IN THE MATTER OF section 71 of the Canterbury Earthquake Recovery Act 2011 and the Canterbury Earthquake (Christchurch Replacement District Plan) Order 2014 AND IN THE MATTER OF proposals notified for incorporation into a Christchurch Replacement District Plan Date of hearing: 18–25 January, 2–10 February, 9–10 May 2016 Reconvened for site-specific matters 10 and 11 August 2016 (as per report on pre-hearing meeting, 21 July 2016) Date of decision: 30 September 2016 Hearing Panel: Hon Sir John Hansen (Chair), Environment Judge John Hassan (Deputy Chair), Ms Sarah Dawson, Ms Jane Huria, Dr Phil Mitchell ___________________________________________________________________________ DECISION 44 CHAPTER 9: NATURAL AND CULTURAL HERITAGE (PART) Topic 9.4 — Significant Trees ___________________________________________________________________________ Outcome: Proposals changed as per Schedule 1 Direction to the Council to provide a schedule of significant trees in the public realm for Appendix 9.4.7.2 as per [80] Direction to the Council to provide a schedule of significant trees in the private realm for Appendix 9.4.7.1.1 and Appendix 9.4.7.1.2 as per [84] 2 TABLE OF CONTENTS Introduction .............................................................................................................................. 3 Preliminary matters ............................................................................................................... 3 Identification of parts of Existing District Plan to be replaced ............................................. 3 Conflicts of interest ................................................................................................................ 4 Introduction............................................................................................................................ 4 Statutory principles ................................................................................................................ 6 Council’s Section 32 Report ................................................................................................ 12 CTEM ................................................................................................................................... 12 Trees in the public realm ....................................................................................................... 14 New Appendix 9.4.6.3 — Schedule of significant public trees ............................................. 17 Trees in the private realm ..................................................................................................... 20 Trees on private land where the Council seeks delisting ..................................................... 20 Trees on private land where the Council seeks listing ........................................................ 28 Trees on private land where the Council has not stated a position ..................................... 44 Eliot Sinclair submission on consent notices ....................................................................... 75 Section 32AA evaluation........................................................................................................ 75 Conclusion .............................................................................................................................. 77 Schedule 1 ............................................................................................................................... 79 Schedule 2 ............................................................................................................................... 99 Schedule 3 ............................................................................................................................. 165 Natural and Cultural Heritage – Topic 9.4 3 INTRODUCTION Preliminary matters [1] This decision follows our hearing of submissions and evidence on the Stage 3 Chapter 9 Natural and Cultural Heritage proposal, and specifically sub-chapter 9.4 on “significant trees”. On 26 August 2016, the Panel issued Decision 38 on sub-chapter 9.2 concerning Outstanding Natural Features and Landscapes, Significant Features and Landscapes and Areas of Natural Character in the Coastal Environment (‘Decision 38’). We refer to and adopt what that decision sets out concerning our processes under the Canterbury Earthquake (Christchurch Replacement District Plan) Order 2014 (‘OIC’) for the formulation of the Christchurch Replacement District Plan (‘CRDP’),1 rights of appeal and the effect of this decision,2 the statutory framework of the OIC and the Resource Management Act 1991 (‘RMA’),3 and the relevance of the Panel’s Decision 1 on Strategic Directions, including the CRDP’s Strategic Directions Objectives.4 [2] Following mediations, expert conferencing, our hearing and various Panel directions, Christchurch City Council (‘Council’/‘CCC’) proposed various changes to its notified version of sub-chapter 9.4 (‘Notified Version’). This culminated with the version it provided with its closing submissions (‘Final Revised Version’) which we treat as superseding the Notified Version insofar as the Council’s position is concerned. The changes we make to the Final Revised Version are in Schedule 1 (‘Decision Version’). [3] Panel member, Dr Phil Mitchell, was unable to be present for the reconvened hearing on 10 and 11 August. However, he participated in the hearing on all other dates. Dr Mitchell is a signatory to this decision for all matters and decisions other than those arising from 10 and 11 August. Identification of parts of Existing District Plan to be replaced [4] The OIC requires that our decision also identifies the parts of the Existing Plan5 to be replaced by this decision. It replaces the Existing Plan’s listed significant trees (although we 1 Decision 38 at [1]. 2 Decision 38 at [8]. 3 Decision 38 at [12]–[13]. 4 Decision 38 at [18]. 5 Comprising the Christchurch City Plan and the Banks Peninsula District Plan. Natural and Cultural Heritage – Topic 9.4 4 have relisted public realm trees from the existing Christchurch and Banks Peninsula plans). The provisions in Schedule 1 replace those in the Existing Plan. Conflicts of interest [5] We have posted notice of any potential conflicts of interest on the Independent Hearings Panel website.6 In the course of the hearing, it was identified on various occasions that submitters were known to members of the Panel either through previous business associations or through current or former personal associations. Those disclosures (and, on some matters, member recusals) were recorded in the transcript, which was again available daily on the Hearings Panel’s website. No party raised any issue. Introduction [6] Sub-chapter 9.4, dealing with significant trees, drew a passionate response from a relatively small group of submitters. This is not surprising given the importance of trees to the appearance and amenity of Christchurch and its surrounds and the particular tensions that can arise between those matters and private property rights (the related statutory principles concerning which we address at [20] and following). [7] While at the close of the hearing there remained substantial differences between some submitters and the Council, the formal and informal mediation process brought significant other submitters and the Council much closer to agreement. [8] We will outline the Council’s initial response and then go straight to the matters that remained outstanding after closings, and deal with the more general matters, followed by site- specific ones. [9] In the course of that, it is necessary to address some important process matters and fairness issues that arose in the course of the hearing. [10] Ms Rachlin gave planning evidence on behalf of the CCC at section 17 of her brief of evidence.7 This outlined the CCC’s approach, which she said was driven by s 5 of the RMA 6 The website address is www.chchplan.ihp.govt.nz. 7 Evidence in chief of Caroline Rachlin on behalf of the CCC, 15 December 2015. Natural and Cultural Heritage – Topic 9.4 5 and s 7 matters (including the maintenance and enhancement of amenity, the maintenance and enhancement of the quality of the environment and the Council’s functions under s 31). [11] She also gave evidence that the approach recognised the Higher Order Documents, including the Canterbury Regional Policy Statement 2013 (‘CRPS’), the Land Use Recovery Plan (‘LURP’), the Central City Recovery Plan (‘CCRP’) and the Statement of Expectations. She also took into account previous decisions of the Panel. [12] She noted that the Existing Plan contains substantial lists of significant trees, the bulk of which were listed at, or even prior to, the time of the Existing Plan’s public notification. [13] CCC considered that as the list was so substantial, there was insufficient time and resource available to undertake a full review of it. For that reason, CCC took a two-fold approach: one for trees on private land and the other for those in the public realm. [14] First, all trees on private land that are listed in the Existing Plan were inspected and assessed using the Christchurch Tree Evaluation Method (‘CTEM’), which is more fully described in Mr Graham’s evidence.8 Trees that were found to have met specified selection criteria under the CTEM were identified as significant. Further assessment of some significant trees was undertaken to identify if they had exceptional value. Significant trees, and those significant trees with exceptional values, were listed in the Notified