BEFORE THE ENVIRONMENT COURT
I MUA I TE KOOTI TAIAO AOTEAROA
Decision No. [2019] 058

IN THE MATTER of the Resource Management Act 1991 (the
Act)

AND of an application for enforcement order
pursuant to s314 and application to
discharge interim enforcement order
pursuant to $320 ofthe Act

BETWEEN ANDREW ALEXANDER MAEHL
WINIFRED MARY CHARLESWORTH
00065)

Applicants for permanent orders

AND JOHN ROBERT LENIHAN

JANE HELEN GREENSMITH

Applicants to discharge interim orders

Hearing: 18-19 March 2019

Judge: A Smith

Commissioner: A Leljnen

Appearances: A Matheson for A A Maehl and Charlesworth

Stienstra for Lenihan and Greensmith
Brown for the Auckland Council (watching brief only, leave to
abide decision of court and retire) 

Date of Decision: 3 April 2019

Date of Issue:

 

DECISION OF THE ENVIRONMENT COURT

 

A: The court discharges the interim order from the 26 April 2019 and refuses the

application for permanent order.

B: Application for costs is to be filed by 3 May 2019, any reply by 17 May 2019 and

MAEHL CHARLESWORTH LENIHAN GREENSMITH

 

 

 

any final reply, if any, by 24 May 2019.

REASONS

Introduction

This is an application for a permanent order to replace an interim order made by
the Environment Court on 29 May 2017 by Judge Kirkpatrick [2017] 078. This
interim order was made when there were relevant proceedings before the High Court.
The order was made under s314(1)(a)(i) and (ii) of the Act and it was made ex?parte. It

was supported by a general undertaking as to damages signed by Mr Maehl.

It is clear that the order was made in contemplation that an interim order made by
the High Court protecting the tree may come to an end in the nearfuture. This then refers
the court to a decision of the High Court issued in August 2017. Although the decision
itself is in relation to costs it traverses the circumstances and background of this matter

in some detail.

It appears an application was filed in late December 2015 and heard by the High
Court between 31 October and 2 November 2016. It then appears there was an
adjournment for further evidence with the matter set down for hearing of the immediate
claim on 1 May 2017. The proceedings were rendered redundant by Lenihan and others

on 28 April 2017 when the resource consent was surrendered.

The application for ex-parte order before the Environment Court appears to have
been to protect the Kauri subsequent upon the end of those proceedings. Nevertheless,
in this hearing, the court heard that the actual interim injunction in the High Court was not
withdrawn until sometime around February 2018, although we were not given precise

details.

Subsequent to the making of the ex-parte interim order by the Environment Court
on 29 May 2017, the High Court issued a decision in respect of costs applications in
August of that year.1 That decision goes into some considerable detail as to the

background of the proceeding and rejects applications by Lenihan and others for costs.

 

1 Lenihan et al Maehl et all AC anor [2017] NZHC 1902 Whata 

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For reasons that are not entirely clear it appears that the issue before this court was not

addressed again prior to approximately May 2018.

There is some difference as to whether the court raised the issue of the
continuation of the order or whether this was raised by parties. Nevertheless, on 17
August 2018 an application was filed by Lenihan and others for the discharge of the
interim enforcement order. An application for permanent enforcement order under 3314
and 316 of the Act was filed by Maehl on or about 21 September 2018.

The court then engaged in various minutes to bring this matter on for hearing
including a number of requests for adjournment of the hearing date. The court has
required this matter to go to hearing on either or both of the applications and the parties

appeared and argued the matters fully before the court on 18-19 March.

The scope of this hearing

Ms Matheson acknowledged at the commencement of her submissions for Maehl
that if they could not sustain an application for a permanent enforcement order then the

application for discharge of the interim order must succeed.

In short, both parties agreed after some discussion with the court, that the two
applications were the inverse of an application for enforcement order or the removal of
orders in respect of the property. it was acknowledged by Ms Matheson that in terms of
the now operative Auckland Unitary Plan, the removal of this Kauri (and any other on the

property) was permissible.

[10] For reasons we will go into shortly, we have concluded that the plan is very clear
that the removal of such trees is a permitted activity. This of course in terms of
s314(1)(a)(ii) is not an entire answer to the issue given that there remains jurisdiction for
the court to intercede in appropriate cases not withstanding that the activity may hold a
consent or othenrvise be permitted. Those constraints are a matter of some particular

moment in this case as we will identify in due course.

Kauri protection and conservation

[11] The Environment Court has taken a particular interest in the maintenance of Kauri

trees as a consequence of the invasive pathogen (phytophthora agathidicida) commonly

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referred to as Kauri Dieback. Where such trees are protected and where there is the
potential for them to be protected from Kauri dieback or other adverse effects, this court
has been anxious to ensure that this charismatic megafauna (some might say iconic as

the oldest living tree in New Zealand) is protected into the future.

[12] Nevertheless, as will be clear in this case, we are bound by the laws which are
passed by parliament which saw an amendment to the RMA s76(4A) and (4B) which
removed the ability for a council to have general blanket protection of trees within urban
areas and instead required that particular and specific protections be put in place in a
District Plan.

[13] Furthermore, even if such protections are in place, these do not displace the
ability to obtain a resource consent to remove such trees in appropriate circumstances.
As we will discuss, in fact such a permission did exist in respect of this tree at the time
the tree was ringbarked in 2015 and which is discussed by the High Court in its decision

as to costs.

[14] Accordingly, we wish to state at the outset that the outcome of this decision, for
the detailed reasons that we give, is that there is no protection for this Kauri tree because
it is not within a Significant Ecological Area (SEA) nor is it individually identified for
protection under the Unitary Plan. That outcome may be extremely disappointing to
many citizens. However, the remedy is either a plan change in accordance with the

legislation or amendment to the RMA itself.

[15] Although this seems an extreme outcome, we hasten to add that much of the
Titirangi, Waitakere area is protected by SEAs and also by a strong local culture for the
preservation of such trees wherever possible. We note that many of the owners of such
properties go to significant to protect the trees on their property and they are
actively involved in steps to address Kauri dieback and other potential causes of loss of

this important species.

[16] To understand the court?s conclusion in this matter, it is important to start with the
statutory basis on which the Auckland Unitary Plan must be prepared. For reasons we
will go into in some particular detail, the Waitakere Ranges Protection Act has little impact
in this case and cannot override the terms of the Resource Management Act because of
the provisions of 39 of the Waitakere Ranges Act which provide that the Resource

Management Act will have priority.

The statutory position

[17] After the Resource Management Simplifying and Streamlining Amendment Act
2009 the Act was subsequently amended in 2013 by the insertion of the current
provisions 376 (4A) to (4D) inclusive. These provisions removed any blanket protection
fortress in urban areas, but allowed the control of felling, trimming, damaging or removal

of a tree on a single urban environment allotment in very limited circumstances.

[18] Sub?section 4A required that a rule in a District Plan may prohibit or restrict the
felling, trimming, damaging or removal of a tree or trees on a single urban environment

allotment only if, in a schedule to the plan:

The tree or trees are described; and

The allotment is specifically identified by street address or legal

description of the land or both.

[19] Sub?section 4B constitutes a similar provision in respect of a group of two or more
trees over adjacent lots. This applies only within an urban environment and there is no
argument in this case that the lots involved are smaller than 4,000m2, that they are
connected to reticulated water and waste, that they are not being used for industrial or
commercial purposes and they are not a reserve. Sub?section 4D goes further to state

to avoid doubt sub-sections 4A and 4B apply:

Regardless of whether the tree, trees or group of trees is, or the allotment

or allotments are, also identified on a map in the plan; and

Regardless of whether the allotment or allotments are also clad with bush

or other vegetation.

[20] Whatever may have been the intention of this legislation, its effect in respect of
the Waitakere area is that many mature trees, Puriri, Rimu and Kauri in particular, some
of which are of considerable antiquity, but on urban allotments are not identified, or

covered by any group of trees provision, such as an SEA.

[21] In this case, the subject allotment in its entirety was originally an SEA in the

notified proposed Auckland Unitary Plan. However, as a result of changes made

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subsequent to the obtaining of a resource consent for the building of a house and
clearance of vegetation, the Auckland Unitary Plan (AUP), was amended by consent,
through its hearing phase, to provide for part ofthe allotment to have no SEA over it. The
area of SEA removed was consistent with that enabled by the resource consent for a
building. An extract of the SEA overlay map is annexed hereto and marked A. This
means that the property in question includes at least this Kauri (and other trees) which
have no protection and can be removed subject to rules in Chapter of the AUP which

we now more fully explain.

The Auckland Unitary Plan

[22] The AUP must comply with the statutory requirement under 576 and accordingly
cannot control the removal of trees within the urban area unless it is justified under one

of the exceptions. Under the AUP this has been addressed in two ways:

One is that notable trees can be listed and identified individually within the
plan Schedule 10 Notable trees Schedule). We understand that few

trees within the Waitakere area are identified in this way;

The trees can be identified as part of a group of trees. The council has
utilised the SEA process to identify large tracts of land within the urban
area of the Waitakeres in this way (eg. Schedule 3 Significant Ecological
Areas Terrestrial). These trees or SEAS are identified on the planning

maps which form part of the AUP.

[23] Originally all of this site was identified in the notified plan as SEA but this was
modified so that the portion closest to the road could accomodate a building platform
within it which included a number of trees which would need to be removed. The balance

of the site is still protected by SEA and this is shown clearly on the annexed Plan A.

[24] To understand the position of the relevant Kauri tree and the original proposal
made for its removal we attach herewith as a copy of a plan showing the position of
the various trees and the intended position of the original consented house. That consent
has been surrendered but served to illustrate the reason behind the SEA cut out and
shows the approximate position of the trees including the subject tree on the site. Ms

Matheson accepted that given the relevant parts of the AUP are now operative, the

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removal of this area from the SEA is now moot and for all practical purposes there is no

SEA control over the removal of trees on it.

[25] At the time it was also suggested that there was no particular control over trees
so that removal was permitted by omission. The court has investigated this matter. We

are satisfied that the plan is clear on the following points:

That this site is within the Rural Urban Boundary (it is within an urban

area);
That it is zoned as Residential Large Lot but is not larger than 4,000m2.

There are several controls including macroinvertebrate community Index:
Native and Stormwater Management Control Area over this site as a

whole, but they are relevant for current purposes.

That there are several mapped overlays including the Waitakere Ranges
Heritage Area Overlay and the SEA overlay (T) which covers most of the

site but excludes the pocket identified on the map A attached.

That under Chapter E15 Vegetation Management and Biodiversity, there
are Auckland wide rules relating to vegetation and biodiversity
management. Where an activity is not covered by other zones A22A

provides that vegetation, alteration or removals are permitted activities.

[26] Although there are standards in E156 which would make certain activities
restricted discretionary activities, the only one applying on this site is E15.6.1 deadwood
removal, which requires that all Kauri deadwood and material including sawdust and
wood chips must be retained on site or disposed of to an approved landfill facility. Other
standards identified in that section do not apply. Accordingly, there is a rule in the plan
which permits the removal of this Kauri tree and others in a similar position, both on this

land and other land, as of right.
Intervention by the court

[27] Both parties acknowledged that 3314(1)(a)(ii) may permit, in appropriate

circumstances, the court to make orders preventing an activity which may othen/vise be

8

either permitted or subject to a resource consent granted. Although there are many cases
in this area we considerthat the most relevant for current purposes is Save Our 81? Heliers
Incorporated vAncona Properties OrsQ. In that case the buildings in question were not
listed as heritage items in the plan although there appears to be a relatively high
recognition of them as having some heritage value. The argument was that they did not

need to be formally identified to warrant protection as historic heritage.

[28] An almost identical argument could be made in respect of this tree given that it is
likely to be in the order of 150-300 years old, it is of a significant size being over 20m tall

with a diameter of around one metre.

[29] Nevertheless, the combination of S319 and the terms of 5314 are clear that there
must be some threshold which the applicant must reach before the court will interfere in
the otherwise lawful undertaking of activities which are either permitted or subject to

resource consent.

[30] We have concluded in looking at these provisions that the degree of proof that
would be necessary, (is. the threshold), involved would increase significantly where the
activity is clearly a permitted activity and there is no argument as to misidentification or

misapplication of the rule.

[31] In this case, this Kauri tree is in the position of many hundreds orthousands within
the Waitakere area. There are a number of other Kauris of lesser age on this site and
within the area which is not covered by an SEA. Clearly the historic heritage provisions
of the Act would cover this tree, as it covers both natural and physical resources, but the

question of its value is the issue in this case.

[32] We understand the law is clear that this cannot simply be an aversion by members
of the public to the proper exercise of legal rights by owners. Many people may disagree
with statutory amendment on this matter and the provisions of s76 4A-4D inclusive. The
remedy in such a case is to seek to have the legislation changed. It cannot be that the
court should be asked to achieve outcomes contrary to those in the statute because a

significant proportion of the public does not agree with them.

 

2 [2011] 1991

9

Culturally offensive or otherwise objectionable

[33] Ms Matheson advanced evidence from a number of witnesses, many of whom
are'senior well?respected members of both local iwi and the scientific community. it is
clearthat they hold Kauri generally in high regard and that they have significant concerns

about the loss of a Kauri of this size and age.

[34] Furthermore, this tree has shown a remarkable ability to recover from being
ringbarked in December 2015. In that case Mautauranga Maori procedures were utilised
and a poultice of beeswax and Kawakawa leaves attached. Remarkably the tree has
survived and, on our observation, appeared to be in at least as good a condition as other

trees on this site and showed signs of recent resprouting in areas that had been bare.

[35] There is also no argument that the site as a whole is contaminated by PTA and
that this and the other major Kauri trees on the road reserve appear to date to have
resisted the disease. As Dr Waipara told us, there is developing science in this area
which may show a convergence between Mautauranga Maori and scientific information
particularly into the use of native trees including Kawakawa and other species in keeping
PTA at abeyance or even destroying it. Dr Waipara was anxious to tell us that the
ringbarking has a similar effect to the lesions which form from the PTA bacteria which
generally is shown at a more advanced stage where the roots have been rotted by the

disease.

[36] He is unable to comment at this stage as to why this tree has survived its
contaminated site and the offence of the ringbarking but considers that the tree is very
significant as a result. The iwi representative similarly see this as an example of the
principles of Mautauranga Maori working but more broadly are very concerned at the
continuing loss of Kauri to the disease. In a way they see this as a symbol of hope, even
though they do not suggest that this particular tree had any singular cultural significance

before the events leading to this case.

[37] There is a particular irony in Ms Matheson advising that the special significance
of this tree relates to the fact that it was ringbarked (when there was a consent in place
that it could be taken down and that it has survived the event). The particular affront to
the community appears to relate to an undertaking that may have been given (to the

newspaper or the members of the public), that the tree would not be removed.

10

Nevertheless, it is clear this undertaking was not given in a court context nor was there

any evidence given to show that this was in any enforceable form whatsoever.

Conclusion as to significance

[38] There are a number of trees on this site and the nearby roadside which have
survived notwithstanding PTA being confirmed on this site. This tree has further survived
the affront of being ringbarked in December 2015. We cannot conclude that those events
are of such significance that they would justify this court in interfering with the clear rights

of the landowner to undertake a permitted activity on their property.

[39] Whilst we see that the consequences of the removal of large numbers of Kauri
trees in the Waitakeres would be devastating, this is nevertheless permitted by the
legislation which was introduced with the clear intent of allowing such activity. The
remedy must be statutory given the clear intent of this section. We are unable to see that
there is any particular cultural or other significance to this tree or this site sufficient to
justify us interfering with this landowner?s rights which have otherwise been exercised

appropriately.

The previous consent

[40] Reinforcing us in this view is the detailed discussion by the High Court as to the
granting of the consent for the removal of this tree when the tree was within an SEA and
its removal required a resource consent. The High Court was satisfied that the council
had properly considered the impact on the tree and all other matters in reaching its

conclusion to grant consent.

[41] Although this was not determined for the purposes of the costs decision which
was issued, it is compelling before this court. We are satisfied that the council weighed
the impact of providing for a residence on this site by minimising the impact and shifting
the building platform right onto the boundary with the road and utilising part of the road
boundary for access and parking. In doing so this preserved the majority of the rear of
the site which constitutes an important conservation area with interconnected ecological

corridors through the valley floor from the sea inland.

[42] Given that the consent has now been surrendered, it is clear that any application

to build on this site would require the applicant to comply with the standards within the



plan or seek resource consent. Ms Stienstra tells us that there is a 10m setback from
the front boundary of this property for any building and a 6m setback from side
boundaries. It is clear from the diagram we have attached as that the subject Kauri
tree is within 10m ofthe front boundary and may even be within 6m of the side boundary
(although we are not clear on this). In practical terms therefore, it may not be necessary
for the owner to remove the tree to construct a home. We appreciate that this simply
means that the owner may not have to remove the tree to build a house but would still

be entitled to do so as a permitted activity.

Comment

[43] We appreciate that this decision will be disappointing to the many people who
have undertaken a special interest in this tree and the Kauri dieback issues which are

arising in the Waitakere.

[44] One mechanism for protection which could be utilised is the identification of
notable trees in the Schedule of the Plan. We understand that Maehl and others have

sought to have this tree included but the council has to date not agreed to this request.

[45] Finally, we should say that the reliance on the Waitakere Ranges Heritage Act
seems to us misplaced given 39 of the Act and that the provisions are largely taken into
account under 310 and 511 in regional and district plans, resource consents and

conditions.

[46] We note there is a provision relating to declarations. Overall it appears to us that
the provisions of the Waitakere Ranges Heritage Area Act 2008 cannot override the clear
provisions of the Resource Management Act given the terms of 39. On this basis the
Waitakere Ranges Heritage Area Act 2008 cannot provide a basis for the issuing of any
enforcement order under the Resource Management Act where that contradicts s76 4A-

4D inclusive and the provisions of the AUP which provide for it as a permitted activity.

Continuation of interim order

[47] We appreciate that the outcome of this decision will create some concern and
consternation in the local community. We have concluded that a short period should be
allowed before the interim order expires in the event that the parties wish to seek further

injunctions in the High Court. Given our conclusion in relation to this matter we cannot

12

see any basis upon which this court has the power extending the enforcement order
beyond such a reasonable period. In the end we have concluded that the interim order
should expire on 26 April 2019.
Outcome

(1) The court discharges the interim order as at 26 April 2019.

(2) That the application for permanent enforcement order is refused.

(3) Any application for costs is to be filed by 3 May 2019;

(4) Any reply by 17 May 2019;

(5) Any final reply, if any, by 24 May 2019.

 

 

Judge! Smitg

Environment Ju ge



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