Check before you cut loose

Despite law changes lifting blanket protection, it is not open season on any troublesome trees. Photo / Getty

You've spotted the perfect property for development. There's a tree or two in the way. But that doesn't matter does it?

The reality is that despite changes to the Resource Management Act (RMA) in 2015, which lifted blanket tree protection in urban areas, you can get yourself in a whole lot of trouble by cutting pesky trees down.

Trees are very important. They are a source of food and shelter for birdlife, conserve water, make our air more breathable, absorb air pollution, strengthen soil and foster insect life.

What's more, trees provide amenity value to neighbours and the public.

Many people, for example, value the privacy their neighbours' trees provide and the benefit of living in a leafy suburb.

Trees can also be inconvenient for homeowners.

They can damage foundations, block drains, or get in the way of extending the home or making money from other work such as subdivision.

Assuming that any vegetation can be removed without permission isn't a good idea.

Even though the government removed general protection rules from the RMA, trees that are listed in any of the district plans, those in "significant ecological areas", and trees outside the urban environment remain subject to general tree protection rules.

Developer Tony Stewart who owns SCD found out just that when he was fined $17,812 for failing to comply with resource consent conditions on more than one occasion, by carrying out works in the drip line of scheduled kahikatea and rimu trees and severing roots, and pruning trees without consent.

Auckland Council Resource Consents compliance manager Stefan Naude noted at the time that the prosecution sent a message to all property developers that they must ensure they are aware of their obligations under the RMA and that their developments are properly managed.

It's not always developers. Ordinary homeowners fall foul of the rules as well.

Epsom resident K Scally was fined $16,250 plus costs for clearance of vegetation within a significant ecological site noted in the Auckland Council Operative Plan.

Scally did the damage while building a basalt rock wall, landscaping, clearing vegetation and otherwise damaging an ecologically significant lava flow field on his property.

Even sick trees can have protection. Rodney resident Jeffrey Browne was fined $2750 for removing a Norfolk Pine from his property that was by all accounts in poor condition.

In the district court Judge JA Smith noted that there were mitigating factors, and serious remorse in Browne's case but pointed out that deterrence to others is also a factor in sentencing.

"A signal needs to be given that consultation with the council should be undertaken even when the tree looks like it should be immediately removed."

Auckland Council says there are many reasons trees in Auckland might be protected.

It may be due to historical significance, age, or cultural value.

Or they may provide erosion protection as many pohutukawa do. Some trees have been given protection as a result of previous resource consent, a covenant or consent notice on the title.

Or they may be in a rural environment and therefore still subject to a general tree protection rule or be on a road reserve in an urban area and therefore subject to different rules from those that affect homeowners.

Even working near a protected tree can get homeowners into hot water. That can include excavation near such trees, construction including decks and retailing walls, depositing material or causing potential damage to roots.

As a result of the government's 2015 changes leaving homeowners confused, Auckland Council launched a Check Before you Chop campaign.

"If you are uncertain whether trees on your land are protected, please call the council on (09) 301 0101 for assistance," says Penny Pirrit, director regulatory services at Auckland Council.

Some protected trees do have plaques on them.

But that's not always the case.
A professional arborist will also be able to give you an idea whether you should check with the council.

Arborists are wary of the consequences of working on any tree that may be protected and require resource consent to be removed or pruned significantly.

Conversely, some homeowners have a real problem with their neighbours' trees. Trees can shade out a property, drop leaves, obscure your view, or even damage pipes and foundations.

The law of nuisance makes the owner of the tree responsible, says Carolyn Ranson, senior associate at Smith and Partners lawyers.

You can in theory "abate" or cut branches and roots of a neighbour's tree back to the boundary line only. Check first with the council to ensure that the tree isn't protected.

It can also be possible to get an order from the district court requiring the neighbour to trim or remove the tree at their cost, says Ranson.

Poisoning the tree or spraying it with weed killer isn't legal.