Cases
June 10, 2024
The High Court has recently released its decision in Waru v Tūpuna Maunga o Tāmaki Makaurau Authority [2024] NZHC 1414 to set aside Auckland Council’s decision to grant a non-notified resource consent to remove 278 exotic trees from Ōtāhuhu/Mt Richmond. The Court found that the Council had failed properly to consider the adverse effects of cutting down the trees on the “amenity values” of the reserve. James Little, with junior barrister, Hannah Short, acted for the successful applicant.
The Tūpuna Maunga o Tāmaki Makaurau Authority (the TMA), which had applied for the resource consent, defended the Council’s decision in the proceeding. The Council elected to abide.
The TMA is the statutory co-governance body that has been responsible for the management of many of Auckland’s maunga, including Ōtāhuhu/Mt Richmond, since the enactment of the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014.
The TMA initially applied for a non-notified resource consent to remove 443 of the 444 exotic trees on Ōtāhuhu/Mt Richmond, as well as to plant additional native vegetation. Following feedback from the Council on its application, the TMA revised it to exclude those trees on the reserve that were within 100m of local residences (if those trees had not been excluded, the Council would have required the TMA to notify those residents of its application). This reduced the total number of trees within the application to 278 – or around half of all trees, native and exotic, on the reserve.
The Council, before deciding whether to grant the TMA’s resource consent application, first needed to determine whether it should be “publicly notified”. To make that decision under the Resource Management Act 1991 (the RMA), the Council was required to consider, among other things, whether the activity for which consent was sought would have “adverse effects on the environment that are more than minor”. If it would, the application would need to be publicly notified, and the public would then be entitled to make submissions and participate in the resource consent process. The “environment” in the RMA is defined to include, among other things, “amenity values”.
The Council decided that the TMA’s proposal, including the felling of the trees, would not have any adverse effects that were more than minor, and that there were no special circumstances that otherwise justified public notification. The Council accordingly decided not to require the resource consent application to be publicly notified. It then granted the resource consent on a “non-notified” basis.
The applicant for judicial review, Shirley Waru (Te Uri o Tai), who lived near the maunga and had visited it almost every day for over 30 years, opposed the felling of the trees and filed proceedings challenging the decision to grant the consent on a non-notified basis.
Ms Waru adduced evidence of the contribution of the exotic trees to the amenity of the reserve, including their beauty, their use for recreation in different parts of the reserve, as a habitat for birds, and as to way they blocked the outlook to the industrial and commercial areas that partly surround the maunga. She also provided evidence from an arborist, quoted by the Court, that “there would be markedly less tree cover and shade in most walkable parts of the reserve” were the trees to be felled.
In a judgment issued on 31 May 2024, Tahana J set aside the Council’s decision to issue the non-notified resource consent. The Court held that the Council had failed properly to consider the adverse effects of felling the trees on the amenity values of the reserve. While there was material before the Council about the effects on “visual amenity”, the definition of “amenity values” in the RMA extended beyond visual amenity. It included “those natural or physical qualities and characteristics of an area that contribute to people’s appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes”. There had been “no meaningful consideration of temporary adverse effects on amenity values beyond visual amenity”.
The Court observed that the circumstances were similar to those considered by the Court of Appeal in Norman v Tūpuna Maunga o Tāmaki Makaurau Authority [2022] NZCA 30. There, the Court of Appeal had set aside a non-notification decision in relation to an application for consent to fell 345 exotic trees on Ōwairaka/Mt Albert.
The judgment may be found here.
