Re application by Auckland Council

 
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Decision No. [2011] NZEnvC 129

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge J R Jackson

Environment Commissioner K A Edmonds

Environment Commissioner C M Blom

(ENV-2010-AKL-000241)

IN THE MATTER OF the Resource Management Act 1991

AND

IN THE MATTER OF an application for declarations under section 311 of the Act

BY

The Auckland Council
Applicant
Appearances:

H J Ash and D K Hartley for the applicant

A E Cornor for the Upper Hutt City Council

D A Allan for Waitakere Ranges Protection Society Incorporated and the Environmental Defence Society Incorporated (section 274 parties)

Ms H Massey for the Tree Council Incorporated (section 274 party)

D J Minhinnick and M D Lichtwark for Vector Limited (section274 party)

Dr J Seakins for himself (section 274 party)

Application under s311 Resource Management Act 1991 (application for declaration) that rules relating to protection of trees under various District Plans of former Auckland territorial authorities complied with the Resource Management (Simplifying and Streamlining) Amendment Act 2009 and were still in force — whether rules were about trees or groups of trees specifically identified in the District Plans for purpose of an exemption under s152(3) of the Simplifying Act (existing rules providing for protection of trees) — effect of s76(4A) (rule must not prohibit or restrict trimming or removal of any tree or group of trees unless tree or group of trees is specifically identified in the plan) — definitions of “tree”, “groups of trees” and “specifically identified”.

The issues were: what was the correct interpretation of the phrase “tree or groups of trees specifically identified”; whether the rules were about trees or groups of trees specifically identified in the District Plans for the purpose of an exemption under s152(3) of the Simplifying Act.

Held: None of the terms were defined in the Act. The dictionary use of the word “tree” as a woody perennial plant bearing lateral branches sufficed in the absence of any definition in the Act itself. A group comprised individuals related to each other by association, form or function. Thus a group of trees in the context of s152 Simplifying Act could be, in the natural and ordinary meaning of the phrase, a number of trees which were either physically close to each other (in the same area) or which otherwise form a collective or functional unity, or which share some other common characteristics. Defining a group of trees by reference to an area on a map was usually desirable but not essential.

The purpose of the RMA under s5, to manage the use, development and protection of natural resources, was useful in determining the meaning of “specifically identified”. District Plans were to have particular regard to the intrinsic values of ecosystems and to finite characteristics of natural and physical resources under s7(g) RMA (achieving the purpose of this Act). Trees, by definition were characteristics of forest ecosystems where they occurred. Trees also contributed to the naturalness of outstanding natural features and landscapes or were part of significant indigenous vegetation; their protection in those situations was a matter of national importance under s6 RMA (matters of national importance). The wide purpose of the RMA led to a wide reading of the phrase “group of trees… specifically identified” in a District Plan. While “specifically” added an element of precision, a broader interpretation of “group of trees” was justified more than mere proximity. A “group of trees” under s152(3) Simplifying Act could be described either as: a number of trees located relatively close together; all trees of one or more named species in a defined zone; trees in a class with defined characteristics or all trees in a named ecosystem.

Extrinsic aides to the interpretation of the Simplifying Act provided some support for this. In effect a rule that controlled all trimming, felling of “exotic trees over x metres high” in a defined (Living) zone might be legitimate depending on the wording of the objectives and policies which the rule implemented. Parliament must have intended this level of specificity as it clearly did not intend to alter Part 2 of the Act in any way. If it had intended a stricter result, the exception in subsection (3) would have referred to a “…tree identified in a plan by botanical name and precise location”.

The trees in the plans were either identified zone or type and the rationale for the trees protection had been clearly set out.

Application granted. Section 152(1) Simplifying Act relating to the revocation of existing rules providing for protection of trees did not apply to the rules, as they were exempt under s152(3). The rules continued to have effect.

  • A: Under section 313 of the Resource Management Act 1991 the Environment Court declares that:

    • (1) section 152(1) of the Resource Management (Simplifying and Streamlining) Amendment Act 2009 relating to the revocation of existing rules providing for protection of trees, does not apply to the rules in the North Shore District Plan and Waitakere District Plan described in the Schedule to this Decision as they fall within the exception provided in section 152(3) of the Simplifying Act for rules relating to a tree or group of trees specifically identified in a plan or proposed plan.

    • (2) That the rules referred to in the Schedule now have and will continue: (a) from the date of this decision to have legal effect to the extent required by the rule(s) in respect of the trimming of trees or groups of trees specifically identified in the rules listed in the Schedule to this decision; and

    • (b) from 1 January 2012 to have legal effect so as to manage felling, damaging or removing trees specifically identified in the rules listed in the Schedule to this decision to the extent required by the rule(s).

    • B: Leave is reserved for the Auckland Council to apply, on notice to the Environment Court to amend those declarations to give fuller or better effect to the Reasons below.

    • C: Under section 313 of the Act the Environment Court declines to make a declaration in respect of the rule in Table 17B.8 Long Bay Structure Plan Activities — Protection Areas in Proposed Plan Change 6 (Long Bay Structure Plan Stage 2) to the North Shore City District Plan.

    • D: There is no order for costs, since none were sought.

decision

REASONS TABLE OF CONTENTS

Introduction

[1]

The issue: do certain district rules comply with the 2009 Amendment to the RMA?

[1]

Scope of the application for declarations

[2]

Background: managing trees in district plans

[4]

What does section 152 of the Simplifying and Streamlining Act 2009 mean?

[10]

The proper approach to interpretation

[10]

The meaning of the text in context

[15]

What is a tree?

[15]

What is a group?

[19]

How does one specifically identify a group of trees?

[22]

Purpose

[26]

Scheme of the RMA

[38]

Extrinsic aids

[47]

Conclusions

[54]

How does section 152 affect the questioned district plans?

[58]

Interpreting district plans

[58]

The North Shore District Plan

[59]

The Notable Trees rule

[62]

Rule 8.4.6.1.2

[67]

The Waitakere District Plan

[69]

Managed Natural Areas

[72]

Riparian Margins/Coastal Areas Natural Area Rule 2 Vegetation Alteration

[76]

The Upper Hutt Plan

[79]

How should we exercise the court's declaratory powers?

[80]

Our powers under section 313

[80]

Afterword

[84]

Introduction
The issue: do certain district rules comply with the 2009 Amendment to the RMA?
1

Are people free to cut down trees in their...

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