Owning land is a fundamental part of the quintessential Kiwi dream. We want to be the king of our own castle. There is a common belief that we (within the limits of local authority regulations) can do whatever we want with the land that we own.
Consider, then, the scenario where your adjacent neighbour on a lower slope wants to excavate their section or has removed a retaining wall. Can they, without recourse, undermine the support that is naturally occurring to your property? Luckily the answer is no.
Under the common law, you have the right to “natural support” and in return, the obligation not to interfere with the “natural support” of your adjacent or subjacent neighbours. This law does not extend a responsibility to provide support for any non-natural use your neighbour wishes to undertake on their land, such as additional building works.
The term “natural support” can be deceptive. It is not an obligation to leave the land as-is; however, it does require that whatever support was naturally occurring must be maintained. In that sense, you are able to do whatever you want with the land that you own – provided that in the course of your modifications you make allowances to maintain, uphold or preserve the status quo. What is required of you is not to use your own land in a way that adversely affects the right of another to enjoy their own land (Brouwers v Street [NZCA]).
Take, for example, you have plans to commence a large project, and as part of the process have obtained Council consents to undertake the work at your property. Does this express permission get you home free? This question was raised in the High Court in 2002 in Hawkes Bay Protein v Davidson where it was held that “even if there be compliance with planning permission, such is not a defence”. The cost of damages where support is removed will relate not only to the land affected but also include resulting damage to buildings, which can quickly become a significant issue.
The requirements of the obligation are negative rather than positive; in other words, it is an obligation not to do something, rather than to do something. We recommend getting in touch with our expert Property Law team to discuss any plans you have. We can help you understand what your obligations may be. Even where you already have consent to undertake your project, a quick chat at the beginning can save thousands of dollars, countless hours and stress down the road.
In the inverse, if you have any concerns about work undertaken by your neighbours, feel free to raise those concerns with us for a no obligation conversation about what your position of recourse might be.
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