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Overview of the National Environmental Standards for Electricity Transmission Activities (2 of 3)

This overview answers the following questions:

This page deals with how resource consent requirements are determined, and how the NES applies to resource consents and designations

How does the NES relate to rules in plans?

Since 14 January 2010, the National Environmental Standards for Electricity Transmission (NES) apply to work on existing transmission lines and prevail over plan rules – section 43A(5) of the RMA. From this date, councils must observe and enforce the NES, to the extent their powers allow them to.

The NES takes precedence over relevant rules in district plans (and some regional plan rules) because:

However, a rule can permit an activity that is permitted by the NES, but can only address different effects from those addressed in the NES – section 43A (5) of the RMA.

Generally, the NES will set out the consent requirements for a project. However plan rules still apply if they cover an activity that is excluded from the NES (see table). The following rules will still apply:

  • rules relating to substations
  • rules relating to the construction of new lines or of bridges and culverts
  • regional rules relating to earthworks
  • regional earthworks rules relating to the use of potentially contaminated  land (district rules will not apply)
  • rules relating to the control of the use of land to prevent or mitigate adverse effects of the storage, use, disposal, or transportation of hazardous substances
  • rules relating to the refuelling of vehicles or equipment
  • district rules relating to the use of land for helicopter landing sites.

Section 44A of the RMA requires councils to amend their plans "as soon as practicable" to remove rules that duplicate or conflict with the NES. A plan rule conflicts with the NES if the rule is more restrictive or more lenient than the NES.

Councils do not need to go through the usual RMA consultation process to bring their plans in line with the NES. Once councils have amended their plans, there should be no confusion between the plan and the NES requirements.

How to determine resource consent requirements

Most transmission maintenance and upgrade projects will consist of a range of activities. As such, activities may range from being permitted, controlled, restricted discretionary, discretionary or non-complying.  For each project, Transpower will need to apply for a variety of consents, and may choose to apply for certificates of compliance for activities permitted by the NES.

Steps:

  1. Determine which of the activities are covered by the NES (see above).
  2. Determine the consent requirements for these activities under the NES.
  3. Consider whether any of the activities are still covered by plan rules.
  4. Determine the consent requirements for these activities under the plan.

In determining whether  a consent is needed under the NES, consider:

  • Is the activity listed as a permitted activity?
  • If so, does it meet the terms and conditions?
    • If so, it is permitted.
    • If not, is it one of the activities described as a controlled activity?
      • If not, is it described as a restricted discretionary activity?
      • Is it a non-complying activity? - regulation 13
  • If an activity is within the scope of the NES, but does not fit into any of the categories above, it is discretionary. 

Are resource consent applications dealt with by district or regional councils?

The NES does not alter whether the matter would be dealt with by a territorial authority or regional council. Land use matters normally dealt with by a territorial authority will still be dealt with by a territorial authority, and regional matters such as discharges will still be dealt with by the regional council. Unitary authorities will continue to deal with both territorial and regional consent matters.

Matters such as earthworks and vegetation may be split differently between district and regional councils in different areas. However, in general the following applies:

  • Work on conductors, earthwires, telecommunications cables and devices, and transmission line support structures are land use issues under section 9 of the RMA; as such they are usually dealt  with by the territorial authority.
  • Discharges to land, water and air (eg, from cleaning towers) are regional council matters under section 15 of the RMA.
  • Noise and vibration is a territorial authority matter under  section 16 of the RMA (unless in the coastal marine area. However, some regional councils delegate control of noise in the coastal marine area back to the territorial authority).
  • Earthworks provisions in the NES will be dealt with by the territorial authority (regional earthworks rules continue to apply).
  • Work in the beds of lakes and rivers and the coastal marine area is a regional council matter under section 12 and section 13 of the RMA.
  • Vegetation clearance provisions in the NES will be a territorial authority matter, unless use of an area is controlled by a regional council for soil conservation or rivers control purposes.

Making recommendations on consent applications under the NES

In considering a suite of applications for a transmission project, council officers must, subject to Part 2 of the RMA, have regard to the matters listed in section 104 of the RMA. They must report to council on these matters to inform council's decision on:

  • any actual and potential effects on the environment of allowing the activity
  • any relevant provisions of a
    1. national environmental standard or other regulation
    2. national policy statement
    3. New Zealand coastal policy statement
    4. regional policy statement or proposed regional policy statement
    5. plan or proposed plan
  • any other matter considered relevant and reasonably necessary.

In making decisions on consent applications, the council must also have regard to the National Policy Statement on Electricity Transmission.

While objectives, policies and methods in plans and proposed plans are relevant for council’s decision, these should be considered in light of the NPS objective and policies. The NPS provides the policy framework for the NES.

Certificates of compliance

In some circumstances, Transpower may apply for certificates of compliance for undertaking routine works in some circumstances. Section 139 of the RMA enables councils to issue certificates of compliance where a national environmental standard makes an activity lawful without a resource consent.  

Existing use rights under the RMA 1991

Existing-use rights will apply in the same way to activities established as permitted activities under the NES, as they do to activities established as permitted activities under district plan rules.

Existing use certificates (EUC) can still be sought under section 139A of the RMA. The existing use rights provisions of the RMA - section 10, section 10A, section 10B and section 20A - apply to activities that were lawfully established before the NES came into force. Section 43B(9) establishes that an NES provision that requires a resource consent be obtained  should be treated as if it were an operative rule in a plan - section 10, section 10A, section 10B and section 20A.

How does the NES apply to resource consents and designations?

Relationship to resource consents

The NES applies to any resource consents sought after the NES took effect on 14 January 2010. If a consent application was lodged before the NES was notified in the Gazette (17 December 2009), but the council had not decided whether to notify the application by that date, the NES prevails (ie, the NES applies to the consent application) – section 43B(7) of the RMA.

For resource consents where the decision on whether to notify the application was made before the NES was notified in the Gazette, the consent will prevail (ie, take precedence) over the NES – section 43B(7) of the RMA.

Any resource consents granted before the NES was notified in the Gazette continue to prevail – section 43B(5) and (6) of the RMA. 

Coastal, water and discharge permits will also prevail over the NES, if they were granted before the NES was notified in the Gazette; however, this is subject to the ability of the consent authority to review the permit's conditions under section 128(1)(ba) of the RMA.

Relationship to designations

Section 43D of the RMA outlines the relationship between an NES and a designation.

Existing designations for existing transmission lines: An existing designation takes precedence over the NES until it lapses or the conditions in it, relevant to the NES, are altered. However, there are specific instances where this is not the case; for clarity refer to section 43D of the RMA, particularly 43D(3).

Designations sought for existing transmission lines after NES commenced (later designation): The NES will prevail over any further designation that Transpower seeks for an existing transmission line.

NES and designations for new lines: There is no direct relationship between the NES and a designation for new transmission lines. The NES does not apply to new lines.

 

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Last updated: 18 January 2010