MAXINE MAY EVANS v CLUTHA DISTRICT COUNCIL [2020] NZCA 5

MAXINE MAY EVANS v CLUTHA DISTRICT COUNCIL [2020] NZCA 5 [4 February 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA19/2019[2020] NZCA 5BETWEEN MAXINE MAY EVANSAppellantAND CLUTHA DISTRICT COUNCILRespondentHearing: 16 October 2019Court: Miller, Simon France and Hinton JJCounsel: G A Paine and M J Taylor-Cyphers for AppellantD R Tobin for RespondentJudgment: 4 February 2020 at 1.00 pmJUDGMENT OF THE COURTA The appeal is dismissed.B The respondent is entitled to costs for a standard appeal on a band A basisand usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Hinton J)[1] An oak tree and a sequoia in the Christie Street playground in Balclutha remainthe subject of judicial scrutiny.[2] On 3 May 2018, the Clutha District Council resolved that the two trees beremoved. Ms Evans applied for judicial review of that decision which was declinedby Nation J on 17 December 2018.1 The matter has now come to this Court on appeal.In the meantime, the Council has agreed to leave the trees pending resolution of theproceedings.Background[3] The two trees are situated on a pocket reserve in a suburban area in Balclutha.The reserve is about 1600m². It fronts Christie Street and is surrounded by threeneighbouring lots each about half the size of the reserve. Mr and Mrs Ross live in oneof the neighbouring lots. The two trees are adjacent to the Ross property. Photos showthe trees well exceeding the height of the Ross dwelling, the sequoia leaning towardsit and the oak with branches extending over the boundary. Arborists say the oak isabout 14.5 metres high and the sequoia about 20 metres. The trees are about 45 yearsold and the arborists describe them as young. Though there is no evidence as to likelyultimate size it is clear that they will grow substantially larger, especially the sequoia.[4] Mr and Mrs Ross have complained to the Council about the trees for someyears. In February 2014, following a complaint made in 2013, the Council resolved"that the trees be pruned and that a root curtain be installed to avoid the rootinterference to the neighbouring property". This followed an arborist (Mr Glenn ofAsplundh) advising the Council he had inspected the trees and there was "a minoramount of pruning" that could be done to the oak. He said the oak is "quite vigorousand is growing out toward the boundary".[5] On 22 January 2018 Mr and Mrs Ross wrote another letter of complaint to theCouncil. The letter referred to their having raised issues "on many occasions" withthe Council. It referred to reports of trees falling and killing people elsewhere, to deadpieces in the sequoia, to the oak tree getting bigger and black discharges from the oaktree onto the roof of their property.[6] The Council obtained a report from the community facilities supervisor.The supervisor said the trees had been monitored and regularly assessed for changes1 Evans v Clutha District Council [2018] NZHC 3355.since 2014 and an arborist from Asplundh had again reported on the trees in March2018 as follows:Sequoia trees have a robust root system and are not prone to falling. Oak treesare similar in nature. The trees in question are only young trees and althoughleaf and needles are shed from the trees which are a natural occurrence thetrees are stable and healthy except for an adverse weather event, I believe thesetrees are fine. [sic][7] The March 2018 supervisor's report refers directly or indirectly to workprogrammed to remove dead tree limbs, to trim the oak back from the property lineand to remove lower limbs to stop children swinging on them.[8] The report attaches photographs of the trees which depict the trees as describedearlier.[9] The report also attaches the Clutha District Council policy dated 16 September2010 for "Trees in Road Reserve & Amenity Trees". The report records that the policymay not be directly applicable to the trees in the Christie Street playground but it mayguide the Service Delivery Committee as to what, if any, further consultation isrequired.[10] The report gave the Council three options. The first was to do nothing, monitorthe trees closely and complete work outlined in the arborist's report. The second wasto fell the sequoia and retain the oak and prune as recommended. The third was to fellboth trees and look to re-plant appropriate trees in this location given the likely futureuse.[11] The Mayor, Mr Cadogan, and several of the councillors went to look at thetrees individually.[12] On 3 May 2018 a meeting was held of the Service Delivery Committee. It wasattended by 14 councillors and the Mayor and chaired by Mr Cochrane. The evidencewas that it was standard procedure for the agenda for any meeting to be put on thepublic website and hard copies put up at libraries and service centres for the Councilsome days before the meeting. The Rosses were invited to attend and were the onlymembers of the public to speak. Mrs Ross talked about the mess caused to the propertyfrom leaves and needles and of her anxiety in high winds.[13] The Minutes of the 3 May 2018 meeting record:That the Service Delivery Committee receives the Christie Street PlaygroundTrees report.Discussion was held about removing one or both of the trees as it was felt thatthese trees were inappropriate for this location and should be replaced withplantings that will not grow too large and are in keeping with the structure ofother plantings in the reserve.[14] The Committee first resolved to recommend that the sequoia tree be removedand the oak tree be retained and pruned as required. But after further discussion, thatwas amended to the following resolution:That the Service Delivery Committee recommends that both trees be removedfrom the Christie Street playground.[15] That resolution was passed by a majority of 8 out of 14. That then became asubstantive motion which the minutes record as having been "passed". The evidenceof both Mr Cochrane and the Mayor was that it passed without dissent. This was onthe basis that no work would be carried out until after 1 July 2018.[16] Ms Evans found out about the decision from an article in the Clutha Leader aweek later. A significant number of letters were written to the Council and the paperexpressing concern about the decision. The Council remained firm.[17] Ms Evans then brought this proceeding, with the support of a number of others.While not pleaded by way of judicial review it has been allowed to proceed on thatbasis.The decision appealed from[18] Nation J concluded that the Council had no duty to consult and that there wasa reasonable basis for its decision.2 He also held that it had not been established that2 At [42] and [76].the decision to cut down the trees would be in breach of s 42 of the Reserves Act 1977.3He consequently declined relief.[19] As the appeal is substantially on all fours with the issues in the judgment belowand we substantially agree with the reasoning of the High Court Judge, we do not setout his reasoning in full.Grounds of appeal[20] As the case was argued, there are essentially three grounds of appeal.First, the appellant says that there was no reasonable basis for the Council's decision.Second, that the Council was in breach of a duty to consult in terms of the LocalGovernment Act 2002 (LGA) or at common law. And third, that the Council failed tocomply with its obligations under s 42(2) of the Reserves Act 1977. In their writtensubmissions, counsel for the appellants also contended that irrelevant matters weretaken into account by the Council and relevant matters not taken into account. Thatargument was not advanced before us and we see no points that would fit into eithercategory.AnalysisReasonable basis for Council's decision?[21] It is only if we were satisfied that the Council had come to a conclusion sounreasonable that no reasonable authority could have come to it that this ground couldsucceed.4 As the appellants acknowledge this is a high hurdle to pass.[22] We consider there was a reasonable basis for the decision essentially for thereasons set out by Nation J and in respect of which there was available evidence:[40] The Council made its decision with regard to the trees withinformation before it as to how debris from the trees impacted on theneighbour's property. They knew how big the trees were from Councillors'own observations in the report to the Council. In the case of the sequoia, theyknew of the way that tree had a lean towards the Ross property. They wereaware of the size of the Christie Street Reserve and the extent to which the3 At [93].4 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223.trees were of a size compatible with the general nature of that reserve. Theyhad advice suggesting that the trees could be a danger to the neighbouringproperty in an extreme weather event.In short, the trees adversely affect the neighbouring property, could be a danger in anextreme weather event, and are already of a size incompatible with the nature of thereserve.Duty to consult[23] There is no dispute that the Council did not consult.[24] The relevant provisions of the LGA are ss 76–79. The leading decisionconcerning the obligation on local authorities to consult is this Court's decision inWellington City Council v Minotaur Custodians Ltd.5 The Court summarised the legalframework as follows:[42] In summary, Part 6 of the LGA carefully and repeatedly rejects theidea that there is to be found in its provisions any duty to consult with affectedor interested parties. Instead, local authorities are given a deliberately broaddiscretion as to whether to consult, and, if so, how. That does not mean,however, that there are no limits on a council's discretion. Like all statutorydecisions, consultation decisions must be rational and consistent with theobligations of the LGA and the particular controlling provisions.[25] The net effect is that the Council has to determine in each case whetherconsultation is appropriate but must do so in terms of the LGA.[26] Section 76 provides:76 Decision-making(1) Every decision made by a local authority must be made inaccordance with such of the provisions of sections 77, 78, 80, 81and 82 as are applicable.(2) Subsection (1) is subject, in relation to compliance with sections77 and 78, to the judgments made by the local authority undersection 79.(3) A local authority—5 Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZLR 464.(a) must ensure that, subject to subsection (2), itsdecision-making processes promote compliance withsubsection (1); and(b) in the case of a significant decision, must ensure, before thedecision is made, that subsection (1) has been appropriatelyobserved.(4) For the avoidance of doubt, it is declared that, subject to subsection(2), subsection (1) applies to every decision made by or on behalfof a local authority, including a decision not to take any action.(6) This section and the sections applied by this section do not limitany duty or obligation imposed on a local authority by any otherenactment.[27] In Minotaur the Court summarised s 76 in the following way:[33] Relevantly, for present purposes, subs (1) and (2) provide that consultationdecisions must be made in accordance with ss 78 and 82, subject, in the case ofcompliance with section 78, to the ameliorating effect of s 79. Subsection (3) sets twostandards of performance. In respect of "significant decisions", the local authoritymust ensure that the provisions contained in subs (1) have been "appropriatelyobserved". This is the higher of the two standards. Where the matter is not"significant", the standard is more aspirational: decision-making is only required to"promote compliance" with the provisions referred to in subs (1). Even that lowerstandard is subject to s 79 as noted.(Emphasis added.)[28] Although trees are highly valued, a decision regarding felling these trees doesnot fall into the category of a significant decision. The evidence was that usuallydecisions regarding tree removal are made by a Council officer and not by the Councilitself. Further, following consultation over the draft reserves management plan, nomembers of the community had identified these particular trees (or indeed any trees)within the Clutha district as requiring special protection.[29] Section 77(1)(a) of the LGA provides that a local authority must, in the courseof the decision-making process, seek to identify all reasonably practicable options forthe achievement of the objective of the decision. In this case, prior to making thedecision, the Council received a report from the community facilities supervisor.That report referred to the Asplundh report and gave the Council the three optionsreferred to earlier: do nothing, fell the sequoia and retain the oak, or fell both trees.Options were identified therefore in terms of s 77(1).[30] Section 78(1) requires a local authority to give consideration to the views ofpersons likely to be affected or with an interest, but as this Court in Minotaur madeclear, the section does not generate an obligation to consult or indeed to adopt anyparticular consultation process or procedure. Rather, the Court stated "consultation isone of a number of options for obtaining information about the views and preferencesof those affected or with an interest".6 In this case, the Council was required to takeinto account community views, but was left with a wide discretion about how it didthat.[31] Both ss 77 and 78 are subject to the broad discretion in s 79. That sectionprovides that a local authority must have regard to the significance of all relevantmatters, including the views of the community and the extent of available resources.[32] As Nation J noted, the Council could rationally have considered that they didnot need to consult further to know that many in the community would value trees,especially large trees. The Council were also aware of the type, size and age of theseparticular trees. That the Council had these considerations in mind is evidenced bythe rejection of the Ross' request for removal back in 2014, and the nearly even splitof the initial vote on removal in 2018. This is also demonstrated by the Council's treestrategy for a "destination park", Naish Park, and the other factors referred to inNation J's judgment.7[33] In these circumstances we do not consider that the Council was required toconsult further when deciding whether or not to remove the two trees. The decisionwas not a significant one for purposes of s 76 and the Council had sufficientinformation about the options and the likely views for and against the proposal.[34] We note that Ms Taylor-Cyphers suggested that there may also be a generalduty to consult at common law. At least she appeared to suggest that when she saidthat fairness required consultation here. We do not consider that such a duty arises inthis context. As this Court said, again in Minotaur:86 Minotaur, above n 5, at [36].7 Evans v Clutha District Council, above n 1, at [69]–[71] and [73]–[74].8 Minotaur, above n 5, at [48], referring to Pascoe Properties Ltd v Nelson City Council [2012]NZRMA 232 (HC).Because the clear intention of Part 6 is to give councils a wide discretion inthis field, it will always be difficult to establish a concurrent common law dutyto consult except in truly exceptional cases such as Pascoe.[35] This is not a "truly exceptional case".[36] We therefore reject this ground of appeal.Section 42 of the Reserves Act 1977[37] Mr Paine argues that the Council was in breach of s 42 of the Reserves Act,which relevantly provides as follows:(2) The trees or bush on any recreation reserve shall not be cut ordestroyed unless the administering body of the reserve is satisfiedthat the cutting or destruction is necessary for the proper managementor maintenance of the reserve, or for the management or preservationof other trees or bush, or in the interests of the safety of persons on ornear the reserve or of the safety of property adjoining the reserve, orthat the cutting is necessary to harvest trees planted for revenueproducing purposes.(3) Where in the case of any recreation reserve the administering bodyis satisfied that the cutting or destruction of trees or bush is necessaryfor any of the reasons mentioned in subsection (2), the administeringbody shall not proceed with the cutting or destruction and extractionexcept in a manner which will have a minimal impact on the reserveand until, as circumstances warrant, provision is made forreplacement, planting, or restoration; and the administering body shallnot proceed to authorise the cutting or destruction, except subject toconditions as to the method of cutting or destruction and extractionwhich will have minimal impact on the reserve and, as circumstanceswarrant, replacement, planting, or restoration; and any otherconditions which the administering body considers to be appropriatein the circumstances.[38] The Christie Street playground is a classified reserve. It is accepted that theReserves Act and therefore s 42 does apply to the decision to remove trees.[39] Mr Paine submits that cutting down the trees is not necessary on any of thebases set out under s 42(2).[40] While the Council did not use the word "necessary" we are satisfied that theydecided in effect that destruction of the trees was necessary for the proper managementand maintenance of the reserve for essentially the same reasons noted at [22] above.Their primary reason was recorded in the minutes — that the trees were inappropriatefor the location and should be replaced with plantings that will not grow too large andare in keeping with the structure of other plantings in the reserve. These are "propermanagement and maintenance" considerations.[41] We add that the Council's decision was reasonably available to it as we held at[21]–[22] above. More specifically, as administrator of the reserve the Council isentitled to take a long-term view of the needs of the reserve and the actual and potentialeffects of the trees on neighbouring properties. The trees are large and will becomemuch larger, and the reserve is very small. The Council had already faced ongoingmanagement issues with these trees for some years, which the evidence indicated wereonly going to increase.[42] We should also add, as Nation J did, that there are further considerations interms of s 42(3) with regard to these trees before they can be removed, including ascircumstances warrant replacement, planting or restoration of the reserve.The decision to remove is not the end of the matter.Conclusion[43] None of the grounds of appeal is sustained.[44] The appeal is dismissed.[45] The respondent is entitled to costs for a standard appeal on a band A basis andusual disbursements.Solicitors:O'Malley & Co Ltd, Balclutha for AppellantSumpter Moore, Balclutha for Respondent