The pohutukawa tree overlooking Fergusson Park. Photo/George Novak
The pohutukawa tree overlooking Fergusson Park. Photo/George Novak
A 22-metre pohutukawa tree overlooking Fergusson Park will be felled after the Tauranga City Council decided it did not want to get into an expensive legal battle over a neighbour's legal right to insist that the tree be removed.
A Waratah St property owner who spends most of their lifein Australia, only returning to the house for holidays, decided to exercise their legal rights under a 1954 covenant that forbids views being grown out by vegetation along the top of the bank.
The application sparked an outpouring of opposition from both Waratah St residents and Fergusson Park users who wanted the tree to remain.
Mayor Stuart Crosby and six of the eight councillors who attended today's meeting agreed to not apply to the courts to modify the covenant so that the tree might live.
Mr Crosby said that while the removal of the tree disturbed him greatly, the council must uphold covenants.
Referring to an earlier 2007 challenge to seven of the pohutukawa, he said the council had reached an arrangement to retain three of the seven trees, at the goodwill of the residents that had the power to enforce the covenant.
"But that has changed for whatever reason."
Mr Crosby said it was not appropriate for any landowner to have to go to court to enforce a covenant. Seeking a modification of the covenant would be a long and expensive process with an unknown outcome.
"It would not be a cheap exercise for ratepayers."
Councillor Rick Curach said court action costing $35,000 would be a bit unreasonable given it was only one tree.
Councillors John Robson and Bev Edlin opposed, with Cr Robson saying the council should be acting in the community's interest in this matter.
"If we can't change a previous decision of the council, then I question why we are here."
The 2007 decision inferred that a trade-off had been reached with Waratah St residents in which four trees would be felled in exchange for three remaining.
He said that agreeing to this tree being removed was in effect condemning the other two pohutukawa because they would then be vulnerable to requests from residents covered by the covenant.
"I see three trees going because of a lack of clarity around decision making eight years ago," Mr Robson said.
