Tree protection and liability if someone suffers injury - Legalwise Seminars

Kensington Swan Associate Barbara Dean discusses challenges with the protection of trees and who is responsible if something goes wrong, with reference to recent case law and legislation. 

Introduction

Trees are all around us. They are in urban and rural environments, along our coastline, and currently in our houses with presents piled up underneath. We enjoy them for the shelter and amenity they provide. However, trees have a shady side – they can also damage property and cause injury. Recent case law provides guidance on liability for fallen branches and interference with a neighbours’ Wi-Fi signal. We also discuss regulation of trees under the Resource Management Act and under the Electricity (Hazards from Trees) Regulations.

‘Watch out overhead!’

In a recent decision, the High Court found the Queenstown Lakes District Council had a duty of care in relation to aging trees on its land which went further than expected.

In 2014 a popular tree in a park owned by the Council fell and damaged an adjacent motel and vehicles. The District Court found that, while the Council had a duty of care to the motel owner, it had not breached this duty as it had acted reasonably by engaging arborists to inspect and maintain the trees.

However, the High Court disagreed. It found that the Council’s duty of care went further than just inspection and maintenance of the trees. The Court found that:

• • The Council had a duty of care to take reasonable steps to prevent or minimise known hazards on its land from causing damage to its proximate neighbours;
  • That the standard of care is to take such steps as are reasonable for a local authority with similar hazards, powers and resources; and
  • It was reasonably foreseeable that internal decay was a major risk for the over-mature trees and it was more likely than not that a tree would fall within the foreseeable future, causing damage to the neighbouring property.

Councils should bear this decision in mind when drawing up maintenance plans, not only for their trees but also in relation to any infrastructure which may pose a known hazard to someone else’s property.

Love your neighbour’s tree?

The protection of trees in district plans is different depending on whether they are in an urban or rural environment. Councils can no longer include blanket tree protection provisions in their district plans in relation to ‘urban environment allotments’. Areas of significant indigenous vegetation or a significant habitat of indigenous fauna which is located on an urban environment allotment cannot be protected in a district plan unless each tree is specifically described and identified in a schedule to the district plan.

‘Urban environment allotments’ are not necessarily located in a built-up area or residential zone, but are serviced residential, commercial or industrial sites which are less than 4000m2 in size.

Blanket tree protection rules can still apply to sites which are not urban environment allotments, such as schools, golf courses, the road reserve, parks, areas of bush, vacant lots, larger residential lots and lots supplied by roof water or with a septic tank and in the rural environment.

Local councils specifically list trees or groups of trees in district plans if they are considered to be notable, for example, because of their age and size, for historic heritage reasons, or their importance for enriching the area or preventing erosion. If a tree is protected through district plan rules, land owners are usually required to obtain a resource consent before they can cut it down, work under it, or heavily prune it. Councils around New Zealand have varying approaches to regulating trees in their districts. While limitations on the trimming or removal of protected trees ensures their protection for the benefit of the community, the limitations can be arduous for owners of old and potentially dangerous trees.

Hate your neighbour’s tree?

The Property Law Act allows landowners to apply to the District Court for an order requiring their neighbour to remove or trim a tree. In the recent High Court decision of Vickery v Thoroughgood [2018] NZHC 2303, the Court was satisfied that “undue interference with a Wi-Fi signal caused by trees could constitute an undue interference with the reasonable use and enjoyment of an applicant’s land for the purposes of [the Act].” However, in this instance, the Judge found, based on the evidence of the independent expert, that there was no “undue” interference with the applicant’s Wi-Fi as he could put his transponder somewhere else on his property.

When it comes to heritage trees, the Court can only order the trimming or removal of a tree with a heritage order over it if there is an actual or potential risk to life, health or property. However, this does not extend to trees which are merely listed as notable or heritage trees in a district plan. The Property Law Act does not stop the Court from ordering the removal or trimming of a notable or listed tree which is not the subject of a heritage order, except that, when determining any application, the Court must have regard to the historical, cultural, or scientific significance of the tree.

Trees near power lines?

Trees growing too close to power lines can cause fires or damage the power lines by falling on them. To prevent this, the Electricity (Hazards from Trees) Regulations provide for the control of trees adjacent to electricity lines. They prescribe the minimum safe distance for trees growing near network power lines prescribing two zones: a notice zone and a narrower growth limit zone.

In most cases, the landowner has responsibility for keeping trees trimmed. A tree owner may be liable for damage to a conductor if the owner fails to comply with the regulations. Tree owners can declare they have ‘no interest’ in a tree and hand over responsibility for the tree to the lines company. However:

• • a no interest’ notice by a local authority has no effect if the tree is subject to pruning restrictions in a district plan; and
  • for listed trees on private land the lines company would, just like the land owner, have to comply with district plan rules regarding pruning or removal of the tree.

Conclusion

This summer, as you picnic in the shade of a tree, watch your kids climb trees, and perhaps do some pruning in the garden, give some thought to the legal complexities of tree regulation and liability. While trees are usually the responsibility of the landowner, who has the right to trim or remove them, there are circumstances in which the tree owner’s rights and responsibilities are regulated or can be overridden by a Court order.

Please contact the author if you have any queries about this article.

Barbara Dean is an Associate in the Kensington Swan Environment and Planning team. Barbara has more than six years’ experience practicing resource management and environmental law. She has assisted major infrastructure clients, commercial clients, local authorities and government agencies. Contact Barbara at barbara.dean@kensingtonswan.com or connect via LinkedIn.

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