Court action touted to save tree

The Fergusson Park tree saga falls under further public scrutiny this week, with Tauranga City Council deliberating over court action in an effort to save a pohutukawa.

Despite the objection of over 70 property owners in the area, a single application to have the tree removed under the terms of a 54-year-old covenant has seen the spotlight fall on the coastal evergreen.


The tree at Ferguson Park. Photo: File.

Council are braced to receive another petition opposing the tree's removal, but at present, its survival hinges on the person who wants it cut down.

Trimming the under-branches of the tree is a suggested option if the applicant refuses to change their mind, however, lawyer and consultant Michael Batchelor is recommending the council refuse to fell the tree.

Michael has advised that court action could lead to the modification of the covenant that was registered on the title in 1961, guaranteeing a height restriction for vegetation on the embankment's skyline.

The trees did not exist when the document was first filed, and have grown to their current height since. A letter from Michael suggests their impact on the character of the neighbourhood justifies modifying the covenant to preserve them.

Controversy reared its head in 2006 when four of seven pohutukawa trees were removed from the same area, despite originally being planted to protect the embankment from erosion.

Consequential erosion of the bank has lead to intrusive signs and iron railings as well as areas of slippage, and while it is denied that a 'promise” was made at the time, Michael suggests the retention of the remaining trees was part of the agreed compromise with objectors.

'They are circumstances which a Court might well consider to be relevant,” he explains. 'The arrangements did not become formal written agreements, but agreements don't have to be in writing to have moral force and to be valid and enforceable.

'The fact is that in 2007, council recognised that there are values involved going beyond the purposes of the covenant and in doing so committed itself to the preservation of three out of the seven trees involved.”

A one-day court action is expected to cost at least $35,000, plus GST and disbursement for expert witnesses.

The covenant guaranteeing the views would remain clear was signed in 1961, when Fergusson Park was little more than swampy farm land. It's since become a well-used recreational asset for residents from all parts of the city.

Walkways around the perimeter are extremely popular, not only on the northern or seaward side but also on the embankment to the south where the trees stand.

'The 300 or so signatures collected near the tree in just one day are testament to this,” says Michael.

The Council arborist estimates that the three pohutukawa trees are about 35 years old, meaning they must have been planted without regard to or in ignorance of the covenant.

'It is fair to suggest that they were planted for the purpose of protecting the embankment from erosion,” they say. 'Now they have grown and matured into significant aesthetic, environmental and ecological amenities for Matua and for the whole city.”

Council received a request from single property owner to remove one of the remaining pohutukawa trees from the area covered by the height restriction covenant in November 2014. Council agreed and the tree was scheduled for removal in February.

Council notified residents in the vicinity of Fergusson Park of its intention to fell the tree on February 11, but five days later, they received a petition with 92 signatures opposing its removal. Another 212 signatures were received on March 10.

The petition was received at the March council meeting, and councilors resolved to let the matter lie on the table for 20 working days while lawyers were consulted.

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12 comments

Have no faith in those that promote welshing on deals

Posted on 18-05-2015 09:12 | By ROCCO

While I wouldn't necessarily support the objectors stance the legal contract is still fully enforceable and Council always had an obligation to ensure the covenants were fully complied with and it is a bit rich to be running off to the Court with the holier than thou attitude being promoted by Mr Batchelor.There were good reasons for the covenants,initially Council obtained a huge benefit and the views have been compromised by Councils negligence. Just bite the bullet and move on.


save the tree

Posted on 18-05-2015 10:58 | By kurgan

get rid of all the anti tree moaning cry babies instead


Waste a money

Posted on 18-05-2015 12:08 | By YOGI BEAR

An agreement is an agreement, that is it, game over.


Sillyness

Posted on 18-05-2015 12:23 | By Kaimai

Cut the tree down and plant seedlings from it in front of the people that don't want it cut down - the objectors can have a tree each.


Covernant

Posted on 18-05-2015 12:38 | By YOGI BEAR

It is what it is, so that is legally binding, TCC change in policy is subject to the covenant, not the other way around. The mountain of legal fees is crazy, consultants and experts all madness. You want to change the covenant then go see the covenant holders and get an agreement to change it.


Howls of outrage?

Posted on 18-05-2015 13:00 | By Annalist

This is a beautiful tree but the owner of the property has a legal covenant protecting their views and that should be the end of the story. I wonder how the various complainers would feel if someone tried to circumvent a covenant on their own properties??? Those that want to save this tree should be spending their own money on legal action which may or may not succeed. Any legal action is an outrageous waste of ratepayers money.


Who pays?

Posted on 18-05-2015 13:57 | By Murray.Guy

Lawyer and consultant Michael Batchelor is in favour, I suspect, of using my rates to pursue a legal process in an effort overturn or modify a perfectly reasonable and legal agreement, because It doesn't suit him. Here's an idea, lawyer and consultant Michael Batchelor -YOU PAY, but better still, admonish TCC for creating this issue by failing to respect the covenant and manage the vegetation as is it's legal and moral responsibility! It's important to realise that such action has significant repercussions for our residents as ALL agreements with Council may be at risk at the behest of a few 'well positioned' disgruntled persons.


Tree

Posted on 18-05-2015 16:42 | By Glen Clova

Cut it down and keep to the covenants.


It's only a damn tree

Posted on 18-05-2015 17:47 | By Devils-advocate

Honour the legal requirements, cut it down and plant some more natives in its place...Just maintain the damn things


trees

Posted on 18-05-2015 20:34 | By dumbkof2

if the council does not cut it down i wonder if it will suddenly start dieing of some mysterious disease like some other trees around tauranga that suddenly started dieing


Get rid of the covenant

Posted on 19-05-2015 11:16 | By The Sage

It is over 50 years old, time for change. The person protesting doesn't even live in New Zealand and their house is empty. Can they see the tree from Australia? Also to bear in mind is the erosion, kind of ironical that the TCC is spending hundreds of thousands of dollars building up the eroding sea wall along the beach in the park at present, yet want to pull another tree down that could cause a problem later on. Get your blinkers off.


Chop it

Posted on 19-05-2015 13:04 | By maildrop

Cut the damn thing down. Stop wasting my money. A deal is a deal. Never mind the petition - consensus on this site is chop it.


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