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Tree Protection in Christchurch : the Legal Aspects

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Tree Protection in Christchurch : the Legal Aspects Lincoln University Digital Dissertation Copyright Statement The digital copy of this dissertation is protected by the Copyright Act 1994 (New Zealand). This dissertation may be consulted by you, provided you comply with the provisions of the Act and the following conditions of use: you will use the copy only for the purposes of research or private study you will recognise the author's right to be identified as the author of the dissertation and due acknowledgement will be made to the author where appropriate you will obtain the author's permission before publishing any material from the dissertation. TREE PROTECTION INC HRISTC H URCH: THE LEGAL ASPECTS A MAJOR DESIGN STUDY submitted in partial fulfilment of the requirements for The Diploma of Landscape Arc~itecture at Lincoln College University of Canterbury. R.T. WATSON LI.S 1982 Contents 2.33 Riccarton Borough Council. 2.34 Heathcote County Council. 2.35 Paparua County Council. 2.4 EFF~CTIVENESS OF TH~ SCHEMES 3.0 HISTORICAL BACKGROUND 3.1 THE 1953 TOWN AND COUNTRY PLANNING ACT. 1.0 INTI-{ODUCTION 3.2 CHRISTCHURCH CITY COUNCIL AND THE 1953 ACT. Tkt;1::. PROTECTION SCHElvlES 2.0 3.3 THE 1977 TOWN ANu COUNTRY PLANNING IN CHRISTCHURCH ACT. 2.1 INTRODUCTION 3.31 The Urban Trees Committee. 2.2 Lt.:GISLATION 3.32 The Symposium on the Future of Trees. 2.21 The Provisions of the Town and Country Planning Act 1977. 3.33 The 1977 Act. 2.22 The Provisions of the Local 3.34 Interpretation of the 1977 Act. Government Act 1974. 4.0 OTHER LEGISLATION 2.3 THE TREl:.: PROTECTION SCH~IVIl::,S 4.1 INTRODUCTION 2.31 Christchurch City Council. 4.2 PROVISIONS fOR THE PROT~CTION OF 2.32 Waimairi District Council. TkEES. 4.21 S42 Reserves Act 1977. 5.21 Introduction. 4.22 S176(2) Land Act 1948. 5.22 Christchurch City Council. 4.23 The Native Plants Act 1934. 5.23 Waimairi District Council. 4.24 S6 Police Offences Act 1927. 5.24 Waitemata City. 4.3 PROVISIONS AUTHORISING THE 5.25 Dunedin City Council. REMOVAL OF TREES. 5.26 Summary. 4.31 S133 Public Works Act 1981. 5.3 OTHER METHODS OF TREE PROTECTION 4.32 S19 Electricity Act 1968 6.0 CONCLUSION 4.4 S129C PROPERTY LAw AMENDMENT ACT 1975. 7.0 APPENDIX 5.0 ALTERNATIVE METHOLS OF TREE 8.0 REFERENCES PROTSCTION 5.1 SUMMARY OF METHODS ADOPTED IN CHRISTCHURCH. 5.2 ALTERNATIVE METHODS OF TREE PROTECTION. 5.1 SUMMARY OF METHODS ADOPTED IN CHRISTCHURCH. 5.2 BLANKET PROTECTION. historic or scientific interest. In 1 Introduction Christchurch they also are largely responsible for the garden city image which is such an essential part of the character of the city and it is important that effective measures are taken to en­ sure their protection. The concept of providing legal pro­ tection for trees in urban areas is a The object of this dissertation is recent one. Early attempts to legislate to discuss the legal aspects of tree for the. protection of trees reflected the protection in Christchurch. This will attitudes of the times. The overriding involve considering the measures taken economic concerns of the pioneers and to protect trees by the 5 Christchurch their attitudes towards the rights of the local authorities - Christchurch City, private land owner prevented any legis­ Waimairi District, Riccarton Borough, lation for the protection of trees in Heathcote County and Paparua County towns being passed. Vested interests saw Councils - and the legislation empower­ tree clearance in terms of prosperity and ing them to do so although other legis­ any legislation restricting the rights of lation and tree protection methods will property owners was strenuously resisted. also be covered. The Plans of Towns Regulations Bill of Trees are an integral part of the 1871 introduced to protect trees in towns urban environment. They enhance build­ was defeated al though a mO,dified version ings, define and link open spaces, pro­ was passed in 1878 p~oviding some protec­ vide shelter and shade, help cleanse tion for trees in towns built on Crown the polluted air and may be of some land. 1 However, there was some awareness of Town and Country Planning Act. This un- the importance of trees to Christchurch - certainty has caused some councils to perhaps hecause of the scarcity of trees default in their duty to make the necess­ on the Plains when the settlers arrived - ary tree protection provisions and others and in 1881 the Public Reserves Act which have proceeded without understanding the prohibited the felling of any timber limits of their jurisdiction. growing on a public reserve was passed. This paper will consider the existing Other regulations were made to protect provisions for tree protection in the trees on public land but until recently Christchurch City, Waimairi, Riccarton, there was nothing preventing the private Heathcote and Paparua areas, the back­ land owner from felling a tree growing ground to these provisions, other legis­ on his property. The Town and Country lation affecting trees in the urban en­ Planning Acts of 1953 and 1977 vironment and alternative methods and {especially} have considerahly altered approaches to tree protection. What this and local authorities now have the emerges is an impression that the existing power to include provisions in their tree protection measures are in practice district schemes to protect those trees successful despite the uncertainty which they consider worthy of protection. surrounds their legal aspects and the But the extent of the authority vested fragmented approach of the 1 islature. in the local councils to make the necessary provisions is somewhat un­ certain. There has been little case law from which the intention of the legislature could be determined and it has been left to the individual councils to decide this from the words of the 2 protected trees is in the Riccarton Borough 2 Tree Protection Council District Scheme. The Paparua County Council has no list of protected Schemes in Christchurch trees but does ensure some protection is given to trees within its boundaries through the exercising of its jurisdiction under the Local Government Act 1974. 2.2 LEGISLATION 2.1 INTRODUCTION 2.21 THE PROVI::lICNS Of THE TOwN AND In Christchurch the City Council, COUNTHY PLANNING ACT 1977. kiccarton Borough Council and Heathcote 53 of the Town and Country ~lanning County Council have made provision in Act 1977 (hereinafter referred to as the Ordinances of their district schemes for the protection of trees. The Town 'the Act') states that among the matters of national importance to be included in and Country Planning Act 1977 gives the the district schemes are liThe conservation, Councils the authority to incorporate in their district schemes such ordinances protection, and enhancement of the physical, lias are necessary and desirable" 536(5) cultural and social environment," and the Town and Country Planning Act to achieve "wise use and management of New Zealand's their objectives. Accordingly, each of resources." these councils has included tree protec­ 536(1) of the Act is more particular tion ordinances and related policy state­ and requires the district scheme to make ments to varying degrees. The most com­ provision for such matters' referred to in plex is that of the Christchurch City the second schedule of the Act "as are Council and the simplest Waimairi County appropriate to the circumstances or as are Council. The most extensive list of necessary to promote the purposes and 3 objectives of district planning" set out historic interest and wildlife habitat in 54 of the Act (see Appendix A) which (see Appendix A) and replaces S351C of the for our purposes is concerned with the Municipal Corporations Act 1954. It control of the development of the dis­ authorises the Council to make its con­ trict so dS to most effectively promote sent to a subdivision plan conditional on its amenities. The second schedule of provision being made for the preservation the Act includes as matters to be dealt or planting of trees or bush on the site with the preservation or conservation of 5S(1). Where this would entail land trees and amenities in the district. being set aside as reserve provision is (para. 5 (ii & iii). 536(5) of the Act made in S5(2) for the reserves contri­ confers upon the Council through the bution payable by the owner to be reduced district scneme the powers and dis­ accordingly. If the Council considers it cretions lias are necessary or desirablelt necessary it may require the owner to enter to achieve the preservation of trees and into a bond which would be payable in the areas of special amenity value. It is event of the council's requirements not for each council to decide what action being satisfied 5S(3r. is appropriate. These provisions are incorporated into the district schemes discussed in 2.22 THE: PIWVISIONS Of" THe LOCIIL this paper and prOVide a means of check­ GOVERNMENT ACT 1974 ing at council level the unnecessary The Local Government Act 1974 also destruction of trees and other vegetation confers on councils tIle pO\tJer to incor­ on sites which are to be developed or re­ porate in their district schemes ordi­ developed. nances relating to the protection of However, 5291 does not cover the tn"es. 5291 is concerned with the situati0n where a plan is submitted for preservation of trees (and buildings) of the development of a site which is not 4 being subdivided. For example the found impossible to prevent although in­ property owner who is extending his house stances are few and most developers and wishes to fell a tree to provide appreciate the merit in retaining the sufficient room to do so, the Council significant existing vegetation.
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