Protection Orders on Trees on Rate Payers properties
Tony Hay made this Official Information request to Marlborough District Council
Response to this request is long overdue. By law Marlborough District Council should have responded by now (details and exceptions). The requester can complain to the Ombudsman.
From: Tony Hay
Dear Marlborough District Council,
I am requesting confirmation of the process the Marlborough District Council (MDC) employs when placing a Protection Order on a tree situated on a Rate Payers property.
Below I have laid out how I assume this process takes place.
Council identifies a tree that they regard as worth protecting on a ratepayers property.
A solicitor approaches the ratepayer and invites the ratepayer to agree to have a protection order placed on the tree. In return the MDC agrees to provide at their cost any maintenance that the ratepayer deems necessary. This maintenance might include the removal of dead branches or branches that are now impacting the enjoyment of the ratepayer on the property such as shading due to the growth of the tree over a period of time. The ratepayer is made aware of the conditions that constitute a request to the MDC for maintenance of the tree.
The ratepayer is informed that once the protection order has been agreed by both parties the only way the ratepayer and subsequent purchasers of the property can remove the tree is via a resource consent to the MDC which has the right to reject it.
The ratepayer is informed that there is potential for this protection order to count against them when subsequently wanting to sell the property as this will be highlighted in the LIM report and placed on the property file. Once this protection order has been placed on the tree it will remain there unless removed by resource consent.
If all this is agreed then the solicitor draws up a legal document which both parties sign with the ratepayer given a copy and the MDC also retaining a copy.
Please confirm that the process I have laid out above is correct.
Yours faithfully,
Tony Hay
From: MDC
Marlborough District Council
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[1]MDCOMBLUERGB
15 Seymour Street, PO Box 443
Blenheim 7240, New Zealand
[2][Marlborough District Council request email]
[3]www.marlborough.govt.nz
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2. mailto:[Marlborough District Council request email]
3. http://www.marlborough.govt.nz/
From: Tony Quirk-8077
Marlborough District Council
Dear Mr Hay
I refer to your request of 29 September which is one made and actioned by
us under LGOIMA.
I referred the query to Council’s Policy Unit and set out below is the
response received:
1. “I assume the reference to “Protection Order” is to the inclusion
of the tree in the WARMP/MSRMP as a heritage tree or the PMEP as a notable
tree. I am not familiar with the term “protection order”. Heritage trees
are identified in Appendix A of WARMP/MSRMP and notable trees are
identifies in Appendix 13 of PMEP. These trees are shown on the relevant
Smart Map and on Dekho.
2. The process used to create the WARMP/MSRMP appendices predates my
time but I can comment on the process of adding to those appendices and
creating the PMEP appendix. However, the majority of the trees identified
in the operative plans are historic listings and may even originate from
Borough/County Schemes?
3. Additions to the existing schedules were primarily driven by
public nominations, i.e., people in the community nominated a potential
candidate for inclusion in the schedules.
4. There are criteria for heritage trees and notable trees set out
in the respective plans.
5. The nominations were assessed by a qualified and experienced
arborist to ensure they met the criteria.
6. Those that met the criteria were compiled and there was then
consultation with the relevant landowners. The landowners views were taken
into account before preparing a plan change.
7. Any addition to the schedules went through a formal plan change
process under the First Schedule of the RMA. That included full rights of
public submission either in support of or in opposition to the inclusion.
All submitters have the right to be heard.
8. In terms of the PMEP, the trees already included in the operative
plans were rolled into the Proposed Plan. There were additional
nominations that were assessed under the same process described above.
There were also a limited number of submissions seeking additional trees
to be included in the PMEP. Again, these were assessed by a qualified and
experienced arborist against the PMEP criteria.
The record of the First Schedule processes is accessible from the Council
website under the relevant plan listing. WARMP plan changes:
[1]https://www.marlborough.govt.nz/your-cou...
(see plan change 56); MSRMP plan changes:
[2]https://www.marlborough.govt.nz/your-cou...
(see plan change 8); MEP:
[3]http://data.marlborough.govt.nz/Environm... and
[4]https://eservices.marlborough.govt.nz/pr...
The inclusion of a tree within the plans sets up a regime of protection
for that tree. The policies and rules that apply to the removal,
alteration or maintenance of any listed tree are contained in the
respective plans. I can set these out if they are required. The removal of
a tree requires resource consent as a discretionary activity (which means
that the Council can approve or reject the application).
The plan does not address the cost of maintaining the tree”.
I have queried the Reserves Section about any assistance that might be
available through Council to support landowners with protection and
maintenance. Once I receive any information I will pass it on to you.
This completes the request about the process for inclusion of a tree as a
notable tree.
Tony Quirk
District Secretary
[5]MDCOMBLUERGB
DDI: 03 520 7429
Phone: 03 520 7400
Fax: 03 520 7494
15 Seymour Street, PO Box 443
Blenheim 7240, New Zealand
[6][email address]
[7]www.marlborough.govt.nz
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References
Visible links
1. https://www.marlborough.govt.nz/your-cou...
2. https://www.marlborough.govt.nz/your-cou...
3. http://data.marlborough.govt.nz/Environm...
4. https://eservices.marlborough.govt.nz/pr...
6. mailto:[email address]
7. http://www.marlborough.govt.nz/
From: Tony Quirk-8077
Marlborough District Council
Dear Mr Hay
Further to my email of 4 October 2019 attached is Council’s policy on
trees.
This now completes the request.
Tony Quirk
District Secretary
DDI: 03 520 7429
Phone: 03 520 7400
Fax: 03 520 7494
15 Seymour Street, PO Box 443
Blenheim 7240, New Zealand
[1][email address]
[2]www.marlborough.govt.nz
show quoted sections
References
Visible links
1. mailto:[email address]
2. http://www.marlborough.govt.nz/
From: Tony Hay
Dear Tony Quirk-8077,
Thank you for the reply
In my Official Information Request (OIR) I had assumed that any ratepayer that had a tree under a protection order had signed an agreement with Council, as witnessed by a Solicitor, and that this legal document was held by both parties.
The reply to my OIR indicates that “the majority of the trees identified in the operative plans are historic listings”. So the obvious question is does the Council have these legally signed documents and are they required ?
I raised the question in my reply to another of my OIR where the Council had “moved” an English Oak tree from Council berm where it was perfectly entitled to place a protection order on it, onto a ratepayer property keeping the protection order in place without re-gazetting. As I understand it in accordance with the Resource Management Act the Council is required to notify those who may be affected by the plan changes. So is this legal ?
There have been a number of reports in the press in recent years where the property owner has not given the Marlborough District Council permission to place a protection order on a tree located on their land. I am a little surprised by the restrictions placed on property owners who do have a protected tree on their land.
House purchasers may be put off purchasing a property with a tree having a protection order on it or the potential to have one as there is the potential for problems when wanting to sell. I would have thought the Council would be going out of its way to make properties that do have trees with protection orders on them as attractive as possible. This however does not appear to be the case.
Yours sincerely,
Tony Hay
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