The recent decision by the Auckland Council to allow a developer to fell a 150-year-old Norfolk pine gifted by Sir George Grey to a Snell's Beach early settler has revealed much more about how developers exploit recent changes to the Resource Management Act.
As part of the consent to fell the tree, the Auckland Council has also approved an intensive 33-house development in an outstanding natural landscape and archaeological site fronting a sensitive beach and a fresh water stream.
Even though many parts of the Auckland Unitary Plan are under appeal and the development was processed as a non-complying activity, the Orewa-based planner approved the resource consents without first notifying it to anyone. That's unthinkable.
Why would a council supposedly so concerned about transparency go to so much effort to avoid public scrutiny of a controversial development? The answer may lie with Government law changes, how the council applied the law, and the way the developer worked around them.
The Government's 2009 "streamlining" of the RMA removed blanket protection of trees, clumsily changed criteria for determining whether to notify resource consents, and then removed the appeal and objecting rights of those not notified.
The law drafting was so poor, it can be interpreted to disregard the very people the law is meant to protect.
Think about who is the most likely to be affected by a proposed development. The neighbours, right? According to the council's absurd interpretation of the law changes, the effects on neighbours must be disregarded when considering whether to notify them.
With this interpretation, the developer selectively consulted affected parties. They relied on the written approval of the only neighbour consulted to avoid the other neighbours from having a say.
The neighbour who provided written approval had a conflict of interest in the proposed development, buying two lots for a heavily-discounted $1.5million. The developer also removed encumbering easements over one of his neighbouring developments.
The resource consent application was lodged on December 23, 2015. In January 2017, the first publicity advertised the development as "underway" and "will be entering the market in Summer 2017". That's a bold assumption for such a non-complying project without council approval.
Locals had no reason to worry about the Norfolk pine as the tree featured in printed and online promotions. On February 23, however, the application was changed to include the removal of the 150-year-old Norfolk pine. On July 25, the consent was granted. At 6.45am on August 21, locals discovered that the tree was to be felled when chainsaws awoke Snell's Beach.
Elected officials were outraged that they weren't notified. Bureaucrats admitted that they got it wrong. They told locals that the only recourse is an expensive judicial review through the High Court.
For a $56.22 application fee, however, an Environment Court judge told locals that they could simply apply for an enforcement order to protect the tree. The judge, who also chaired the Unitary Plan Independent Hearings Panel, also suggested that the council can review its decision if the application contained materially inaccurate information.
So far, heritage, archaeological, ecological, landscape, conservation, planning, and legal experts have all pointed the council towards serious oversights. The planner who wrote the application even misspelt her name multiple times!
If the application was publicly notified in the first place, the raft of inaccuracies would have surfaced. Instead, the council is scrambling for excuses.
The tree has an extraordinary story and is a living landmark. Soon after buying Kawau Island in 1862, Sir George Grey propagated many exotic trees and gifted many to early settlers
At a time of dense native bush, prominent Norfolk pines were important navigational tools that identified estuaries, harbour entrances, fresh water streams, and homes.
The Scandrett's Norfolk (~1870) and Snell's Oak (1864) are protected. The protection of the Lawrie's Norfolk (~1864), which developers want felled, was an oversight. It is now on the New Zealand Tree Register and lodged for council protection. The council, however, won't act on the information it now has.
The developer wants to protect his proposed 33-house "Boathouse Bay" coastal development from the tree. The council hasn't recognised that the law is meant to protect the tree from the development.
As a matter of "national importance", everyone exercising functions of the RMA must recognise and provide for the protection of outstanding natural features and historic heritage from inappropriate subdivision, use, and development.
At 40m and 150+ years old, there is no doubt that the tree is one of the seven most important Norfolk pines in the country. It shouldn't take counting the tree-rings of a stump to prove how important the tree was.
* Grant McLachlan is a planning law specialist and former hearings commissioner who has worked in Parliament advising on RMA reforms.