KEY POINTS:
My neighbour's tree overhangs my property. I've spoken to my neighbour who refuses to prune it. Am I within my rights to chop down the parts of the tree that are now on my property?
- Marc Dobbing, Orakei
Under property law, any parts of the tree
that are on your side of the boundary amount to nuisance so you do indeed have the right to trim.
But before you pull out the chainsaw and dust off the goggles, there are a few pitfalls to be wary of.
First, if you want to cling on to any vestige of cordial relations with your neighbour, then try talking to him or her again.
Second, know your enemy. If the offending tree is on the city council's schedule of notable trees, it will be protected for its significant historical, cultural, botanical or amenity value and receive the highest level of protection.
Even if it is a more common tree, you should also beware that you could fall foul of the law. If you damage or destroy the tree you may end up paying compensation to your neighbour.
The local authorities in the Auckland Region have afforded protection to certain trees through their district plans and the Resource Management Act. Accordingly, a resource consent may be required before you can undertake any works on the tree.
The Auckland City Council's operative district plan protects trees over a certain size throughout the Auckland isthmus in all zones.
Two categories of trees are protected by the general tree protection control:
* In most residential areas exotic (those which are not native to NZ) trees including the roots, over 8m in height or with a girth of greater than 800mm (measured 1.4m above the ground)
* New Zealand native (indigenous) trees including the roots, over 6m in height or with a girth of greater than 600mm (measured 1.4m above the ground).
In all other areas:
* Indigenous and exotic trees, including the roots, over 6m in height or with a girth of greater than 600 mm (measured 1.4m above the ground).
If you have the misfortune of dealing with a multiple-trunked pohutukawa, you'll need to be extra careful with your tape measure - the girth measurement is the aggregate or collective measurement of all trunks which have a circumference of 250mm or more.
The council warns that undertaking work on protected trees without the necessary approvals from council could result in significant fines and in some cases serious prosecution. The message is probably to err on the side of caution and contact your local council before striking out in anger. Anything that you cut off the tree remains the legal property of your neighbour whose land the tree is on. However, handing back the prunings may inflame the situation.