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

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

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. Rule 8.4.6.2 provides for any trimming, alteration or removal of any Notable trees as a Discretionary Activity. In addition, Rule 8.4.6.1.2 provides for the removal of any native tree with a height in excess of 6m or girth measurement in excess of 600mm located in the Residential 2B zone as a Limited Discretionary Activity.

15. Ms Robins also considers that Rule 11.4.1.2 (b) applies, given the removal of the trees will detract from the attributes of the scheduled Thorne Estate Dairy. The rule states that conducting or executing any use or work in or on a site of a scheduled item if in the opinion of the Council such action endangers or is likely to endanger, damage or destroy a scheduled item, or detract from the features or attributes for which the item was scheduled is a Discretionary Activity. 4

16. Overall the application is a Discretionary activity.

17. The Council, as indicated above, considers consent is required under rule 11.4.1.2 (b). Mr Braggins considers there are no provisions in the District Plan that suggest the trees are associated with heritage values, that the Council has not identified any such provisions, and that the rule is ultra vires as it reserves a discretion to the Council to determine whether the rule applies, and points to one example of case law in support. We consider the rule applies, and note that this is a discretionary application, and as such also look at relevant provisions of the District Plan, including heritage objectives and policies.

18. Under the Proposed Auckland Unitary Plan, Part 3 of the Regional Plan and District Rule 6 - Natural Heritage – Notable Trees of the PAUP removal of any tree which is included on the list of Notable trees is a Discretionary Activity. However, these rules on natural and built heritage do not have immediate legal effect so are not considered further.

19. The relevant planning documents considered are:

The Auckland Council District Plan: North Shore Section and in particular the following:

• Section 8.3.4 Tree Objectives and Policies;

• Section 8.3.4 General Tree Protection Rules and Assessment Criteria, in particular rule 8.4.6.1.2, 8.4.6.4 and 8.4.6.6;

• Section 16.4.2.2 Residential 2B Zone Objectives and Policies

• Cultural Heritage 11.3.1 Buildings, Objects and Places of Historic Significance

STATUTORY CONSIDERATIONS

20. The proposal overall requires discretionary activity consent and is subject to Part 2 of the RMA; we have discretion to grant or refuse the consent and if it is granted we may impose conditions. The application is to be considered under section 104. This requires under subsection (1) that we must have regard to:

(a) Any actual and potential effects on the environment of allowing the activity; and

(b) Any relevant provisions of:

a. A national environmental standard;

b. Other regulations;

c. A national policy statement;

d. A New Zealand Coastal Policy Statement;

e. A regional policy statement or proposed regional policy statement;

f. A plan or proposed plan; and

NOTIFICATION, SUBMISSIONS AND WRITTEN APPROVALS

21. The application was publicly notified on 24 June 2014 following the applicant’s request to notify in accordance with s95A (2)(a) RMA. A total of 13 submissions were received. Eight submissions were received in support of the proposal, and five opposed the application. These are set out below:

In support Julian Brown, PO Box 33904, Takapuna Triby Chen, 140 Kepa Road, Orakei Evan Christian, 10 Rarere Road, Takapuna Peter and Jan Cunningham, 28 Tiri Road, Milford Scott Mitchell, 34 Park Avenue, Takapuna Wendy Nowell-Usticke 44 Clifton Road, Herne Bay Mike and Leanne Smith, 6 Minnehaha Avenue, Takapuna Tame TeRangi, Ngatiwhatua Iwi

In opposition Environment Takapuna Inc, 41 Hauraki Road, Takapuna Erik Marjo, 13 William Street, Takapuna Mr and Mrs Norton, 18A Hauraki Road, Takapuna Barbara Wheadon, 13 Minnehaha Avenue, Takapuna The Tree Council

22. A range of reasons were given for supporting the application. These include the trees being of a size that is no longer compatible with the heritage building; to avoid further damage to the Category A building; to avoid further obstruction to traffic using the driveway; and to avoid the possibility of a tree collapsing and causing damage to life and/or property.

23. Those opposing the application do so because the trees have been protected as they support the amenity of the area; removal will spoil the look and feel of the grove of Pohutukawa trees as a whole, and of the avenue and area, with nearly Thorne Bay fringed by Pohutukawa trees; there are other options to removal as well as other factors contributing to the damage of the heritage building.

24. Any effects on these persons who provide written approvals are discounted from the following assessment. We note written approvals were received from:

Leanne and Mike Smith, 6 Minnehaha Avenue, Takapuna Christopher and Carole Fraser, 223B Hurstmere Road, Takapuna John and Jane Ferguson, 12 Minnehaha Avenue, Takapuna

SUMMARY OF INFORMATION AND EVIDENCE

25. The following has been considered in reaching the above decision:

Before and at the hearing:

• Tree Consent application form, submitted by Peers Brown Miller Ltd on behalf of the applicant, N M Growth Ltd, dated 30 August 2013, with land and other information, including statements of evidence, as indicated with dates below:

 Arboricultural report by Gerard Mostert, Peers Brown Miller Ltd, dated 9.10. 2013, and Statement of Evidence, dated 17.11.2014;

 Engineering report by Roger Twiname, Airey Consultants Ltd, dated 11.12.2013, and Statement of Evidence, dated 17.11.2014;

 Engineering report by Michael Lee, Airey Consultants Ltd, dated 6.3.2014; and email dated 5.3.2014;

 Estimate of tree removal costs, Wayne Hannay, Treescape Ltd, undated;

 Written approval of affected persons: Leanne and Mike Smith, 6 Minnehaha Avenue, dated 5.2.2014 Christopher and Carole Fraser, 223B Hurstmere Road, dated 10.2.2014; John and Jane Ferguson, 12 Minnehaha Avenue, dated 2.2.2014 & 3.2.014

 Andrew Braggins, Legal Counsel, letter dated 17.3.2014, and legal submissions, dated 17.11.2014;

 Statement of Evidence, by Sarah Aynsley, on behalf of the Applicant, dated 17.11.2014;

 Statement of Evidence, by Ross Thurlow, Thurlow Consulting Engineers and Surveyors Ltd, dated 17.11.2014:

 Statement of Evidence, by Robert Pryor, LA4 Landscape Architects Ltd, dated 17.11.2014.

• Submissions from:

 Mike and Leanne Smith, 6 Minnehaha Avenue, Takapuna, and a Statement of Evidence by Mike Smith, dated 17.11.2014;

 Peter and Jan Cunningham, 28 Tiri Road, Milford, owners of 18 Minnehaha Avenue, and a Statement of Evidence, undated, spoken to by Peter Cunningham;

 Barbara Wheadon, 13 Minnehaha Avenue, Takapuna;

 Environment Takapuna Inc, 41 Hauraki Road, Takapuna, and a Statement of Evidence by Maurice Norton on their behalf (and for the Nortons);

 Maurice and Mary Norton, 18A Hauraki Road, Takapuna (see above);

 The Tree Council, Statement of Evidence by Hueline Massey, Field Officer, and Statement of Evidence, Chris Boucher, arborist, Chris Boucher Ltd;

 Julian Brown, PO Box 33904, Takapuna;

 Triby Chen, 140 Kepa Road, Orakei;

 Evan Christian, 10 Rarere Road, Takapuna;

 Scott Mitchell, 34 Park Avenue, Takapuna;

 Wendy Nowell-Usticke 44 Clifton Road, Herne Bay;

 Tame TeRangi, Ngatiwhatua Iwi.

• The Planner’s Report, by Sally Robins, Senior Planner, Auckland Council, dated 29.9.2014, and verbal evidence;

• The Arboricultural Memorandum, prepared by Steve Krebs, Arborist, Auckland Council, dated 25.8.2014, and verbal evidence;

• The Built Heritage Memorandum, prepared by Rebecca Fogel, Built Heritage Specialist, Auckland Council, dated 21.5.2014, and verbal evidence.

After the hearing

• Andrew Braggins, Legal Counsel, Closing Submissions, dated 24.11.2014; Response to direction, 4.12.2014; Response to further direction, 24.2.2015; Further Legal Submissions in Reply, dated 11 May 2015

• Joint Expert Witness Statement, signed by four professional engineers, namely Roger Twiname and Ross Thurlow for the applicant and Geoff Radley and John Duder for the Council, dated 17 April 2015

• Submitter’s response from the Tree Council: Further Statement by Hueline Massey, undated, and Further Statement, Chris Boucher, dated 29 April 2015

• Memorandum with updated recommendation, Sally Robins, Senior Planner, and Steve Krebs, Arborist, Auckland Council, dated 1 May 2015

26. The following provides a brief summary of the information and evidence, which is further discussed under the principal issues.

The Applicant

27. Mr Braggins sets out that the two Pohutukawa trees are proposed to be removed to avoid further damage to the Thorne Estate Dairy, a Category A heritage building under the Operative District Plan and proposed as a Category B heritage building under the PAUP. Mr Braggins considers the trees to be dangerous, and that consent is not required, given rule 8.4.6.6.1 (a). He accepts that removal is a discretionary activity under rule 8.4.6.2, but disagrees that consent is required under rule 11.4.1.2 (b) on heritage values, but notes that even if that is the case, that “the fundamental assessment of the application does not change because the real issue centres around the impact of the Trees on the heritage building.”2

28. He considers the Council has adopted the wrong legal test to the application, in relation to the assessment of options, given Part 2 considerations. He states that “It is

2Andrew Braggins, Legal Submissions, dated 17.11.2014, paragraphs (para) 4.10 8

correct and appropriate to take into account effects of low probability but high potential impact – particularly with respect to the potential failure of the trees (or branches of the trees if they are propped”,3 and to place a greater amount of weight on the health and safety of people.

29. Ms Aynsley owns 8 Minnehaha Avenue with her partner, through a trust, NM Growth Ltd. They have lived there with their young son for two years, and negotiated on price when they bought, because of the trees in part settling on a heritage building, the Thorne Estate Dairy, and the state of the building. They have tidied the section, and planted since buying. Ms Aynsley considers “The trees are a massive danger” and “just too big and too close to our house”.4 She indicated that they are willing to repair the damage the trees have done to the heritage building if they get consent, and would be open to a condition requiring this, and would also be open to planting more trees on a Council reserve or on the property.5

2 30. Mr Pryor described the 1997m site on the north side of Minnehaha Avenue, about 70 metres from Hurstmere Road, and which includes five Scheduled Pohutukawa trees. A drive extends to the dwelling, beneath the canopy of Pohutukawa trees and flanked by well-established gardens, and other dwellings. Minnehaha Avenue has mature street tree plantings, and combined with trees within individual properties, “the overall character is that of a well-established and vegetated streetscape.”6

31. Mr Pryor states that the two trees proposed for removal are 10-12 metres in height with a crown spread of up to 20 m, but have a very restricted visual catchment and are not highly visible beyond the site and the immediate neighbourhood, given the extensive buffer provided by existing public and private trees. He considers that the main affected parties from the removal of the trees in terms of adverse visual amenity will be the application site, and 6 and 12 Minnehaha Avenue, and notes that both these parties have provided written approval. Mr Pryor considers that propping would have adverse visual effects on both the tree and the heritage building, that removal of the trees would contribute positively to the visual values and integrity of the heritage building and that mitigation planting is not required.

32. Mr Mostert notes that Tree 1 is to the west of the heritage building, it is approximately 12 metres tall, has three main leaders and a crown spread of around 20 metres. Its north eastern leader is at least partly reliant on the building for support, while another leader overhangs the driveway, and is beginning to obstruct traffic. Tree 2 is smaller than Tree 1, is located largely on 12 Minnehaha Ave, and leans over into 8 Minnehaha Avenue. A large branch rests on the heritage building, and its trunk structure is severely compromised. He considers end weight reduction, propping and reduction are not viable options for a range of reasons. These include both trees being reliant on the heritage building for support, pruning being likely to affect the trees’ health without removing sufficient load, the lifting of the trees’ branches required for propping producing unpredictable forces on the trees, the outcome of propping being uncertain, and reduction affecting the health, stability and visual amenity of the trees. He therefore recommends the complete removal of the two trees.

33. Mr Twiname indicated that “brief, non-invasive observations of the [heritage] building” suggest the main structural walls appear to be a porous no fines kind of concrete, probably not reinforced, with such walls being typically in the order of 640mm thick, a

3 Braggins, 17.11.2014, para 4.10 4 Sarah Aynsley, Statement of Evidence, para 3 and 10. 5 Aynsley, para 12 and 13. 6 Rob Pryor, Statement of Evidence, 5.3 9

corrugated iron roof on a timber structure and below this a vaulted brick ceiling, and currently a concrete floor.7 He points to significant cracking on both gable ends and walls of the building, irregular, horizontal cracking extending from the upper corners of the main door, and cracking on the east wall.

34. Mr Twiname concludes the building has sustained significant damage as a result of loading placed on it by the limbs of the two Pohutukawa trees, that the extent and depth of the cracking is such that parts of the building could be at the point of collapse, that it is necessary to take action to remove this loading to ensure the safety and integrity of the building is maintained, and that reinforcement of the building to resist the imposed tree loads would be difficult, costly and may not be effective in saving the building.8 Mr Twiname agrees with his colleague, Mr Mike Lee’s assessment of propping options, and from an engineering perspective does not support any of the propping options.

35. Mr Thurlow reviewed Mr Twiname’s and Mr Lee’s engineering reports. He considers that the Pohutukawa branches resting on the heritage building are causing damage and illustrated this. He considers the trees’ effects on the building “are now to the point that a failure is likely in a severe wind or moderately shaking earthquake event”, that the Council’s options for supporting the tree limbs are unsatisfactory, and that the only satisfactory option would be to remove the relevant branches or remove the trees in their entirety.

The Submitters

36. Mr Smith of 6 Minnehaha Avenue spoke to his and Leanne Smith’s submission in support of the application, the rights of residents to fully enjoy their properties, and the work the applicants have undertaken on their own site, and in removing ivy from a street tree.

37. Dr Cunningham who lives in a nearby street, and owns 18 Minnehaha Ave (previously rented to the applicants), supports the applicants, and noted the issues associated with trees intruding on and causing damage to buildings, and grief to residents.

38. Mr Norton appeared on behalf of Environment Takapuna Inc., and for himself and his wife. He noted Environment Takapuna was formed to protect Takapuna, its beaches, reserves and trees. He considers that the heritage building can be protected without removing the trees, that the current owners would have been aware of the natural and built heritage restrictions on the property when they bought, and that to grant the application would not only create a significant adverse effect but lead to a loss in public confidence in District Plan administration.

39. Ms Massey spoke in support of the Council officers’ expert assessments and the planner’s recommendation that the application be declined. She considers the “Scheduling of the five Pohutukawa trees; the Residential 2B zone designation; the heritage context; and the coastal environment amenity effects of this particular site makes the actual and potential effects of the trees [sic] removal even more significant for this neighbourhood”, and that the precedent of such tree removal would mean even more applications to remove scheduled trees, and the loss of urban trees, particularly given reduced statutory tree protection in recent years.9

7 Roger Twiname, the Airey Report, 3.0 8 Roger Twiname, Statement of Evidence, 6.5 and 5.1 9 Hueline Massey, para 5 and 10. 10

40. Mr Boucher considers that the grove numbering seven mature Pohutukawa trees form almost complete canopy-closure above the southern part of the site and are “providing considerable visual amenity and natural character to the location, aligned with the Objectives and Policies of the Residential 2B zone.”10 He notes that given the zoning the seven trees are protected, not just the five scheduled. Mr Boucher states that it is simply impossible to mechanically elevate large-sized long-established parts of a tree in the way required by the applicant’s engineers. He considers the two trees to be in good health, and acknowledges that Pohutukawa tree branches settle over time. However with stem weight reduction, crown reduction, and propping the two trees are able to be retained, albeit with reduced physical contact with the heritage building, so that the trees and the building can continue to co-exist.

The Joint Expert Witness Statement

41. The Joint Expert Witness Statement (JWS) signed by Messrs Twiname and Thurlow for the applicant, and Radley and Duder for the Council, responds to the engineering questions we posed in our first direction. A teleconference call was held on 5 March 2015, and had regard to a draft report on the subject prepared by Messrs Radley and Duder. The JWC sets out the key facts, assumptions, methodology and information. This includes that a limb from Pohutukawa tree no 1 (Limb 1) and a limb from Pohutukawa tree no 2 (Limb 2) are each placing loads on the building; the propping and pruning options put forward by Mr Krebs and endorsed by Mr Boucher involve discreet propping of the limbs and weight reduction on the building roof by pruning; and that there is no available experience in active jacking of Pohutukawa, as opposed to passive propping, so trial jacking would be required to reach a conclusion on propping.

42. The experts agree that the building is not a “dangerous building” as defined by section 21 of the Building Act, and that

The building is almost dangerous because with its heavily cracked gable end walls above openings and the existing static load from the trees, the additional (i.e. dynamic) loads from the trees in a major storm would place the building close to or at collapse.11

43. Temporary external supports to the building’s walls would pre-empt a dangerous categorisation. Such categorisation require the building to be closed and fenced off to prevent access.

44. The experts state that the propping and pruning option for Pohutukawa tree 1 Limb 1 has merit but jacking the limb a few millimetres clear of the roof is not practical for roof replacement and cannot be further defined without jack testing. Messrs Twiname, Radley and Duder agree it is not possible to reach any conclusions about propping without the jack testing, and further investigation of Limb 1, including further advice from an arborist. They acknowledge that accurate costs and the quantities for the propping and pruning option are reliant the information required, and might be around $20,000 for design, and $20,000 for construction work. Mr Thurlow considers Limb 1 should be removed, and if this causes instability the tree should be removed.

45. As regards Pohutukawa tree no 2 Limb 2 the experts agree the propping and pruning option put forward “has no merit”, that Limb 2 is not capable of being propped to

10 Chris Boucher 3.1 11Joint Expert Witness Statement, para 13 11

remove load from the building and allow repair of the roof, so should be removed in its entirety.

Responses to the JWS

The Tree Council

46. Ms Massey focused on process matters which are covered above.

47. Mr Boucher considers the trees do not present a significant and imminent danger to the building, and that it is unfortunate that the arborists involved were not able to be present with the engineers to provide a better understanding of the physical, dynamic features and functions of the trees, how they stand up and why they fall down. He disputes the JWS paragraph 13 quoted above about storm effects of the trees, stating that when he undertook a site inspection during an extreme wind event increased storm-influenced, lateral loading of large tree stem-wood on the building was not observed, felt, nor yet apparent. He advises that “…wind energy is rapidly dispersed from exposed foliage and twigs of trees, into branches and stems by way of mass damping. It is the mass of these branches swaying independently in the wind that reduces the development of more dangerous, harmonic sways. Because of large wood material in trunks and large stems, sudden wind gusts cannot move them.”12

48. As regards the JWS stating there is no available experience in active jacking of Pohutukawa as opposed to passive propping, Mr Boucher pointed out that from an arboricultural perspective there is considerable experience in these matters, as demonstrated at the hearing. He states that test-jacking of the trees need not be expensive, that acrow jack-props can be used and are available at hire centres, and that propping matters “can be resolved in a more pragmatic, simplistic and cost- effective fashion by willing parties.”13 Mr Boucher considers the JWS does not dismiss pruning and propping options, and that these matters require a more detailed assessment with arborist involvement. In terms of tree 1 limb 1, pruning and propping, and slightly modifying the timber-framed roof to resolve water-tightness issues, should suffice. In terms of tree 2 limb 2 more substantial pruning, or if required removal of the limb in its entirety, is better than removal of the whole tree.

The Council

49. Ms Robins, in commenting on the JWS stating there is no available experience in active jacking of Pohutukawa trees, points to 22 Minnehaha Avenue where given a resource consent for a new house, similar mature Pohutukawa trees were retained using propping and pruning. Her recommendation remains that the application should be declined.

50. Mr Krebs agrees with the engineers that tree 1 limb 1 should be further investigated with arborist involvement. He points specifically to further testing of jacking to see if clearances can be achieved, and considers this could be a relatively simple, low-cost exercise using either a hired acrow prop or house moving jack. He questions the JWS assertion of a lack of merit in propping and propping of tree 2 limb 2, given there is no reasoning to support the conclusion, and considers pruning and propping viable.

51. Mr Krebs considers that even should propping not be feasible, other options are available that allow for the retention of the bulk of the trees, all of which are preferable

12 Chris Boucher, 29.4.2015, point 4 13 Boucher, ibid, point 5. 12

to complete tree removal. He points to the obvious environmental effect of whole tree removal and continues to recommend against the application, given its significant adverse environmental effects.

The Applicant

52. Mr Braggins considers the trees in their present condition, and given the condition of the heritage building, “must give rise to circumstances which warrant their removal” particularly given rule 8.4.6.6.1 (a), the Act’s definitions of environment and effect, the findings of the JWS, and the applicant’s evidence.

PRINCIPAL ISSUES IN CONTENTION

53. We find that the principal issues in contention to be:

• The current state of the heritage building, and the factors that have led to its deterioration, including the two scheduled Pohutukawa trees in close proximity to it

• Adverse character and amenity effects from the removal of the two scheduled Pohutukawa trees

• The appropriateness of methods other than removal to support the scheduled trees and the heritage buildings

• The necessity or otherwise of removal of the two scheduled Pohutukawa trees so as to protect the heritage building

• District Plan objectives, policies and assessment criteria, and whether removal fits with consistent administration of the Plan

• Historic factors and the context for the building

DISCUSSION AND FINDINGS ON THE ACTUAL AND POTENTIAL EFFECTS OF THE ACTIVITY ON THE ENVIRONMENT:

54. We discuss the principal issues in contention in this section which focuses on the actual and potential effects of the activity on the environment as required by section 104 (1) (a), and in the next section which assesses the activity in terms of the relevant statutory documents, as required by section 104 (1) (b), and also (c) which refers to other matters.

The current state of the heritage building, and the factors that have led to this

55. At the hearing there were different views as to the state of the heritage building, and the factors that have led to its deterioration, particularly the role of the two scheduled Pohutukawa trees in close proximity to it.

56. Mr Twiname indicated “brief, non-invasive observations of the [heritage] building” suggest the main structural walls appear to be a porous no fines kind of concrete, probably not reinforced, with such walls being typically in the order of 640mm thick, a

corrugated iron roof on a timber structure and below this a vaulted brick ceiling, and currently a concrete floor, though it is assumed this is not the original floor.14 He points to significant cracking on both gable ends and walls of the building externally, including irregular, horizontal cracking extending from the upper corners of the main door, and cracking on the east wall. He concludes the building has sustained significant damage as a result of loading placed on it by the limbs of the Pohutukawa trees, that the extent and depth of the cracking is such that parts of the building could be at the point of collapse, that it is necessary to take action to remove this loading to ensure the safety and integrity of the building is maintained, and that reinforcement of the building to resist the imposed tree loads would be difficult, costly and may not be effective.

57. Mr Boucher comments there may be factors other than the trees which are contributing to the reported damage to the heritage building. He points to the consequences of internal alterations to the building, inadequate foundations potentially affected by root action, poor construction methodologies, alternate shrinkage and swelling of ground conditions. He considers the damage to the building to be cosmetic and required more detailed investigation. Mr Twining considers on the basis of his “observations and the age and construction of the building that the loadings by the trees at the point of contact are causing ALL of the visible structural damage to the building.”15 Mr Krebs questions this stating that “This is contradictory to information provided at a meeting with the application on the 13th February 2014, where it was stated that no structural damage had occurred and the only repairs necessary were cosmetic and not requiring a further resource consent to undertake.”16

58. At the hearing there were suggestions that the building was a dangerous building. However as set out above, the JWS experts agree that the building is not a “dangerous building” as defined by section 21 of the Building Act, and that temporary external supports to the building’s walls would pre-empt a dangerous categorisation. We find that the building is not a “dangerous building”.

59. At the same time the JWS experts as indicated above, consider the building to be “almost dangerous… and the additional (i.e. dynamic) loads from the trees in a major storm would place the building close to or at collapse.”17 Mr Mostert indicates that “When the wind blows, the tree has been observed to grind against the building like a moored boat butting against a jetty”18 though it is unclear whether he or another person was the observer.

60. In contrast Mr Boucher challenges the JWS statement, noting there is no engineering analytical data to support this theory, and that “It is important to note that energy from wind becomes re-distributed by the tree because of mass-damping, back into the wind, rather than being absorbed by it. In other words, increased lateral loading on the building as consequence of storm activity is not anticipated.”19 Mr Krebs supports Mr Boucher’s expert assessment.

61. We note that Messrs Mostert, Krebs and Boucher agree that Pohutukawa trees settle gradually closer to the ground over a long period of time. Mr Twiname estimates the weight of each of the limbs resting upon the building as between 5-8 tonnes, and that in excess of 50% of this weight is applied to the building at roof level, and during wind

14 Roger Twiname, the Airey Report 3.0 15 Twiname, ibid, 3.1 16 Steve Krebs, Arboricultural Report, 3.4 17Joint Expert Witness Statement, para 13 18 Mostert, ibid, section 6. 19 Chris Boucher, 29.4.2015, point 4 14

action. As regards tree 1 limb 1 Mr Mostert indicates this north eastern and largest of three leaders, appears at least partly reliant on the heritage building for support, with a pad of callus at the contact point. Messrs Krebs and Boucher agree that there is no significant distortion of the roof in the two areas tree 1 limb 1 has contact with, and the indication is that the tree is supporting the majority of its own weight, with a slow gradual application of weight to the building. Mr Boucher also considers if the weight estimates were correct, and given the heaviness of Pohutukawa wood, more damage to the roof would be apparent. Mr Krebs acknowledged he had visited the site some 15 years prior, and at that time the trees were in contact with the building and it appears there have been no significant changes in that timeframe.20

62. As regards tree 2 Mr Mostert considers it is at least partially reliant on the heritage building for its support, and that without it, the tree would probably have collapsed. Mr Krebs suspects tree 2 is still partially supported by its own biomechanics, however is more reliant on the building for support than tree 1. Mr Boucher notes there is considerable distortion of the roofing fabric where tree 2 has contact with the roof.

63. We accept that Messrs Krebs and Boucher consider the two trees could survive if the heritage building was unable to provide the support it currently does, given their overall structural integrity.

64. We do not make a finding on the likelihood of the building becoming a dangerous building, given the conflicting stances of the engineers and arborists involved as to the weight and role of the two Pohutukawa trees, particularly in extreme storm events. We consider that to be able to make such a finding would require the arboricultural and engineering experts working together to come to a conclusion.

The state of the two Pohutukawa Trees

65. We have set out Mr Mostert’s general description of the two Pohutukawa trees above. His and Mr Kreb’s photos of the two trees are helpful. Messrs Krebs and Boucher agree that both trees have good health. Mr Boucher, in response to Ms Aynsley’s evidence considered there was no expert evidence to support her view that the trees are “hugely dangerous”.

66. As regards tree 1 Mr Mostert states that tree 1 appears to have lost some of its tension roots (important for stability) during driveway construction, the tree is heeling over in a northerly direction, and the root plate of the tree appears to have rotated slightly in the ground. Messrs Krebs and Boucher agree that tree 1’s root run is not restricted to the raised garden area, given roots exposed in the driveway and that there is no evidence of soil heaving or root plate movement to indicate whole tree movement is occurring. We accept Messrs Krebs’ and Boucher’s expert evidence on tree 1.

67. Mr Mostert indicates tree 2 has heeled over in a northerly direction, has large unoccluded wounds on the trunk and deep structural cracks; he considers it to be structurally unsound.21 Mr Krebs considers tree 2 to be of a similar size and dimensions to tree 1, though a different shape. While there is a wound present on the underside of the trunk, callous tissue has developed around the area of damage. Mr Boucher commented that Pohutukawa are “great decay compartmentalisers” so as to protect the overall tree, and this has happened here. Messrs Krebs and Boucher agree that tree 2 is not so badly compromised that its structural integrity is of such

20 Krebs, ibid, 3.5 21 Mostert, ibid, section 6 and 9 15

concern as to warrant removal. We find in favour of Messrs Krebs’ and Boucher’s expert opinion on tree 2.

Character and amenity effects of tree removal and of props to support the trees

68. Adverse character and amenity effects from the removal of the two scheduled Pohutukawa trees are a key concern. Mr Pryor, as indicated above, considers the removal of the two trees will result in no more than minor adverse landscape and visual amenity effects upon both the immediate urban character of Minnehaha Avenue and its surrounding neighbourhood given the context and vegetated characteristics of the existing landscape and visual environment. He acknowledges localised adverse visual amenity effects for the application site, and adjoining properties, but notes these parties have provided written approval. He agrees with Peter and Jan Cunningham that the trees are now of such a size to be incompatible with the heritage building, and with Mike and Leanne Smith that the Pohutukawa trees located on the street frontage will continue to provide an unchanged street presence and view.

69. The three arborists see it differently. Mr Mostert acknowledges that “Removal of the trees will bring about significant amenity effects, and a noticeable alteration of the appearance of the site overall”, and that “It is simply not possible to avoid amenity effects when considering the removal of trees as large as these.”22 Mr Boucher remains “convinced that the heritage building and adjacent trees can be retained and co-exist for a considerable period of time, retaining overall heritage character and amenity provided by trees and landscape values of the Residential 2 zone.”23

70. Mr Krebs acknowledges that the two trees are creating maintenance and management issues for the applicant, but considers that the benefits that they provide to the wider community warrant their retention. He considers these two and the other Pohutukawa trees within the grove are linked to the nearby coastal Pohutukawa trees at Thorne Bay.

71. Ms Robins indicates the trees are in relatively close proximity to the coastline, and as such the trees are part of the coastal environment. She accepts the trees are in good health and appearance, consistent with their scheduling. They are visible from Minnehaha Avenue and contribute to the particular character and visual amenity of the street and neighbourhood as well as forming part of the city’s tree cover. As mature notable trees within a high amenity area in close proximity to the coastline, the trees make a significant contribution to enhancing the values and amenity associated with the character, maturity and history associated with the locality. Ms Robins considers removal of the trees would have a more than minor adverse effect on the character of the locality and on the context of the heritage building.24

72. On our visits to Minnehaha Avenue we were struck by the significance of 8 Minnehaha Avenue to the character and amenity of the street. Located at the street’s midpoint, its very substantial (approximately 1,400m2 according to Mr Krebs) grove of protected Pohutukawa trees of which these two trees are a part, provides unique and substantial amenity to the street. These two trees while set back from the front boundary and behind other trees are easily visible from the street, given the crown lifting that the trees in the grove have experienced. These two trees with their sculptural form, and which Mr Boucher estimates as providing around 50% of the grove’s tree canopy, add

22 Mostert, ibid, section 8 23 Boucher, ibid, 5.7 24 Robins, 6.2.3 16

to the depth, richness and significance of the grove. They are easily viewed from outside the front gate, from outside 12 Minnehaha with its stretch of lawn, and from across the street. Walking down from the corner, or up from the coastline, their canopies, and that of the grove’s, are partially visible.

73. We find that the removal of the two Pohutukawa trees would result in significant adverse character and amenity effects.

74. We are also aware of the future environment, and the implications for the Pohutukawa grove of potential removal of the two trees. Mr Mostert considers “Removal of the Pohutukawa trees would benefit the health and growth of surrounding Pohutukawa trees and provide for increased light, water and nutrient availability within the garden.”25 Mr Boucher considers removal “will invariably be detrimental (into the long term) to those trees that remain… all of the trees have a combined canopy spread over the southern part of the property, and are therefore, reliant on each for dissipation of wind-loading through, around and beyond the entire groove.”26 Mr Krebs agrees with Mr Boucher. However Mr Krebs is also concerned that removal would result in a much smaller grove of protected trees, with one Pohutukawa tree left isolated to the north of the group, and considers removal of two trees from the middle of the group would likely result in further decline in the remaining trees.

75. While acknowledging the positive effects indicated by Mr Mostert, we find that the removal of the two Pohutukawa trees would result in ongoing adverse effects on the remaining grove of Pohutukawa trees.

76. We note that the applicant, through Messrs Pryor and Mostert, and a submitter Mr Smith, consider that props would be unsightly and reduce the amenity values of the two trees, the heritage building, and of the site. We walked along the coastal walkway to see the propping at 22A Minnehaha Avenue, and consider that while it is somewhat unusual to see a tree with propping, that the props fit in well and clearly support the trees, and amenity of the site and area. We saw a substantial tree hut erected in the grove of trees at 8 Minnehaha Avenue, and consider tree props would be less intrusive. We find, that if painted appropriately, propping would be discrete, and fit appropriately into the treed environment of 8 Minnehaha Avenue, while conferring significant benefits to the amenity offered by the site, including the two trees, the other trees in the grove and to the heritage building and the wider area.

Historic factors and the context for the building

77. Mr Braggins points out that that trees are scheduled pursuant to Category D of Appendix 8C of the ODP, and as such have local significance, rather than being the most significant trees (category A), heritage trees (category B) or rare or unusual trees (category C).

78. In contrast, Ms Fogel considers the Thorne Estate Dairy to be significant as a rare remaining example of Takapuna’s agricultural history, with the grove of Pohutukawa trees further reinforcing the rural history and values of the place, and that loss of the two Pohutukawa trees would detract from the scheduled building’s integrity of setting with more than minor adverse effects.

25 Mostert, ibid, section 9. 26 Boucher, ibid, 5.8 17

79. Mr Krebs considers it logical that the heritage building, a dairy, was constructed and specifically sited beneath the canopy of the Pohutukawa grove, and that the two trees have a direct association with the value of the heritage building, providing context and setting for the history of the area.

80. We accept Ms Fogel’s expert evidence and find that the removal of the two Pohutukawa trees would detract from the scheduled building’s integrity of setting with more than minor adverse effects.

Alternative methods to maintain the trees and protect the heritage building

81. We accept that this is an application for the removal of two Notable trees. However, to determine whether such removal is necessary requires consideration of possible alternatives, their feasibility and costs. We consider we only need to do this to the extent that we consider there is a feasible option or options that are capable of working into the longer term, as it will be up to the applicant to decide whether they would wish to proceed with any consent application such options might rely on.

82. Part of the hearing focused on the appropriateness of methods other than removal to support the scheduled trees and the heritage building. Mr Mostert considers end weight reduction, propping and reduction are not viable options for a range of reasons. Mr Twiname supported his colleague Mike Lee’s report27 findings on propping options; three options were considered, namely propping of the branches between the trunks of the tree and the building; propping of the branches of the tree on the opposite side of the building; or propping of the branches from within the building. Mr Lee considers the first option to be impossible, or likely to be impossible, while the second requires elevating the relevant branches in the vicinity of one metre, though at the hearing Mr Twiname agreed that 500mm would be sufficient. Mr Lee costed the third option at between $88,500-116,150 GST inclusive, Ms Fogel indicates the impact on the existing fabric of the heritage building would be problematic, and the JWS indicates it will introduce undesirable bending stress into the vaulted brick ceiling. We find this option to be neither feasible nor cost effective and do not consider it further.

83. As regards option 2 of elevating the relevant branches 500mm or more, Mr Boucher was very clear that the Pohutukawa trees would not live through the lifting required, and severance at the root plate with its big wood and lack of flexibility would be likely. Mr Krebs agrees, while Mr Mostert considers such lifting will produce unpredictable forces on the trees. We do not consider this option further.

84. Mr Krebs, with support from Mr Boucher, proposes a variation on option 2, which involves only very limited jacking of tree limbs, upwards a matter of millimetres to achieve enough clearance to install suitable props, and includes photos of the two trees, with two possible props for each of the two limbs contacting the building. This option also involves some weight reduction pruning. Mr Krebs provided photos of tree props with similar aged Pohutukawa trees at 22A Minnehaha Avenue which fronts onto Thorne Bay, and indicated from his experience, propping is effective and does not need to be an expensive exercise. Mr Boucher also pointed to this site and how a dwelling has been built beneath structurally-flawed (but by implication, resilient) trees.

85. As noted above, the JWS states that Mr Krebs’ propping and pruning option for Pohutukawa tree 1 Limb 1 has merit. We also note that consideration would need to be given to the appropriate location of any props and to the roof fabric. The JWS

27 Mike Lee, Engineering report, Airey Consultants Ltd, dated 6.3.2014 18

states the propping and pruning option has no merit for tree 2 and the limb should be removed.

86. We find that there is merit in investigating the propping (and pruning) of tree 1 limb 1, with a view to enabling the tree and the heritage building to co-exist into the longer term.

87. We note Mr Krebs questions the JWS assertion of a lack of merit in propping and propping of tree 2 limb 2, given the lack of reasoning to support the conclusion, and his view that pruning and propping viable. We do not make a finding as to tree 2 limb 2, as we consider that joint consideration by arboricultural and engineering experts working together may come to a different outcome to that of the JWS. However if that is not the case we accept that limb 2 should be removed.

88. Messrs Krebs and Boucher both consider that the two trees should be retained even if greater pruning is required than they currently suggest, given the trees will continue to provide some protection from north east storms to the rest of the grove, and continue to provide amenity to the surrounding area. We find that should the propping options not be feasible when combined with pruning for either of the two Pohutukawa trees that removal of limbs 1 and 2 is preferred, and an acceptable outcome in that it avoids the significant adverse effects of whole tree removal.

Other issues relating to the scheduled trees

89. Other issues relating to the scheduled trees, for example, safety issues and driveway access for emergency vehicles. Ms Aynsley indicates she and her family want to be able to safely live in their house, that the trees are big trees, and a massive danger. She is also concerned that the trees are in the process of drooping all over the driveway and starting to restrict access for emergency vehicles. Mr Boucher in response to questions, indicated there is no evidence for the trees being a massive danger, and that Mr Kreb’s proposal would improve the applicant’s situation.

90. Mr Mostert points to a large leader of tree 1 overhanging the driveway which has “now sagged to the point that it is starting to obstruct traffic along the driveway.” 28 In his evidence he refers specifically to access by trucks and emergency vehicles now being restricted. Mr Braggins in the written right of reply at 3.3 refers to the Building Code and the requirements of Clause C5.3 on access and safety for fire fighting operations, and suggests that because of Pohutukawa tree 1 the access does not meet the requirements. We asked for clarification on this point, and the Council’s Building Control team advise that the provision does not apply as the buildings at 8 Minnehaha Avenue form one single detached dwelling. Mr Boucher in his evidence indicates that normal sized vehicular traffic, including vans, can access the property better than many properties in Auckland, and that if there are access concerns, significant weight reduction in the stem can be easily achieved.

91. We saw the access working well during our site visit. We find that there is no mandatory requirement for emergency vehicles to access the property, and that access to the dwelling is acceptable.

28 Mostert, ibid, section 6 19

Positive effects

92. We acknowledge that there would be positive effects if consent is granted, focused on the applicants being able to proceed as they wish, and for the neighbours who are in support of the application, particularly for 6 Minnehaha Avenue which may experience less shading from the canopies of the trees removed. The applicants would be able to undertake work on the heritage building, without also needing to consider appropriate maintenance of the two protected trees. High sided vans and large trucks would also be able to access further into the property.

Overall findings on the actual and potential effects of the activity on the environment

93. Our key finding on the actual and potential effects of the activity on the environment as required by section 104 (1) (a) is that the activity would have significant adverse effects on the environment, for a range of reasons.

94. There would significant adverse effects on the character and amenity of Minnehaha Avenue, very real ongoing risks to the ongoing health of the remaining five protected trees in the grove of Pohutukawa trees on the property, and loss of context and co- existence with the heritage building with more than minor adverse effects. Complete removal of the two scheduled Pohutukawa trees is not necessary to meet the applicant’s main objective of protecting the heritage building, as with props and/or pruning this outcome is able to be achieved at reasonable cost.

STATUTORY CONSIDERATIONS

95. In this section we assess the activity in terms of the relevant statutory documents, as required by section 104 (1) (b), and also section 104 (1) (c) which refers to other matters.

Section 104 (1) (b) National Statutory Documents

96. There are no National Environmental Standards (NES) or other regulations in effect that apply to this application, no relevant National Policy Statements, and the New Zealand Coastal Policy Statement is not applicable.

Auckland Council Regional Policy Statement

97. The Auckland Council Regional Policy Statement (ACRPS) sets out the strategic direction for managing the use, development and protection of the natural and physical resources of the Auckland region. Ms Robins indicates this requires the protection of the region’s important natural and cultural heritage, landscape and amenity values of significant landscapes. Given our findings on effects above, we find the removal of two scheduled Pohutukawa trees is not consistent with the strategic direction of the ACRPS.

Operative Auckland Council District Plan (North Shore Section)

98. We now turn to key objectives, policies and assessment criteria from the Operative Auckland Council District Plan (North Shore Section) (or ODP for short) set out in the section 42a report at section 6.7. The ODP at 8.3.4 includes the following objectives of tree management:

• To promote amenity values in both the urban and rural areas by maintaining and enhancing the tree cover present in the City. • To retain trees that contribute to the amenity, landscape and ecological values in the urban area. • …

99. A relevant policy is “By ensuring the retention of trees that contribute to amenity, landscape and ecological values of the area, including by general tree protection a schedule of notable trees and conditions of consent on subdivision and resource.“ The explanatory material provides further support: “Collectively, trees can make a significant contribution to ecological function in addition to the amenity values they provide, and help to endow the landscape with distinctive environment, quality and charm.” As regards notable or scheduled trees the explanatory material states “There is a number of trees which are of such scientific, aesthetic or historic significance that their continued survival and good health is in the interests of the community at large.” We consider the proposal is contrary to this policy framework.

100. The policy framework above is supported by other objectives and policies, including those in section 16 for the Residential 2B zone, and those in section 11 on heritage. Ms Robins indicates that the Residential 2B zone objective 16.4.2.2 seeks:

to ensure that those areas which enjoy a particular natural character due to factors such as larger site sizes, significant numbers of mature trees, small pockets of bush or a coastal setting retain these values. The Residential 2B zone also applies to small areas which enjoy a high standard of natural amenity. The zone seeks to ensure that these values are recognised and protected.

101. We agree with Ms Robins that the removal of the subject trees will have a more than minor adverse effect of the character enjoyed within Minnehaha Avenue, being an area that has a high standard of natural amenity and which exemplifies the qualities identified in the objective and its associated policies.

102. The 11.3.1 heritage objective is “That buildings, objects, and places of heritage significance be recognised and protected.” Relevant policies include:

• By ensuring that any demolition , alteration, work to or use of a building, object or place of heritage significance is carried out in a manner that is consistent with the heritage values of the scheduled item, including architectural quality, evidence of historical association, environmental character or historical integrity. • By managing the effects of activities that cause the loss of cultural heritage values associated with scheduled items to avoid, remedy or mitigate those effects. • By encouraging the continued use of scheduled buildings. • By raising public awareness of heritage values and built structures.

• By ensuring that the character of a scheduled building, together with any other scheduled elements on the site which add to the particular quality and character of the building rendered worthy of scheduling, is not inappropriately removed, damaged or significantly altered.

103. As noted above under effects Ms Fogel considers the Thorne Estate Dairy to be significant as a rare remaining example of Takapuna’s agricultural history, with the grove of Pohutukawa trees further reinforcing the rural history and values of the place, and that loss of the two Pohutukawa trees would detract from the scheduled building’s integrity of setting with more than minor adverse effects.

104. We accept Ms Fogel’s expert evidence. We find that removal of the two Pohutukawa trees would not be consistent with the heritage values of the scheduled building, given the historical association and environmental character the two trees provide to it. .

105. The ODP also includes rules/assessment criteria at 8.4.6.6.1 a) – i), and 8.4.6.6.2 by which to assess the application. We have considered most of these in the effects assessment above, (e.g. alternatives to tree removal, extent of trimming and maintenance so here only focus on those matters not covered. Mr Braggins considers that circumstances exist to warrant removal as set out in a):

Where the removal or destruction of a tree (or trees) is proposed, the Council must be satisfied that circumstances exist to warrant removal which may include dangerous, diseased or damaged conditions’ compliance with any statutory or legal obligation’ or undue interference with the reasonable enjoyment of land and/or adjoining land of residential zoning for residential purposes.

106. We disagree with Mr Braggins, given our findings on the state of the heritage building and on the two trees, the policy framework above, and the substantial period of time the two trees and heritage building have been protected, and the reasonable access to the property.

107. We accept relocation of the trees is not practicable, given their size and growing environment, but that removal would result in a direct loss of amenity from the local area and the context in which the built structure is set which is more than minor. As regards whether proposed landscaping or revegetation can compensate for any loss envisaged, we consider the loss of two mature Pohutukawa trees would take some decades to be effectively replaced by any replanted Pohutukawa trees, given the species growth rate and the size of the current trees.

108. We accept that the two trees will play a role in the conservation of water and soil, provide habitat for birds and other animals, and support the ecological values of the area.

109. Our overall finding on the ODP’s objectives and policies, and assessment criteria is that the removal of the two scheduled Pohutukawa trees is contrary to relevant objectives and policies in sections 8, 11 and 16, and not a good fit with the assessment criteria.

Proposed Auckland Unitary Plan (PAUP)

110. The Proposed Auckland Unitary Plan (PAUP) was notified on 30th September 2013. The application site is in the Residential Single House zone, and has two

overlays associated with it on Notable Trees and Historic Heritage Place. PAUP objectives and policies are relevant in assessing discretionary activity applications, and include those in Part 2 Chapter E, 6 Natural Heritage, and 6.1 Notable Trees. Ms Robins indicates their intent is similar to that of the ODP’S relevant objective and policies, and as such, is contrary not only to the ODP but also to the PAUP, and that weighting only becomes relevant in the event different outcomes arise from such an assessment. We accept this and find the proposal is contrary to the PAUP.

Section 104 (1) (c) Other Matters

111. We acknowledge and appreciate the applicant’s concern for the heritage building The applicant offers a bond of $30,000 to ensure compliance with their proposed conditions that require the Thorne Estate Diary be made weather tight and repair the cracking, but only if consent is given for the removal of the two Pohutukawa trees.

112. A number of submitters, including the Tree Council, Environment Takapuna, and Erik and Diana Marjo, and the reporting planner Ms Robins are concerned about the precedent effect that consent would support. They variously point to other applications in Minnehaha Avenue and the wider North Shore to remove protected trees of similar species, size and amenity contribution, and that without due cause all have been refused consent. The Tree Council noted that given amendments to the Act, there are now few opportunities for new trees to become protected, and that over time this may have an adverse impact on the amenity of the North Shore.

113. Given our findings on adverse effects and relevant statutory documents above, we also find that granting consent would have a significant adverse precedent effect, and undermine public confidence consistently administration of the Operative District Plan.

REASONS FOR THIS DECISION

114. We set out our decision at the beginning of this report. The reasons for the decision are as follows:

a) In terms of section 104(1)(a) of the RMA the actual and potential adverse effect on the visual amenity of allowing the removal of the trees is likely to be more than minor as the trees are significant features which add to the character and amenity not only of the site, but more significantly to Minnehaha Avenue and the locality and provide an appropriate setting for the historic Thorne Estate Dairy Building.

b) Practicable alternatives to the removal of the trees exist to protect the heritage building adjacent to the subject trees, the protection of which is identified by the applicant as being the catalyst for the application to remove the trees.

c) The trees form part of a grove of trees scheduled as Notable trees in the Auckland Council District Plan (North Shore section) and in the Proposed Auckland Unitary Plan due to the contribution these trees make to the character and amenity of Minnehaha Avenue, the city and the historic context they provide. The trees continue to display the qualities for which they were scheduled and as such, in the absence of a conclusive and an unavoidable need to remove the trees, their removal would be

contrary to the relevant provisions of the Operative District Plan and Proposed Auckland Unitary Plan.

d) Granting consent would create a potentially significant adverse precedent effect and undermine the consistent administration of the District Plan, given the importance placed on these trees by the relevant statutory instruments, the contribution the trees continue to make to the character, amenity and historic heritage of Minnehaha Avenue, the surrounding environment, and city, as well as the lack of necessity of tree removal as propping and/or pruning the two trees is a viable, effective alternative and enables the ongoing protection of the scheduled heritage structure and trees.

e) The removal of the trees is not consistent with the Part 2 of the Act as the proposal will result in more than minor adverse effects on the physical environment, while appropriate alternative means exist to achieve the goal of the applicant while having far less of an adverse effect on the environment.

Chairperson

Date: 3 June 2015