East Harbour Environmental Association Incorporated v Hutt City Council [2017] NZHC 1614 (12 July 2017)

Last Updated: 9 August 2017

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2016-485-966 [2017] NZHC 1614

UNDER	section 299 of the Resource Management Act 1991
IN THE MATTER	of an appeal against a decision of the Environment Court at Wellington
BETWEEN	EAST HARBOUR ENVIRONMENTAL ASSOCIATION INCORPORATED Appellant
AND	HUTT CITY COUNCIL Respondent

Hearing:	11 July 2017
Counsel:	T Bennion for Appellant S F Quinn for Respondent
Judgment:	12 July 2017

_{JUDGMENT OF SIMON FRANCE J}

Introduction

[1] The appellant, East Harbour, has an appeal on foot in the Environment Court. In a preliminary ruling, Judge Dwyer has struck out two of the four pleaded forms of relief, and East Harbour appeals.¹ The forms of relief addressed different parts of a District Plan change being promoted by the Hutt City Council, and were struck out

_{for different reasons. Accordingly, it is convenient to address them separately.}

¹ _{East Harbour Environmental Assoc Inc v Hutt City Council [2016] NZEnvC 224.}

EAST HARBOUR ENVIRONMENTAL ASSOC INC v HUTT CITY COUNCIL [2017] NZHC 1614 [12 July

2017]

Felling of trees and removal of vegetation

[2] East Harbour represents a group of residents in Eastbourne, an area characterised in part by its bush clad hills. In issue in the present proceeding is a proposed change to the rules dealing with site clearance. Putting to one side individually protected trees, the existing rule in the District Plan is that landowners can clear the lesser of 500m², or 35 per cent of the site, as of right.² Beyond that scale, permission is needed. This arrangement is achieved by inserting a similarly worded rule in the various residential activity areas.³ Within the rule, no distinction is drawn concerning what can be cleared – it is all just described as vegetation.

[3] In 2013, however, this approach became impermissible as a consequence of an amendment to s 76 of the Resource Management Act 1991.⁴ That change had two impacts on the Council’s rule – the amendment applied only to trees, thereby potentially requiring separate rules for vegetation and trees; and second, concerning the felling of trees on urban sections less than 4000m², the new law prohibited blanket rules applying to the whole activity area. Any rule about trees had to be targeted at the trees on a single identified allotment. There is an exception to the single allotment rule for situations where a relevant group of trees span more than one property. In these situations it is permissible to direct a rule at all adjoining properties on which the group of trees is situated.⁵ “Group of trees” is defined as a cluster, grove or line of trees.⁶

[4] In Plan Change 36 the Hutt City Council responded to these statutory changes by simply removing the vegetation rule altogether for sections less than

4000m². Two comments can be made:

(a) removing blanket restrictions on the clearing of vegetation other than

trees was not required by the law change. East Harbour’s challenge to this proposal and its proposed relief, which is the reinstatement of the

² _{City of Lower Hutt District Plan (Hutt City Council, March 2004) at [4D2.2(b)].}

³ City of Lower Hutt District Proposed District Plan Change 36 (Hutt City Council, September 2015) at amendments 14–18 and 21–25. East Harbour is concerned about the Hill Residential Activity Area and the Landscape Protection Activity Area.

⁴ _{Resource Management Amendment Act 2013, s 12.}

⁵ _{Resource Management Act 1991, s 76(4B) (as amended).}

⁶ Section 76(4C).

existing vegetation rule (minus trees), will be heard by the

Environment Court;

(b) although the blanket rule did have to go insofar as it related to trees, it would have been possible for the Council to propose new rules in relation to groups of trees, or indeed individual allotments on which there were trees of significance. Hutt City Council has not done so.

[5] East Harbour’s proposed relief on this focused on proposing new rules in relation to the groups of trees:

8 Relief Sought

...

b. Identification in a schedule of the groups of trees in the Hill Residential Activity Area and the Landscape Protection Residential Area providing amenity value, site stability, intrinsic values of ecosystems, biodiversity and otherwise meeting the purpose of the RMA and addressing the matters in sections 6 and 7 noted above.

[6] The Council objected to the proposed relief on the basis that it did not arise from the Plan Change. There are various ways to describe this, but the import is that one cannot propose relief that does not flow naturally from the proposed change. The key driver of this restriction is the Resource Management Act’s policy of public involvement, and the requirements of natural justice. If suddenly the Council, or here the Environment Court, are considering a proposal that could not have been foreseen as arising from the Plan Change, landowners and other affected persons will not have known of the risk and will not have assessed the need to make submissions on the point. The factors relevant to this assessment of whether a proposal such as East Harbour falls with the scope of the proposed change have been discussed in a number of cases – Clearwater Resort Ltd v Christchurch City Council, Palmerston North City Council v Motor Machinists Ltd and Albany North Landowners v

_{Auckland City Council.}⁷

⁷ Clearwater Resort Ltd v Christchurch City Council HC Christchurch AP 34/02, 14 March 2003; Palmerston North City Council v Motor Machinists Ltd [2013] NZHC 1290; [2014] NZRMA 519 (HC); and Albany North Landowners v Auckland Council [2016] NZHC 138.

[7] For reasons which largely mirror those of Judge Dwyer, I consider the proposed relief was rightly struck out. There is, however, a prior hurdle the appellant has not met. The appeal is brought pursuant to s 299 of the Resource Management Act which provides:

299 Appeal to High Court on question of law

(1) A party to a proceeding before the Environment Court under this Act or any other enactment may appeal on a question of law to the High Court against any decision, report, or recommendation of the Environment Court made in the proceeding.

[8] The ground of appeal identified in the Notice of Appeal is:

3.1. Whether the Environment Court was correct in determining that the relief sought under 8b and 8d above is outside the scope of Plan Change 36 (PC 36).

[9] This is not question of law. It is a proposition that the Judge applied settled law incorrectly. That is the stuff of a general appeal but no such appeal right exists here. The point is illustrated by an observation of Judge Dwyer in the ruling under appeal:⁸

... there was no dispute between counsel as to the applicable legal principles, just to their application in this case.

[10] Challenged on this, Mr Bennion fell back on the only available ground which amounts to a question of law, namely that the decision reached by the Court is one which no reasonable Court could reach. That is a formidable task when the subject matter of the decision is squarely within the expertise of a specialist Court.

[11] It is important in these assessments to identify the status quo. For urban sections of this size, there are presently no restrictions directed at the cutting of trees. There is a scale limit in terms of how much clearing can be done, but what can be cleared, and which part of the site is cleared, is for the landowner to decide. The Plan Change did not propose any change to this. So under neither the existing situation nor the proposed change is a landowner restricted in his or her ability to fell

_{non-notable trees on his or her property.}⁹ _{It therefore flows inevitably, as Judge}

⁸ _{East Harbour, above n 1, at [11].}

⁹ At least until the greater than 35 per cent site clearance point is reached.

Dwyer pointed out, that it would be unfair for the Environment Court to consider directing such a rule at this stage. Affected persons have not had the opportunity to comment. The decision to strike out the relief was one a reasonable court could come to, and in my view was plainly correct.

The method for identifying notable trees

[12] As part of this Plan Change the Council has rewritten Part 14G, which deals with notable trees. The Council called for public contributions as to what further trees might be included in the list. It then had these trees assessed using what is known as the Standard Tree Evaluation method (STEM). If the tree qualified as notable under this approach, and if the landowner agreed, the tree was added to the

list of protected notable trees.¹⁰

[13] East Harbour’s relief proposes that the exercise should be redone using a lower STEM threshold, or using an alternative methodology. Judge Dwyer accepted this was a form of relief that arose from the proposed Plan Change. However, another restriction in these appeals is that the appeal grounds must be matters raised by the appellant in the process being appealed from. That was not the case with East Harbour’s submission, and it was struck out. Mr Bennion accepted he could not really point to an error in the Judge’s reasoning (nor again to a question of law).

[14] There is no merit is this challenge.

Conclusion

[15] The appeal is dismissed.

[16] The appellant has not satisfied me that the appeal involves a question of law. The appeal lacked merit to the extent it was sought to circumvent this deficit by recasting the challenge into a claim that the decisions were ones no Court acting

_{reasonably could reach.}

¹⁰ Proposed District Plan Change 36, above n 3, at 89–90.

[17] Costs memoranda may be filed. However, I indicate that given my observations on the lack of a question of law, it is difficult to see that costs should

_{not follow the event.}

Simon France J