Tree removal and trimming can involve a range of legal issues, including Council planning rules and protected trees, neighbour disputes, property and ownership rights. This article outlines some of the key considerations before work begins.
Trees are important environmentally, aesthetically and can provide economic value to land but at times they present practical and legal challenges for property owners, developers and business owners. What might appear to be a simple removal for construction or a mere trim for safety or aesthetics, may require more planning and consideration than simply engaging an arborist.
Whether it is a tree on your property, someone else’s property, or awkwardly straddling a boundary, there are several legal obligations that arise including under property and environmental law and local council rules and regulations. What applies to your situation will depend on the individual context and particular circumstances.
Most vegetation on private land can be removed or maintained as of right but that may not always be the case. For example a resource consent and/or other permissions may be required when a tree or vegetation is specifically protected or “notable” under a district plan; or when it is located within a road reserve, a significant ecological area, a riparian or coastal margin (e.g. 10m-20m from the CMA or streams (including intermittent streams)), a heritage overlay or other special areas in a district or regional plan.
Before commencing work, the first thing to consider the where the tree or vegetation is located. For example, on private or Council owned land, near the coast or stream? Then search the local council plans to find the applicable rules and. check if it is it a protected or” notable” tree, which will mean there are specific rules that apply, including who can do the work and how much of a tree may be trimmed, and it could require prior consent from the Council. Or whether it is within a special area, like an ecological area, riparian or coastal margin, heritage overlay or other special area. It is important to check both the district and regional plans for any relevant rules relating to tree removal and trimming and both may include relevant provisions. There may also be limits as to the total area of vegetation that is allowed to be removed, this is usually more relevant in rural or semi-rural areas or in special zones. Removing or trimming a protected tree without resource consent may result in prosecution and significant fines.
If the tree to be trimmed or removed is located on someone else’s privately owned land, the best approach is to speak to the landowner directly and ask them to fix the issue. In many cases, the path of least resistance is to offer to pay for an arborist or landscaper of their choosing to carry out the work. Beyond asking politely, in the case of neighbours there may be some additional property rights like an easement, covenant, incorporated society or body corporate rules that give you further rights. Most often these would be available in relation to situations like shared driveways, comprehensive subdivisions or multi-unit complexes. As a last resort if you can’t reach agreement to fix the problem, you can apply to the Distributes Tribunal or District Court to order the landowner complete the work (usually at your cost).
Should the trees or vegetation in question be growing on Council owned land, e.g. in the local park or within the road reserve. For example, perhaps you want to build a new fence between the rear of your property and the local park but because trees are straddling the boundary they need removing first, or the tree on the berm by your driveway is a sight hazard when leaving home and for safety it needs trimming. The process for Council approval for this kind of work is two two-pronged. The work will need to be assessed under the relevant Council plans to check if it requires consent, similar to the process for private land, and you will also need the Council Asset Team’s approval. Councils are increasingly considering trees and vegetation assets, which triggers the need for approval from the asset team, which may include costs like compensation fees and paying for replacement trees. For example, in Auckland trees are considered a Council Owned Asset (see the Urban Ngāhere (Forest) Strategy) and a Tree Owner Approval is required, as well as any necessary resource consents.
Most tree removal and trimming can be straight forward. However, we have seen a rise in Council prosecutions for tree works with some large fines (currently in the range of $40-$50,000) being sought with little consideration given to honest mistakes or a lack of financial capacity to pay for fines. At any point should the rules seem unclear as to whether you might need resource consent or approval for tree removal or trimming, there is complexity or property damage involved, or if you are unable to reach agreement with your neighbour, it is important to seek legal advice to avoid any costly mistakes.