Trees and Neighbours – Know Your Rights

Suburbs need trees. They are a source of food and shelter for birdlife, they improve the quality of the air we breathe and they beautify our towns and landscapes. But … they also block the drains, disrupt walls and foundations, hide the view, cast long shadows, and from time to time, fall down. Trees, especially other people’s trees, can cause feelings to run very high.

Taking responsibility
If you’re a landowner, the law says you have the right to the ordinary use and enjoyment of your land. However, your neighbours also have this right. Nobody may interfere unreasonably with other people’s use and enjoyment of their land. This means you are responsible for ensuring your own trees do not cause problems for anyone else.

The issues
There are many factors that can be relevant in deciding what to do about a tree. Apart from health and safety issues, and the benefits to be enjoyed by each party, there is also the public interest. This includes the maintenance of a pleasing environment; the desirability of protecting public reserves containing trees; the value of the tree as a public amenity; any historical, cultural or scientific significance of the tree; and any likely effect on ground stability, the water table or run-off.

If problems arise
If branches of your neighbour’s tree encroach on your land, you can cut them back to the boundary line.
If branches of your neighbour’s tree encroach on your land, you can cut them back to the boundary line.
If your neighbour’s tree is causing problems, the first step is to talk to them. They may not even be aware of your concerns. Give them the chance to fix things, and look for a solution everyone will be reasonably happy with. If, for example, you are worried about shading, it may be that the tree can be thinned rather than chopped down.

A mutually agreeable solution will be preferable to a lengthy, costly and bitter legal battle.

Cutting a tree
If the roots or branches of your neighbour’s tree encroach on your land, you can cut them back to the boundary line. In law, this is called “abatement”. If you don’t want to do this yourself you can ask a district court for an order for the trimming or even removal of the tree.

However, if the tree is not causing harm or loss of enjoyment, abatement may be your only remedy. If you do choose this option, you must do no more than is necessary to abate the nuisance. No unnecessary damage should result, and you should not trespass on your neighbour’s property.

Nor may you create any other problems for your neighbour. You must not poison the roots or spray the tree with herbicide, as the consequences would extend beyond your property. If you are cutting out part of the tree’s roots, take care not to undermine the stability of the tree or the ground around it.

Cuttings and fruit belong to the tree owner. You can put them back on their property, taking care not to cause any damage, or ask for them to be removed.

If the trunk of the tree extends over the boundary, this does not give you the right to chop it down. A tree planted on your neighbour’s land belongs to them, and they will be liable for any damage it causes.

But if the tree was planted on the boundary, you are probably a co-owner. If your neighbour does not agree to have the problem resolved, you can apply to a district court for an order for removal or trimming.

Who pays?
If you have incurred costs in cutting back the roots and branches on your side of the boundary, you probably will not be able to claim them back from the tree owner.

But if the roots of your neighbour’s tree have damaged your drains or a branch falls on your house, they will probably have to pay. Even if the damage results from forces outside your neighbour’s control, they may still be liable if they could have been expected to know the tree was unsafe, and did not take reasonable steps to make it safe.

This means they will have to pay the costs of fixing up the problem as well as any compensation that may be due.

Even if your neighbour’s tree has caused no damage, but is simply being a nuisance, perhaps by blocking sun or light, they may still be liable for the cost of getting the nuisance resolved. This is because tree owners should take reasonable steps to stop the trees interfering with their neighbour’s enjoyment of their own properties.

Council involvement
Local councils are generally reluctant to become involved in neighbourhood disputes about trees.

However, many trees are protected. Classification of a protected tree will vary among councils and may include specimen trees above a certain height, native vegetation, or even “blanket protection” of all trees in your area. Before you start to chop down all or part of a large tree, check with the council whether you need special permission.

Other forms of tree protection include the listing of significant trees in a district plan, heritage orders under the Resource Management Act and voluntary protection under the Heritage Covenant provisions of the Historic Places Act. There are substantial fines for ignoring some of these protections. Your local council will be able to supply you with details of its policy.

Some councils will also supply information on tree care and will give names of recommended arboriculturists.

If your tree is creating problems near a road or public land, the council can issue a notice ordering you to remove or trim it. This might happen if the tree is damaging roads, drains or other public amenities, or if it obstructs traffic or the view of road traffic. Several other statutory authorities also have this right.

If you want to challenge the council’s view you can apply to the district court to have the notice set aside. But you will need to be quick: in some situations you will only have 10 days in which to do this.

If you simply ignore the notice, the council can enter your property and carry out the work itself. You will have to bear the cost and may also be fined. In an emergency where there is imminent danger to life, property or roading, the council can do this at your cost with only verbal notice being provided beforehand. But it cannot do more than is necessary to prevent danger.

The council must also look after its own trees according to the same basic rules as everyone else. Most councils have written policies covering this, which vary from council to council.

The first step is to let the council know there is a problem. If you are not happy with the response, you can proceed as if the council was a private landowner: perhaps by cutting back the offending roots and branches, trying to get the council into mediation or even starting legal proceedings.

If you want to plant trees or shrubs on council land, you must get permission. Illegal plantings can interfere with drains or public works, or they may be considered inappropriate for a particular environment. It is also an offence to remove or damage trees or shrubs growing on council reserves, except within the normal scope of abatement.

Resolving disputes
If a tree owner and an aggrieved neighbour can’t agree on what to do, several courses of action are open.

Mediation and arbitration
Both mediators and arbitrators are available to help resolve a dispute.

A mediator will help you negotiate a solution to the dispute. An arbitrator will impose a solution. Mediation is less formal and usually less expensive, but cannot be enforced by a court unless you have included enforcement procedures in your agreement. An arbitrated settlement is backed by the courts.

Before you start, you should work out the likely costs. Mediation and arbitration are charged on a time basis, and both parties are expected to pay an equal share, unless another agreement is reached.

Disputes Tribunals
Disputes Tribunals can hear claims for damages to property for amounts up to $15,000 (or $20,000 if the parties agree). Typical examples are claims for damage to drains, driveways, foundations and fences.

However, generally a tribunal referee will not be able to hear claims when the dispute is over loss of light, sunshine or views, or involves removal or trimming of the tree.

District Court
Claims that are not covered by the Disputes Tribunal, or that involve the loss of light, sunshine or views, or that involve the removal or trimming of trees, can be taken to a district court. The court can award monetary compensation for damage caused by a tree. It can also order that a tree be removed or trimmed.

Claims through the District Court will almost certainly require the help of a lawyer and can be expensive.

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