Boundary trees block your views, access to light, or even Wi-Fi signals. What can you do? This was the issue that came before the High Court on appeal from the District Court in Vickery v Thoroughgood  NZHC 2303.
The parties were neighbours on rural properties. Dense Manuka and Kanuka trees on the Thoroughgood’s property grow on an embankment adjacent to the boundary line for approximately 45 metres. The Vickerys said that when they purchased their property in 2004, the lot was bare and there were no trees. The Judge in the District Court found the trees were planted from around October 2006.
In the District Court, the Vickerys alleged that the trees would entirely obstruct views, interfere with Wi-Fi reception and attract bees, creating a nuisance.
Appeal to the High Court
The proceeding in the District Court followed a tortured procedural path. It is unnecessary to repeat it here. This assessment will instead focus on the appeal to the High Court.
The application was made under s 333 of the Property Law Act 2007 (PLA). This section permits a court to order an owner or occupier to remove or trim a tree whether or not it constitutes a legal nuisance or could be the subject of a proceeding brought otherwise than under s 333. Section 335 of the PLA sets out factors that are required to be taken into account.
Fitzgerald J referred to the decisions in Warbrick v Ferguson (2004) 5 NZCPR 520 (HC) and Yandle v Done  1 NZLR 255 (HC) and distilled the following principles:
(a) An appeal from a decision making an order under s 333 of the PLA is from an exercise of discretion. The principles applicable to such appeals therefore apply: the appellant must show an error of principle, failure to consider a relevant factor, consideration of an irrelevant factor, or the decision was plainly wrong.
(b) While s 333 appears to provide the Court with a wide discretion, this is not the case in light of the prescriptive approach a court must take having regard to s 335 of the PLA. The discretion is further constrained by s 336.
(c) The discretion is an ‘intricate one’ requiring the balancing of legitimate competing interests.
(d) The jurisdiction is to be exercised conservatively and cautiously.
(e) The word “undue” in the legislation it is not appropriate to approach the issue solely from the perspective of the complainant.
(f) Cases will largely be fact specific and care should be taken when applying principles derived from former cases.
Decision on appeal
The Vickerys advanced the following four grounds of appeal:
- First, the Judge erred in finding that the trees were necessary for the purposes of soil stabilisation of an embankment on the Thoroughgood’s property.
- Secondly, the undertaking provided (which related to ongoing trimming) was inadequate because it did not provide sufficient trimming obligations, lacked specificity in some areas, did not specify the frequency of trimming, and was not sufficiently clear in relation to the string line.
- Thirdly, the Judge failed to adequately consider the undue interference with the Wi-Fi signal.
- Finally, the Judge failed to undertake a comparative hardship assessment.
Fitzgerald J was not satisfied that the Judge had erred. Her Honour concluded that:
- Interference with Wi-Fi signal could constitute undue interference for the purposes of the PLA, however, there was no undue interference arising on the facts. This was based on the expert report prepared by a witness called for the Vickerys.
- The question of whether the trees were fit for stabilisation purposes was largely superfluous to the extent that it was not relevant for the purposes of determining whether the trees had been planted by the Thoroughgoods to cause undue obstruction to the Vickery’s view when ascertaining comparative hardship. However, under cross-examination. the Vickerys acknowledged that the trees do in fact perform a stabilisation purpose.
- As to the adequacy of the undertaking, Fitzgerald J held that provided the undertaking was observed by the Thoroughgoods, there was no undue obstruction of the Vickery’s view – it would only be if the trees grew to their full height that undue obstruction would likely occur.
- Because there was a finding that there was no undue obstruction, there was no need to undertake a comparative assessment.
The principles relating to s 333 of the PLA are relatively settled. In each case what is required is a balancing of interests. The jurisdiction to order removal or trimming will be exercised sparingly.
If a party is considering bringing an application for removal it is important to consider the full effects of the status quo and how they would be viewed by a Judge objectively. What is critical is that the trees in question cause an obstruction that is ‘undue’. It is also important to consider the effects on the other party.
In appropriate cases, you will be able to obtain relief from structure or trees that cause an undue obstruction. Each case is inherently fact-specific and a rigorous assessment should be undertaken prior to launching legal proceedings.