bird life?

christhelawyer : The photos can have a time stamp which helps. Protection of birds is not a factor, but could be used anyway.
Customer:

Would it be reasonable to ask them to buy the trees from me so I get some sort of monetary compensation so I can re-landscape?

Customer:

If it is ordered to cut the trees down, who gets the wood?

Customer:

if they pay for the felling?

christhelawyer : They have to pay the costs of removal anyway, so that would be a good idea too
christhelawyer : The trees do belong to you however
christhelawyer : I have to go off line briefly but will return in an hour
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 19387
Experience: 34 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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