Evans v Clutha District Council
[2020] NZCA 5
•4 February 2020 at 1.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA19/2019 [2020] NZCA 5 |
| BETWEEN | MAXINE MAY EVANS |
| AND | CLUTHA DISTRICT COUNCIL |
| Hearing: | 16 October 2019 |
Court: | Miller, Simon France and Hinton JJ |
Counsel: | G A Paine and M J Taylor-Cyphers for Appellant |
Judgment: | 4 February 2020 at 1.00 pm |
JUDGMENT OF THE COURT
A The appeal is dismissed.
BThe respondent is entitled to costs for a standard appeal on a band A basis and usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Hinton J)
An oak tree and a sequoia in the Christie Street playground in Balclutha remain the subject of judicial scrutiny.
On 3 May 2018, the Clutha District Council resolved that the two trees be removed. Ms Evans applied for judicial review of that decision which was declined by Nation J on 17 December 2018.[1] The matter has now come to this Court on appeal. In the meantime, the Council has agreed to leave the trees pending resolution of the proceedings.
Background
[1]EvansvClutha District Council [2018] NZHC 3355.
The two trees are situated on a pocket reserve in a suburban area in Balclutha. The reserve is about 1600m². It fronts Christie Street and is surrounded by three neighbouring lots each about half the size of the reserve. Mr and Mrs Ross live in one of the neighbouring lots. The two trees are adjacent to the Ross property. Photos show the trees well exceeding the height of the Ross dwelling, the sequoia leaning towards it and the oak with branches extending over the boundary. Arborists say the oak is about 14.5 metres high and the sequoia about 20 metres. The trees are about 45 years old and the arborists describe them as young. Though there is no evidence as to likely ultimate size it is clear that they will grow substantially larger, especially the sequoia.
Mr and Mrs Ross have complained to the Council about the trees for some years. In February 2014, following a complaint made in 2013, the Council resolved “that the trees be pruned and that a root curtain be installed to avoid the root interference to the neighbouring property”. This followed an arborist (Mr Glenn of Asplundh) advising the Council he had inspected the trees and there was “a minor amount of pruning” that could be done to the oak. He said the oak is “quite vigorous and is growing out toward the boundary”.
On 22 January 2018 Mr and Mrs Ross wrote another letter of complaint to the Council. The letter referred to their having raised issues “on many occasions” with the Council. It referred to reports of trees falling and killing people elsewhere, to dead pieces in the sequoia, to the oak tree getting bigger and black discharges from the oak tree onto the roof of their property.
The Council obtained a report from the community facilities supervisor. The supervisor said the trees had been monitored and regularly assessed for changes since 2014 and an arborist from Asplundh had again reported on the trees in March 2018 as follows:
Sequoia trees have a robust root system and are not prone to falling. Oak trees are similar in nature. The trees in question are only young trees and although leaf and needles are shed from the trees which are a natural occurrence the trees are stable and healthy except for an adverse weather event, I believe these trees are fine. [sic]
The March 2018 supervisor’s report refers directly or indirectly to work programmed to remove dead tree limbs, to trim the oak back from the property line and to remove lower limbs to stop children swinging on them.
The report attaches photographs of the trees which depict the trees as described earlier.
The report also attaches the Clutha District Council policy dated 16 September 2010 for “Trees in Road Reserve & Amenity Trees”. The report records that the policy may not be directly applicable to the trees in the Christie Street playground but it may guide the Service Delivery Committee as to what, if any, further consultation is required.
The report gave the Council three options. The first was to do nothing, monitor the trees closely and complete work outlined in the arborist’s report. The second was to fell the sequoia and retain the oak and prune as recommended. The third was to fell both trees and look to re-plant appropriate trees in this location given the likely future use.
The Mayor, Mr Cadogan, and several of the councillors went to look at the trees individually.
On 3 May 2018 a meeting was held of the Service Delivery Committee. It was attended by 14 councillors and the Mayor and chaired by Mr Cochrane. The evidence was that it was standard procedure for the agenda for any meeting to be put on the public website and hard copies put up at libraries and service centres for the Council some days before the meeting. The Rosses were invited to attend and were the only members of the public to speak. Mrs Ross talked about the mess caused to the property from leaves and needles and of her anxiety in high winds.
The Minutes of the 3 May 2018 meeting record:
That the Service Delivery Committee receives the Christie Street Playground Trees report.
Discussion was held about removing one or both of the trees as it was felt that these trees were inappropriate for this location and should be replaced with plantings that will not grow too large and are in keeping with the structure of other plantings in the reserve.
The Committee first resolved to recommend that the sequoia tree be removed and the oak tree be retained and pruned as required. But after further discussion, that was amended to the following resolution:
That the Service Delivery Committee recommends that both trees be removed from the Christie Street playground.
That resolution was passed by a majority of 8 out of 14. That then became a substantive motion which the minutes record as having been “passed”. The evidence of both Mr Cochrane and the Mayor was that it passed without dissent. This was on the basis that no work would be carried out until after 1 July 2018.
Ms Evans found out about the decision from an article in the Clutha Leader a week later. A significant number of letters were written to the Council and the paper expressing concern about the decision. The Council remained firm.
Ms Evans then brought this proceeding, with the support of a number of others. While not pleaded by way of judicial review it has been allowed to proceed on that basis.
The decision appealed from
Nation J concluded that the Council had no duty to consult and that there was a reasonable basis for its decision.[2] He also held that it had not been established that the decision to cut down the trees would be in breach of s 42 of the Reserves Act 1977.[3] He consequently declined relief.
[2]At [42] and [76].
[3]At [93].
As the appeal is substantially on all fours with the issues in the judgment below and we substantially agree with the reasoning of the High Court Judge, we do not set out his reasoning in full.
Grounds of appeal
As the case was argued, there are essentially three grounds of appeal. First, the appellant says that there was no reasonable basis for the Council’s decision. Second, that the Council was in breach of a duty to consult in terms of the Local Government Act 2002 (LGA) or at common law. And third, that the Council failed to comply with its obligations under s 42(2) of the Reserves Act 1977. In their written submissions, counsel for the appellants also contended that irrelevant matters were taken into account by the Council and relevant matters not taken into account. That argument was not advanced before us and we see no points that would fit into either category.
Analysis
Reasonable basis for Council’s decision?
It is only if we were satisfied that the Council had come to a conclusion so unreasonable that no reasonable authority could have come to it that this ground could succeed.[4] As the appellants acknowledge this is a high hurdle to pass.
[4]Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223.
We consider there was a reasonable basis for the decision essentially for the reasons set out by Nation J and in respect of which there was available evidence:
[40] The Council made its decision with regard to the trees with information before it as to how debris from the trees impacted on the neighbour’s property. They knew how big the trees were from Councillors’ own observations in the report to the Council. In the case of the sequoia, they knew of the way that tree had a lean towards the Ross property. They were aware of the size of the Christie Street Reserve and the extent to which the trees were of a size compatible with the general nature of that reserve. They had advice suggesting that the trees could be a danger to the neighbouring property in an extreme weather event.
In short, the trees adversely affect the neighbouring property, could be a danger in an extreme weather event, and are already of a size incompatible with the nature of the reserve.
Duty to consult
There is no dispute that the Council did not consult.
The relevant provisions of the LGA are ss 76–79. The leading decision concerning the obligation on local authorities to consult is this Court’s decision in Wellington City Council v Minotaur Custodians Ltd.[5] The Court summarised the legal framework as follows:
[42] In summary, Part 6 of the LGA carefully and repeatedly rejects the idea that there is to be found in its provisions any duty to consult with affected or interested parties. Instead, local authorities are given a deliberately broad discretion as to whether to consult, and, if so, how. That does not mean, however, that there are no limits on a council’s discretion. Like all statutory decisions, consultation decisions must be rational and consistent with the obligations of the LGA and the particular controlling provisions.
[5]Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZLR 464.
The net effect is that the Council has to determine in each case whether consultation is appropriate but must do so in terms of the LGA.
Section 76 provides:
76 Decision-making
(1) Every decision made by a local authority must be made in accordance with such of the provisions of sections 77, 78, 80, 81 and 82 as are applicable.
(2) Subsection (1) is subject, in relation to compliance with sections 77 and 78, to the judgments made by the local authority under section 79.
(3) A local authority—
(a)must ensure that, subject to subsection (2), its decision‑making processes promote compliance with subsection (1); and
(b) in the case of a significant decision, must ensure, before the decision is made, that subsection (1) has been appropriately observed.
(4) For the avoidance of doubt, it is declared that, subject to subsection (2), subsection (1) applies to every decision made by or on behalf of a local authority, including a decision not to take any action.
…
(6) This section and the sections applied by this section do not limit any duty or obligation imposed on a local authority by any other enactment.
In Minotaur the Court summarised s 76 in the following way:
[33] Relevantly, for present purposes, subs (1) and (2) provide that consultation decisions must be made in accordance with ss 78 and 82, subject, in the case of compliance with section 78, to the ameliorating effect of s 79. Subsection (3) sets two standards of performance. In respect of “significant decisions”, the local authority must ensure that the provisions contained in subs (1) have been “appropriately observed”. This is the higher of the two standards. Where the matter is not “significant”, the standard is more aspirational: decision-making is only required to “promote compliance” with the provisions referred to in subs (1). Even that lower standard is subject to s 79 as noted.
(Emphasis added.)
Although trees are highly valued, a decision regarding felling these trees does not fall into the category of a significant decision. The evidence was that usually decisions regarding tree removal are made by a Council officer and not by the Council itself. Further, following consultation over the draft reserves management plan, no members of the community had identified these particular trees (or indeed any trees) within the Clutha district as requiring special protection.
Section 77(1)(a) of the LGA provides that a local authority must, in the course of the decision-making process, seek to identify all reasonably practicable options for the achievement of the objective of the decision. In this case, prior to making the decision, the Council received a report from the community facilities supervisor. That report referred to the Asplundh report and gave the Council the three options referred to earlier: do nothing, fell the sequoia and retain the oak, or fell both trees. Options were identified therefore in terms of s 77(1).
Section 78(1) requires a local authority to give consideration to the views of persons likely to be affected or with an interest, but as this Court in Minotaur made clear, the section does not generate an obligation to consult or indeed to adopt any particular consultation process or procedure. Rather, the Court stated “consultation is one of a number of options for obtaining information about the views and preferences of those affected or with an interest”.[6] In this case, the Council was required to take into account community views, but was left with a wide discretion about how it did that.
[6]Minotaur, above n 5, at [36].
Both ss 77 and 78 are subject to the broad discretion in s 79. That section provides that a local authority must have regard to the significance of all relevant matters, including the views of the community and the extent of available resources.
As Nation J noted, the Council could rationally have considered that they did not need to consult further to know that many in the community would value trees, especially large trees. The Council were also aware of the type, size and age of these particular trees. That the Council had these considerations in mind is evidenced by the rejection of the Ross’ request for removal back in 2014, and the nearly even split of the initial vote on removal in 2018. This is also demonstrated by the Council’s tree strategy for a “destination park”, Naish Park, and the other factors referred to in Nation J’s judgment.[7]
[7]Evans v Clutha District Council, above n 1, at [69]–[71] and [73]–[74].
In these circumstances we do not consider that the Council was required to consult further when deciding whether or not to remove the two trees. The decision was not a significant one for purposes of s 76 and the Council had sufficient information about the options and the likely views for and against the proposal.
We note that Ms Taylor-Cyphers suggested that there may also be a general duty to consult at common law. At least she appeared to suggest that when she said that fairness required consultation here. We do not consider that such a duty arises in this context. As this Court said, again in Minotaur:[8]
Because the clear intention of Part 6 is to give councils a wide discretion in this field, it will always be difficult to establish a concurrent common law duty to consult except in truly exceptional cases such as Pascoe.
[8]Minotaur, above n 5, at [48], referring to Pascoe Properties Ltd v Nelson City Council [2012] NZRMA 232 (HC).
This is not a “truly exceptional case”.
We therefore reject this ground of appeal.
Section 42 of the Reserves Act 1977
Mr Paine argues that the Council was in breach of s 42 of the Reserves Act, which relevantly provides as follows:
(2)The trees or bush on any recreation reserve … shall not be cut or destroyed … unless the administering body of the reserve is satisfied that the cutting or destruction is necessary for the proper management or maintenance of the reserve, or for the management or preservation of other trees or bush, or in the interests of the safety of persons on or near the reserve or of the safety of property adjoining the reserve, or that the cutting is necessary to harvest trees planted for revenue producing purposes.
(3)Where in the case of any recreation reserve … the administering body is satisfied that the cutting or destruction of trees or bush is necessary for any of the reasons mentioned in subsection (2), the administering body shall not proceed with the cutting or destruction and extraction except in a manner which will have a minimal impact on the reserve and until, as circumstances warrant, provision is made for replacement, planting, or restoration; and the administering body shall not proceed to authorise the cutting or destruction, except subject to conditions as to the method of cutting or destruction and extraction which will have minimal impact on the reserve and, as circumstances warrant, replacement, planting, or restoration; and any other conditions which the administering body considers to be appropriate in the circumstances.
The Christie Street playground is a classified reserve. It is accepted that the Reserves Act and therefore s 42 does apply to the decision to remove trees.
Mr Paine submits that cutting down the trees is not necessary on any of the bases set out under s 42(2).
While the Council did not use the word “necessary” we are satisfied that they decided in effect that destruction of the trees was necessary for the proper management and maintenance of the reserve for essentially the same reasons noted at [22] above. Their primary reason was recorded in the minutes — that the trees were inappropriate for the location and should be replaced with plantings that will not grow too large and are in keeping with the structure of other plantings in the reserve. These are “proper management and maintenance” considerations.
We add that the Council’s decision was reasonably available to it as we held at [21]–[22] above. More specifically, as administrator of the reserve the Council is entitled to take a long-term view of the needs of the reserve and the actual and potential effects of the trees on neighbouring properties. The trees are large and will become much larger, and the reserve is very small. The Council had already faced ongoing management issues with these trees for some years, which the evidence indicated were only going to increase.
We should also add, as Nation J did, that there are further considerations in terms of s 42(3) with regard to these trees before they can be removed, including as circumstances warrant replacement, planting or restoration of the reserve. The decision to remove is not the end of the matter.
Conclusion
None of the grounds of appeal is sustained.
The appeal is dismissed.
The respondent is entitled to costs for a standard appeal on a band A basis and usual disbursements.
Solicitors:
O’Malley & Co Ltd, Balclutha for Appellant
Sumpter Moore, Balclutha for Respondent
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