Council will not prosecute for illegal felling.

Auckland Council is "obsessed" with defending itself and its tree laws, according to the Mt Albert man who had a 140-year-old protected Norfolk Island pine tree felled last week.

But the council says the man knew the tree was protected when he bought the property and even though he needed a consent to legally fell the tree, it would not prosecute him.

James Gilderdale of Woodward Rd had contractors remove his giant 39m pine.

Chainsaws ringing as controversial protected Norfolk pine comes down


Sitting on a stump nearly as tall as a person, he expressed anger about the council's role.

"How does an ordinary person go up against Auckland Council which is so obsessed with defending itself that it has lost sight of looking after its ratepayers?" Gilderdale asked, sitting on the stump which he estimated had a 1.8m girth.

"The council tells you that you have this amenity on your site and then they have no care for the costs, dangers, upkeep or the processes you have to go through when you have such a tree. We should have been able to have a free council assessment and that would have shown it was dangerous. It worries me how people without resources are able to fight them, when their lives and property are being threatened," he said, estimating he had spent $30,000 for a lawyer, arborists and other consultants.

Mark White, the council's central resource consents manager, said trees, heritage buildings and other items of general value to the community were included for protection in the council's district plan after a process has been followed including consulting with affected owners.

"The Norfolk pine in Woodward Rd was included in the district plan (scheduled) prior to the current owners purchasing the property and so they were aware of the scheduling when they bought the property. It was listed in the City of Mount Albert District Scheme in 1989. The property owner has been aware of the need to obtain a consent since at least 2014. In November this year his experts attended a pre-application meeting but did not lodge an application," White said.

A giant Mt Albert tree at the centre of a court case is being felled. Photo / Greg Bowker
A giant Mt Albert tree at the centre of a court case is being felled. Photo / Greg Bowker

"The scheduling of the tree did not prohibit its removal but required that a resource consent be obtained to do so. The resource consent process enables interested parties (if an application is notified) to express their views and matters such as mitigation to be considered. The process also allows us to do a thorough assessment of the health of the tree and of any concerns that the property owner has.

"The council does not charge for the processing of resource consents for trees. Although the tree is being removed without a consent and the owner is technically in breach of the Resource Management Act, the council has agreed not to prosecute in this instance, because the indication from the Environment Court was that there appeared to be immediate danger to property and life," White said.

On September 4, tree legislation was changed and the majority of trees in Auckland were no longer protected, he said.

Gilderdale said one arborist had quoted $47,000 to remove the tree which he found ridiculous. That would have involved major traffic and safety measures, including shutting off part of Woodward Rd and covering the roof of his house to protect it from falling pine cones and branches.

Although the house and garage roof were damaged during the tree's removal, Gilderdale said he was not particularly worried about that and would have the tiles replaced.

Berry Simons lawyer Andrew Braggins had argued last month in the Environment Court for a declaration stating that if the Auckland council prosecuted Gilderdale in the District Court, he would have a defence recognised in the Resource Management Act.

Although that declaration was denied, Principal Judge Laurie Newhook said Mr Gilderdale would have a strong defence because the tree posed an "undeniable presence of risk to human life".

After the decision, Auckland Council said it would not prosecute Mr Gilderdale because the tree was a threat to life and property.

The council engaged Simpson Grierson lawyers Bill Loutit and Kate Stubbing in the court matter and they worried about the court granting Gilderdale application because it could set case law.

James Gilderdale's Norfolk pine is listed as a notable tree on the district plan. Photo / Michael Craig
James Gilderdale's Norfolk pine is listed as a notable tree on the district plan. Photo / Michael Craig

But the judge rejected their argument.

"I turn to the council's apparent anxiety about precedent issues and consistent administration of its district plans. As I have said, every case must stand on its own facts and merits, and to me, this one certainly does. I think it fair also to add that serious risk to life or health should have considerable paramountcy over the expressed anxieties," the judge said.

Loutit and Stubbing had also raised issues about media coverage of scheduled trees being chopped down.

"Removal of protected trees in Auckland has been the subject of significant media interest recently and the council seeks to ensure a consistent approach to its administration of the District Plan," the judge said in summarising Loutit and Stubbing's arguments.

The two lawyers had argued that Gilderdale should have followed the proper process and applied to fell the tree.

"While acknowledging the evidently serious and short-term health and safety issues, the council felt unable to offer consent to the making of a declaration, because it said the owner had ample opportunity to apply for resource consent, and the felling of the tree in the current circumstances might be "used as a precedent for the removal of other notable or scheduled trees in the region". It pointed to the existence of appeal proceedings concerning a refusal of resource consent to remove a Norfolk Pine in South Auckland currently before the court," Judge Newhook said.

Gilderdale said while he remained angry with the council and the stance it had taken against him, he praised two council arborists, Nick Stott and West Fynn.

"They were fantastic and they said the tree must come down," he said, adding that many neighbours and passers-by had also supported him.

Gilderdale said the pine's wood would be milled for beehives which he said was a good outcome.

December 21: Environment Court conference and deliberation
January 13: Most of the side branches removed from tree
January 14: Trunk removed in 5 sections via crane
Timber to be milled for wood for beehives
In about three years: tree stump to be ground down