Lawyers mull pohutukawa's fate

The confrontation over the Ferguson Park pohutukawa tree is taking a pause while the parties involved weigh up their legal options.

Another petition was presented at Tuesday's council meeting from residents and park users seeking a stay of execution for the tree.


The tree in Ferguson Park has attracted a wealth of public support after a request was filed for it to be removed.

But the council have admitted the person seeking its removal is threating legal action if the authorities don't act on their request.

Under an agreement made when the Tauranga Borough Council bought Ferguson Park in 1961, a covenant was imposed on the area known as the Ferguson Park Embankment.

The covenant lists 75 properties that have a beneficial interest in the registered height restriction.

It was intended to prevent vegetation blocking the property owners' views and a premium was paid for the privilege.

If any of the properties owners request vegetation be cut to the restricted height, the council has to comply.

Many of the owners have signed the subsequent petition seeking to keep the tree, but one wants it felled.

Legal and governance services manager Kirsty Downey-McGuire says the council is on notice from the legal representative of the owner that they have given notice that they want the council to execute the covenant.

The threat is that the council itself will face legal action if it does not act.

The council received the petition of another 200 or so people who want to save the tree, and carried Catherine Stewart's motion that they leave it on the table for 20 working days so that further information can be obtained.

Tauranga lawyer Mike Batchelor told the meeting the High Court may have some sway over convenants, which are agreements - and agreements can be changed.

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23 comments

Great!!!

Posted on 17-03-2015 16:30 | By How about this view!

We have covenants controlling what we can do in our subdivision as well. Let's change all of the legalities around covenants and have a free-for-all in every subdivision and retirement village in the Bay of Plenty.


Greenies

Posted on 17-03-2015 16:36 | By bushman

Send some fool up the tree that seems to work .


Whats is gunna cost?

Posted on 17-03-2015 16:36 | By YOGI BEAR

This issue is very simple, the easement is there and brought and paid for, that is it, end of story. Why do we now have lawyers running around feasting on the obvious? Who is laying for this lot ... oh let me guess ratepayers, and we don't even know why now do we.


pohutukawas

Posted on 17-03-2015 16:59 | By spoilerfactory

I cant remember the details but last time this happened an legally binding document/agreement was reached to allow some to stay and some to be removed. With the ones staying to be maintained by council at a smaller height to override the covenant so this fight didn't happen again!


Numbers prevail over morals and the law

Posted on 17-03-2015 18:17 | By Murray.Guy

Might is right and 'to hell with the law', the rights of a minority.


Surely a covenant is legally binding?

Posted on 17-03-2015 18:50 | By BullShtAlert

Leaving aside the actual issue of the tree, surely a property owner with a covenant has a legally and morally binding document. Why waste ratepayers money on legal fees and lawyers, unless Cr Stewart is offering to pay??? Does NZ have the rule of law or the rule of the mob? If the deal at the time was that the views would be maintained then how about showing integrity and honouring it.


Sad but legal

Posted on 17-03-2015 21:58 | By Active

It is a bit sad that the tree must be taken back to the legal height.This should not have been allowed to happen if past councils had adhered to the legal requirment and kept the covenant.If you have a legal covenant on your title as to height retrictions it is you that must be active and adhere to it. Not wait till the covenant holder requests you adhere.If the council held a covenant on your title you can bet they would be on you like a ton of bricks with no empathy just power. To hold a covenant like the 75 owners have adds heaps to the value of their properties. Are they prepared to go to their lawyers and drop their covenants.If not then when they sell the next owner may enforce the covenant.The council has been unfair leading people living there that these trees were forever.


I don't think so.............

Posted on 17-03-2015 23:19 | By groutby

that a "covenant" is necessarily a legally binding document, moreso is an "agreement" between appropriate parties to do or fulfill an agreed path. In biblical terms it is certainly verbal, which of course in modern terms has little relevance, but in legal terms pressure may be put on opposing parties to either uphold or indeed remove the original agreement (whatever that may be)....so, put your own point of view on this and go for it!.....


Murray go home

Posted on 18-03-2015 00:36 | By YOGI BEAR

Sorry mate you are way off the mark there, the residents (you know the ratepayers that are living there) have a real easement that they paid for. As the saying goes, "Them that does the paying does the saying". Otherwise we have mob rule if we follow you lame logic.


BullShtAlert

Posted on 18-03-2015 00:38 | By YOGI BEAR

Absolutely right on all counts. I guess what will happen here is that Council (that means added to your rates) will pay mega money to the residence to leave the tree there and make the tree huggers happy ... oh what a crazy world it is.


CHOP IT

Posted on 18-03-2015 09:11 | By The Caveman

NOW - a legal covenant is a legal covenant !


Neighbours

Posted on 18-03-2015 10:42 | By davidt5

who view the tree daily and also use the park almost as often have a totally different view to those who are commenting without even seeing the tree. It is rumoured that the people who want the tree destroyed are aussies who only visit their Matua property very infrequently. They are giving no thought for the feelings of the local residents. It is just a pity that the local Maori people do not view the tree as being sacred.


Time to review covenant laws

Posted on 18-03-2015 10:57 | By The Sage

What happened to the fact that the Council had promised not to fell anymore of those Pohutakawas after the last 4 they took down? What about erosion? No-one would have their precious view if their houses fell down the bank. The complainant appears to be an absentee landlord.


Its just a tree,

Posted on 18-03-2015 13:50 | By terminator

They grow back. There are plenty of other options better at preventing erosion. If any tree blocks any landowners view then they should be able to be trimmed or removed regardless of any covenants, perhaps with the requirement to plant a similar one elsewhere where views are not affected.


davidt5 and The Sage

Posted on 18-03-2015 14:40 | By YOGI BEAR

Seems you have got diverted by emotion here. Aussie, absentee, public views, park usage are all completely irrelevant. That fact: - there is an easement, it is legal, it is binding, that is it, game over, get over it. The easement places the decision in the hands of the easement holders, that is it, game over, get over it. Not even the TCC sweet and lovely tree policy matters, TCC fail to act here means that they are in breach of the easement and damages are then payable (lawyers second feast from ratepayers) wake up folks the longer you moan about this the bigger the bills will be.


Yogi, you're getting sleepy

Posted on 18-03-2015 21:57 | By Murray.Guy

Seems it must be time for Yogi to have his winter nap as he/she is half asleep. I am totally opposed to any action on the part of TCC other than compliance with the covenants, in the absence of unanimous agreement by all 75 affected property owners. This issue sickens me, having arisen following Councils failure to manage the easement in accordance with it's legal and moral obligations, and now to be party to intimidation and abuse of the innocent party using my rates money and resources!


Simplicity....

Posted on 19-03-2015 05:40 | By Jimmy Ehu

use the "One Tree Hill" method, and is there a shortage of these weeds or something??, apparently copper nails work over time as well, what another waste of time and money, where only the legal profession will profit.


@ Yogi Bear

Posted on 19-03-2015 10:47 | By The Sage

Not smarter than the average bear.


Murray

Posted on 19-03-2015 12:40 | By YOGI BEAR

What you wrote initially was vague and I took the meaning that the 75 odd residence were the minority as compared to the TCC mob, Councillors, public mob tactics and so on. Good to see you are on the "right" side this time.


The Sage

Posted on 19-03-2015 18:13 | By YOGI BEAR

Oh contraire, not indeed the case, the bear is a light bright than may appear so from time to time, such is the benefits of hibernation. Anyway, obviously TC Council made the promise after the easement was already in place, so sorry mate you are missing your paddle on this one.


Overit

Posted on 19-03-2015 18:30 | By overit

If the property IS owned by Aussies-gum trees are protected over there.


STOP THIS MADNESS

Posted on 20-03-2015 11:42 | By ROCCO

There is a legally binding covenant on the tree height and TCC had a legal obligation to observe that.Forget the tree hugging and sanctimonious B/S and cut it back to the agreed height.Anyway it is only a rubbishy SOB pohutukawa and they are a dime a dozen reeking havoc whereever they sprout up.


Feasting lawyers

Posted on 23-03-2015 21:45 | By YOGI BEAR

That is just the usual feeding that goes on, this will run into millions and there will be little to show for it with the obvious rolling out as needed. That means whack the tree to comply or else ... like we already know that.


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