Chapter 18: Ultimate judgements
2322. The Board has now to come to its judgements on whether to confirm, modify or withdraw the requirements for designations for the Grid Upgrade Project, and whether to grant or refuse the resource consent applications for ancillary activities.
2323. In the first section of this chapter, the Board applies sections 6, 7 and 8 of Part 2 of the RMA to the Grid Upgrade proposal, and makes its findings. In the second section, the Board proceeds to make the ultimate judgements on whether the confirming or withdrawing of the requirements for designations, and the granting or refusing of the resource consent applications, would better serve the purpose of the Act described in its section 5.
Application of Part 2
2324. A territorial authority’s duties to consider the effects on the environment of allowing a requirement, and to have particular regard to the matters in the classes listed in section 171(1); and a consent authority’s duty to have regard to the matters in the classes listed in section 104(1), are both subject to Part 2 of the Act. The Board summarised the principles of Part 2 in paragraphs [137]–[141] in Chapter 4 of this report.
2325. Because the resource consents sought by Transpower are incidental to the Grid Upgrade Project that is the subject of the designation requirements, the Board is able to apply the principles of Part 2 to both the activities that would be permitted by the designations, and to those that would be authorised by the resource consents, as elements of the one proposal.
2326. In the event of conflict, the directions in sections 6, 7 and 8 override the directions in section 171.1 They inform and assist the purpose of the Act set out in section 5, being factors in the overall balancing, and not for obscuring the purpose.2
Section 6: Matters of national importance
2327. Section 6 is titled ‘Matters of national importance’. It directs that, in achieving the purpose of the Act, all persons exercising functions and powers under it in relation to managing the use, development, and protection of natural and physical resources, are to recognise and provide for certain specified aims, as matters of national importance.
2328. As the purpose of the Board’s Inquiry is exercising functions and powers related to managing the use, development and protection of natural and physical resources for achieving the purpose of the Act, the Board holds that those duties apply to its functions and powers of deciding the designation requirements and resource consent applications.
2329. Each of the aims listed in the several paragraphs of section 6 deserves separate consideration.
Section 6(a)
2330. By section 6(a), decision-makers are to recognise and provide for the preservation of the natural character of (among other things) lakes and rivers and their margins, and the protection of them from inappropriate development.
2331. Section 6(a) does not have the effect of excluding every use or development that impacts on the natural character of such areas. Whether development is inappropriate is to be judged from the point of view of preserving matters identified as being of national importance.3
Submissions
2332. The South Waikato District Council submitted that the natural character of the Waikato River at Arapuni would be adversely affected by being crossed by the transmission line, with towers on either side and suites of lines draped across, detracting and distracting from the natural character of the river corridor experience.
2333. Transpower submitted that, in the wider context of the Upgrade Project as a whole, the relevant constituent parts of the project are not inappropriate use and development; and that the Board should take into account the level of the effect (after mitigation), the general suitability of the route for the purpose proposed, and the linear nature and extent of the project as a whole.
Evidence
2334. Ms Buckland identified that part of the Waikato River as being part of Lake Karapiro. She described the land on the western (true left) bank as having indigenous vegetation and having high natural-character values.
2335. Ms Buckland presented a photomontage showing a representation of the proposed transmission line; and gave her opinion that the introduction of the transmission line would not preserve the natural character of the lake and its margins and so would be inappropriate.
2336. It was the evidence of Ms Lucas, consultant landscape architect, that the transmission line route would cross a length of naturally flowing river, with important natural character, above the calm lake waters; and she gave her opinion that the towers and lines at the crossing would detract and distract from, and adversely affect the natural character of the river corridor, and would be inappropriate.
2337. Mr Collier cited Ms Lucas’s evidence and concurred with her opinion that the vicinity of the proposed crossing is an area of high natural character, and that the presence of towers on either side along with suites of lines draped across the river would constitute inappropriate development from which the river deserves protection under section 6(a).
2338. Mr Lister described the river at the crossing point adjacent to Arapuni as having moderately high degree of natural character; and stated that the natural appearance is influenced by the mixed land-use pattern and the presence of Arapuni township. He considered that Tower 321 would be a prominent feature near the edge of the escarpment on the south bank, where it would be prominent from the river below and visible in the longer distance views from the north along Lake Karapiro. Mr Lister gave his opinion that the tower on the northern bank (Tower 320) would be less prominent, located at a lower level and further back from the river bank on a terrace, beyond a small plantation and amongst shelterbelts.
2339. In his evidence, Dr Steven gave his opinions that the natural character of the landscape is already significantly modified by agricultural development; and although natural elements are prominent in the landscape (predominantly exotic trees and pasture grasses), natural patterns, and particularly natural processes, have been modified considerably. He acknowledged that the proposed line would add further unnatural elements in the forms of towers and conductors, and would introduce another linear element in the landscape; but stated that such natural processes as operate in the landscape would not be affected by the proposed line. The witness concluded that overall, some further reduction in natural character would occur.
2340. Ms Allan gave her opinion that, given the extent of modification of the areas to be affected, the alignment is acceptable, citing the large, regular shelterbelts towards the river. As the tower structures would be set well back from the banks, and the area crossed does not have high natural-character values, she considered the crossing would not be inappropriate.
Consideration
2341. Whether the stretch of water that would be crossed by the transmission line some 800 metres north of Arapuni is naturally flowing river or the upper reach of Lake Karapiro, it and its margins have a natural character (although modified) to which section 6(a) applies.
2342. Although the transmission line towers would be set back from the margins of the river/lake, they would be visible in views of the river/lake; Tower 321, being elevated, would be prominent. The six triplex conductors (and smaller earth and communications lines) would of course pass over the river/lake. The Board finds that the total effect of the line crossing would be to further reduce the natural character of the river/lake and its margins.
2343. The wording of section 6(a) indicates that not all development in lakes, rivers and their margins that affects their natural character is inappropriate.
2344. An analysis of what constitutes appropriate development has to take into account section 7 matters.4 They include the benefits from the use and development of renewable energy,5 which can only be realised if the energy is transmitted to markets where it is required.
2345. The extent to which the proposed transmission line crossing would be inappropriate would be reduced somewhat by the towers being set back from the banks, and Tower 320 sited in a more secluded position. Even so, the line crossing would be development that is not related to river/lake; it would further diminish (but not destroy) its natural character and that of its margins; and although it would be part of transmission of renewable energy to market, the Board finds it would be inappropriate development.
Section 6(b)
2346. By section 6(b), decision-makers are to recognise and provide for the protection of outstanding natural features and landscapes from inappropriate development.
Submissions
2347. Federated Farmers submitted that there is an obligation to apply section 6(b) on a national, regional or district basis according to the context, and to identify outstanding natural landscapes accordingly; and that outstanding natural landscapes are not limited to those natural landscapes which are nationally outstanding.
2348. Transpower submitted that in deciding whether development in outstanding natural landscapes is inappropriate, the level of effect and mitigation proposed should be considered, as well as the suitability of the site and route, and whether the development would result in the values for which the landscape is recognised being irreparably harmed.
Evidence
2349. Ms Allan gave her opinion that the proposal is consistent with section 6(b), in that the alignment avoids traversing outstanding natural features and landscapes in the central part of the North Island and South Auckland; and also given the modified character of the areas that would be affected and the ability of the landscape to absorb the effects.
Consideration
2350. The Board considered the evidence bearing on outstanding natural features and landscapes in Chapter 10, in which it gave its findings that Lake Karapiro and the upper, forested, slopes of Maungatautari are outstanding natural landscapes, and that the proposed overhead line would have considerable adverse effects on those landscape values.
2351. In accordance with Transpower’s submissions, the Board takes into account that the extent of those effects would be reduced by the choice of the route; and possibly also by using monopoles at the Karapiro crossing; and the linear and other requirements for electricity lines considered in selecting the corridor and route; and that its purpose is the transmission of renewable energy to market. Even so, it judges that the development would result in the values for which those landscapes are recognised (particularly Karapiro) being diminished, though not destroyed.
2352. In summary, the Board finds that in those respects the development would be inappropriate.
Section 6(c)
2353. By section 6(c), decision-makers are to recognise and provide for the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna.
Submissions
2354. Transpower acknowledged that this provision focuses on protection,6 although that is not an absolute concept, and that a reasonable rather than a strict assessment is called for.7
2355. Transpower contended that there are seven areas of locally significant indigenous vegetation and habitat of indigenous fauna along the route of the overhead line; and that although it had not been possible to avoid all such areas, the route avoids ecologically sensitive areas such as wetlands and extensive areas of indigenous forest; and that effects on that vegetation and those habitats would be short-term, and reduced by mitigation measures and natural regenerative processes.
Evidence
2356. In his evidence Mr Beale identified the seven areas that would be affected, and that none is nationally or regionally significant. He also gave his opinion that the project would avoid virtually all areas which are ecologically significant at a local level, and would avoid areas that are recognised as being of ecological significance at a national or regional level.
2357. Ms Allan gave her opinion that the proposal would be consistent with section 6(c) for generally similar reasons.
Consideration
2358. Accepting the evidence of those expert witnesses, the Board judges that the relatively few areas of significant vegetation and habitat that would be affected in proportion to the length of the route; the need for a linear route; and the proposed mitigation measures; render acceptable, though disappointing, the failure to protect the seven areas and habitats.
Section 6(d)
2359. By section 6(d), decision-makers are to recognise and provide for the maintenance and enhancement of public access to and along lakes and rivers.
Submissions
2360. Transpower submitted that the three crossings of the Waikato River, and the crossing of Lake Maraetai, would not prevent public access to and along their banks; and that the same position would prevail in respect of other creeks and streams that would be crossed by the overhead line, including the Waipa Stream; and by the underground cables, including the Otara Creek.
2361. No submitter presented any contrary contention.
Evidence
2362. Ms Allan gave evidence that although rivers would be crossed by the overhead line, particularly the Waikato River and the Waipa Stream, those crossings would not reduce existing access to and along those waterways.
Consideration
2363. There being no contention or evidence to the contrary, the Board finds that the proposed Grid Upgrade Project would not impair public access to and along lakes and rivers.
Section 6(e)
2364. By section 6(e), decision-makers are to recognise and provide for the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu, and other taonga.
Consideration
2365. The Board addressed this topic in the section of Chapter 13 titled Tāngata whenua issues. Here it addressed the evidence and stated its finding that in the processes of consultation and selecting the proposed routes for the transmission line and underground cables, Transpower had recognised and provided for the relationships of Māori and their culture and traditions with their ancestral lands, waters, sites, wāhi tapu and other taonga.
2366. The Board finds that the values described in section 6(e) have been appropriately recognised and provided for.
Section 6(f)
2367. By section 6(f), decision-makers are to recognise and provide for the protection of historic heritage from inappropriate development.
Submissions
2368. In its submission, the New Zealand Historic Places Trust (NZHPT) raised issues regarding the need to address historic heritage matters.
2369. At the hearing, the NZHPT joined with Transpower in proposing revised conditions to be imposed on the designations and resource consents involving further study of sites of significance; a protocol for dealing with kōiwi or taonga, sites of significance, wāhi tapu, heritage sites and archaeological sites.
2370. The NZHPT informed the Board that the concerns it had raised in its submission were addressed by the revised conditions, and it no longer wished to adduce evidence.
2371. The revised conditions are incorporated in the proposed conditions in the appendixes to this report.
Evidence
2372. Ms Lucas and Mr Collier both gave evidence asserting that the overhead line route would pass through heritage landscapes.
2373. In cross-examination, Mr Collier accepted that the landscapes had not been assessed for the purpose of section 6(f), and that he is not a heritage expert.8 Ms Lucas also agreed in cross-examination that a more in-depth study would be required, and she was not prepared to classify parts of South Waikato as landscapes of national importance.9
Consideration
2374. The Board considers that the testimony of those witnesses does not amount to probative evidence that the proposed route of the overhead line would imperil any historic heritage; and that there is no probative evidence that it would do so.
2375. The Board considers that if the requirements are confirmed and the resource consents granted on conditions that incorporate those presented by the NZHPT and Transpower, that would appropriately recognise and provide for the protection of historic heritage from inappropriate development.
Section 6(g)
2376. By section 6(g), decision-makers are to recognise and provide for the protection of recognised customary activities.
2377. Transpower submitted that there is no recognised customary activity that would be affected by the Grid Upgrade Project.
2378. No submitter contended otherwise; nor called evidence to the contrary.
2379. The Board finds that section 6(g) is not applicable in the circumstances.
Section 7: Other matters
2380. Section 7 directs that, in achieving the purpose of the Act, all persons exercising functions and powers under it in relation to managing the use, development, and protection of natural and physical resources, are to have particular regard to certain specified values.
2381. Although some of the values listed in the several paragraphs of section 7 may overlap with others to some extent, each deserves separate consideration.
Section 7(a): kaitiakitanga
2382. By section 7(a), decision-makers are to have particular regard to kaitiakitanga.
Submissions
2383. Transpower submitted that it had consulted extensively with kaitiaki, and had sought to engage in ongoing relationships with them; and that their views had been taken into account in determining proposed alignments, and tower placements to avoid marae; and conditions had been proposed to kaitiaki groups to deal with discoveries of kōiwi and taonga.
Evidence
2384. Ms Allan asserted that the proposed archaeological protocol ensures consistency with section 7(a).
2385. Mr Mikaere concurred with the assertions of Ms Allan. He considered that the avoidance and mitigation strategies employed by Transpower demonstrated an acceptance of the need for regard to be taken of the kaitiaki obligation.
Consideration
2386. The Board considered kaitiakitanga in the section of Chapter 13 dealing with tāngata whenua issues.
2387. Without repeating the contents of that section, the Board finds that Transpower had given particular regard to kaitiakitanga in selecting the corridor and route, and in developing proposed conditions to deal with discoveries of kōiwi and taonga.
Section 7(aa): the ethic of stewardship
2388. By section 7(aa), decision-makers are to have particular regard to the ethic of stewardship.
Submissions
2389. Transpower submitted that the Grid Upgrade Project does not raise any significant issue about the ethic of stewardship; and that to allow the project to proceed would be appropriate in terms of that provision.
2390. No submitter contended otherwise.
Evidence
2391. Ms Allan asserted that the proposed archaeological protocol ensures consistency with section 7(aa).
2392. That was not disputed by any submitter, nor contradicted by any witness.
Consideration
2393. The Board follows the Environment Court decision in Outstanding Landscape Protection Society v Hastings District Council.10 It considers that, comparing the positive and adverse effects of the proposal and having regard to the provisions of the Act and instruments made under it, represents a giving effect to the ethic of stewardship.
Section 7(b): efficient use and development of resources
2394. By section 7(b), decision-makers are to have particular regard to the efficient use and development of natural resources.
Submissions
2395. New Era Energy South Waikato, Drummond Dairy and Scenic Dairies, and the South Waikato District Council submitted that the proposed transmission line would be inconsistent with the efficient use of the soil resources of the Waikato region for farming; and that use of existing infrastructure would combine effects to existing environment already characterised by electricity transmission.
2396. Transpower submitted that the project provides for efficient use of the land resource by extensively re-using the ARI-PAK corridor, and by seeking to minimise, in the longer term, the total number of lines and corridors. It remarked that there is no existing transmission corridor through much of the South Waikato District that could be used more efficiently; and disputed the contentions that the proposal is inconsistent with efficient use of the soil resources.
Evidence
2397. Mr Collier (who confined his evidence to the South Waikato District) gave evidence that interference with normal farming activities as a result of the construction and presence of the towers would be inconsistent with the efficient use of the land resource; and gave his opinion that, if existing infrastructure is used that would contain effects on the existing environment already characterised by electricity transmission.
2398. In cross-examination, Mr Collier explained that, from having visited two airstrips, he just had some concerns about how fertiliser is to be applied;11 and he conceded that for a large part of the district there is no other option but the greenfields route.12
Consideration
2399. In Chapter 12 of this report, the Board addressed potential effects of the overhead line on farming activities; and found that although there could be substantial adverse effects, Transpower proposes to avoid, remedy and mitigate those effects in business-like ways; and landowners would have opportunities to propose ways in which adverse affects could be avoided, remedied or mitigated.
2400. In Chapter 7, the Board stated its finding that adequate consideration had been given to alternative routes (among other things), and that the proposal would conform with section 7 about having particular regard to the efficient use of natural and physical resources.13
2401. In the light of those findings, the limited scope of Mr Collier’s knowledge of aerial application of fertiliser, and his acceptance that for a large part of the route through the South Waikato District there is no option of using an existing transmission corridor, the Board does not accept the submissions that the proposed transmission line would be inconsistent with the efficient use of soil resources for farming, or with the efficient use of existing transmission corridors.
Section 7(ba): efficiency of end-use of energy
2402. By section 7(ba), decision-makers are to have particular regard to the efficiency of the end-use of energy.
Submissions
2403. Transpower submitted that the efficiency of the end-use of energy is facilitated by the Grid Upgrade Project, which minimises transmission losses.
Consideration
2404. The Board is not persuaded that this submission quite addresses the point of efficient end-use of energy: rather it considers that the end-use of energy is outside the scope of a transmission grid, and is beyond being influenced by however robust and resilient the grid might be. This topic is simply irrelevant to the circumstances of the proposed designations and resource consents.
Section 7(c): maintenance and enhancement of amenity values
2405. By section 7(c), decision-makers are to have particular regard to the maintenance and enhancement of amenity values.
Submissions
2406. The South Waikato District Council submitted that, particularly in proximity to the line, visual amenity values would not be maintained or enhanced.
2407. New Era Energy South Waikato submitted that the proposed transmission line would not maintain or enhance amenity values of the South Waikato District; and would adversely affect those values; and that the effects on the environment would not be able to be avoided, remedied or mitigated.
2408. Drummond Dairy and Scenic Dairies made similar submissions; as did Mr P and Mrs D Dombroski.
2409. Transpower accepted that the overhead line would have visual impacts; in that sense, amenity values would in some instances not be maintained or enhanced. It submitted the requirement to maintain does not require prevention or prohibition, nor prevent there being some detraction from amenity;14 and that positive effects or benefits and proposed mitigation are to be taken into account.15
Evidence
2410. Ms Lucas gave her opinion that for those living, working, belonging and recreating in this landscape, the sight of large structures would significantly degrade the amenity values of this place.
2411. Mr Collier gave his opinion that people living next to the line or able to see the line would have reduced amenity values based on the sheer scale of the proposal. He agreed with Ms Lucas that the route traverses a working environment, and that the impact would be greater than and not restricted to those who are able to see the line.
2412. Ms Allan gave her opinion that visual amenity values would not be maintained and, although attention paid to visual and other environmental impacts in selecting the route and planning mitigation planting ensured that adverse effects would have minimal impact, section 7(c) would not be able to be achieved.
Consideration
2413. In Chapter 10 of this report, the Board stated its findings that there would be significant adverse landscape and visual effects on the environment, in some parts cumulative on effects of existing transmission lines. Those effects would not fully maintain amenity values and the quality of the environment.
2414. Transpower has had particular regard to those effects, and in the route selection and in its planting proposals, has sought to minimise the adverse effects of the line on landscape and visual amenity values. Although (as Transpower conceded) considerable adverse effects would remain, they cannot be eliminated except by doing without the transmission line. That is a possible outcome of the ultimate judgements the Board has to make.
Section 7(d): intrinsic values of ecosystems
2415. By section 7(d), decision-makers are to have particular regard to the intrinsic values of ecosystems.
Submissions
2416. Transpower submitted that, with the mitigation measures proposed, the Grid Upgrade Project would have little impact on the intrinsic values of ecosystems, and that impacts on indigenous vegetation would be mitigated as described in Mr Beale’s evidence.
Evidence
2417. As reported in paragraph [2357] of this chapter, Mr Beale stated that none of the seven areas of indigenous vegetation that would be affected is nationally or regionally significant; and that the project would avoid virtually all areas that are ecologically significant at a local level, and would avoid areas that are recognised as being of ecological significance at a national or regional level. He detailed the mitigation measures proposed.
2418. Ms Allan addressed this topic and stated that the intrinsic values of ecosystems had been addressed by avoiding valued areas of indigenous bush and wetlands; and that where vegetation has to be removed, mitigation or remedial planting is proposed.
Consideration
2419. The land-use consent application to Environment Waikato for vegetation clearance and earthworks rendered section 7(d) relevant in regards to the intrinsic value of ecosystems.
2420. The Board accepts Transpower’s submissions, and finds that it has had particular regard to the intrinsic values of ecosystems.
Section 7(f): quality of the environment
2421. By section 7(f), decision-makers are to have particular regard to the maintenance and enhancement of the quality of the environment.
Submissions
2422. The South Waikato District Council submitted that the route had been determined by Transpower in a manner that had not paid regard to the maintenance and enhancement of the quality of the environment, but had been driven by the imperative of having the route coincide with the preferred route in the Waipa District. The Council submitted that constructing the line on the proposed route would have demonstrably and unarguably greater adverse effects on the environment in landscape and visual effects than an alternative eastern route.
2423. New Era Energy South Waikato submitted that the proposed transmission line would not provide for the maintenance or enhancement of the quality of the environment, but would create adverse effects that could not be avoided, remedied or mitigated. Similar submissions were made by Drummond Dairy and Scenic Dairies, and by Mr P and Mrs D Dombroski.
2424. Transpower accepted that in some respects the quality of the environment would not be maintained by the overhead line, and contended that the choosing of the proposed route had been the result of rigorous application of corridor and route selection processes, by which adverse environmental effects had been avoided and would be mitigated.
Evidence
2425. Mr Collier stated that the sheer scale of the proposal would result in quality of the receiving environment being significantly reduced.
2426. In her evidence Ms Allan accepted that in proximity to the line, the visual quality of the environment would be reduced; and remarked that the attention paid to visual impacts in identifying and refining the alignment ensured that it would have minimum impact; and alluded to proposed mitigation planting that, in time, would assist in remedying adverse amenity effects.
Consideration
2427. The Board has found that the proposed overhead line would have significant landscape and visual effects.16
2428. It also finds that Transpower has had particular regard to those effects, and in the route selection and in its planting proposals, has sought to minimise the adverse effects of the line on landscape and visual amenity values; but that the quality of the environment would not be fully maintained. That could not be attained other than by doing without the transmission line, an outcome that would deprive people and communities of significant opportunities to provide for their well-being health, and safety.
Section 7(g): finite characteristics of resources
2429. By section 7(g), decision-makers are to have particular regard to any finite characteristics of natural and physical resources.
Submissions
2430. Transpower submitted that the alignment proposed avoids or mitigates effects on areas with special finite characteristics. It referred in particular to the coal resource that lies under part of the line, in respect of which submissions and evidence had been adduced on behalf of Glencoal Energy and the Stirling family, negotiations with whom had led to presentation to the Board of modifications to the locations of two towers, and on proposed conditions to facilitate open-pit mining of the coal resource.
2431. Transpower also referred in general to other natural and physical resources having finite characteristics: quarry rock and high-quality soils; and contended that any adverse effects on them would be minor.
Consideration
2432. There being no submissions or evidence to the contrary, the Board accepts that any effect of the Grid Upgrade Project on quarry rock or on high-quality soils would be minor.
2433. It considers that if the relevant requirement is confirmed, the modifications and conditions proposed by Transpower, Glencoal and the Stirling family would be appropriate. They are incorporated in the proposed conditions in Appendix K.
2434. The Board’s attention was not drawn to any other finite characteristic of natural and physical resources that might be affected by the proposed transmission line.
2435. The Board finds that Transpower has had particular regard to the only natural or physical resource having finite characteristics of which it is aware.
Section 7(h): protection of habitat of trout and salmon
2436. By section 7(h), decision-makers are to have particular regard to the protection of the habitat of trout and salmon.
2437. Transpower submitted that where the proposed line would cross waterways, effects on the habitat of trout have been avoided. That was not disputed by any submitter.
2438. The Board is not aware that there is any habitat of salmon that could be affected by the proposed Grid Upgrade.
2439. In short, the Board finds that Transpower has had particular regard to the protection of the habitat of trout; and that there is no relevant habitat of salmon.
Section 7(i): effects of climate change
2440. By section 7(i), decision-makers are to have particular regard to the effects of climate change.
2441. Transpower submitted that the effects of climate change have been integrated into the design of the Grid Upgrade as appropriate, including consideration of potential increases in ambient temperatures and storminess.
2442. No submitter contested those submissions; nor presented any other argument about other effects of climate change to which regard could or should be had.
2443. The Board finds that Transpower has had particular regard to the effects of climate change.
Section 7(j): benefits of renewable energy
2444. By section 7(j), decision-makers are to have particular regard to the benefits to be derived from the use and development of renewable energy.
2445. Transpower submitted that the Grid Upgrade would facilitate the transmission of renewable energy, and in that way maximise the potential benefits to be derived from use and development of it.
2446. Those submissions were not disputed by any submitter.
2447. In her evidence Ms Allan gave her opinion that the Grid Upgrade would provide for the efficient transmission of renewable energy, and would support new renewable generation in remote areas, thereby contributing to the benefits to be derived from its use and development.
2448. The Board finds that, in conformity with section 7(j), Transpower had particular regard to the benefits to be derived from the use and development of renewable energy.
Section 8: Treaty of Waitangi
2449. By section 8, all persons exercising functions and powers under the RMA are to take into account the principles of the Treaty of Waitangi.
Submissions
2450. Transpower submitted that:
a) it is not a Treaty partner, and section 8 does not impose on it the Treaty obligations of the Crown17
b) section 8 is to be approached broadly, and a detailed articulation of the principles is not necessary nor appropriate18
c) to take a matter into account is to consider it (as far as it is relevant) in making a decision, to weigh it up with the other relevant factors, and give it whatever weight is appropriate in all the circumstances19
d) the section does not elevate that factor above other factors which those responsible for exercising function and powers under the Act are required to consider.20
2451. Transpower contended that although consultation with Māori is not a principle of the Treaty,21 extensive consultation with tāngata whenua may provide a good indication that decision-makers have taken into account the principles of the Treaty.
2452. Transpower also contended that the principle of active protection of Māori interests and rangatiratanga may be represented by enabling practical implementation of kaitaikitanga; including its having put in place procedures that would enable active protection of tāngata whenua interests, including protocols and conditions in relation to sites, wāhi tapu and taonga, and discovery of kōiwi. It submitted that nothing in the Grid Upgrade Project is contrary to the principles of the Treaty.
Evidence
2453. Mr Mikaere gave his opinion that principles of partnership, active protection of rangatiratanga, and mutual benefit apply. As a result of the extensive consultation employed, the witness considered that the principle of partnership had been upheld. In addition he considered that consultation had also been instrumental in the active protection of rangatiratanga, in that by seeking out and identifying the affected tāngata whenua, Transpower had protected the rangatiratanga of the Māori parties involved.
2454. Ms Allan gave her opinion that the requirements of that section had been met in that:
a) Transpower had engaged in extensive consultation with tāngata whenua
b) in selecting the route and alignment, land owned by Māori under statutory or traditional arrangements, and known sites of significance to Māori had, by careful identification, been avoided
c) protocols for disturbance of sites, and for accidental discovery of new sites, kōiwi and taonga are proposed.
2455. No submitter disputed those submissions.
Consideration
2456. The Board accepts that Transpower’s submissions, summarised in paragraphs [2451]–[2453], correctly state the law on the application of section 8.
2457. The Board accepts the evidence of Mr Mikaere and Ms Allan summarised in paragraphs [2454] and [2455], and finds that in the ways described, the relevant principles of the Treaty have been respected in the Grid Upgrade Project.
Summary of application of sections 6, 7 and 8
2458. In summary, having applied the provisions of sections 6, 7 and 8, the Board has found that the proposed overhead line would not fully provide for the protection from inappropriate development of the natural character of the lake/river and its margins at the crossing site north of Arapuni; nor of the outstanding natural landscapes at the crossing of Lake Karapiro and Maungatautari; and that more generally the landscape and visual effects would not fully maintain amenity values and the quality of the environment along the route.
Ultimate judgements
2459. Sections 6, 7 and 8 are ancillary to section 5 in the sense of assisting in making judgements whether allowing a plan or proposal would more fully promote sustainable management (as described in section 5(2)) of natural and physical resources, rather than disallowing it. Having applied sections 6, 7 and 8, the Board has now to make such judgements in respect of the Grid Upgrade that would be authorised by the designation requirements and resource consents.
2460. As mentioned in Chapter 4,22 application of section 5 involves a broad judgement on whether a proposal promotes sustainable management of natural and physical resources, allowing a comparison of conflicting considerations, their scale or degree, and their relative significance or proportion in the final outcome.
2461. The preservation of natural character and other aims of sections 6, 7 and 8 are not to be achieved at all costs. Questions of national importance, national value and benefit, and national needs, must all play their part in the overall consideration and decision.23
Submissions
2462. The South Waikato District Council contended that the proposal would not achieve the sole purpose of the RMA as it will result in adverse effects which cannot be avoided, remedied or mitigated. In particular the Council asserted that the proposal would not enable the people and community of South Waikato to provide for their social, economic and cultural well-being (citing landscape, visual and amenity effects); and that it would not be possible to adequately avoid, remedy or mitigate the adverse effects on the environment.
2463. The Hunua and Paparimu Valley Residents Association accepted that the sustainable management of resources includes provision of a robust and adequate electricity supply. The Association also noted that the natural and physical resources to be managed include the landscape of the Hunua and Paparimu Valley, and that section 5(2)(c) requires the avoidance, remedying or mitigating of any adverse effects of activities on the environment, including that landscape.
2464. The Association contended that the intensity of adverse effects that would be experienced in the Hunua and Paparimu Valley is a function of the number of people who live there, and the extent to which the transmission line would cause additional adverse effects that would accumulate with those of existing lines there.
2465. The Association also contended that the Grid Upgrade involves development at an inappropriate rate, as the 400-kV capability would not be needed for 25 years, if at all.
2466. New Era Energy South Waikato contended that the requirement is contrary to the promotion of sustainable management of natural and physical resources because it would create adverse effects that cannot be avoided, remedied or mitigated; it would not enable the local community to provide for their social, economic and cultural well-being (citing landscape, visual and amenity effects, potential liability, and constraints on use of land); it would not sustain the potential to meet reasonably foreseeable needs of future generations, in that the lines would permanently occupy productive farm land; and would not sufficiently avoid, remedy or mitigate adverse environmental effects on rural and residential amenity values, asserting that visual impacts would not be able to be mitigated, and there would be adverse farming effects.
2467. The Hunua and Paparimu Valley Residents Association submitted that the requirement conflicts with Part 2, as it would allow adverse effects that cannot be avoided, remedied or mitigated; and as the merits of the requirement cannot override Part 2 matters, and are fundamental to the RMA, the requirement should be cancelled, and the resource consents declined.
2468. Mr P and Mrs D Dombroski, Mr E J Mackay, Drummond Dairy and Scenic Dairies made similar submissions.
2469. Orini Downs Station contended that allowing the requirement would have adverse economic impacts from disruption to operation of the farm and quarry, including future operation and expansion, impacts that would not necessarily be fully met by a one-off payment of compensation.
2470. Transpower disputed the submissions that the proposal would not achieve the purpose of the Act because it would result in adverse effects that cannot be avoided, remedied or mitigated. It contended that the fact that a project would have adverse effects that cannot be avoided, remedied or mitigated does not mean that the sustainable management purpose would not be met. Rather, those effects are to be included in making the broad judgement whether the proposal, considered overall, would promote sustainable management as defined.
2471. Transpower also contested Orini Downs Station’s claims of economic effects, observing that there was no evidence that any liability or economic effect would not be recompensed.
2472. Transpower submitted that when all matters are weighed, the Grid Upgrade Project is consistent with Part 2 and in accordance with the purpose of promoting sustainable management of natural and physical resources. In particular, it contended that the Upgrade Project would enable it to provide for national, regional and local well-being, health and safety, and for the economic and cultural well-being of the community, while avoiding, remedying and mitigating adverse effects on the environment, and meeting the other requirements of section 5(2).
2473. Transpower contended that the Upgrade Project would sustain the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations; that it would not offend the life-supporting capacity of air and other ecosystems; and that adverse effects would be avoided, remedied and mitigated appropriately to the extent practical in the circumstances.
2474. It submitted that matters of national importance have to be weighed alongside the fact that the Upgrade Project has been identified by the call-in process as being a matter of national significance: not to override the sustainable management purpose of the Act, but indicative that matters identified in section 6 as being of national importance may be balanced with a particular project that is of national significance.
Consideration
2475. The Board first addresses the dispute over whether the proposal would conflict with Part 2 and would not achieve the purpose stated in section 5 because it would have adverse environmental effects that would not be able to be avoided, remedied or mitigated. Two questions arise: Are the submitters’ contentions based on the correct interpretation of section 5? And: Would the adverse effects in fact be avoided, remedied or mitigated?
2476. On the question of interpretation, the Board accepts Transpower’s submission. The Board holds that section 5 does not require that all adverse effects on the environment be fully avoided, remedied or mitigated. Rather, as Transpower submitted, the extent to which adverse effects would not be avoided, remedied or mitigated is to be included in making the judgement whether allowing the proposal would more fully promote sustainable management of natural and physical resources rather than disallowing it.
2477. On the question of fact, the Board’s findings on the evidence are that, although there would be: significant adverse landscape and visual effects; disappointing clearance of vegetation and habitat; potential adverse social effects; potential disruption to land management and farming activities, and potential effects on free use of public roads – those effects would be avoided, remedied and mitigated to some extent, even though not to the extent that they would be fully eliminated.
2478. It is what may be described as the residual effects, those that would not be eliminated by avoidance, remediation or mitigation, that are to be brought into the judgement process.
2479. The Board now addresses the submissions to the effect that the proposal would not enable people or communities to provide for their social, economic and cultural well-being. The reasons given for those submissions are the landscape, visual and amenity effects; potential liability; and constraints on use of land.
2480. The Board does not accept that the environmental effects listed should be taken into account in support of the proposition. Those effects (to the extent that they are not avoided, remedied or mitigated) are to be brought into the judgement process directly as such. It is not necessary to count them again as indirect grounds for the disenabling submissions.
2481. The constraints on land use and potential liability arguments are matters that the Board has concluded are outside the scope of its Inquiry.24
2482. Next, the Board addresses the contention that the Grid Upgrade Project involves development at an inappropriate rate.
2483. As noted in Chapter 4, the Board has a duty to apply the NPS. The objective of that instrument includes the establishment of new transmission resources to meet the needs of present and future generations. Policy 13 includes recognising that the designation process can facilitate long-term planning for the development of electricity transmission infrastructure.
2484. In the same chapter, the Board reported that Transpower is obliged to comply with the Government Policy Statement, clause 71 of which mandates grid reliability and resilience.
2485. The Board also referred in Chapter 4 to Section III of Part F of the Electricity Governance Rules 2003, Rule 4.3 of which prescribes that grid reliability standards are to take into account that transmission investments are long-lived assets and require a long-term planning perspective; and should reflect the public interest in reasonable stability in planning having regard to the long-term nature of investment in transmission assets.
2486. Those instruments informed the opinions given in evidence by Mr Boyle who (as noted in Chapter 3) considered it likely that the Huntly coal-fired plant would no longer be used for baseload generation; and consequently that the proposed transmission line would be changed to operate at 400 kV earlier than forecast, and in any event by 2039.
2487. Bearing in mind the life of transmission assets, and the themes of the applicable instruments of long-term planning and reliability of the grid, it is the Board’s judgement that developing the transmission line so it is capable of being converted to operate at 400 kV in future does not represent development at an inappropriate rate.
2488. The argument that needs of future generations would not be sustained due to the line permanently occupying farm land is fragile. The Board addressed the effects of the transmission line on farming in Chapter 12. Although some farming activities would be restricted within the designation boundaries (such as trees and buildings), livestock de-pasturing would be permitted even under the towers; and although cropping would not be, the Board accepts Mr Hall’s opinion that the extent of land excluded from cropping under the towers would be minor.
2489. In so far as Orini Downs Station identifies that it would be disenabled from providing for its economic well-being (and that of people dependent on it), that might be a component in negotiating a price for granting Transpower entry on, or an easement over, its land. The Board has given its reasons in Chapter 16 for holding that the adequacy of compensation is beyond the scope of its Inquiry.
2490. On Transpower’s submission on matters of national importance, the Board accepts that where relevant, questions of national importance, national value and benefit, and national needs, are to be considered; as are the reasons given by the Minister for calling in the Grid Upgrade proposal.25
Judgements for statutory purpose
2491. The Board has now to come to the evaluative judgement on whether the single purpose of the RMA, promoting the sustainable management of natural and physical resources, would be more fully achieved by confirming the requirements and granting the resource consents, or by withdrawing (that is, cancelling) the requirements and refusing the resource consents. That judgement is to be made by applying the findings made in Chapter 17 on the relevant considerations to the explanation in section 5(2) of the term sustainable management.
Positive effects and benefits
2492. The Grid Upgrade Project would provide, instead of the 7-decade-old ARI-PAK A line operating at 110 kV, a new transmission line to operate at 220 kV having capability of operating at 400 kV with a design capacity of 2700 MVA per circuit. Its positive effects and benefits would be to:
a) facilitate efficient transmission of energy, minimising transmission losses, from Whakamaru to south Auckland
b) facilitate transmission of electrical energy from renewable sources in the central North Island to the major market
c) make up a predicted deficiency of reliable supply of electrical energy to Auckland at times of peak demand
d) support reliability and resilience of the grid so that it would be capable of supplying projected needs for more than three decades
e) maximise the use of the line corridor, avoiding proliferation of lines and corridors.
2493. In general, the proposal would be consistent with the NPS. It would contribute to achieving the objective by establishing new transmission resources to meet the needs of present and future generations. It would give effect to Policy 1 of providing for the national, regional and local benefits of sustainable, secure and efficient electricity transmission, and provide benefits of improved security of supply of electricity with reduced transmission losses; and facilitate development of renewable generation. It would also give effect to Policy 2 by providing for upgrading and development of the electricity transmission network.
2494. However, although the proposal would manage adverse environmental effects, significant adverse landscape and visual effects (in particular on outstanding landscapes and areas of high natural character), and in some parts cumulative on those of existing lines, would not be fully avoided, remedied or mitigated.
2495. In general the proposal would serve the relevant provisions of the Auckland and Waikato regional policy statements, being supportive of ensuring a reliable and secure supply of electricity with sufficient capacity to meet current and future demand, and efficient in transmission of energy. However, adverse landscape and visual effects, including cumulative effects, would not be fully avoided.
2496. Most of the district plans contain important objectives and policies about protection of landscape and amenity values, to which the proposal would not fully give effect or support. The proposal would not meet the policies of the Waikato District Plan about underground cabling either. In other respects, the proposal would generally conform with the district plans.
2497. In Chapter 8, the Board found that the proposed work is reasonably necessary for achieving Transpower’s objectives. The Board considers that a reliable and resilient national grid is a national need, and benefit; and so the proposed upgrading of the grid is a project of national, as well as regional, significance. It finds that the Grid Upgrade Project, and in particular the new transmission line, would:
a) represent managing the use and development for natural and physical resources in a way, and at a rate that would enable people and communities to provide for their social, economic and cultural well-being and for their health and safety
b) sustain the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations living and working in Auckland for a sufficient and reliable electricity supply
c) in many respects avoid, remedy and mitigate adverse effects on the environment
d) avoid adverse effects and disbenefits.
Adverse Effects
2498. The proposal would have actual and potential adverse effects on the environment.
2499. The actual effects would be the considerable landscape and visual effects on amenity values (including natural character) that (even after avoidance, remediation and mitigation) would result from the scale and shape of the steel lattice towers and the triplex conductors. In particular, there are outstanding landscape areas and areas of high natural character that would be affected to some extent, and which to that extent would not be entirely protected from inappropriate development. In some parts of the line, those considerable effects would be cumulative on similar effects of existing transmission lines.
2500. To the extent to which the proposal would not fully protect the natural character of lakes and rivers and their margins, and outstanding natural landscapes, from inappropriate development, it would fail to meet the directions of section 6(a) and (b). Those are directions of national importance.
2501. To the extent that it would have significant residual adverse landscape and visual effects, including cumulative effects, the proposal would fail to meet directions of the ARPS, and most of the district plans.
2502. There would be disappointing clearances of indigenous vegetation and habitat of indigenous fauna, even though none is nationally or regionally significant.
2503. There would also be potential social effects. These would be variable in severity, and may abate over time; but they may be significant effects, and the potential for them occurring is to be considered.
2504. There could also be substantial adverse effects on management of land for farming and other business activities; and that potential has also to be considered. There is a potential, too, for free use of public roads to be interrupted.
Conflicting considerations
2505. The positive effects and benefits mentioned in paragraphs
[2493]–[2498] are respects in which the Grid Upgrade Project would promote the sustainable management of natural and physical resources; and the residual adverse effects mentioned in paragraphs [2499]–[2505] are respects in which it would not. These are conflicting considerations, and the Board has to compare them according to their scale or degree and their relative significance or proportion in the final outcome.
2506. There is uncertainty about the level of the potential social effects, and also about the level of potential effects on land management and on use of public roads. The degree of them may vary according to circumstances, and may abate over time. In any event, those effects are not categorised as being of national importance. The Board has concluded that the clearances of indigenous vegetation and habitats of indigenous fauna are acceptable, although disappointing. So in coming to a judgement whether the proposal, being itself of national importance, would promote sustainable management even though it could have those effects, the Board judges that the potential for those adverse effects would not have significance or importance in the final outcome equivalent to the significance of the national and regional need for, and benefit of, the Grid being upgraded as proposed.
2507. Protection from inappropriate development of the natural character of the lake/river and its margins at the crossing site north of Arapuni, and of the outstanding natural landscapes at the crossing at Lake Karapiro and of Maungatautari, are qualified as being of national importance. Yet even though the protection of them from inappropriate development is to be recognised and provided for, that is not an absolute goal to be achieved at all costs.
2508. The extent to which the proposal would not provide for protection of them is regrettable. In comparing those deficiencies with the positive effects of the proposal, the Board takes notice of the extent to which, by systematic and professional route selection, and by use of monopoles near the Lake Karapiro crossing, Transpower has done what it could to avoid greater potential effects, to mitigate the effects, and to remedy them. The Board recognises that in practice, transmission lines having the capacity required need to be of such a scale that they cannot be hidden. Adverse landscape and visual effects are unavoidable.
2509. The Board has applied the statutory test to the consideration given to alternative methods and routes, and found that they were adequately considered. So the crossings of the lake and river (which are to be protected from inappropriate development) are also unavoidable, although regrettable.
2510. Therefore, the Board judges that the national importance of protecting the natural character of the lake/river and its margins, and the outstanding natural landscapes, from inappropriate development, does not have such significance in the final outcome as to be equivalent to the national and regional need for, and benefit of, the Grid Upgrade Project.
2511. The adverse landscape and visual effects on the environment along the route of the overhead line would be considerable, by no means insignificant, and in some parts cumulative. Amenity values, and the quality of the environment, along the route would not be fully maintained. The Board does not abase the value of the environments that would be adversely affected.
2512. However, when compared in proportion to the national need and benefit of the Grid Upgrade Project, the Board judges that the significance of those considerable adverse effects on the environment would not be equivalent to the national and regional need for, and benefit of, the Grid Upgrade Project.
2513. The Board has considered each class of adverse effect separately. They should also be considered collectively in comparison with the positive effects and benefit of the Grid Upgrade Project.
2514. That involves evaluating together the inappropriate development at the lake/river crossings and Maungatautari, from which they are to be protected as matters of national importance; the considerable adverse landscape and visual effects (some cumulative), along the route of the overhead line; the potential social effects; the clearance of indigenous vegetation and habitat; the potential adverse effects on land management; and potential interruptions to free use of public roads.
2515. The Board has to compare the significance of those adverse effects, taken together, with the significance of the national and regional need for, and benefit of, the Grid Upgrade Project. In evaluating the Grid Upgrade, the Board gives effect to the way and rate in which the proposal would enable people and communities to provide for their social, economic and cultural well-being and for their health and safety; to the meeting of reasonably foreseeable needs of future generations; and to the many respects in which the project has been designed to avoid, remedy and mitigate adverse effects on the environment (although, in the result, not all adverse effects have been eliminated).
2516. The ultimate criterion is whether allowing or declining the designation requirements and resource consents for the Grid Upgrade Project would more fully achieve the sustainable management purpose of the Act. On that criterion, the Board judges that allowing the Grid Upgrade Project, even with its failures of full protection from inappropriate development, and its considerable actual and potential adverse effects, would more fully achieve the sustainable management purpose described in section 5 than would declining it. It follows that the requirements should be confirmed, and the resource consents granted, in each case subject to the proposed conditions.
Endnotes
1. McGuire v Hastings District Council, [2002] 2 NZLR 577; [2001] NZRMA 557; 8 ELRNZ 14 (PC), para 22.
2. Ngati Rangi Trust v Manawatu-Wanganui Regional Council (Environment Court Decision A067/04), para [67].
3. NZ Rail v Marlborough District Council [1994] NZRMA 70 HC pp [85f.]
4. Genesis Power v Franklin District Council [2005] NZRMA 541, paras [219]f
5. RMA s7(j).
6. Minister of Conservation v Hutt City Council (Environment Court Decision W013/03).
7. Environmental Defence Society v Mangonui County Council [1989] 3 NZLR 257 (CA) 260.
8. Transcript 7/10/08, pp5f.
9. Transcript 6/10/08, pp24f.
10. [2008] NZRMA, 8 para [88].
11. Transcript 7/10/08, p4.
12. Transcript 7/10/08, p6.
13. Chap 7, para [655].
14. Port Otago v Dunedin City Council (Environment Court Decision C004/02) paras 41f
15. Elderslie Park v Timaru District Council [1995] NZRMA 433 (HC) p444.
16. Chapter 10 para [1218].
17. Hanton v Auckland City Council [1994] NZRMA 289, 301.
18. Waikanae Christian Holiday Camp v Kapiti Coast District Council (HC Wellington CIV-2003-485-1764 27/10/04 MacKenzie J) para [110].
19. Bleakley v Environmental Risk Management Authority [2001] 3 NZLR 213, para [72].
20. Carter Holt Harvey v Te Runanga o Tuwharetoa ki Kawerau [2003] 2 NZLR 349; 9 ELRNZ 182; para [25].
21. New Zealand Māori Council v Attorney-General [1987] 1 NZLR 642, 665 line 5.
22. Chapter 4, paragraphs [136] and [162].
23. New Zealand Rail v Marlborough District Council [1994] NZRMA 70 (HC) 86.
24. Chap 16, paras [1830] – [1832]; and [1821] – [1823] and [1886] – [1888] respectively.
25. RMA, s147(4)(b)(ii).
