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Semple v Wilson

Semple v Wilson

Case [2018] NZHC 992 9 May 2018

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-176

[2018] NZHC 992

BETWEEN
GLEN SEMPLE AND HEATHER SEMPLE

Plaintiffs

AND

BRUCE GAVIN WILSON AND AMANDA JANE WILSON

Defendants

Hearing: 16-20 April 2018

Appearances:

A G Rowe and ENH Harris for Plaintiffs

M Casey QC and J Armstrong for the Defendants

Judgment

9 May 2018

JUDGMENT OF GORDON J

This judgment was delivered by me on 9 May 2018 at 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Wells & Co, Auckland
Armstrong Murray, Auckland

Counsel: M Casey QC, Auckland

SEMPLE v WILSON [2018] NZHC 992 [9 May 2018]

Introduction

[1] The plaintiffs (the Semples) and the defendants (the Wilsons) live on neighbouring lifestyle properties at Dairy Flat north of Auckland. While they are neighbours, the relationship between the Semples and the Wilsons is far from neighbourly.

[2] The Semples claim that branches and roots from trees growing on the Wilsons’ property close to the boundary between the two properties constitute an actionable nuisance. They say they are the cause of physical damage to their property, they interfere with their use of their land and they are the cause of a significant loss of enjoyment of their land.

[3] In their first cause of action, the Semples seek a declaration that the trees be removed by the Wilsons at the Wilsons’ expense; a declaration that the roots that encroach onto their property be removed at the Wilsons’ expense; special damages; general damages and an inquiry by the Court into the full extent of the damage to their property following destructive testing.

[4] In the second cause of action, the Semples seek a mandatory injunction restraining the Wilsons from continuing or repeating the nuisances and a mandatory injunction restraining the Wilsons from permitting encroachment by the trees.

[5] The Wilsons, while accepting that there is encroachment by some branches and by some tree roots, say that this does not constitute an actionable nuisance.

The issues

[6] In order for the Semples to succeed in their claim for declarations and damages and/or an injunction, they must prove that there is an actionable nuisance. It is therefore necessary for me to determine whether the admitted encroachment by some of the branches of the boundary trees and/or the roots of those trees gives rise to an actionable nuisance.

[7] In the event that an actionable nuisance is proven, I will need to determine the appropriate relief.

Background

[8] The Semples purchased their property at 120 Blackbridge Road, Dairy Flat (No 120) in November 2012, with settlement taking place in January 2013.

[9] No 120 is approximately 2.2 hectares in size and is almost entirely covered in established bush, apart from a relatively small area at the front of the property in the north-eastern corner. That area (the living area) comprises a concrete driveway leading from Blackbridge Road, a two storeyed house, a swimming pool, a timber deck surrounding…

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 Semple v Wilson

Details

AGLC: Semple v Wilson [2018] NZHC 992
Case: [2018] NZHC 992
Decision Date: 9 May 2018

CaseChat Overview and Summary

The plaintiffs, Glen Semple and Heather Semple, sought relief from the High Court of New Zealand in Auckland Registry, against the defendants, Bruce Gavin Wilson and Amanda Jane Wilson, over the impact of trees growing on the Wilsons' property on the Semples' adjacent property. The Semples claimed that branches and roots from trees growing on the Wilsons' property constituted an actionable nuisance as they were the cause of physical damage to their property, they interfered with their use of their land and they were the cause of a significant loss of enjoyment of their land. The Semples sought a declaration that the trees be removed by the Wilsons at the Wilsons' expense; special damages; general damages and an inquiry by the Court into the full extent of the damage to their property following destructive testing. The Wilsons admitted some encroachment by some branches and by some tree roots, but said this did not constitute an actionable nuisance. The Court found that the interferences to the living area, separately and in combination, were unacceptable and constituted an actionable nuisance. The Court found that the Semples were entitled to a remedy that remediated that encroachment. The Court ordered the Wilsons to cut back to the boundary and to keep cut back to the boundary, the branches of trees 1 to 11 inclusive, at their expense. The Court also found that the Semples were entitled to an order that the root which had contributed to the damage to slab 1 be removed. The Wilsons were also ordered to contribute one-third of the cost of removing and replacing slab 1, one-third of the cost of the removal of the tree root under slab 1 and the installation of a root barrier beside slab 1. The Semples were awarded $21,462.00 in damages.

Orders