Sections 76(4A) and 76(4B) of the RMA were inserted by the Resource Management (Simplifying and Streamlining) Amendment Act 2009 (RMAA09). They came into force on 1 January 2012.
The intent was to reduce high transaction costs caused by the large number of resource consents required due to blanket tree protection rules in urban environments. The provisions intended to prohibit blanket tree protection rules except in areas within a reserve or an area subject to a conservation management plan or conservation management strategy. The provisions also required councils to specifically identify ‘notable’ trees for protection in a plan, either individually or as part of a definable group.
Shortly after the RMAA09 law change, several local authorities sought clarification from the Environment Court as to the lawfulness of the tree protection rules in their respective plans. In 2011, the Environment Court declared that, despite section 76(4A), councils could retain rules the Government considered amounted to a general tree protection approach (refer ENV-2010-AKL-241, NZEnvC 129). Central to the Environment Court’s decision was how the words “group of trees” should be interpreted. The Court considered that a group of trees can be any trees that satisfy one or more of the following conditions:
- a cluster or trees identified precisely by location (usually by street address and/or legal description)
- all trees of one or more named species in a defined area or zone
- all trees in a class with defined characteristics in a defined area or zone
- all trees in a named ecosystem (usually natural rather than artificial) or habitat or landscape (unit) or ecotone Footnote 1.
However, the Government considered that the conditions set out in ‘b’ and ‘c’ were at odds with the intention of the amendments under RMAA09 because they effectively legitimised a range of common approaches to blanket tree protection rules and allowed some councils to retain such rules. The combined effect of the Environment Court’s decision and council responses to that decision created general confusion about whether trees were protected or not.
To address this, section 76(4A) was amended under the Resource Management Amendments Act 2013 (RMAA13) to align with its original policy intent – the prohibition of blanket tree protection rules in urban areas.
Sections 76(4A), (4B), (4C), and (4D) now state:
(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 4000m2; and
(b) that is connected to a reticulated water supply system and a reticulated sewerage system; and
(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 conservationmanagement strategy prepared in accordance with the Conservation Act 1987 or the Reserves
(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.
The new sections 76(4A)–76(4D) do not remove councils’ ability to protect trees on urban allotments, do not place any restrictions on the types of trees to be protected, and do not limit the methods a council may use to assess the quality of a tree or group of trees. Rather, the sections require urban tree protection rules in district plans to be applied in ways that provide certainty for landowners and district plan users about what, if any, tree protection rules affect their properties.
This is achieved by requiring the trees to be protected to be described and the allotment or allotments specifically identified by street address and/or legal description in a schedule to the plan. Where a group of trees are to be protected, sections 76(4A)–76(4D) do not require every tree in a group to be individually described. Rather, the trees within that group can be described collectively, provided the description provides sufficient clarity to landowners and district plan users about which trees are part of that group and on which allotments they are located.
Because there are no definitions in the RMA of “trimming” and “damaging”, councils may choose to include definitions in their district plans.
Back to footnote reference 1 The Oxford English Dictionary defines ‘ecotone’ as a: “transitional area between two or more distinct ecological communities”.