Needled by a pine

Colin Flavell above North Shore Council land which he paid to clean up and replant. He says the new trees will block neighbours' views. Photo / Greg Bowker

They say you shouldn't take on City Hall, says Colin Flavell quietly, though still relatively brightly given he's spent three years taking on North Shore City Council and has just lost his latest battle.

Flavell calculates he's at least $30,000 out of pocket after a fight which has twice gone all the way to the Environment Court.

The council hasn't added up how much ratepayer money they've spent, but a council officer said the general consensus was "much too much" and that they, too, are stunned the case has gone on and on.

This tremendous saga, believe it or not, is over a Norfolk pine, an exotic tree hated by many, loved by others.

Well, that's how the dispute began, anyway, back in 2007, but then it evolved into the most bizarre of quarrels.

Flavell called in the Weekend Herald to expose the apparent silliness, and we went along because it all seemed too daft for words.

Flavell says he never used to think of himself as an obsessive type. He owned a construction company and did well building factories. He retired early and comfortably.

But he has become obsessed with this fight, which has both annoyed and bewildered him.

Just over three years ago, Flavell wanted to get rid of a big Norfolk pine growing in the front of his leafy Bayswater section, right on the edge of where he and wife Val wanted to put in a Japanese garden.

Val does ikebana, or Japanese flower arranging, and the house is Japanese in style. The new garden was to be all about peace and tranquillity.

The treewas there before they moved into the Marine Parade house, so had been merrily growing away for more than 25 years.

It had reached about 20m, was probably 40 to 50 years old, and was certainly an eye-catcher.

But not only did it completely overshadow the planned Japanese garden, it was constantly dropping fronds and heavy seed pods all over the drive and blocking the drain, sometimes causing knee-deep flooding at the road entrance.

The tree's branches were so long they were nearly growing into the windows of the studio at the front of the section, and on the other side were tangled in the neighbour's pohutukawa.

On top of that, an arborist said the tree was in decline.

The Flavells knew they couldn't just chop down a tree of that size, so off they went to the North Shore City Council to request the proper resource consent.

Trees are a serious business. Every council in the country has strict rules about what you can - and can't - chop down.

You can't have people chainsawing historic, iconic or landmark trees willy-nilly, though planned changes to the Resource Management Act have raised fears that may happen.

Currently, when a tree is over a certain height (depending on which council is involved) the council has rights over the tree regardless of who owns the land.

Once permission has been granted to fell a big tree, the owner can be required to mitigate any adverse effects under the Resource Management Act.

Flavell's plan was to replace the pine with a Himalayan cedar, which had the right twisty shape to suit the new-look garden. These trees can grow much bigger than Norfolk pines however, and the idea was to keep the cedar trimmed to around the five-metre mark so it wouldn't cause problems or obstruct his or his neighbours' views and light, but mainly because it would suit the garden's style.

The council said no, he could not fell the Norfolk pine, so off the case went to a hearing of three planning commissioners.

Flavell reckons one of the commissioners asked him if he wanted to wait a year because the tree was likely to be so sick by then it would have to come down anyway.

Flavell said no, he wanted to get on with the Japanese garden, so the commissioners batted the thing back and forth for four hours.

In the end, despite strong opposition from the council arborist, the vote was two to one in Flavell's favour and they shook hands.

Great, thought Flavell, and there you might think the saga would have ended.

It was just beginning.

When the written decision arrived, he was concerned to see a lot of conditions had been added, which he says were not discussed at the hearing.

Included was a clause that he would have to get further resource consent just to prune the tree and that the council would monitor its progress.

Flavell thought this must be a mistake so went ahead and chopped the pine down and put the cedar in, while trying to contact the council to remedy the mistake.

There was no mistake. He spent the next year or so writing and replying to council letters. He claims the council was trying to bully him into letting it take control of the cedar.

Eventually, he lodged an appeal against the conditions with the Environment Court. The day finally came and the judge directed Flavell and the council to go to mediation.

Flavell says he's not allowed to say what went on in mediation but after much to-ing and fro-ing he reckons he came up with a compromise.

Across the road from his neighbour's house is a bank of council land, overgrown with raggedy gorse and scrub, which used to be quite nice until there was a slip about 25 years ago. So Flavell offered to give the council some money to clear up the land and replant there.

He reckons everyone at mediation thought this was a great idea. The council estimated about $3000 to $3500 should do it, but Flavell thought that at roughly 70m of land the cost would be more and offered them $5700.

During the mediation there was discussion about the planting of new trees, including two specimen trees, but Flavell says he went away with the distinct impression the mediator was expecting these to be sensibly planted and of a size where they would not grow to become obstructive.

The council even forwarded him a quote, which he says indicated it would clear the whole area. It had been an expensive solution but at least the fight was finally over, he thought.

It was about to get worse.

One day Flavell came home to see a council contractor clearing and planting a small strip of the reserve, but only the bit right in front of his house and not the 70m he thought he was paying for.

He asked the contractor when he was going to finish the rest and the contractor said, "this is it".

"I said, 'you're joking'. He said 'no, no'."

The council had, in Flavell's eyes, moved from bullying to spiteful behaviour - because right across the road from where the old Norfolk towered now grows a new Norfolk pine.

Next to the new pine are the three pohutukawas and next to them another Norfolk, all within about 10m of each other, lined up with the width of his boundary.

Flavell says within a decade or so the trees will be so dense they will begin to block not just his view but the views, and light, of his neighbours.

The view isn't the point, he told us. At least, not for him, because he also has sea views on the other side, wide panoramic views of the city and harbour and a deck on which to sit and enjoy them.

It's the neighbours on either side who will lose their view, and some light.

Flavell swung back into action, getting reports from arborists who were critical of the planting and an engineer's report which said the new trees would eventually damage the bank and lead to road slippage.

Armed with these reports, Flavell was back in the Environment Court last week. A dispute over a tree had now reached the point where a full bench of the Environment Court - a judge and two planning commissioners - spent quite a bit of time deliberating over how big an area 20m3 of brown mulch would cover.

By now, you might be wondering whether this is a case where an individual with money can drag a council through the courts when, legally, that council has done nothing wrong.

Or you might be wondering whether this is a case of a resident who wins the first battle only to be outwitted by council staff, and who then takes them to a court which is powerless to help.

Because that is what happened last week in Environment Court.

At the end of the two-day hearing, the judge said the council and Flavell seemed to have a different understanding regarding the planting to be undertaken with his money, but that there was no evidence to support Flavell's contention the council had been spiteful. But the judge did have concerns with the new planting.

At one stage, he said to the council: "What we are struggling with is why would you put five trees within about two to three metres of each other right at the base of the crib wall, when there is some 75m of land there... Why have we got five trees, that are very different to anything else there, planted so close together?"

The court believed the quote from Ace of Spades had indicated the whole area would be rehabilitated and planted, not just the patch in front of Flavell's house.

The judge encouraged the two parties to sort the problem out. Though it was clear the court wanted to do something about the Norfolk pines, it found it did not have the power to issue a declaration.

In summing up, where the judge said the council was free to plant what it liked, he also said: "I must say that as a court we are disappointed in the way this money has been expended.

"It appears to us unwise to allow trees to grow in their current placement and we consider Norfolk pines in particular likely to create continuing problems as they grow taller; and pohutukawas less than three metres apart will also constitute problems."

The Weekend Herald asked the council later if it felt it had got value from Flavell's money in clearing the bank and the new planting.

"Well, that was allowed by the court, that was allocated by the court," said Stefan Naude, the council's resource management group manager.

"He did what he did and there was a condition that was then met with that money, so, you know, it's not whether, you know, that we get bang for the buck, we did what we had to do, could do, with that amount of money."

Naude says no one in the council was gunning for Flavell and that, as a resident, Flavell had exercised his democratic right, but the council had won.

Don't forget, it was Flavell who had pushed and pushed, he said.

"We shouldn't have had to expend any money on it because... he brought an enforcement order against the council which was dismissed by court."

Naude says someone going to such lengths in a case like this is so rare "it's unheard of".

Flavell, though, says this is only because most people do not have the money or the stamina to carry on.

He takes heart from the fact the judge did not award the council costs and claims a moral victory.

But if he'd known what he was in for, he says he probably would have just waited that extra year until the first Norfolk pine died anyway.

PART OF THE LANDSCAPE

Gary Taylor, of the Environmental Defence Service, is not fond of Norfolk pines.

He thinks they're weeds and has sympathy for Colin Flavell's situation.

It sounds a bit perverse, he thinks, that a council would plant the large-growing exotic species in a leafy suburb where smaller-growing natives might have been more appropriate.

The society's chairman, though, is very worried about planned changes to the Resource Management Act, which will remove a clause giving councils blanket protection rules over trees.

Under the reformed act, by 2012 councils will have to list in a schedule any tree they want protected.

With Auckland to turn from seven councils into one SuperCity in 2011, the new council will have to identify all the trees it wants protected from Kaipara to the Bombay Hills.

The timeframe is unrealistic, says Taylor.

And while councils probably now have too much control over trees, he says the amendment would swing the pendulum too far the other way.

"It's going from arguably excessive regulation to potentially no regulation."

The flipside to potentially easier felling of problem Norfolk pines is that the felling of iconic and native trees would also be made easier.

He says the value of trees, exotic or otherwise, varies according to the urban environment and should be considered individually.

Whereas Bayswater is a leafy suburb with plenty of trees, in suburbs such as Albany, which don't have many trees left, any tree is a good tree.

And in Napier, where Norfolk pines are planted along the waterfront, they are iconic and part of the identity of the town, "so there's no one-size-fits-all philosophy around this thing".

Auckland City Council has already said it will let landowners choose whether trees on their property be protected under changes to the RMA, but Phill Reid of North Shore City Council says the general protection rules have been in place since before 1994 for good reasons.

Trees are protected according to different categories.

A notable tree is listed for reasons such as heritage - it may have been planted by a famous person - or for landscape reasons where it can be seen across the city.

But people can apply to trim or remove even notable trees and that's what the resource consent system is for.

With generally protected trees, height and girth are the requirements, from 8 metres for natives, 10 metres for exotics and 15 metres for some of the fast-growing exotics.

Height becomes important because the tree is changes from offering value to just the property owner to include neighbours and communities.

And once a tree has that neighbourhood or community value, it gets into the realm of planning.

"Our responsibility is to protect the public good and the tree forms part of what is considered to be part of what is a community asset."

Norfolk pines tend to score highly on the landscape and historical part of the notable tree assessment.

They were often planted in the colonial days to assist with navigational purposes, such as one in Devonport which is still used by sea plane pilots to line up their landing.

They were also once a symbol of colonial residence, so ships far off at sea could tell there were colonists in a particular location.

Councils across Auckland now have to consider the implications of the RMA amendment, because inevitably some people will chop down important trees.