Tree law change aids 'sneaky' choppers

A bill likely to be passed this week would make it easier to fell trees that are in the way. Photo / Brett Phibbs

Homeowners whose trees are illegally chopped down by neighbours will no longer be able to count on council help once a proposed law change likely to become final this week is passed.

The owner of Auckland's biggest tree consultancy predicts more neighbourhood spats if the law scraps protection for trees of a certain height or size - and councils will no longer be able to step in.

Stacy Colyer, whose Greenscene company is often called in to help with disputes, said there would be an increase in court cases over who owns large trees on boundaries.

If one neighbour decided to illegally take matters into their own hands, the only remedy in most cases would be an expensive court case over property rights, he said.

Changes to the Resource Management Act could be voted in by Parliament this week.

They could allow people to cut down trees now protected by district plans.

The Green Party has proposed a last-ditch amendment that would enable councils to protect trees from felling but not trimming, and would give the Environment Minister power to approve protection for certain groups or species.

The head of North Shore City's environmental policy and planning team, Phill Reid, said that if the law as proposed was passed, Auckland councils would no longer get involved in "sneaky chopping" cases - unless the tree was among the few hundred in each district listed for special protection.

At the moment, if a homeowner complained of a protected tree being chopped or poisoned, the council would investigate for them and prosecute the culprit if there was enough evidence.

Owners of trees rarely prosecuted, he said.

Lawyer Janette Campbell said that without Resource Management Act protection, the main legal remedy for an aggrieved tree owner would be a court ruling proving that they had suffered a loss to property.

"How do you put a price on their loss of enjoyment of their property?" she said. "There may be new case law ... [saying], 'Now that person can see in my bedroom window and I don't like it'."

During a recent subdivision case, the Environment Court had accepted evidence that "quite a number" of people illegally chopped trees on someone else's land to improve their views and/or sunlight, she said.

But few prosecutions were made because it was often difficult to prove who had done it "even when it was clear who would havebenefited".

Ms Campbell said that if the legislation was passed, "there is not going to be a council to do it [prosecute] for you".

But she and Mr Reid said the law change would make it easier for people whose neighbours' trees made their lives a misery.

Under the Property Law Act, a person can apply for an order to fell a neighbour's tree, if, for example, it poses a danger to health.

That process would be easier without the added hurdle of the RMA.

Mr Reid said that under the planned change, councils would also stay out of neighbourhood complaints about trees chopped on land owned by a developer.

"If your next-door developer moves in and starts chopping down all the trees on their property, from an RMA point of view and from the council's point of view there is no protection for the trees," he said.

The Auckland region is the only city area with general tree protection rules, but advocates say intense development pressure in Auckland makes them necessary.

All four Auckland city councils have rules requiring resource consent to fell large trees, usually those taller than 6m to 8m.

Under the law change, they would have a two-year grace period to "retrofit" their lists of individually protected trees.

During this time, general tree protections would continue to apply.

* What's different

Clause 52 of the Resource Management (Simplifying & Streamlining) Amendment Bill 2009:

Stops local authorities making blanket tree protection rules in urban areas unless the tree or group of trees is listed in a schedule to the district plan or is in a reserve or area subject to a conservation management plan.

Could remove the need to process more than 4000 resource consent applications a year for pruning or removing trees.

Affects Auckland councils, four of which have rules protecting large trees.

Is likely to be passed by Parliament this week. Change would come into effect on October 1, but with a two-year grace period during which councils could phase out existing rules for the protection of trees. Existing tree protection rules could continue to apply until January 1, 2012.