11 Dec 2012

Tree removal easier under new law

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Written by: Anne Gibson
Photo by: Mark Mtichell
Published: The New Zealand Herald – 11 December 2012

Resource Management Reform Bill will allow protection only of specific trees mentioned in district plans.

Tree removal easier under new law

Resource Management Reform Bill, introduced to Parliament last week, restated the Government’s original intent about the way councils interpreted tree protection rules.

The Government’s moves to permanently abolish tree protection rules for those not already named on district plans will be further strengthened by a proposed law change, an expert says.

Russell Bartlett, a specialist resource management barrister of Shortland Chambers in Auckland, said the Resource Management Reform Bill, introduced to Parliament last week, restated the Government’s original intent about the way councils interpreted tree protection rules.

The bill, expected to reach select committee stage early next year, would stop councils giving general defence to individual trees over a certain height or girth and groups of trees, Bartlett said.

If the changes go ahead next year, it will be easier for people to remove trees which councils might now argue are protected.

He was poised to go to the Environment Court next month, on behalf of the Property Council, seeking clarification on many points to ensure councils did not misinterpret the law.

He had already filed the application for declarations under section 311 of the RMA on general tree protection provisions in the Auckland Council District Plan.

But that was overtaken by the new Resource Management Reform Bill, he said yesterday.

That bill is “clarifying that a tree protection rule can only apply to a tree or group of trees that is specifically identified in a schedule to a plan by street address or legal description of the land, and that a group of trees means a cluster, grove, or line of trees that are located on the same or adjacent allotments identified by precise location”.

Amendments to the Resource Management Act in 2009, which originally introduced changes to tree laws, came into force in January and abolished rules for non-protected trees – those not scheduled on district plans.

However, Waitakere City Council, North Shore City Council and Auckland Council used an Environment Court decision from Judge John Jackson last year to keep the status quo.

Bartlett said this had allowed the old laws to reign.

“Judge Jackson’s view of the 2009 amendment was that councils could claim that trees 100km apart were part of the same ‘group of trees’ because they were of the same species and were over a certain height,” Bartlett said.

“Councils could protect trees that they had not seen or evaluated simply by issuing a general description. That was exactly what the 2009 amendment outlawed,” he said.

“Judge Jackson’s decision came as a surprise to resource management practitioners, and also to Auckland Council.

“The council got far more than it asked for in the 2011 proceedings and was not planning to fully defend the outcome in the hearing scheduled for next January,” Bartlett said.

“Regrettably our efforts to negotiate an agreed position with council representatives were not supported by the politicians who did not wish to be seen as giving away their unexpected gift from the court,” he said.

The original law change, and the latest proposed amendments, will put the onus on councils, not residents, over the issue of which trees are protected, he said. Councils must identify a specific tree, or a group of trees, if they want them retained.

Auckland Council said in January that in 2009, Parliament amended the Resource Management Act 1991 to remove general tree rules in urban areas from January 1 this year.

“Many people thought this meant that any tree could be cut down from January 1, 2012. This is not the case,” the council said. “Due to a decision by the Environment Court, a number of general tree rules will continue to be enforced. Therefore, you may still require a resource consent from January 1, 2012 before you can carry out any tree work on your property.”

Barrister Stuart Ryan said Auckland tree protection rules were in a muddle. Judge Jackson’s decision had “validated many of the types of general tree protection rules which the Government had intended to revoke”, Ryan said.

But he said exactly which general tree protection rules remained in force throughout the Auckland region was a matter of legal uncertainty.

Tree laws

Issue: 10 per cent of all resource consent applications deal with trees.

Government stance: Wants to remove red tape to simplify process.
Auckland Council: Went to Environment Court to overturn law change.
Now: Government strengthening law change on tree protection.


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