Hostage in tree battle
Woman charged over ‘dangerous’ protected tree
A massive protected tree deemed so dangerous a house cannot be built nearby has led to a court case against its owner.
Tracy Fleet owns a section in Ashburton that has a 23m-high Tilia tomentosa, or silver lime, that is protected under the local council’s district plan. It takes up about 45% of the section. She has been charged under the Resource Management Act with breaching the district plan by allegedly trying to destroy or remove the tree.
She has pleaded not guilty and elected trial by jury. Fleet said she did not try to remove or destroy the tree but wanted it pruned in 2020 to make it safer for neighbours. The council prevented the work being finished.
A 2014 arborist’s report found the tree was in general good health but had three large trunks instead of a single main trunk, which was ‘‘a major structural defect that presents a potential hazard to persons and property within falling distance of the tree’’. Bracing the trunks with cables could mitigate the risk, the report said.
The tree was an ‘‘impressive specimen’’ that was rare in Canterbury and therefore of scientific and botanical value, the report said.
Another arborist in 2014 said the tree was high risk and was not a good candidate for inclusion in the district plan. He said a cabling system was not appropriate, and would be expensive and need ongoing maintenance.
‘‘It is my opinion that removal of the tree is the only viable long-term arboricultural solution,’’ he said. However, another arborist’s report in May 2020 said the tree was structurally sound, ‘‘healthy and vigorous with great shape’’ and was a landmark in Queens Drive.
An arboriculturalist in 2015 said the costs of mitigation were forced on the property owner due to its inclusion in the district plan.
After the alleged illegal work, Fleet applied for resource consent to have the tree removed, which went to a hearing before commissioner Dean Chrystal last year. His decision said four neighbours provided written approval and 14 submissions were received, all in support of the tree being
removed. One said the council should not be allowed to protect a structurally unsound tree and the private landowner should not be liable. ‘‘With the three main trunks each leaning . . . it is just an accident waiting to happen.’’
Planner Mary Clay and arborist Brad Cadwallader appeared in support of Ashburton District Council, which argued the tree should remain. Cadwallader said the tree was not immediately dangerous and that the canopy could be restored by corrective pruning, with six-month inspections. He said reports suggesting the tree was hazardous were written six or seven years ago prior to the steel bracing system being installed and that it had another five or 10 years’ lifespan.
Fleet told the commissioner the catastrophic consequences if the tree fell kept her awake at night. She was unable to get insurance for the property, so could not get a mortgage to build a house on it.
The previous owner’s daughter, Dr Caroline McIntosh, appeared at the hearing to support the tree’s removal because her parents had been extremely worried about the tree’s safety.
The issue had left them ‘‘emotionally and financially drained’’, she said. They had spent about 11 years and $27,000 trying to have the tree removed, including getting legal and expert advice. ‘‘They were so terrified of the tree falling that they would not go in any of the rooms at the tree end of the house when there were strong winds.’’
Chrystal’s decision said the council’s insurance advisers said the council would not be liable for any damage caused by the tree.
He accepted Cadwallader’s expert opinion that the tree did not present a hazard. He acknowledged removing the tree would benefit Fleet, including allowing her to ‘‘simply utilise the site for residential purposes’’, but said he did not have authority to consider those benefits. He said the Environment Court had discretion to direct the council to remove a rule that ‘‘renders any land incapable of reasonable use and places an unfair and unreasonable burden on any person having an interest in the land’’. He said while he declined her application, he had some sympathy for Fleet.
‘‘In my view, people should not be left feeling stressed and their wellbeing affected by a listed tree.’’
The correct course of action would be a change to the district plan, he said.
The council sent Fleet a $9000 bill for the unsuccessful application, which Fleet is appealing to the Environment Court.