Reprieve for tree as legal row brews

The council faces a difficult legal situation to save the 35-year-old pohutukawa following the actions of a Waratah St property owner whose views were partly obstructed by the tree.

A landmark pohutukawa threatened with felling above Fergusson Park has been given a three-week reprieve to give Tauranga City Council time to explore ways to save the tree.

Waratah St residents and park users signed a 300-signature petition presented to the council yesterday.

The council faces a difficult legal situation to save the 35-year-old pohutukawa following the actions of a Waratah St property owner whose views were partly obstructed by the tree. He has engaged a lawyer to force the council to honour a 1961 legal agreement (covenant) which protects the views of 75 residents living along the ridge above the park.

Pleas to stop the tree from being felled were led by Barbara Johnson who jointly owns a Waratah St property that was a party to the covenant.

She said it was one of three remaining pohutukawa that were an iconic feature of the park, playing an important ecological role including a roost for grey heron and other bird life. A popular memorial seat had been been installed under the shade of the tree.

Mrs Johnson revealed that nine of the 13 people whose views were directly affected by the tree opposed it being felled. Of the rest, one was the person seeking to enforce the covenant, one resident was non-committal and two could not be contacted.

She said the person bringing the action lived permanently in Australia and only visited the house intermittently.

The rights of one property owner that did not permanently reside in the house was over-riding the wishes of 70 per cent of the others who were also directly affected by the tree, she said.

"Because people have the right to have the tree cut down, it does not make it the right thing to do."

Mrs Johnson said thinning or trimming the tree would be acceptable, but council arborist Josh Trafford said the pohutukawa would effectively be reduced to logs if it was cut to the 1.4m to 1.6m height demanded by the covenant.

Retired lawyer Michael Batchelor said it was a selfish and reprehensive view to take that because the covenant was there, the tree must come down.

He said a covenant was an agreement and agreements could be changed.

"Times have changed - the council represents all of the people in the city."

Asked about the consequences of the council ignoring the covenant, council's legal and governance services manager Kirsty Downey-McGuire said that under the Property Law Act anyone that derived a benefit from the covenant could apply to the courts to have it enforced. The covenant was a legally binding instrument and it would open the floodgates if the council sought to put it to one side.

The council unanimously supported Councillor Catherine Stewart's bid to let the matter lie on the table for 20 working days to see if it was possible to modify the covenant.