Chop first, ask later?

By | April 29, 2013

Are you thinking of chopping down that pohutukawa tree blocking your ocean view? Before you fire up the chainsaw, you might want to check whether the tree is protected. Three recent cases are a reminder that felling or damaging protected trees without permission can have serious legal consequences.

Significant fines imposed in recent cases

  • In March this year a landowner was fined $36,000 plus solicitor and court costs after his contractor cut down 110 trees and shrubs in a neighbouring esplanade reserve (See Footnote 1). The landowner had been convicted of a breach of the Resource Management Act (the RMA).
  • In the same month a court ordered a Bay of Plenty man to pay $50,800 in fines and reparations, plus costs, on charges relating to the removal of 11 native trees from a private property and neighbouring reserve. (See Footnote 2) The trees were in a designated ‘special ecological area’ and their removal was an offence under both the Reserves Act and the RMA. While the facts were disputed, the sentencing judge accepted the man had hired a contractor to thin and trim the trees to obtain a view from a spa pool. The contractor who felled the trees was also fined.
  • In 2012 a company was fined $18,000 plus costs for excavating within the drip line of four heritage and landscape trees identified in a district plan (See Footnote 3). The company had resource consents to develop accommodation units on the property, but not to excavate within the drip line of the scheduled trees. Digging a trench damaged the trees’ root systems.

Tree protection laws

As these cases show, there are numerous ways a tree might be legally protected. These include:

  • Specific protection as a listed tree, stand of trees or bush area in a district plan
  • General tree protection rules in a district plan, for example, protecting trees of a particular height or species
  • Protection by a covenant or consent notice registered on the title to a property
  • Protection under a resource consent condition, and
  • Protection under the Reserves Act for trees and shrubs in reserves.

If a tree is protected under a district plan, a resource consent will generally be needed to remove or alter that tree. Even when pruning or trimming is allowed, there may be limits on how much you can cut. A consent may also be needed to perform work around the tree, such as excavating or erecting buildings.

The rules vary between districts, and between urban and non-urban environments, so it pays to check with your local authority before getting started.

Tempted to chop first and worry about the consequences later?

This might seem like the easy option, but it can have serious consequences. Local authorities have a range of enforcement tools under the RMA, including taking prosecutions. The maximum penalty under the RMA for an individual is a $300,000 fine or two years’ imprisonment, and the maximum for a corporate entity is $600,000, although these penalities would be reserved for the most serious cases. Additional penalities can sometimes be imposed. Penalties under the Reserves Act also include fines and imprisonment.

For most offences, it’s not necessary to show there was an intention to commit the offence. This means a person can’t escape conviction by saying they didn’t know the tree was protected or they were unsure of their boundaries.

So what’s the safest approach?

It’s important to check the tree is within your property’s boundaries, not on your neighbour’s land or an adjacent road berm or reserve. If the part you wish to cut is on your neighbour’s land, you will need their permission or a court order.

Find out whether the tree has protected status, as you may need a consent. If in doubt, you could ask us to make investigations on your behalf.

Footnote 1 =  Tasman District Council v Davies DC Nelson CRI-2012-042-2322, 7 March 2013.                    
Footnote 2 =  Tauranga City Council v Kent & Anor DC Tauranga CRI-2012-070-004916 & CRI-2012-070-004899, 18 March 2013.                                                                                                                                                                    
Footnote 3 =  Nelson City Council v Dalpeko Holdings Ltd DC Nelson CRI-2012-042-000537, 23 May 2012.

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Copyright, NZ LAW Limited. Editor: Adrienne Olsen. E-mail: Ph: 029 286 3650. 

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