KEY POINTS:
Deep in the Wairarapa two neighbouring property owners have been in dispute for 12 years over a stand of trees. One householder had planted them to protect his family's privacy from a neighbour who had built a tower to take advantage of the view. It is perhaps the
most common issue between neighbours everywhere; one person's privacy, pride and joy is the next person's problem, blocking sunlight or views or both.
The Wairarapa case came to court this week and produced a judicial decision that might alarm property owners in many a leafy suburb. Judge Michael Radford in the Masterton District Court has ruled that the Garstang household's loss of view is a greater hardship than the Courteney family's reduced privacy, and granted Colin Garstang a court order forcing Steven Courteney to cut down the stand of eucalyptus trees that block the view from the Garstang's Tuscan-style tower.
The judge's comments suggest his decision was based more on the personalities and circumstances of the case before him than the principles at stake. He found Mr Garstang to be more reasonable and ready to compromise and Mr Courteney to be "not an open and completely truthful witness". Judge Radford was not convinced that the trees were essential to protect the Courteney family's privacy. The Garstang's tower was about 156m away from the Courteney's house, which was significantly screened by other trees and shrubs.
This, therefore, might not be a good test case for establishing whether the rights of property owners take precedence over the rights of others to a view, but they surely do. Households must have the right to decide for themselves how much privacy they want and if they can prevent others from looking into any part of their property, they surely have the right to do so.
It is much less clear that neighbouring property owners have a right to a view. In the Wairarapa case, the Courteney's lawyer argued that a view was not property. Judge Radford ruled otherwise. The view from the Garstang's property, he said, was a significant and important feature of their house, which was planned and specifically built for the view. But to build for a view that can be blocked by trees seems a risky proposition at the best of times. Rights to a view cannot attach to property in the same way that rights generally do. Where would a view right end?
Residents must have the right to plant anything on their property that does not physically invade another's territory or interfere with public amenities. Big trees may shade neighbouring properties to an extent and restrict their views sometimes but they also lend value to the neighbourhood. The most sought-after suburbs in any city are described as "leafy". Poor neighbourhoods have a noticeable lack of foliage.
It is always surprising when someone moves into a well-wooded urban area and sets about clearing their property, but it happens. Surrounding residents may wonder why the person moved there but there is not much they can do about it. Tree protection bylaws are hard to enforce against any but the most conspicuous specimens on private property.
When a tree causes tension between neighbours, the tree tends to be assumed guilty. Yet it may be the neighbour who simply cannot abide the slightest unwanted shade or object in view. Both sides in these disputes have to be reasonable and if courts become involved they must be careful not to make rulings that could encourage unreasonable demands.
A valued tree should not have to be felled for the sake of someone's vista. It stands to reason.
