CONSENT, PURSUANT TO SECTIONS 34A, 88, 104, 104C, and 108 OF THE RESOURCE MANAGEMENT ACT, IS GRANTED. THE FULL DECISION IS SET OUT BELOW

Transcription

1 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 D C Barnard to remove a generally protected Liquidamber tree at 206 Hillsborough Road, Hillsborough held on 2 December 2010 commencing at 9.30am CONSENT, PURSUANT TO SECTIONS 34A, 88, 104, 104C, and 108 OF THE RESOURCE MANAGEMENT ACT, IS GRANTED. THE FULL DECISION IS SET OUT BELOW Hearing Panel: The Application was heard by a Hearings Commissioner consisting of: Ms K Ryan (Chairman) Council Officers: Mr M Weingarth Reporting Planner Mr P Hansen Arborist Ms W Stephenson Committee Secretary - Hearings APPEARANCES: For the applicant: Mr D C Barnard and Mrs W Barnard Mr Gerard Mostert, Consultant Arborist APPLICATION DESCRIPTION Application and Property Details Application Number (s): Site Address: Applicant's Name: Hearing Commencement: R/TRC/2010/ Hillsborough Road, Hillsborough D C Barnard 9.30am Overview And Decision Overview Application R/TRC/2010/3619 was lodged on and is for a restricted discretionary land use resource consent under section 88 of the Resource Management Act 1991 (the Act/RMA). The applicant proposes to remove one generally protected trees, a Liquidambar located in the back yard on the south east side of 206 Hillsborough Road. An Independent Tree Commissioner, Mr B Kaye had previously considered the application, and on 20 September 2010 declined it. This hearing was to reconsider the 206 Hillsborough Road, Hillsborough 1

2 application. The Council Report, with attachments, was circulated to the parties prior to the hearing, and taken as read. The Commissioner visited the site prior to the hearing. DECISION The Auckland Council, under delegated authority and pursuant to Sections 34A, 88, 104, 104C, and 108 of the Resource Management Act 1991, grants consent to the application by Mr D C Barnard to remove one generally protected tree, namely a Liquidambar tree from the back yard of 206 Hillsborough Road, Hillsborough, for the reasons pursuant to Section 113 of the Act and set out below. Summary of proposal and activity status The proposal requires a resource consent pursuant to the provisions of the Auckland City Operative District Plan 1999 Isthmus Section for the following reasons: The proposal involves removing two generally protected trees from the site. This is a restricted discretionary activity pursuant to Rule 5C.7.3.3C and Clause of the Operative District Plan 1999 Isthmus Section. Overall the proposal is a restricted discretionary activity. Relevant Statutory and Plan Provisions The following provisions of the Resource Management Act 1991 were relevant in the assessment of this application: sections 104, 104C (restricted discretionary activity). Relevant Plan Provisions The relevant planning document considered was the Auckland City District Plan 1999 Isthmus Section and in particular the following: Clause 5C (Tree Objectives and Policies) Clause 5C (Tree Strategy) Clause 5C.7.3.3C (General Tree Protection Rules and Assessment Criteria). Summary of Evidence The following was considered: The application form, submitted by D C Barnard dated ; Memorandum to Hearing Commissioner, undated, listing attachments, including drawings for house alterations; plumbing accounts; and photographs, presented by Mr Barnard Report on 206 Hillsborough Road, Hillsborough, by Gerard Mostert, Urban Forestry Consulting Ltd, dated Report for a Restricted Discretionary Application to Undertake Works in Relation to atree or Trees Subject to the General Tree Protection Rule 5C.7.3.3C of the Auckland City Council Operative District Plan 1999 Isthmus Section, by Paul Hansen, Council Arborist, dated Independent Tree Commissioner Memorandum, by B Kaye dated Hillsborough Road, Hillsborough 2

3 and other correspondence relating to the application Further information than this decision contains can be found in the above material. Principal Issue in Contention Whether the tree contributes significantly to the area s amenity, versus the necessity for tree removal Main Findings The main findings of fact are: 206 Hillsborough Road is on the south east side of Hillsborough Road and slopes down from the road in the direction of the Manukau Harbour which can be seen in the distance. The Liquidambar tree is around 12 metres high with a crown spread of around the same and a two metre girth. Mr Barnard indicated he and his wife have lived at the property for the last 34 years, and that the tree was substantially at its current size when they arrived, though the trunk is now somewhat bigger. Both Mr Mostert and Mr Hansen considered the tree had a substantial life ahead of it. However Mr Mostert provided a photo of tree wounds and noted there are: numerous flush-cut wounds on the trunk, several of which show evidence of decay penetrating into the trunk Some of the decay penetrates the tree close to the attachment points of existing large branches, which I believe increases the likelihood of limb failure. Unpredictable failure of large limbs can be considered to be a characteristic of healthy, structurally-sound Liquidambar trees. I do not consider the tree to be structurally unsound to the point that is should be condemned on those grounds alone, but it has significant structural defects. Despite being in the back side yard, its upper structure and branches are clearly visible from Hillsborough Road though somewhat screened by the house. The tree, particularly when in autumn foliage would be able to be seen and distinguished from other vegetation from a considerable distance at other vantage points. As such the tree contributes to the street s and area s amenity, particularly given its height, stature, and spread. The Arborist s Report at pages 6-7 refers to the Clause 5C objectives and policies which seek to protect trees and groups of trees that significantly contribute to the district s amenity, notes the Residential 6 zone has no specific objectives and policies relating to tree protection, and comments on the zone s objectives and policies, though these are not included. The Report indicates the zone is to provide medium intensity residential neighbourhoods in appropriate locations. Mr Mostert sets out a relevant policy which refers to imposing controls on developments which protect the external environment of the site, while achieving a reasonable level of amenity for medium intensity development. I accept that removal is inconsistent With the Plan s Clause 5C objectives and policies. As regards the site s Residential 6 zoning, given this provides greater development some changes to the site could be realistically expected, though this extension could not be considered to be medium intensity development. Rule 5C.7.3.3C sets out assessment criteria for considering applications such as this one. The first of these includes The applicants need to obtain a practicable building site, access, a parking area, or to install engineering services to the land. It is accepted that it is only the proposed carport with deck above, which is in 206 Hillsborough Road, Hillsborough 3

4 direct conflict with the tree, immediately adjacent to this on its south east corner. However, as noted above and not challenged, a characteristic of Liquidambar trees is the unpredictable failure of large limbs, and some of the limbs will be very close to the proposed extension. The applicant s drawings show an extension to the house immediately adjacent to the existing house, carport and garage, and thus to the tree. It was suggested that the building could be located differently, so as to avoid the tree, and that the District Plan only provides for two parking spaces, while the carport provides a third. Mr Barnard set out the reasons for their requirements, including wishing the proposed extension to be contiguous with the existing house, the importance of site manoeuvring given difficulties accessing the busy Hillsborough Road, the need for a large carport for Mr Barnard s sister s campervan, and also the issues associated with proposed drainage and sewerage works in the tree s vicinity given the tree s large and extensive root system. He noted that damage from the tree means his thick concrete garage floor is badly cracked, the garage windows are warped, and he cannot open his garage car door. I accept the application meets this criterion. Other assessment criteria refer to relevant objectives and policies (and considered above), the function of the tree in terms of conservation of water and soil, impact on ground stability, the extent to which the tree contributes to neighbourhood amenity, and whether removal will assist the growth of other more appropriate trees, amongst other things. The Arborist s Report acknowledges the tree plays a role in stormwater runoff, and noted the site is not identified as being subject to soil instability. The tree is prominent on the site, and clearly significant in terms of local amenity. On balance, I consider the application to be appropriate, given the zoning anticipates further development, and the mix of assessment criteria, as long as the mitigation planting provides sufficient appropriate amenity for the area in the medium to longer term. Mr Mostert indicates that the applicant proposes to plant three native replacement trees as an extension of the existing planting along the eastern site boundary. These are to be Pb 60 or similar, and at least 1 metre tall at the time of planting. However the lack of information about the species means it is impossible to ascertain whether the proposed planting will over time provide a similar level of amenity to that which the existing tree currently provides. The applicants existing planting is well established, but there is nothing that appears to have a similar growth habit to that of the Liquidambar, and capable of providing significant amenity to the area, as distinct from the site. The Arborist s Report considers on page 9, that due to the size of the tree, I do not see replacement planting as being an appropriate form of mitigation for removal and that adequate mitigation is beyond the scope and budget of this project. While not being of the same stature, planting of kowhai or other native trees in the front yard closer to the road would over time provide appropriate on site amenity supportive of the area s amenity as the kowhai grew and were visible from the road. Alternatively, native or other trees capable of significant growth in the back yard, similar to that achieved by the Liquidambar, are considered to provide appropriate amenity for the area in the medium to long term. 206 Hillsborough Road, Hillsborough 4

5 Reasons for the Decision (a) (b) Mitigation planting will provide appropriate amenity for the area in the medium to long term. While removal is contrary to relevant objectives and policies of the Auckland City District Plan 1999 Isthmus Section, the proposal meets some of the relevant assessment criteria, including in particular the need for a practicable building site, access, a parking area, or to install engineering services to the land. Conditions Pursuant to section 108 of the Act, this consent is subject to the following conditions: (1) The Liquidambar tree shall only be removed after the Council has approved in writing the Tree Replacement Plan, outlined in Condition 2 below. (2) The Consent Holder shall within three months submit to the Council a Tree Replacement Plan which sets out: A B C the replacement species for two specimen trees and the location for them to be planted in the front yard of 206 Hillsborough Road; or the replacement species for two specimen trees capable over time of growing to a similar stature to the existing Liquidambar, and to be planted in the back yard of 206 Hillsborough Road, in such a position that should further development occur, the trees will continue to be protected, and in such a location that they will be able to be viewed from Hillsborough Road in the long term, and no further that two metres further down the slope from the existing Liquidambar tree. the name of the Arborist undertaking the tree removal and supervising the planting of the replacement trees. (3) All replacement trees shall be Pb95, a minimum of 1.8 metres high at the time of planting, and their planting supervised by an Arborist to ensure an appropriate growing environment is created. (4) The replacement planting shall occur within the same planting season (May to September) as removal occurs, or if removal occurs between planting seasons, shall occur in the next planting season. (5) The replacement trees shall be maintained and protected for the whole of their natural life. Should any of the replacement trees required by this consent die or decline at any time over the five years following the initial planting, to a point that in the opinion of the Council s Monitoring Officer it has little or no amenity value, it must be replaced. The replacement tree must be of the same type, grade and size and planted no later than the following planting season. (6) The consent holder shall inform the Council s Monitoring Officer, in writing, upon: a. The completion of the tree removal. b. The completion of replacement planting; this shall include photographic evidence of the replacement planting that clearly shows the location of the trees. 206 Hillsborough Road, Hillsborough 5

6 (7) Pursuant to Section 125 of the Act, this consent shall LAPSE two years after the granting of this consent unless given effect to before that date, or an extension is given in terms of Section 125 (1)(b), because the two year period is considered a fair and reasonable timeframe within which to give effect to the activity, having regard to the scale and nature of the activity, and the general duty under Section 17 of the RMA to avoid, remedy, or mitigate adverse environmental effects. (8) The removal of the Liquidambar tree shall be carried out by a suitably qualified and experienced Arborist in accordance with currently accepted arboricultural industry best practices. The work shall be carried out in such a way as to minimise damage to surrounding tree cover and property whilst working within appropriate safety parameters. Contractors unfamiliar with these standards and procedures shall not work on these trees. ADVICE NOTES 1. The Consent Holder is advised to make sure that the contractor is fully insured against third party damages. 2. This consent is issued under the Resource Management Act 1991, and does not remove the need to comply with all other applicable Acts (including the Property Law Act) regulations, Bylaws and rules of law. In order to carry out tree dismantling works from or into any neighbouring properties, landowner approval may also be required. 3. The Consent Holder is advised to make sure that work to remove the tree is within the noise limits of the Operative District Plan 1999 Isthmus Section. 4. If the Consent Holder disagrees with any of the above conditions, they have a right of objection pursuant to sections 357A of the RMA. Any objection must be made in writing to the Council within 15 working days of notification of the decision. The Council will as soon as practicable consider the objection at a hearing. Pursuant to section 116, the consent will not commence until any appeals or objections have been withdrawn or decided. Please note that Section 120 of the Act sets out the right of appeal to the Environment Court. Chairperson Date: Hillsborough Road, Hillsborough 6