The amendments to section 76 under the RMAA13 mean the following for councils:

  1. Territorial authorities should review their district plan to ensure tree protection rules comply with the amendments to sections 76(4A)–76(4D). This includes existing vegetation clearance provisions.
  2. Regional councils and unitary authorities should ensure their regional policy statements do not contain provisions inconsistent with sections 76(4A)–76(4D). For example, regional policy statements should not promote district plan methods to include rules that protect trees on urban environment allotments unless those trees are specifically described and identified in a schedule to the plan in accordance with sections 76(4A)–76(4D).

These reviews should be carried out and plan changes notified within two years from the commencement of part one of the RMAA13 – that is before 4 September 2015.

District rules to restrict the trimming, felling or removal of trees that are inconsistent with the new requirements in sections 76(4A)–76(4D) of the RMA will be revoked on 4 September 2015. If a rule to protect trees that would otherwise lose their protection (by virtue of blanket rules being revoked) is notified by this transitional date, it will have legal effect from 4 September 2015. This does not apply if the plan change is notified on or after that date. However, in such cases, councils will retain the ability to apply to the Environment Court for rules to have immediate legal effect under section 85D(2) of the RMA.

Including a schedule as part of a district or city plan or adding any tree(s) to an existing schedule will require a plan change. Where rules protect trees on urban allotments, councils need to demonstrate, through a section 32 evaluation, among other things, that other methods for protecting the trees have been considered and that the proposed rules are the most appropriate for achieving the relevant plan objective. The Ministry has produced an interim guide to Section 32 of the RMA as a result of changes made by the RMAA13.

The district plan schedule is not required to describe reasons why an individual tree is, or group of trees are, being protected. However, this information will be required when the plan change is formulated as part of the statutory tests under sections 32–32AA and sections 72–76 – that is, whether or not the scheduling method is the most appropriate way to achieve the district plan objectives. For example, the total number of trees or groups of trees to be scheduled in a plan is irrelevant under section 76(4B) but could be a key issue in determining whether or not scheduling a large number of trees is more appropriate than other reasonably practicable tree protection mechanisms available, including non-regulatory methods.

A plan change that proposes to schedule one or more trees for protection should only be promulgated after:

  • encouraging ratepayers, community groups, and members of the public to nominate trees for protection
  • engaging environmental experts to identify what environmental outcomes are anticipated by protecting the subject trees
  • identifying and considering alternative mechanisms for achieving those environmental outcomes
  • consulting affected landowners
  • identifying the costs and benefits of the environmental, economic, social and cultural effects of protecting the subject.

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