When a territorial authority, usually the local council, receives a request to remove or prune a tree, their first duty will usually be to decide whether the tree comes under tree protection rules written into their council’s District Plan. Each council has its own rules, affecting exotic trees and native trees, and these can differ a lot from one council to another.

If a tree in the Resource Consent application has general protection, the planner handling the application will think about whether removal or pruning of the tree is likely to have a significant effect on the surrounding environment, or just on the applicant’s site. If removal or pruning will have a negligible effect on the environment then consent to remove the tree may be given quickly. In other cases the council may decide others also directly affected should have a say, or that likely community concerns justify public notification of the application.

Some councils delegate to a tree spokesperson, who sits on the relevant Community Board, the authority to make a decision on the preferred course of action; others give that authority to the planning department, and a third option is to forward the application to the council’s Hearings Committee. If any of these decision-makers thinks for varying reasons the effect on the surrounding environment may be “more than minor”, a notified Resource Consent Application is required and that will be publicly advertised. Notification allows any member of the public to make a formal submission to the council concerned, (a copy of each submission MUST be sent by the submitter to the applicant). All submitters are notified of the date, time and place of any council hearing, and at that hearing can have their say about the tree, (or trees), and give their opinion about whether the council should grant consent, or not.

The Tree Council makes at least a preliminary evaluation of the tree issues involved in all the Notified Resource Consent applications, within the Auckland region. This is the most effective way to be involved in the process, and learning about resource consents applications made to the various councils. We then go on to write, (and deliver on time, which is very important), a considered submission on each application, particularly ones which The Tree Council wishes to oppose. We hope that by taking part in this process the Hearings Committee will consider all aspects of tree removal, not just the views of applicants. On some occasions there may be other ways of dealing with the issues that can reach a conclusion agreeable to all parties. Crown lifting, installing “gutter guards”, and thinning the crown of a tree are just a few alternatives to tree removal.

The Tree Council thinks it is important, wherever possible, for our representative to be present at a hearing on tree removal, to hear all sides of the argument; to put our point of view across in person, and to answer any questions. The applicant always makes the first presentation, then other submitters are heard, and finally the applicant has a right-of-reply. The Hearings Committee then makes its decision, which may be given at the hearing, or it may be notified in writing within 10 working days of the hearing date.

On rare occasions if the applicant, or a submitter, disagrees with the council’s decision as made by the Hearings Committee, the matter may be taken to the Environment Court by any party to the proceedings. The whole matter is then considered afresh by the Court, or resolved in mediation. This is not a course to enter into lightly and the costs of taking a misjudged or ill-prepared case to the Court can potentially be very high.

Click here for guidance on how to write a submission.


Case studies

Mike Maran and I first visited 28-32 View Road, Mt Eden in March 2007. The existing rest home owned by the Salvation Army had been sold and the new owners were applying for resource consent. The application was lodged with Auckland City Council as a Notified Resource Consent Application. The section of the resource consent which concerned Mike and I addressed:

• Works within the drip-line of a Scheduled Queensland Kauri tree which is a discretionary activity consent
• Removal of seven generally protected exotic and native trees which is a restricted discretionary activity consent
• Works within the drip-line of fourteen generally protected native and exotic trees which is a restricted discretionary activity consent

Mike and I spoke with staff and residents and assessed each tree from the Arboricultural Assessment. To our surprise several large native trees on the northern boundary had not been recorded or commented on in this report. These trees were generally protected trees meaning the native trees were in excess of 6 metres or with a girth (measured at 1.4m above the ground) greater then 600mm and the exotics were over 8m or with a girth measured as above greater than 800mm. We also could locate only two of the seven trees to be removed. I overlaid the original site plans with the new plans which showed that all the generally protected trees on site were being removed leaving only two and the scheduled Queensland Kauri.

Mike completed The Tree Council's submission stating that we found the arborist's report to be confusing and full of anomalies and stated our findings. He asked that before any decisions were made that The Tree Council would like the arborist’s report corrected. This resulted in a “Revised Arboricultural Assessment being submitted which clarified all of The Tree Council's concerns.

The hearing was December 2007 and the decisions reached by Auckland City Council gave further protection to the Scheduled Queensland Kauri and requested mitigation planting for the removed trees. Other conditions outlined protection for the remaining trees during the construction period.

The Proposed Landscape Plan presented for the new development addressed the loss of consented trees and reflected and strengthened the existing vegetation coverage.

Without the site visits that Mike and I made the original resource consent may have been granted and several mature trees would have been lost. I feel it is very important for The Tree Council to have as many field officers as possible to review these consents. This one required a bit of time but sometimes all we need is a quick look to assess whether we need to make a submission. The outcome for this development was far superior than the proposals in their original consent.

Sherylle Scott
Landscape Architect
The Tree Council Community Tree adviser

 

Background
The Tree Council was alerted to this development site in October 2006 by concerned residents.  Developers wanted to build 56 medium density residential units on a large block of land (nearly 2.5 hectares) in Sunnyvale, encircled by backs of houses.  The land in question was held in 4 titles, combining the large grounds of an abandoned house and grapefruit orchard, and houses backing on to this which had been strategically bought by the developers.  This piece of land was an overgrown mix of trees of all types, quality and sizes, shrubs and undergrowth.

The development proposal took advantage of part of the site being within 500 metres radius of Sunnyvale train station (as the crow flies) and thus partly falling within Waitakere City council’s medium density housing rules.  Within these zones there is no limit on the number of units.   However, developments are expected to meet the general rules regarding housing developments.

Vegetation
All vegetation, including 16 generally protected trees identified in the developer’s application, were going to be cleared, apart from native specimens located with the riparian margin on the stream side of the development.

Upon visiting the site, The Tree Council, along with their independent arborist, established that the applicants had significantly undervalued the number of generally protected trees on the property.  This had also not been challenged by the Council arborist in his report.  Many trees such as young Pin Oak and a good specimen of a Copper Beech, Cabbage trees, Pohutukawa, Golden Totara, Kowhai, Rewarewa were not recorded, even though they were over the minimum size for protection.

Submission Process
Andrew Geddes, for The Tree Council, made a written and oral submission to Waitakere City Council.  The Tree Council’s arguments being:

• that the developers should be able to devise a plan without so many trees being cut down ie. less dense and the houses differently situated,
• that the proposed development breached the Council’s own District Plan policies and rules relating to the retention of the trees because of their amenity value, limiting impact on neighbourhood character as well as the wellbeing of the local community
• that the park the developers were creating was not a meaningful mitigation alternative, being so small and having relatively insignificant trees planted in it,
• that the housing density and the street plan did not enable the new street trees to be able to grow to maturity without severe conflict with people, traffic and buildings.

Waitakere City Council’s arborist reported:  

“The current landscaping replanting is in my opinion unsustainable.  The replacement trees simply do not have sufficient room in which to grow and reach maturity without inevitable conflict with people and the new buildings.  

It is considered that the removal and mitigation planting proposed is not consistent with District Plan policies 11.4 and 11.6 relating to the on existing amenity values and neighbourhood character and does not meet the assessment criteria 2a and 2j of the vegetation alteration rules (General Natural Area: Rule 2 – Vegetation Alteration):
(2a) the extent to which vegetation alteration adversely affects amenity values and neighbourhood character;
 (2j) the extent to which vegetation alteration can be offset by restoration or enhancement around and within the area subject to the application.”

(Stephen Bishop, Specialist Arborist Report, Awaroa Road, Waitakere City Council, 31 January 2007, pg 6 – presented in Volume 1 of evidence at Waitakere City Council Hearings Committee, 13th and 20th April 2007)

Local residents, who had now organised themselves under the Sunnyvale Protection Society (SPS), presented their passionate and well argued opinions to Waitakere City Council at the Consent Hearings in April 2007.  Nevertheless, the Council effectively ignored the community’s and The Tree Council’s submissions, and allowed the developer to proceed with little change.

Environment Court - Mediation
The Tree Council and SPS then took the decision to jointly challenge the Council’s decision in the Environment Court.  

As a result of a one day mediation session held at the Auckland District Court in September 2007, it was agreed that the developer would:

• reduce the number of units from 56 to 51,
• relocate a few units to allow for better tree planting,
• relocate two existing good sized but young Pohutukawa,
• retain a Liquid Amber and change the street planting to encompass some larger trees in otherwise unplanted areas,
• plant Kahikatea in the wetland margins instead of smaller and exotic trees,
• enlarge the park and increase tree planting, as well as retain an existing Kowhai, two Rewarewa and a mature Pohutukawa, that otherwise would have been cut down.

Two large trees that the developers said they would consider retaining, were not able to be saved, because, of the difference in required ground height, and the proximity to proposed houses, which they refused to change. 

The Tree Council thank Cowper Campbell for their advice during the mediation process.

Monitoring
Monitoring of the development by The Tree Council and SPS to ensure that agreements were upheld, showed that the developers routinely ignored the conditions and accepted the fines from Waitakere City Council, and then continued on!  Monitoring by The Tree Council discovered that inadequate fencing had been used around the few protected trees remaining, such that large machinery had caused some damage to a Rewarewa.  Council’s own monitoring officer then assured The Tree Council that these problems had subsequently been rectified. 

As of August 2008, the work on site came to a halt.  The house had been demolished, the land cleared and crudely landscaped, but the drainage and internal road had not yet been fully complete. The Tree Council and SPS continue to monitor the situation.

Evaluation
Was this result worth all the work that it took?  The answer has to be yes.  It was important they we made a stand.  Our work has made the development a less dense and more ‘green’ and pleasant environment for the prospective inhabitants as well as for the neighbours.  

We were reluctant to bring in the media at the time, because of fears that it might jeopardise the mediation process. Nevertheless, it was strongly felt by both parties that Waitakere City Council had succumbed to developer pressure and ignored their own District Plan policies.  

Sigrid Shayer