Introduction ..........................................................................................................[1] Background...........................................................................................................[4] Preliminary matters ...........................................................................................[16] The issues ............................................................................................................[19] The relevant principles of the law of nuisance ................................................[22]
Does the encroachment by the trees constitute an actionable nuisance? ......[25] Trunks [25] Branches [29] Roots [38]

Estoppel ...............................................................................................................[50] Principles of equitable estoppel [51] The competing contentions regarding estoppel [60] The rezoning application documents [71] Analysis of the estoppel argument [84]

Remedy ................................................................................................................[84] Costs ....................................................................................................................[95] Outcome ..............................................................................................................[96]

Introduction

[1] The plaintiff, Blakesfield Limited (Blakesfield) developed a residential subdivision at Prebbleton. It is the owner of three sections intended for sale which share a boundary with the property of the defendants, Ayleath and Lee Foote (the Footes).1

[2] Along this boundary stands a line of eucalyptus trees (the trees) which encroach onto the Blakesfield land, and which, Blakesfield claims, interferes with the use of its property and constitutes a nuisance.

[3] Blakesfield seeks a declaration or injunction to the effect that the trees be removed or cut back as is necessary to remove the encroachment. The Footes dispute the claimed nuisance and Blakesfield’s entitlement to relief.

Background

[4] In 2010, a corporate predecessor to Blakesfield, was granted a planning change allowing land the subject of a proposed development to be rezoned from rural, to deferred residential. In October 2012, a resource consent was granted, permitting it to subdivide the property into residential sections.

[5] As a condition of the resource consent, a five metre wide landscape mitigation strip was required to be developed along various boundaries of the subdivision. This included the boundary with the Footes’ property. The planting requirements stipulated the planting of deciduous trees of a minimum height of 1.5 metres at 10 metre spacings and native shrubs to form a continuous screen to achieve a mature height of approximately 2.5 to 3 metres.

[6] Blakesfield has sold all but four of the sections in the subdivision. Three of

the lots that have not been sold border the Footes’ property, along which lie the trees.

1 The defendants are described in the statement of claim as the registered proprietors of the property contiguous with the Blakesfield land.

[7] The Footes’ property is a 2.5 acre lifestyle block which they purchased in November 2008. They built a house on the property, and have resided there since December 2010. At the time they purchased the property, it was surrounded by shelterbelts typical of Canterbury, comprising mature gums and poplars. One of these shelter belts lies along their boundary with the Blakesfield land. It substantially comprises the eucalyptus trees about which Blakesfield complains. It has been under-planted with shrubs and there are other trees, including…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Blakesfield Ltd v Foote

Details

AGLC: Blakesfield Ltd v Foote [2015] NZHC 1325
Case: [2015] NZHC 1325
Decision Date: 11 June 2015

CaseChat Overview and Summary

Blakesfield Limited (Blakesfield) sought a declaration or injunction to remove or cut back trees encroaching onto its property from the adjacent land of the Footes. The High Court of New Zealand ruled that the overhanging branches of the trees constituted an actionable nuisance, but that Blakesfield was estopped from removing all the trees. The court found that the Footes reasonably relied on Blakesfield's representations regarding the shelterbelts in deciding not to object to the rezoning application. However, the detriment to the Footes was limited, and it was not unconscionable for Blakesfield to seek relief for the nuisance. The court granted a declaration that some of the trees should be removed, subject to a limited estoppel preventing the removal of all the trees. The court ordered the Footes to remove certain trees and to raise the canopy of the remaining trees to six metres above ground level, with branches not to protrude across the boundary more than 2.5 metres. The Footes were also ordered to ensure that all debris and cut foliage were removed from the land once the work was complete. The court reserved costs and directed the parties to attempt to agree on costs or file memoranda if they were unable to agree.

Orders