01 Oct 2007
Environmental and Public Law Bulletin
This publication includes:
Case note: van Brandenburg v Queenstown Lakes District Council & Meadow 3 Limited
In this decision, the Environment Court used its declaration powers under the Resource Management Act 1991 (RMA) to 'enforce' landscaping conditions attaching to land use and subdivision consents granted for a residential subdivision overlooking Lake Hayes.
Background
Meadow 3 Limited (Meadow) is currently developing land on the western side of Lake Hayes. Subdivision and land use consents had been granted, subject to conditions requiring existing trees to remain to screen houses proposed as part of the development. A neighbour was concerned about views across Lake Hayes and brought an application for Environment Court (Court) declarations and enforcement orders. He argued Meadow had breached resource consent conditions, or had caused adverse effects, by felling trees and removing branches from others which removed the screening effect of the trees. Meadow opposed the applications and denied cutting or pruning the trees.
The Court's findings
The land use consent required the activity to be undertaken in accordance with plans and specifications, including a landscape plan and landscape strategy. The Court concluded that at least 34 trees had been removed and most of the remaining trees pruned. It found that the consent documents did not contemplate substantial felling, pruning or replanting of trees and concluded that the tree felling contravened the land use consent. That consent was invalid and voidable as it could no longer be performed and/or had been abandoned. As a result, until the land use consent was varied in a way which meant conditions could be met, or the vegetation grew back, it could not be exercised.
The Court also held that because of the express inclusion of the landscape plan and strategy in the subdivision consent, the company had also breached the subdivision consent. The Queenstown Lakes District Council (Council) could therefore not grant section 223 or 224 certificates for the survey plan, preventing the issuing of certificates of title. This stalled the subdivision.
In exercising its discretion to grant declarations, the Court took into account the value given to the landscape setting of Lake Hayes in the District Plan, the focus of the landscape plan and strategy in preserving the setting of the heritage homestead on the site and the impossibility of now giving effect to the landscape plans. These issues outweighed the prejudice to conditional purchasers of the lots who the Court noted had contractual remedies available to them.
The Court found it was not necessary to make enforcement orders as the resource consents could not be implemented until the vegetation was returned to its original state.
This case demonstrates that the Environment Court's declaration powers can sometimes have an 'enforcement' function. It is also an interesting decision as it considers the potential implications of works that exceed or frustrate consent conditions. In this case, Meadow's development has been stalled, even though some of the lots on the site had been conditionally sold. Meadow has appealed against the decision to the High Court but its only other practical option appears to be to apply to the Council to vary its resource consents.
Latest developments
This month, the parties returned to the Environment Court on the issue of the wording of formal declarations. The Court confirmed that, at this stage, it was making no further declaration that the resource consents are void on the basis of invalidity. This issue has been adjourned to early 2008 to enable Meadow to apply for a variation of the consents. If Meadow does apply to amend its consents in the manner suggested by the Court, it would result in the removal of several lots from the subdivision, possibly with significant financial implications.
For more information, please contact the author:
Anne Buchanan, Lawyer
Tel +64 9 300 3807
anne.buchanan@dlaphillipsfox.com
How climate change is becoming a factor in grants of resource consent
New Zealand has witnessed a long history of debate surrounding the generation of electricity and its associated environmental issues. Whilst the security of electricity supply is a national goal, the general policy approach appears to have been that this should not occur at the expense of the environment.
As a result, energy generators (often depicted as the environmental 'bad guys') have started to explore the generation of electricity through the more environmentally friendly option of wind farms. Whilst it may be assumed that community groups are happy with this change, the process of obtaining resource consents for wind farms have been no easy ride for electricity generators. With the risks associated with climate change and the steps necessary to combat them now entrenched on the political battlefield, recent case law suggests that the focus of the argument appears to have shifted from 'security of supply vs. the environment' to 'generation of renewable energy vs. protection of natural landscapes'.
Climate change has been a relevant consideration in relation to resource consent approvals over the last five years in New Zealand. In 2002, the Environment Court in Environmental Defence Society v Auckland Regional Council [2002] 11 NZRMA 492, a decision on the gas fired combined cycle power station in Otahuhu, accepted that the cumulative effects of greenhouse gas emissions are widespread and serious. The Environment Court also found that the threat posed by the enhanced greenhouse effect was significant enough to conclude that substantial changes to the global environment, including that of New Zealand and the Auckland region, were likely to occur.
In 2004 Central Government enacted the Resource Management (Energy and Climate Change) Amendment Act 2004 (Amendment Act). The Amendment Act altered the RMA to make explicit provision that all persons exercising functions and powers under the RMA should have particular regard to the effects of climate change. An exception to this was that local authorities were not required to consider the effect on climate change of discharges of greenhouse gases, either in planning documents or in resource consent applications. The exclusion was inserted because Central Government was seeking to address the discharge of emissions on a nationwide basis.
Cases on applications to build wind farms include Genesis in 2005 (Genesis Power Ltd v Franklin DC [2005] NZRMA 541), Unison Networks in 2006 (Unison Networks Ltd v Hastings DC (W58/06, 17 July 2006)), Meridian in 2007 (Meridian Energy Ltd v Wellington City Council (W31/07, 14 May 2007)) and a second Unison application in 2007 (Outstanding Natural Landscape Protection Society v Hastings DC (W24/07, 13 April 2007)). All of these decisions have involved balancing the considerations of climate change as a matter to be considered under section 7 of the RMA, against landscape and amenity effects as possible matters of national importance under section 6 of the RMA. In the Genesis, Unison (1) and Meridan cases, the benefits gained from a reduction in the effect on climate change of the generation of electricity through wind turbines was held to outweigh the adverse effects on landscape and amenity that the turbines would cause.
In the Unison (2) case, decided in April this year, it was found that the particular amenity effects of the case outweighed the climate change benefits from the proposed wind turbines. This case involved the second stage of a wind farm development that was to be developed on a very distinctive landform that possessed both cultural and archaeological significance and was considered an 'outstanding natural landscape'. Unison has appealed this decision, and has also lodged a fresh consent application. This application has been referred by the consent authority to the Acting Minister for the Environment.
It is apparent from these cases that climate change is now a factor for consideration in resource consent applications. However, the extent to which the national and international benefit from the reduction of climate change emissions will outweigh possible adverse amenity effects will continue to be analysed on a case-by-case basis. This approach may seem logically unfair to energy generators who are taking more action towards reducing emissions than many other industrial sectors, however it must be borne in mind that those who oppose wind farm applications are usually at pains to point out that they do not oppose them overall – they simply don't want them in the particular areas in which they are proposed. Having regard to these competing interests, the question remains – who should make the final
decision?
At this stage, like any other resource consent application, local authorities are the entities responsible for assessing where the balance lies between the protection of the landscape on one hand, and emissions reduction on the other. For a balancing act that involves not only local, but regional, national and global considerations, is this the right level for the decision to be made? Arguably it is, as territorial authorities are the decision makers for land use in their area, and a wind farm application is just that. However more guidance could be given from the national level, through a national policy statement, as to where the balance should lie. A national policy statement may provide greater direction than the current case-by-case approach, which gives an applicant little to no security in the outcome, prior to investment in planning and development.
The extent to which a regional council can consider the possible effects of climate change resulting from the grant of a discharge consent was recently considered in the case Greenpeace New Zealand v Northland Regional Council [2007] NZRMA 87 (High Court). This case involved an application to use currently dormant facilities as a coal fired power station. The case revolved around section 104E of the RMA, which was inserted as part of the Amendment Act and relates to applications to discharge greenhouse gases. The section provides that when a consent authority considers a discharge into the air of greenhouse gases, it must not have regard to the effects of the discharge on climate change, except to the extent that the use and development of renewable energy enables a reduction in the discharge into air of greenhouse gases. The applicant, Mighty River Power, and the consent authority argued that because the consent application was not for a renewable energy project, the effects of the discharge on climate change could not be considered.
The High Court held that the correct interpretation of section 104E involved, firstly, qualification under the section, and then an examination of the factors that the consent authority could consider when exercising their discretion to grant consent. The High Court concluded that when considering an application under section 104E that did involve a reduction of greenhouse gases by the use and development of renewable energy, discretion is more likely to be exercised to grant the permit than applications that otherwise qualify under section 104E, but do not include the feature of a reduction in the discharge of greenhouse gases through the use and development of renewable energy.
For more information, please contact the author:
Lucie Drummond, Lawyer
Tel +64 9 300 3862
lucie.drummond@dlaphillipsfox.com
Refresher: determining priority between competing applications
Given the long (and continuing) line of cases in which the question of priority arises, it seems timely to provide a refresher on the general principles that apply to determining priority between two or more competing applications for consent.
Questions as to priority often arise when limited resources, such as water, space in the coastal marine area and geothermal fluid, are at stake. Often the resource is so limited or the requested take of the resource so large that only one applicant can succeed. Priority can also become important in situations where the first application to obtain consent may need to be taken into account in assessing any subsequent applications as part of the existing environment.
As the RMA does not currently specify which of competing applications is to have priority (note, this will change from August 2008 when sections 124A-C are inserted into the RMA), the courts have established general principles that will apply.
These are:
- Applications will be considered on a first come, first served basis.
- The application that is 'first in time' will be the application that is 'first notifiable'.
- In this context, 'first notifiable' means the application that is first ready for notification (as opposed to actually being notified).
- An application becomes ready for notification when there is no further information required by a consent authority.
In Geo-Therm v Waikato Regional Council [2004] NZRMA 1 (HC), the High Court considered the effect on priority of a section 92 request for further information. This case involved two competing applications, both of which were the subject of further information requests both before and also after notification. The High Court decided that there is a difference between further information requests made before and after notification and confirmed that priority must be determined from the stage at which the applications are ready for notification, and that included providing all information requested by a consent authority prior to notification. The High Court noted that until the time of notification the readiness of the application is in the hands of the applicant, but after notification the need for further information may arise from a number of causes outside of the control of the applicant such as matters raised by submitters or issues identified by council officers.
An additional issue which arose in Central Plains Water Trust v Ngai Tahu Properties Limited (2007) 13 ELRNZ 63 is the impact of section 91 determinations on priority. In this case the consent authority had acknowledged that the information provided by the applicant (in respect of an application for a water take) was 'sufficient to be publicly notified'. However, the Canterbury Regional Council exercised its discretion under section 91 not to notify the application until further consents were applied for (relating to the use of the water) and advised that these would be notified together.
The High Court found that even though Central Plains Water Trust's application may have been in a notifiable state, when a consent authority decides under section 91 not to proceed with notification, the application is not ready for notification until applications for the additional consents are made. This decision has been appealed and is scheduled to be heard by the Court of Appeal in early 2008.
Another recent High Court case, Southern Alps Air v Queenstown Lakes District Council (unreported, HC Auckland, CIV-2007-485-134, 17 July 2007, Panckhurst J) has touched on the issue of whether a pre-existing consent confers priority of access to a resource.
In October 2003, Southern Alps Air sought consent to operate a commercial jetboat operation in the Makarora river catchment. Specifically, it sought consents to undertake up to 10 jet-boat trips per day on the Makarora and Wilkin rivers. An existing operator, Wilkin River Jets (WRJ), already had a consent enabling it to operate up to 16 return trips per day. The Council declined the consent on safety grounds, Southern Alps Air appealed to the Environment Court and WRJ became an interested party.
The main issues were whether Southern Alps Air could guarantee the safety of its customers and whether the two operators could safely operate on the Wilkin River, particularly as a number of points along this river were narrow and did not provide safe passing room. This meant that when there were two or more boats operating, communication between the boats was the key to ensuring the operations were safe. The Environment Court concluded that because the grant of consent to Southern Alps Air would impose 'significant practical limitations on WRJ's freedom or ability to exercise its resource consent', it could not grant consent as that would amount to an unreasonable derogation from WRJ's rights under its existing consent.
The High Court disagreed with this aspect of the Environment Court's decision noting that in order to 'amount to derogation from a grant, the relevant interference must be at least substantial. Mere interference with convenience or amenities does not suffice.' This decision may be appealed and the issue of non-derogation and its application in RMA cases will certainly be an interesting topic to keep a watch on.
For further information, please contact the author:
Kathy Wilson, Lawyer
Tel +64 9 300 3866
kathy.wilson@dlaphillipsfox.com