Environmental / Resource Management

Trees Difficult to Streamline

Section 152 of the Resource Management (Simplifying and Streamlining) Amendment Act 2009 (Act) revokes district plan rules relating to the felling, damaging or removal of trees in an urban environment from 1 January 2012. However, a rule relating to "...a tree, or group of trees...specifically identified" in a district plan is exempt from this revocation pursuant to section 152(3).

The wide definition the Environment Court has given to the phrase "group of trees" in Re Auckland Council means that some Councils will not have to go through the substantial process of changing their district plan provisions relating to the protection of trees in order to comply with the Act.

Needing clarification as to whether certain district plan rules would fall under this exception, North Shore City Council, Waitakere City Council and Auckland Regional Council (now all superseded by Auckland Council) applied to the Court for declarations that the relevant rules in the North Shore City and Waitakere City district plans protecting certain groups of trees would not be revoked on 1 January 2012.

In arriving at its decision the Environment Court looked at the wording of section 152 in its context and in terms of the purpose of the Act.

The Environment Court concluded that a "group" comprised individuals relating to each other by association, form or function. Thus a "group of trees" in the context of section 152 of the Act may be, in the natural and ordinary meaning of the phrase, a number of trees which are 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.

After reviewing the varied definitions of "specifically identified" and looking at what was intended by Parliament, the Environment Court held that:

"...the wide purpose of the Act with its inclusion of the complexities of ecosystems, habitats and landscapes – none of which readily align with property boundaries – leads towards a wide reading of the phrase "...group of trees...specifically identified" in a district plan."

It concluded that the phrase "group of trees ... specifically identified" includes any of the following sets:

  1. a cluster of trees identified precisely by location (usually by street address and/or legal description);
  2. all trees of one or more named species in a defined area or zone;
  3. all trees in a class with defined characteristics in a defined area or zone;
  4. all trees in a named ecosystem (usually natural rather than artificial) or habitat or landscape (unit) or ecotone,

-and the set (usually) implements specific objectives and policies in the district plan."

The relevant North Shore City and Waitakere City District Plan Rules were found by the Environment Court to fit within the exemption in the Act because they fall within this wide definition of the phrase. By way of example the Environment Court noted that the use of "clouding" shown on planning maps and labeled in the legend as "Notable Group of Trees" in the North Shore District Plan fell within the exception.

The "Managed Natural Area" that is shown on relevant maps in the Waitakere City District Plan was also held to constitute a group of trees by virtue of "comprising largely continuous and contiguous trees and also forming part of an indigenous forest ecosystem".

Local authorities will need to determine if the same approach would be likely to apply to rules in their district plans that would otherwise be revoked under section 152 of the Act. It should not be assumed that all such rules are now "safe" without careful consideration of the rationale followed by the Court in this instance. It should also be recognised that the decision will not meet with universal acclaim since there had been widespread dissatisfaction with the general rules for the protection of trees in many district plans prior to the enactment of section 152.

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The contents of this publication are general in nature and are not intended to serve as a substitute for legal advice on a specific matter. In the absence of such advice no responsibility is accepted by Brookfields for reliance on any of the information provided in this publication.


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