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Upper Hutt City Council

Proposed Plan Change 41 – Urban Tree Groups

Report of the Hearing Commissioner

1. INTRODUCTION

Appointment and purpose

1.1 I am appointed by the Upper Hutt City Council ("Council") to consider the provisions of, and hear

submissions and evidence on, Proposed Plan Change 41 ("PC41") to the operative Upper Hutt

District Plan ("District Plan"). This report is my decision and recommendation to the Council on

PC41 to the District Plan. The final decision-making power rests with the Council; in the event the

Council adopts my recommendations, this report will become the Council Decision.

1.2 The report is divided into the following parts:

(a) background and outline of PC 41;

(b) relevant statutory provisions;

(c) issues;

(d) statutory assessment; and

(e) recommendation.

2. BACKGROUND

Purpose of PC41

2.1 The PC41 documentation, in particular the Section 32 Report and the Officer's Report (which are

held on the Council's file and have also been available on the Council's website at

http://www.upperhuttcity.com/planning/trees/) set out the background to PC41 in detail so it is not

repeated in full here.

2.2 In summary, the genesis of PC41 arose from the changes to tree protection rules made under the

Resource Management Amendment Act 2013 ("2013 Amendments").1 The District Plan had

blanket tree protection rules covering the Residential Hill and Residential Conservation sub-zones.

However, the 2013 Amendments prevented Councils from protecting trees through blanket tree

protection rules on 'urban environmental allotments'. The effect of the 2013 Amendments was that

from 4 September 2015 the District Plan blanket tree protection rules for the Residential Hill and

Residential Conservation sub-zones ceased to apply.2 PC41 aims to update the District Plan's tree

protection rules for the Residential Hill and Residential Conservation sub-zones to ensure they meet

the requirements of the Resource Management Act 1991 ("RMA"). At the same time the Council

used PC41 to improve the integration of tree and vegetation provisions within the District Plan.

1 The specific amendments were to section 76 of the Resource Management Act 1991 and came into force on 4 September 2015.

2 As stipulated in Clause 4 of Schedule 12 to the RMA (as amended by the 2013 Amendments).

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However, the only substantive changes brought about by PC41 relate to urban tree groups and

additional notable trees being added to the Schedule in Chapter 27.7.

2.3 PC41 updates the following parts of the District Plan:

(a) Chapter 4 - Residential zone objectives and policies;

(b) Chapter 18 - Residential rules;

(c) Chapter 23 - Rules for earthworks and indigenous vegetation clearance;

(d) Chapter 27 - Schedule under Chapter 27.7 of the District Plan to include the individual trees

with a STEM score of 100 or greater (Notable Trees);

(e) Chapter 35 - Definitions;

(f) The Planning Maps to show the location of the Urban Tree Groups; and

(g) Consequential amendments.

2.4 In addition to the above updates, a new chapter - Chapter 27A is added. Chapter 27A contains all

the rules in the District Plan pertaining to tree protection.

PC41 methodology

2.5 The methodology for identifying urban tree groups is set out in detail in the Section 32 Report, the

Boffa Miskell UHCC – Tree Group Protection Report (dated 21 August 2015) and the evidence (and

supplementary evidence) of Mr Girvan (Landscape Planner for the Council). In summary the

methodology involved:

(a) an initial review of historical tree protection reviews and a "windscreen survey";

(b) the development, including through a workshop, of landscape, amenity and ecology values

providing an evaluation matrix (attached as Appendix 1 to Mr Girvan's evidence);

(c) the mapping of potential canopies, over 8m in height,3 using 2013 high resolution aerial

photography and LiDAR data; and

(d) field work undertaken between March and August 2015 (initially from public points only,

followed by private property site visits when allowed by landowners).

2.6 For each urban tree group identified through the above process, the tree group description (the

type/species of trees of value making up the group) and the location (street address) of each

property containing a listed tree in the group was recorded. This information enabled the columns

"Location" and "Tree Group Description" in Schedule 27A.14 to be populated. Each urban tree

group was mapped so it is readily apparent to landowners what vegetation on their property is

protected.

2.7 Through the above assessment process, and the application of the evaluation matrix, each urban

tree group was assessed on its landscape, amenity and ecology values. 261 urban tree groups

were initially identified. To be protected under PC41, an urban tree group had to score high in at

least one of these three criteria. Those urban tree groups that scored high for two or more criteria

3 As set out in paragraph 9.9 of Mr Girvan's evidence this height was identified as a suitable threshold above which trees are most

likely to contribute to a mature townscape and remain visible above the permitted height of development.

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were called "category 1" urban tree groups (189 such groups were initially identified). Urban tree

groups that scored 'high' for only one criterion were called "Category 2" urban tree groups (72 such

groups were initially identified).4 The Category 1 and 2 urban tree groups were then included in

Schedule 27A.14 with the high values for each group listed. This resulted in Schedule 27A.14

providing for each protected urban tree group including: its urban tree group number; street

address; listed protected species; and the identified high values.

2.8 Following notification of PC41 further reassessment (fieldwork carried out by an ecologist and

landscape architect) was undertaken resulting in 18 urban tree groups being amended and 5

removed (1 notable tree was also removed). Minor amendments were also made to descriptions

and species of urban tree groups. Further amendments to the urban tree groups followed as a

result of submissions being received, in preparing evidence for the hearing, and after the hearing as

set out in the Council's closing reply.

2.9 The proposed new notable trees added to Schedule 27.7 were assessed using the District Plan

Standard Tree Evaluation Method 1996 ("STEM") as set out in Chapter 27.6. PC41 has not made

any changes to this provision.

History of PC41

2.10 PC41 was notified and opened for submissions on 18 December 2015. The submission period

closed on 26 February 2016 with 40 submissions being received.5 A summary of submissions was

prepared and further submissions opened on 16 March 2016 and closed 8 April 2016. Three further

submissions were received. A full list of submitters, and further submissions, is attached as

Appendix 1 to this decision.6

2.11 I issued a minute dated 20 May 2016 setting out directions for the pre-circulation of a section 42A

report and submitters' expert evidence.

2.12 Prior to the hearing 5 submitters withdrew their submissions.7

2.13 On 29 June 2016 I undertook a site visit both generally around the Residential Hill and Residential

Conservation sub-zones, and also visited the properties of: Mr and Mrs Walsh (and their

neighbour); Mr Drake; Mr Thorpe; and Mr Crawford. During the site visit I also looked over the

fence at Mr and Mrs Harrison's property and stopped at the entrance to Mr Hu's property. I would

like to thank these submitters for providing the opportunity to visit their properties, and to Mr and

Mrs Walsh (who also introduced me to their neighbour) and Mr Thorpe for showing me around their

properties.

2.14 The hearing was held on 4 July 2016 in the Council chambers. During the hearing, in addition to

the Council's staff and experts I heard from: Mr Drake; Mr Thorpe; Mr Hu; Mr Winder; Mr Robertson;

Mr Mitchell; Mr Martin; Mr Crawford; Mr Harrison; Mr van Berkel; Greater Wellington Regional

4 Paragraph 7.1 of Mr Girvan's evidence.

5 Mr Mitchell's submission was received late. I agree with the Officer's Report (at Page 16) that the requirements of section 37A of

the RMA are met; in particular the two working day delay has not prejudiced any party, nor held up the process in any way, his submission was included in the summary of submissions enabling any person to make a further submission if they so wished, and his submission raised matters of community interest in the assessment of PC41. Accordingly I waive time compliance under section 37 of the RMA and accept Mr Mitchell's submission. 6 And can be found from page 13 of the Officer's Report.

7 As set out in paragraph 66 of the Officer's Report. The withdrawn submitters were Mr Todd; Ms Robinson and Mr Kyle; Mr

Gwerder and Mr Lattimer (UHCC); Mr Board and Mr Ilott.

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Council ("GWRC"); Mr Pattinson; Save our Hills; and Mrs Pattinson. Mr Longstaffe could not attend

the hearing but asked Mr Pattinson to read out his representation, which Mr Pattinson did.

2.15 I would like to thank the Council staff, experts and submitters who attended the hearing for the

manner in which the hearing was conducted, the very informative material presented to me, and the

helpful answers to my questions.

2.16 Once I had heard all submitters I adjourned the hearing until the Council's reply in writing on 13 July

2016. On 6 July I issued a minute informing the parties of the adjournment and also setting out

some particular matters I wished the Council to respond to in its reply.

2.17 On 13 July 2016 I received the Council's closing reply and having read it I closed the hearing on 15

July 2016.

2.18 In making my decision I have read and considered all the PC41 documentation (including the

Section 32 Report), all submissions and further submissions, the Officer's Report and the Council's

expert evidence, evidence provided by submitters in advance of the hearing (PowerCo Ltd

("Powerco"), GWRC, Wellington Electricity Lines Limited ("WELL") and Mr Thorpe), all the

evidence and representations during the hearing (including the supplementary evidence of Mr

Beban and Mr Girvan) and the Council's closing reply.

Legal issues

2.19 Two legal issues arose.

2.20 The first relates to the submission by Mr Mitchell seeking that only qualified arborists be permitted

to carry out works on identified trees within Urban Tree Groups. Mr Mitchell ticked the trade

competition box on his submission form. The Officer's Report concluded that this part of Mr

Mitchell's submission should be struck out.

2.21 Under clause 6 of Schedule 1 to the RMA a person who could gain an advantage in trade

competition through a submission may only submit if they are directly affected by an effect of the

proposed plan that adversely affects the environment and does not relate to trade competition (or

the effects of it). Under section 74(3) of the RMA I must not have regard to trade competition (or its

effects). In this case Mr Mitchell is not submitting in a way which would result in him gaining an

advantage in trade competition. While Mr Mitchell's submission could lead to him (and other

arborists working in the area) gaining a general advantage, I do not consider that to come within the

confines of Clause 6 or section 74(3) of the RMA. Therefore, I assess, and decide on, the merits of

Mr Mitchell's submission in section 4 below.

2.22 The second legal issue, which arose from submissions and during the hearing,8 was related to the

methodology applying to the identified urban tree groups. Some Urban Tree Groups apply across a

range of allotments that are both below and above 4,000m2. As set out below, and as far as is

relevant here, section 76(4B) of the RMA enables rules to prohibit or restrict the felling, trimming,

damaging or removal of trees on 2 or more urban environmental allotments only if the allotments

8 Mr Robertson, Mr Longstaffe (his submission was read at the hearing by Mr Pattinson) and Mr Pattinson.

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are "adjacent" to each other. An urban environmental allotment must, among other matters, be no

greater than 4,000m2.9

2.23 At the end of the hearing, and in my second minute, I asked the Council to seek legal advice on this

issue. That advice was received on 12 July 2016. It concluded that an urban tree group that spans

2 or more urban environment allotments can comply with section 76(4B) (i.e. be considered

"adjacent") even where some of those urban environment allotments are separated by non-urban

environment allotments (eg, an allotment that is great than 4,000m2). This advice is attached as

Appendix 2.

2.24 I accept the reasoning set out within, and rely on, the Council's legal advice. On that basis I reject

the submissions of Mr Robinson, Mr Longstaffe and Mr Pattinson on this legal point.

3. STATUTORY PROVISIONS

Schedule 1

3.1 Part 1 of Schedule 1 to the RMA sets out the procedure for council initiated plan changes.

3.2 Directions as to decisions are set out in clause 10 of Schedule 1 of the RMA, which states that a

decision:

(2) …

(a) must include the reasons for accepting or rejecting the submissions and, for that purpose,

may address the submissions by grouping them according to—

(i) the provisions of the proposed statement or plan to which they relate; or

(ii) the matters to which they relate; and

(ab) must include a further evaluation of the proposed policy statement or plan undertaken in

accordance with section 32AA; and

(b) may include—

(i) matters relating to any consequential alterations necessary to the proposed

statement or plan arising from the submissions; and

(ii) any other matter relevant to the proposed statement or plan arising from the

submissions.

(3) To avoid doubt, the local authority is not required to give a decision that addresses each

submission individually.

(4) The local authority must—

(aaa) have particular regard to the further evaluation undertaken in accordance with

subclause (2)(ab) when making its decision;

… .

9 As defined in section 76(4C) of the RMA.

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The legal framework for plan changes

3.3 The legal framework set out in the RMA for plan changes is contained, as relevant, within sections

72 - 76 and includes Part 2, section 31 and section 32.

3.4 Section 74 states:

74 Matters to be considered by territorial authority

(1) A territorial authority must prepare and change its district plan in accordance with—

(a) its functions under section 31; and

(b) the provisions of Part 2; and

(c) a direction given under section 25A(2); and

(d) its obligation (if any) to prepare an evaluation report in accordance with section 32; and

(e) its obligation to have particular regard to an evaluation report prepared in accordance with

section 32; and

(f) any regulations.

(2) In addition to the requirements of section 75(3) and (4), when preparing or changing a district

plan, a territorial authority shall have regard to—

(a) any—

(i) proposed regional policy statement; or

(ii) proposed regional plan of its region in regard to any matter of regional significance

or for which the regional council has primary responsibility under Part 4; and

(b) any—

(i) management plans and strategies prepared under other Acts; and

(ii) [Repealed]

(iia) relevant entry on the New Zealand Heritage List/Rārangi Kōrero required by the

Heritage New Zealand Pouhere Taonga Act 2014; and

(iii) regulations relating to ensuring sustainability, or the conservation, management, or

sustainability of fisheries resources (including regulations or bylaws relating to

taiapure, mahinga mataitai, or other non-commercial Maori customary fishing),—

to the extent that their content has a bearing on resource management issues of the district;

and

(c) the extent to which the district plan needs to be consistent with the plans or proposed

plans of adjacent territorial authorities.

…

(3) In preparing or changing any district plan, a territorial authority must not have regard to trade

competition or the effects of trade competition.

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3.5 Section 75 states (as far as is particularly relevant):

75 Contents of district plans

….

(3) A district plan must give effect to—

(a) any national policy statement; and

(b) any New Zealand coastal policy statement; and

(c) any regional policy statement.

…. .

3.6 Section 76 is particularly relevant to PC41. As already mentioned, PC41's genesis arose from the

amendments to the tree protection rules within this section. This section (as far as is particularly

relevant) reads:

76 District rules

….

(4A) A rule 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,—

(a) the tree or trees are described; and

(b) the allotment is specifically identified by street address or legal description of the land, or

both.

(4B) A rule may prohibit or restrict the felling, trimming, damaging, or removal of trees on 2 or more

urban environment allotments only if—

(a) the allotments are adjacent to each other; and

(b) the trees on the allotments together form a group of trees; and

(c) in a schedule to the plan,—

(i) the group of trees is described; and

(ii) the allotments are specifically identified by street address or legal description of the

land, or both.

(4C) In subsections (4A) and (4B),—

group of trees means a cluster, grove, or line of trees

urban environment allotment or allotment means an allotment within the meaning of section

218—

(a) that is no greater than 4 000 m2; and

(b) that is connected to a reticulated water supply system and a reticulated sewerage system;

and

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(c) on which there is a building used for industrial or commercial purposes or as a

dwellinghouse; and

(d) that is not reserve (within the meaning of section 2(1) of the Reserves Act 1977) or

subject to a conservation management plan or conservation management strategy prepared

in accordance with the Conservation Act 1987 or the Reserves Act 1977.

(4D) To avoid doubt, subsections (4A) and (4B) apply—

(a) 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

(b) regardless of whether the allotment or allotments are also clad with bush or other

vegetation.

… .

3.7 Section 32 states (as far as is particularly relevant):

32 Requirements for preparing and publishing evaluation reports

(1) An evaluation report required under this Act must—

(a) examine the extent to which the objectives of the proposal being evaluated are the most

appropriate way to achieve the purpose of this Act; and

(b) examine whether the provisions in the proposal are the most appropriate way to achieve

the objectives by—

(i) identifying other reasonably practicable options for achieving the objectives; and

(ii) assessing the efficiency and effectiveness of the provisions in achieving the

objectives; and

(iii) summarising the reasons for deciding on the provisions; and

(c) contain a level of detail that corresponds to the scale and significance of the

environmental, economic, social, and cultural effects that are anticipated from the

implementation of the proposal.

(2) An assessment under subsection (1)(b)(ii) must—

(a) identify and assess the benefits and costs of the environmental, economic, social, and

cultural effects that are anticipated from the implementation of the provisions, including the

opportunities for—

(i) economic growth that are anticipated to be provided or reduced; and

(ii) employment that are anticipated to be provided or reduced; and

(b) if practicable, quantify the benefits and costs referred to in paragraph (a); and

(c) assess the risk of acting or not acting if there is uncertain or insufficient information about

the subject matter of the provisions.

… .

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3.8 In addition, section 32AA applies to any changes to PC41 I accept since the initial Section 32

Report, and requires a section 32 assessment to a level of detail reflecting the scale and

significance of the changes.

3.9 The purpose of a district plan is to assist a territorial authority in carrying out its functions in order to

achieve the purpose of the RMA. The purpose of the RMA as set out in section 5 is to promote the

sustainable management of natural and physical resources.

3.10 When preparing a district plan in accordance with Part 2 of the RMA, in addition to section 5:

(a) section 6 sets out the matters of national importance that I must recognise and provide for;

(b) section 7 sets out the other matters to which I must have particular regard; and

(c) section 8 requires me to take into account the principles of the Treaty of Waitangi (Te Tiriti o

Waitangi).

4. ISSUES

Introduction

4.1 In reviewing the submissions I have found it useful to generally follow the format set out by Mr

Beban in his Officer's Report. In line with that, I have categorised the submissions in the following

manner:

(a) general support;

(b) specific opposition;

(c) section 32;

(d) questions of methodology;

(e) amendments to urban tree groups/properties (including incorrect identification);

(f) amendments to objectives and policies;

(g) changes to rules; and

(h) other matters.

4.2 Whilst this section addresses matters in issue in detail, with reasons, Appendix 1 summarises, for

each submission, the points accepted, accepted in part and rejected.

General support

4.3 The PC41 documentation, submissions and presentations during the hearing made it clear how

important trees are to the identity and association, amenity, and wellbeing of Upper Hutt City. No

submitter questioned the value of trees in the city, nor opposed appropriate protection of trees

(rather the questions were more nuanced as to what exactly was appropriate in the circumstances).

4.4 A number of submitters gave general or partial support to PC41.10

To the extent these submissions

support the provisions of PC41, as modified in Appendix 3, I accept them.

10

Including Mr Winder, Pinehaven Progressive Association, Powerco, WELL (supported by Powerco's further submission as referenced in section 6 of Ms Perera's evidence), Mr Crawford, GWRC, Mr and Mrs Salmon, Mr and Mrs Kale, and Ms Hendriksen.

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4.5 In particular, by the time of the hearing, GWRC expressed its agreement to PC41, subject to the

amendments made as set out in the Officer's Report.11

4.6 Mr and Mrs Kale support the provisions so long as trees are regularly checked for safety. While

checking for safety under PC41 is the landowners' responsibility, as discussed below, the Activity

Table in Rule 27A.1 enables landowners to trim or remove in certain circumstances as a permitted

activity if they are unsafe, dead or diseased. I consider this to be an appropriate response to issues

of safety relating to protected trees and otherwise reject Mr and Mrs Kale's submission.

Specific opposition

4.7 A number of submitters questioned the ability and appropriateness of plan provisions protecting

trees on private land.12

4.8 In his Officer's Report, Mr Beban considered that PC41 struck the right balance between protection

and use and development of land. During the hearing it became apparent that some submitters did

not fully understand the proposed permitted activity rule provisions (explained in more detail in

section 4 below). As explained in the statutory assessment below (section 5) I am satisfied that the

proposed provisions strike an appropriate balance between protection and a landowner's ability to

reasonably use and enjoy their land.

4.9 During the hearing Mr Pattinson, Save our Trees, and Mrs Pattinson sought that I find "any valid

loophole" in order to reject PC41 until it provides what they sought as comprehensive protection for

trees especially on the ridgelines (Pinehaven and Silverstream Hills, Southern Hills Overlay) and

other areas of the city (especially in relation to potential future development of land owned by the

Guildford Timber Company) beyond the Residential Hill and Residential Conservation sub-zones.

4.10 As I explained during the hearing, their submissions (and a number of other submissions13

) seeking

extension of the provisions to additional zones (or potential developments) is not "on" the plan

change and I do not have the scope and authority to consider such matters.14

As stated above, in

terms of substantive changes to the District Plan, PC41 focused only on the urban tree groups

within the Residential Hill and Residential Conservation sub-zones (and added some notable tree to

the relevant schedule). I explained during the hearing that they would need to talk to the Council

separately about matters and concerns that go beyond PC41. In terms of their request that I reject

PC41 I decline to do so for the reasons set out in this decision. Helpfully, during the hearing, Mr

Beban explained to submitters the scope of PC41 and the rules applying in other zones (which

reflect the status quo operation of the District Plan as they are unchanged by PC41). Mr Beban

also discussed potential future plan changes related to areas of interest to these submitters.

11

These amendments relate to: amending permitted activity standard Rule 27A.12, including to include "enhancement" of the landscape, amenity and ecological values as a matter for consideration, as well as clarity around the definition of "pest tree species" within PC41. I accept the amendment related to defining pest tree species for the same reasons as stated in Ms Robert's evidence that it provides greater clarity to the plan. I address the enhancement amendments (which I also accept) below. The evidence of Dr Steer accepted the rejection of GWRC's submission on the description of high ecological values. 12

Including Mr and Mrs Walsh, Ronnoco Nominees Limited, Mr Robertson, and Mr Main. I reject these submissions for the reasons set out in this decision. 13

The submissions of Ms Murphy, Pinehaven Progressive Association, Mr McAlpine, Mr van Berkel, Mr Longstaffe, Mr Jacobson, and Mr Richter sought similar outcomes extending the areas to be included in PC41. Further submissions by Save our Trees occurred on a number of these submissions seeking the protection of the trees on hills and ridgelines around Silverstream and Pinehaven (Southern Hills Overlay). Ms Murphy also submitted in opposition to high density housing proposals in Pinehaven/Silverstream and Mr Jacobsen submitted that cluster housing should not be allowed in the same areas. The submissions are also rejected as not being "on" the plan change. 14

In accordance with clause 6 of Schedule 1 to the RMA.

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Section 32

4.11 Mr Thorpe questioned the need, and the section 32 justification, for protecting urban tree groups at

all. He sought a monitoring period to see what, if any, loss of trees may occur and whether it is an

issue in need of protection. In response to the Officer's Report (and the evidence of Mr Girvan and

Mr Gwerder (the Council's arborist)) explaining the loss of various trees and entire tree groups

during the period from the removal of the blanket protection rules and the introduction of PC13, Mr

Thorpe gave his opinion that this was solely anecdotal evidence and suggested the period between

the old rules going and PC41 being notified was like the initial 'fizz' of opening a bottle of 'Fanta'. Mr

Thorpe suggested that after the initial period of tree removal matters would settle down - like the

'Fanta' going flat.

4.12 The 'Fanta' analogy was rejected by Mr Mitchell, a submitter and local arborist, who explained that

there was limited general public understanding of the removal of the blanket protection rules such

that the initial 'fizz' had not fully occurred during this period. However, Mr Mitchell stated that during

this period many trees were removed and that his company had been contacted by a number of

people to remove trees and had removed some, but had also refused to remove others due to their

significance. During the site visit, Mr and Mrs Walsh explained how a number of trees in their area,

including one Totara on their property, had been removed or thinned during this period.

4.13 I accept the evidence on behalf of the Council and Mr Mitchell, and the comments from Mr and Mrs

Walsh. On my site visit I saw for myself that a number of trees, and from the evidence of Mr Girvan

(which I accept) some entire tree groups were removed during this period. On that basis I reject Mr

Thorpe's submission on this matter. I am satisfied that there is a valid resource management issue

and that the requirements of section 32 have been satisfied (see section 5 below), including that the

proposed urban tree group provisions are the most appropriate way to achieve the purpose of the

RMA.

Questions of methodology

4.14 GWRC supported the methodology applied by the Council, calling it "systematic" in its submission

and considering it consistent with Ministry for the Environment Guidelines. At the hearing Dr Steer

repeated these sentiments and considered the methodology to be robust.

4.15 As set out in the legal issues section above, Mr Robertson, Mr Longstaffe and Mr Pattinson raised

issues as to the legality of the urban tree groups across urban environment allotments separated by

allotments greater than 4,000m2 in size. I reject this argument for the same reasons given in the

legal issues section above.

4.16 Mr Robertson also raised concerns as to use of outdated aerial photography. I accept the evidence

of Mr Girvan that appropriate photography was used and that more recent photography (Google

2016) was also reviewed, and I consider this approach (and the additional fieldwork that has

occurred throughout the process) appropriate.

4.17 Additionally, Mr Robertson sought that a number of urban tree groups (such as Urban Tree Group

36) be split into a number of smaller sized urban tree groups. In particular Mr Robertson did not

believe the tree groups relevant to his property formed a "group" as defined in section 76 of the

RMA. I accept the evidence of Mr Girvan that further splitting of tree groups into smaller sizes

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would not change any assessment, and would have no effect on the protections applied to the

identified trees within such groups. In particular, Mr Girvan considered that Urban Tree Group 36

forms a "cohesive wooded backdrop" and the trees "maintain close geographic proximity with an

obvious level of visual connectedness".15

I accept this evidence and consider that Urban Tree

Group 36 is, and the other urban tree groups are, at a scale such that they are "group of trees" as

defined in section 76(4C) of the RMA. For example, the definition of "cluster" includes "a compact

group of similar things …" and the definition of "grove" includes "a (small) wood, a group of trees …

".16

I also accept the various sizes of the urban trees groups as reflecting the different

circumstances in terms of, to use Mr Girvan's wording, the "cohesive" nature of each group.

4.18 A number of submitters questioned the accuracy of the urban tree group mapping, in particular the

identification and mapping of specific tree types and the inclusion of some specific tree types

(especially Douglas Fir and Eucalypts).17

Mr Girvan's evidence explained the various values

identified within the 27A.13 Schedule. I am satisfied that the methodology applied is robust and that

the specific tree types (in particular Douglas Fir raised by Mr Thorpe and Eucalypts raised by Mr

Robertson) are appropriately included in the relevant groups. Each urban tree group has been

expertly assessed in a transparent manner and I accept the evidence of Dr Steer on behalf of

GWRC that a robust methodology has been applied. I do not agree that every tree has to be

individually identified and assessed; rather the clear focus of section 76(4B) is on the identification

of tree groups.18

I accept the accuracy of the tree group identification and mapping, and the listed

species (tree types) as attached to the Council's closing and contained in Appendix 3.19

4.19 As a result of these submissions a number of reassessments were undertaken by Boffa Miskell of

the urban tree groups. This resulted in refinement to a number of urban tree groups as explained in

the Officer's Report, and the evidence, and supplementary evidence of Mr Girvan. For example, in

response to Mr and Mrs Hick's submission a number of amendments were made to the species list

for Urban Tree Group 259. During the hearing a number of other identification issues were raised,

most notably by Mr Drake (see below). Further reassessments have occurred since the hearing

and are set out in the Council's closing. I accept the reassessments, and the methodology

underlying them, as explained in Mr Girvan's evidence, supplementary evidence and the Council's

closing.20

4.20 As mentioned above, Mr Girvan's evidence addressed the issue of the methodology undertaken for

the mapping and identification of the urban tree groups (including what constitutes a "group"). It

also details the approach taken to identifying the high value ecology, amenity and landscape

groups. As also mentioned above, GWRC supported the methodology applied. In response to my

question of whether the landscape, amenity and ecology criteria had been used elsewhere Mr

Girvan responded that it had not been used in exactly the same way (as it is unique to Upper Hutt)

but in similar ways as relevant to different councils. Overall, I accept the methodology as set out in

the Boffa Miskell Report of 21 August 2015 titled "UHCC – Tree Group Protection – Urban Tree

15

At paragraph 9.7. 16

Shorter Oxford English Dictionary, 6th Edition, 2007.

17 Mr Drake, Mr Thorpe, Mr Winder, Mr and Mrs Hicks, Mr Robertson and Mr Michie.

18 In addition if a tree type is not included for an individual urban tree group identified in Schedule 27A.14 then it is not protected.

19 And to this extent accept or reject the submissions in Footnote 17 above.

20 And, as such, I reject Mr Winder's submission to include general protection (as a restricted discretionary activity) for Manuka to

better sustain the Manuka Honey industry. This submission point is also not "on" PC41 so I do not have scope or authority to accept it.

BF\56110046\2Page 13

Groups" and summarised in Mr Girvan's evidence, and consider that it is an appropriately robust

and transparent response to the need to efficiently and pragmatically identify and map urban tree

groups in the Residential Hill and Residential Conservation sub-zones. I also accept that the

identified urban tree groups are a "group of trees" as defined in section 76 of the RMA.

4.21 Mr Robertson sought that the Council reintroduce diameter related criteria for the protection of tree

rules.21

In his Officer's Report Mr Beban accepted this submission, but based on Mr Girvan's and

Ms Roberts' evidence, considered it should be applied to exotic tree species only.22

During the

hearing I questioned Ms Roberts on her evidence supporting no such provision for native species

due to the ecological values of the understory seedlings. On the basis of the submission and

evidence of Ms Roberts (as to the ecological importance of an indigenous vegetation understory), I

accept the inclusion of a height and diameter provision for exotic species only.

4.22 Mr Thorpe and Mr Mitchell both questioned the use of the 'dripline' to establish the boundary of the

urban tree groups. Mr Mitchell sought the use of Australian Standard AS4970-2009 to determine

the dripline. Powerco's further submission raised the point that the wording of this standard is

unknown, as it has to be purchased and is therefore not readily available to view. At the hearing Mr

Mitchell explained that it uses a formula that could be applied directly into the plan rules. In

particular this formula is apparently better for taller, narrower trees. While Mr Gwerder agreed with

the use of this formula he was also comfortable with the use of the dripline as proposed and thought

it was more commonly understood (and understandable). This position was supported by Mr

Beban, Mr Girvan and Ms Roberts. Also, as stated above, GWRC supported the methodology

used. On the basis of the Council's evidence, and GWRC's support, I accept the evidence that the

use of the dripline is an appropriate and acceptable measure for establishing the boundary of urban

tree groups and is one that can easily be used by affected landowners and Council staff.

Amendments to urban tree groups / properties

4.23 Mr Drake's submission in relation to Urban Tree Group 214 was that he was concerned that under

PC41 he would have no ability to remove the Matai tree growing very near his house. He submitted

that if the tree continued to grow closer to the house, it may reduce the value of his property and

damage his house. During the hearing, it was clarified that Matai was not in fact an identified tree

type in this group. Since the hearing Urban Tree Group 214 has been reassessed, as set out in the

Council's closing reply (and the associated memorandum from Mr Girvan), and the description list of

tree types was amended to include Matai, but the tree submitted on by Mr Drake is not included in

the group as a protected tree. Having visited Mr Drake's property and seen the closeness and size

of the Matai beside Mr Drake's house, and based on Mr Girvan's memorandum attached to the

Council's closing reply, I accept the amended Schedule 27A.14 for Urban Tree Group listing Matai

but the mapping excluding this tree (and another Matai under 8m) from Urban Tree Group 214.

4.24 Mr Hu sought that his property be removed from the list as the relevant trees are situated on his

neighbours land, and simply hang over the boundary fence into his land. I have set out my findings

on dripline above, and I therefore consider that Mr Hu's property is appropriately included in PC41.

21

Mr Haywood also questioned the inclusion of trees less than the old provisions (0.2m diameter at 1.5m height). 22

On this basis Mr Beban added a note to the Permitted Activity Table 27A.1. During the hearing I asked if this note should be turned into a rule within the permitted activity table itself. This change is reflected in the Council's closing and I support it as making the provision clearer and more certain.

BF\56110046\2Page 14

Mr Hu also questioned his ability to trim the trees and the permitted activity rule provisions,

especially in relation to network utilities, was explained to him by Mr Beban during the hearing. My

decisions on these permitted activity provisions are set out below.

4.25 During the hearing questions were raised by Mr Robertson as to the properties listed in Schedule

27A.14 for Urban Tree Group 66.23

Mr Girvan's memorandum attached to the Council's closing

confirms that an address error occurred and that 74 Chatsworth Road and 17 Blue Mountains Road

have been removed from the Schedule for Urban Tree Group 66 as attached to the Council's

closing. I accept this change to address this error.

4.26 Mr and Mrs Harrison sought the removal of the inclusion of a Copper Beech on their property. Mr

Harrison undertook not to remove the tree but wanted the ability to trim it using an arborist,

especially if it became unsafe. The permitted activity rule provisions (addressed below) in relation

to trimming generally, and to trimming and/or removal in certain circumstances, including if unsafe,

were explained to him during the hearing. I have accepted the methodology applied to PC41 above

and therefore consider that the Copper Beech is appropriately included in Urban Tree Group 152.24

4.27 Mr Thorpe questioned the mapping of the tree group across his boundary. The Council's closing

includes a memorandum from Mr Girvan describing the reassessment undertaken on 11 July 2016

at Mr Thorpe's property. Having applied the methodology I have accepted above, and noted that

Lawson Cypress is not identified under Urban Tree Group 62 and therefore not protected, Mr

Girvan considers the surrounding canopies of Beach, Kowhai and Fir reflect the broader canopy

and no change to the canopy mapping is necessary. Based on my site visit, and my acceptance of

the methodology (see above), I accept that conclusion.

4.28 Ronnoco Nominees Ltd sought removal of the oak tree in Urban Tree Group 148. As explained in

the Officer's Report and Appendix 2 of Mr Girvan's evidence, this urban tree group was reassessed

and, while Copper Beach was removed as a tree type, the Oaks were retained in 27A.13 Schedule.

I have accepted the methodology applied to PC41 above and therefore accept the views expressed

in the Officer's Report, and the reassessment undertaken, that the Oak tree should remain in Urban

Tree Group 148.

4.29 Mr Michie sought removal of a Cypress and Poplar within Urban Tree Groups 24 and 25. I have

accepted the methodology applied to PC41 above. For that reason I accept the Officer's Report

recommendation to retain the cypress and poplar within those urban tree groups. In terms of Mr

Michie's concerns regarding overhanging branches, I consider that the permitted activity rules

provide for appropriate trimming of protected trees.

4.30 Mr Crawford sought removal of Urban Tree Group 103 which, after reassessment, related solely to

a group of Cedars. As explained in the Officer's Report the reassessment retained the cypress on

the basis of their high amenity value. I have accepted the methodology applied to PC41 above

which has resulted in Urban Tree Group 103 being categorised as having high amenity value and

therefore accept Mr Crawford's submission in part (in relation to the reassessment of the original

group) but reject the removal of the Cedars. In terms of Mr Crawford's concerns about potential

future access to the rear of his property, should resource consent for removal of the trees be

23

Which includes Mr Robertson's property. 24

And for the avoidance of doubt his undertaking was not accepted.

BF\56110046\2Page 15

required, the proposed change to the matters for consideration in light of Mr Martin's submission set

out below, and my addition of "their reasonable use of their property" will appropriately assist in any

resource consent assessment at that time.

4.31 Ms Hendriksen sought that additional trees be added to Urban Tree Groups 97 and 98. As

explained in the Officer's Report these urban tree groups were reassessed. Dawn Redwood was

added to the species list for Urban Tree Group 98 and Silver Birch was removed from Urban Tree

Group 97. I have accepted the methodology applied to PC41 above and for that reason accept Ms

Hendriksen's submission to the extent of the two changes following reassessment.

4.32 Mr Haywood seeks the removal of Urban Tree Groups 173 and 174 from his property, primarily as

there are dead trees he would like to remove. The Activity Table in Rule 27A.1 enables removal of

dead trees (as identified by an arborist) as a permitted activity (so long as it complies with the

standards). The trees on Mr Haywood's property are identified as having high landscape and

amenity values and I accept the methodology applied to PC41 above. For those reasons I accept

the inclusion of Urban Tree Groups 173 and 174 over Mr Haywood's property.

4.33 Mr and Mrs Walsh sought the removal of Urban Tree Group 375 from their property. As explained

above I visited their property during the site visit. The assessment lists the Totara trees in the front

yard. I have accepted the methodology applied to PC41 above and, having seen these trees and

their linkage to other trees in this group, entirely support their inclusion. In response to their

concerns relating to trimming of branches and roots, I consider that the permitted activity provisions

of Chapter 27A enable appropriate trimming to occur without resource consent.

4.34 Mr and Mrs Tierney sought the removal of their property from PC41. The Officer's Report accepted

this submission on the basis that their property sits outside the Residential Hill and Residential

Conservation sub-zones. The Officer's Report also raised the fact that, uniquely among the urban

tree groups, the majority of this tree group (Urban Tree Group 271) sits outside of the Residential

Hill and Residential Conservation sub-zones. Mr Beban's view was that this urban tree group

should be considered in relation to changes to the residential zone instead. I agree with Mr Beban,

and for the same reasons as I have rejected other submissions as not being "on" PC41 (and

therefore beyond scope), I accept the removal of Urban Tree Group 271, and the Tierney's,

property from PC41.

4.35 Mr and Mrs Bellamy sought protection being extended into Totara Park and Mr Martin requested

that PC41 extend to cover other zones with significant vegetation. As stated above in relation to the

cluster of submissions broadly associated with Save our Trees, such submissions are not "on" the

plan change and I do not have scope and authority to implement them.

Amendments to objectives and policies

4.36 Mr Winder sought the combination of the notable tree and urban tree groups. Powerco submitted

that while this submission has some merit it is beyond the scope of PC41. The Officer's Report

agreed with Powerco's further submission. I also agree that this submission is not within scope and

therefore reject this submission.25

25

The same argument applies to Mr Winder's submission on sections 12.3.4 and 12.4.11 including reference to notable trees which I reject.

BF\56110046\2Page 16

4.37 Mr Winder also sought amendment to Policy 12.4.10 to include specific reference to "protection".

Mr Beban in his Officer's Report explains that this policy is solely about identification of urban tree

groups and other policies set out the maintenance and protection of them. I agree with Mr Beban's

reasons and reject this submission.

4.38 Powerco submitted generally in support of the objective and policies,26

but sought that the

explanation wording of Policy 12.4.1 be amended to refer to the correct standards (the Electricity

(Hazards from Trees) Regulation 2003.27

In his Officer's Report Mr Beban recommends this

change be accepted, and I agree on the basis that it is critical that correct standards are referenced

in the provisions.

4.39 During the hearing some minor changes to the wording of the proposed new objective and policies

in Chapter 12 were discussed to aid clarity. These related to clear identification that it was the

identification and protection of high values (amenity, landscape, ecological) only and that rather

than threat to life in Policy 12.4.14 it should reflect injury to persons. As a result, minor changes to

the Objective 12.3.4 and Policies 12.4.11, 12.4.12, 12.4.13 and 12.4.16 were proposed in the

revised wording provided with the Council's closing submissions and I accept those changes as

providing greater clarity to the provisions. Also for consistency and clarity I support Mr Beban's

inclusion of "trimming" into Policy 12.4.14, and the change to "local townscape", as set out in the

Council's closing. This provides improved consistency to the changes proposed. Finally, in addition

to the proposed changes attached to the Council's closing I consider that the word "their" needs to

be added before the word "removal" in Policy 12.4.15.

Changes to rules

4.40 Mr Michie sought the removal of permitted activity standard 27A.5 requiring resource consent to

trim branches greater than 50mm diameter. Mr Beban in his Officer's Report explains the rationale

for the permitted activity standard but accepts, based on the evidence of Mr Gwerder, that this

standard can be removed as it fails to relate to the size of the tree and therefore the potential effect

of the trimming. I accept that the 50mm diameter provision in permitted activity standard 27A.5

should be deleted.

4.41 As a consequential change, Mr Gwerder recommends that the words "such trimming shall not

detrimentally alter the form of the tree" be added to permitted activity standard 27A.3. Mr Gwerder's

evidence is that this is similar to an old provision (Rule 18.23) and has worked well over the years.

Mr Beban in his Officer's Report supports Mr Gwerder's evidence and recommends the inclusion of

these words. At the hearing I questioned this wording, and both Mr Gwerder and Mr Beban

remained in support of it. Mr Mitchell also indicated that the Guidelines referred to in the rule

provide robust advice as how trimming should be undertaken. On the basis of the reasons given in

evidence, especially that this provision has worked well over many years, I accept the inclusion of

the proposed new wording into permitted activity standard 27A.3.

26

In in its submission Powerco referenced policies within the Wellington Regional Policy Statement relating to regionally significant infrastructure such as its gas distribution network. 27

This submission was supported by WELL in its further submission.

BF\56110046\2Page 17

4.42 A number of submitters sought that rules be changed or deleted to enable removal or trimming of

trees and tree roots.28

Mr Main also submitted in opposition of PC41 on the basis of safety and

potential liability for landowners. As I have explained in the section above on amendments to urban

tree groups and properties, the Activity Table in Rule 27A.1 enables trimming of protected trees as

a permitted activity if it meets the permitted activity standards 27A.3-27A.8. In addition the Activity

Table in Rule 27A.1 enables the trimming or removal of a tree as a permitted activity in certain

circumstances if the tree is unsafe, dead or diseased. In particular, Mr Martin sought greater

flexibility where, on reasonable grounds, the owner of a tree believes a tree, to a material extent,

adversely affects their reasonable use and enjoyment of their property. I consider that the rules as

drafted already provide for owners to trim or remove trees in appropriate circumstances, including if

they are unsafe (see the statutory assessment section below). On that basis I reject Mr Martin's

submission.29

4.43 However, Mr Martin also made an alternative submission that if the above proposal was rejected

then the matters for consideration be amended to include the adverse effects on the owner's

reasonable use and enjoyment of their property. The amended provisions provided by the Council

on 13 July include two additional matters to the matters for consideration. I accept these inclusions

with two amendments. I consider that the first proposed new matter have added to its end "and

their reasonable use of their property" and I consider that the word "unreasonable" be added before

"limitations" in the second proposed new matter. With these two changes I consider the proposed

additions in the Council's closing provide better balance to the matters for consideration.30

4.44 While on the topic of matters of consideration, in response to GWRC's submission Mr Beban in his

Officer's Report accepted rewording the consideration that mitigation planting maintain "or enhance"

the values of an urban tree group.31

At the hearing Mr Beban agreed to some amendments to aid

the clarity of other matters of consideration and included these changes in the provisions attached

to his closing. I accept these changes as providing greater clarity and better aligning the matters of

consideration with the objective, policies and rules.

4.45 Pinehaven Progressive Association questioned whether the requirement to plant new trees after

removing vegetation under permitted activity standard 27A.8 may be counterproductive given

underlying regeneration. Mr Beban in his Officer's Report proposes an amendment making it clear

that it relates to exposed soil only. During the hearing I asked Mr Beban about the scale of exposed

area necessary for the rule to apply. On 13 July 2016 the Council provided amended rules to

respond to these questions and included the word "visibly" before exposed. I consider that this

improves certainty. The Council's closing also changes the word "cleared" to "felled". I accept

these amendments as they improve the clarity to the interpretation of the rule. To the extent

provided for in the amended rules provided by the Council on 13 July 2016, I accept Pinehaven

Progressive Association's submission because it provides greater detail and clarity.

28

Mr Hu, Mr Martin, Ms Burke, Ms Murphy, Mr Milburn, Mr and Mrs Wiggins, Mr Michie, Mr Main, Mr Haywood and Mr and Mrs Tierney. 29

And, to the that extent I also reject the submissions of Mr Hu, Mr Martin, Ms Burke, Ms Murphy, Mr Milburn, Mr and Mrs Wiggins, Mr Michie, Mr Main, Mr Haywood, and Mr and Mrs Tierney. 30

This also provides an appropriate response to Mr Crawford's concern about access and Urban Tree Group 103 and to Mr Milburn's and Mr and Mrs Walsh's concerns regarding effects of tree roots on driveways and paths. 31

I also accept this submission by GWRC as better recognising the intent of PC41 and aiding clarity. In its further submission Powerco supported GWRC's submission (so long as its request for restricted discretionary activity status for non-compliance with the permitted activity standards was accepted) on the basis that it provides clarity to the guidance.

BF\56110046\2Page 18

4.46 Mr Robertson sought the removal of the linkage to permitted activity standard 27A.8 for the

permitted activity Rule in Activity Table 27A.1 relating to pest species on the basis that it is block

protecting land. Mr Beban in his Officer's Report (and the Section 32 Report) addresses the

stability/sediment control, regeneration, and landscape/amenity issues that this rule is designed to

address when large pest species are removed. A similar provision, 27A.9(3), applies to indigenous

vegetation clearance. I accept Mr Beban's reasons and recommendation that this permitted activity

standard be retained to appropriately manage these effects that may arise from removal of pest

species, subject to amendments in light of Pinehaven Progressive Association submission as set

out above. I therefore reject this submission by Mr Robertson.

4.47 As mentioned above, Mr Mitchell sought that all works on protected trees be undertaken by a

qualified arborist.32

The Section 32 Report states that the cost involved in having a tree removed by

an arborist varies from approximately $800 (for a simple tree removal) through to $10,000 plus

where specialist machinery and a large number of obstacles are present. Comparatively, the

resource consent application fee to alter or remove a protected tree is a fixed fee of $263.50 which

is a much reduced fee from normal to ensure a consent does not represent an unreasonable

financial barrier to landowners.33

The blanket protection rules for the Residential Hills and

Residential Conservation sub-zones34

in the District Plan before to 2013 Amendments did not

require that an arborist undertook the works. Mr Gwerder's evidence is that the previous rules

worked well in practice. The notable tree provisions require a qualified arborist, but to me this

reflects, and is entirely appropriate for, the specifically identified values of those individually listed

trees.

4.48 The proposed provisions take the same approach in not requiring an arborist as the blanket

protection rules no longer in force under the District Plan, while referencing NZ Arboriculture

Association Best Practice Guidelines. While I consider it likely that an arborist will be involved in the

removal of many protected trees (in particular bigger ones or ones close to houses) I consider that

requiring the involvement of an arborist in all cases unreasonably increases the costs, and

decreases options and flexibility, for a landowner.35

For example during my site visit Mr and Mrs

Walsh showed me where the Totara in the front of their property had been trimmed by a neighbour,

while I understand that they used an arborist to remove the large Totara from the rear of their

property. I also consider that the number of trees, and for indigenous listed species, saplings,

within the urban tree groups represents a scale beyond what is appropriate for requiring an arborist

to undertake all works.36

I consider that the provisions in Chapter 27A provide for the involvement

of an arborist at appropriate times, and to an appropriate level, while also providing flexibility

(subject to rule compliance including the guidelines mentioned above) to a landowner. I accept the

provisions of PC41 as an appropriate balance in this respect and reject this submission point by Mr

Mitchell.

32

Powerco made a further submission on this point stating that imposing such a requirement may not always be appropriate. 33

This compares to the average resource consent fee of $813.50. These figures from Mr Beban's Officer's Report differ slightly to those contained in the Section 32 Report. 34

Previous Rule 18.23. 35

I considered limiting an arborist's involvement to trees over a certain height but had insufficient evidence as to what that height should be and also I consider that this is a decision best made by the landowner in the relevant circumstances. 36

That this cost is an issue is clear from some of the submitters, for example Mr Main.

BF\56110046\2Page 19

4.49 Powerco's submission sought that the permitted activity provisions enabling any tree to be trimmed

to maintain the safe operation of network utility infrastructure also include tree removal.37

Mr Beban

in his Officer's Report supported the intent of this submission and proposed that "or removal" be

included. Powerco also sought that it be a permitted activity (under permitted activity standard

27A.6) to cut roots greater than 50mm in diameter when authorised by a Council approved

arborist.38

While Mr Beban agreed (in his Officer's Report) to the ability for network utility

infrastructure to have this exemption he disagreed with the general application of such an

exemption as worded, as he submitted that it is overly permissive and could result in significant tree

pruning. In its evidence Powerco generally supported Mr Beban's proposed changes, but raised a

concern regarding the need for an approved arborist to undertake the root cutting on health and

safety grounds. Powerco sought that "undertaken" be replaced by "authorised". In his

supplementary evidence Mr Beban supported this change. I consider that the revised wording

appropriately provides for, and recognises the importance of, network utility infrastructure for the

reasons advanced by Mr Beban.39

I therefore accept Powerco's submissions40

insofar as they

relate to the amended provisions provided by the Council on 13 July 2016.

4.50 Powerco also sought in its submission and evidence of Ms Perera that activities which fail to meet

the permitted activity provisions be classified as restricted discretionary rather than discretionary

activities.41

Mr Beban did not support this outcome in his Officer's Report, on the basis of

consistency with other vegetation removal provisions in the District Plan, and to enable Council

planners to assess all the relevant environmental effects (positive and negative) associated with a

resource consent related to a protected tree. In its evidence Powerco repeated its position that it is

unnecessary to have such broad discretion which, it considers, does not accord with section 32.

Powerco sought that the matters of consideration be amended to operate as matters of discretion.

In his evidence Mr Lester focused solely on this issue42

and, in particular, emphasised the

importance of network utilities and sort that the scope of an assessment for non-compliance be

limited.

4.51 In his supplementary evidence Mr Beban maintained his opposition to Powerco's submission point

and in response to Mr Lester's evidence considered that the permitted activity provisions for

network utility infrastructure are sufficient broad that further relaxation and recognition is not

required.

4.52 During the hearing I asked Mr Beban a number of questions related to how a restricted activity

provision could be crafted so as to provide a more efficient resource consent process. In response

to those questions, and in his oral closing, Mr Beban maintained his opposition for the reasons

already covered, and on the basis that, in his opinion, the matters of discretion are so broad as to

not make any material difference to a consenting process. He stated that restricting discretion

37

WELL provided a further submission supporting this submission point. 38

Again, WELL provided a further submission supporting this submission point. Mr Milburn also sought the ability to trim roots for driveway repair which I reject on the basis of my support for the permitted activity provisions proposed and the resource consent matters of consideration being amended (following the submission of Mr Martin). 39

I also support not requiring an arborist to undertake the works as it is consistent with my rejection of Mr Mitchell's submission above. 40

And therefore WELL's further submission. 41

Again, WELL provided a further submission supporting this submission point, though focused on network utility infrastructure. 42

Having stated that otherwise the majority of WELL's submission points have been resolved such that he would not attend the hearing.

BF\56110046\2Page 20

would also restrict the potential arguments by property owners as to why a protected tree should be

trimmed or removed. Having read and heard all the evidence, I accept the position and reasons

advanced by Mr Beban that, for urban tree groups, discretionary activity status provides most

appropriately for the purpose of the RMA, and the objectives and policies of PC41 (I also cover this

issue in the statutory assessment section below).

4.53 Powerco also sought a consequential amendment to a Rule in Activity Table 23.1 related to

earthworks as discretionary activities. In his supplementary evidence Mr Beban considered that the

wording proposed by Powerco would also affect heritage and notable tree provisions, and to that

extent was beyond the scope of PC41. Mr Beban however accepted that for network utility

infrastructure there was a conflict in the reference to the Schedule 27A.14 for urban tree groups and

he proposed revised wording to the Rule in Activity Table 23.1 to explicitly exclude network utility

operators in the amended provisions provided by the Council on 13 July. I accept the reasons in Mr

Beban's supplementary evidence to this consequential change and on that basis consider the

proposed revised wording appropriately responds to Powerco's submission.

4.54 Mr and Mrs Hicks43

sought that the provisions be made clearer and provide greater detail. During

the hearing I asked a number of detailed questions about the proposed rules, how they operate,

their clarity and the certainty provided. At the end of the hearing, and as set out in my second

minute, I gave the Council time to respond on these issues. To the extent provided in the amended

provisions provided by the Council with its closing on 13 July 2016, subject to the one change

above in relation to "visibly exposed areas" in the permitted activity standard 27A.8 and two minor

matters below, I accept Mr and Mrs Hick's submission and consider the amended provisions to be

more detailed and clear. The minor amendments I make to the version of the rules provided with

the Council's closing are:

(a) to remove the word "total" before "removal" in the permitted activity Rule in Activity Table

27A.1 in relation to the non-indigenous tree measurements and for the "immediate threat"

provisions;

(b) to insert the words "on the assessment of a Council approved arborist" after the words

"removal is required" in the permitted activity Rule in Activity Table 27A.1 in relation to the

trimming or removal of dead or diseased trees;44

and

(c) to delete the word "of" after "removal" in the discretionary activity Rule in Activity Table 27A.1.

4.55 With these amendments I accept the rule provisions as attached to the Council's closing.

Other matters

4.56 A number of submitters sought provisions within PC41 to recognise the private cost of having

protected trees on their land and having the Council provide various benefits or incentives, such as

leaf collection and assistance with removing Pine trees.45

43

Mr and Mrs Hick's also submitted that 17 Rata Street is not a legal entity. At the hearing Mr Bevan and Girvan stated that it is listed on the Council database. On that basis I accept the inclusion of 17 Rata Street. 44

During the hearing I asked about the same change (including referencing emergency services) to the emergency work permitted activity provision. Concerns were raised that doing so may delay the trimming or removal of trees in emergency circumstances and such a change was not included within the provisions attached to the Council's closing. On that basis I have left such provisions out of that permitted activity. 45

Mr Martin, Ms Burke, GWRC, Mr and Mrs Salmon, Pinehaven Progressive Association, Mr Winder, Mr Main, and Ms Murphy.

BF\56110046\2Page 21

4.57 Mr Beban in his Officer's Report considered that Chapter 12 of the District Plan already provides

sufficient 'other methods' to respond to these concerns. The Section 32 Report and Mr Beban's

comments at the hearing indicate that the Council already provides a significant price reduction for

resource consents for protected trees. During the hearing I asked Mr Beban to consider express

provisions relating to urban tree groups in Chapter 12.5 of the District Plan. In the Council's closing

of 13 July 2016, Mr Beban proposed two amendments to recognise these submissions, being:

12.5.9 To implement a scheme aimed to assist landowners when work is required to maintain

or enhance the health of notable trees or Urban Tree Groups.

12.5.10 Implementation of an on-going education programme regarding how to maintain and

enhance Urban Tree Groups to ensure that their respective high amenity values,

landscape values, and/or ecological values are maintained. This can be achieved

through pamphlets, displays, talks, and information on the website. Where appropriate,

the Council will work with other authorities, including the Greater Wellington Regional

Council, the Department of Conservation and community groups, to ensure that public

education is co-ordinated within Upper Hutt."

4.58 I accept those changes and consider that they appropriately align with the current range of "other

methods" already provided for in Chapter 12.5 of the District Plan and provide for other methods for

the council to consider and work with affected landowners on in relation to urban tree groups.

4.59 Mr Martin sought that it be mandatory for the Council to affix plaques to all notable trees identifying

them as such in order to reduce the risk of accidental or intentional trimming or removal. In his

submission, and his presentation during the hearing, he stated that he had raised this issue during

Plan Change 24 to the District Plan and, while it was apparently accepted as a good idea, it was not

incorporated into the District Plan. In his Officer's Report Mr Beban notes that notable trees are

now more clearly identified in the District Plan and recommends that Mr Martin's submission be

rejected. In his closing Mr Beban also raises a scope issue in that while under PC41 the notable

tree provisions have been moved internally within the plan to assist integration, no changes have

been made to these provisions. I accept Mr Beban's scope argument as no changes have been

sought through PC41 to the notable tree provisions. I therefore do not propose to add a

requirement that plaques be affixed to notable trees.

4.60 Other submitters sought that the Council develop a trees strategy or other similar strategic

documents for trees in the district.46

As Mr Beban noted in his Officer's Report the Council is

presently preparing an Open Space Strategy under the Local Government Act 2002. On that basis,

and while that strategy is being developed, I reject the need for additional (or complementary)

strategies to be developed at this time.

4.61 In relation to those submitters seeking community assistance in covering the costs for resource

consents given the community benefit protected trees provided, as mentioned above the Council

already significantly reduces resource consent fees for protected tree applications. There are also

permitted activity provisions which enable appropriate trimming or removal of trees in certain

circumstances, further reducing the costs associated with the provisions.47

The Section 32 Report

46

Mr Winder and Mr Pattinson in his presentation during the hearing. 47

Including that an arborist does not have to undertake all works.

BF\56110046\2Page 22

assessed the numbers of resource consent applications under the old regime with 15 in 2013 and

19 in 2014. The numbers of consents sought have therefore traditionally been limited, especially

given the more expansive protection under the old blanket protection rules. I am satisfied that the

costs incurred under PC41 appropriately balance the community benefit and landowner expense.48

4.62 Mr and Mrs Pattinson, in their respective submissions, state that the Council's consultation process

has been inadequate. That process is set out in full in the documents attached to PC41 and in the

Section 32 Report and is summarised in the Officer's Report and included media articles, letters to

affected landowners, site visits, inclusion of local iwi (who chose not to be further involved),

community meetings and community open days. The statutory requirements for consultation for

council initiated plan changes are set out in Schedule 1 to the RMA, and I consider that the

requirements of consultation have been met and therefore reject these submissions.

5. STATUTORY ASSESSMENT

5.1 The statutory provisions are set out in section 2 above. Below I apply these provisions as relevant

for PC41.

5.2 I am satisfied that PC41 is appropriately within the functions of the Council as set out in section 31

of the RMA. In addition, PC41 responds to the direct provisions contained within section 76 of the

RMA.

5.3 In terms of Part 2 of the RMA I consider that PC41:

(a) Recognises and provides for the relevant provisions of section 6 of the RMA being the

protection of areas of significant vegetation as required under section 6(c) of the RMA.49

(b) Has particular regard to the relevant provisions of section 7 of the RMA, being sections 7(b),

7(c), 7(d) and 7(f). It enables the efficient use and development of natural and physical

resources by balancing the permitted activity provisions to enable landowners to efficiently

undertake appropriate trimming and removal of protected trees without resource consent. On

a similar basis it provides appropriate protections to maintain and enhance amenity values of

the district, to provide for intrinsic values of ecosystems and to maintain and enhance the

quality of the environment. The same provisions apply to the proposed new notable trees.

(c) Takes into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi), as local iwi

were invited to be involved consultation for PC41, and to provide feedback, but choose not to

be so involved or make a submission.

(d) Achieves the purpose of the RMA as set out in section 5 as it manages the use, development

and protection of trees within the district in a way that enables people and communities to

provide for their social, economic and cultural wellbeing, and their health and safety. It is

clear from the documentation provided with PC41, and the submissions received, that trees

are very important to the wellbeing of the district and its people. As mentioned in section 1

48

In terms of the submissions seeking financial assistance from the Council, or for Council assistance to clear Pine trees, that is beyond the scope of PC41 and the powers I have under the RMA. I therefore reject the submissions in Footnote 45 that seek such relief. 49

The Section 32 Report also considers section 6(b) protection of outstanding natural features and landscapes to be relevant but this was not included in the Officer's Report. To the extent it may be considered relevant I consider that PC41 appropriately recognises and provides for it. The same provisions apply to the proposed new notable trees.

BF\56110046\2Page 23

above, it is only identified tree species within urban tree groups that score a high assessment

on landscape, amenity and/or ecological grounds that are protected. Within an urban tree

group PC41 only protects listed exotic tree species over a certain size but protects all listed

indigenous species regardless of size on ecological grounds. PC41 also provides for

trimming and removal of protected trees in appropriate circumstances as a permitted activity.

The evidence before me, including from GWRC, that I accept is that PC41 gives effect to the

RPS which itself is prepared to achieve the purpose of, and to be in accordance with, Part 2

of the RMA.50

The identified new notable trees have all been assessed against the District

Plan's existing STEM analysis in Chapter 27.6. I consider that PC41 appropriately provides

for protection of trees while enabling use and development.

5.4 I have had particular regard to the Section 32 Report and, in particular:

(a) On the basis of all the documentation, evidence and submissions received I consider that

Objective 12.3.4 (which is the only new objective added to the District Plan through PC41), as

contained in the amended provisions provided by the Council on 13 July 2016, is the most

appropriate way to achieve the purpose of the RMA (my assessment against Part 2, which

includes section 5 of the RMA, is above). In particular the provisions provide protection to

trees categorised as having high landscape, amenity and/or ecological value.

(b) The provisions in PC41 are the most appropriate to achieve the objectives for the following

reasons:

(i) having reviewed the other reasonable practicable options in the Section 32 Report and

as raised by submitters, in particular Mr Thorpe, I am satisfied, for the reasons in the

Section 32 Report and the Officer's Report that PC41 is the most appropriate of the

options raised;

(ii) having assessed the efficiency and effectiveness of the provisions, including the

environmental, economic and social benefits and costs and the risk of acting or not

acting if there is uncertainty, I am satisfied, for the reasons in the Section 32 Report

and the Officer's Report:

(1) that the provisions appropriately provide for the benefits of urban tree protection

while balancing economic and social costs to landowners through:

A. the methodology used in which only tree groups containing trees over 8

metres high with high landscape, amenity or ecological values are

protected ensuring that only tree groups that make a significant

contribution to the local environment are protected;

B. the protection of exotic trees, which only relates to the identified species

above a set size;

C. the permitted activity provisions that provide for landowners to trim or

remove protected trees in appropriate circumstances, including

emergencies, and when trees are dead or diseased;

50

Section 59 and 61 of the RMA. Powerco's submission included references to the infrastructure provisions within the RPS. I consider that these provisions are given effect to through the permitted activity provisions of PC41.

BF\56110046\2Page 24

D. only requiring the involvement of a qualified arborist where appropriate,

and not for the trimming or removal of any protected trees, such that tree

protections can be managed on a cost efficient basis at the discretion of

the landowner;

E. providing clear exceptions for trimming or removing protected trees in

order to maintain network utility infrastructure;

F. providing for other methods, not just rules; and

G. only requiring a resource consent (as a discretionary activity) if the

permitted activity standards are not met (and the additions to the matters

for discretion to clearly enable consideration of the effects of protected

trees on landowners);

(2) that the proposed discretionary activity status, if the permitted activity standards

are not met, also:

A. appropriately balances the protection of urban trees against the economic

and social costs to landowners as it enables full consideration of all the

positive and adverse effects related to protected trees;

B. appropriately provides for network utility infrastructure given the nature of

permitted activity provisions relevant to them;

C. appropriately recognises the clear importance that the community places

on the values associated with protected trees;

D. avoids having restricted discretionary criteria that become so broad as to

be inefficient, while potentially limiting consideration of effects of protected

trees on landowners;

E. aligns with the rest of the District Plan's vegetation protection/clearance

framework; and

F. is most appropriate in achieving the objective (and policies); and

(3) that, to the extent Mr Thorpe raised uncertainty as to the need for the provisions,

with which I disagree for the reasons set out above, I consider there is a clear

risk in not acting and having no tree protection controls in place.

5.5 For notable trees a section 32 assessment is unnecessary as there are no proposed changes to the

objectives, policies or rules. Rather, the assessment criteria within the District Plan have been

applied as set out in Rule 27.6. The inclusion of the proposed new notable trees is purely the

application of the STEM methodology.

5.6 For the other administrative and consequential changes proposed through PC41, the District Plan

provisions as operative are simply being shifted around to make them more integrated, and any

amendments are solely to provide alignment and consistency with the new urban tree group

provisions. To the degree any section 32 assessment is necessary, I am satisfied that these

BF\56110046\2Page 25

provisions within PC41 are the most appropriate way to achieve the objectives (and by implication

the purpose of the RMA).

5.7 Under section 32AA of the RMA I must undertake an additional section 32 assessment for any

changes made to PC41 since the Section 32 Report, to the level corresponding to the scale and

significance of the changes. My reasons for the changes, and accepting or rejecting submissions,

are set out in detail above. I am satisfied that:

(a) The proposed minor change to the wording of objective 12.3.4 to include reference to high

amenity landscape and/or ecological values is the most appropriate to achieve the purpose of

the Act as it makes it clear that it is the high values only that are to be protected;

(b) The proposed minor changes to the policies are the most appropriate way to achieve the

objective as opposed to other reasonably practicable options, and assessing the efficiency

and effectiveness of the provisions (including the benefits and costs of the environmental

economic, social and cultural effects) as they:

(i) provide greater certainty and clarity; and

(ii) allow the policies to better align with the amended objective and the intent of the

provisions.

(c) The proposed changes to the rules are the most appropriate way to achieve the objective

(and policies) as opposed to other reasonably practicable options, and assessing the

efficiency and effectiveness of the provisions (including the benefits and costs of the

environmental economic, social and cultural effects) as they provide:

(i) improved certainty and detail;

(ii) protection for exotic trees only for the specifically listed species above a set size;

(iii) better provision for network utility infrastructure;

(iv) greater flexibility for private landowners (including not requiring a qualified arborist and

refined matters for consideration);

(v) providing for other methods, not just rules; and

(vi) for discretionary activities the matters referred to in paragraph 5.4(b)(ii)(2) above.

(d) In terms of the changes made to tree groups and identified species, I am satisfied that they

are appropriate, consistent with the objectives and policies and most appropriately result in

achieving the purpose of the RMA.

5.8 Under section 74(2) of the RMA I must have regard to, as relevant:

(a) Any management plans and strategies. The Section 32 Report considered the Urban Growth

Strategy 2007 and the Sustainability Strategy 2012 – 2022 as potentially relevant and

considered that PC41 does not conflict with these strategies. On the absence of any

evidence to the contrary, I agree.

(b) The extent to which PC41 needs to be consistent with plans of adjacent territorial authorities.

The Section 32 Report states that territorial authorities in the Wellington region are all taking

BF\56110046\2Page 26

a different approach but notes that under the Lower Hutt City Plan Change 36 the removal of

a protected tree is a discretionary activity. Overall the Section 32 Report found PC41 to be

largely consistent with the plans of adjacent territorial authorities, albeit focused on Upper

Hutt City's circumstances and values. At the hearing Dr Steer, on behalf of GWRC,

considered that methodology applied within PC41 was sufficiently consistent with the plans of

other territorial authorities in the region (and, as mentioned above, GWRC supported that

methodology). I am satisfied that, to the extent necessary, PC41 is consistent with plans of

adjacent territorial authorities.

5.9 Under section 75(3) of the RMA PC41 must give effect to:

(a) any national policy statement (none of which are applicable);

(b) any New Zealand Coastal Policy statement (again, not applicable); and

(c) any regional policy statement.

5.10 The Section 32 Report and the Officer's Report conclude that the provisions of PC41 are consistent

with the objectives and policies of the Wellington Regional Policy Statement. GWRC's submission

(and evidence) supports PC41 as giving effect to the Wellington Regional Policy Statement, in

particular as being consistent with Policy 47. Powerco's submission included reference to the

Wellington Regional Policy Statement policies relating to regionally significant infrastructure. I

consider that PC41 gives effect to these policies. Overall, I accept that PC41 gives effect to the

Wellington Regional Policy Statement.

5.11 The provisions of section 76 of the RMA are set out in section 3 above and the methodology applied

and its consistency with section 76 is addressed in section 4 above. For the reasons set out above

I accept that the provisions of PC41, in particular Chapter 27A, complies with the requirements of

section 76.

6. RECOMMENDATION

6.1 Based on the consideration of all the information and evidence presented to me I recommend to the

Council that:

(a) PC41 be accepted as amended in Appendix 3 and that all submissions be accepted,

accepted in part or rejected to the extent set out in this decision and summarised in Appendix

1; and

(b) In accordance with Schedule 1 of the RMA the Council give notice of its decision on

submissions to PC41.

David Allen

Hearings Commissioner

20 July 2016