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Chapter 4: The legal context

Introduction

126. Before addressing the issues raised in submissions on the designation requirements and resource consent applications, the Board summarises its understanding of the legal context in which the requirements and applications are to be decided, and the scope of its Inquiry.

127. The legal context of the upgrade proposal includes the Public Works Act 1981, the RMA 1991, the Electricity Act 1992, and instruments made under those Acts.

128. The requirements and applications were made, and called in, under the RMA. The Board was constituted, the inquiry is to be conducted, and the decisions are to be made, under that Act. In this chapter, the Board identifies the main provisions of that Act which are applicable, and also the relevant instruments made under it.

129. The National Grid, and Transpower’s duties and responsibilities in respect of it, are governed by the Electricity Act 1992 and instruments made under that Act. The Board also identifies relevant provisions of this Act and its instruments.

130. Where a proposed work requires construction or access over private land, Transpower is free to reach agreement with the landowner for rights of entry and grant of an easement. If agreement is not reached, Transpower may apply to the Minister of Lands to take an easement under the Public Works Act,¹ and if that is done, full compensation (if not agreed) would be assessed under that Act.² The Board has to consider the extent to which the application of that Act is within the scope of the inquiry.

131. Reference was made to the NZEECS under the Energy Efficiency and Conservation Act 2000. The Board has to consider whether that Strategy should influence its decision.

132. Parties also urged consideration of certain other documents that are not themselves sources of law. The Board has to consider whether regard should be had to them in deciding the requirements and resource consent applications.

The Resource Management Act

133. The RMA restated and reformed the law relating to the use of land, air and water. Part 2 of the Act contains sections 5 to 8, which state the purpose and principles of the Act, and function as substantial guidance to decision-makers.

The purpose of the Act

134. The RMA has a single purpose, stated in section 5(1), of promoting the sustainable management of natural and physical resources. What is meant by sustainable management is explained in section 5(2):

In this Act “sustainable management” means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety while—

a) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and
b) Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and
c) Avoiding, remedying, or mitigating any adverse effects of activities on the environment.

135. In the context, natural and physical resources include land, energy, and structures;³ effect is to be given a broad meaning that includes positive or adverse effects, cumulative effects, and potential effects of low probability which have a high potential impact;⁴ and environment is given a broad meaning that includes people and communities, amenity values, and social, economic, aesthetic, and cultural conditions which affect them.⁵

136. Application of section 5 involves a broad judgement as to whether a proposal promotes sustainable management of natural and physical resources.⁶

Principles in Part 2

137. Part 2 is described as the engine room of the RMA, and (except when specifically excluded or limited) is intended to infuse the approach to its interpretation and implementation throughout.⁷ There is a deliberate openness about the language, its meanings and connotations which is intended to allow the application of policy in a general and broad way.⁸

138. Section 6 lists matters of national importance that those performing functions under the RMA are to recognise and provide for. They include (among other things) the protection of the natural character of wetlands, lakes, rivers and their margins, and the protection of them from inappropriate development; the protection of outstanding natural features and landscapes from inappropriate development; the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna; and the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu and other taonga.

139. The matters of national importance listed in section 6 are to be considered against the stated purpose of the RMA (that of sustainable management) referred to in section 5.⁹ They are not to be achieved at all costs. Protection is not an absolute concept, and a reasonable, rather than strict, assessment is called for.¹⁰ The provision for matters listed in section 6, and the extent to which a proposal would give effect to the objectives and policies of the planning instruments, are to serve the purpose of promoting sustainable management of natural and physical resources described in section 5.¹¹The achievement which is to be promoted is sustainable management, and questions of national importance, national value and benefit, and national needs, must all play their part in the overall consideration and decision.¹²

140. Section 7 lists further matters to which functionaries are to have particular regard. They include kaitiakitanga; the efficient use and development of natural and physical resources; the efficiency of the end use of energy; the maintenance and enhancement of amenity values; the maintenance and enhancement of the quality of the environment; the effects of climate change; and the benefits to be derived from the use and development of renewable energy.

141. Section 8 directs that all persons exercising functions and powers under the Act in relation to managing the development of natural and physical resources are to take into account the principles of the Treaty of Waitangi. That does not extend to principles that are not consistent with the scheme of the RMA; nor provide for allocating resources to Māori.¹³ Neither does it impose a duty on functionaries to take into account past wrongs, or be open to ways to restore imbalance.¹⁴

The conduct of the inquiry

142. The scheme of the RMA is that requirements for designations, and resource consent applications, are considered and decided by local authorities. However, when, on requirements and applications on a matter of national significance that are called in, the Minister directs that the matter be referred to a board of inquiry, then section 147 modifies the normal procedures.

143. The factors to which the Board of Inquiry is to have regard include any relevant factor listed in section 141B(2) (being factors indicative that a matter is, or is part of, a proposal of national significance); and the reasons given by the Minister for calling the matter in.¹⁵

144. Relevantly, a board of inquiry considering a matter that is an application for a resource consent has the same powers and duties as a local authority, except that the board may permit cross-examination, must keep a full record of its hearings, and must apply sections 37, 92, and 104 to 112 as if it were a consent authority.¹⁶

145. Where a board of inquiry is considering a matter that is a notice of requirement, it has the same powers and duties as a territorial authority, except that the board:

may permit cross-examination
must keep a full record of its hearings
must apply sections 37, 169 to 171, and 175 as if it were a territorial authority
must apply section 173 as if it were a territorial authority except that its statement of the time within which an appeal may be lodged must say that the appeal is under section 149A
must consider whether to confirm the requirement, modify it, impose conditions on it; or withdraw it
for that purpose has the same powers as a requiring authority under section 172.¹⁷

146. Certain provisions of the Commissions of Inquiry Act apply to bodies conducting hearings under the RMA, including a board of inquiry appointed under section 146.¹⁸ The provisions of the Commissions of Inquiry Act that apply to such boards of inquiry include power to receive as evidence any statement, document, information or matter that in its opinion may assist it to deal effectively with the subject of the inquiry, whether or not it would be admissible in a Court of law.¹⁹

147. A person conducting a hearing under the RMA into a resource consent application or a requirement for a designation, including a board of inquiry appointed under section 146, has the power to request and receive from any person who is heard or who is represented at the hearing any information or advice that is relevant and reasonably necessary to determine the application.²⁰

148. A person conducting a hearing under the RMA into a resource consent application or a requirement for a designation, including a board of inquiry appointed under section 146, also has power, after considering whether the scale and significance of the hearing makes it appropriate, to direct the applicant and submitters to provide briefs of evidence before the hearing within a time limit.²¹

149. As soon as practicable after a board of inquiry has completed an inquiry, it is to make its draft decision and produce a draft written report which gives its draft decision and gives reasons for that decision, and includes the principal issues and findings of fact. The draft report is sent to the applicant, local authorities, submitters and the Minister, who are to be invited to send their comments on any aspect of it to the board within 20 working days.²²

150. The board has then to consider any comments received, make its decision, and produce a written final report. The report has to include the principal issues, the findings of fact, the board’s reasons, and its decision. In addition to changes that result from implementation of the decision, the report may contain recommendations of changes to planning instruments under the RMA, or of issue or revocation of a national policy statement or coastal policy statement.²³

151. There is a right of appeal to the High Court against a board of inquiry’s decision, on a question of law only.¹⁵¹ There is no right of appeal to the Environment Court against the board’s decision.

152. Federated Farmers submitted that there is no onus on submitters to make their cases, but an onus on the Board to ensure that material raised in submissions is adequately considered.

153. The Board accepts that submission to the extent that it has considered assertions raised in submissions, and decides them in accordance with the legal framework applying, and on the totality of the evidence presented in accordance with the Board’s directions to allow fair testing by cross-examination on notice.

Requirements for designations

154. The RMA provides for designations that authorise activities that may not otherwise comply with that Act, or with instruments under it, governing use of land (particularly district plans). A designation constrains activities in relation to designated land that would prevent or hinder the designated activity, except with the consent of the requiring authority.²⁵

155. Section 171 governs a territorial authority’s consideration of requirements:

171. Recommendation by territorial authority—

When considering a requirement and any submissions received, a territorial authority must, subject to Part 2, consider the effects on the environment of allowing the requirements, having particular regard to—
- a) any relevant provisions of—
  - (i) a national policy statement:
  - (ii) a New Zealand coastal policy statement:
  - (iii) a regional policy statement or proposed regional policy statement:
  - (iv) a plan or proposed plan; and
- b) whether adequate consideration has been given to alternative sites, routes, or methods of undertaking the work if—
  - (i) the requiring authority does not have an interest in the land sufficient for undertaking the work; or
  - (ii) it is likely that the work will have a significant adverse effect on the environment; and
- c) whether the work and designation are reasonably necessary for achieving the objectives of the requiring authority for which the designation is sought; and
- d) any other matter the territorial authority considers reasonably necessary in order to make a recommendation on the requirement.
The territorial authority may recommend to the requiring authority that it–
- a) confirm the requirement:
- (b) modify the requirement:
- (c) impose conditions:
- (d) withdraw the requirement.
The territorial authority must give reasons for its recommendation under subsection (2).

156. A number of questions arose about the interpretation of section 171: the effect to be given to the words “subject to Part 2”; whether the matters listed in paragraphs (a) to (d) of section 171(1) are aspects of environmental effects rather than separate considerations; the extent of the power to modify a requirement; who chooses from alternatives; tests of adequacy of consideration of alternatives; relevance of method of acquiring land; and whether the extent of a designation can be limited.

Subjection to Part 2

157. The Manukau City Council submitted that the words “subject to Part 2” in section 171 do not imply just a statutory check at the end of the process, but that the Board needs to be satisfied that the requiring authority was informed and guided by Part 2 in preparing the requirements, and at every stage in the process.

158. Transpower responded that to the extent that preparing and lodging notices of requirement are administrative acts (as distinct from the assessments involved in preparing them) no Part 2 input is required.

159. That may be so. The context of those words in question is a territorial authority’s consideration of the effects on the environment of allowing a requirement. This is the process that is subjected to Part 2.

160. By section 171(1), the function of a territorial authority (and of a board of inquiry) is to consider any such effects, having particular regard to the considerations listed. The function is not to review the conformity with Part 2 of the preceding steps of preparing, assessing, and lodging of the notice of requirement.

161. The duty to have particular regard to the listed matters being expressed as being subject to Part 2, does not apply where having regard to them would conflict with anything in Part 2. However, that does not require the territorial authority to test each alternative against Part 2.²⁶

162. The Manukau City Council warned against making Part 2 “just a statutory ‘check’ at the end of the process”. If by that the council intended that a territorial authority should not make its evaluative judgement of applying Part 2 at the end of the decision-making process, the Board does not accept it.

163. Making such a judgement can require comparison of conflicting considerations and the scale or degree of them, and their relative significance or proportion in the final outcome.²⁷ Such an evaluative process can logically follow the making of findings and assessments on the various considerations that are to be evaluated.

164. The Board considers that applying Part 2 after having made findings and assessments on those considerations is an appropriate sequence in coming to its ultimate decisions, and helpful in showing the process by which it does so. The Board holds that making that assessment and judgement at the end of the decision-making process conforms with subjecting it to Part 2. The Board is unaware that doing so at the end of the process conflicts with the authorities cited by counsel for the City Council,²⁸ or with any other authority.

Character of the listed considerations

165. The Waipa District Council submitted that the relevant version of section 171 (substituted by section 63 of the Resource Management Amendment Act 2003) casts the matters listed in section 171(1)(a) to (d) as particularly relevant examples of the mandatory consideration of effects on the environment.

166. It contended that this version of the section makes the matters (a) to (d) particularly important aspects of those effects, rather than separate considerations to which regard was to be had in their own right. It argued that this gives the provisions of planning instruments (including rules or other methods to give effect to objectives and policies) and consideration of alternatives (especially those that may be available to address any significant adverse effects on the environment) much greater significance than they had on a stand-alone basis prior to the 2003 amendment.

167. Counsel argued that the relevant district plan provisions should be accorded a position of primacy in the assessment of effects; and although compliance with them is not a prerequisite to approval of a requirement, they are to be given great weight.

168.
Transpower submitted that the Waipa District Council’s interpretation is incorrect, advancing these main reasons:

a) on the Council’s interpretation, the weight attributed to an environmental effect could be increased or decreased, depending on matters in (a) to (d)
b) the 2003 amendment to the wording of section 171(1) was no more than a drafting refinement
c) the Council’s interpretation is not supported by the explanatory note to the Bill that made the amendment
d) the decision-maker has to make its own judgement, based on the evidence, about effects on the environment, despite district plan provisions to the contrary.²⁹

169. The Board is not persuaded that the 2003 amendment to the introductory passage of section 171(1) is to be interpreted as having the effect proposed on the Council’s behalf, for these reasons:

a) the language “… consider the effects … having particular regard to…” expresses a duty to do both together, without necessarily giving one primacy over, or making one subordinate to, the other
b) the language “having particular regard” expresses a duty for the territorial authority to turn its mind separately to each of the matters listed, to consider and carefully weigh each one. The words do not carry a meaning that the matters listed in (a) to (d) are necessarily more or less important than the effects on the environment of allowing the requirement
c) the subject matters of the items listed in paragraphs (a) to (d) do not necessarily bear on effects on the environment of allowing the requirement
d) as Transpower submitted,³⁰ a decision-maker has to make its own judgement, based on the evidence and in the circumstances of the case, about the effects on the environment, about the items listed in (a) to (d), and about the relative importance of each in all the circumstances
e) the only material provided to the Board indicating what was intended during the Parliamentary process leading to the 2003 amendment Act reveals nothing to support the Council’s interpretation, or to cast doubt on the meaning expressed by the language used.

171. So the Board holds that on the correct interpretation, section 171(1) does not give district plan provisions primacy in the assessment of effects on the environment of allowing a requirement, a matter on which a territorial authority has to make its own judgement on the evidence and in all the circumstances.

Power to modify requirement

171. Transpower submitted that the Board’s power to modify the requirement is limited, in that by combination of sections 147(8) and 172(2) of the RMA, the Board can only modify a requirement if it is not inconsistent with the requirement as notified. Transpower submitted that the test is whether the changes would alter the essential nature of the project, so that it failed to agree in substance with notice of requirement so as to be incompatible with them;³¹ and that changes that have lesser adverse effects may qualify.³²

172. Drummond Dairy and Scenic Dairies made submissions to similar effect, and commended a test of whether it is plausible that anyone who did not lodge a submission on the notified requirement would have done so if the modified requirement had been notified; and whether the modification alters the nature of the requirement.

173. No submitter joined issue with Transpower on the limit on the Board’s modification power.

174. The Board accepts that its power to modify the requirement is limited to modifications that do not render the requirement inconsistent with what was notified; and that applying this limitation calls for comparison between the substance of the notified requirement and the requirement as it would be modified. A judgement of fact and degree in the specific case is needed to decide whether modifying a requirement to mitigate adverse effects is within the statutory limit.

175. Judgements on the plausibility of someone lodging a submission if the modified proposal had been notified can only be relevant if they assist in deciding the test set by the Act, whether a modification is not inconsistent with the requirement as notified.

Adequacy of consideration of alternatives

176. By section 171(1)(b) in certain conditions, particular regard is to be had to whether adequate consideration has been given to alternative sites, routes or methods of undertaking the work. Transpower accepted that it was required to consider alternative sites, routes and methods of undertaking the grid upgrade.

177. Transpower made these submissions, based on case law, about the imposed by section 171(1)(b):

a) the focus is on the process, not the outcome: whether the requiring authority has made sufficient investigations of alternatives to satisfy itself of the alternative proposed, rather than acting arbitrarily, or giving only cursory consideration to alternatives. Adequate consideration does not mean exhaustive or meticulous consideration³³
b) the question is not whether the best route, site or method has been chosen, nor whether there are more appropriate routes, sites or methods
c) that there may be routes, sites or methods which may be considered by some (including submitters) to be more suitable is irrelevant
d) the Act does not entrust to the decision-maker the policy function of deciding the most suitable site; the executive responsibility for selecting the site remains with the requiring authority³⁴
e) the Act does not require every alternative, however speculative, to have been fully considered; the requiring authority is not required to eliminate speculative alternatives or suppositious options.³⁵

Who chooses from the alternatives?

178. Counsel for the Manukau City Council submitted that the Judgment of the Privy Council in McGuire v Hastings District Council ³⁶ allows room to argue that the territorial authority is to fully evaluate the merits of the various alternatives against Part 2 of the Act, with a view to determining which alternative ought to be adopted.³⁷ However, counsel properly conceded that it is very difficult to reconcile such an approach with the later High Court Judgment in Auckland Volcanic Cones Society v Transit New Zealand.³⁸

179. The opinion of the Privy Council in McGuire is of course binding authority as far as it goes. As the Environment Court held in Nelson Intermediate School v Transit New Zealand,³⁹ the passage in paragraph [23] of that opinion may allow room for the Council’s argument. The Environment Court did not determine that this is the correct interpretation of section 171(1)(b).

180. The words of a judgment should not be interpreted and applied to another case as if the phrase in issue were part of a statute.⁴⁰

181. The Privy Council Judgment did not contain a specific and unequivocal declaration to the effect that a territorial authority is to determine which alternative is to be adopted. Their Lordships’ reasoning did not address the particular wording “…whether adequate consideration has been given to alternative sites, routes, or methods of undertaking the work…”; nor did they address the consistent meaning given to that phrase over many years.⁴¹

182. In the Auckland Volcanic Cones Society case, the Full Court found that the observations of Lord Cooke in delivering the Privy Council Judgment were obiter dicta (not necessary to the reasoning on the question of law in issue). Counsel for the Manukau City Council acknowledged that the traditional view that the role under section 171(1)(b) – which they described as being of oversight rather than evaluative judgment – stands.

183. Therefore, the Board applies the law as declared by the higher Courts in other cases, and consistently applied and followed; and holds that section 171(1)(b) does not confer authority on a territorial authority to substitute its own choice among alternative sites routes or methods of undertaking the work, for the choice of the requiring authority.

Tests of adequacy of consideration

184. Counsel for the Waipa District Council, for the Manukau City Council, and for the Hunua and Paparimu Valley Residents’ Association (HPVRA), made submissions to the effect that, for consideration of alternative sites, routes or methods to qualify as adequate within the intent of section 171(1) (as amended in 2003), there must have been a testing of aspects that favour the proposal with those that are unfavourable, to be compared with realistic options; and the process must include explicitly identifying and evaluating Part 2 considerations, including the relative environmental effects of the proposal and of at least some of the options.

185. The main ground for those submissions was that this would help ensure the final choice is optimal over the full range of factors.

186. The Board has already stated its understanding that coming to a judgement on the adequacy of consideration of alternative sites, routes and methods is to be done “subject to Part 2”, but it is not necessary to test each alternative against Part 2.⁴²

187. The submitters did not bring to the Board’s attention any indications in the text, or in the light of the purpose, or in the Parliamentary process, that support giving section 171(1) the meaning contended for.⁴³

188. Where, in the RMA, Parliament has wished to stipulate detailed criteria or procedures to be followed, it has done so – see for example, sections 66, 70, 74, 76, 88 to 114; and Schedules 1, 2, and 4. Elsewhere in the Act, and particularly with respect to Part 2, Parliament has used open language of wide meaning, with the intention that in the full variety of circumstances to which the Act is applicable, Part 2 sets the scene overall for the construction and application of the Act;⁴⁴ and to infuse the approach to its interpretation and implementation throughout.⁴⁵

189. There is a broad potential range of projects or works that might be the subject of requirements under the RMA, to which section 171 may be applicable. To adopt mandatory tests of the adequacy of consideration given to alternative sites, routes and methods – such as propounded by the councils – would restrict the meaning of the broad words used in section 171(1)(b) where Parliament has refrained from doing so over the decades in which that language has been used.

190. The considerations proposed by the councils may have value in particular cases in judging the adequacy of consideration of alternatives. However, their potential value is not as tests that must be applied, but as criteria that might be used in some circumstances. So the Board is not persuaded that the section has to be interpreted as imposing mandatory tests by which the outcome has to be decided one way or the other.

Relevance of method of acquiring land

191. Federated Farmers submitted that section 171(1)(b)(i) is a direction that territorial authorities are to consider how the requiring authority proposes to acquire an interest in the land that is sufficient to enable it to undertake the work.

192. The structure of section 171(1) is the opening clause followed by the listed considerations. The opening clause states the case to which the subsection applies (“When considering a requirement and any submissions received”), the class of persons to whom it applies (“a territorial authority”), and the action directed (“…must, subject to Part 2, consider the effects on the environment of allowing the requirement, having particular regard to …”). Paragraphs (a) to (d) then follow, describing the considerations to which particular regard is to be had.

193. Of the listed considerations, particular regard is not required for the subject matter of paragraph (b) in every case. A territorial authority is to have particular regard to the subject matter of that paragraph only if the case is in one or both of the two conditions described in subparagraphs (i) and (ii). When a territorial authority is considering a requirement in a case to which neither of those conditions applies, it is not obliged to have particular regard to the subject matter of paragraph (b) (ie, whether adequate consideration has been given to alternative sites, routes, or methods of undertaking the work).

194. So subparagraph (i) is not one of the listed considerations to which a territorial authority is to have particular regard. Rather, it is a condition which, when it applies, relieves a territorial authority of the duty it would otherwise have to have particular regard to the consideration stated in paragraph (b).

195. That is the Board’s understanding of the ordinary meaning of the text and construction of the sentence of paragraph (b).

196. Federated Farmers did not bring to the Board’s attention any indication in the text, or in the light of the purpose of the Act, or in the Parliamentary process, that would support treating subparagraph (i) as if it were one of the items in the list (a) to (d) of considerations to which a territorial authority is to have particular regard.⁴⁶

197. Therefore, the Board does not accept Federated Farmers submission to that effect.

Necessity for achieving objectives

198. Section 171(1)(c) directs that a territorial authority must, subject to Part 2, have particular regard to whether the work and designation are reasonably necessary for achieving the objectives of the requiring authority for which the designation is sought.

199. Transpower made these submissions about the meaning and application of that direction:

a) The consideration is limited to the requiring authority’s objectives for which the designation is sought, rather than an enlarged examination of alternatives (the subject of section 171(1)(b)).
b) In paragraph (c), the meaning of the word necessary falls between expedient or desirable on the one hand, and essential on the other; and the epithet reasonably qualifies it to allow some tolerance.⁴⁷
c) The paragraph does not impose some higher threshold or standard of proof that would require a requiring authority to demonstrate that the project and designation would better achieve its objectives than an alternative project or means of seeking authorisation; nor that they absolutely fulfil its objectives.
d) The Act neither requires nor allows the merits of the objectives themselves to be judged by the territorial authority.⁴⁸
e) On whether a designation is the preferable planning method to be used, the relevant factors may include that a designation signals potential for future changes; provides a clear method for those changes to occur (including the outline plan procedure where applicable); provides a uniform approach through various territorial authority districts and that it may not otherwise be possible to ‘freeze’ the existing plan provisions.⁴⁹
f) A designation may also be a desirable planning method to establish a clear corridor for mitigation of some effects; to restrict conflicting uses and structures pending completion of detailed design (especially for a long-term project); and a precursor to compulsory acquisition of land under the Public Works Act.

200. The Manukau City Council submitted that the post-2003 wording of paragraph (c) enables a territorial authority to consider whether the proposal exceeds what is required to meet the requiring authority’s objective; and if the territorial authority concludes that it does, it can recommend the scope of the proposal be limited to reduce potential effects on the environment.

201. New Era Energy, Orini Downs Station, P and D Dombroski, E J Mackay, Drummond Dairy and Scenic Dairies submitted that a territorial authority is to have particular regard to whether the work and designation are reasonably necessary for achieving the objectives without questioning the objectives or the requiring authority’s choice of alternatives beyond the extent called for by paragraph (b). Further, they submitted that the territorial authority can consider the extent of the designation, limiting it to the extent reasonably necessary.⁵⁰

202. The Waipa District Council warned against applying section 171(1) in a way that would treat environmental factors as secondary to economic factors. It also contended that if there are reasonable alternatives which are technically feasible and which would have different environmental effects, that may alter the consideration of what is reasonably necessary for achieving the objective.

203. The Board accepts Transpower’s submissions already summarised, relying on the case law cited.

204. The Board accepts that section 171(1)(c) authorises a territorial authority to consider the extent to which the work is reasonably necessary for achieving the requiring authority’s objectives, and to recommend limiting the extent of a designation accordingly. It holds that there is no general weighting among the prescribed considerations: evaluation of any one among the others must depend on the circumstances, and is to be informed by reference to Part 2, and particularly by applying the statutory purpose stated in section 5.

Other necessary matters

205. By section 171(1)(d), a territorial authority is to have particular regard to any other matter it considers reasonably necessary in order to make a recommendation on the requirement.

206. No question of law arose about the interpretation or application of that provision.

Outline plans

207. A requiring authority, which is to carry out a work that is the subject of a designation in a district plan, is generally required to submit an outline plan of the proposed work to the territorial authority.⁵¹ The outline plan is to show the height, shape and bulk of the work; its location on the site; the likely finished contour of the site; vehicle access; proposed landscaping; and other measures to avoid, remedy, or mitigate any adverse effects on the environment.⁵²

208. The territorial authority can request changes to the plan before construction is begun;⁵³ and if the requiring authority decides not to make these changes, the territorial authority can appeal to the Environment Court to consider whether the changes requested will give effect to the purpose of the RMA.⁵⁴

209. There are exceptions to the obligation for a requiring authority to submit an outline plan if the proposed work has been otherwise approved under the RMA; or the details are incorporated in the designation; or the territorial authority waives an outline plan.⁵⁵

210. The outline plan process is separate from the process for deciding on the designation.

Resource consent applications

211. Resource consents under the RMA also authorise activities that are not permitted of right,⁵⁶ and would contravene various provisions of the Act.⁵⁷ Resource consent is required for activities that are classified as controlled activities, restricted discretionary activities, discretionary activities, or non-conforming activities.⁵⁸

212. An application for a resource consent is to include an assessment of environmental effects in such detail as corresponds with the scale and significance of the effects that the activity may have on the environment.⁵⁹

213. When considering a resource consent application, a consent authority (or board of inquiry) has, subject to Part 2, to have regard to–

any actual or potential effects on the environment of allowing the activity; and

(b) any relevant provisions of–
- (i) a national policy statement:
- (ii) a New Zealand coastal policy statement:
- (iii) a regional policy statement or proposed regional policy statement:
- (iv) a plan or proposed plan; and
- (c) any other matter the consent authority considers relevant and reasonably necessary to determine the application.⁶⁰

214. The duty to have particular regard to the listed matters being expressed as being subject to Part 2 (as in the case of requirements), does not apply where having regard to them would conflict with anything in Part 2. However, that does not require the consent authority (or the board) to test each alternative against Part 2.⁶¹

215. A consent authority may disregard an adverse effect of the activity on the environment if the plan permits an activity to that effect;⁶² and may not have regard to any effect on a person who has given written approval to the application, unless the person has given written notice withdrawing the approval.⁶³

Local Government (Auckland) Amendment Act 2004

216. The Local Government (Auckland) Amendment Act 2004 amended the Local Government Act (2002) and was passed into law by the House of Representatives on 30 June 2004. Most of the Act took effect immediately, but Sections 45 and 46 and Schedules 4 and 6 came into force on 1 January 2005. These parts of the Act included concomitant changes to the Land Transport Management Act (2003) and the Transport Services Licensing Act (1989) and related to the vesting of public transport service assets and liabilities. The Act required all councils in the Auckland region to integrate the land transport and land-use provisions of their planning documents to give effect to the Auckland Regional Growth Strategy and be in keeping with the objectives of the Auckland Regional Policy Statement (ARPS).

217. The purpose of the Act is to improve the integration of the Auckland regional land transport system, improve management of land transport funding and assets for the Auckland region and integrate decisions on stormwater funding for the region. This was achieved by dissolving Infrastructure Auckland and establishing two new bodies, the Auckland Regional Transport Authority and Auckland Regional Holdings. Auckland Regional Holdings owns assets and is required to manage them prudently and for the long-term benefit of the Auckland region. Auckland Regional Transport Authority plans, funds and develops the land transport system and must exhibit a sense of social and environmental responsibility in exercising its duties.

Policy instruments under the RMA

218. The RMA provides for the making of three main classes of instruments: regulations, policy statements, and plans. Subject to Part 2, regard is to be had to all such instruments in making decisions about designations and resource consents.

219. The policy instruments that are applicable to consideration of the designation and resource consents for the proposed grid upgrade are the National Policy Statement on Electricity Transmission (NPS); the regional policy statements for the Auckland and Waikato regions; the Proposed Auckland Regional Plan: Air, Land and Water; the Auckland Regional Plan: Sediment Control; and the Waikato Regional Plan. The relevant provisions of the planning documents have been set out in the Section 42A report and by the applicant and other counsel in evidence and submissions. There does not appear to be any dispute as to which provisions are relevant to the application, however, there was disagreement in how provisions relating to Outstanding Natural Landscapes should be considered and whether the proposal is consistent with the relevant planning provisions.

National Policy Statement on Electricity Transmission

220. The NPS was gazetted on 13 March 2008 and came into force on 10 April 2008.⁶⁴ The Preamble states that electricity transmission has special characteristics that create challenges for its management under the RMA, including expected requirements for ongoing investment in the transmission network and significant upgrades to meet demand for electricity and the Government’s objective for a renewable energy future.

221. Subject to Part 2, the NPS is to be applied by decision-makers under the Act, but not as a substitute for, or to prevail over, the RMA’s statutory purpose or the statutory tests. It is a relevant consideration to be weighed along with other considerations in achieving the sustainable management purpose of the Act. The objectives and policies of the national policy statement are intended to guide decision-makers in considering requirements for designations for transmission activities and in making decisions on resource consents.⁶⁵

222. The objective of this NPS is:

To recognise the national significance of the electricity transmission network by facilitating the operation, maintenance and upgrade of the existing transmission network and the establishment of new transmission, resources to meet the needs of present and future generations, while:

managing the adverse environmental effects of the network; and
managing the adverse effects of other activities on the network.⁶⁶

223. Several of the policies in this NPS are directly applicable to the Board’s inquiry in achieving the purpose of the Act.

224. Policy 1 directs decision-makers to recognise and provide for the national regional and local benefits of sustainable, secure and efficient electricity transmission. (Examples of those benefits are provided.)

225. Policy 2 directs decision-makers to recognise and provide for the effective operation, maintenance, upgrading and development of the electricity transmission network.

226. Policy 3 directs that when considering measures to avoid, remedy or mitigate adverse environmental effects of transmission activities, decision-makers are to consider the constraints imposed on achieving those measures by the technical and operational requirements of the network.

227. Policy 4 directs that when considering the environmental effects of new transmission infrastructure, or major upgrades of existing transmission infrastructure, decision-makers are to have regard to the extent to which any adverse effects have been avoided, remedied or mitigated by the route, site and method selection.

228. Policy 5 directs that when considering the environmental effects of transmission activities associated with transmission assets, decision-makers are to enable the reasonable operational, maintenance and minor upgrade requirements of established electricity transmission assets.

229. Policy 6 is that substantial upgrades of transmission infrastructure should be used as an opportunity to reduce existing adverse effects of transmission including such effects on sensitive activities, where appropriate.

230. Policy 7 is that planning and development of the transmission system should minimise adverse effects on urban amenity and avoid adverse effects on town centres and areas of high recreational value or amenity, and existing sensitive areas.

231. Policy 8 is that in rural environments, planning and development of the transmission system should seek to avoid adverse effects on outstanding landscapes, areas of high natural character, and areas of high recreation values and amenity, and existing sensitive activities.

232. Policy 9 directs that provisions dealing with electric and magnetic fields associated with the network are to be based on the International Commission on Non-Ionising Radiation Protection Guidelines (ICNIRP) for limiting exposure to time-varying electric magnetic fields (up to 300 GHz) and recommendations from the World Health Organization (WHO) monograph, Environmental Health Criteria 238, or revisions thereof and any applicable New Zealand Standards or national environmental standards.

233. Policy 10 is that decision-makers are – to the extent reasonably possible – to manage activities to avoid reverse-sensitivity effects on the network and ensure that operation, maintenance, upgrading and development of the network is not compromised.

234. Policy 13 directs decision-makers to recognise that the designation process can facilitate long-term planning for the development, operation and maintenance of electricity transmission infrastructure.

235. There was no contest that national policy statements are, in the hierarchy of instruments under the RMA, to be given greater importance than regional policy statements and regional and district plans, which have to be amended to give effect to a national policy statement.⁶⁷ Local authorities have also to take any other action that is specified in a national policy statement.⁶⁸

Hauraki Gulf Marine Park Act 2000

236. By section 104(l) of the RMA, in considering the resource consent applications, regard is to be had to any relevant New Zealand Coastal Policy Statement, regional policy statement, plan or proposed plan. Consequently, sections 7 and 8 of the Hauraki Gulf Marine Park Act 2000 must be addressed.

237. By section 9(4) of Hauraki Gulf Marine Park Act 2000, a consent authority considering a resource consent application for the Hauraki Gulf catchment is to have regard to sections 7 and 8 of that Act in addition to the matters contained in the RMA. Moreover, by section l0 (1) of the Hauraki Gulf Marine Park Act 2000, sections 7 and 8 of that Act are to be treated as a New Zealand Coastal Policy Statement under the RMA.

238. Section 7 declares (among other things) that the ability of the interrelationship of the Hauraki Gulf and its catchments to sustain the life-supporting capacity of the environment is a matter of national significance. Section 8 states objectives for management of the Hauraki Gulf and its catchments, including protection of the life-supporting capacity of the environment.⁶⁹

Auckland Regional Policy Statement

239. The ARPS became operative in August 1999 and sets in place the broad direction for the management of natural and physical resources of the region. The objectives and policies of the ARPS that are relevant to the application are contained in Chapter 2 (Regional Overview and Strategic Direction), Chapter 3 (Matters of Significance to Iwi), Chapter 5 (Energy), Chapter 6 (Heritage), Chapter 8 (Water Quality), and Chapter 12 (Soil Conservation).

240. Chapter 2 sets out the strategic direction for the Auckland region with the aim to integrate the management of the various components set out in the policy statement. Proposed Change 6 to the ARPS was notified in March 2005 and makes significant amendments to Chapter 2. Plan Change 6 is intended to give effect to the Regional Growth Strategy and to integrate land use and transport. Decisions on submissions to Plan Change 6 were notified in August 2007 and these are now subject to a number of appeals.

241. Proposed Change 6 recognises that a reliable power supply is essential to the social and economic well-being of the region and that power generated is limited relative to demand and that the region is dependent upon power supply from other regions. Relevant issues include:

a) the importance of regionally significant physical resources (including infrastructure such as energy transmission) for the community’s economic and social well-being
b) the need for maintenance, expansion, replacement or upgrading of infrastructure or provision of new infrastructure in order to avoid adverse environmental effects and/or to increase the capacity of infrastructure to accommodate growth
c) the need to avoid, remedy or mitigate the adverse effects generated by proposed changes to infrastructure and to consider alternative ways of avoiding or remedying them
d) that for existing infrastructure, alternatives are often limited to the consideration of matters of system efficiency rather than relocation of infrastructure
e for new infrastructure, alternatives are sometimes limited by the consideration of location.⁷⁰

242. Issues relating to Utility Servicing Thresholds in Plan Change 6 include:

a) options for meeting demands on capacity may be constrained by the location, intensity and nature of both the facility and the proposed urban growth and intensification
b) electricity networks and services are approaching capacity thresholds due to ongoing and extensive growth and associated demand for electricity supply
c) without significant investment secure electricity supply into the Auckland and Northland regions becomes increasingly difficult
d upgrade programmes of existing infrastructure servicing the Auckland and Northland regions have been initiated and are ongoing to continue to ensure a reliable and secure supply of electricity to meet projected growth demands in those regions
e) that failure to do so will severely restrict the regions’ economic and social growth and development.⁷¹

243. Chapter 3 (Matters of Significance to Iwi) includes objectives relating to cultural values and places of significance, the need to recognise and provide for these values and places, and the relationship of tāngata whenua and their culture and traditions.⁷²

244. Chapter 5 (Energy) of the ARPS includes objectives to promote the sustainable and efficient use of Auckland’s energy resources;⁷³ and to avoid, remedy or mitigate any adverse effects of development proposals relating to the production, distribution and use of energy.⁷⁴ Associated policies promote more efficient use of available energy resources;⁷⁵ and support a shift to renewable forms of energy.⁷⁶

245. Proposed Change 8 to the ARPS was notified in September 2005 and contains new objectives and policies relating to volcanic features and outstanding natural landscapes. Submissions on Proposed Change 8 were heard in May and June 2007. Following the hearing of submissions, the Auckland Regional Council notified a variation to the landscape component of Proposed Change 8. The Council restricted decisions to submissions on policies in respect to volcanic features in October 2007.

246. The intended variation on landscape has not yet been notified, nor have decisions been given on the submissions on the landscape policies originally notified.

247. Chapter 6 (Heritage) seeks to preserve, protect and restore the region’s heritage resources. The objectives and policies of particular relevance to the application seek to protect and restore ecosystems and other heritage resources whose heritage value and/or viability is threatened;⁷⁷ and control development on regionally significant ridgelines so that there are no significant adverse effects, including cumulative effects on landscape quality and integrity of ridgelines.⁷⁸

248. Chapter 8 (Water Quality) contains objectives and policies to maintain and enhance the values of Auckland’s water resources, including maintenance of water quality.⁷⁹

249. Chapter 12 (Soil Conservation) contains an objective that promotes the sustainable management of Auckland’s soil resource and the protection of the productive potential and long-term health of soils in the region while avoiding, remedying and mitigating effects on soil degradation⁸⁰. Relevant policies applicable to the application seek to control vegetation clearance on land with moderate to severe erosion potential;⁸¹ and avoid, remedy or mitigate adverse effects on soil degradation.⁸²

Proposed Auckland Regional Plan – Air, Land and Water

250. The Proposed Regional Plan: Air, Land and Water was notified in October 2001. Decisions on submissions and further submissions were notified in October 2004 with some appeals remaining unresolved. The proposed plan provides for the management of air, land and water resources in the Auckland region, including, soil, rivers and streams, lakes, groundwater, wetlands and geothermal water.

251. Part 1, Chapter 2.1 seeks to sustainably manage the values of the Auckland region, including natural character, ecosystems and habitats, amenity and tāngata whenua values. Objectives and policies of relevance to the proposal include the need to avoid, remedy or mitigate adverse effects on the natural character of wetlands, lakes and rivers, and their margins;⁸³ use, development, upgrading or maintenance of network utility infrastructure shall be considered appropriate if it is consistent with strategic directions of the RPS and improves environmental outcomes;⁸⁴ consents for network utility infrastructure may be granted on a network-wide basis if they promote the integrated management of the infrastructure, and are effective and efficient to grant a network-wide consent;⁸⁵ and consideration of the positive social, economic and cultural effects and benefits from any proposal.⁸⁶

Auckland Regional Plan – Sediment Control

252. The Auckland Regional Plan: Sediment Control became operative in November 2001. The plan addresses the issue of sediment discharges and provides measures to ensure the potential effects associated with land development involving vegetation clearance and/or earthworks are avoided, remedied or mitigated accordingly.

253. Objectives and policies of particular relevance to the application seek to maintain or enhance water quality;⁸⁷ sustain the mauri of water in water bodies…ancestral lands, sites, wāhi tapu and other taonga;⁸⁸ avoid, remedy or mitigate adverse effects on water quality through land disturbance;⁸⁹ reduce the surface erosion and sediment generation;⁹⁰ (and reduce the duration of vegetation removal).⁹¹

Waikato Regional Policy Statement

254. The Waikato Regional Policy Statement (WRPS) became operative in October 2000 and sets out the significant resource management issues for the region and the methods that will be used to manage natural and physical resources. The relevant objectives and policies of the WRPS to the application include Part 3.3 (Land and Soil), Part 3.11 (Plants and Animals), Part 3.12 (Energy), Part 3.13 (Structures), Part 3.14 (Minerals) and Part 3.15 (Heritage).

255. Part 3.3 (Land and Soil) includes objectives to achieve the sustainable management of the region’s land and soil resource, including net reduction in the effects of accelerated erosion and those effects avoided where practicable;⁹² and to maintain versatility and productive capacity of the region’s soil resource.⁹³

256. Part 3.11 (Plants and Animals) seeks to maintain the region’s biodiversity, including important ecological areas, and includes an objective to maintain or enhance biodiversity within the region.⁹⁴

257. Part 3.12 (Energy) and Part 3.13 (Structures) seek to promote efficient energy use and maintain and enhance infrastructure in the region. Policies promote efficiency and conservation in the transmission of energy;⁹⁵ and avoidance of significant adverse effects on the same and efficient operation of regionally significant infrastructure.⁹⁶

258. Part 3.14 (Minerals) includes an objective and associated policies that recognise the ability to extract minerals can be compromised through land uses in close proximity to mineral deposits and the need for sensitive activities to not unnecessarily restrict mineral extraction.⁹⁷

259. Part 3.15 (Heritage) concerns the protection of regionally significant heritage resources (ensuring no net loss to the region);⁹⁸ and protection of heritage resources of significance to Māori.⁹⁹

Waikato Regional Plan

260. The Waikato Regional Plan was made operative in September 2007 and provides direction regarding the use, development and protection of natural and physical resources in the Waikato region. Relevant objectives and policies of the plan include Chapter 1 (Approaches to Resource Management), Chapter 2 (Matters of Significance to Māori), Chapter 3 (Water) and Chapter 5 (Land and Soil).

261. Chapter 1 (Approaches to Resource Management) sets out the purpose and scope of the plan, and the objectives and policies to achieve this. Objective 1.2.3 (approaches to resource management) sets out the controls exercised by the Plan to manage adverse effects on the environment.

262. Chapter 2 (Matters of Significance to Māori) identifies the resource management issues of concern to Māori in the Waikato region. Of particular relevance to Transpower’s application is Objective 2.3 (tāngata whenua relationship with natural and physical resources).

263. The objectives and policies in Chapter 3 (Water) seek to safeguard, maintain and enhance the values of Waikato’s water resources. The objectives and policies of particular relevance to this application seek to: allocate and promote the use of Waikato’s water resource in a sustainable manner;¹⁰⁰ and protect the natural character of lakes and rivers and their margins from inappropriate use and development.¹⁰¹

264. Chapter 5 (Land and Soil) contains objectives and policies that seek to promote the sustainable management of Waikato’s soil resource. Objective 5.1.2 seeks to reduce accelerated erosion across the region. The relevant policies applicable to the application seek to manage activities that have the potential to cause accelerated erosion and to encourage appropriate land management practices;¹⁰² and promote regulatory and non-regulatory approaches to manage soil disturbance and vegetation clearance activities in high-risk erosion areas.¹⁰³

District plans

265. The district planning documents that are relevant to the resource consent applications for the proposed grid upgrade are Manukau City District Plan, Franklin District Plan, Matamata-Piako District Plan, Waipa District Plan, Waikato District Plan, South Waikato District Plan and Taupo District Plan.

266. The Section 42A report, and various counsel and witnesses identified and evaluated the relevant objectives and policies from the district plans. We were not made aware of any dispute over the identified relevant sections which are outlined below.

The Manukau City District Plan

267. The Manukau City District Plan was made operative in October 2002 and updated in October 2008 although appeals remain outstanding in respect to Plan Change 8 (Whitford Rural). Chapters relevant to the application include Chapter 3 (Tāngata Whenua), Chapter 6 (Heritage), Chapter 7 (Network Utility Services), Chapter 9 (Land Modification and Subdivision) and Chapter 12 (Rural Areas).

268. Objectives in respect to tāngata whenua include regard to be given to tāngata whenua’s right to exercise rangatiratanga and kaitiakitanga over ancestral lands, waters, sites, wāhi tapu and other taonga;¹⁰⁴ and that adverse effects of development on tāngata whenua and taonga should be avoided, remedied or mitigated.¹⁰⁵

269. Heritage values’ objectives include preservation or protection of natural, physical, and cultural resources;¹⁰⁶ and that tāngata whenua and taonga should be actively protected from being damaged, destroyed or desecrated.¹⁰⁷

270. Issue 7.2.4 recognises that network utility services are essential resources necessary to enable people and communities to provide for their economic, social and cultural well-being. At the same time there are objectives to protect the city’s environment (including heritage, visual, aural and other amenity values)¹⁰⁸ and the health and safety of people;¹⁰⁹ network utilities need to be managed in a sustainable manner and the operational efficiency and safety of network utility services in the city should be protected;¹¹⁰ and land-use and infrastructure planning should be coordinated to achieve the efficient and effective provision, operation and maintenance of network utilities in the city.¹¹¹

271. Land modification, development and subdivision should proceed in a manner that will maintain or enhance environmental qualities and amenity values;¹¹² and network utility services need to be sustainably managed by coordinating their progression to support subdivision and development.¹¹³

272. Rural land and soil resources need to be maintained to retain the productive potential and minimise soil erosion;¹¹⁴ to protect and preserve significant areas of indigenous vegetation and fauna,¹¹⁵ and to protect landscapes of outstanding value¹¹⁶ and maintain the rural character and diversity.¹¹⁷ Associated policies state that significant areas of vegetation should be retained, and buildings, structures and activities should not create adverse visual effects on particular “sensitive ridgeline and coastal margins”;¹¹⁸ nor should they detract from the open space of the area or dominate the site.¹¹⁹

273. Plan Change 8 (12A Whitford Rural) was notified in July 2005 with decisions on submissions notified in December 2006. Seventeen appeals on these decisions remain outstanding. Plan Change 8 provides for the establishment of countryside living development in the Whitford Rural Area in such a way as to maintain the landscape character, rural amenity values and environmental quality of the area. Further, land-use activities should not conflict, and physical infrastructure such as roading, power and communications networks should be provided in association with land subdivision, use and development in order to manage environmental effects.

The Franklin District Plan

274. The Franklin District Plan became operative in February 2000. Chapters relevant to the application are Chapter 4 (Partnership with Tāngata Whenua), Chapter 5 (Conservation of Natural Features), Chapter 11 (Recreation and Reserves), Chapter 15 (Activities Throughout the District) and Chapter 17 (Objectives, Policies and Methods: Rural). The Franklin District Plan is subject to Proposed Plan Change 14 (Rural Plan Change).

275. Chapter 4 (Partnership with Tāngata Whenua) contains provisions to protect¹²⁰ and avoid, remedy or mitigate adverse effects¹²¹ on the relationship of Māori and their culture and traditions with their ancestral lands, water, sites wāhi tapu, and other taonga; effects on tāngata whenua should be assessed in a way that respects Māori customary values and practices;¹²² and tāngata whenua should be consulted where activities have the potential to adversely affect ancestral lands, water, sites, wāhi tapu and other taonga.¹²³

276. Objectives in Chapter 5 (Conservation of Natural Features) relevant to the application are to avoid, remedy or mitigate adverse effects of activities on the life-supporting capacity of indigenous ecosystems;¹²⁴ and the natural heritage resources of the district should be sustainably managed by protecting outstanding natural features and landscapes, areas of significant vegetation and significant areas of indigenous fauna from inappropriate subdivision, use, and development, and by ensuring that representative samples of natural features, areas of indigenous vegetation, and habitats of indigenous fauna, of value at a regional and district level, are protected.¹²⁵

277. Chapter 8 (Cultural Heritage) includes objectives to protect heritage features (places, areas, trees and objects that have known heritage significance) from inappropriate subdivision, use, and development;¹²⁶ and an associated policy that all persons shall avoid the modification, damage, or destruction of archaeological sites, heritage items, historic places, trees or objects, and all activities for which a resource consent is required be assessed in terms of any effects on known or significant heritage places, trees or objects in the district.¹²⁷

278. Chapter 11 (Recreation and Reserves) contains the following relevant objectives: sufficient recreation and open space land needs to be provided to meet the needs of present and future generations;¹²⁸ and public access to the margins of the coastal area, rivers and lakes needs to be maintained and improved.¹²⁹

279. Chapter 15 (Activities throughout the District – Network and other Utilities and Essential Services) recognises the importance of network and other utilities and other essential services to the economic and social well-being of the district and that their development, operation and maintenance should be provided for;¹³⁰ these services should be provided in a manner that does not adversely affect the health and safety of the people of the district; that allows any adverse effects on the natural and physical resources to be avoided, remedied or mitigated; and should be sensitive to the amenity values of the district and relevant cultural or spiritual values.¹³¹

280. Associated policies state network and other utilities and essential services will be controlled according to the potential effects of the activity;¹³² and the continuing operation of significant infrastructure shall be protected from adverse effects from other inappropriate activity.¹³³ Where technically practicable and financially realistic, utilities shall be placed underground unless there are cultural, landscape or conservation objectives and policies that would be compromised.¹³⁴

281. Relevant objectives in Chapter 17 (Rural Zone) state land and soil resources should be maintained and managed in such a way that their accessibility, versatility and life-supporting capacity are sustained for present and future generations;¹³⁵ the life-supporting capacity of soils is safeguarded;¹³⁶ and the inappropriate removal of soil from versatile land is avoided.¹³⁷

282. Proposed Plan Change 14 (Rural Plan Change) replaces existing sections relating to rural and coastal areas in the Franklin District Plan. Proposed Plan Change 14 provides for limited countryside living in the rural and coastal areas, and directs growth to particular villages and away from areas where valued environmental features could be jeopardised. Hearings on submissions on the Proposed Plan Change 14 were held between October 2004 and March 2006 and decisions on submissions were notified in July 2006. A number of appeals on decisions remain outstanding.

283. Section 17.2.3 of Proposed Plan Change 14 outlines issues, objectives and policies of the Hunua Rural Management Area, including to protect and enhance the connectedness of indigenous vegetation within the Hunua Forestlands and ecological biodiversity in the area;¹³⁸ and maintain and enhance landscape, cultural, archaeological, heritage and amenity values.¹³⁹

The Matamata-Piako District Plan

284. The Matamata-Piako District Plan was notified in 1996 and became operative in July 2005. Chapters relevant to the application are Chapter 3.1 (Natural Environment and Heritage), Chapter 3.5 (Amenity) and Chapter 3.7 (Works and Network Utilities).

285. Chapter 3.1 (Natural Environment and Heritage) contains objectives that the varied landscape qualities of the district should be retained and enhanced;¹⁴⁰ and the natural and heritage resources within the district need to be recognised, protected and enhanced.¹⁴¹ Associated policies include buildings, structures and activities in outstanding landscapes should preserve the natural character, and not detract from the amenity values of the landscape;¹⁴² outstanding natural features and areas of indigenous vegetation or fauna are to be permanently protected from subdivision, use and development;¹⁴³ activities in the vicinity of significant heritage resources should be sensitive to their original forms and features;¹⁴⁴ and should not adversely affect significant, recorded archaeological sites and wāhi tapu.¹⁴⁵

286. Chapter 3.5 (Amenity) contains an objective to minimise adverse effects created by building scale, or dominance, shading, building location and site layout.¹⁴⁶

287. Chapter 3.7 (Works and Network Utilities) includes objectives to enable the effective provision of works and utilities so as to minimise the adverse environmental effects while enabling people and communities to provide for their social economic and cultural well-being and for their health and safety;¹⁴⁷ to ensure works and network utilities have particular regard to the avoidance, remediation or mitigation of anticipated environmental effects and comprehensive analysis of existing and future services/facilities;¹⁴⁸ and for a precautionary approach to be taken in the siting of facilities relative to dwellings where there is significant doubt or debate over the impact of their effects.¹⁴⁹ Associated policies encourage the co-siting of facilities where practical;¹⁵⁰ and protect existing and proposed works and infrastructure from incompatible use or subdivision of adjacent lands.¹⁵¹

The South Waikato District Plan

288. The South Waikato District Plan (which became operative in June 1998) has objectives of the maintenance and enhancement of the landscape and amenity values of the district;¹⁵² of sustainable management of the natural and physical resources of the district in a manner that will enable people and communities to provide for their social, economic and cultural well-being and their health and safety;¹⁵³ to avoid, remedy or mitigate adverse effects on the environment;¹⁵⁴ and sustainable management of the natural and physical resources of the district to meet the reasonably foreseeable needs of future generations.¹⁵⁵

289. Chapter 27 (Hydro-Electric Power Generation Zone) includes policies to allow for the generation and transmission of electricity within the zone;¹⁵⁶ and to provide for the maintenance, upgrading and limited expansion of existing electricity generating facilities.¹⁵⁷

290. Chapter 10 (Public Works and Network Utilities) contains objectives about network utilities, in that the provision of appropriate infrastructure in a way that does not have significant adverse effects on the environment;¹⁵⁸ to require the avoidance, remediation, or mitigation of significant adverse effects on the environment associated with the development of a network utility;¹⁵⁹ to encourage the co-siting or sharing of public works and network utility facilities where this is technically feasible and practical and where the operations of co-sited facilities are compatible;¹⁶⁰ and to encourage network utility operators to place network utilities underground where appropriate and practical to avoid adverse effects on amenity values.¹⁶¹

291. Chapter 12 (Landscape and Amenity Values) contains objectives for maintenance and enhancement of amenity values and protection of special landscapes;¹⁶² the protection and enhancement of the natural character of rural areas of the district;¹⁶³ and to ensure that the adverse effects of activities on the amenity values of the district are avoided, remedied or mitigated.¹⁶⁴

292. Chapter 19 (Rural Zone) has an objective to protect and conserve the potential of soils in the district for productive rural uses by present and future generations;¹⁶⁵ to minimise potential incompatibilities between activities in rural areas;¹⁶⁶ to protect and enhance those attributes of the district’s rural environment that promote the ‘clean green’ image and make it an attractive place to live;¹⁶⁷ and to encourage land-use practices that will enhance environmental quality and the ‘clean green’ image of the district.¹⁶⁸

Operative and Proposed Waikato District Plan

293. The Operative Waikato District Plan became operative in September 2002. The proposed Waikato District Plan was notified in September 2004. Decisions on submissions were notified in October 2007, with some appeals on decisions resolved in 2007 while others remain outstanding. Relevant provisions in the Operative Waikato District Plan for these applications are contained in Chapter 6 (Tāngata Whenua and region), Chapter 9 (Rural Zone), Chapter 14 (Extractive Industries), Chapter 20 (Landscape Policy Area), Chapter 51 (Public Works and Utilities), Chapter 53 (Conservation and Natural Resources) and Chapter 54 (Items of Cultural Heritage).

294. Relevant objectives and associated policies in respect to tāngata whenua take into account Māori perspectives of natural and physical resource management;¹⁶⁹ recognise the special relationship of tāngata whenua with the Waikato River;¹⁷⁰ and recognise and respect the spiritual and cultural significance of particular landforms to tāngata whenua.¹⁷¹

295. Chapter 9 (Rural) includes objectives to maintain the availability of, and the potential for versatility of, the natural resources of land and soil (excluding minerals) in terms of their capacity for the production of food, fuel and fibre;¹⁷² and to ensure the rural visual character and amenity values are maintained or enhanced.¹⁷³ Policies in Chapter 14 (Extractive Industries) include recognition of the importance of the district's mineral resources;¹⁷⁴ and ensure land-use activities do not unduly constrain potential access to, and the development of, identified significant coal and aggregate resources.¹⁷⁵

296. Further objectives in the Operative Plan include (Chapter 20) to encourage development in such a way as to integrate physical development with the natural landscape;¹⁷⁶ and to avoid, remedy or mitigate any dominance of structures through their being sited as a visual focal point.¹⁷⁷ Chapter 51 (Public Works and Utilities) aims to protect public works and utilities and their networks as physical resources of the district so that continuity of service is ensured now and in the future to enable the health, safety and well-being of the community;¹⁷⁸ and to ensure that public works and utilities are provided in a manner which is sensitive to the district’s amenity values and avoids and/or mitigates any adverse effects on the natural and physical environment.¹⁷⁹

297. Chapter 53 (Conservation and Natural Resources) contains an objective to conserve and enhance those qualities which contribute to the natural character and amenity values of the rural, urban and coastal areas of the district;¹⁸⁰ while an objective of Chapter 54 (Items of Cultural Heritage Value) is to ensure that developments associated with heritage resources do not adversely affect their historical or cultural integrity.¹⁸¹

298. The Proposed Waikato District Plan was notified in September 2004. Decisions on submissions and designations were notified in November 2006 and October 2007 respectively. Some provisions are still subject to appeal. Relevant provisions in the Proposed District Plan are contained in Chapter 3 (Natural Features and Landscapes), Chapter 4 (Natural Resources) and Chapter 6 (Built Environment).

299. Chapter 3 (Natural Features and Landscapes) includes objectives that landscapes and visual amenity values, as viewed from public places, be retained and enhanced;¹⁸² and associated policy concerning avoiding or mitigating adverse effects on natural features such as indigenous vegetation, lakes, rivers and mountains.¹⁸³

300. Chapter 4 (Natural Resources) of the proposed plan includes an objective of retaining physical, chemical and biological properties necessary for maintaining the life-supporting capacity of the soil, especially high-quality soil.¹⁸⁴ The policies for attaining that objective include not compromising the productive potential of soil, especially high-quality soil, by activities that do not use or rehabilitate the productive capability of the soil, or that adversely affect the physical, chemical and biological properties of the soil;¹⁸⁵ that soil, especially high-quality soil, should be available in its natural state and original location for future generations;¹⁸⁶ and that activities that do not use or rehabilitate the life-supporting capacity and productive capability of high-quality soils should not be located on land containing high-quality soils.¹⁸⁷

301. A further relevant objective in Chapter 4 is that minerals are to be available for extraction.¹⁸⁸ An associated policy is locating and designing activities that are sensitive to the effects of mining so as to avoid remedy or mitigate adverse effects on the use of actively exploited mineral resources, so resource use is not constrained.¹⁸⁹

302. Chapter 6 (Built Environment) includes policies about utilities. There is a policy that utilities should be designed and located to avoid, remedy or mitigate adverse effects from their structures on the environment, community health and amenity.¹⁹⁰ There is a policy that utilities should be placed underground unless the adverse effects on the environment are greater than placing the utility above ground, or a natural or physical feature or structure renders underground placement impracticable or undesirable; or the utility must be placed above ground for practical, operational or technical reasons.¹⁹¹ There is another policy that new use or development should not compromise the potential for, or use and operation of, utilities.¹⁹²

The Waipa District Plan

303. The Waipa District Plan became operative in December 1997. Part 2 (Rural Activities), Part 9 (Public Works and Works of Utility Service Operators) and Part 12 (Heritage Protection) are relevant to the application.

304. Part 2 (Rural Activities) identifies Special Landscape Character Areas (SLCAs) that are landscapes of high quality that warrant extra care and protection in the district.¹⁹³ Areas along the proposed overhead alignment identified as SLCAs include Lake Karapiro, Lake Arapuni, the Waikato River south of Horahora Bridge, and Maungatautari. Associated policies in respect to SLCAs seek to protect the existing landscape of volcanic cones¹⁹⁴ and the present character of the upper slopes;¹⁹⁵ protect the landscape character of the Waikato River Valley and Lakes¹⁹⁶, Lake Karapiro as seen from State Highway 1¹⁹⁷ and the Waikato River south of the Horahora Bridge;¹⁹⁸ and protect the landscape quality of Lake Karapiro¹⁹⁹ and Lake Arapuni.²⁰⁰

305. The district plan contains a policy of applying criteria for assessing the location of additional rural-residential areas, including the avoidance of SLCAs which would be adversely affected by residential development.

306. Matters over which the Council has reserved control for protecting landscape, visual amenity and natural character values within the SLCAs include:

a) location of structures relative to skyline … and exposed hillsides or existing vegetation
b) locations of structures, artificial screening, and shelter belts with respect to obstructing views from State Highway 1
c) external design, construction, and finish of structures including reflectivity of finish, and how closely the finish blends with background colours and nearby buildings
d) the extent, scale and location of roads and other vehicle tracks
e) the extent and location of exotic forest relative to established native trees and natural landscape features
f) the extent to which such activities will be obtrusively visible including consideration of distance
g) the extent to which measures are taken to avoid, mitigate or remedy effects such as considering alternative options, and locations having regard to the costs and benefits involved.

307. The district rules address public utilities within SLCAs. In particular, Rule 12.3.1.4 classifies power pylons (utility structures) as permitted activities if not more than 25 metres in height, 110 kilovolts (kV) in voltage, and 110-MVA capacity per circuit. Rule 12.3.3 prescribes assessment criteria for utility structures that do not comply with standards for permitted activities or are sited in SLCAs (which are classified as discretionary activities). Those criteria include:

... (b) whether the size or location of the structure will affect significant views of the urban or rural landscape particularly from State Highway 1 or State Highway 3, together with the extent of any measures taken to avoid, remedy or mitigate such effects

… (d) whether alternative locations or other options are physically, technically, or operationally possible in order to protect the environment, having regard to the costs and benefits involved.

308. Further objectives in Part 2 include to protect assets of cultural significance to Māori;²⁰¹ and to consult with iwi on issues of cultural significance including kaitiakitanga and wāhi tapu.²⁰²

309. Part 9 (Public Works and Utility Service Operators) contains objectives to make provision in the district plan for public works and utility services;²⁰³ and to ensure that any likely adverse effects on the environment of public works and utility services are avoided, remedied or mitigated as far as practicable.²⁰⁴

310. Part 12 (Heritage Protection) includes an objective to protect heritage objects and areas from adverse effects of incompatible uses and activities.²⁰⁵

Taupo District Plan

311. The Taupo District Plan became operative in October 2007. Chapters relevant to the application include Chapter 3b (Rural Environment), Chapter 3g (Tāngata Whenua Cultural Values), Chapter 3h (Landscape Values) and Chapter 3n (Network Utilities).

312. Chapter 3b (Rural Environment) contains objectives for the protection of the rural environment to maintain and enhance the rural amenity and character;²⁰⁶ and the efficient and effective functioning of the rural environment by enabling the use and development of natural and physical resources, while ensuring appropriate environmental outcomes are achieved.²⁰⁷ Associated policies protect the district’s lakes and river margins from buildings that are visually obtrusive and/or result in a decline of the amenity of the foreshore area;²⁰⁸ avoid, remedy or mitigate adverse effects of subdivision, use and development of land on areas or features of cultural, historical, landscape or ecological value;²⁰⁹ and recognise the important role of resource use and development in the rural environment by providing for the continued operation and associated development of existing electricity generation facilities and network utilities by allowing their use, maintenance and minor upgrading where all significant adverse effects are avoided, remedied or mitigated.²¹⁰

313. Chapter 3g (Tāngata Whenua Cultural Values) has an objective to recognise and provide for the cultural and spiritual values of tāngata whenua when managing the effects of activities on the natural and physical resources within the district.²¹¹ Associated policies include taking into account the principles of the Treaty of Waitangi;²¹² and ensuring activities have regard for the cultural values of tāngata whenua as kaitiaki of their culture, traditions, ancestral lands, water and other taonga.²¹³

314. Relevant objectives in Chapter 3h (Landscape Values) include to protect outstanding landscape areas from subdivision, use, and development which may adversely affect the landscape attributes;²¹⁴ and maintain the landscape attributes of amenity landscape areas.²¹⁵ Policies include to avoid the erection of built structures that will have significant adverse visual effects on the landscape attributes of outstanding landscape areas, or will result in cumulative adverse effects from increased built density.²¹⁶

315. Chapter 3n (Network Utilities) has objectives for the continued efficient and effective operation, maintenance and minor upgrading of existing network utilities and the provision of network utilities;¹²⁷ and that network utilities are designed and located to avoid, remedy or mitigate adverse effects on the environment and protect the health and safety of the community.²¹⁸ Associated policies include having regard for the technical and operational requirements of network utilities and the contribution they make to the functioning and well-being of the community;²¹⁹ and avoid, remedy or mitigate the potential adverse effects of the location and siting of new network utilities on significant landscape features and the amenity and character of the district.²²⁰

Electricity legislation

316. The National Grid, and Transpower’s duties and responsibilities in respect of it, are governed by the Electricity Act 1992, and by instruments made, and actions taken, under that Act.

317. The Electricity Act provides for the establishment of the Electricity Commission, which has the function of overseeing New Zealand’s electricity industry and markets.

318. The Electricity Commission is required to consider projects for upgrading the National Grid, and grant or withhold approval of them by applying the most appropriate grid investment test (GIT) having regard to objectives that include ensuring a reliable transmission system but having regard to the cost, and enabling selection of transmission upgrade options that maximise the total net benefits, taking into account transmission alternatives.²²¹

319. Transpower’s grid upgrade plans for reliability investments are to reflect good electricity industry practice in meeting prescribed grid reliability standards (GRS) and a prescribed GIT, and any options considered in identifying proposed reliability investments.²²²

320. The Electricity Commission’s approval is not, in law, a condition of a Grid Upgrade Project proceeding, although its approval is a condition of Transpower being able to recover the cost from electricity consumers.

321. On 25 September 2008, the Electricity Act was amended by the 48th Parliament to create a preference for renewable electricity generation by restricting new baseload, fossil-fuelled, thermal electricity-generation capacity (except where exempted by the Minister of Energy).²²³ On 16 December 2008, the 49th Parliament amended the Electricity Act by repealing Part 6A.²²³ That amendment came into force on the Royal Assent, which was accorded on 22 December 2008. The effect was to remove the restriction on new thermal capacity.

Instruments under the Electricity Act

322. Transpower referred the Board to several instruments made under the Electricity Act, and submitted that they are relevant and significant as representing a consensual national aspiration in relation to matters such as climate change and a preference for renewable generation and efficient transmission, and indicating the likely course of future infrastructure investment.

Government Policy Statement on Electricity Governance

323. The Government Policy Statement on Electricity Governance (the GPS) was made under section 172ZK of the Electricity Act.²²⁵ Compliance with the GPS is mandatory for the Electricity Commission and for Transpower.

324. The GPS states the objectives and outcomes that the Government wants the Electricity Commission to achieve in relation to the governance of the electricity industry.²²⁶

325. Clause 63 of the GPS is that electricity should be conveyed efficiently on the National Grid. Clause 65 recognises that investment coordination can be particularly problematic for renewable generation because such generation is often remote from existing load centres and major transmission lines. Clause 66 states the Government’s objectives in relation to renewable electrical energy. One of them is that the national transmission grid should be planned and made available so as to facilitate the potential contribution of renewables to the transmission system; and another is that the specification of the grid planning processes and approval criteria should allow grid upgrade plans to facilitate the efficient and timely development of renewable generation resources, taking into account any difference in lead times for transmission and generation investment.

326. Clause 11 states key requirements for security of supply, and confidence in security of supply. Clause 14 directs the Electricity Commission to use reasonable endeavours to ensure that the transmission system is capable of maintaining a mean winter energy margin of 17 per cent for New Zealand overall.

327. Clause 71 states the Government’s objectives for the provision of transmission services. They include that:

a) the services are provided in a manner consistent with the Government’s policy objectives for electricity, and in particular, that grid reliability should be maintained at a level required by residential, commercial and industrial users and by the Government’s economic development objectives
b) the transmission grid should be adequately resilient against the effects of low probability but high-impact events having regard to the load which could be disrupted and the duration of any disruption
c) where practicable, the transmission grid should provide adequate supply diversity to larger load centres, having regard to the load which could otherwise be disrupted and the duration of any disruption
d) efficient competition in generation and retail is facilitated and transmission constraints are minimised
e) the national transmission grid should be planned and made available so as to facilitate the potential contribution of cost-effective renewables to the electricity system, and in a manner that is consistent with the Government’s climate change and renewables policies
f) the efficiency of transmission services should be continuously reviewed and improved so as to produce the services that grid users and consumers want at least cost.

328. Clause 94 directs that to the extent that the Electricity Commission considers the environmental effects of new lines proposed by Transpower in a grid upgrade plan, it should also take into account any longer-term benefits that large capacity lines may provide by avoiding multiple smaller lines. Clause 95 directs that as part of its consideration of transmission investments, where the total cost of a project is more than $20 million, the Electricity Commission should ensure that transmission alternatives are considered to the extent practicable subject to these conditions:

a) only alternatives which have a high probability of proceeding, and where reliability can be maintained by contingency measures if the alternative is delayed or does not proceed, should be considered
b) alternatives which are only likely to proceed if they are assisted financially by the Government or relevant body should not be considered unless the Government or relevant body has agreed to provide such assistance.

Electricity Governance Rules 2003

329. The Electricity Governance Rules were made by the Minister of Energy under sections 172H, 172I and 172E(2) of the Electricity Act.

330. Section III of Part F of the Rules relates to grid upgrades and investments. The purposes of the Rules in that section include facilitating Transpower’s ability to develop and implement long-term plans (including timely securing of land access and resource consents) for investment in the grid.

331. Rule 4.2 states the purpose of the GRS, which includes providing a basis for Transpower to prepare grid upgrade plans.

332. Rule 4.3 prescribes that GRS should take into account the GIT; that transmission investments are long-lived assets and require a long-term planning perspective; should reflect the public interest in reasonable stability in planning, having regard to the long-term nature of investment in transmission assets; and be consistent with good electricity industry practice.

333. Rule 4.4 stipulates contents of GRS and procedures for making and reviewing them.

334. Rule 6.3 prescribes objectives of the GIT. They include (among others) as far as practicable reflecting interests of end-use customers in ensuring a reliable transmission system, having regard to the cost to end-use customers; reflecting a reasonable economic assessment of the balance between different levels of reliability and the expected value of energy at risk; and enabling selection of transmission upgrade options after taking into account transmission alternatives.

335. Rules 6.1, 6.4, 6.5, 6.6 and 7 prescribe procedures for determining the GIT.

336. Rule 6.2 stipulates that the GIT is to be applied (among other things) by Transpower to determine proposed economic investments for inclusion in the proposed grid upgrade plan.

337. Rule 10 relates to grid planning assumptions, which are to include committed projects for additional generation, transmission, and demand side management; a reasonable range of credible demand forecasts by region or grid exit point; and a reasonable range of credible future, high-level generation scenarios.

Grid Reliability Standards

338. The GRS have been made under Part F of the Electricity Governance Rules 2003, and are set out in Schedule F3 to them. The GRS are binding on Transpower, and represent statutory constraints within which it has to operate.

339. The basic requirement of the GRS is to provide a core transmission grid that can withstand the loss of any one component and still meet peak load demand (sometimes referred to as the N-1 security criterion).

Grid Investment Test

340. A GIT has also been made under Part F of the Electricity Governance Rules, and is set out in Schedule F4 of them. The GIT governs consideration by the Electricity Commission of grant or withholding of approval of investments for upgrading the National Grid.

341. In his evidence, Mr C J Freke (Group Manager, Transportation, Manukau City Council) asserted that the GIT is not a statutory document. However, the witness did acknowledge that it was set under rules made under the Electricity Act.

342. The GIT is incorporated in the Electricity Governance Rules, themselves made under the Electricity Act. By that (subordinate) legislation, the Electricity Commission is obliged by law to apply the GIT in considering whether to give or withhold its approval of proposals by Transpower for upgrading the grid. So the Board holds that the GIT is a statutory document.

343. Although the GIT is not directly applicable to decision-making under the RMA, in practice Transpower can only advance grid investment proposals that are capable of passing the GIT.

344. Mr Freke also gave his opinion that the Board should not be influenced by the GIT, suggesting that if (being influenced by the need to pass the GIT) Transpower has failed to properly assess the full costs of its proposal (including environmental costs), it will not have adequately considered alternatives.

345. The Board does not accept that opinion. Consideration of speculative alternatives or suppositious options is not required.²²⁷ The purpose of a territorial authority’s duty to have regard to the adequacy of a requiring authority’s consideration of alternatives would be negated unless it is confined to alternatives that are legally and practically available to the requiring authority.

Electricity Commission approval of proposed grid upgrade

346. Transpower had submitted to the Electricity Commission for its approval an initial plan for upgrade of the upper North Island grid, and the Electricity Commission made a draft decision to decline that proposal. Transpower decided to amend the proposal and asked that the Electricity Commission suspend its consideration of it.

347. Transpower submitted an amended proposal to the Electricity Commission in October 2006 seeking approval for what amounts to the first stage of the Grid Upgrade Project, including planning the works to allow for future upgrade to 400-kV operation.

348. On 5 July 2007, the Electricity Commission made a final decision stating its satisfaction that Transpower’s amended proposal for the upper North Island Grid Upgrade meets and complies with the applicable requirements, and approving the proposal.²²⁸ The approval decision was a majority decision of the Electricity Commission (one member – Mr G Pinnell – dissenting).

349. The effect of the Electricity Commission’s approval was that Transpower is able to recover approved costs of the proposed investment from designated transmission customers. In these proceedings, Transpower submitted that by section 171(1)(d) of the RMA, the Board can, and should, have regard to the Electricity Commission’s decision (particularly in considering the need for the upgrade) as the Electricity Commission had rigorously assessed the grid upgrade by the tests of good industry practice: the GRS and GIT.

350. Transpower also relied on the Electricity Commission’s decision as showing that as a matter of fact the extent of Transpower’s consideration of alternative methods, sites and routes, had been considered and analysed by the Commission. Transpower expressly stated it did not contend that the Commission’s process is a substitute or proxy for the RMA decision-making process, nor as determinative of the question.

351. The Waipa District Council observed that the Electricity Commission stated it had no environmental or RMA considerations in mind in reaching its approval decision. The Council contended that:

a) Transpower had, in effect, left RMA considerations (particularly assessment of environmental effects) until after it had the Electricity Commission’s approval of the project
b) by section 172N of the Electricity Act, the Electricity Commission should have addressed environmental sustainability and assessment of the full costs of the proposal
c) the Commission’s decision had limited Transpower’s assessment of the proposal under the RMA, by effectively foreclosing any adequate investigation of alternative methods and routes
d) without full examination of alternatives to the amended upgrade proposal beyond those that had been evaluated (including alternative methods and routes) against all relevant grounds of assessment, the Electricity Commission could not, and did not, reach a decision in accordance with its principle objectives and the specific outcomes it has to achieve
e) the Commission’s decision does not provide a proper basis to limit the consideration of the requirements to the 400-kV option for the purpose of this Inquiry.

352. Transpower responded that the Board is entitled to draw comfort from the fact that the Electricity Commission completed an independent statutory inquiry which considered the need for the upgrade.

253. Even so, the Board understands that its duty under the RMA is to make its own findings on the evidence before it, a charge from which it is not relieved by the Electricity Commission’s performance of its functions under the Electricity Act. The Board also understands that it is not its function to consider allegations that the Electricity Commission’s process under the Electricity Act was deficient or inadequate; and nothing in this report implies any opinion on any such question.

Electricity Industry Reform Act

354. The Electricity Industry Reform Act 1998 restricts involvement of an electricity lines business with an electricity supply business, and vice versa.²²⁹ However, the Act also specifically stipulates the limits within which Transpower may engage in electricity generation. Transpower can contract with an electricity supply business for that business to generate electricity for deferring the need for investment by Transpower in the National Grid.²³⁰

355. Federated Farmers brought to the Board’s attention that the specific exception for Transpower had been inserted in 2004 with retrospective effect from 20 May 2003.²³¹ Federated Farmers submitted that the 2004 Amendment Act had been passed at about the time that Transpower had been starting to engage in the route selection process for the Grid Upgrade, and had been well into the development of it.

356. Asked what significance the Board should place on the sequence of events, Federated Farmers contended that the fact that the amendment had been backdated suggests that there had been a disjoint between electricity lines and supply; that Transpower must have been aware of what was to happen; and that Transpower had a duty to consider generation alternatives.

357. The Board notes that the provision of the 2004 Amendment Act authorising Transpower to contract generation to defer investment in the National Grid was not the only provision of that Act given retrospective effect. The Amendment Act has 14 sections, and the whole Act was deemed to have come into force on 20 May 2003.

358. So the Board is not persuaded that it should place significance on the retrospective commencement of the exception for Transpower.

359. Further, as mentioned in Chapter 1 of this report, Transpower’s approval as a requiring authority under the RMA is limited to its network operation of supply of line function services as defined in the Electricity Act. So although to the extent stated by the 2004 Amendment, Transpower is exempt from the general requirement separating electricity-lines businesses from electricity-supply businesses, at law Transpower’s authority to contract generation for deferring investment in the grid is outside the scope of its power as a requiring authority under the RMA.

Public Works Act

360. Some submitters raised questions about entry by Transpower on private land for construction and maintenance of the proposed transmission line, acquisition by Transpower of easements over private land for operation of the line, and compensation for resulting loss and injurious affection to private land.

361. Transpower is free to negotiate agreements with people having appropriate interests in land affected. Landowners are free to agree to or refuse entry, and to grant or refuse easements. Transpower and landowners are free to stipulate terms and conditions for entry and easements, including amounts of payments or other consideration. If agreement is reached and an easement is granted, it has the character of a private transaction of property rights.

362. If it is unable to reach agreement with a landowner, Transpower can apply to the Minister of Lands to have an easement taken compulsorily under the Public Works Act.²³² The landowner would be entitled to object to the Environment Court, which would then conduct an inquiry and report to the Minister of Lands. Such an inquiry would provide an opportunity for independent resolution of disputed terms or conditions of the proposed easement.

363. If an easement is taken, the landowner may be entitled to compensation for loss or damage, including injurious affection, disturbance, and business loss.²³³ In certain circumstances, this may be reduced by an amount equivalent to an increase in the value of the remaining land, sometimes referred to as betterment.²³⁴

364. In the absence of agreement, the landowner is entitled to claim compensation from Transpower to be assessed by the Land Valuation Tribunal in accordance with Part 5 of the Public Works Act. Those provisions are part of the legal context of the proposed designation, and the Board has to consider the extent to which they are within the scope of its Inquiry.

Energy Efficiency and Conservation Strategy

365. The New Zealand Energy Efficiency and Conservation Strategy (NZEECS) was made under sections 8 and 9 of the Energy Efficiency and Conservation Act 2000, and was published in October 2007. The Strategy had been the subject of public consultation.

366. In respect of the electricity system, the Strategy seeks to promote an efficient system, and to promote the uptake of renewable electricity.

367. The Strategy identifies optimising the operation and management of transmission systems to minimise losses; increasing the uptake of distributed generation; reducing peak demand; and relieving congestion on transmission networks as ways of promoting an efficient electricity system.²³⁵

368. The Strategy also identifies the scale of transmission and distribution losses, and records that high-level incentives are already in place to better manage transmission losses.²³⁶

Scope of this Inquiry

380. Having reviewed the legal context, the Board understands the effect of section 147 of the RMA is that the scope of the function of a board of inquiry appointed under section 146 is to consider and decide the requirements for designations, and the resource consent applications, in general, as the relevant territorial authorities would have had to do if the requirements and applications had not been called in.

381. Section 147 creates exceptions to that general statement. Some are procedural (for instance, the power of a board of inquiry to permit cross-examination, the duty for it to keep a full record, and the duty to produce a draft report and consider comments received on it). Those procedural provisions cannot affect the scope of a board’s inquiry.

382. Other exceptions to the general statement are substantive, and could potentially affect the scope of a board’s inquiry considering a requirement for a designation. They expand a board’s jurisdiction to include that of the requiring authority to consider and decide whether to confirm the requirement, modify it, impose conditions on it, or withdraw (that is, cancel) it.

383. The general correspondence of the substantive scope of the functions of a board of inquiry appointed under section 146 of the RMA with those of territorial authorities is only expanded to that extent. In particular:

a) there is no provision conferring on a board of inquiry any other power or duty of a requiring authority
b) a board is not given any function under the Electricity Act of the Electricity Commission or of the Environment Court
c) a board does not have any other function under the RMA, the Local Government Act or the Building Act of territorial authorities in respect of outline plans, building consents, controlling roads, or otherwise
d) a board does not possess any function or power under the Public Works Act of the Environment Court, or of the Land Valuation Tribunal
e) a board has no function of the Department of Labour Health and Safety in Employment Act 1992.

Inconsistent statutes

384. The different pieces of legislation applicable to the grid upgrade need to be read so they can apply together, to give effect to the presumed intention of Parliament that, in general, grid upgrades and new transmission lines are able to be constructed in accordance with the purpose and principles of the RMA. In general, inconsistency between a decision under the Electricity Act and one under the RMA causing an impasse over a grid upgrade or new transmission line cannot have been intended. The Board understands that the statutes should, if reasonably practicable, be applied to avoid that kind of outcome.²³⁹

385. In practice, any possibility of conflicting decisions by the Electricity Commission and the Board can be avoided by the Board interpreting the scope of its functions under the RMA so that they do not overlap with the scope of the Electricity Commission’s functions under the Electricity Act. So to the extent that the Electricity Commission’s findings may appear to bear on sustainable management of natural and physical resources, and on effects on the environment, the Board respects them only as an element in the Electricity Commission’s process of coming to its decision under the Electricity Act. The Commission’s findings do not relieve the Board of its own duties under the RMA, so it does not adopt or follow the Electricity Commission’s findings under the Electricity Act. Rather, the Board has to consider the abundant evidence given to it, make its findings on that evidence, and then form its own judgement (independent of that by the Electricity Commission) on whether the proposal would serve the purpose of the RMA of promoting sustainable management of natural and physical resources.

Evidence to support findings

386. On 3 December 2007, the Board published notice of the hearing procedures it would follow, including its expectations about the lodging of evidence statements prior to the start of the hearing. In that respect, the Board directed Transpower to lodge with the Board statements of its evidence in chief by 1 February 2008; any submitter who wished to give or call evidence to lodge statements of evidence with the Board by 26 February 2008; and that Transpower was to lodge statements in rebuttal by 13 March 2008.

387. On 3 March 2008, the Board extended the time for submitters to lodge evidence statements to 14 March; and directed that Transpower was to lodge rebuttal statements at least five working days prior to the giving of that rebuttal evidence.

388. Transpower, and some submitters, lodged evidence statements in accordance with those expectations, and those statements were duly published on the Board’s web pages. Publication of Transpower’s evidence statements enabled submitters to decide whether or not they wished to call evidence to contradict testimony in Transpower’s evidence statements; and whether or not they wished to cross-examine any witnesses to be called by Transpower. Correspondingly, publication of submitters’ evidence statements enabled Transpower to decide whether or not to call rebuttal evidence, and whether or not to cross-examine submitters’ witnesses.

389. The result was, in accordance with the stated objective of the Board’s hearing procedures, to provide opportunity for the Board to receive and test the reliability of the information presented.

390. In the event, some submitters who had not lodged evidence statements with the Board prior to the hearing, took the opportunity of speaking to their submissions to present statements on matters of fact and opinion that were in the nature of evidence, and which could have been the subject of evidence statements lodged with the Board prior to the hearing.

391. Dr J B Forret, counsel for several submitters, asserted that some submitters had understood that although expert evidence needed to be pre-circulated, where they wanted to speak in support of their written submission, that did not need to have been pre-circulated. Counsel argued that it was hard to imagine, in the absence of legal submissions, what more submitters would be saying in support of their submissions which would not really fall into that evidence category. Her clients had anticipated that where they strayed into the realm of evidence, Transpower counsel would have opportunity to question them on that.

392. Transpower responded that leave should have been sought by any submitter seeking to adduce evidence after 14 March 2008, showing good reason for not having lodged evidence prior to Transpower having to lodge its rebuttal evidence.

393. The Board accepts Transpower’s submission. In the event, there were submitters (even some who were represented by counsel at the hearing) who presented information or opinions in the nature of evidence in the course of speaking to their submissions, but statements of that information or opinion had not been lodged with the Board prior to the hearing.

394. The number of submitters who were heard, and the range of the subject matter of their submissions, made it impracticable to expect Transpower to cross-examine on what was in the nature of evidence that was presented for the first time at the hearing. Any cross-examination would have been impromptu, and without having the opportunity to investigate the evidence presented and for considered decisions to be made on what of it was to be tested. Further, the relevant Transpower witness would by then have given evidence, had not been cross-examined by the submitters in question, and been excused.

395. The result was that, at least where the material in question lacked particulars, or was in conflict with evidence of Transpower witnesses, the potential for the Board to confidently rely on it as a basis for making findings was considerably weakened.

396. Submitters had the opportunity to present evidence in a way that could assist the Board to resolve conflicts among witnesses and make reliable findings, by lodging evidence statements in accordance with the Board’s timetable. Those who did not take that opportunity could not reasonably expect that the Board would be able to place the same reliance on their evidence.

397. Consequently, the Board places less reliance on evidence given without notice as submissions, and especially where particulars were lacking or where evidence was in conflict with evidence given in an orderly way.

Endnotes

1 RMA, s186(1).

2 RMA s186(5); Public Works Act, s60(1).

3 See definition in RMA s2(1) of natural and physical resources.

4 RMA, s3.

5 See definitions in RMA s2(1) of environment and of amenity values.

6 North Shore City Council v Auckland Regional Council [1997] NZRMA 59, 94.

7 Auckland City Council v John Woolley Trust (2008) 14 ELRNZ 106 (Randerson J) para [47]; Falkner v Gisborne District Council [1995] 3 NZLR 622, 632.

8 NZ Rail v Marlborough District Council [1994] NZRMA 70, 86.

9 Auckland Volcanic Cones Society v Transit NZ [2003] NZRMA 316 paras [19] & [24].

10 Environmental Defence Society v Mangonui County Council [1989] 3 NZLR 257 (CA), 260.

11 Tairua Marine v Waikato Regional Council Environment Court Decision A108/2005 para [522].

12 NZ Rail, cited above, p 86.

13 Minhinnick v Minister of Corrections Environment Court Decision A043/2004.

14 Waikanae Christian Holiday Camp v Kapiti Coast District Council (HC Wellington 27/10/2004 Mackenzie J).

15 RMA, s147(4)(b).

16 RMA, s147(5).

17 Ibid, s147(8).

18 Ibid, s41(1).

19 Commissions of Inquiry Act 1908, s4B(1).

20 RMA s41(4).

21 Ibid, ss41A-41C.

22 Ibid, s148.

23 Ibid, s149.

24 Ibid, s149A.

25 Ibid, s176(1).

26 McGuire v Hastings District Council [2002] 2 NZLR 577; [2001] NZRMA 557; 8 ELRNZ 14 (PC); Auckland Volcanic Cones Society v Transit NZ [2003] NZRMA 316, 334 (FC) para [61].

27 North Shore City Council v Auckland Regional Council [1997] NZRMA 59; Contact Energy v Waikato Regional Council Environment Court Decision A004/2000 para [308].

28 McGuire v Hastings District Council (already cited); Auckland Volcanic Cones Society v Transit New Zealand [2003] NZRMA 316.

29 Unison Networks v Hastings District Council (HC Napier CIV 2007-485-896 11/12/07, Potter J).

30 Citing Unison Networks v Hastings District Council, above.

31 Citing Norwest Community Action Group v Transpower Environment Court Decision A113/01, paras 40-44.

32 Citing Porirua City Council v Transit NZ Environment Court Decision W052/01, paras 92‑97.

33 Citing Te Runanga o Ati Awa Ki Whakarongatai v Kapiti Coast District Council Environment Court Decision 023/02, para [153]; and Bungalo Holdings v North Shore City Council Environment Court Decision A052/01, para [111].

34 Waimairi District Council v Christchurch City Council Planning Tribunal Decision C030/82, pp 24-25; Beadle v Minister of Corrections Environment Court Decision A074/02, paras [860], [864]-[865].

35 Environmental Defence Society v Mangonui County Council (HC Wellington M101/81 23/10/81 Speight J); STOP Action Group v Auckland Regional Authority (HC Wellington M514/85 31/07/87 Chilwell J) p 47; Bungalo Holdings v North Shore City Council (already cited).

36 Already cited, para [23].

37 Citing Nelson Intermediate School v Transit New Zealand Environment Court Decision C35/2004, para [55].

38 [2003] NZRMA 316, 334 (FC) para [61].

39 Already cited.

40 STOP Action Group v Auckland Regional Authority (already cited).

41 See STOP Action Group (already cited) and the earlier cases cited at pp 77ff of that Judgment.

42 See for example, Auckland Volcanic Cones Society v Transit NZ [2003] NZRMA 316, 334 (FC) paras [60] and [61].

43 See Interpretation Act 1989, s 5.

44New Zealand Rail v Marlborough District Council [already cited].

45 Auckland City Council v John Woolley Trust (already cited) para [47].

46 See Interpretation Act 1989, s 5.

47 Citing Bungalo Holdings v North Shore City Council Environment Court Decision A052/01.

48 Citing Babington v Invercargill District Council (1993) 2 NZRMA 480, 486; and Olsen v Minister of Social Welfare [1995] NZRMA 385, 395.

49 Citing Rangi Ruru Girls School Board of Governors v Christchurch City Council Environment Court Decision C130/2003.

50 Relying on Bungalo Holdings (already cited) paras [66] and [67].

51 RMA, s176A(1).

52 Ibid, s176A(3).

53 Ibid, s176A(4).

54 Ibid, s176A(5), (6).

55 Ibid, s176A(2).

56 Nolan DA (ed), (2008), para 3.17.

57 RMA, s87.

58 Ibid, s 77B.

59 Ibid, s88(2)(b).

60 Ibid, s104(1).

61 McGuire v Hastings District Council (already cited); Auckland Volcanic Cones Society v Transit NZ (already cited) para [61].

62 Ibid.104(2).

63 Ibid, s104(3)(b) and (4).

64 NZ Gazette, 13/03/08 p 1631; Corrigendum: NZ Gazette, 15/05/08 p 2277 col 2.

65 Preamble to NPS on Electricity Transmission.

66 NPS on Electricity Transmission, cl 5.

67 RMA, s55(2).

68 RMA s55(3).

69 Transit New Zealand v Auckland Regional Council (Environment Court Decision A100/2000 18/01/2001).

70 Issue 2.4.5(1).

71 Issue 2.4.5(2).

72 Objective 3.3.2.

73 Objective 5.3.1.

74 Objective 5.3.2.

75 Policy 5.4.1.1.

76 Policy 5.4.1.2.

77 Objective 6.3.

78 Policy 6.4.19(3).

79 Objective 8.3.

80 Objective 12.3.

81 Policy 12.4.4(1).

82 Policy 12.4.4(3).

83 Objective 2.1.3 and Policy 2.1.4.1.

84 Policy 2.2.4.2.

85 Policy 2.2.4.3.

86 Policy 2.2.4.6.

87 Objective 5.1.1.

88 Objective 5.1.2.

89 Policy 5.2.1.

90 Objective 7.1.

91 Policy 7.2.1.

92 Objective 3.3.7.

93 Objective 3.3.9.

94 Objective 3.11.4.

95 Policy 3.12.2(1).

96 Policy 3.13.2(1).

97 Objective 3.14.2.

98 Objective 3.15.2.

99 Objective 3.15.3.

100 Objective 3.1.2.

101 Policy 3.1.2.3.

102 Policy 5.1.3.1.

103 Policy 5.1.3.2.

104 Objective 3.A.3.1.

105 Objective 3.A.4.2.

106 Objective 6.3.1.

107 Objective 6.3.2.

108 Objective 7.3.1.

109 Objective 7.3.2.

110 Objective 7.3.3.

111 Objective 7.3.4.

112 Objective 9.3.1.

113 Policy 9.4.4.

114 Objective 12.3.1.

115 Objective 12.3.2.

116 Objective 12.3.3.

117 Objective 12.3.4.

118 Policy 12.4.3.

119 Policy 12.4.5.

120 Objective 4.1.1.

121 Policy 4.1.1(1).

122 Policy 4.1.1(2).

123 Policy 4.1.1(3).

124 Objective 5.2.1.

125 Objective 5.2.3.

126 Objective 8.1.1.

127 Policy 8.1.1(1).

128 Objective 11.2.1.

129 Objective 11.4.1.

130 Objective 15.1.1.1.

131 Objective 15.1.1.2.

132 Policy 15.1.1.1(1).

133 Policy 15.1.1.1(2).

134 Policy 15.1.1.1(3).

135 Objective 17.1.1.

136 Objective 17.1.2.

137 Objective 17.1.3.

138 Objective 17.2.3.3.

139 Policy 17.2.3.4(3).

140 Objective 3.1.1.1.

141 Objective 3.1.2.1.

142 Policy 3.1.1(1).

143 Policy 3.1.2(3).

144 Policy 3.3.1(1).

145 Policy 3.3.1(4).

146 Objective 3.5.1(2).

147 Objective 3.7.1(1).

148 Objective 3.7.1.3.

149 Objective 3.7.1.5.

150 Policy 3.7.1.1(1).

151 Policy 3.7.1.1(2).

152 Objective 3.2(i).

153 Objective 3.2(iv).

154 Objective 3.2(v).

155 Objective 3.2(vi).

156 Policy 27.3.1.

157 Policy 27.3.2.

158 Objective 10.2.1.

159 Objective 10.3.3.

160 Objective 10.3.4.

161 Objective 10.3.5.

162 Objective 12.2.1.

163 Objective 12.2.2.

164 Objective 12.3.7.

165 Objective 19.2.2.

166 Objective 19.2.5.

167 Objective 19.2.6.

168 Objective 19.3.2.

169 Objective 6.1.1.

170 Policy 6.2.5.

171 Policy 6.2.14.

172 Objective 9.1.1.

173 Objective 9.1.6.

174 Objective 14.1.1.

175 Objective 14.1.5.

176 Objective 20.1.

177 Policy 20.2.3.

178 Objective 51.1.1.

179 Objective 51.1.2.

180 Objective 53.1.1.

181 Objective 54.1.3.

182 Objective 3.4.1.

183 Policy 3.4.2.

184 Objective 4.2.1.

185 Policy 4.2.2.

186 Policy 4.2.3.

187 Policy 4.2.4.

188 Objective 4.5A.1.

189 Policy 4.5A.4.

190 Policy 6.4.2.

191 Policy 6.4.4.

192 Policy 6.4.7.

193 Policy 2.3.1 (RU1) and Figure 2.

194 Policy RU2.

195 Policy RU4.

196 Policy RU8.

197 Policy RU9.

198 Policy RU14.

199 Policy RU11.

200 Policy RU17.

201 Policy RU42.

202 Policy RU43.

203 Objective PW1.

204 Objective PW2.

205 Objective HG4.

506 Objective 3b.2.1.

207 Objective 3b.2.4.

207 Policy 3b.2.1(v).

209 Policy 3b.2.1(vi).

210 Policy 3b.2.4(v).

211 Objective 3g.2.1(vi).

212 Policy 3g.2.1(i).

213 Policy 3g.2.1(iii).

214 Objective 3h.2.1.

215 Objective 3h.2.2.

216 Policy 3h.2.1(iii).

217 Objective 3n.2.1.

218 bjective 3n.2.2.

219 Policy 3n.2.1(iii).

220 Policy 3n.2.2(ii).

221 Electricity Governance Rules Part F, section III, R6.

222 Ibid, r12.3.

223 Electricity (Renewable Preference) Amendment Act 2008, s4.

224 Electricity (Renewable Preference) Repeal Act 2009, s4.

225 Since the start of the Board’s Inquiry, the GPS was replaced with a May 2008 version, last updated 15 July 2008, and subsequently with a May 2009 version.

226 GPS Foreword.

227 Environmental Defence Society v Mangonui County Council (HC Auckland M101/81 23/10/81 Speight J).

228 Produced as Exhibit A, 3 April 2008.

229 Electricity Industry Reform Act, s17.

230 Ibid, s5(3A).

231 Electricity Industry Reform Amendment Act 2004, s5(2).

232 RMA, s186(1). One of the submitters, the Hon W R Storey, questioned whether Transpower would be entitled to invoke this provision. As that does not bear on whether the designation should be upheld or cancelled, the question is outside the scope of the Board’s Inquiry.

233 Public Works Act 1981, ss 61ff.

234 Ibid, s62(1)(e). The Hon W R Storey also questioned whether Transpower would be entitled to invoke this provision, but it is not for the Board to decide that question either.

235 New Zealand Energy Efficiency and Conservation Strategy, 2007, para 5.1.

236 Ibid, para 5.1.4.

237 Including Mr B N Davidson (Submission 874), Dr L Bennet, Mr A Kinsler, and Ms H Polley.

238 That was the Bill from which the Electricity (Renewable Preference) Amendment Act 2008 (repealed) derived, by which the amendment referred to in para [321] was made to the Electricity Act.

239 Burrows and Carter, 2009, pp 174; 449.

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Board of Inquiry Upper North Island Grid Upgrade Proposal