Not so fast. Case law earlier this year shows the changes to the legislation may not work quite how many people expected them to.
“Specifically Identified” – What does it mean? The Environment Court’s Interpretation
The case considered specific provisions of the district plans for both North Shore City and Waitakere City that protected trees. For example the court looked at a rule giving protection to any native tree that was more than 6 metres in height or 600mm in girth and at another protecting exotic trees of 8 metres height and 800mm in girth.
In October 2009 changes were made to the Resource Management Act they made it clear that a rule in a district plan must not prohibit felling any tree or group of trees unless that tree or group of trees is specifically identified in the plan. The changes to the legislation dealt with other issues too and only relates to urban living.
Council sought clarity on the meaning of the legislative change and went to the Environment Court for a declaration. They wanted to know what it meant to refer to a “tree or group of trees specifically identified in a plan” and to understand which of the existing rules fell within the ambit of the legislative changes.
The court decided that the reference to a “group of trees” could be a reference to a number of trees which are physically close to each other. But it could also be a reference to trees which share some common characteristics. When you think about a group of trees in this sense it would be possible to identify a tree according to its genus and species or maybe its height and girth.
The court said that the language used in legislation may include trees of named species in a defined area, trees in a class of defined characteristics or trees in a named ecosystem or habitat.
As a result it was decided that a rule that controls trimming or felling of “exotic trees over x metres high” in a defined zone may well be legitimate. The judge reasoned that if Parliament had intended to restrict things further, the law would have referred to trees that had been identified in a plan by botanical name and precise location.
So take care if you are thinking of doing some significant gardening in the Christmas holidays. Despite the views of a great many citizens, the law change will definitely not mean you are automatically free to cut down trees in your own garden. Many of the rules relating to the felling of trees will continue to apply.