"The tree has been trying to kill us for the last few years - that's the bottom line. It's gradually dying," said Mt Albert property owner James Gilderdale as his 39m tall Norfolk Pine was felled today.
"I'm a greenie. I love trees and I was very, very happy to have it on the property, but since we have been on the property, the tree has declined severely," he said, adding that one contractor had quoted $47,000 to remove it.
Contractors were on-site early today to remove the Woodward Rd tree, whose tip was struck by lightning some years ago.
The contractors, who Mr Gilderdale asked not to be named, had ropes running from the tree's top to the ground, were abseiling up and down and operating a large wood chipper.
Lower branches of the tree, which stands about 6m from the house, were removed before 10am and one contractor in a scissor-lift cherry picker was more than half-way up, sawing smaller branches and dropping those to the ground.
Part of Woodward Rd's footpath was roped off for safety reasons and Mr Gilderdale said a tower crane was due to arrive to do the heavy lifting of the tree, whose limbs he estimated weigh up to 100kg each.
"We can't trim it. It's going to continually be a problem," he said.
The application the judge dealt with under urgency just before Christmas was for a declaration that if prosecuted in the District Court for felling the tree, the owner would have a defence recognised in the Resource Management Act.
An Environment Court ruling refused urgent consent for removal but Principal Court Judge Laurie Newhook said if it was chopped down, a strong defence could be mounted against any Auckland Council prosecution because the tree was a threat to life and property.
But a legal technicality prevented him from granting the tree's urgent removal.
"I consider that it would be inappropriate for the Environment Court to make the declaration applied for in the present case because it should not purport to pre-empt the jurisdiction of the District Court in proceedings not even yet brought, or pre-judge issues in such a case. The present case is at the awkward interface of enforcement responsibilities that are split between the two courts," the judge said.
Mr Gilderdale expressed relief and sorrow.
"It's a very sad day for us because we bought the house knowing this was a heritage tree. But you can't live in a house like that where you fear for your life every day."
The family had suffered terror due to their situation, living in Valhalla, a Heritage NZ-listed house designed by renowned architect James Walter Chapman-Taylor.
"Imagine a 150kg branch through the roof, finishing 1.5m from your head. Me and my teenage children were there," he said of events in June, 2013. "We took advice immediately. I knew we were facing a battle," he said, estimating he had already spent many thousands of dollars on a lawyer, arborist, other consultants and advisers and going to the Environment Court just before Christmas.
"The cones each weigh at least 1kg, some dropping from 30m. They could kill you if they hit you on the head. We had one fall on the roof over Christmas and it put a big hole in the roof. Then there was that rain shortly afterwards and the kitchen flooded. I'm super grateful we have the opportunity to bring the tree down. Our own arborist and Auckland Council's arborist both say there's no other options," Mr Gilderdale said.
"But my wife and I woke up this morning and said we are really sad to see the tree coming down. But it's been trying to kill us."
A neighbour described Woodward Rd in Mt Albert as "ringing with sounds of chainsaws and branch chippers".
Auckland Council said it would not prosecute if the tree was removed because of the risk it posed.
The pine is protected because it is listed as a notable tree on the district plan and one of a neighbouring pair, each estimated to be 39m tall
The Mt Albert Historical Society lists his house with the name Valhalla, designed by a renowned architect and built in the 1920s, and says it was designed to "respect the trees".
Auckland Council manager Central Resource Consents Mark White told the Herald last night it would not move to prosecute if the owners of the property removed it "due to immediate safety concerns to people and property".
University of Auckland associate professor of law Kenneth Palmer said it was not advisable for the man to cut the tree down.
"He would be taking a risk as if he cut it down, while council might not prosecute him, someone else could."
Mr Palmer said the best option was to reapply for consent to cut down the tree.
Following the decision, Mr Gilderdale told the Herald he was concerned about the tree but declined to say if he was planning further legal action.
"We are motivated to preserve the heritage features of the property and also protect the safety of all those who live within it," he said. There have already been a number of near-misses with the tree, as the judge acknowledged.
"In 2010, three large branches blew down in a storm, damaging the house and garage roof, repaired with insurance proceeds," the judge said. "In 2012, the applicant returned from overseas to find that heavy branches had fallen on his trailer boat, breaking the windscreen, also damaging a car. Thousands of dollars of damage were caused to both.
"In 2014, a major storm caused many large branches to fall, seriously damaging the roof and spouting of the house. Two branches speared through the roof and ceiling, narrowly missing people in the house. Repairs costing $13,000 were met by the insurer."
In 2015, a branch estimated to weigh 80kg was blown down and missed hitting the applicant by only 2m.
"The insurers have understandably threatened to review the availability of cover."
39m Norfolk pine at centre of court case, on the property of Heritage NZ-listed Valhalla
2010: Branches blew down, damaging the house and garage roof
2012: Branches fell on owner's boat, breaking windscreen and damaging two cars
2014: Branches speared through the house's roof and ceiling, narrowly missing people within
2015: A branch estimated at 80kg was blown down and missed the owner by 2m
• House listed by Heritage NZ and Auckland Council
• Designed by architect James Walter Chapman-Taylor
• Built in 1924-1925