Evans v Clutha District Council

[2018] NZHC 3355

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2018-409-000598

[2018] NZHC 3355

BETWEEN

MAXINE MAY EVANS

Plaintiff

AND

CLUTHA DISTRICT COUNCIL

Defendant

Hearing:	20 November 2018
Appearances:	G A Paine for the Applicant D R Tobin for the Respondent
Judgment:	17 December 2018

JUDGMENT OF NATION J

[1]    This judgment is about an oak tree and a sequoia. Warren Buffet said, “someone is sitting in the shade today because someone planted a tree a long time ago”. I would add that someone can sit in the shade because no one cut down that tree.

[2]    To some people, a tree is a symbol of the changing seasons, an enhancement to the natural environment. To others, that tree might be a nuisance, even a potential danger.

[3]    It might be thought that I must decide what view should prevail. However, that is not the issue. In these judicial review proceedings, I must decide whether a duly elected authority, the Clutha District Council, lawfully exercised powers given to it by legislation in deciding to cut down the oak and the sequoia.

EVANS v CLUTHA DISTRICT COUNCIL [2018] NZHC 3355 [17 December 2018]

Background

[4]    In the 1950s, the sequoia and oak were planted near the perimeter of the Christie Street Reserve in Balclutha. The Reserve is about 1,619 square metres, roughly the size of two residential sections of the sort that now surround it on three sides. About the time the trees were planted, a house was built on 15 Christie Street, which adjoins the Christie Street Reserve. No doubt, at that time, the oak and the sequoia were little trees, perhaps just saplings.

[5]    In 2004, Mr and Mrs Ross purchased the house at 15 Christie Street. By then, the trees must have been taller but not as large as they are now.

[6]    In 2013, Mr and Mrs Ross complained to the Council about the trees. At a meeting of the Council on 27 February 2014, the Council resolved “that the trees be pruned and that a root curtain be installed to avoid the root interference to the neighbouring property”. An arborist, Mr Glenn of Asplundh, advised the Council he had inspected the trees and there was “a minor amount of pruning” that could be done. This was as to the oak which he then described as “quite vigorous and is growing out toward the boundary”. A photograph produced with his report showed the branches of the oak extending to and probably over the fence between the Reserve and the Ross property. Mr Glenn recommended reducing the laterals growing towards the neighbour and thinning and pruning the remainder of the crown by 20 per cent to encourage growth away from the boundary. He also recommended the installation of a root curtain to ensure there was no interference with the neighbouring property.

[7]    In a letter of 22 January 2018, Mr and Mrs Ross wrote to the Council referring to their earlier mention “on many occasions” to the Council of their concern regarding the trees. They referred to reports of a tree in the North Island falling and killing someone in extreme weather conditions and someone having been killed by a falling tree in the Queenstown Lakes area. They referred to there being dead pieces in the sequoia, the oak tree getting bigger and bigger, there having been black discharges from the oak tree onto the roof of their property.

[8]    A community facilities supervisor reported to the Council that “the two large trees are especially concerning to the neighbouring property in extreme weather

conditions when they feel that their safety is at risk”. The supervisor said the trees had been monitored and regularly assessed for changes since 2014 and an arborist from Asplundh had reported on the trees in March 2018:

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.

[9]    The Council was advised that work was programmed to place mulch around the base of the tree. I also infer from the report that work was programmed to deal by way of removal with a “small amount of limb die-back”. Work was also programmed to trim the oak back from the property line and to remove lower limbs to stop children swinging on them. The report gave the Council three options:

(i)Do nothing. The trees remain and are monitored closely. Work outlined in the arborist’s report to be completed.

(ii)Fell the redwood and retain the oak, and prune as recommended.

(iii)Fell both trees and look to replant appropriate trees in this location given the likely future use.

[10]   Photographs accompanying the report showed the sequoia many times the height of the neighbouring house with a lean towards it, and the oak several times the size of the house with branches extending over the boundary to the house. The photographs must have been taken in summer. The oak was in full leaf.

[11]   Also attached to the report was the Clutha District Council policy for “Trees in Road Reserve & Amenity Trees” dated 16 September 2010. The community facilities supervisor said “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”.

[12]   There was also correspondence between Council staff and the arborist. In that correspondence, the arborist was told the neighbours were concerned as to the safety of the two trees in windy conditions and of the concern of leaf fall from the sequoia.

The arborist was asked to comment on these concerns and specifically was asked to comment on whether the neighbouring properties were safe. He responded “sequoia trees have a robust root system” and he responded with the advice which was given to the Council, as referred to earlier.

[13]   In an affidavit, the Mayor, Mr Cadogan, said that, after becoming aware that the Ross’ were asking for the trees to be removed, he went to have a look at them. He considered the sequoia was much bigger than he had remembered back in 2014 and on a greater lean towards the Ross property than it was in 2014. He referred to another councillor turning up to look at the trees on one occasion when he was there.

[14]   Another councillor, Mr Cochrane, said he was Chair of the service delivery committee. He had been a councillor for 17 years. He said it was not normal practice for the Council to make decisions about trees on parks and reserves. He said decisions were usually made by Council staff, but the matter was put before the Council in 2018 because of the Council’s earlier rejection of the Ross request from 2014. Mr Cochrane went to look at the trees before the services delivery committee met to consider the Ross request.

[15]   The report and the agenda for the 2 May meeting were circulated to members of Council electronically about 26 April 2018. A few days later, the agenda for the meeting would have been put on the public website and hard copies put up at libraries and service centres for the Council.

[16]   It appears the meeting of the services delivery committee was in fact a meeting of 14 Councillors and the Mayor. It was chaired by Mr Cochrane.

[17]   The record indicates that the only members of the public to speak on the issue at the meeting were Mr and Mrs Ross who did so after being invited to attend the meeting. In his affidavit, Mr Cochrane referred to what he thought “was a heartfelt presentation” from Mrs Ross, her talk of the mess caused to their property from the trees from leaves and needles, and of her anxiety when the wind got up that the tree would come down on their house. Mrs Ross filed an affidavit in these proceedings

referring to the concerns she had conveyed to the Council at the meeting. The account she gave in her affidavit was consistent with Mr Cochrane’s recollection.

[18]The minutes of the meeting record:

Moved Councillors Finch/Jenkinson and Resolved:

“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.

Moved Councillor Finch/Mayor Cadogan and Resolved:

“That the Service Delivery Committee recommends that the sequoia tree be removed, the oak tree be retained and pruned as required.”

After further discussion an amendment was made:

Moved Councillors Ludemann/Kennedy and Resolved:

“That the Service Delivery Committee recommends that both trees be removed from the Christie Street playground.”

The amendment was then voted on. Voting was by show of hands:

For 8

Against 6

The amendment was carried and became a substantive motion which was voted on.

The motion was passed.

The Group Manager Service Delivery reiterated that no work would be carried out until after 1 July 2018.

[19]   On 10 May 2018, Ms Evans read in the Clutha Leader that the two trees were about to be felled. Ms Evans values big trees and not just when they are somewhere else. There is a very large sequoia on the boundary of her property. In an affidavit filed in these proceedings, she said she had no issues with the sequoia near her property and no concerns over safety.

[20]   On 15 May 2018, Mr Barron had emailed the manager – parks and reserves of the Council asking for a review of the decision to remove the trees. The Mayor

responded in a letter of 12 June 2018 stating that the Council had taken all the matters Mr Barron had mentioned into consideration in coming to its conclusion to fell the trees. There was obviously going to be no change to the Council’s decision.

[21]   Ms Evans expressed her disappointment at the Council’s decision in a letter she wrote to the newspaper. The Mayor’s response with a brief explanation as to why he had supported the Council’s decision was published with the letter. Ms Evans, it seems, found support for her wish to see the trees remain. In early August, a number of people emailed or wrote to Ms Evans expressing support for her wish to see the trees retained.

[22]   On 16 August 2018, Ms Evans filed an application for an interim injunction restraining the Council from felling the trees. The plaintiff filed a statement of claim on the same day. It did not expressly refer to the Judicial Review Procedure Act 2016.

[23]   The without notice application was declined because no undertaking as to damages had been filed. There was then a telephone conference convened by Gendall J in the High Court on 20 August 2018 with counsel for both Ms Evans and the Council. It was agreed an interim injunction could remain in place. Mr Tobin, for the Council, recorded the Council’s position that this was a judicial review claim, that such a claim was wrongly brought but it nevertheless agreed to an order for the injunction to be made on an interim basis “until final disposition of the substantive claim”. Gendall J made orders which allowed for Mr and Mrs Ross to become parties to the proceedings if they wished. They have not taken formal steps in that regard. The proceedings were to be set down for “a substantive hearing at the first available date after 15 November 2018”. They were subsequently allocated a hearing on 19 November 2018.

The legal and evidential context

[24]   The High Court is not entitled to interfere with the way the members of a local authority exercises powers given to it by statute, simply on the basis the Court considers a decision made by the local authority was wrong or should have been different.

[25]   Challenges to a local authority’s decision can be made by way of judicial review under the Judicial Review Procedure Act 2016. Ms Evans’ claim and Mr Paine’s submissions and challenge to the Council’s decision were not made with any express reference to the Judicial Review Procedure Act or the grounds on which relief under that Act might be available. Nevertheless, the application for an injunction has to be considered as if it was an application for judicial review.

[26]   The Council expressly opposed the application on that basis and, in its statement of defence filed on 31 August 2018, referred to the proceedings as involving an application for judicial review. In making oral submissions before me, Mr Paine, for the plaintiff, accepted this was the nature of the substantive proceedings which it had been agreed would be set down for hearing.

[27]   With reference to the grounds on which relief might be available through judicial review, the original application for an injunction and statement of claim raised issues as to whether:

(i)          the Council breached the requirements of natural justice or failed to follow a lawfully required process in not pursuing public consultation with the ratepayers of Balclutha as to the decision it had to make; and

(ii)        there was no reasonable basis for the Council’s decision because the reports made available to the Council from its own specialists indicated there were no safety concerns with respect to the said trees.

[28]   Consistent with those grounds, Ms Evans referred to the lack of consultation in an affidavit supporting the application for interim injunction sworn on 16 August 2018. Ms Evans also expressed views in her affidavit consistent with a complaint that the Council had no valid safety reasons for deciding to fell the trees.

[29]   Annexed to Ms Evans’ affidavit were the letters of support she had received from other residents. In those letters, the writers indicated how they valued the trees, saw them as enhancing the environment and saw no justification for their removal.

[30]   Those views have subsequently been reflected in seven affidavits sworn by other ratepayers. Those people expressed a wish for the trees to remain and a view that they were not a risk to safety. Also filed in support of Ms Evans’ application was an affidavit from Peter Waymouth, a consulting arborist from Dunedin. He applied a recognised risk assessment methodology for both trees. It was his opinion that:

… the Oak & Sequoia tree in question present a low risk to people & property in the vicinity of Christie St. Park at Balclutha. … Furthermore, with careful attention to best arboricultural practice they will continue to be an asset to the local community for many years.

[31]   His report referred to the oak as being about 45 years old and about 14.5 metres high. He considered the sequoia was of a similar age and about 20 metres high.

[32]   There was also an affidavit from Mark Roberts, an arboriculture consultant who provides advice to the Dunedin City Council and the Dunedin Botanic Gardens. He also applied an accepted tree risk assessment methodology. In his summary, he concluded:

(i)both trees were in good health with vigour and vitality within the normal range for the species and age;

(ii)he saw nothing to suggest or indicate that the trees were unstable;

(iii)he saw nothing to suggest or indicate that large branches or limbs were likely to fail in the immediate future.

[33]He concluded his report by stating:

This tree condition assessment has only considered known targets and visible or detectable tree conditions at the time of the inspection. Ongoing arboricultural inspections should take place annually and after extreme weather events to monitor health and condition. These inspections will form the bases of a tree management programme to ensure ongoing safety and maintain the vitality of the tree.

[34]   In opposition, affidavits were filed for the Council by the Mayor, Mr Cadogan and by the Chairman of the service delivery committee, Mr Cochrane. Those affidavits largely covered the background to the Council’s meeting and what happened at the meeting as apparent from the minutes already referred to. The Mayor said he

was initially one of the Councillors who thought the oak should stay but the sequoia should go, but ultimately was in agreement that both trees should be removed. As to consultation, he referred to the way trees on parks and reserves were covered by the district scheme and the fact these trees were not listed as significant in the scheme issued in 1998. He referred to the consultation that had taken place more recently over the Balclutha Reserve Management Plan. It was the subject of a public notice on which consultation was initiated on 20 October 2016, with a hearing on 23 March 2017 and adoption on 21 September 2017. No one had asked for protection of any trees in Balclutha.

[35]   In his affidavit, Mr Cochrane referred to some of the background and what happened at the meeting, as already set out. He said the amended motion was carried without dissent.

[36]   Also filed for the Council was an affidavit from Mrs Lisa Ross. Again, she largely reiterated the background already referred to and the concerns she had conveyed to the Councillors at the meeting. Consistent with the anxiety which these trees cause her and in response to affidavits supporting Ms Evans position, she said:

I think it is easy for some people to say that we should not worry about the trees, however I think that it is much easier to say when you cannot hear the trees creaking at night when the wind gets up a bit.

[37]   Ms Evans filed an affidavit in reply. In that affidavit, she responded to the concerns reiterated by Mrs Ross and provided further explanation for her position. She suggested there should have been protection for these trees in the Council’s Reserves Management Plan.

Was there a reasonable basis for the Council’s decision?

[38]   Applications for judicial review usually proceed on the basis of the relevant evidence available to the decision-maker at the time of the decision.1 As the authors of McGechan note:2

1      AL v Immigration and Protection Tribunal [2014] NZHC 1810, [2014] NZAR 1079.

2      McGechan on Procedure (online loose-leaf ed, Thomson Reuters) at [JR14.06].

Because judicial review proceedings do not involve a review of the merits of a decision, care needs to be taken about expert evidence going to the merits, leading to evidence in reply and resulting in substantive evidence on factual issues with which the Court cannot involve itself.

[39]   Those comments are particularly pertinent in this case. Whether or not Ms Evans is entitled to the injunction she seeks as to the Council’s decision must be determined on the basis of the information which the Council had when it reached its decision, not the further information that has been made available to this Court through the opinions expressed by the various ratepayers, or the experts, Mr Waymouth and Mr Roberts.

[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.

[41]   In these proceedings, it is not for this Court to examine the substantive merits of the decision that was made by the Council. Rather, it is the Court’s role to examine the decision-making process. This is not a case where it can be said the Council failed to have regard to a relevant consideration or took into account an irrelevant consideration.

[42]It cannot be said there was no reasonable basis for the Council’s decision.

The alleged failure to consult

[43]   In submissions, Mr Paine argued the Council was required to consult having regard to the Council’s policy for “Trees in Road Reserves and Amenity Trees”. He argued that, in terms of that policy, these were amenity trees.

[44]   The policy also set out the procedure which would have to be followed where someone wanted a road reserve tree or an urban amenity tree to be removed or pruned. The procedure required the person requesting that work to provide evidence as to how neighbours and others affected had been consulted and required reports to be submitted from an arborist. The policy also required those requesting work to be done to meet the costs of the work involved.

[45]   The policy had a number of specific provisions dealing with “trees in the urban road reserve” including the requirements for a tree to be considered a danger to the public or deemed to be affecting a building.

[46]In the policy, the definition for urban amenity trees is as follows:

Urban amenity trees – for the purpose of this policy are trees that are planted by Council or a Community Group and form part of the urban streetscape.

[47]   I accept the submission of Mr Tobin for the Council that this policy does not apply to amenity trees that are planted on a Council reserve that is not a road reserve and not “part of the urban streetscape”.

[48]   Mr Cochrane said it was his view (and he believed his view was shared by the balance of the Council at its meeting on 3 May 2018) that the policy did not apply as the trees were on a park not a road reserve or part of the streetscape. He was on the Council and the relevant committee when the policy was formulated and adopted.

[49]   I interpret the policy as I do based not on the councillor’s belief but on the wording of the policy itself.

[50]   There is nothing about the context in which the definition appears to suggest that the meaning of “streetscape” would be otherwise than its ordinary meaning. I am also satisfied that its ordinary meaning is as referred to in the English Oxford Dictionary “A view or prospect provided by a city street or streets”.3 This is consistent with the definition in the Merriam-Webster Dictionary:4

3      “Streetscape” (December 2018) OED Online (December 2018) Merriam-Webster

1.the appearance or view of a street

2.a work of art depicting a view of a street.

[51]   As is apparent from the Google photograph of the area provided to the Council in her community facility supervisor’s report, the oak and the sequoia were away from the street boundary of the Christie Street Playground, with an area of largely open space between the trees and Christie Street.

[52]   The Council also submitted these trees were not covered by the policy referred to because there was no evidence they had been planted by Council or a community group. In her evidence, Ms Evans submitted that the trees were planted at some time in or around the 1950s. The evidence from the arborists was that the trees were about 45 years old. On either basis, this was before the Clutha District Council came into existence in 1989. Despite this, given the purpose of the policy for the Council, I would have held that the definition of urban amenity trees would apply to trees planted by a predecessor Council. In the circumstances of this case, I would also have been willing to find that the trees must have been planted by such a predecessor Council or a community group because of the way the Council has taken responsibility for these trees in the intervening years. My conclusions in this regard do not however assist Ms Evans. For the trees to be covered by the policy, they still had to form part of the urban streetscape. They do not.

[53]   Although Mr Paine did not, in his submissions, require the Court to consider the issue, Mr Tobin addressed the issue of whether or not the Council was under a general duty to consult pursuant to obligations under the Local Government Act 2002 (the LGA).

[54]   The Court of Appeal, in Wellington City Council v Minotaur Custodians, considered the provisions of pt 6 of the LGA, particularly s 78 which deals with community views in relation to decisions.5 Section 78 provides:

< City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZLR 464.

78  Community views in relation to decisions

(1)A local authority must, in the course of its decision-making process in relation to a matter, give consideration to the views and preferences of persons likely to be affected by, or to have an interest in, the matter.

(2)[Repealed]

(3)A local authority is not required by this section alone to undertake any consultation process or procedure.

(4)This section is subject to section 79.

[55]Section 79 provides:

79  Compliance with procedures in relation to decisions

(1)It is the responsibility of a local authority to make, in its discretion, judgments—

(a)   about how to achieve compliance with sections 77 and 78 that is largely in proportion to the significance of the matters affected by the decision as determined in accordance with the policy under section 76AA; and

(b)   about, in particular,—

(i)the extent to which different options are to be identified and assessed; and

(ii)the degree to which benefits and costs are to be quantified; and

(iii)the extent and detail of the information to be considered; and

(iv)the extent and nature of any written record to be kept of the manner in which it has complied with those sections.

(2)In making judgments under subsection (1), a local authority must have regard to the significance of all relevant matters and, in addition, to—

(a)   the principles set out in section 14; and

(b)   the extent of the local authority’s resources; and

(c)   the extent to which the nature of a decision, or the circumstances in which a decision is taken, allow the local authority scope and opportunity to consider a range of options or the views and preferences of other persons.

(3)The nature and circumstances of a decision referred to in subsection (2)(c) include the extent to which the requirements for such decision- making are prescribed in or under any other enactment (for example, the Resource Management Act 1991).

(4)Subsection (3) is for the avoidance of doubt.

[56]In Minotaur, the Court considered the obligations under s 78 and found that:6

… subs (3) makes it clear that s 78 does not itself generate an obligation to consult or indeed to adopt any particular consultation process or procedure. Rather, consultation is one of a number of options for obtaining information about the views and preferences of those affected or with an interest. Subsection (4) restates that the section is subject to the wide implementation discretion in s 79.

[57]The Court of Appeal further held that:7

In summary, pt 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 provision.

[58]The Court in Minotaur also found that:8

Because the clear intention of pt 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.

[59]   In Minotaur, the Wellington City Council had decided to change the eligibility criteria for residents parking permits in the vicinity of Minotaur’s apartment complex. It took various steps to consult with potentially interested parties before implementing the change but not with landlords such as Minotaur which owned apartments potentially affected. The Court of Appeal held that the real issue in that case was whether the Council’s decisions as to who it would consult were rational and consistent with the objects of the LGA. The Court of Appeal held that a valid reason for different treatment could be inferred on the evidence.

[60]The Court of Appeal In Minotaur approved a statement of Baragwanath J in

Whakatane District Council v Bay of Plenty Regional Council, where he said:9

6      Wellington City Council v Minotaur Custodians Ltd, above n 5, at [36].

7      At [42]

8      At [48], citing Pascoe Properties Ltd v Nelson City Council [2012] NZRMA 232 (HC).

9      Wellington City Council v Minotaur Custodians Ltd, above n 5, citing Whakatane District Council v Bay of Plenty Regional Council [2010] NZCA 346, [2010] 3 NZLR 826 at [76].

By s 79 it is for the local authority to make the discretionary judgment about how to achieve compliance with ss 77-78. A court will not interfere with a discretionary judgment unless it is irrational or made on a wrong legal principle. If not, it is enough to validate such a judgment that there is some evidentiary basis for it.

[61]   Here, the complaint is not over how the Council chose to consult. The complaint is that it chose not to consult.

[62]   The Court of Appeal in Minotaur noted that subs (3) makes it clear that s 78 does not itself generate an obligation to consult or indeed to adopt any particular consultation process or procedure. Rather, consultation is one of a number of options for obtaining information about the views and preferences of those affected or with an interest.

[63]   Here, for the applicant to obtain the relief she seeks, she would have to show that the Council’s decision not to consult was not rational or consistent with the objects of the LGA.

[64]   Through s 79, Parliament recognised that, in deciding whether and how it might consult over a particular issue, a local authority can make judgments as to the significance of the matters affected by the decision and, in doing so, must have regard to all relevant matters and the matters referred in ss 79(2)(a), (b) and (c).

[65]   Section 79(2)(a) required the Council to have regard to the principles set out in s 14. Section 14 relevantly states:

14 Principles relating to local authorities

(1)In performing its role, a local authority must act in accordance with the following principles:

(a)   a local authority should—

(i)conduct its business in an open, transparent, and democratically accountable manner; and

(ii)give effect to its identified priorities and desired outcomes in an efficient and effective manner:

(b)   a local authority should make itself aware of, and should have regard to, the views of all of its communities.

…

[66]   Section 79(2)(a) required the Council to have regard to the extent of its resources. Section 79(2)(c) required it to have regard to the extent to which the nature of a decision, or the circumstances in which a decision is taken, allows the Council scope and opportunity to consider a range of options or the views and preferences of other persons.

[67]   The Council could well have considered they did not need to consult further to know that many in the community would value these trees because of the way trees can enhance the environment. They may rationally have considered such further consultation was not necessary because those views, as to the value of trees, were held by a number of the elected councillors and were recognised by the Council in its own policies.

[68]   The Council’s policy on trees and road reserve and amenity trees already referred to was predicated on the basis that trees have an “amenity value” defined in the policy as meaning natural and physical qualities and characteristics that can “contribute to people’s appreciation of the tree or the area in which that tree is situation”.

[69]   The Council had previously demonstrated the value they place on trees in their adopting a tree strategy for the destination park, Naish Park, which was “plant new trees now to ensure establishment of new trees before mature species reach the end of life” and the identified opportunity for riverside reserve for “tree planting throughout the reserve to provide shelter, [and] areas of retreat for users”.

[70]   The Council had also previously recognised the value of these trees and the desirability of retaining them through deciding in 2014 to reject the Ross’ request for their removal at that time.

[71]   A number of the councillors demonstrated the way they valued trees in initially supporting a motion that would have allowed the oak to remain with only the sequoia being removed.

[72]   Rationally, the Council could have considered that the decision it had to make did not require it to determine whether these trees were valued by the community. What it had to decide was whether the value of the trees from an amenity point of view to wider members of the community should be given preference over the particular concerns conveyed to the Council by the neighbours who wanted the trees removed. That required a judgment call on the part of the Council as the elected body with responsibility to make that determination under the LGA.

[73]   The Council could also have rationally decided that the issue over retention/removal of the trees was not so significant as to require further directed consultation because of the opportunity there had been for community input over the Balclutha Reserves Management Plan. In that plan, the Christie Street Park/Reserve is described as a pocket park. Pocket parks are distinguished from destination parks which are “places which the public consider to be an important area of open space and which act as a focal point to the community”.

[74]   Pocket parks are described as “small reserve areas that are accessible to the public and contain a variety of facilities and opportunities to service neighbourhoods”. The Plan referred to there being playground equipment on it, the rest of the site being grassed “with large deciduous trees on the perimeters”. The plan identified the opportunity to provide new planting areas in the next three to five years.

[75]   To the councillors, it may also have been relevant that, with the consultation that occurred over the draft Reserves Management Plan, no members of the community had identified these particular trees, or indeed any trees, within the Balclutha District as requiring special protection.

[76]   As this case demonstrates, for understandable and logically valid reasons, members of a community can attach a high value to established trees and the way they enhance the environment. A council, being the elected representatives from the community, has to be conscious of and sensitive to such views with the decisions it has to make. Here, the Council decided to make a decision about the removal of the trees without specifically consulting the community but Parliament, through the LGA, gave it the right to make its own decision as to whether such consultation was

necessary. There was a rational basis for the decision which the Council made in this regard. It cannot be said that its failure to consult gave rise to a breach of natural justice, was in breach of any legal requirement to consult or rendered its decision to remove the trees so unreasonable as to require the Court to intervene in a way that might be permitted under the Judicial Review Application Act.

The implications of the Reserves Act 1997

[77] Although it had not been referred to in the statement of claim or the application for an injunction, Mr Paine also submitted the Christie Street Reserve was a recreational reserve under the Reserves Act 1997. He argued the Council was required to manage the reserve for purposes set out in the Act. He submitted the removal of the trees did not accord with those purposes and was prohibited by s 42 of the Reserves Act.

[78]   Mr Tobin, for the Council, accepted that the Christie Street Playground was a reserve owned and administered by the District Council, classified as a recreational reserve under the Reserves Act 1977.

[79]Mr Paine referred to the purpose of the Reserves Act, set out in s 3, as being:

(1)(a) … for the preservation and management for the benefit and enjoyment of the public, areas of New Zealand possessing—

…

(iv)    environmental and landscape amenity or interest; or

(v)   natural, scenic, historic, cultural, archaeological, biological, geological, scientific, educational, community, or other special features or value.

[80]   He also referred to s 17(1), which declares, amongst other things, that the appropriate provisions of the Act have effect, in relation to reserves classified as recreation reserves, for the purpose:

... of providing areas for the recreation and sporting activities and the physical welfare and enjoyment of the public,

And also:

for the protection of the natural environment and beauty of the countryside, with emphasis on the retention of open spaces and on outdoor recreational activities, including recreational tracks in the countryside.

[81]   Also relevantly, s 17(2) on the administration of recreation reserves specifies relevant principles, including as to the public's rights of entry and access (subject to certain exceptions, including as to the administrative body's powers of protection and control);10 the preservation of indigenous flora and fauna;11 and the conservation of the reserve's qualities that contribute to its pleasantness, harmony, and cohesion of the natural environment and the better use and enjoyment of the reserve.12

[82] Mr Paine also referred to s 42 which sets out the general powers of an administering body:

(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.

[83]   I do not accept that, pursuant to s 3(1), the Council had an obligation in its management of the reserve to preserve and manage for the benefit and enjoyment of the public and to make decisions for the purposes set out in ss 3(1)(a)(iv) or (v). Section 3(1) declares that, subject to the control of the Minister, the Act will be administered by the Department of Conservation for the purposes set out in ss 3(1)(a),

10     S 17(2)(a).

11     S 17(2)(b).

12     S 17(2)(c).

(b) and (c). In accordance with the Act, responsibility for the management of the Christie Street Playground Reserve lay with the local authority, the Clutha District Council. The decision as to the removal of the trees was not a decision as to the administration of the Reserves Act in the Department of Conservation.

[84]   Ms Evans has not established that the decision of the Council, that the two trees be removed, was incompatible with the Council’s obligation to manage the reserve:

… for the recreation and sporting activities and the physical welfare and enjoyment of the public, and for the protection of the natural environment and beauty of the countryside, with emphasis on the retention of open spaces and on outdoor recreation activities, including recreational tracks in the countryside.

[85]   As set out in the Council’s Reserves Management District Plan, the Christie Street Playground is a pocket park, primarily providing a small area of open space and a playground for people in the immediate neighbourhood. It is not part of “the natural environment and beauty of the countryside”. It is to be administered “for the purpose of providing areas for the recreation and sporting activities and the physical welfare and enjoyment of the public”. Those words refer to the way the area is to be used rather than the way, through certain trees on the playground, it enhances the Balclutha environment generally.

[86]   Section 17(2)(b) required certain features present on a reserve to be managed and protected to the extent compatible with the principle or primary purpose of the reserve. The features referred to include “indigenous flora” but would not extend to the oak and sequoia which are exotic trees.

[87]   It has also not been established that the trees needed to be retained to protect “conservation of those qualities of the reserve which contribute to the pleasantness, harmony and cohesion of the natural environment and to the better use and enjoyment of the reserve” as referred to in s 17(2)(c).

[88]   The oak and the sequoia are individually impressive trees and can be appreciated as such but there was no evidence before the Council that they contribute to “the pleasantness, harmony and cohesion of the natural environment and to the better use and enjoyment of the reserve”. The inference to be drawn from the report

of the community facilities supervisor and the views of councillors, as recorded in the minutes, is that the trees may well not contribute to the pleasantness, harmony and cohesion of the natural environment or the better use and enjoyment of the reserve. The report to the Council recommended that “that there be planted to the south of the reserve some small trees, possibly Acer Palmatum – Japanese Maple, which will not grow too large and are deciduous and will keep within the structure of plantings in the reserve”. One of the options put before the Council for it to consider was to “fell both trees and look to replant appropriate trees in this location given the likely future use”. The inference I draw from this information is that the trees are now of a size which is not considered appropriate for the reserve and do not need to be conserved for “the better use and enjoyment of the reserve”.

[89] It has also not been established that the decision to cut down the trees would be in breach of s 42. The Council had information before it on which it could properly decide, as it did, that it was unnecessary to remove the trees for the proper management of the reserve, given the Council’s responsibility to administer the reserve as a good neighbour and in the interests of the safety of persons on or near the reserve and the safety of a property adjoining the reserve.

[90] I note however that what has been challenged in these proceedings is the decision of the Council to allow the cutting down of the trees. When that decision is implemented, Council staff will have to meet their obligations under s 42(3). The Council have to arrange for the trees to be removed in a manner which will have a minimal impact on the reserve and not until, as circumstances warrant, provision is made for replacement and planting, as circumstances warrant. It was anticipated with the report to the Council that, if the trees were felled, appropriate replacement trees would be planted.

[91]   Applied strictly, the Council could not authorise the destruction of these trees until provision was made for replacement, planting and restoration. The Council no doubt reasonably assumed that Council staff will ensure the trees would be removed in a manner which would have a minimal impact on the reserve, and the area where they stood would be appropriately restored. They no doubt anticipated there would be

replacement planting as they had been advised would be appropriate. Their decision to cut down the trees was not expressly on condition that all this would happen.

[92]   The Council staff are likely to implement the Council’s decision in a manner that accords with the Council’s obligations under the Reserves Act and the recommendations made to the Council as to replacement planting. An injunction has been sought because of Ms Evans objection to the trees being felled, not because of the way that might be carried out or the lack of any plan to establish replacement planting. In the exercise of my discretion, it would not be appropriate to issue an interim injunction restraining the Council from removing the trees until such a plan is in place.

[93]   There has been no breach of the Council’s obligations under the Reserves Act which requires me to grant the injunction which Ms Evans and her supporters seek.

Conclusion

[94]   The claim by Ms Evans for an injunction to prevent the trees being felled must fail. Her claim for relief under the Judicial Review Procedure Act is declined.

[95]   As the Council has been successful in these proceedings, it would normally be entitled to costs. If costs issues cannot be resolved by agreement, a memorandum for the Council is to be filed by 31 January 2019. Any reply for Ms Evans is to be filed by 15 February 2019. The memoranda are to be no longer than four pages. If necessary, I will deal with costs on the papers without a hearing.

Solicitors:

G A Paine, Barrister, Dunedin D R Tobin, Barrister, Dunedin.