Yandle v Done HC Tauranga CIV-2009-470-798

[2010] NZHC 1044

For a Court ready (fee required) version please follow this link

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2009-470-798

UNDER  the Property Law Act 2007

IN THE MATTER OF     an appeal pursuant to s 72 of the District

Courts Act 1947

BETWEEN  CHRISTOPHER ALLAN YANDLE AND LORNA RUTH YANDLE

Appellants

ANDGRAHAM DONE AND CAROLINE DONE

Respondents

Hearing:         12 May 2010

Appearances: Mr M Rawnsley for Appellants

Mr M Ward-Johnston for Respondents

Judgment:      31 May 2010 at 4 pm

JUDGMENT OF LANG J

[on appeal against orders made under s 333 Property Law Act 2007]

This judgment was delivered by me on 31 May 2010 at 4 pm , pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:

Evan Turbott Law Office, Tauranga

Annan & Co, Tauranga
Mr M Rawnsley, Pakuranga, Auckland

Mr M Ward-Johnson, Tauranga

YANDLE V DONE HC TAU CIV-2009-470-798  31 May 2010

[1]      This appeal involves a dispute between neighbours.  It concerns a row of nine alder trees that the appellants, Mr and Mrs Yandle, planted within their rural lifestyle property situated at Pahoia near Tauranga.  The trees are now of a height and density that they obstruct sea views formerly enjoyed by their neighbours, Mr and Mrs Done.

[2]      Mr and Mrs Done brought proceedings in the District Court at Tauranga seeking orders under s 129C of the Property Law Act 1952 requiring Mr and Mrs Yandle to trim the trees so that their views would be restored.   By the time the application came to be heard, the Property Law Act 2007 was in force.  As a result, the application fell to be determined under that Act rather than the 1952 Act.

[3]      After a defended hearing that spanned three days, His Honour Judge Ingram granted the Dones’ application in a comprehensive decision that he delivered on

4 July 2009.

[4]      Mr and Mrs Yandle now appeal against the Judge’s decision.  They contend that the Judge wrongly exercised his discretion under the Act in favour of the Dones. Alternatively, they contend that he granted relief that was too wide in all the circumstances.

[5]      Before dealing with the discrete issues that the appeal raises, it is necessary to set out the factual background in greater detail.

Factual background

[6]      Mr and Mrs Yandle purchased their property in 1995.  It is a large lifestyle block located at the end of a rural road that runs off the main highway between Waihi and Tauranga.

[7]      The property is situated at the end of the Pahioa peninsular, which extends into the Tauranga Harbour and looks out across the harbour towards Omokoroa and Matakana Island.

[8]      The Yandles began developing the property in 1997, and have now built a very large house on it.  They have sited and oriented the house as to maximise the views that the property enjoys of the harbour.  They have surrounded the house with park-like grounds, including extensive artificial water features.  An important feature of the property is the manner in which it is planted.   The Yandles have carefully planted a wide variety of trees and shrubs around their property.  Most of these are some distance from the house, which is surrounded by very large areas of mown lawn.  The trees and shrubs have been planted not only for aesthetic purposes, but also so that they screen the house and its surrounds from neighbouring houses.  That aspect of their landscaping programme is what has led to the present dispute with the Dones.

[9]      On the top of a ridge behind the house is a very large house owned by a Mr and Mrs Beardsmore.  The Beardsmore house is approximately 250 metres from the Yandle house, and looks directly down onto it.

[10]     Between the Beardsmore house and the Yandle house is the property owned by the Dones.  It lies approximately one-third of the way down the hill leading from the Beardsmore house to the Yandles’ house.  Like all of the houses in this area, the Dones’ house is designed and oriented to maximise the extensive harbour views that their property enjoys.  It does not overlook, and cannot be seen from, the Yandles’ house.

[11]     The boundary between the Yandle property and the Done property is directly in front of the Dones’ house and just a short distance away.   The Done property enjoys the benefit of a small height restriction zone over a portion of the Yandles’ property that lies directly in front of the Dones’ house.  The height restriction zone was obviously intended to ensure that the harbour views that the Done property enjoyed could not be built out by further development on that part of the Yandle property.

[12]     The  Yandles’  house  was  originally  screened  to  some  extent  from  the

Beardsmore house by a row of gum trees that had been planted along the rear

boundary of the Done property.  Those trees were planted by a Mr and Mrs Pascoe, who originally owned the Done property.

[13]     In  or about 2000  the Pascoes  advised the Yandles that they intended  to remove the gum trees.  As a result, the Yandles planted the alder trees that are the subject of this litigation.  Their purpose in doing so was to create a privacy screen between their house and the Beardsmore house.   It has taken ten years for that purpose to be fully achieved.  The row of alders now completely screens the Yandle house from the Beardsmore house.

[14]     The Dones purchased their property from the Pascoes in 2005.   The alders were then five years old, and were just visible from the Done house.  Photographic evidence  produced  at  the  hearing  before  the  Judge  showed  that  the  alders  had minimal impact at that time on the harbour views that were then available from the deck and interior of the Done house.

[15]     At the time that the Dones purchased their property, they were aware that there was some tension between the Yandles and the Pascoes.   It seems that they assumed that they would be able to resolve those issues, but that has not proved to be the case.  During the summer months the alders now completely obscure the harbour views that the Done property used to enjoy.   They are still some way from being fully grown, and are likely to be several metres higher, and considerably more dense, by the time they reach full maturity.

[16]     The Yandles steadfastly refuse to allow the trees to be trimmed.  As a result, there is now an impasse.  Not surprisingly in a dispute of this type, relations between the parties have deteriorated to the point where any remaining goodwill between them has long since evaporated.

[17]     The acrimony between the parties was heightened by an event that occurred after the Dones had issued proceedings in the District Court.  It occurred after the Yandles decided that they needed an implement shed.   They elected to build it immediately in front of and below the Done house.   The building was originally constructed with a normal roof line but, whilst the Dones were overseas on holiday,

Mr and Mrs Yandle constructed a ventilation cap on the roof of the shed.  Although the ventilation cap remains below the line of the height restriction, it is nevertheless unsightly to say the least.   On returning from their holiday overseas, Mr and Mrs Done were confronted with this unwelcome addition to their view.    They have no option but to accept it, however, because the building does not infringe the height restriction.

[18]     The alders that are the subject of this proceeding are planted in a line just beyond the new implement shed, as seen from the Done property, and they presently rise approximately five or six metres above the ventilator cap on top of the Yandles’ implement shed.  The alders therefore screen the implement shed from view from the harbour side of the Yandles’ property.

The Property Law Act 2007

[19]     Section 333 of the 2007 Act provides the District Court with a discretion to require the owner of land upon which trees are located to trim or remove the trees if they unduly obstruct the views enjoyed by a neighbouring property.   It relevantly provides:

333Court may order removal or trimming of trees or removal or alteration of structures

(1)A court may, on an application under section 334, order an owner or occupier of land on which a structure is erected or a tree is growing or standing—

(a)     to remove, repair, or alter the structure; or

(b)     to remove or trim the tree.

(2)An order may be made under subsection (1) whether or not the risk, obstruction, or interference that the structure or tree is causing—

(a)     constitutes a legal nuisance; and

(b)     could be the subject of a proceeding otherwise than under this section.

…

[20]     Section 333 appears to provide the court with a wide discretion to make orders, but that is not the case.  The court may only make an order under s 333 if it is permitted to do so having regard to the matters referred to in s 335.   Section 335 provides as follows:

335Matters court may consider in determining application for order under section 333

(1)In determining an application under section 334, the court may make any order under section 333 that it thinks fit if it is satisfied that—

(a)     the order is fair and reasonable; and

(b)     the  order  is  necessary  to  remove,  prevent,  or  prevent  the recurrence of—

(i)      an actual or potential risk to the applicant's life or health or property, or the life or health or property of any other person lawfully on the applicant's land; or

(ii)     an undue obstruction of a view that would otherwise be enjoyed from the applicant's land, if that land may be used for residential purposes under rules in a relevant proposed or operative district plan, or from any building erected on that land and used for residential purposes; or

(iii)    an undue interference with the use of the applicant's land for the purpose of growing any trees or crops; or

(iv)    an undue interference with the use or enjoyment of the applicant's land by reason of the fall of leaves, flowers, fruit, or branches, or shade or interference with access to light; or

(v)     an undue interference with any drain or gutter on the applicant's land, by reason of its obstruction by fallen leaves, flowers, fruit, or branches, or by the root system of a tree; or

(vi)    any other undue interference with the reasonable use or enjoyment  of  the  applicant's  land  for  any purpose for which it may be used under rules in the relevant proposed or operative district plan; and

(c)     a  refusal  to  make  the  order  would  cause  hardship  to  the applicant or to any other person lawfully on the applicant's land that is greater than the hardship that would be caused to the defendant or any other person by the making of the order.

(2)In determining whether to make an order under section 333, the court must—

(a)     have regard to all the relevant circumstances (including Maori cultural values and, if required, the matters specified in section

336); and

(b)     if applicable, take into account the fact that the risk, obstruction, or interference complained of was already in existence when the applicant became the owner or occupier of the land.

(3)Despite subsection (2)(b), an order may be made under section 333 if, in all the circumstances, the court thinks fit.

[21]     The use of the word “may” in the heading of s 335 is deceptive.  It suggests that the court has a discretion as to whether or not to have regard to the factors listed in the section.  That is not, however, the case.  It has no ability to make any order unless and until it is satisfied regarding the issues listed in subsections (a), (b) and (c) of subsection (1).  It is then required to have regard to the considerations referred to in subsection (2).

[22]     The restrictions on the exercise of the court’s discretion do not end there. When an order is sought in relation to trees, the court is also required to have regard to the factors listed in s 336.  It provides:

336     Further considerations relating to trees

(1)A court determining an application under section 334 for an order for the removal or trimming of a tree under section 333 must 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)     any historical, cultural, or scientific significance of the tree:

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

…

[23]     The present statutory scheme is structured differently to s 129C of the 1952

Act but, to a large extent, it imposes requirements and restrictions on the exercise of the discretion that mirror those contained in the earlier legislation.  For that reason,

authorities decided under the 1952 legislation  remain relevant to the  manner in which the current legislation is to be interpreted and applied.

[24]     Many of those authorities are decisions of the District Court, which  has primary responsibility for applying the Act.  The leading authorities in this Court are Warbrick  v  Ferguson  HC  Auckland  CIV  2004-404-687,  23  June  2004  and Courteney v Garstang HC Masterton CIV 2007-435-37, 29 October 2007.  In both those cases the Court gave extensive consideration to the manner in which the 1952 legislation was to be applied.

[25]   In Warbrick, Keane J rightly described the discretion conferred by the legislation  as  an  intricate  one,  involving  as  it  does  the  balancing of  competing legitimate interests.  In both cases the Court confirmed that the discretion must be exercised cautiously.   That approach reflects, in my view, the fact that the Act derogates significantly from the ability of a landowner to plant trees on his or her property regardless of the effect that that may produce for others in the vicinity.

The approach to be taken on appeal

[26]     Both counsel accepted that the power to make orders under s 333 of the Property Law Act 2007 involves the exercise of a judicial discretion.   As a result, it is not open to an appellate court to conduct a rehearing or to substitute its decision for that of the court below on the basis that it would have exercised its discretion in a different way.

[27]     An appellate court may only disturb the exercise of a judicial discretion in limited circumstances.   It may interfere if the appellant can demonstrate either that the Judge in the court below erred in principle in exercising his or her discretion, or that the decision is plainly wrong.    Error of principle may include failing to have regard to a relevant consideration or taking into account an irrelevant consideration: Alex Harvey Industries v CIR (2001) 15 PRNZ 361 at 364.

Issues

[28]     Although counsel for the appellants advances the appeal on numerous fronts, five essential issues need to be determined.  They are as follows:

1.Was the Judge correct to conclude that the trees constitute an undue obstruction of the view that Mr and Mrs Done would otherwise enjoy from their land?

2.Was the Judge entitled to conclude that a refusal to make the order would cause hardship to Mr and Mrs Done that was greater than the hardship that would be caused to Mr and Mrs Yandle by the making of the order?

3.Did the Judge fail to take into account the fact that the trees were in existence when the Dones acquired their property?

4.Was the Judge entitled to conclude that it was fair and reasonable for an order to be made?

5.Did the order that the Judge made go beyond what was necessary to prevent the trees from being an undue obstruction?

1.       Was the Judge entitled to conclude that the trees constitute an undue obstruction to the view that Mr and Mrs Done would otherwise enjoy from their land?

[29]     This issue arises because s 335(1)(b) only permits the court to make an order under  s  333  if  it  is  satisfied  that  the  order  is  necessary  to  remove  an  undue obstruction of a view that would otherwise be enjoyed from the applicant’s land.

[30]     The Judge determined this issue as follows:

[42]      The first issue is whether there is an undue obstruction of a view that would otherwise be enjoyed from the applicants’ land or residence.  As is clear  from  the  photographic  evidence,  the  nine  Alder  trees  block  a

significant water view from all the living areas of the Dones’ property, and from the deck attached to the house.  That impression from the photographs was reinforced by my visit to the property, which brought home to me the extent to which the orientation of the Done house restricted enjoyment of the available southern views. To argue, as counsel for the Yandles has, that only a small arc of view from the Dones’ property is affected by the screen is Alder trees, is to ignore the location and orientation of Done dwelling on the site it occupies.

[43]     While it is true that the Done property as a whole has sweeping southern views, the dwelling is sited and oriented to take advantage of the previously available water view, and only that view.  The views to the south and south-east from inside the house, and the vast majority of the extensive deck, are extremely limited.  The orientation of the dwelling on the property has clearly been decided upon by reference to the water views that were available when the dwelling was built.  Those views are no longer available because the Alder trees have grown up to the point where the water views are limited to meagre glimpses in winter when the trees are not in leaf, and which views are effectively blocked by trees in full leaf. The practicably available view from the Done dwelling at present is of an implement shed with a screen of trees on its seaward side.  If the trees are trimmed, pleasant and  extensive  harbour  views  to  Matakana  Island  and  the  Omokoroa peninsula would become available from the Done’s dwelling and deck.  By comparison, the harbour view is infinitely preferable.

[44]     Accepting as I do that the dwelling is sited and oriented to take advantage of the water view which the nine alder trees now block, I find as a fact that the nine Alder trees provide an undue obstruction of the view from the Done dwelling and deck.   Little emphasis was put on inference with access to light and concomitant shade by the applicants, and that aspect of matters pales into insignificance compared to the amenity and capital value of the water views that would be enjoyed from the Done residence were it not for the nine Alder trees.

[31]     It can be seen from these passages that the Judge did not expressly articulate the manner in which he interpreted the term “undue”.   It is therefore necessary to ascertain   whether   the   conclusion   that   he   reached   was   consistent   with   the interpretation that needs to be given to it in this statutory context.

[32]     The Act does not provide any definition of the term ”undue”, and it does not provide any express guidance regarding the circumstances in which an obstruction will be regarded as being undue in terms of s 335(1)(b).  It is therefore necessary for the court to provide an interpretation that accords with Parliament’s intention when it enacted the legislation.

[33]     The 1952 Act also required the obstruction to be undue, but there has not been a great deal of judicial consideration given to the manner in which the term

“undue” should be interpreted under that Act.   It was not the subject of express comment in either Warbrick or Garstang, and decisions given in the District Court do not appear to have considered it in any depth.

[34]     Counsel for the appellants referred me to the definition of “undue” in the New  Shorter  Oxford  Dictionary,  which  is  “going  beyond  what  is  warranted  or natural: excessive, disproportionate”.   I agree that that provides a useful starting point in the present context.

[35]     It must also, however, be interpreted in accordance with the objects and purposes of the Act.  The object and purpose of these particular statutory provisions are, in my view, to provide a strictly regulated mechanism whereby a landowner can be required to trim or remove trees in order to remove the excessive, unwarranted or disproportionate obstruction of a view.   The need for tight control reflects Parliament’s concern that, without strict regulation of the manner in which the discretion is to be exercised, there is significant potential for injustice and inequity to arise. That could easily occur if the courts had an unfettered discretion to require a landowner to remove or trim trees whenever they obstructed a neighbouring party’s view.

[36]     Parliament has therefore chosen to use the  word “undue” in  s 335(1)(b) deliberately.  In doing so, it has imposed an obligation on the court to evaluate the degree of obstruction having regard to relevant and often competing interests.

[37]     In some cases, the only relevant factor will be the extent to which the trees obstruct the applicant’s view.   That may occur where the trees serve no function from the perspective of the landowner on whose property they are situated, and when the factors listed in s 336 have no application.

[38]     Usually, however, the major competing interests will be those that relate to the landowner on whose property the trees are located.   These will include the landowner’s right to determine how his or her land is to be used for purposes that in all other respects may be lawful and immune from challenge.  Included within that right is the right to plant trees and shrubs as he or she sees fit.  In many cases, and

the present case is a good example, the landowner will seek to preserve the privacy that the trees create from intrusion by neighbouring properties.  At least some of the factors listed in s 336 may also need to be taken into account.

[39]     For this reason it is not necessarily appropriate to approach the issue solely from the perspective of the party whose view has been obstructed.  Had that been Parliament’s intention, it would not have used the word “undue” in s 335(1)(b).   It would have used another adjective such as “significant” instead.  That would have required the court to focus solely on the degree or extent to which the view was being obstructed.  It would not have permitted the court to also have regard to other competing interests, including those of the landowner on whose property the obstruction is located.

[40]     Although he did not expressly enunciate the underlying principles in this way,  Miller  J  clearly  applied  them  in  the  following  passage  in  Courteney  v Garstang:

[54]      Weighing these considerations, I accept that it was open to the Judge to  conclude that the obstruction is  undue.   In  particular, the trees were planted, reasonably enough, to protect the Courteneys’ privacy and rural outlook,  but  some  of  them  have  now  attained  a  height  substantially exceeding that necessary to protect those interests.  And the obstruction has been compounded because the planting are both very dense and immediately adjacent to the boundary.  The obstruction from the studio is substantial; the trees there exceed the height of the studio by some metres.   Three trees outside the tower have just attained a height equal to the top of the tower, but the obstruction will worsen as they and others grow and fill out.  Elsewhere the trees (of all species) are of mixed but generally lower height.

[41]     Applying these principles to the present case, I accept that the Judge erred in the approach that he took.  The passages set out above at [30] demonstrate that he approached the issue solely from the perspective of the Dones, and the effect that the trees have on their property.  That was obviously a relevant factor, but it was not the only relevant factor here.   The right of the Yandles to use their property in any lawful way that they wished, and their right to achieve privacy from their neighbours by any lawful means, were also important factors that needed to be factored into the equation.  It is therefore necessary to re-evaluate the issue of whether or not the trees constitute an undue obstruction of the view that the Dones would otherwise enjoy from their property taking that factor into account.   Although some of the factors

referred to in s 336 need to be taken into account in determining whether or not it was fair and reasonable to make an order, I do not consider that they are of sufficient significance in the present case to warrant them being taken into account in deciding whether the trees constitute an obstruction that is undue.

[42]     I  accept  without  reservation  the  correctness  of  the  Judge’s  conclusions regarding the effect of the trees so far as the Dones’ property is concerned.   Like him, I had the opportunity to inspect both the Yandles’ property and the Dones’ property in the company of counsel.  Without that opportunity, I would have been severely handicapped in understanding the positions adopted by both parties.

[43]     I was left in no doubt as a result of what I saw during my inspection that the trees have a major effect on the Dones’ property.  During the summer months they completely obscure the harbour views that the Dones would otherwise enjoy from their front deck, kitchen, living room and master bedroom.  All of those areas have been sited and oriented expressly to maximise those views.   They have also been oriented to maximise their exposure to the sun.

[44]     It is no answer, in the present case, to say that the Dones still enjoy views in other directions.  It is true that their property also enjoys extensive rural views and views out towards the Kaimai ranges.   Those views are impressive.   They are, however, very much secondary to the harbour views that all of the houses in this particular area seek to take advantage of.  For that reason, the Dones’ house is not orientated so as to take advantage of the other views that are available to it.   The person who originally built the house cannot be criticised for the way in which they elected to site it.  They could not have foreseen what has now occurred.

[45]     The present situation, bad as it is for the Dones, will get even worse in the years to come as the trees approach maturity.  During the inspection that I undertook, counsel were surprised by the extent to which the trees have grown during the

12 month period since the hearing in the District Court.   They estimated that they had grown at least a metre during that period.   Once the trees reach full maturity, they will present a dense barrier of foliage just a short distance away from the front of the Dones’ house.

[46]     Some measure of what is to come can be gauged from three mature alder trees that are situated to the left of the alder trees that are the subject of this proceeding. They are 3 to 4 metres higher than the younger alders, and their branches and foliage are considerably more dense.   The thought of the younger trees being permitted to reach their full natural height and density must be an extremely depressing prospect for the Dones.

[47]     On the other hand, the prospect that the trees might be trimmed or removed must also be an unwelcome one for the Yandles.   If that occurs, the Beardsmore house will once again look down upon them, and they will look up at it.  That will detract significantly from the ambience of the Yandles’ property, because the stark appearance of the Beardsmore house does little to add to the aesthetic features of this rural neighbourhood.

[48]     Removal  or  trimming  of  the  trees  will  result  in  the  occupants  of  the Beardsmore house having an unobstructed view of the outside patios at the front and side of the Yandles’ house.  Those are the areas in which the Yandles spend time during summer evenings.   The Beardsmore house will also look into the master bedroom on the second floor of the dwelling, and also into a landing on that floor where the Yandles have positioned comfortable chairs to take advantage of the late afternoon sunlight.  The occupants of the Beardsmore house will also be able to see into Mr Yandle’s office, and into one part of the main living room.

[49]     Counsel for the Yandles submitted, and I accept, that privacy is generally regarded as a prime value whereas, as Keane J pointed out in Warbrick at [37], a view is fortuitous.   A view depends upon elevation and prospect, and is often at risk of being obstructed or obliterated by the actions of adjoining landowners.

[50]     Having said that, it is necessary in this area of the law to exercise care when applying the principles enunciated in other cases.  All the cases in this area are to a large degree fact specific.  Factors that may be very important, for example, in the context of a densely populated urban environment may not have quite the same significance when applied to a rural setting.

[51]     If privacy generally is a prime value, privacy in the bedroom or bathroom is probably paramount.  For that reason I rank the Yandle’s need for privacy in their master bedroom as being the most important reason for the trees’ existence.  I accept that, particularly at night when the lights in the Yandles’ house are switched on, the trees currently prevent the occupants of the Beardsmore house from seeing into the left hand side of the bedroom.  Without that screen, the occupants of the Beardsmore house will be able to look into the room and see at least one half of the Yandles’ bed. That is not a prospect that any reasonable person would relish.

[52]     I rank the ability of the Yandles to sit outside on their patios in private as the next most important benefit that the trees currently provide.  Without the screening effect of the trees, the Yandles will probably always be conscious of the existence of the Beardsmore house when they are sitting outside.   Having said that, the house owned by a Mr and Mrs Miller-Hard lies a short distance away to the north of the area where the patios are located.   Although the living areas of that house do not overlook them directly, the Miller-Hard house is a central feature of the view from the Yandles’ patios.   The existence of that house means that the Yandles cannot claim that the trees provide them with complete privacy from neighbouring houses.

[53]     I rank the privacy that the trees provide for the balance of the Yandles’ house as being less important.  The living area is unlikely to be seriously affected because the existence of a pergola shields the Beardsmore house from much of that area of the living room in any event.  The privacy that the trees provide for the landing is also likely to be of lesser importance, because that area does not appear to be used extensively by the Yandles.   I do not consider that the trees provide a significant degree of privacy to Mr Yandle’s office, because the desk in the office is well away from the window that looks out towards the Beardsmore house.

[54]     Against  that  assessment  of  the  competing  interests,  I  return  to  consider whether the obstruction caused by the trees is undue, in the sense of being excessive or disproportionate.  There is no easy answer to this question, because the concerns that both parties hold are entirely legitimate.

[55]     The assessment of whether or not the obstruction is undue becomes, as is so often the case, a question of degree.  From the Dones’ perspective, the obstruction of their view is now virtually complete in summer months.  Over the next few years it will be complete at that time of year.   The extent of the obstruction is therefore extremely significant, if not total.  The harbour views that the property previously enjoyed will shortly be completely replaced by a dense wall of trees a short distance from all the outdoor and indoor living areas of their house.   By any measure the obstruction for them is at the very upper end of the scale.  It affects the day to day use and enjoyment of virtually the whole of their house.

[56]     I also consider that in a rural and coastal neighbourhood such as this, the existence of a view is not as fortuitous as it may be in an urban environment. A person who acquires a house or a section in a city street may be able to maximise the existing view to a certain extent.  Often, however, an urban view will be limited or one-dimensional, and there will be little that the landowner can do to improve it.

[57]     The position is very different in relation to properties such as those with which this proceeding is concerned.  They are large properties, and offer a variety of potential building platforms.   The view from each property is multi-dimensional, with rural, mountain and water views all on offer.  The owners of these properties are also blessed with sufficient room to orient their houses so as to ensure that they maximise their exposure to the sun.  All of this means that the water views that the Dones’ house formerly enjoyed were not entirely fortuitous.    The house has been carefully sited  and oriented so as to maximise the views and sunshine that the property enjoys.  The obliteration of those views removes their prime feature, and seriously detracts from the ability of the occupants of the property to enjoy it.

[58]     For the Yandles, on the other hand, the trees protect but part of their overall privacy.   Much of their house is completely unaffected in privacy terms by the existence of the trees.  It also needs to be remembered that the Beardsmore house is approximately 250 metres away from the Yandles’ house.  That is greatly different, for example, than the situation that often occurs in an urban environment when a loss of privacy occurs within a very confined space.  This is not a case of the neighbours being able to stare into the Yandles’ property from across the back fence.

[59]     Balancing the competing interests, I have concluded that the scales tip firmly on the side of the Dones.  Like the Judge, albeit by a somewhat different route, I find that the alder trees amount to an obstruction that is undue in terms of s 335(1)(b).

2        Was the Judge entitled to conclude that a refusal to make the order would cause hardship to Mr and Mrs Done that was greater than the hardship that would be caused to Mr and Mrs Yandle by the making of the order?

[60]     The Judge dealt with this issue as follows:

[46]      What hardship would the Dones suffer if an order were refused? Their property would increase in value by $85,000 if an order were made restoring the view they enjoyed when they bought the house.  Relative to the value of the property if the Alders had not been allowed to grow to  a height that obstructed the available views, the Dones have suffered a quantifiable diminution in the value of their property.  They have lost the very significant amenity that a water view provides to the inhabitants of the dwelling.  In my view those matters are the very essence of the concept of hardship that the legislature had in mind when creating the essentially ameliorative discretion contained in these sections of the Act.

[47]      Diminution in the privacy of their dwelling, the attendant loss in value of their property, diminution in their enjoyment of their house, and the reduced amenity value of the trimmed trees as opposed to trees in natural form, are all matters of some significance to Mr and Mrs Yandle.   But at some  250  metres  from  the  Beardsmore  property,  being  downhill  at  a relatively steep angle and with partial but nevertheless significant screening from other trees on the property, I am satisfied that the loss of privacy due to the removal of the nine Alder trees would be minor compared to the privacy intrusion existing by reason of the overview of the property by the much nearer neighbours, the Hard-Millers.

[48]      In my view the hardship caused by the limited loss of privacy which would be caused by trimming the Alder trees is an order of magnitude less than the hardship caused to the Dones by a refusal to direct trimming of the trees.   Such loss of privacy as the Yandles will suffer they have already experienced as the alder trees have grown since 2003 when the Pascoes removed the screen of trees on what is now the Done property.   Their privacy could easily be enhanced by provision net curtains, blinds, or other internal privacy screens within the dwelling, none of which, on the evidence, seem to have been required by the Yandles as the Alder trees have grown.

[49]      Even without screens, the 250-metre gap from the Yandle dwelling to the Beardsmore dwelling by itself provides a very substantial measure of privacy, which seems to have sufficed since 2003.   Relatively few people can see much at all of human activity at such a distance, most people being unable to discern much more than the outline of a human figure.  The actual effect of any trimming of the trees on the Yandles’ privacy would not be great in my view, given the distances involved.

[50]     Whilst  the  continued  growth  of  the  Alders  would  enhance  the privacy of the Yandle dwelling, the privacy afforded by the Alder trees is substantially limited to the period when they are in full leaf.  The orientation of the line of Alders is such as to provide a measure of enhancement of the screening even during the period when the trees are not in leaf, but the extent of such enhancement is limited.

…

[57]      It is accordingly my assessment that the increased financial value of the Done property, coupled with the amenity value to the Dones of the restoration of significant water views from both within their dwelling and its immediate surrounds, vastly outweighs the hardship caused to the Yandles by  an  order  directing  trimming  of  the  trees.    Although  the  balance  of hardship is not readily susceptible to articulation, the view that I took and the evidence that was put before me leaves me in no doubt that the applicant’s have established a significant balance of hardship [in] favour of making an order that the trees be trimmed.

[61]     Counsel for the appellants criticised this aspect of the Judge’s decision to the extent that it was based on evidence relating to the likely increase in value of the Dones’ property if the trees were trimmed.  Counsel submitted that this factor was irrelevant to the balancing exercise that the Judge was required to carry out under s 335(1)(c).

[62]     The 1952 Act made express reference to the issue of diminution of value. Section 129C(8) of that Act provided as follows:

129C District  Court  may  order  removal  or  trimming  of  trees,  or removal or alteration of structures injuriously affecting neighbour's land

(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.

[63]     Counsel  for  the  appellants  contended  that  the  fact  that  Parliament  has excluded this aspect of the 1952 Act from the current legislation was significant.  He submitted that it meant that the fact that trees may diminish the value of the applicant’s property was no longer a factor that the court could take into account when considering whether or not to make an order under s 333.

[64]     I disagree with this analysis.   The effect of the omission, in my view, is different to that for which the appellants contend.  Section 129C(8)(b) of the 1952

Act prohibited the court from making an order unless it was satisfied of the existence of one of the four scenarios listed in the subsection.   Diminution in value of the applicant’s property was one of those grounds.  All of the grounds were expressed to be in the alternative.  As a result, an applicant could avoid the prohibition imposed by s 129C(8) if it satisfied the court that trees on a neighbouring property were diminishing  the  value  of  the  applicants’  property,  or  if  they were  reducing  the enjoyment of the applicant’s property for residential purposes.  In addition, however, the applicant had to satisfy the court that the hardship that it would suffer if an order was refused would be greater than the hardship that the defendant would suffer if the order was made.

[65]     There was nothing, however, in the 1952 Act to prevent the diminution in value of the applicant’s property from also being taken into account when assessing the relative hardship to the parties if an order was made or refused.  The fact that the applicant may have relied upon that factor to avoid the prohibition under s 129C(8) was immaterial, because the requirement to satisfy the hardship assessment was an additional, and not alternative, requirement under the subsection.

[66]     Section 129C(8) has no counterpart in the 2007 Act.  The court is no longer prohibited from making an order unless specified criteria are established.  Instead, it is now permitted to make an order so long as it is satisfied that similar, but not the same, criteria are met. One of the criteria that Parliament has retained in the 2007

Act is the requirement under s 335(1)(c) that a refusal to make the order would cause greater hardship to the applicant than the hardship that the defendant would suffer if the order was made.

[67]     I see nothing in the 2007 Act to suggest that diminution in value of either the applicants’ property or the defendants’ property is now irrelevant to the hardship assessment that the court is required to undertake under s 335(1)(c).  The fact that the applicant’s land may be diminished in value may be one aspect of the hardship that an applicant  will suffer if an order is not made.   Conversely,  the fact that the defendant’s land will diminish in value may be relevant to the assessment of whether the defendant will suffer hardship if an order is made.   The importance of this particular factor will obviously vary from case to case.  I do not consider, however, that Parliament intended it to be excluded completely from consideration in this context.

[68]     In the present case, the Judge heard evidence from a valuer called by the Dones to the effect that their property would be worth approximately $55,000 more if the trees were trimmed than it is currently worth. He rejected the evidence of the Yandles’ valuer regarding the loss of value that their property would suffer if the court made an order requiring the trees to be trimmed.   He did so because the Yandles’ valuer was not able to point to any sales data that supported his view.  The Judge accepted, however, that the Yandles would undoubtedly suffer some loss in value if the trees were to be trimmed.   He assessed this as being no more than

$20,000 to $30,000.

[69]     The passages from the Judge’s decision that I have set out at [60] confirm that the Judge took the valuation evidence into account when making his hardship assessment.  For the reasons I have just given, I consider that he was entitled to take that approach, and I do not consider that he fell into error by doing so.

[70]     I  also  reject  the  appellants’  submission  that  the  Judge  ought  to  have concluded that the Dones would receive a windfall if he made an order in their favour.   That windfall was said to be the amount by which their property would increase in value if the trees were trimmed.  The simple fact of the matter is that the Dones’ property would be worth more if the trees were not there, or if they were trimmed  so  as  to  restore,  either  partially  or  fully,  the  view  that  their  property formerly enjoyed.  It has therefore suffered a diminution in value by virtue of the fact that the trees have grown to a height and density whereby they obstruct the view

from the Dones’ property.   There was nothing in the evidence to suggest that the Dones paid less for their property in 2005 because of the existence of the trees.  For that reason the Dones would not receive a windfall profit if the trees were trimmed so as to restore all or part of the view that they used to enjoy.  The value of their property would merely revert to the level that it would always have had but for the existence of the trees.

[71]     It is clear in any event that the Judge did not base his decision solely on the basis of the valuation evidence.  As the passages set out above demonstrate, he also decided the hardship issue on the basis of the hardship that the Dones will suffer if the trees are not trimmed.  If that does not occur they will, to use the Judge’s words at [46], lose the very significant amenity that a water view provides to the inhabitants of the dwelling on the Done property.   I agree with the Judge that that particular issue was important in  the context of this  case.  I consider, in  fact, that it was sufficiently important to enable the hardship assessment to be determined in favour of the Dones on its own.

[72]     The Judge also gave weight at [48] to his perception that, if an order is not made, the Yandles have some ability to counter the loss of privacy that they would suffer if an order was made.  They could use shutters, screens or curtains to prevent the occupants of the Beardsmore house from being able to see into their bedroom. They could also erect screens to enhance the privacy of their patio areas.  The Dones, on the other hand, have no ability to mitigate the obstructive effects of the trees. This, too, was clearly a relevant factor that the Judge was entitled to take into account.

[73]     It follows that I do not accept that the appellants have demonstrated that the Judge erred in principle in determining the issue of hardship.  He was entitled, for the reasons that he gave, to conclude that the hardship to the Dones would be greater if an order was refused than it would be to the Yandles if an order was made.

3        Did  the  Judge fail  to take  into  account  the  fact  that  the  trees  were already in existence when the Dones acquired their property?

[74]     The Judge was required by s 335(2)(b) to take into account the fact that the trees were already in existence when the Dones became the owners of their land. Counsel for the appellants accepted that the Judge referred to this issue in his decision.   He contended, however, that when the Judge’s decision is analysed, it becomes clear that the Judge did not really have regard to it at all.

[75]     In order to appreciate this argument it is necessary to set out the Judge’s reasoning in relation to this issue in full:

[62]     Turning to the remaining relevant circumstances, it is clear that Mr and  Mrs  Done  came  to  the  property  after  these  trees  had  already  been planted, and the trees were visible to any prospective purchaser in the shoes of the Dones at the time that they purchased the property.  I accept that Mr and Mrs Done either knew, or ought to have known that the trees that they could see would grow, eventually impinging upon the available view of the Tauranga harbour.

[63]      In that context however I consider it to be relevant that the Yandles have built an implement shed in a location which could perhaps charitably be  described  as  unfortunate  from  the  Dones’  point  of  view.    Asked  in evidence whether, in deciding where to site his implement shed, Mr Yandle had taken into account the interests of his neighbours, Mr and Mrs Done, his response was a flat “no”.   The size, nature and location of the implement shed was readily apparent in the photographs produced in evidence, but the scope and scale of its intrusion upon the otherwise arboreal and rural views from the Done dwelling and surrounds is not easy to glean from a mere photograph.

[64]     Whilst it is true that the Yandles are entitled to build an implement shed on their own property, and the structure is compliant with the height restriction, the effect of the location of that shed on the Dones’ views from their dwelling is of major significance.   The nature and extent of that building’s intrusion  into the  views  from the  Done’s  dwelling cannot  be overstated in this context.  In my view, the decision to site such a building directly in front of a neighbour’s house is extraordinary (sic) careless of an immediate neighbour’s feelings and interests.   Ordinary neighbourliness would indicate at least some consultation, discussion and consideration of the  neighbour’s  interests,  before  making  a  decision  which  would  so obviously have a large and lasting impact upon them.

[65]     The decision to site that shed immediately in front of Mr and Mr’s Done’s dwelling, without reference to them, puts the issue of coming to the nuisance into proper perspective.  The relative effects of the erection of the shed on the enjoyment of the Done property by the residents, as against the effects of trimming nine trees on the enjoyment of the Yandle residence by

its residents, are in my view orders of magnitude apart in effect upon a neighbour.

[66]     That  aspect  of  matters  can  properly  be  taken  into  account  in evaluating the fact that the Dones came to the property after the trees had been planted and were visible.  It is clear that s 335(3) provides a residual discretion to allow the Court to make an appropriate order, notwithstanding that the applicant has come to the problem, as the Dones have done in this case.  In my view, given the history of the dealings between the parties and the relative effects upon the parties if an order were to be made, in all the circumstances this would be an appropriate case to exercise the Court’s discretion in favour of making an order.

[76]     These passages confirm that the Judge accepted that the Dones ought to have appreciated when they purchased their property that the alder trees were there, and that they would eventually obstruct their view of the harbour.   It is also clear, however,  that  he  regarded the  manner in  which  the  Yandles  came  to  erect  the implement shed directly in front of the Dones’ house as an important factor in assessing the weight to be given to this issue .  He also considered that that factor enabled him to exercise his residual discretion under s 335(3) in favour of the Dones.

[77]     The manner in which the Judge approached this issue is understandable, because the erection of the implement shed occurred well after the litigation in the District Court had commenced.   It also clearly contributed significantly to the breakdown in the parties’ relationship as neighbours.  It needs to be borne in mind, however, that the Yandles were fully entitled to build the shed where they did.  They were also careful to observe the height restriction in relation to both the roof of the shed and the ventilation cap.  Their action in building the implement shed directly in front  of  the  Dones’  house  may well  be  described  as  unneighbourly.    I do  not consider, however, that it could be taken into account when assessing the weight to be given to the fact that the Dones knew of the existence of the trees when they acquired their property.    It occurred well after the trees were planted and after the Dones acquired their property.  It really had nothing to do with the central issues that arise in relation to the exercise of the statutory discretion under s 333.  I also doubt that it could be relevant to the exercise of the residual discretion under s 335(3).  For that reason I accept that the Judge erred when taking the erection of the implement shed into account when considering the weight to be given to s 335(2)(b).

[78]     The Dones cannot escape the fact that they knew that the trees existed when they acquired their property.  They also knew, or ought to have known, that the trees would eventually achieve a height that would seriously interfere with their view of the harbour.  That factor must be given weight in determining the next issue, which is whether the Judge was correct to conclude that it was fair and reasonable to make an order under s 333.

4        Was the Judge correct to conclude that it was fair and reasonable to make an order under s 333?

[79]     Thus far I have upheld the Judge’s decision that the alders constitute an undue obstruction to the view formerly enjoyed by the Dones‘ property.  I have also confirmed that the Judge was correct to conclude that the hardship assessment favoured the making of an order.   Ordinarily an applicant who has succeeded in relation to those issues has gone a considerable way towards persuading the court that an order should be made in its favour.

[80]     It is always necessary, however, for the court to stand back and consider whether, notwithstanding the conclusions that it has reached in relation to those particular issues, it is nevertheless fair and reasonable that an order be made.  At that point all of the relevant circumstances of the case must be considered and weighed in the mix.

[81]     In the present case, the Judge had no difficulty in reaching the conclusion that it was fair and reasonable to make the order that the Dones sought.  He accepted that there would be some minor diminution in the privacy enjoyed by the Yandles if an order was made.  That would lead to a concomitant loss of enjoyment in the amenity value of their property as a whole.   He considered, however, that that would be “miniscule” compared to the effect that refusal of an order would have for the Dones and their ability to enjoy their property.   Provided the work was carried out by a competent contractor at the Dones’ expense, he could not conceive of any realistic basis upon which it could be said that an order would be unfair to the Yandles.

[82]     Counsel for the Yandles submitted that the Judge erred in principle when he assessed the magnitude of the loss of privacy that the Yandles will suffer if an order is made.  He contended that that loss of privacy is a major issue for the Yandles, and that the Judge’s approach marginalised it to the point where it assumed no practical relevance.

[83]     I accept that counsel for the appellants has correctly summarised the Judge’s approach in relation to this issue.  It is clear that the Judge took the view that the Yandles will not suffer greatly in terms of loss of privacy if an order is made.  The reality, however, is that the making of an order will cause the Beardsmore house to overlook the Yandles’ property.   As I have already accepted, that will inevitably create a reasonably significant loss of privacy for certain parts of the Yandles’ house and their outdoor living areas.

[84]     This  does  not  mean,  however,  that  the  Judge  erred  in  principle.    The difference between the approach that he took and that which I might have taken reflects a difference in the weight to be given to the loss of privacy that the Yandles will suffer if an order is made.  In an appellate review of the exercise of a discretion the weight to be given to relevant factors will not, however, be amenable to review unless it produces an end result that is plainly wrong.   In the present case I have already held  that  the  trees  create  an  undue  obstruction  and  that  the  balance  of hardship favours the making of an order.  Both conclusions rest, at least in part, upon my determination that the Judge was entitled to conclude that any loss of privacy that the Yandles will suffer if an order is made is outweighed by the outcome for the Dones if an order is not made.  That determination means that the weight that the Judge gave to the loss of privacy that the Yandles will suffer did not lead to a conclusion that can be said to be plainly wrong.

[85]     It  is  now  necessary  for  me  to  re-assess  the  weight  to  be  given  to  the mandatory consideration under s 335(2)(b), namely that the Dones acquired their property when the trees were already in existence.

[86]     Considerable weight will generally be given to this factor.   A party who acquires a property with full knowledge of a problem cannot assume that the court

will assist it to make the problem go away.  The purchase price that such a party pays for the property may also reflect the fact that the problem exists.  A party who pays less for a property because a particular problem exists might receive a windfall profit if the problem was later removed with the assistance of the court.   That outcome might not be fair and reasonable in terms of the Act.

[87]     This principle is not, however, absolute.  The fact that Parliament has sought fit to enact s 335(3), which makes permits the court to make an order even where s

335(2)(b) tells against that outcome, means that knowledge of an existing source of obstruction will not necessarily be determinative.   Other factors may persuade the court  that  it  should  make  an  order  notwithstanding  the  fact  that  the  applicant acquired the property when the problem was already in existence.

[88]     In the present case, I consider that there are, in fact,  factors suggesting that the court should make an order notwithstanding the fact that the trees had already been planted by the time the Dones acquired their property.

[89]     First, there is the fact that the trees were not very high when the Dones bought their property in 2005.  Had they already been fully mature at that time, the Dones would have no grounds to complain about them now.   They would be met with  the  response  that  they  acquired  the  property  with  full  knowledge  of  the problem.   I accept that this does not alter the fact that the Dones ought to have known  that  the  trees  would  continue  to  grow  and  impede  their  view.    Often, however, it is difficult to gauge the probable height and density of trees once they reach maturity.   That is likely to have been the position so far as the Dones were concerned.

[90]     Secondly,  the  Dones  appear  to  have  believed,  perhaps  naively,  that  they would be able to reach some form of accommodation with the Yandles that would enable the trees to be trimmed to an agreed height.  Sadly, that has not proved to be the case.   I am not in a position to say why that result has not been able to be achieved,  although  I gather from  the Judge’s remarks (at [10]) that part of the difficulty lies in the fact that the Yandles did not know about the existence of the height restriction when they purchased their property.   It appears that they have

always sought a solution that includes the removal of the height restriction from their property.   Not surprisingly, the Dones have not been prepared to agree to that.   I accept, however, that the Dones did not acquire their property acting on the assumption that they would be able to invoke the assistance of the court to resolve the problem that they knew existed.

[91]     Thirdly, this is not a situation in which the Yandles have planted the trees in order to achieve privacy from the activities of the Dones.  In Courteney v Garstang Miller J referred at [15] to the fact that, where the applicant has built in such a way that interferes with another’s privacy, he or she must accept that the other person may take reasonable steps to restore it.  To a large extent the Dones are the innocent victims in this case, because the Yandles planted the trees in order to gain privacy, not from the Dones’ house, but from the Beardsmore house. The Dones did not create the problem that the Yandles have sought to fix.

[92]     In saying that, I acknowledge that the previous owners of the Dones’ property might be said to have precipitated the planting of the alders.  The Pascoes prompted the Yandles to plant the alders in 2000 when they told the Yandles that they were going to remove the row of gums that was then planted on the rear boundary of the Pascoes’ property.  The Pascoes then took that step in 2002, thereby fully exposing the Yandles’ property to the Beardsmore house.  Photographs of the view from the Yandles’ house before the gums were removed show quite clearly, however, that they only provided a partial screen.  The Beardsmore house was still clearly visible from the Yandles’ house even when the row of gums was in existence.  The fact that the Pascoes removed the gums does not, in any event, alter the important fact that the problem for the Yandles is the existence and prominent location of the Beardsmore house.   Other than the fact that it enjoys the benefit of the height restriction, the Dones’ property has never presented any problem for the Yandles.

[93]     Overarching these factors is the level of obstruction that the trees have now created, and the hardship that they are causing, and will continue to cause, for the Dones.  I take the view that it would be wrong in the circumstances of the present case, and contrary to the policy of the Act, for s 335(2)(b) to prevent the Dones from obtaining relief under the Act.  That result would, in my view, produce an injustice

greater than any injustice that might be caused by a failure to give decisive weight to the fact that the trees were already in existence when they bought their property.

[94]   I therefore agree with the Judge, albeit for different reasons, that the circumstances of this case are such that the court would be entitled to exercise its residual discretion under s 335(3) in favour of the Dones notwithstanding the fact that the trees were already in existence when they purchased their property.

[95]     Counsel for the Yandles also submitted that the Judge had failed to give weight to the mandatory considerations listed in s 336, which relate specifically to the amenity and other values of trees within the environment.  He said that this was an important factor in the present case, because the Western Bay of Plenty District Council  has  now  notified  a  proposed  District  Plan  under  which  the  Yandles’ property will be situated within a new Landscape Management Area.   This will apparently affect both the alders and the implement shed.  Counsel also submitted that the Judge had ignored the fact that the trimming of the alders would result in adverse landscape and visual amenity effects for both the Yandles’ property and users of the Tauranga Harbour.

[96]     Counsel did not fully develop his submission regarding the effect of the proposed District Plan, so I am not entirely sure how it would directly affect any order that the Court might make.  I cannot conceive, however, of the possibility that it might operate to trammel the statutory power of the court under s 333 to order trees to be trimmed.   If there is real concern that the new plan will impact on the court’s order in the future, the appropriate way to deal with that issue is to reserve leave to the parties to seek further or varied orders once the need arises.

[97]     I do not, however, accept the submission that the Judge failed to give weight to the amenity and other values of the trees.   He made reference to that issue at several points in his decision.  He also found (at [60]) that complete removal of the trees would have a limited effect on the aesthetics of the environment, but that a trimmed line of trees would provide the amenity value of screening the implement shed so that it could not be seen by those using the harbour.  He considered that the trimming of the trees would almost completely preserve their public amenity value.

In addition, he held (at [61]) that a trimmed line of trees would not be out of place in this particular rural environment.  He reached that conclusion having regard to the fact that trimmed shelter belts are a distinctive feature of the Bay of Plenty landscape because of the proliferation of kiwifruit orchards in the area.

[98]     There are no other factors about this case that would render it unfair or unreasonable for an order to be made.  I therefore uphold the Judge’s conclusion that it would be fair and reasonable in terms of s 335(1)(a) for an order to be made requiring the Yandles to trim the trees back to the point where they no longer present an undue obstruction to the views enjoyed by the Dones’ property.

[99]     This leads to the final issue I am required to determine.   It is whether the order that the Judge made went beyond what was necessary to prevent the trees from being an undue obstruction.

5        Did the order that the Judge made go beyond what was necessary to prevent the trees from being an undue obstruction?

[100]   The Judge made an order directing that the trees were to be trimmed annually to such height below the roof of the implement shed as would prevent them from being seen by a person of 180 cm in height standing on the front deck of the Dones’ house.  The Dones were to meet the cost of trimming the trees, which was estimated at the time of the hearing to be $65 plus GST per tree.

[101]   Counsel for the appellants contended that the Judge wrongly decided that all nine alders should be trimmed.  He argued that the Judge ought to have adopted a more conservative approach, and that he should have required fewer trees to be trimmed.  This would have restored some views to the Dones’ property whilst at the same time maintaining a degree of privacy for the Yandles.

[102]   This issue clearly provoked considerable debate at the hearing before the Judge, and it was the subject of some discussion in the Judge’s decision.  The Judge said that he had given it considerable thought, but had ultimately concluded, by a comfortable  margin,  that  the  Yandles  would  not  receive  any  significant  or

measurable benefit if six trees were trimmed as opposed to nine.  The Dones, on the other  hand,  would  have  sweeping  views  if  all  nine  trees  were  trimmed.    That outcome would effectively restore all of the views that their property had previously enjoyed.

[103]   This issue has given me considerable concern as well.  There can be no doubt that  the trimming of  all  nine trees  would  produce  considerable  benefits  for  the Dones’ property.  The trimming of fewer trees would also produce limited benefits for the Yandles, because the Beardsmore house will be exposed to a large extent even if only five or six trees are trimmed.

[104]   It is very important, however, to give effect to the principle that the court must  exercise  its  discretion  under  these  statutory  provisions  in  a  conservative manner.    It  will  often  not  be  appropriate  to  make  an  order  that  restores  the applicant’s views completely, because that would go beyond what is required to prevent the obstruction of those views from being undue.  It also needs to be borne in mind that, when the court is considering what orders it should make, it is not necessarily engaged in a balancing exercise in which competing outcomes are weighed.   Rather, it must tailor its orders so that they interfere to the minimum extent possible with the rights of the party on whose land the trees are located.

[105]   I consider that that principle needs to be applied in the present case.   If an order requiring a lesser number of trees is sufficient to prevent the obstruction of views from being undue, that is the order that the court should make.

[106]   The inspection of the Dones’ property that I undertook suggests that the shape of the row of alders may have changed since the Judge undertook his inspection.  The five trees at the left hand side of the row are now of a significantly different height, shape and density to the four trees at the right end of the row.  To some extent they now form two distinct formations rather than a single line of trees. This means that trimming part of the row would not necessarily produce a lopsided effect that would detract from the amenity value of the trees.

[107]   I have concluded that the obstruction that the trees present will cease to be undue if the five trees  on the left hand side  were to be trimmed to  the extent indicated by the Judge.  That would restore virtually full water views to the kitchen, living room and master bedroom of the Dones’ house.   It would not restore those views fully to the second bedroom, but that is a matter of much less significance.  It would leave the four trees to the right hand side intact.  This would restore privacy to the landing area of the Yandles’ house.

Result

[108]   The appeal is allowed to the extent that the Judge’s orders are varied so that they apply only to the five alders at the left hand end of the row of trees as viewed from the Dones’ property.  In all other respects the appeal is dismissed.

[109]   It will now be necessary for the parties to give formal effect to the Judge’s directions, varied only by the terms of this judgment.

Costs

[110]   Both parties have succeeded to an equal extent on the appeal.   I therefore direct that costs are to lie where they fall.

Lang J