Fight over enormous protected tree on woman’s property heads to jury trial

A massive protected tree deemed so dangerous that a house cannot be built nearby has led to a court case where its owner faces up to two years in prison.

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 in 2020. She has pleaded not guilty and elected trial by jury for the charge, which is punishable by a $300,000 fine or up to two years in prison if she’s found guilty.

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Fleet said she did not try to remove or destroy the tree, but wanted it pruned to make it safer for neighboring properties and neighbors. The council found out about the work and stepped in to prevent it from 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, it was found.

The tree is an “impressive specimen” that is rare in Canterbury and therefore of scientific and botanical value, the report says.

Another arborist in 2014 said the tree was high risk and was not a good candidate for inclusion in the district plan.

This tree on Tracy Fleet's property on Queens Drive, Ashburton, is causing ongoing problems.

ALDEN WILLIAMS/Stuff

This tree on Tracy Fleet’s property on Queens Drive, Ashburton, is causing ongoing problems.

He said a cabling system was not appropriate to mitigate the risks, and would be expensive and require ongoing maintenance.

“It is my opinion that removal of the tree is the only viable long-term arboricultural solution to mitigate the risk,” 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 on Queens Drive.

An arboriculturalist in 2015 said the tree’s risks and costs of mitigation were forced on the property owner due to its inclusion in the district plan.

Fleet, of Dunedin, owns an Ashburton property she cannot develop due to the presence of a large protected tree.

Hamish McNeilly/Stuff

Fleet, of Dunedin, owns an Ashburton property she cannot develop due to the presence of a large protected tree.

After the alleged illegal work, Fleet applied for resource consent to have the tree removed, which went to a hearing before commissioner Dean Chrystal in 2021.

Chrystal’s decision says four neighbors provided written approval and 14 submissions were received, all in support of the tree being removed because of the danger it posed.

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 and supported by rope, it was just an accident waiting to happen,” one said.

The tree is 23 meters high and has three trunks, instead of one main trunk.

ALDEN WILLIAMS/Stuff

The tree is 23 meters high and has three trunks, instead of one main trunk.

Planner Mary Clay and arborist Brad Cadwallader appeared in support of the Asburton District Council, which argued that the tree should remain.

Cadwallader said the tree was not immediately dangerous and that efforts could be made to restore the canopy by corrective pruning and six monthly 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 that not being able to remove the tree would have a profound impact on her life and she had resigned from a rewarding job to concentrate on the resource consent application.

She said the catastrophic consequences if the tree fell kept her awake at night.

She was unable to get insurance for the property, so she 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, this included the kitchen and living room,” she said.

Fleet can't build a house on the property because she can't insure it because of the tree.

ALDEN WILLIAMS/Stuff

Fleet can’t build a house on the property because she can’t insure it because of the tree.

Chrystal’s decision says 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 or danger.

He acknowledged removing the tree would benefit Fleet, including allowing her to “simply utilize the site for residential purposes”, but said he did not have authority under the RMA to consider those benefits.

He said the Environment Court had discretion under the RMA 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 well-being affected by a listed tree regardless of its ability to be retained.”

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.

The council said it could not comment as the issue was before the courts.

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