IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2023-404-001516
[2023] NZHC 1996	

UNDER	the Judicial Review Procedure Act 2016	
BETWEEN	SHIRLEY WARU
Applicant	
AND	TŪPUNA MAUNGA O TĀMAKI
MAKAURAU AUTHORITY
First Respondent	
	AUCKLAND COUNCIL
Second Respondent	

Judicial Telephone Conference:	27 July 2023	
Appearances:	J W H Little for Applicant
P T Beverley and C A Easter for First Respondent M D Lichtwark for Second Respondent	
Judgment:	28 July 2023	

JUDGMENT OF VAN BOHEMEN J
[on application for urgent interim relief to prevent further felling of exotic trees on Ōtāhuhu]

This judgment was delivered by me on 28 July 2023 at 10 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………..

Counsel/Solicitors:
J W H Little, Auckland Duncan King Law, Auckland Buddle Findlay, Wellington

WARU v TŪPUNA MAUNGA O TĀMAKI MAKAURAU AUTHORITY [2023] NZHC 1996 [28 July 2023]

[1]	On the morning of 27 July 2023, Shirley Waru filed an application for urgent interim measures to prevent the further felling of exotic trees on Ōtāhuhu, also known as Mount Richmond. Ōtāhuhu is one of the 14 maunga of Auckland that are administered by the Tūpuna Maunga o Tāmaki Makaurau Authority (Maunga Authority) and the Auckland Council.

[2]	After hearing from counsel for Ms Waru and the Maunga Authority at a telephone conference in the afternoon of 27 July 2023,1 I declined to make any urgent orders to prevent the further felling of trees on Ōtāhuhu.

[3]	This judgment explains the reasons for my decision.

Background

[4]	As has been widely reported, the Maunga Authority has embarked on a programme to restore native trees and plants to the maunga and to remove exotic species. There has been strong opposition from some quarters, particularly from some residents living close to the maunga.

[5]	On 15 September 2021, the Maunga Authority was granted resource consent on a non-notified basis to remove exotic vegetation and undertake restoration planting on Ōtāhuhu / Mt Richmond. The specific proposal that formed the basis of the application was to remove 437 exotic trees from the maunga.

[6]	On 3 March 2022, in Norman v Tūpuna Maunga o Tāmaki Makaurau Authority, the Court of Appeal upheld a challenge to a resource consent that had been issued to the Maunga Authority on a non-notified basis for the removal of exotic trees from Ōwairaka / Mt Albert, another of the maunga administered by the Maunga Authority.2 The specific proposal that formed the basis of the application in that case included the removal of approximately 392 exotic trees from the maunga. The Court of Appeal held that, in two respects, the decision not to notify the application was flawed. The first was in relation to the manner in which the Council dealt with the

1	Counsel for the Auckland Council advised that the Council would abide the Court’s decision.
2	Norman v Tūpuna Maunga o Tāmaki Makaurau Authority [2022] NZCA 30, [2022] 3 NZLR 175.

issue of the temporary effects of the very extensive tree removal proposed. The second concerned the heritage and historical significance of some of the trees.3

[7]	On 16 August 2022, solicitors acting for Ms Waru and her partner wrote to the Maunga Authority and the Auckland Council drawing their attention to the decision in Norman and sought confirmation that they would not seek to rely on their existing consent to fell trees on Ōtāhuhu / Mt Richmond. Specifically, the letter asked for confirmation that the Maunga Authority and the Auckland Council would not rely on the consent to fell 278 of the 443 trees intended to be removed by the Manga Authority.4 The letter said that the decision in Norman meant that it would be wrong and inappropriate to do so.

[8]	On 24 August 2022, the Auckland Council’s Principal Solicitor replied to  Ms Waru’s solicitors advising that the Council did not hold the consent for removing trees from the maunga and that the consent and the decisions on implementing the consent lay with the Maunga Authority.

[9]	On 13 September 2022, solicitors acting for the Maunga Authority replied to Ms Waru’s solicitors stating that the Authority did not accept that the Court of Appeal’s decision could be applied to the proposals for Ōtāhuhu / Mt Richmond. The letter stated that the Court of Appeal’s decision was specific to its own facts and evidence before the High Court and Court of Appeal. It also noted that the Supreme Court had stated that the Court of Appeal’s decision was a case that turned on its own facts.5

[10]	It appears there was no further correspondence on this matter.

[11]	In November 2022, the Maunga Authority undertook a public notification process to amend the Tūpuna Maunga Integrated Management Plan (TMIMP). The amendment explained the Maunga Authority plans for Ōtāhuhu / Mt Richmond. These included the removal of 443 non-native trees and shrubs.

3	At [256].
4	The reference to the removal of 443 trees suggests Ms Waru was aware of the Maunga Authority’s modified proposal for Ōtāhuhu / Mt Richmond which formed the basis for its proposed amendment to Tūpuna Maunga Integrated Management Plan, as discussed at [11].
5	Norman v Tūpuna Maunga o Tāmaki Makaurau Authority [2022] NZSC 79 at [18].

[12]	Ms Waru participated in the public process for the amendment of the TMIMP. She says she sought clarification of what the amendment meant in practice but was not provided an answer.

[13]	On 13 July 2023, the Maunga Authority sent a letter to local residents advising that, as a result of the February 2023 floods and Cyclone Gabrielle, there had been damage to trees on Ōtāhuhu / Mt Richmond and that some trees had become unsafe. The letter advised that up to 60 trees would be removed in July. Whether Ms Waru received this letter is not in evidence.

[14]	On 26 July 2023, Ms Waru was advised by a friend that tree removers were on Ōtāhuhu / Mt Richmond cutting down trees. As explained in her affidavit sworn that day, Ms Waru went to the maunga and saw a notice referring to cutting down 60 trees. She says she did not know if this was only phase 1 or whether there was an intention to cut down more than 60 trees.

[15]	Later that day, Ms Waru instructed her solicitors to file these proceedings which were filed on the morning of 27 July 2023. As noted above, an urgent hearing was held that afternoon by way of telephone conference.

Relief sought

[16]	Ms Waru seeks orders restraining the Maunga Authority from carrying out any further tree-felling works on Ōtāhuhu / Mt Richmond pending further order of the Court.

[17]	Mr Little, Ms Waru’s counsel, confirmed at the hearing that the intention is to prevent any further felling of trees on Ōtāhuhu / Mt Richmond until such time as the validity of the Maunga Authority’s resource consent has been established. In other words, the intention is to seek a formal review of the consent issued in September 2021 in the light of the Court of Appeal’s decision in Norman, which was issued in March 2022.

Other relevant information

[18]	Although there was no affidavit evidence from the Maunga Authority before the Court, because of the urgency of the situation I considered it appropriate to take judicial notice of the information  provided  by  the  Maunga Authority’s  counsel, Mr Beverley, in two memoranda filed in Court and in discussion at the telephone conference.

[19]	In particular, Mr Beverley advised that the Maunga Authority intends to fell only 60 trees in the current exercise, as it had advised to residents. As of the time of the telephone conference, Mr Beverley understood that almost 30 of the trees intended for felling had been felled up. A number of these trees had been removed for reasons of public safety. Most of the remaining plants intended for felling are not substantial trees but are camelia bushes.

[20]	Mr Beverley said the Maunga Authority has no plans to cut down any more trees until late 2023 / early 2024.

Reasons for decision

[21]	While s 15 of the Judicial Review Procedure Act 2016 provides the Court with a broad jurisdiction to impose interim measures if necessary to preserve the position of the applicant, the submissions and discussion at the hearing focused on the well- established considerations applicable to applications for injunctions; namely, whether there is a serious question to be tried, the balance of convenience and the overall justice of the case. Accordingly, I structure my reasons around those considerations.

Serious question to be tried

[22]	I accept it is reasonably arguable that there is a serious question as to whether the resource consent granted to the Maunga Authority in September 2021 should be relied upon in the light of the Court of Appeal’s decision in Norman. While the Court of Appeal’s decision was specific to the facts and circumstances of Ōwairaka / Mt Albert, there are obvious similarities and parallels in the scope and content of the two

proposals that led to the consents being granted. As a public body, the Maunga Authority has obligations to act in accordance with law, fairly and reasonably.

[23]	However, and as Mr Little accepted, until the consent for Ōtāhuhu / Mt Richmond is set aside, it remains valid and in effect. Moreover, what was at issue in Norman was the Maunga Authority’s right to obtain on a non-notified basis a consent to fell approximately 392 exotic trees on an undefined timeframe without, as the Court of Appeal found, adequate consideration of the temporary effects of such a large scale removal of trees. That is not what is currently proposed for Ōtāhuhu / Mt Richmond.

Balance of convenience

[24]	Contrary to Mr Little’s submission, I do not accept that the balance of convenience lies definitely in Ms Waru’s favour. Ms Waru wants to stop all future tree felling when the Maunga Authority’s current plan is to fell only 60 trees, the 30 biggest trees have already been felled and the remainder are bushes rather than large trees.

[25]	Given that the proposal is well advanced and will be completed within a matter of days, and that Ms Waru’s objective is to test the Maunga Authority’s right to cut down the much larger number of trees authorised by the resource consent, I do not consider it appropriate to require a halt to this limited project. I am reinforced in that view by the fact that there appears to be ample time for Ms Waru to bring an application to review the resource consent before more trees are felled. I have also taken into account Mr Beverley’s assurance that, if the current application is not granted, he will work with Mr Little to agree a timetable for an application to be brought before more felling occurs.

[26]	I also accept that to halt the felling now would add unnecessary cost and disruption to the Maunga Authority. Conversely, not to halt the current felling would cause little prejudice to Ms Waru, whose focus is on the bigger question of the Council’s right to fell 400 plus trees. In that respect, I am satisfied that the order sought is not necessary to preserve Ms Waru’s position.

Overall justice

[27]	I consider the interests of overall justice lie with the Maunga Authority in this instance. It went through a public process, in which Ms Waru participated, to amend the TMIMP. It informed the public some weeks before of its intention to fell 60 trees. I am in no position to assess the adequacy of that public engagement, but I accept that it happened.

[28]	In addition, and while accepting that Ms Waru has limited means, it is still the case that she chose not to take any steps to challenge the resource consent until now. She had ample opportunity to do so in the 16 months after the Norman decision and in the 10 months since the Maunga Authority’s solicitors informed her solicitors that they did not consider the Norman decision could be applied to the proposals for Ōtāhuhu / Mt Richmond. The letter put her on notice that her position on the effect of the Norman decision was not accepted.

Absence of undertaking as to damages

[29]	Given the relative means of Ms Waru and the Maunga Authority and Auckland Council and the fact Ms Waru is effectively acting on behalf of the not insignificant number of people who are concerned at the prospect of large scale felling of exotic trees on the maunga, I have not placed weight on the absence of an undertaking as to damages from Ms Waru.

Result

[30]	For all these reasons, I declined Ms Waru’s application for urgent interim relief.

G J van Bohemen J