Auckland Council v Arnott [2022] NZDC 15516 (12 September 2022)

Last Updated: 14 October 2022

NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE paragraph [3] http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3865734.html

IN THE DISTRICT COURT AT AUCKLAND I TE KŌTI-Ā-ROHE KI TĀMAKI MAKAURAU

CRI-2021-044-002156 [2022] NZDC 15516

AUCKLAND COUNCIL Prosecutor

v

COLE ARNOTT Defendant

Hearing:	30 June 2022
Appearances:	Ms V Schaaf and Mr B Watts for Prosecutor Mr C Arnott for himself
Judgment:	12 September 2022

SENTENCE INDICATION OF JUDGE MJL DICKEY

Introduction

[1] Cole Arnott faces one charge of contravening sections 9(3), 338(1)(a) and 340(1)(a) of the Resource Management Act 1991 (RMA) by the use of land through his agent(s) (including contractors) in a manner that contravened a district rule, namely Activity Table D.13.4.1(A7) of the Auckland Unitary Plan (Operative in Part)

AUCKLAND COUNCIL v COLE ARNOTT [2022] NZDC 15516 [12 September 2022]

(AUP(OP)), by removing a notable tree (Pōhutukawa) identified in Schedule 10 (ID 1283) without a resource consent.

[2] Bradley James McEwen and Domenico Joseph Guzzo face one charge each relating to the removal of the Pōhutukawa. There was no appearance from Mr Guzzo or Mr McEwen.

[3] The maximum penalty for each charge is imprisonment for a term not exceeding two years or a fine not exceeding $300,000. Mr Arnott has requested a sentence indication from the Court.

[4] A summary of facts has been agreed to inform the sentence indication.

Background1

[5] This prosecution relates to the unconsented felling of a notable tree, a Pōhutukawa (the Pōhutukawa) at 32 Park Avenue, Takapuna, Auckland (the property). The property is 1647m² in size and has a legal description of Lot 4 DP 28584. The registered property owners are the Mr Arnott and the Arnott Family Trustee Limited.

[6] The property contains a two storey Victorian style dwelling and is located adjacent to Takapuna beach. There are six notable trees on the property as identified by the Natural Heritage: Notable Trees Overlay – 1283, however two years prior to the alleged offending a site visit was undertaken and it was confirmed by an arborist that there were only 5 notable trees at the property. The Pōhutukawa subject to these charges was located at the back, at the north-western part of the property located above an existing stone retaining wall.

Resource Management Act 19912

[7] Section 9(3) of the RMA provides that no person may use land in a manner that contravenes a district rule unless the use is expressly allowed by a resource consent,

1 Agreed Summary of Facts as at 8 June 2022 (Summary of Facts), at [1]-[15].

2 Summary of Facts at [8]-[11].

allowed by an existing land use pursuant to section 10 or an activity allowed by section 10A.

[8] The Notable Trees Overlay in part D13 of the AUP(OP) imposes special protections for natural heritage. Individual trees and groups of trees that have been scheduled as notable trees are considered to be among the most significant trees in Auckland.3 These trees have been specifically identified to ensure that the benefits they provide are retained for future generations.4

[9] Notable trees that are subject to protections under the AUP(OP) are identified in Schedule 10 of the AUP(OP), including the following entry in relation to the property:

ID	Botanical Name	Common Name	Number of Trees	Location/Street Address	Locality	Legal Description
1283	Metrosideros Excelsa	Pōhutukawa	6	32 Park Avenue	Takapuna	Lot 4 DP 28584

[10] Activity table D.13.4.1(A7) provides that the removal of a notable tree is a discretionary activity which requires resource consent.

Planning enquiries relating to the Pōhutukawa 2002 and 20185

[11] On 2 May 2002 an application for a resource consent to thin or prune deadwood on Pōhutukawa trees on the property was made to the Council under the name “R Arnott”, understood to be Mr Arnott’s father. Mr Arnott was not involved in this process.

[12] Mr Arnott made a planning enquiry regarding the removal of a Pōhutukawa tree from his address on 10 October 2018. A Council Senior Heritage Arborist undertook a site visit in 2018 with a consultant arborist who specialises in coastal Pōhutukawa.

[13] At the site visit the Arborist confirmed verbally to Mr Arnott that there were no concerns regarding the health and integrity of the Pōhutukawa. Mr Arnott advised

3 D13.1 – Background, AUP(OP). 4 D13.1 – Background, AUP(OP). 5 Summary of Facts at [12]-[15].

he was not contesting the integrity of the Pōhutukawa either, but indicated that he had an issue with the retaining wall which he had concerns about should it collapse.

[14] The arborist advised Mr Arnott that the presence of the Pōhutukawa was not necessarily compromising the retaining wall and further evidence of any risk would be needed to support removal on that basis. The Arborist suggested that the Pōhutukawa may be helping support the bank and wall.

The alleged offending6

[15] On 2 November 2020, Auckland Council (Council) received a complaint regarding work being undertaken to remove a notable tree at the property. The complainant advised the Council:

• (a) that the tree was 30 to 40 foot [9 - 12m] high;
  
• (b) that there only appeared to be one dead branch on the tree; and
  
• (c) the rest of the tree was fine.
  

Site Visit 1.30pm, 20 November 2020

[16] At approximately 1.30pm a Council officer undertook a site visit to the property, during which he took photographs. Upon arrival the officer observed branches of a Pōhutukawa being felled. As the officer approached the property, he was met by Mr Arnott, who was reluctant to let the officer onto the property. The officer showed his warrant and explained that the Pōhutukawa that was being felled was a Notable Tree and that he needed to speak to the arborists.

[17] The officer observed Mr McEwen and Mr Guzzo at the Pōhutukawa. They advised the officer that they did not have a permit. Mr McEwen advised the officer that he did not believe that he needed a permit, and that the Tree had borer and was rotting. The officer noted that only one of the branches on the Tree appeared to have damage.

6 Summary of Facts at [16]-[34].

[18] The officer informed Mr McEwen and Mr Guzzo that the Pōhutukawa trees onsite are notable trees and are protected. The officer also advised that works on a Notable Tree may need a resource consent. At this stage the officer noted approximately 25% of the Pōhutukawa Tree had been felled. The officer instructed Mr McEwen and Mr Guzzo that all work on the Pōhutukawa had to cease until further notice. Mr Arnott appeared again and confronted the officer by parking his bike across the stairs at the property. He became defensive towards the officer, who advised that he considered that there were safety concerns from the Pōhutukawa falling on the children’s playhouse. The officer advised that he would assist in fast tracking an application for a resource consent.

[19] Mr Arnott agreed to stop work.

[20] Mr McEwen began kicking the Tree and hitting the branches of the Tree with the chainsaw. The officer told everyone at the property to stop all work and not to proceed without a valid permit. At this point the officer decided to leave the property. Mr Guzzo appeared to be packing up as the officer left.

[21] While on site the officer witnessed a white truck with a chipper attached to the rear. The registration number of the truck was MLJ36. Vehicle registration checks later confirmed this vehicle was registered to Mr Guzzo.

Site Visit 4.00pm, 20 November 2020

[22] At approximately 3.15pm the original complainant notified Council that the work on the Tree had recommenced at the property. At approximately 4pm, two Council officers undertook a further site visit. Upon arrival both officers spoke with Mr Arnott, who at first was reluctant to provide access to the rear of the property. Both officers showed their warrants and explained they are authorised to enter under section 332 of the RMA and that the Council had received further reports that a Notable Tree was being altered without a resource consent. Mr Arnott then allowed the officers onto the property to inspect the relevant tree works.

[23] During this visit the officers observed that the Pōhutukawa Tree had been completely felled with only a small part of the stump remaining. The officers noted

that the Pōhutukawa branches and stem showed no significant signs of decay and appeared to be in good condition, similar to the other Notable Trees at the property. Mr Arnott pointed at the retaining wall, and advised that he believed that the Pōhutukawa had undermined the structure. The officers noted that the retaining wall contained a stone face and showed no significant signs of being unsafe or unstable.

[24] Mr McEwen identified himself to the officers as the arborist responsible for the Tree removal and advised he was a free-lance arborist. He advised the officers that he was not aware of any protected trees and thought some law changes had allowed for native trees to be removed without the need for consent but did not elaborate as to which law changes he was referring to. He also confirmed that he did not contact the Council prior to undertaking the work.

[25] Mr Guzzo advised officers that he was a friend of Mr McEwen and was only helping out with the job. The officers did not observe any further contractors at the property however they did observe the same vehicle with licence plate MLJ36 at the property.

[26] While the officers were still at the property Mr Arnott advised the officers that he had authorised the removal of the Tree on the basis that it was considered rotten and unsafe which posed a significant risk to him and his children. He told the officer that he considered that the Pōhutukawa had undermined the retaining wall. Mr Arnott mentioned that Mr McEwen also told him that it was fine to remove the Tree on the basis that it was unsafe and rotten. The officers observed that most of the Pōhutukawa branches that had been felled appeared healthy and noted only one rotten branch lying on the grass. The officers took photographs at the property and left.

[27] On 11 November 2020 a Council officer received a phone call from the complainant advising that further tree works had commenced onsite. The Council was provided with photographs showing the stump where the Pōhutukawa used to be and contractors undertaking remedial planting after the removal of the Pōhutukawa.

[28] Mr Arnott confirmed in a phone call that he was in the process of removing the stump. A Council Officer issued an Abatement Notice under s322(1)(a)(i) of the RMA

to Mr Arnott requiring him to cease all work on site (ABC21519646). The officer hand delivered a copy of the notice to the property and Mr Arnott confirmed that he had received it and had stopped work.

Investigation7

[29] On 10 November 2020, the Council Arborist who undertook the site visit in 2018 viewed the photographs taken during the site visit on 2 November 2020. The Arborist noted:

• (a) other than one branch that had some decay the rest of the tree appeared to be healthy and structurally sound;
  
• (b) even with some decay a tree could be saved by removing decayed branches and retaining the remainder of the tree;
  
• (c) such an assessment should only be made by a qualified and competent arborist.
  

[30] On 19 November 2020 Mr Arnott attended an interview under caution at Auckland Council offices. During the interview Mr Arnott stated that:

1. He authorised the removal of the Tree because he was concerned that the retaining wall was dangerous and falling over;
   
2. That an Arborist advised him that he could remove the Tree;
   

100. The Trust was not involved in the decision making or removal of the Tree;
     

4. It was only the two contractors that physically undertook the work;
   
5. He had contracted Mr McEwen to remove the Tree and paid him $2,400 to undertake the work;
   
6. He had an engineering report from after the removal of the Tree supporting his position and that he would provide a copy to the Council. [Auckland Council has not received a copy of the Report];
   
7. He had photographs of “pretty bad disease” and branches falling off the Tree. [The photographs have not been provided to Council];
   
8. He was aware that the trees on beach were protected but the second defendant told him the Tree subject to this investigation was not protected;
   

7 Summary of Facts at [35]-[40].

1. He recalled speaking to Council about the Tree in 2018.
   

[31] Mr McEwen and Mr Guzzo declined to attend an interview when invited, however Mr Guzzo confirmed he was contracted by Mr McEwen to assist with the job.

Sentencing principles

[32] The purposes and principles of the Sentencing Act 2002 are relevant. The High Court in Thurston v Manawatu Wanganui Regional Council8 provides a useful summary of the approach to be taken to sentencing, which includes consideration of culpability; precautions taken to prevent discharges; the vulnerability or importance of the affected environment; extent of damage; deterrence; capacity to pay a fine; disregard for abatement notices; co-operation and guilty pleas.

Environmental effects9

[33] Pōhutukawa trees have an important ecological, environmental, and cultural role. They have an important contribution to make in the sustainable management of natural and physical resources of Auckland by sustaining the ecological balance between nature and technology, and between the organic and the inorganic.

[34] Pōhutukawa trees complement the built environment and establish connections between buildings, sites, and the surrounding landscape. They play an integral part in the avoidance of natural hazards, reducing water runoff, preventing flooding, stabilising soils, preventing landslips and reducing erosion.

[35] Individual trees and groups of trees that have been scheduled as notable trees are considered to be among the most significant trees in Auckland. These trees have been specifically identified to ensure that the benefits they provide are retained for future generations. The removal of the Pōhutukawa is a permanent loss that will be detrimental to the surrounding ecology and environment as well as the natural character along the Takapuna Beachfront.

8 Thurston v Manawatu Wanganui Regional Council HC Palmerston North CRI-2009-454-24, -25, - 27, 27 August 2010.

9 Summary of Facts at [41]-[44].

Conclusion on effects

[36] While it might be argued that the Pōhutukawa was but one of a group of trees, the effects of its loss should not be minimised. This was a Notable Tree protected because trees such as this are considered to be among the most significant trees in Auckland. These trees have been specifically identified to ensure that the benefits they provide are protected for future generations.

[37] I consider the adverse effects on the environment from the Tree’s removal to be high, because the removal of mature trees such as the Pōhutukawa is a permanent loss which cannot be replaced in our lifetime. Even if a new tree were planted, it will not grow to provide the level of amenity and ecological, environmental and cultural benefit that was provided by the Pōhutukawa that has been destroyed.

Culpability

[38] Ms Schaaf submits that Mr Arnott’s alleged offending can be described as deliberate, if not brazen.10 She submits that Mr Arnott was aware that a resource consent was required to remove the Tree following a previous site visit from a Council arborist in 2018. He was told by Council officers that he could not remove the Tree, but went ahead and instructed Mr McEwen and Mr Guzzo to complete the work. When he was told to stop work on the Tree he became defensive towards the Council officer and tried to block access to the Tree. He agreed to stop work once the Council officer left the property, but reneged on that agreement and had the Tree removed.

[39] Mr Arnott apologises for removing the Tree without waiting for resource consent,11 but advised that he did so because it was a danger to his children and family. In his presentation he describes that in 2020 large rocks started coming loose and falling off the retaining wall, and that the wall began to bow and overhang directly where the Pōhutukawa was pushing against it.12 His fear was that the retaining wall

10 Prosecutor’s Submissions for Sentencing Indication, dated 12 June 2022 (Prosecutor’s Submissions) at [29](a).

11 Defendant’s Submissions for Sentencing Indication, dated 27 June 2022 (Defendant’s Submissions) at [5].

12 Defendant’s Submissions at [3].

would collapse and injure someone. In order to remove this risk, which was progressively getting worse, he removed the Pōhutukawa.13

[40] In support of his position he referred to a report he obtained from Riley Consultants dated 24 November 2020. Riley Consultants visited the site after the Tree’s removal. Their report states We consider that had the root growth of the now felled tree continued, this would likely have ultimately led to wall collapse14 and that it is likely that lateral forces from the tree roots have resulted in deflection of the wall possibly compromising its integrity.15

Conclusion on culpability

[41] Having reviewed the circumstances of this case I find that the offending was deliberate and that Mr Arnott’s culpability in this case is high.

[42] Mr Arnott argues that he was concerned for the safety of the retaining wall and his children who were playing in the vicinity of the wall. Yet the Riley report does not speak of an imminent danger of collapse. It concludes:16

Conclusions

The retaining wall in the rear yard is in close proximity to a large Pōhutukawa tree stump. We consider it is likely that lateral forces from the tree roots have resulted in deflection of the wall possibly compromising its integrity. Had the Pohutukawa, roots (sic) continued to grow, we expect that wall deflections would have continued to increase potentially resulting in full yield of the wall and subsequent collapse. The deflected condition of the wall presents a significant risk to the users of the rear yard. Temporary measures have been proposed to reduce loads on the wall and increase support, and minimise the risk of falling basalt rocks to yard users. More permanent measures are

recommended to maintain wall stability in the long term.

[43] Mr Arnott knew from previous dealings with the Council that he needed resource consent for the Tree’s removal. He chose not to seek a resource consent. His concerns for the safety of the children playing in the vicinity of the wall area could

13 Defendant’s Submissions at [4].

14 Riley Consultants Geotechnical Assessment of Retaining Wall, 34 Park Avenue, Takapuna, dated 24 November 2020 (Riley Report), at page 2.

15 Riley Report, at page 2.

16 Riley Report, at page 2.

have been addressed by temporary fencing preventing access to the area beneath the wall – while he made application for resource consent.

[44] Further, and perhaps most egregious of all, well before the Tree was cut to the point of no return Mr Arnott agreed with Council officers that he would stop work. Yet, not more than two hours later, he went on to cut down the rest of the tree. I view that breach of his word as most serious indeed.

Starting Point

[45] Section 8(e) of the Sentencing Act requires the Court to take into account the general desirability of consistency with appropriate sentencing levels in respect of similar offending. However, the high degree of variation in the facts, individual culpability and environmental effects in prosecutions under the RMA makes it difficult for direct comparisons between cases.

[46] In support of the submissions on the starting point Ms Schaaf referred to a number of sentencing cases that she argued were comparable to this case. These cases included Auckland City Council v Shaw (Shaw),17 Tauranga City Council v Kent Kent)18 and Queenstown Lakes District Council v Spijkerbosch (Spijkerbosch).19

[47] She submitted that the alleged offending is most similar factually to Shaw, although it should be noted that Shaw pre-dates the 2009 uplift of maximum penalties. In Shaw a large 10m high Pōhutukawa tree was removed without resource consent. The defendants in that case knew of the need for resource consent but proceeded to cut down the tree. The Court held that the gravity of offending was reasonably high, with Mr Shaw having a prior conviction for similar offending. The Court found that if it was not for significant mitigating factors, including restorative actions and remorse, then Mr Shaw’s offending would have attracted a starting point of imprisonment.

17 Auckland City Council v Shaw DC Auckland CRN 5004502435 and 5003402402436, 2 March 2006; See also [2006] DCR 425.

18 Tauranga City Council v Kent DC Tauranga CRI-20120070-004916 & 4899, 18 March 2013.

19 Queenstown Lakes District Council v Spijkerbosch DC Queenstown CRI-2010-059-335, 30 July 2010.

[48] In Shaw the restorative justice process included an enforcement order for a replacement tree and upkeep and $20,000 reparation for planting 200 trees. Mr Shaw was ordered to take part in the planting as a form of community work and rehabilitation. In addition, a fine of $80,000 was imposed on Mr Shaw.

[49] In Kent the defendant was fined $45,000 and ordered to pay $5,000 for reparation following hiring a contractor to remove 11 large trees from a reserve within a special ecological area. A starting point of $70,000 was adopted by the Court. The final sentence was a fine of $45,500, with the Court also ordering Mr Kent to pay

$5,000 in reparation to put towards the costs of replanting and maintenance.

[50] Spijkerbosch involved the complete removal of a 50 year old eucalyptus tree in the Arrowtown historic management zone, without resource consent. The owner was on notice that a resource consent was required but proceeded without one. During the offending the defendants were advised by a Council officer that a consent was required, and that the work needed to cease immediately. The following day the same officer undertook a further site visit and observed the defendants removing the remainder of the tree. The Judge in that case had adopted a starting point of a $30,000 fine. The fine was reduced to $20,000 for a guilty plea and then commuted to 180 hours community work.

[51] Ms Schaaf submitted that the offending in this case has some similarities to Shaw, and to a lesser extent Spijkerbosch. She submits that the mitigating factors in Shaw are not applicable to Mr Arnott, who has taken no steps to remediate the offending or show remorse (beyond that inherent in a guilty plea). The prosecutor also submits that as the owner of a significantly valuable property on Takapuna beachfront, that like Mr Shaw, Mr Arnott likely has substantial means to pay a fine. In Shaw the Court observed that if a defendant has substantial means this is relevant to setting a penalty that achieves specific deterrence.20 Ms Schaaf submitted that a starting point of $80,000 is appropriate for Mr Arnott.

20 Shaw at [40]–[41].

[52] Mr Arnott observed that this case differs from Shaw in certain respects – Mr Shaw was a developer and had a prior conviction for similar offending. Mr Arnott reiterated his safety concerns and apologised for “his hasty decision”.

[53] I would impose a starting point of $70,000. I find this case has some similarities to Shaw. Mr Arnott knew that resource consent was required to remove the Tree but chose not to seek consent. Mr Arnott has said he was concerned about safety, and feared the wall’s collapse. However, the Riley Report did not speak of imminent danger. In any event, he could have put up temporary fencing around the base of the wall while he worked through his options.

[54] Having started cutting the Tree, he assured Council officers he would stop, yet went ahead and destroyed the Tree following their departure from his property. Mr Arnott’s broken assurance is of concern. It is well known that a council has a discretion as to how it enforces its district plan. It might do so by persuasion, prosecution or by seeking an enforcement order; or by a combination of those means; or perhaps by other means.21 Where it can, a council will seek to work co-operatively with the public on enforcement matters. When, therefore, an individual says they will cooperate and then fails to do so, it has serious implications for others. It is difficult to work with people to agree a course of action, if reliance cannot be placed on their word. It is, therefore, a matter requiring deterrence and that has factored into my proposed starting point.

[55] Finally, I note that if Mr Arnott’s view had been enhanced by the removal of the tree the starting point would be higher.

Aggravating and Mitigating Factors

[56] Although Ms Schaaf acknowledges that Mr Arnott does not have prior convictions of a similar type, Mr Arnott has been to Court before with his last conviction being in 2006. For this reason Ms Schaaf submits that any discount for prior good character should be nominal or in the vicinity of zero to two and half percent.

21 Manukau Shopping Centre Merchants Association v Manukau City HC Auckland CP2721/88, 1 December 1988.

[57] Ms Schaaf submitted that Mr Arnott never demonstrated any remorse for the offending. Therefore there should be no discount for extraordinary remorse over and above that which is inherent in a guilty plea. I note that Mr Arnott expressed remorse in the sentence indication hearing.

[58] Mr Arnott was not co-operative with Council officers throughout the offending. However, he did attend an interview with Council staff to provide an explanation for his offending. Ms Schaaf submitted that Mr Arnott may be entitled to a nominal discount in the vicinity of two and half percent for his co-operation in attending the Council interview.

[59] In the circumstances I am prepared to allow a five percent discount for good character and co-operation in attending an interview. Mr Arnott’s past offending was not of a similar type and the last conviction was over 15 years ago.

[60] I note that if there were to be some proposal for comprehensive remediation by Mr Arnott, that may impact on the amount of discount I would allow.

[61] I will need further submissions on whether Mr Arnott is eligible for a twenty- five percent discount for a guilty plea, as my present view is that allowing the full discount is not appropriate if the guilty plea follows a sentence indication.

Outcome

[62] I have applied the two step methodology required by the Court in Moses v R.22

[63] If Mr Arnott were to plead guilty to the charges, on the information presently available to me I would impose a starting point of $70,000 and allow a discount of

22 Moses v R [2020] NZCA 296.

five percent for good character and co-operation in attending an interview. The extent of any discount for a guilty plea would need to be the subject of further submissions.

Judge MJL Dickey

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 12/09/2022