Did you know that just because a tree is in your client’s yard doesn’t automatically mean you can work on or around it? Arboriculture expert Mark Roberts explains why
As a consulting arborist, I often assess our local protected trees and advise the council on applications for resource consent to work on or around them. I don’t grant the consent, I just make recommendations about whether to accept or decline the application based on what can and cannot be done, and by whom.
There’s a lot of misinformation around tree protection, although most of it is unintentional and the result of a misunderstanding or the incorrect interpretation of information. I’m often amazed at what I’m told and how complicated the consent process is perceived to be. In reality, it’s not that hard.
The first thing to do is work out who owns the tree. If you or your client don’t own it, then it’s like any other bit of property that you don’t own – you can’t damage, break, move or take stuff that isn’t yours. If you or your client don’t own it, then it’s protected – end of story.
And, unless you're a lawyer and happy to defend your actions, don’t think you can cut the branches or roots back to the boundary line or throw the leaves back over the fence – it’s not that simple, and it's never a good idea.
RMA sets the benchmark
For a tree or group of trees to be officially protected, it must be listed on the District Plan.
Each territorial authority (city or district council) in New Zealand has a District Plan, specific to the needs of the area it covers.
Once on the District Plan, the tree is afforded the full rights and protection of the Resource Management Act – the infamous RMA. In its heyday, the RMA was the international benchmark, the gold standard in environmental legislation; it was something that New Zealand could be proud of, but that was back in 1991.
Maybe it was too ambitious, maybe it was too big of a beast to handle, but whatever the case, successive governments have cut, trimmed, and hobbled it to the point where the content is no longer fit for purpose. The RMA’s intended purpose – to govern how people interact with natural resources as well as managing air, soil, freshwater and the coastal marine area – remains relevant and admirable.
Fit for purpose or not, trees are protected under the RMA, providing they are identified and listed on the District Plan. These plans are vast documents, made up of many different sections. If you’re lucky, there will be a stand-alone section called ‘schedules' with the list of protected, or ‘scheduled’ trees in your area. There probably won’t be that many.
The purpose of tree protection is in line with the aims of the RMA – to protect the natural resource (the tree) for the good of the community and/or for future generations. With that in mind, the tree list is public information and should be readily available.
Protected tree? You need resource consent
If the tree is protected and you want or need to do work on it or near1 it, you will need to apply for a resource consent, even if you or your client own it. You need to apply for consent because you’re dealing with something that has been identified as significant on a district plan. Go against the District Plan and you’re going against the RMA.
Even though fines and prosecution are few and far between, when they do happen, penalties for breaching the RMA tend to be large, can involve restraints of trade and even jail time.
If the work you intend to do on or near the tree is unlikely to harm the tree, the works will be considered a discretionary activity and permission can be granted by the council.
Different forms of consent
If the work that you intend to do on or near the tree is likely to harm the tree or involves removing the tree, then the consent will most likely be a notified consent, which could involve the public and will most likely involve people other than council staff. If you are applying to remove a protected tree, then get help.
If the reason is tree health or risk, use an arborist, if the tree is causing damage, get an engineer. If the reason for your consent application is that the tree is too big, then walk away – the reasons for removal must be real, there is no place for subjectivity.
But if your consent application is only to carry out a bit of maintenance, some simple pruning, or a bit of landscaping near a protected tree and the work is unlikely to harm the tree or be detrimental to its long-term health, all you have to do is convince whomever at the council that the effect of the work will be ‘less than minor’. Your chances of doing this will be increased if you can incorporate some of the following:
The proposed work will be carried out by an experienced and qualified arborist in accordance with recognised arboricultural practices and pruning standards.
Collectively all pruning activities will not remove more than 20% of the live foliage of the tree.
Collectively all works under the dripline2 will represent a less than 10% encroachment of the total root protection zone.
No roots greater than 30mm in diameter shall be cut – roots that are exposed that are less than 30mm in diameter shall be cleanly cut back to the side of the excavation hole.
No works shall take place inside the structural root zone.3
Of course, if you are going to incorporate any of the above into your application, then that is what you are going to have to do. Your consent will come with conditions and, if you don’t comply with them, you risk breaching the RMA, which could result in large penalties, retrains of trade or even jail time.
At the end of the day, gaining consent is just another compliance process and, in reality, isn’t that hard especially if your ask is realistic. Don’t just do it because you have to, do it to protect the natural resource (the tree) for the good of the community and future generations.
1. What is ‘near’ to a protected tree differs greatly between district plans. I strongly recommend that you ask someone from the local or relevant council. The question to ask is: “What is the setback from a scheduled tree?” 2. The dripline is a shocking term that may or may not have any real relationship to the distribution if roots or the area of the tree protection zone. See point 1 above and ask the council what they consider to be the setback from a scheduled tree. 3. The structural root zone is an area where structural roots are said to exist (it's a radial area roughly equal to 3.5 times the trunk diameter from the base of the tree).
Mark Roberts is a qualified arborist and tree risk assessor with 25 years’ experience. Mark is also former President of the International Society of Arboriculture, and a past President of the NZ Arboricultural Association. Mark now heads an arboricultural collective based in Dunedin: robertsconsulting.co.nz