Members Bob Hollyman QC and James Little successfully appear in Court of Appeal, overturning decision to remove exotic trees on Ōwairaka/Mt Albert

The Court of Appeal recently issued judgment in Norman v Tūpuna Maunga o Tāmaki Makaurau Authority [2022] NZCA 30.  The appeal concerned a decision of the Tūpuna Maunga o Tāmaki Makaurau Authority (the Authority) to remove the 345 exotic trees on the reserve at Ōwairaka / Mt Albert, and a related decision by Auckland Council to grant a resource consent to remove the trees on a non-notified basis.  Bob Hollyman QC and James Little acted for the successful appellants.

The Authority, which is a statutory co-governance body, is responsible for the management of Ōwairaka, among other Auckland maunga, under the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 and the Reserves Act 1977.  The Authority is required, under the legislation, to prepare and consult the public on an “Integrated Management Plan” (IMP) for the maunga under its control, which is to set out how it proposes to manage those maunga.  The Authority consulted on and approved an IMP in 2016.  The IMP did not refer to the removal of the exotic trees on Ōwairaka.  

In 2019, the Authority decided to remove all exotic trees on Ōwairaka, as well as to plant additional native vegetation.  The decision to remove all exotic trees was met with protests.  Nearly half of the 787 trees on Ōwairaka were exotic trees and many of them were well-established.

The appellants commenced judicial review proceedings in the High Court challenging the Authority’s decision to remove the exotic trees and Auckland Council’s decision to grant a resource consent to do so under the Resource Management Act 1991 on a non-notified basis. They also secured an injunction preventing the Authority from removing the trees pending the determination of the proceedings.  

The Court of Appeal has held that while the Authority could, under the Reserves Act, lawfully decide to remove the trees, it needed to consult the public on whether to do so first.  The Court held that the decision to remove the trees was of such significance that it needed to be provided for in the IMP.  The Court set aside the Authority’s decision.

The Court of Appeal has also held that the application for resource consent to remove the trees should have been notified to the public, particularly given the historical significance of some of the trees and the adverse effects on the environment of removing them.  The Council’s decision to grant the resource consent to remove the exotic trees was accordingly also set aside.

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