Property Law Act 1952

  • repealed
  • Property Law Act 1952: repealed, on 1 January 2008, by section 366(c) of the Property Law Act 2007 (2007 No 91).

Trees and structures on neighbouring land

  • The heading Trees and structures on neighbouring land was inserted, as from 19 September 1975, by section 12(2) Property Law Amendment Act 1975 (1975 No 36).

129C District Court may order removal or trimming of trees, or removal or alteration of structures injuriously affecting neighbour's land
  • (1) For the purposes of this section,—

    Occupier, in relation to any land to which this section applies, means a person who is entitled to occupy the land and who satisfies the Court that he is residing or intends within a reasonable time to reside in a building erected or to be erected on the land

    Structure, in relation to any land, means—

    • (a) Any building, wall, fence, or other improvement erected on the land by any person (not being the Crown) otherwise than pursuant to a building permit or building consent issued by the local authority concerned; or

    • (b) Any building, wall, fence, or other improvement erected on the land by the Crown, not being a building, wall, fence, or other improvement for which a building permit or building consent from the local authority concerned would have been necessary if that building, wall, fence, or other improvement had been erected on the land by any other person:

    Structure: this definition was amended, as from 1 July 2003, by section 262 Local Government Act 2002 (2002 No 84), by inserting the words or building consent after the words building permit in both places they occur. See sections 273 to 314 of that Act as to the savings and transitional provisions.

    Tree includes any shrub or plant.

    (2) This section applies to—

    • (a) Any land which may be used for residential purposes under rules in the relevant proposed or operative district plan; and

    • (b) Any land on which is erected any building used for residential purposes.

    (3) The occupier of any land to which this section applies may at any time apply to a District Court for an order requiring the occupier of any other land (whether or not that land is land to which this section applies) to remove or trim any trees growing or standing on that other land, or to remove, repair, or alter any structure erected on that land.

    (4) Where the occupier of that other land is not the owner thereof both the occupier and the owner shall be joined as defendants to any such application.

    (5) On any such application the Court may make such order as it thinks fit, if, having regard to all the circumstances of the case, and, where required, to the matters specified in subsection (6) of this section, the Court considers the order to be fair and reasonable, and to be necessary to remove or prevent, or to prevent the recurrence of—

    • (a) Any actual or potential danger to the applicant's life or health or property, or to the life or health of any person residing with the applicant; or

    • (b) Any undue obstruction of a view than an occupier would otherwise be able to enjoy from the applicant's land or from any building used for residential purposes erected on that land; or

    • (c) Any other undue interference with the reasonable enjoyment of the applicant's land for residential purposes:

    Provided that, except for the purpose referred to in paragraph (a) of this subsection, the Court shall not make an order under this section relating to any tree the preservation of which is the subject of a requirement lawfully made by a heritage protection authority under the provisions of Part 8 of the Resource Management Act 1991.

    (6) In any case where the applicant alleges that a tree is obstructing his view or is otherwise causing injury or loss to him the Court, in considering whether to make an order under this section, shall have regard to the following matters:

    • (a) The interests of the public in the maintenance of an aesthetically pleasing environment:

    • (b) The desirability of protecting public reserves containing trees:

    • (c) The value of the tree as a public amenity:

    • (d) The historical, cultural, or scientific significance (if any) of the tree:

    • (e) The likely effect (if any) of the removal or trimming of the tree on ground stability, the water table, or run-off.

    (7) The conditions of any such order may, if the Court thinks fit, include conditions requiring the applicant to give security or indemnity in respect of any costs, expenses, or damage.

    (8) The Court shall not make an order under this section unless it is satisfied—

    • (a) That the tree or structure is causing or is likely to cause loss of or injury or damage to the applicant's life or health or property, or the life or health of any other person residing with the applicant; or

    • (b) That the tree or structure is obstructing any view that an occupier of the applicant's land would otherwise be able to enjoy, or is otherwise causing injury or loss to the applicant by diminishing the value of the property or reducing the enjoyment of it for residential purposes—

    and that the hardship that would be caused to the applicant or to any other person residing with the applicant by the refusal to make the order is greater than the hardship that would be caused to the defendant or to any other person by the making of the order.

    (9) Where the application relates to any land on which a building intended for residential purposes has not been erected, the Court shall not make an order under this section unless it is satisfied that such a building will be erected on the land within a reasonable time. Unless the Court, having regard to all the circumstances of the case, otherwise determines, an order made in such a case shall not become operative unless and until the building is erected, and, if no such building is erected within a reasonable time, the order may be vacated on the application of any interested person.

    (10) An order may be made under this section whether or not the wrong being caused by the tree or structure constitutes a legal nuisance, and whether or not it could be the subject of any proceedings otherwise than under this section.

    (11) In determining whether or not to make an order under this section the Court shall have regard to the time when the applicant became the occupier of his land in relation to the time when the wrong commenced, but if the Court thinks fit, having regard to all the circumstances of the case, an order may be made notwithstanding that the applicant became the occupier of his land after the wrong commenced.

    (12) Every order made under this section shall provide that the reasonable cost of carrying out any work necessary to give effect to the order shall be borne by the applicant for the order, unless the Court is satisfied, having regard to the conduct of the defendant, that it is just and equitable to require the defendant to pay the whole or any specified share of the cost of such work.

    (13) If an order made under this section in respect of the removal or trimming of any tree, or of the removal, repair, or alteration of any structure, is not duly complied with within one month after the date of the order, or within such longer period as may be specified in the order or allowed by the Court, the applicant for the order may at any time thereafter cause the land in respect of which the order was made to be entered upon and the work necessary to give effect to the order to be carried out; and, unless the Court otherwise orders, any order of the Court made under subsection (12) of this section (not being an order requiring the defendant to meet the whole of the cost referred to in that subsection) shall be vacated, and the applicant shall be entitled to recover from the defendant the whole of the reasonable cost of the work necessary to give effect to the Court's order:

    Provided that, unless the parties otherwise agree, the applicant shall not exercise the rights conferred by this subsection except with the leave of the Court, which may be granted upon or subject to such conditions as the Court thinks fit, whether as to security or indemnity against any costs, expenses, or damage, the avoidance of or making good of any injury or damage, the disposal of the trees or structure or any part thereof, or otherwise.

    (14) This section shall bind the Crown, and shall apply to all land, including Maori land, Crown land, and public reserves.

    Sections 129B and 129C were inserted, as from 19 September 1975, by section 12(2) Property Law Amendment Act 1975 (1975 No 36).

    Subsection (2)(a) was substituted, as from 1 October 1991, by section 362 Resource Management Act 1991 (1991 No 69). The word ; and has been added to ensure uniformity of style.

    Subsection (5) was amended, as from 1 October 1991, by section 362 Resource Management Act 1991 (1991 No 69) by substituting the words made by a heritage protection authority under the provisions of Part 8 of the Resource Management Act 1991 for the words by a local authority under any of the provisions of the Town and Country Planning Act 1977 or the Local Government Act 1974, (the two last mentioned Acts had been substituted for the repealed Town and Country Planning Act 1953, Municipal Corporations Act 1954 and the Counties Act 1956).