Brian Rudman: Crocodile tears won't bring back destroyed tree

I know justice these days is supposed to be about teary hugs at dawn between the victim and the wrong-doer, but it is great, from time to time, to see a bit of good old-fashioned finger-pointing.

So congratulations to Auckland city's regulatory committee chairwoman, Glenda Fryer, for telling developer George Bernard Shaw to shove his "sincere" apology for illegally destroying a 100-year-old protected pohutukawa.

Of course, I suppose it is possible that Mr Shaw is "deeply regretful and genuinely remorseful and ashamed" about "the very bad error of judgment and big mistake" he made in having the scheduled Royal Oak landmark destroyed last January. But his past "accidents" with protected trees on building sites suggest it's going to take more than a momentary grovel to convince the rest of us.

It's easier to believe his regrets are about getting caught. This is the man who told the local paper straight after the incident that he was "gutted" by this "straight-out vandalism", and took nearly a year to admit he was one of those involved. The actual chain-saw operator has gone bush, with a warrant outstanding.

Mr Shaw's history of bad errors of judgment began in 1993 when three protected trees tumbled on his development site in Alpers Ave. The council did not prosecute.

In 1997, he appeared before the Environment Court and pleaded guilty to the unlawful felling of trees on development sites in Epsom and Mt Roskill.

Judge Richard Bollard fined Mr Shaw $18,000 plus costs and warned if he reoffended, "The court will not treat such matters as lightly". He said the "experienced property developer ... has not seen fit to express remorse".

This time round we've certainly got the remorse. In addition, Mr Shaw has promised to contribute financially to a community tree-planting project and has paid $50,000 towards council costs.

Destruction of a "scheduled" tree - one specifically listed for protection under the district plan - is punishable by a fine of up to $200,000 or two years' in prison. Additional penalties are available for up to three times the value of any commercial gain derived from a breach.

On Friday, the council received independent specialist advice that the 1m-high remaining stump was "highly unlikely to recover its former structure or status". In other words, it is surviving on borrowed time and will never return to its 11m high by 20m spread, glory days.

With the tree occupying a site in an area zoned for intensive development, Ms Fryer despairs that whatever Mr Shaw's punishment, "eventually he will gain thousands [of dollars] as a result of this illegal action".

But possibly not. In 1992 the Clutha District Council took advantage of the new Resource Management Act to punish a developer for destroying a heritage site without a demolition permit or resource consent.

The destroyers of the unique Benhar Hoffman kiln were not only fined $56,500 for their illegal activities, but were ordered to repair the damage by rebuilding what had been knocked down - a costly exercise for those involved, and a salutary warning for any others who might be considering the pre-emptive demolition short-cut.

It seems there's no reason why the Benhar kiln model can't be followed in the case of illegally felled trees. City council heritage manager George Farrant says this is why the council takes development bonds of $50,000 to $250,000. That's so mature trees - not saplings - can be brought in to replace a damaged one.

In Herne Bay recently, he had to deal with a mature native tree that had been deliberately poisoned - 19 holes in the trunk. The owner said he loved the tree and was mystified by its fate. That being so, Mr Farrant got him to agree to replace it with a mature tree. To protect it further, a 4m-diameter circle, with the tree at the centre, will be permanently scheduled in the district plan.

This seems a solution that fits the Royal Oak site to perfection. A new mature tree for the neighbourhood with a magic "no development" zone round it to allow the replacement to spread - and to ensure no one profits from Mr Shaw's self-confessed "bad error of judgment".

Indeed, if he were to voluntarily agree to this, maybe even Ms Fryer could be moved to accept his apology.