Co-director of a Nelson property development firm, Duane Whiting, said he'd never experienced a legal case as difficult and long-running as that of a dispute with a neighbour over trees on a boundary line. Photo / Tracy Neal
Co-director of a Nelson property development firm, Duane Whiting, said he'd never experienced a legal case as difficult and long-running as that of a dispute with a neighbour over trees on a boundary line. Photo / Tracy Neal
A subdivision development company in dispute with a neighbouring property owner over boundary trees has learned it would struggle to get its case over the line because it’s not a human.
Nelson residential property development company KFW Developments was seeking an order for the removal of trees along a boundary of its new subdivision, but the neighbour, David McNicoll, wanted the trees - some of which were as high as 14 metres - to remain as they were.
An 11th-hour decision came down to the minutiae of the height of one house on the new subdivision, next to those beside it, in relation to the trees on the boundary.
As the doors at the Nelson District Court were being locked last Thursday evening, the parties had an agreement in principle, and a judge’s warning hanging over them.
The focus of the dispute is a shelterbelt (above the red pin in the image) containing trees as high as 14 metres, which bounds a new development in Stoke, Nelson, off Andy Whiting Place. Photo / Google
Judge Chris Tuohy said failure to reach an agreement on one final sticking point would mean the hearing would be aborted and the parties would have to start again.
“That’s the best I can do,” Judge Tuohy said, having told them he was losing patience after an hour of thrashing out how best to trim a line of trees so it was not a jagged mess of differing heights.
Judge Tuohy began the case by saying it was different to many other disputes between neighbours, which were almost always about “two sets of humans”.
This time it involved a company pitted against neighbours - the property developer wanted to remove the trees and replace them with native species; the homeowner wanted to keep the existing trees, which acted partly as a shelterbelt.
KFW Developments’ lawyer Luke Acland said it was regrettable it had got to the stage of needing the court’s input, as the parties had been close to an agreement.
KFW co-director Duane Whiting told NZME outside court the matter had ended up there after an initial agreement in 2020 to remove some of the trees turned sour.
Whiting said after the neighbour had earlier agreed that some of the trees could be removed, he came back wanting what Whiting described as restrictive covenants placed against each new home in the subdivision, including a ban on domestic cats.
“It’s absolutely ridiculous. In my time as a developer, I’ve never experienced anything as difficult as this,” Whiting said.
He said it had cost the company between $50,000 and $60,000 in time, delays and legal costs.
McNicoll declined to talk with NZME outside court, on his lawyer’s advice.
In court, it was clear he was particularly concerned about the health of the trees and the impact it would have if they were trimmed too heavily.
Acland said what was keeping the parties apart was the competing interests in the trees, which KFW said were disproportionate for a residential environment.
The row was made up of about 100 trees planted one metre apart, which meant it was technically a shelterbelt along the property boundary and shaded the northeast-facing homes on the new subdivision from the morning sun.
A shelterbelt was neither a fence nor a hedge and therefore not covered by the Nelson Resource Management Plan.
Acland told the Nelson Weekly last year that Nelson City Council had taken a “very narrow interpretation” of the plan and the council was essentially permitting Nelson residents to grow shelterbelts on residential land.
Judge Touhy said that was not what the court was worried about.
The immediate issue before it was the status of the applicant and whether the development company could be the applicant, as it was technically no longer the owner of (all) the land.
Because some of the sites had already sold or were under contract, that meant the developer was no longer the owner, and the matter of the trees would be up to each of the subdivision’s new homeowners.
Judge Tuohy, who had not struck a similar case in his legal career, said a company could not claim a loss of privacy or quality of life.
“The company itself is not a human person - it doesn’t have to sweep litter and doesn’t suffer from shade over its home. This is about the people, and those living in the homes.”
