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A U C K L a N D C O U N C A U C K L A N D C O U N C I L Decision following the hearing of an application for resource consent SUBJECT: Application for resource consent under section 88 of the Resource Management Act 1991 by Peers Brown Miller Ltd to remove two notable pohutukawa trees from within a grove at 8 Minnehaha Avenue, Takapuna held on Monday, 17 November 2014 commencing at 9.31am CONSENT, PURSUANT TO SECTIONS 104 AND 104B OF THE RESOURCE MANAGEMENT ACT, IS REFUSED. THE FULL DECISION IS SET OUT BELOW Hearing Panel: The Application was heard by Hearings Commissioners consisting of: Ms Kathleen Ryan (Chairperson) Mr Hugh Leersnyder Council Officers: Ms Sally Robins Senior Planner Mr Steven Krebs Arborist Ms Rebecca Fogel Built Heritage Specialist Ms Melissa Democracy Advisor - Hearings Warmenhoven APPEARANCES: For the applicant: Peers Brown Miller Ltd on behalf of N M Growth Limited, represented by: Andrew Braggins (legal counsel) calling the following as witnesses: Sarah Aynsley - Applicant Roger Twiname – Structural Engineer Ross Thurlow – Structural Engineer Rob Pryor – Landscape Architect Gerard Mostert - Arborist Submitters: Maurice Norton for Environment Takapuna Inc Mike Smith Peter Cunningham Hueline Massey for the Tree Council: and Chris Boucher, Arborist, as witness 1 APPLICATION DESCRIPTION Application and Property Details Application Number (s): LX2138339 Site Address: 8 Minnehaha Avenue, Takapuna Applicant's Name: Peers Brown Miller Ltd on behalf of N M Growth Ltd Lodgement Date: 0 August 2013 Notification date: 24 June 2014 Submissions closed date: 22 July 2014 Number of submissions: 13 submissions: nine in support and five opposed Hearing Commencement: 9.30am, 17 November 2014 Hearing Panel’s Site Visit: 13 November 2014 Hearing Closed: 14 May 2015 DECISION: That pursuant to sections 104 and 104B of the Resource Management Act (RMA), consent is refused to the discretionary activity application by Peers Brown Miller Limited to authorise for the removal of two Notable Pohutukawa trees at 8 Minnehaha Avenue, Takapuna being Pt Lot 19 DP 7523 (Consent Application LX-2138339). INTRODUCTION: 1. The applicant, Peers Brown Miller Ltd, on behalf of N M Growth Ltd, has applied to Auckland Council (the Council) for consent to remove two Notable Pohutukawa trees at 8 Minnehaha Avenue, Takapuna. 2. The hearing was held and adjourned on 17 November 2014. After Mr Braggins provided written closing submissions, the commissioners met. On 27 November 2014 we issued directions seeking legal and engineering information from Council officers, given we considered the proposed activity may have a significant adverse environmental effect. Mr Braggins indicated the applicant, consistent with section 41C (4) of the Act, refused to agree to the commissioning of a separate engineering report from the Council; however the applicant agreed to the Council providing legal advice, and to a joint witness statement being provided on engineering matters, with the Council meeting its own costs and using the same process the Environment Court would expect. We accepted what the applicant offered in our direction of 12 December 2014. 3. We checked progress with the hearings secretary on a number of occasions over January and early February; we provided information on process in a 12 February 2015 email and directions on 19 February 2015. However at the same time as we received the Council’s separate response, including a Tonkin and Taylor engineering report, we received a memo from Mr Braggins. We read this first. He asked that we not read the Council’s information as it was not consistent with what was agreed in the 2 12 December direction. While we had hoped to expedite matters, we agreed with Mr Braggins and confirmed the 12 December direction. We have not read the Council’s information, including the engineering report at any point in this process. 4. We received the Joint Witness Statement (JWS) on 20 April 2015, followed by further statements from the Tree Council, the Council and the applicant’s final right of reply. We closed the hearing on Thursday 14 May 2015. 5. We understand that the Tree Council requested a copy of the Tonkin and Taylor engineering report from the Council, and received this as the Council considered it to be public information under the Local Government Official Information and Meetings Act 1987. Ms Massey and Mr Boucher in their response to the JWS, raise process concerns, given it appears they did not receive all directions and/or applicant memos, or not in a timely manner. They also make comments on the Tonkin and Taylor report; we have not considered these comments when coming to this decision, given our acceptance of the applicant’s approach to further information. For completeness, we note the chair was sent a copy of the draft engineering report, but as soon as it was realised it had the Tonkin and Taylor logo and was dated in January 2015, it was returned to the envelope and was not read at any stage. 6. This decision is made on behalf of the Council by Kathleen Ryan and Hugh Leersnyder (the Hearing Panel) appointed and acting under delegated authority pursuant to sections 34 and 34A of the RMA. THE APPLICATION – SITE AND PROPOSAL: 7. The application is to remove two Notable Pohutukawa trees at 8 Minnehaha Avenue, because they are in close proximity to a heritage building, The Thorne Estate Dairy. The applicant’s arboricultural report states that “Two trunks, from two separate scheduled Pohutukawa trees are now leaning on the heritage building and there are concerns for the safety of this building. The building has cracked, and there are signs that the weight of the limbs is contributing to the deterioration.”1 This report comments specifically on the two trees: Tree 1… This is the most prominent of the scheduled trees due to its central location and size. The trunks of the tree are located to the west of the heritage building. Overall crown health is good, but the tree appears to be at least partly reliant on the support of the heritage building for stability. The tree stands in a bed to the east of the driveway which appears to restrict roots to the west and south. Tree 2… This tree is smaller. The tree trunk is largely located on the neighbouring property at 12 Minnehaha Avenue, but leans onto 8 Minnehaha Avenue. It appears that the tree stability is reliant on the support of the heritage building. Tree 2 is in much worse condition structurally than Tree 1. Overall foliar health is good, but the trunk of the tree is structurally compromised. 8. The applicant’s key reason for removal is to avoid further damage to the building. In addition, tree 1 has a large leader overhanging the driveway to the point that it is now starting to obstruct access. Alternatives to the removal of the trees including end 1 Gerard Mostert, Peer Brown Miller Limited, Arboricultural Report, 9.10.13, section 2 3 weight reduction, propping, and reduction have been rejected by the applicant for a range of reasons. 9. The applicant has offered mitigation including replanting of specimen trees on their property or a council reserve, and a bond of $30,000 to ensure compliance with conditions to make the Thorne Estate Dairy watertight and repair the cracking, and a timeframe within which the works will be done. 10. 8 Minnehaha Avenue is one of the largest street sites with 1912m2 site, fronts the street at about its midpoint on the north side, and contains a single substantial dwelling, a swimming pool and an accessory building. It has an irregular shape and includes a strip of land that provides very quick walking access to Thornes Bay, with coastal Pohutukawa trees. 11. The site contains most of a grove of trees with seven large Pohutukawa trees which are protected given the Residential 2B zoning. The grove extends through the site and beyond into the street reserve (with a Totara just to the east of 8 Minnehaha’s front boundary, and across the avenue from no 12, a further Pohutukawa). Five of the trees on site are deemed Notable and are included in schedules to both the Operative District Plan and the PAUP. The age of the two Notable trees to be removed is estimated as approximately 150-200 years by Mr Krebs. The site also has a building of heritage significance known as the Thorne Estate Dairy. 12. Thorne Estate Dairy is located immediately adjacent to the subject trees and is the subject heritage building that forms the predominant reason for the applicant seeking the removal of the trees. The building is described as having been built some time between 1888 and 1912 and being a single level unreinforced masonry building. It is understood that the building may have been used as a cool store for the milk produced on the farm and hence its position within the shade of the adjacent Pohutukawa trees to regulate the temperature inside the building. It has been integrated into the overall residence, and is understood to function as a wine cellar 13. Ms Robins in the section 42A report indicates that Minnehaha Avenue has long been recognised as one of the most sought after addresses on the North Shore. It is close to the Takapuna town centre, to Lake Pupuke and to the coastline. The street has been developed for some time for residential purposes. Historically based on the presence of the Thorne Estate Dairy we can presume it was used for agricultural purposes. The street and nearby coastal fringe, including at Thorne Bay, are characterised by large trees, in particular Pohutukawa trees, and substantial dwellings. REASONS FOR CONSENT AND ACTIVITY STATUS Operative Auckland Council District Plan (North Shore Section) 14.
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