Re application by Auckland Council

JurisdictionNew Zealand
JudgeJ R Jackson,K A Edmonds,C M Blom
Judgment Date20 May 2011
Neutral Citation[2011] NZEnvC 129
CourtEnvironment Court
Docket Number(ENV-2010-AKL-000241)
Date20 May 2011

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

Decision No. [2011] NZEnvC 129

Court:

Environment Judge J R Jackson

Environment Commissioner K A Edmonds

Environment Commissioner C M Blom

(ENV-2010-AKL-000241)

BEFORE THE ENVIRONMENT COURT

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”.

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)

  • 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 gardens? That is a question raised in this proceeding concerning the powers of territorial authorities to maintain rules in district plans protecting trees under the Resource Management Act 1991. The question arises as a result of the enactment of the Resource Management (Simplifying and Streamlining) Amendment Act 2009 which we will call “the Simplifying Act”. More precisely, the issue is whether the provisions of certain rules in the district plans of the former North Shore City and the Waitakere City are rules about a “tree or groups of trees … specifically identified in the plan” for the purpose of transitional section 152 of the Simplifying Act so that they will continue in effect after 1 January 2012.

Scope of the application for declarations

2

To establish whether the rules about trees with which they are concerned are legal, the North Shore City Council, Waitakere City Council and Auckland Regional Council(“the Councils”)applied on 10 September 2010 for declarations under the Resource Management Act 1991(“the RMA? or “the Act”)that:

  • (a) section 152(1) of the … [Simplifying Act] relating to the revocation of existing rules providing for protection of trees, does not apply to the rules described below due to 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:

    • North Shore District Plan

    • (i) Rule 8.4.6.2 … relat[ing] to Notable Groves of Trees depicted in the North Shore City District Plan Maps and listed and described in Appendix 8C: Schedule of Notable Trees of the North Shore City District Plan.

    • (ii) Rule 8.4.6.1.3(a)(i) … applying to any pohutukawa tree of 3 metres or more in height located within the Coastal Conservation Area or in the area of Lake Pupuke Site of Geological Significance 3 shown on the North Shore City District Plan Maps.

    • (iii) Rule 8.4.6.1.3(a)(ii) applying to any native vegetation within the foreshore yard and any vegetation (excluding invasive weed species) within the 30 metre lakeside yard shown on the North Shore City District Plan Maps.

    • (iv) Rule 8.4.6.1.2 (e) applying to any native vegetation (including the roots) when it is part of a continuous, naturally occurring area of native vegetation in the Residential 2A, 2A1 and 2B Zones in the North Shore City District Plan.

    • (v) Rule 8.4.6.1.2 (b) applying to any native tree of 6 metres or more in height or 600mm or more in girth (measured at 1.4 metres above the ground) or any exotic tree of 8 metres or more in height or 800mm in girth (measured at 1.4 metres above the ground) in the Residential 2B Zone in the North Shore City District Plan.

    • (vi) 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, that relates to the alteration, or removal, of any native vegetation as it applies to the Landscape Protection Area — Conservation and the Riparian Margins shown on the land use strategy map at Appendix 11A and additional controls map at Appendix 11B of Proposed Plan Change 6.

    • Waitakere City District Plan

    • (vii) Managed Natural Area Rule 2 Vegetation Alteration of the Natural Areas Rules … relat[ing] to land within the Bush Living Environment in the urban environment shown on the Waitakere City District Plan Maps.

    • (viii) Riparian Margins/Coastal Edges Natural Area Rule 2 Vegetation Alteration of the Natural Areas Rules … relat[ing] to land in the urban environment within the Riparian Margins/Coastal Edges Natural Area shown on the Waitakere City District Plan Maps.

    • (b) That the rules referred to in (a)(i) to (viii) above will continue to have legal effect in the circumstances prescribed above from 1 January 2012.

3

The Councils' proceedings were taken over 1 by the new Auckland Council on 1 November 2010 under the Local Government (Tamaki Makaurau Reorganisation) Act 2009. The Auckland Council's application was supported by the Waitakere Ranges Protection Society Incorporated(“WRPS”)and the Environmental Defence Society Incorporated(“EDS”)and by the Tree Council Incorporated. It was opposed by Vector Limited and by Dr Seakins 2. Other persons who had given notice that they wished to be heard did not attend the hearing.

Background: managing trees in the district plans
4

The North Shore City District Plan(“the North Shore plan”)and the Waitakere City District Plan(“the Waitakere plan”)currently include rules protecting trees in a range of circumstances. Those rules were promulgated under the general power of a territorial authority to make rules as conferred by section 76 of the RMA.

5

On 1 October 2009 the Simplifying Act came into force. It added provisions to the RMA which are at the heart of these proceedings. First a new section 76(4A) and (4B) of the RMA were added 3 which now qualify the general rule-making power by adding:

  • (4A) However, a rule must not prohibit or restrict the felling, trimming, damaging, or removal of any tree or group of trees in an urban environment unless the tree or group of trees is-

    • (a) specifically identified in the plan; or

    • (b) located within an area in the district that-

      • (i) is a reserve (within the meaning of section 2(1) of the Reserves Act 1977);or

      • (ii) is subject to a conservation management plan or conservation management strategy...

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