September 2010

Trees - Obstruction of view

Removal must not only be fair and reasonable but also necessary

A recent High Court appeal from a District Court decision highlights the use and the limitations of Section 333 of the Property Law Act with respect to removal or trimming of trees on a neighbouring property, which are obstructing the view.

In the particular case, B made an application to the District Court to remove trees on T’s property. Prior to the purchasing of the property by B, T had assured B that T would not allow the trees on T’s property to block B’s view or shade B’s property. B had completed the purchase relying on the assurance. The District Court ordered the removal of 280 pine trees from T’s property. The decision was appealed.

On appeal, the High Court held that the District Court Judge did not err in taking account of T’s assurance. The Judge simply took the assurance into account as one of the matters bearing on fairness and reasonableness. The Judge was entitled to place significant weight on this highly relevant factor.

The High Court further held that the discretion conferred by section 333 is a discretion to be exercised conservatively. In each case, the applicant is required to show undue hardship and that removal is not only fair and reasonable, but also necessary.