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Chapter 16: topics beyond scope of inquiry

1853.     Submitters raised several matters that, on consideration, the Board finds are beyond the limits of its Inquiry. The Board recognises that the submitters may want the Board to state its findings on those matters. However, the Board’s decisions on the designation requirement and on the resource consent applications should not be influenced by findings on matters that are outside the scope of the Inquiry. Consideration of the range of matters that are properly within the scope of the Inquiry is sufficient to occupy the Board’s attention, which should not be diverted by consideration of arguments on matters that should not influence the decision.

Institutions

1854.     If they had not been called in by the Minister for the Environment, the designation requirements and submissions on them would have been considered and decided by the relevant territorial authorities. Similarly, the resource consent applications and submissions on them would have been considered and decided by the relevant regional councils.

1855.     The effect of the call-in of the requirements and applications is, that the Board considers and decides them instead of the territorial authorities and regional councils respectively. The scope of the Board’s task, and its powers for carrying it out, are no greater than those the territorial authorities and regional councils would have had under the RMA in considering and deciding the requirements and applications, had they not been called in.

1856.     Other institutions have, or might have, authority in respect of, or arising out of the proposed Grid Upgrade: the Electricity Commission in considering whether to grant or withhold approval under the electricity legislation identified in Chapter 4; the Environment Court in considering objections under the Public Works Act to taking of interests in land for the proposed upgrade structures; the Land Valuation Tribunal in considering claims to compensation for interests in land taken or injurious affection, disturbance or business loss under the same Act; and the Department of Labour in respect of construction and operation of the Grid Upgrade in terms of the Health and Safety in Employment Act 1992.

1857.     The Board’s Inquiry is made under the RMA. It does not extend to any other legislation, nor to the functions of any of those institutions under those Acts.

Electricity Commission process

1858.     Transpower submitted that in considering the need for the Grid Upgrade, and whether it is reasonably necessary for achieving its objectives, the Board may and should have regard to the fact that the Electricity Commission had approved the project. Transpower reminded the Board that the Commission’s decision had followed extensive peer reviews, independent reports and analysis, demand forecasts, public briefings and hearings, consultation sessions, and sensitivity testing; and that submissions had been received from participants in the energy industry, from city councils, business, industry and business associations, landowners and members of the public. It submitted that in coming to its decision, the Commission had applied rigorous criteria and good industry practice, grid reliability standards, and the grid investment test.

1859.     Some submitters disputed Transpower’s submission that the Board should have regard to the Electricity Commission’s approval of the proposal.

1860.     The Waipa District Council contended that–

  • a) matters of environmental sustainability and the assessment of full costs of a proposal are obligatory considerations within the principal objectives of the Electricity Commission and the specific outcomes it must seek, and should have been addressed as part of compliance with section 172N of the Electricity Act
  • b) the Commission’s decision on the proposal under the Electricity Act has limited Transpower’s assessment of the proposal under the RMA, especially by effectively foreclosing any adequate investigation of alternative methods and routes.

1861.     The Manukau City Council contended that the Electricity Commission approval decision had been made on a narrow and limited economic basis: driven by the grid investment test, and excluding consideration of external costs such as impacts on the environment, and economic and social effects on surrounding communities.

1862.     Mr G Copstick and Ms C Brennan contended that, if the Commission had been asked to rule on the total project rather than just the first stage, it would not have been approved; and that the staging meant the Commission had been prevented from assessing whether energising the line at 400 kV would pass the tests under the Electricity Governance Rules.

1863.     Dr McQueen contended that the Commission’s process had been manipulated to grant approval, and he objected to the Board relying on it as evidence that the proposal is needed and economically preferable.

1864.     In reply, Transpower acknowledged that the Commission’s approval does not resolve the issue of need, nor is it a substitute or proxy for the RMA issue on which the Board has to make its own decision. Rather, Transpower contended that the Board may take comfort from the Commission’s process and decision.

1865.     The Waipa District Council accepted that reviewing the Electricity Commission’s decision is not within the scope of the Board’s Inquiry. The Board accepts that, and holds that the question whether or not the Commission should have addressed environmental sustainability and assessed the full costs of the proposal, and whether or not it did so, are not for the Board to consider.

1866.     The Board also holds that the questions whether or not the Electricity Commission’s decision limited Transpower’s assessment of the proposal, and whether or not the Commission’s investigation of alternative methods or routes was adequate, are also outside the proper scope of the Board’s Inquiry.

1867.     The Board has to consider the effects on the environment of allowing the requirements, having particular regard to whether adequate consideration has been given to alternative sites, routes and methods of undertaking the work. The Board has to make its own findings on the evidence before it, independently of the Electricity Commission’s process and decision. In coming to its findings on those questions, the Board is not required to, and should not, be influenced by whether Transpower’s consideration of alternative methods or routes was effectively limited by the Electricity Commission’s decision. There should be comity among statutory institutions, but the Board implies no disrespect for the Commission in making its own findings and judgements in terms of the RMA independently of the Commission’s approval decision under the electricity legislation.

Outline plan process

1868.     In Chapter 4, the Board summarised the effect of section 176A concerning conditions in which a requiring authority is to submit to the territorial authority an outline plan of proposed work.

1869.     In its opening submissions, Transpower contended that the outline plan provisions are a quite separate process, and not a matter for the Board to consider as part of the current hearing.

1870.     There was some discussion during the Inquiry hearing over the extent to which the Board should leave details of the structures and other works to the outline plan process, rather than impose conditions concerning them.

1871.     Mr Freke urged that key issues around effects and design and appearances should be dealt with comprehensively in conditions, rather than being deferred and addressed at the outline plan of works stage.

1872.     Mr D A Parker referred to Transpower having requested that it be exempt from having to provide outline plans. Ms S J Allan explained that the exemption request had been made because of the adequacy of the information available on the overhead line.

1873.     In its submissions in reply, Transpower contended that the extent and location of required monopoles should be resolved by the Board rather than being left to decide at the outline plan stage.

1874.     The Board considers that the contents of this report and the proposed conditions adequately describe the effects that are recognised. In particular it accepts that in deciding on the requirements for designations, it could make decisions requiring that certain structures be monopoles rather than lattice towers. However, the Board accepts as correct Transpower’s submission that outline plan requirements are not part of the current process.

1875.     The Board holds that it does not have authority to grant an exemption from any obligation that Transpower may have under section 176A to submit outline plans. Any questions about whether outline plans are required would need to be decided (at least in the first instance) by the relevant territorial authority.

Past behaviour of Transpower representatives

1876.     A number of submitters described past incidents when the behaviour of Transpower representatives on their lands had been what they considered unacceptable. If the behaviour described had been relevant to the Board’s Inquiry, and had been the subject of particularised evidence statements lodged in time, the number of such incidents might have indicated a general attitude of inconsiderate treatment of private landowners; such as would be unacceptable in agents of a State-owned enterprise exercising statutory powers. Such behaviour and attitudes would also be counter-productive to negotiating consents to enter private land for the purpose of planning, constructing and maintaining new transmission assets.

1877.     Even so, the incidents complained of do not bear on the Board’s decisions on the proposed designations and resource consents. They are not relevant to the Inquiry, and the Board makes no finding on them.

Future behaviour of Transpower contractors

1878.     It is understandable that people who have had what they regard as unsatisfactory experiences with Transpower representatives may lack confidence that contractors and agents of Transpower seeking to enter their lands for planning, constructing and maintaining the proposed works will behave with the consideration appropriate to exercise of public powers on private land.

1879.     The Waikato District Council raised concerns over detrimental effects on management of private land and livestock due to unsatisfactory and insensitive entry on it by Transpower or its contractors. The District Council acknowledged the value of Transpower managing entry in accordance with a standard protocol.

1880.     Federated Farmers also supported the development of a standard protocol, and was critical of contents of a draft proposed by Transpower.

1881.     By the law that would be applicable to entry for the purpose of the proposed designations, owners of private land would be entitled to refuse entry to Transpower contractors and agents, except on terms and conditions agreed to by the landowner concerned, or in terms of an easement over the land. The only potential exception to that general statement would be entry under the Public Works Act for which the parts to be taken by the Minister of Lands and (if invoked) the Environment Court would give assurance of appropriate terms, conditions and behaviour.

1882.     The Board understands that a standard protocol might provide a useful starting point for negotiation of rights of entry or easement, but holds that it is beyond the scope of its Inquiry to form and express views about the contents of Transpower’s draft.

1883.     So although the Board understands the concerns expressed arising from experience of past incidents, it holds that its decision on the designation requirements should not be influenced by them.

Restrictions on use of private land

1884.     Many submitters stated their concerns that, although not the subject of negotiations with Transpower for acquisition of property rights, restrictions on farming and other lawful activities in the vicinity of the overhead transmission line might be imposed for protection of the line, perhaps by instrument under the Electricity Act.

1885.     Actions in times past may have provided a basis for such concerns. The current electricity legislation shows an approach by which restraints on use and activities on private land for use for transmission assets are generally to be purchased from landowners.

1886.     The Board has no basis for assuming that restrictions on property rights would be imposed in a way inconsistent with that approach to transmission assets.

Effects on potential for subdivision

1887.     Some submitters (including Ms A A Jones and Mr H M and Mrs B J Seales) raised concerns that the designation for the overhead line across their land, and creation of an easement for it, would constrain their options for potential subdivision of the land.

1888.     The Board accepts that in general the designation, and a corresponding easement, would have some constraining effect on potential future subdivision. The extent of the constraint would depend on the size and shape of the property that might be subdivided, and the closeness of subdivision appropriate.

1889.     The extent to which that kind of constraint may devalue the property would be considered in assessing the consideration for purchase of the easement, or (if need be) the compensation for taking of the easement. However, it is too speculative and remote for the Board to consider it in deciding on the designation requirement.

Adequacy of compensation

1890.     Some submitters raised their concerns about the adequacy of compensation that might be payable in respect of allowing Transpower access to their lands, granting easements over it, and injurious affection resulting from the construction use and maintenance of the proposed line.

Contentions of submitters

1891.     Although not a subject of its original submission on the designation requirements, at the hearing Federated Farmers questioned whether compensation paid in a lump sum would qualify as full compensation by not taking account of inflation, and urged that compensation would not be adequate unless assessed as annual payment amounts.

1892.     By its submission, the Waikato District Council raised its concern about compensation for landowners detrimentally affected by the Grid Upgrade Project, including limitations on the use of their land. However, at the hearing the Council acknowledged that the Board is not able to grant direct relief in that respect, because it is a matter between Transpower and individual landowners.

1893.     Many other submitters asserted that the compensation that might be payable in respect of entry on private land to carry out works for construction and maintenance of the proposed transmission line, for disturbance of farming and other activities, for injurious affection caused by visual, noise, and health effects (including effects on the health of people beyond the designation, and on land in respect of which easements are not to be acquired) would not be adequate. The insufficiencies of compensation that were alleged included that:

  • a) the amounts of lump-sum payments would be inadequate to redress losses that would be incurred
  • b) full compensation should be made by periodic rentals, rather than lump-sum payments
  • c) compensation should extend to land injuriously affected even though interests in that land are not to be taken
  • d) amounts for betterment arising from demolition of the existing ARI-PAK line could be deducted.

Transpower’s response

1894.     Transpower responded that it will apply the law in making compensation, which includes deducting set-offs for betterment. Transpower submitted that it is not for a territorial authority considering a requirement for a designation, nor for a consent authority considering a resource consent application, to have regard to whether the applicable provisions of the law on compensation of owners of land entered for construction of the line, or from which an easement for the line is taken, are fair or adequate. It argued that the Board has no business having regard to those questions either.

Consideration

1895.     The RMA does not confer power to assess compensation on a territorial authority considering a requirement for a designation, nor power to prescribe methods for assessing compensation that differ from the general law on that topic contained in Part 5 of the Public Works Act.

1896.     Even if the Board were to purport to insert conditions about assessment of compensation that differed from the law contained in Part 5 of the Public Works Act, such purported conditions would not bind the Land Valuation Tribunal, which is a specialist tribunal established by law for that task, and the conditions would be ineffective.

1897.     It is not the business of a territorial authority considering a designation requirement to consider and make findings on whether the law about assessment of compensation is adequate. That is beyond the scope of its functions under the RMA. The same limits apply to a board of inquiry considering a designation requirement that has been called in.

1898.     So the Board holds that if agreement is not reached, the assessment of compensation is within the jurisdiction of the Land Valuation Tribunal under the Public Works Act, and beyond the scope of the Board’s Inquiry under the RMA.

Depreciation and injurious affection

1899.     Many submitters contended that the existence of the proposed transmission line would cause the market value of land over which it passes, and of other land in the vicinity, to be substantially depreciated; and would also be more difficult, and take longer, to sell. Many submitters (including the Manukau City Council – Mr Freke’s evidence) also protested that there is no provision for compensation in respect of injurious affection to parcels of land none of which is to be taken.

1900.     In paragraph [1899] of this chapter, the Board held that considering whether the law about assessment of compensation is adequate is beyond the scope of the Board’s Inquiry. The same reasons apply to consideration of the adequacy of the law about compensation for depreciation and for injurious affection. So the Board holds that the contentions that there would not be adequate compensation for land values depreciated by existence of the transmission line, or for injurious affection to land none of which is to be taken, are beyond the scope of its Inquiry.

Risk of structure collapse

1901.     Some submitters expressed concern about the risk of transmission line towers toppling over and injuring people or damaging property.

1902.     Parliament has exempted systems of network utility operators from requiring building consents under the Building Act. The erection of them is governed by and under the Electricity Act 1992.

1903.     Mr Lake gave evidence about the structural design and reliability of towers including monopoles and for the foundations. This evidence included changes to the design level in New Zealand from a historic 350-year return-period wind event up to about the last 10 years when it was revised, to a 300‑year return-period wind event, to be aligned closer to the Australian practice; and a recent increase by Transpower making its design level for core grid lines to a 500-year return-period event, to be consistent with international practice. (A 500-year return-period event basically means that there is a 1 in 500 probability of the design load being exceeded in any one year.)

1904.     Mr Lake reported that there had been 54 failures of transmission line structures since 1924. Forty-one of these failures were due to tower structure issues, and the other 13 failures were due to issues with tower foundations. He stated that tower and foundation design methods and behaviour have been progressively improved and developed, and in conjunction with full-scale testing, provide a reliable method to ensure tower and foundation designs are practical and appropriate.

1905.     Mr Lake gave detailed explanations of how the structures and component loads would be designed in accordance with international practice. He explained that every tower is designed to accommodate the expected residual tension load from a broken conductor; and that all proposed tower types and relevant foundation types would be tested to identify and confirm their capacity and suitability for the line. In rebuttal evidence, Mr Lake confirmed that for higher-voltage transmission towers, lattice steel towers are internationally preferred.

1906.     Mr Lake also gave his opinion that for a tower to topple, so that its total height is laid flat and perpendicular to the line, is a very unlikely scenario. He added that towers are to be sited so that they would not be in line with any houses.

1907.     On earthquake risks, Mr Lake explained that the proposed route does not cross any active fault, and where it crosses land vulnerable to liquefaction, tower foundations would be designed to accommodate that.

1908.     The Board accepts the evidence of Mr Lake in relation to tower design levels, and that towers are to be designed to take account of expected tensions due to conductor failure.

1909.     The Board is satisfied the structures of the line are to be designed and constructed in accordance with high standards of engineering practice; and that their suitability for satisfactory mechanical and electrical performance is by law supervised under the Electricity Act.

1910.     It is beyond the scope of the Board’s Inquiry under the RMA to investigate and make findings about the likely integrity of the proposed structures, which have not yet been the subject of detailed design.

Community benefits

1911.     By its submission, the Waikato District Council sought conditions requiring Transpower to undertake community good projects in local communities affected by the Grid Upgrade. However, at the hearing, the Council accepted that the Board could not lawfully impose such conditions.

1912.     Similarly, the Manukau City Council (Mr Freke’s evidence) commended a more enlightened practice as followed by Transit New Zealand in trading off project costs with benefits to the community. However, Mr Freke acknowledged that the Board does not have the role of finding the optimum or best alternative, and cannot directly have regard to such matters. Rather he suggested that providing clarity in what is required of the project would assist any subsequent Electricity Commission decision.

1913.     A territorial authority considering a designation requirement will have regard to community benefits proposed by the requiring authority in mitigation of adverse environmental effects. However, the Board accepts as correct those acknowledgements that obliging a requiring authority to provide community benefits is beyond the scope of consideration of a designation requirement.

1914.     Similarly it is not the role of the Board to express an opinion about what the Electricity Commission should consider in subsequent decisions. The Manukau City Council is free to make representations about amendment to the electricity legislation under which the Commission makes its decisions. The experience of the Council and of Mr Freke would qualify them to make representations in that context.

1915.     In short, the Board holds that requiring community benefits other than those offered by the requiring authority is beyond the scope of its Inquiry.

Equity issues

1916.     Dr McQueen addressed the Board about what he called the ‘inequity of the battle between landowners and Transpower’ in the legal resources and expert witnesses that Transpower used. He also spoke of external pressure being put on approval of the line for political advantage; and asserted that Transpower had not dealt fairly with landowners in negotiating equitable purchases of easements, and in refusing to consider compensation based on both one-time and rental components of those easements.

1917.     The Board is aware that most submitters would not be able to match the resources that Transpower could bring to bear in presenting its case to the Board. That is why the Board allowed some tolerance to submitters in the presentation of their cases, particularly in their cross-examination of Transpower witnesses, and in considering submitters’ cases. Even so, as indicated in Chapter 4, the Board has looked to evidence of probative value in making its findings.

1918.     The Board is unaware of any external or political pressure for approval of the line. Had any such pressure been evident to the Board, it would have been ignored. The Board has confined its consideration to the submissions and evidence presented at its public hearings, and endeavoured to deal with them in accordance with law in preparing this report and reaching its judgements.

1919.     The Board is not aware of any evidence before it tending to show that Transpower had not dealt fairly with landowners in negotiating purchase of land or easements. It infers that any dissatisfaction by landowners over compensation offered may have resulted from landowners and Transpower having differing opinions about the application of the law on compensation for public works. As already explained, it is not for the Board to express a view on the question which of those opinions is correct.

1920.     In summary, the Board holds that the equity issues raised by Dr McQueen are outside the scope of the Inquiry.

Stress, uncertainty, and changes to expectations

1921.     Many submitters stated their discomfort, in some cases distress, at the stress, uncertainty and changes to expectations that they have experienced in the period of some years since the Grid Upgrade Proposal was first announced.

1922.     The members of the Board sympathise with those submitters. Their calm and considered presentation of their submissions at the hearing, despite those experiences, has assisted the Board in understanding what they wanted to contribute to the Inquiry.

1923.     However, those experiences are not matters that should influence the Board’s decision on the designation requirements or resource consent applications.

Perceptions of adverse effects (including stigma effects)

Submissions

1924.     New Era Energy and other submitters submitted that public perception of risks associated with transmission lines would lead to reduction in land values, referred to as a ‘stigma effect’. They also raised problems in attracting and retaining farm workers, due to perceptions by workers or potential workers or their families of ill-health effects from living or working in the vicinity of the high-voltage transmission line. Some submitters also asserted that markets for their produce would be affected by perceptions by potential buyers of harm from consuming or using produce from farming in the vicinity of the line; and others contended that opportunities for taking part in the tourism industry would be limited by similar perceptions.

1925.     Counsel for New Era Energy cited Environment Court decisions1 in which (she submitted) such effects had been considered.

1926.     Transpower responded that those decisions had been based on other legislation, or on different points, and did not support the assertions about perceived effects being sufficient to equate to relevant RMA effect.

Consideration

1927.     The question raised by the submissions of New Era Energy and others, arises where the Board has not found that giving effect to the designation or resource consent would have effect asserted. The question is whether the Board is required to, or should, have regard to perceptions that giving effect to the designation or resource consent might have that effect; or to any effect consequential on any such perception.

1928.     A question of perceptions of what is or is not offensive is different, and cases about those kind of perceptions2 do not assist in deciding the question in point. The Board does not refer further to those cases.

1929.     There is a line of judicial decisions in planning and resource management law to the effect that subjective perceptions of potential harm, although sincerely held, are not taken into account as effects on the environment if, on the evidence, those perceptions are not well founded.

1930.     Starting with the decision of the highest authority, the Court of Appeal has held that if a decision-maker finds that the thing in question would not be affected, it is not necessary to make provision for views to the contrary.3 The High Court has held that a rule-of-reason approach must prevail, and that a decision-maker is to consider, objectively, the effects of the particular activity.4

1931.     The Planning Tribunal rejected claimed perceptions in export markets of contamination of primary exports arising from proximity of export factories to proposed activities,5 and in Transpower v Rodney District Council,6 the Tribunal held that it would not be appropriate for it to weigh suspicion, even when expressed by one who is qualified as an expert witness, against the opinions of even better qualified experts that are consistent with the consensus of the international scientific community. In McIntyre,7 the Tribunal held that the existence of a serious scientific hypothesis, or even one that is regarded as deserving priority for testing, is not necessarily sufficient by itself to establish a potential effect, even a potential effect of low probability which has a high potential impact.

1932.     More recently, the Environment Court has considered submissions based on perceived risk of harm.

1933.     In Telecom v Christchurch City Council,8 the Court held that social angst and lack of well-being in the community affected is not a material consideration.

1934.     In Aquamarine v Southland Regional Council,9 the Court held that a no-risk regime is not compatible with sustainable management as defined in section 5(2).

1935.     In Shirley Primary School,10 the Court held that if the risk of adverse effects is acceptable, then the fears of certain members of the community, or even of sufficient people to be regarded as a ‘community’, would be unlikely to persuade the decision-maker that consent should be refused, because the individual’s or the community’s stance is unreasonable. Following Department of Corrections v Dunedin City Council,11 the Court endorsed consideration of whether there are likely to be adverse effects on the environment.

1936.     In Contact Energy,12 the Environment Court considered submissions that a geothermal power station and other development of a geothermal field would have adverse effects on the tourism appeal of the Taupo area; and of community concern and economic impacts on property. The Court held that it would not be consistent with the provisions of the RMA for deciding resource consent applications for the outcome to be influenced by the number of people who perceive themselves to be at risk or concerned about possible adverse effects. The Court stated:

[254] … Because the Court has the same duty in respect of a decision appealed against as the primary decision-maker, it acts on its findings based on evidence of probative value in having regard to the matters directed by section 104 and making the discretionary judgment to grant or refuse consent conferred by section 105 for best achieving the purpose of the Act defined in section 5. There is ample scope in that process for the Court’s decision to be influenced by adverse effects on the environment which are shown on the evidence to be well founded. However, there is no place in that process for the Court to be influenced by mere perceptions of risk which are not shown to be well founded.

[255] Claims of effects on tourism appeal … like claims of depreciation of property values, are derivative. If they are well founded, that is because of adverse effects on the environment, and it is the adverse effects themselves, rather than the supposed secondary results of them, that should be considered in the ultimate judgement. If they are not proved to be well founded, we hold that they should not influence the Court’s decision.

1937.     In Beadle,13 the Court held that claims about people’s attitudes, and fears, however genuinely held, have to be assessed objectively; and if it is found on probative evidence that there would be no adverse actual or potential effect on the environment of allowing an activity, then the fact that some people remain fearful and unconvinced by the weight of evidence is not a relevant matter to be taken into account; and that there is no place in the process for a decision-maker to be influenced by perceptions of harm which are not shown to be well founded.14

1938.     In Sea-Tow,15 the Court held that beliefs of effects that are not supported by the evidence do not provide an appropriate basis for judicial findings of adverse effects on the environment, and should not influence the Court’s judgment of whether or not a proposal would represent sustainable management of natural and physical resources.16

1939.     Those judicial decisions are consistent with the binding authority of the judgments of the higher Courts cited previously.

1940.     The Board has considered the decisions relied on by counsel for New Era Energy.

1941.     The decision in Fernwood Dairies,17 was not about a designation or resource consent application under the RMA requiring consideration of effects on the environment. It was a decision under the Electricity Act about a proposal by Transpower to upgrade existing transmission lines crossing private land; and the question for the Court was whether Transpower’s proposal would injuriously affect that land. So the question was essentially one of private property rights, under legislation completely different from the RMA.

1942.     In Fernwood Dairies the landowner expressed concern about risks of increased cancer growth and of leukaemia in children from magnetic fields around the upgraded transmission line. On the evidence, the Court found that Transpower’s proposal would have no unreasonable effect on the amenities of the land, and no injurious affect on it. The Court also held that injurious affection under that Act includes any loss in value of the land, including loss caused by public fear of the proposed upgrade, whether or not that fear is unreasonable. However, the Court found that the proposed upgrade would not cause a reduction in the value of the land, and would have no injurious affect.

1943.     In that decision, the Court treated loss of land value due to unreasonable fear as an element in injurious affection for the purpose of the Electricity Act. It does not follow that such loss should be treated as an adverse effect on the environment for the purpose of the RMA. To do so would be inconsistent with the authorities and the line of judicial decisions under that Act already listed.

1944.     The other Environment Court decision relied on by counsel for New Era Energy was Oasis Clearwater.18 On reading and re-reading that decision, it is not evident that the necessary determination of that decision has any bearing on the question whether a decision-maker under the RMA is to have regard to a perception of a potential adverse effect that is not objectively supported by probative evidence.

1945.     The Board applies the authorities to the effect that a decision-maker under the RMA is to take a rule-of-reason approach and consider, objectively, the effects of the particular activity; and if it is found on the evidence that the thing in question would not be affected, it is not necessary to make provision for fears to the contrary that it might be affected. The reasoning in the line of Planning Tribunal and Environment Court decisions cited is consistent with those authorities, and the Board follows the reasoning in those decisions.

1946.     The Board has considered the evidence bearing on all relevant assertions of adverse environmental effects of the proposal, and made its findings on them, applying the extended meaning of ‘environment’ directed by section 2, and the extended meaning of ‘effect’ directed by section 3. Where the Board has found that there would be an adverse effect on the environment of giving effect to the designation or resource consent, the Board will take it into account. Where, on considering the evidence, the Board has not found that giving effect to the designation or resource consent would have an adverse effect asserted by submitters, the Board holds that it is not required to, and should not, have regard to perceptions that giving effect to the designation or resource consent might have that effect; nor to any effect consequential on any such perception.

Engagement and retention of farm workers

1947.     Some submitters urged that construction of the overhead line across their farms would make it difficult to engage and retain farm workers, who would be unwilling to spend their working days close to the line due to perceptions of health effects.

1948.     There was little direct evidence of farm workers taking such attitudes. In any event for the Board to allow the possibility to influence its decision on the designations would be to give weight to putative perceptions that are inconsistent with the Board’s assessment of the evidence in Chapter 9, and with its finding on consideration of the evidence that there is no significant risk to health from operation of the Grid Upgrade in compliance with the proposed conditions.

Potential liability for outages

1949.     Some submitters (including Federated Farmers, Carter Holt Harvey and Hancock Forest Management, Orini Downs Station and New Era Energy South Waikato) expressed concern that landowners may potentially have liability for outages in the proposed line, and consequential losses, as a result of some action or negligence on the landowner’s part. They argued that the consequential losses may be very significant, and ruinous on landowners or disastrous for them.

1950.     Transpower submitted that there is no evidence to support such a result, and that the probability is too remote to be considered an environmental effect.

1951.     The Board agrees with that. It also considers that the question is more one of private property interests than of the public objectives sought by the RMA. The Board considers that whatever the law is about liability in such circumstances, it is not for territorial authorities considering requirements for designations under the RMA (or, where the designation has been called in, for a board of inquiry) to be concerning themselves with the application of that law. It is for the courts deciding individual cases, or if necessary for Parliament amending the law, to ensure that application of the law does not work injustice.

Relative numbers of opponents and supporters

1952.     Federated Farmers submitted that Parliament intended that regard should be had to the relative numbers of submissions for and against the proposal. Other submitters made similar remarks.

1953.     Transpower replied that there is nothing in the Act or case law that supports the view that regard should be had to the number of submissions for and against a proposal, and that the Board’s decision should not be influenced by the degree of public opposition to the Grid Upgrade Project.

1954.     The law is that making decisions under the RMA is not according to the number of submitters but rather to the quality of their submissions.19

1955.     The Board applies the law, and holds that its decisions should not be influenced by the relative numbers of opponents and submitters.

Endnotes

1. Fernwood Dairies v Transpower (Environment Court Decision C171/06); Oasis Clearwater Environmental Systems v Selwyn District Council (Environment Court Decision C027/07).
2. Eg Zdrahal v Wellington City Council [1995] 1 NZLR 700; Minhinnick v Watercare Services [1998] 1 NZLR 294; and Stratford District Council v Adams (Environment Court Decision W52/07).
3. Friends of Ngawha v Minister of Corrections (2002) 9 ELRNZ 67, 73 (lines 30-36); [2003] NZRMA 272 [24]; per Blanchard J.
4. TV3 Network Services v Waikato District Council [1998] 1 NZLR 360; [1997] NZRMA 539; per Hammond J.
5. Northern Wairoa Dairy Co v Dargaville Borough Council (Planning Tribunal Decision A181/82); Affco v Hamilton City Council (Planning Tribunal Decision A3/84); Purification Technologies v Taupo District Council (Planning Tribunal Decision W10/95).
6. Planning Tribunal Decision A85/94.
7. (1996) 2 ELRNZ 84; [1996] NZRMA 289.
8. Environment Court Decision W165/96.
9. Environment Court Decision C126/97.
10. Shirley Primary School v Telecom Mobile Communications [1999] NZRMA 60.
11. Environment Court Decision C131/97.
12. Contact Energy v Waikato Regional Council (Environment Court Decision A4/2000).
13. Beadle & ors v Minister of Corrections (Environment Court Decision A074/02).
14. Those findings were not upset by the higher Courts on appeal: HC Wellington 20/06/02, Wild J; CA (refusing special leave to appeal) [2003] NZRMA 272; 9 ELRNZ 67, per Blanchard J.
15. Sea-Tow & anor v Auckland Regional Council (Environment Court Decision A066/06).
16. Ibid, [405]. Although that decision is subject to appeal, the part of the Environment Court decision referred to is not impugned by the notices of appeal.
17. Fernwood Dairies v Transpower (Environment Court Decision C171/2006).
18. Oasis Clearwater Environmental Systems v Selwyn District Council (Environment Court Decision C72/2007).
19. Upland Landscape Protection Society v Central Otago District Council (HC Dunedin 16/09/08 Fogarty J [66]).

 

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