Auckland Council has for the second time in just over two years been found to have failed to follow the law when granting the Tūpuna Maunga Authority a resource consent to fell hundreds of exotic trees on Auckland's maunga.

The High Court late last week delivered its decision on the Shirley Waru v Tūpuna Maunga Authority and Auckland Council judicial review.

The case concerned the Council’s decision to grant the Authority a non-notified resource consent to fell 278 non-native trees on Ōtāhuhu Mt Richmond, almost half of the trees on this reserve. The effect of granting a “non-notified” resource consent was to deny the public an opportunity to participate in the resource consent process.

Last year around 60 trees were felled at the maunga under that resource consent. The Authority has signalled its intention to fell almost all of the 443 non-native trees there over time.

In her decision, Justice Tahana found that the Council, in considering the resource consent application, had failed to properly consider the proposed felling’s adverse effects on the amenity of the maunga. As a result, the Court has set aside the resource consent.

This judicial decision follows the Court of Appeal unanimously finding Tūpuna Maunga Authority had breached the law by failing to consult over its decision to fell 345 non-native trees on Ōwairaka Mt Albert, and that the Council had breached the law when granting a non-notified resource consent to fell those trees.

Commenting on the Ōtāhuhu Mt Richmond decision, the applicant Shirley Waru (Te Rarawa o Ngāpuhi / Te Uri o Tai), said: "It never should have come to this. What’s more, it is clear that Authority never should have felled all those trees at the maunga last August, relying on a resource consent that the Court has now confirmed should never have been granted in the first place.

“As has been seen in recent years, the vast majority of the public do not want to see the maunga trees felled. This is a precious place of recreation and refuge for our local community.

“Ōtāhuhu already has Auckland's lowest tree cover at less than 7% and very few green spaces to enjoy as compared to other parts of Auckland. Cutting down almost half of the mature trees, including many of the oldest and largest on the maunga, would be devastating.”

Waru had to resort to crowd funding to help pay for the judicial review legal costs, raising over $32,000.

"I feel hugely let down by the Authority. I also feel let down by our local board and Auckland Council who continue to support the Authority's tree felling plans and budget despite deep community opposition."

Waru noted that the Authority regularly defended its tree felling actions by claiming thousands of plantings at Ōtāhuhu Mt Richmond would replace the felled trees, whereas that planting could happen (and was already happening) regardless of whether the exotic trees were cut down. Official information requests also revealed the vast majority of plantings are grasses, flaxes and shrubs rather than large trees.

"These plantings can never replace the tall trees and native bird habitats that would be destroyed if these trees were cut down. I hope this decision will cause the Authority to think again on its plans for our maunga.

“I also hope it will cause the Council, if the Authority applies for another resource consent, to allow our community to participate in the process and to genuinely take our views into account.”

Questions and answers

Does this judicial decision mean the trees are safe?

No. Although setting aside Ōtāhuhu Mt Richmond’s tree felling resource consent means the trees are safe for now, their future safety is not at all guaranteed.

The Authority has signalled its intention to remove most if not nearly all non-native trees on this maunga and others, so it is likely they will apply for another resource consent in future. If, however, the Council now allows the public to participate in the resource consent process, our local community will be able to have a direct say. Without a resource consent, the Authority cannot cut down these trees.

Does the decision apply to other maunga?

No, the decision is specific to Ōtāhuhu Mt Richmond. However, the decision is closely aligned with the Ōwairaka Mt Albert decision, which set aside the non-notified resource consent for that maunga. We therefore hope that both Auckland Council and Tūpuna Maunga Authority will now accept that it is unlawful not to have a public process when considering resource consents for maunga tree felling.

Having a public process will not only protect them (and ratepayers) from future expensive judicial reviews in relation to other maunga but will also give the public their say as required under the law.

What consultation has taken place to date?

When it comes to the maunga trees, both Tūpuna Maunga Authority and Auckland Council have to date taken a cynical tick-box approach to their consultations.

Official information requests show that nearly all consultation respondents who mention the maunga trees are against felling them. For example, the Authority’s consultation around the Integrated Management Plan amendments saw nearly 1600 submissions, of which 93% opposed tree felling (6% supported it and 1% did not mention the trees or were out of scope).

Yet the Authority’s Integrated Management Plans and annual budgets (which are ratified by the Council’s Governing Body) make it clear they still intend to fell most if not virtually all of the exotic trees.

Could the Council or the Authority appeal the decision?

Auckland Council has stated it intends to abide by the decision, which means it will not appeal.

The Authority could try to appeal the decision. However, this is the second decision, after the Court of Appeal’s decision in the Ōwairaka case, that has set aside a non-notified resource consent for felling trees on Auckland maunga. The Authority applied to the Supreme Court for leave to appeal the Court of Appeal’s decision but was denied.

We hope that instead of spending more ratepayer money on trying to appeal this decision, the Authority will instead accept that the public should be able to participate in any future resource consent process. And we hope that there is integrity in the process, and it is not simply a tick-box exercise.

What will you do if they decide to appeal?

We will cross that bridge if we come to it.

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