Mayor Phil Goff says there is nothing Auckland Council can do to save a 400-year-old kauri from the chainsaws.
But those who have been fighting for years to save the Titirangi kauri named "Awhiawhi" say he has been given "poor advice" from his staff, and can have the tree protected.
Waitākere Ranges Local Board chair Greg Presland is also urging the council to reinstate protections for the kauri, and two others nearby, that were removed under the Unitary Plan.
The ancient kauri was due to be cut down in 2015 to make way for two houses on the Paturoa Rd site, owned by John Lenihan and Jane Greensmith.
The community rallied to save the tree, and activists even suspended themselves in the branches for days to stop it. The kauri was ringbarked as an activist hung from the tree, but survived.
A temporary protection order for the tree lapsed this month, and Environment Court Judge Jeff Smith and commissioner Anne Leijnen said that under Auckland Council's Unitary Plan the kauri on Paturoa Rd had no protection.
"The plan is very clear that the removal of such trees is a permitted activity," the decision said.
Nor was the tree protected by being in a significant ecological area, nor was it individually protected under the Unitary Plan, their decision said.
While the owners of the site said in 2015 in an open letter they would let the kauri stay, protesters wanted to see the tree given permanent protection.
Auckland Mayor Phil Goff said he had been advised the council was "unable to prevent the removal of the tree".
Goff said since changes under the previous government to the Resource Management Act, which removed blanket protections of trees in urban areas, the situation had moved from an over-regulated environment to too little protection for heritage and significant trees that deserve protection.
"To me a kauri tree which is 300 to 400 years old is a significant tree that should be protected."
He had written to Environment Minister David Parker about how to provide greater protection for trees by amending the RMA and we need also to look at the adequacy of protection that was provided under the Unitary Plan which came into effect in 2017.
Ecological planning consultant Dr Mark Bellingham said he disagreed with Goff the council could not save the tree.
"I think Goff has been given poor advice. In the recent [Environment Court] case the judge said his hands were tied because of deficiencies in the Unitary Plan, and the council has powers to change that."
Bellingham said the council had made errors in developing the Unitary Plan and not including the property, and Awhiawhi, in a significant ecological area.
"It is time the council said it has got it wrong, and wants to put it right. This is not a good look."
Titirangi resident Winnie Charlesworth had applied in 2017 for the kauri, and two other ancient kauri on a road reserve nearby, to be protected in the Unitary Plan through notable tree status.
Charlesworth said on May 12 that year the group received a letter from the council stating the application would likely be addressed the following year. She has not heard anything about it since.
"They are just sitting on their hands."
Auckland Council has been approached for comment on the status of the notable tree application.
Waitākere Ranges Local Board chair Greg Presland had put a motion on the agenda of the April 18 meeting for the board to urge Auckland Council to reinstate the Significant Ecological Area on the property, and on the road reserve outside to protect two other kauri.
Green Party co-leader Marama Davidson said the case highlighted the need to bring back RMA protections for trees in urban areas.
"Over a third of Auckland's trees have been cut down since the removal of general protections by the previous government in 2012," Davidson said.
"At a time when kauri dieback disease is threatening kauri with extinction, allowing a 400-year-old healthy kauri tree to be felled is completely unsound. This is about protecting our kauri and native trees."
Davidson said Auckland Council needed to look at applying what protections they had in the Unitary Plan.
Environment Minister David Parker declined to comment while the matter was still potentially before the courts.
The landowners have not responded to requests for comment.