In New Zealand, certain trees are designated as Notable Trees. These can hold a special place in the hearts of communities and are protected under a robust legal framework as part of the Resource Management Act 1991 (RMA)
Recently, the Auckland District Court fined an arborist $32,500 for cutting down a Notable Tree without resource consent (see story on page 26). This has raised important questions about which trees are protected and any potential liability if you do remove or alter a protected tree without proper permission.
For arborists, landscapers, and the like, understanding what Notable Trees are and how they are protected is not only a matter of environmental stewardship but also a critical consideration to avoid potential liabilities. In this article, we aim to shed a light on the legal framework surrounding Notable Trees, the best practice in navigating this framework and any potential liability you could face for acting in a matter that contravenes the RMA.
Understanding Notable Trees
Notable Trees are tree species that are granted protection under the RMA and local district council regulations. The RMA gives local authorities the power to identify and designate trees with special cultural, ecological, or historical value as Notable Trees.
What constitutes a Notable Tree is provided for in your respective local council’s district plans. For example, the Auckland Council has a schedule which lists and locates every Notable Tree in the district. This schedule lists the botanical name and common name of each tree and the respective street address they are located on.
However, some districts (for example, Southland Council) do not identify specific Notable Trees and instead have blanket protections on only indigenous vegetation. It is important to enquire with your local council before cutting down any trees in case there are Notable Trees in your district.
Legal framework and resource management consent
The preservation of Notable Trees in New Zealand is anchored in the RMA. Once a tree is designated as a Notable Tree, it becomes subject to legal protections under the RMA. Consent will be needed for activities that may affect the tree, including tree removal or major pruning. Importantly, the RMA encompasses district local plans, making any Notable Tree schedules an enforceable part of the RMA.
The RMA outlines stringent measures to ensure any removal or alteration of the Notable Tree is given careful consideration, by balancing environmental protection and development against the particular needs of the person seeking removal or alteration.
When looking to alter or remove a Notable Tree, it is crucial to follow the procedure prescribed in the RMA by applying for resource consent well in advance of any activity taking place. This will allow for ample consideration of the application, to address any issues arising from the proposed alteration or removal.
Unlawfully altering or removing a Notable Tree could result in a number of adverse outcomes.
The RMA has severe criminal penalties when it comes to preserving Notable Trees, with individuals subject to a term of imprisonment not exceeding two years or a fine not exceeding $300,000 if they do not first obtain consent when altering or removing Notable Trees.
In the case of a company removing or altering a Notable Tree, a fine of up to $600,000 could be imposed. While the maximum penalty is rarely imposed, it emphasises the stringent measures in place to protect Notable Trees.
In determining liability, the Courts take into account multiple factors. These factors include environmental affects and the cultural value of the tree. In recent Court cases, remorse was a major mitigating factor in sentencing. Those who showed remorse after cutting down Notable Trees without consent, by fronting the issue to the council and cooperating with authorities, received a lower sentence.
In the case of Auckland Council v Waitakere Tree Services Ltd  NZDC 5629, the defendant chopped down a Copper Beech tree, a Notable Tree, without consent. The defendants, Waitakere Tree Services Limited (“WTSL”) and the director of WSTL, were contracted to remove all trees on a section of land undergoing development at 286 Manukau Road, Epsom (“the section”).
WTSL did use the Auckland Council schedule to check for any Notable Trees on the section, by looking up “286 Manukau Road” on the schedule. However, the schedule had an unconventional address format, with the section instead being listed as “Manukau Road 286” – WTSL missed this vital information. Unaware there was a Notable Tree, WTSL chopped down a Copper Beech tree on the section without obtaining resource consent.
This reaffirms the strict nature of the RMA. While the developer who contracted WTSL did not let them know there was a Notable Tree, and WTSL tried to check if there were Notable Trees, the company and its director were still found culpable and fined $32,500. This case remains a stark reminder to thoroughly check when seeing if there are Notable Trees before removal or altercation.
The defendants, WTSL, pleaded guilty very early on and received a 25% discount on their sentence. The defendants also showed remorse, by offering to replace the Copper Beech tree and brought their wrongdoing to the attention of the council. Their assistance in the investigation led to a further 10% discount. This emphasises the benefit of fronting the issue if you find yourself in a similar predicament, especially if you did not know the tree was designated a Notable Tree. However, ignorance of the law (or indeed ignorance of the fact a tree was designated a Notable Tree) is not a defence.
Notable Trees are of great importance to New Zealand and have significant legal protections in the law. If you are an arborist, landscaper or are just wanting to remove a tree, it is critical to check if the tree is considered notable. If it is notable, resource consent will be required.
Even if you receive information from a principal or developer that there are no Notable Trees in the work you are carrying out, you must still make your own reasonable enquiries to
You will need to check very carefully, as the Manukau Road example shows. However, if you find yourself in a situation where you have already removed or altered the Notable Tree, fronting the issue head on may be the best way avoid or limit the adverse outcomes imposed under the RMA.
Thomas Milne is a litigator at Auckland firm Martelli McKegg. His phone number is (09) 300 7602, and email firstname.lastname@example.org.
This article is not intended to be relied upon as legal advice.