Meridian Energy Limited v Central Otago District Council HC Dunedin CIV 2009-412-980

[2010] NZHC 1119

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV 2009-412-000980

BETWEEN  MERIDIAN ENERGY LIMITED Appellant

ANDCENTRAL OTAGO DISTRICT COUNCIL AND OTAGO REGIONAL COUNCIL

Respondents

Hearing:         (On Papers) Judgment:  8 June 2010

JUDGMENT OF CHISHOLM AND FOGARTY JJ

[1]      In a judgment of this Court of 31 March last the application of Federated Farmers of New Zealand to join the proceedings, relying on r 4.56 was rejected for the reason that their presence was not necessary.  The judgment, however, noted that there may be an inherent power of the Court to allow them to be heard without being strictly a party.   The judgment reserved to Federated Farmers an opportunity to reconsider their position and see if there is any other bases upon which they should be heard.

[2]      Federated Farmers have now applied to be granted leave to intervene in the proceedings.  They are not seeking to be joined as a party.  They argue their presence would assist the Court by way of improving the quality of information before the Court on issues wider than those that the parties may wish to address.

[3]      The principal affidavit in support of the application, by Mr Harcombe, says that Federated Farmers is concerned as to the extent to which any decision by the

Court  in  the  issues  in  the  Environment  Court  decision  under  appeal  may  be

MERIDIAN ENERGY LIMITED  V CENTRAL OTAGO DISTRICT COUNCIL AND OTAGO REGIONAL COUNCIL HC DUN CIV 2009-412-000980  8 June 2010

applicable to farming activities which require resource consent, which need to recognise and provide for matters of national importance in s 6 of the Resource Management Act, in particular matters in respect of outstanding landscape.   The Federation is concerned about the impact on farming activities to the matters in the Environment Court decision under appeal, even though the scale and intensity of these farming activities is likely to be much less than of the wind farm that is the subject of the Meridian Energy appeal.  Federated Farmers is concerned to see that the  possible  requirement  for  analysis  of  the  possible  alternative  options  to undertaking small scale farming activities, in particular those  requiring resource consent pertaining to s 6 matters is clarified.   Federated Farmers is also concerned about  the  implications  of  any  decision  by  the  Court  on  possible  future  major irrigation projects.  Federated Farmers is also concerned to clarify whether or not the Environment Court decision has any implications for farming activities in existing landscape areas that are not identified as being outstanding landscapes in statutory planning instruments, such as district plans.

[4]      On  6  November  2009  the  Environment  Court  issued  a  decision  which cancelled earlier decisions of the Central Otago District Council and Otago Regional Council granting resource consents to Meridian Energy for a wind farm on the Lammermoor in Otago.   Meridian Energy has appealed.   Paragraph [242] of the Court’s decision is treated by Meridian as being at the heart of the appeal.   That paragraph says:

[242]    In summary, section 7(b) requires a comprehensive and explicit cost- benefit analysis of the proposal. In that analysis:

(a)where  market  valuations  are  not  available,  non-market techniques may be used; and

(b)where the values of the market are different from those of society, alternative societal values may be applied.

The idea behind the cost-benefit analysis is to assess, firstly, whether the proposal has  a positive  net  benefit, and then  whether there are credible alternative uses of the resources, or credible alternative resources that could produce the desired output, which have a greater net benefit.  In doing so, we need  to  have  regard  for whether  (environmental)  compensation  is  being given, and the adequacy of that compensation.   The outcome of this assessment of efficiency is then one matter in the overall assessment under section 5.   We hold that alternatives can be considered where section 6 matters are concerned.  It is possible, but we do not decide, that alternatives

should also be considered in other cases where there are significant environmental effects.

[5]      Section 6 of the RMA provides:

6         Matters of national importance

In achieving the purpose of this Act, all persons exercising functions and powers  under  it,  in  relation  to  managing  the  use,  development,  and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:

(a)The preservation of the natural character of the coastal environment (including the coastal marine area), wetlands, and lakes and rivers and their margins, and the protection of them from inappropriate subdivision, use, and development:

(b)The   protection   of   outstanding   natural   features   and landscapes from inappropriate subdivision, use, and development:

(c)       The protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna:

(d)The maintenance and enhancement of public access to and along the coastal marine area, lakes, and rivers:

(e)The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga.

(f)      the protection of historic heritage from inappropriate subdivision, use, and development.

(g)      the protection of recognised customary activities.

[6]      Meridian  contends  that  the  Environment  Court  has  created  a  “new  test” requiring applicants to demonstrate in some circumstances that the project is the “best” in net benefit terms or all possible projects that could achieve the same output. Meridian intends to argue that this test:

… will create planning paralysis and is in conflict with the purpose and principles of the RMA as it does not achieve sustainable management of natural and physical resources.

Meridian goes on to intend to argue:

That this requirement wrongly asserts that the decision maker is empowered to be a central planner as the Court’s reasoning is that if an applicant seeks consents that raise s 6 matters that application is to be evaluated against all

other hypothetical or potential projects demonstrating it is the next best option.

[7]      Federated Farmers’ application to intervene is opposed by the Maniototo Environmental Society and the Central Otago Environmental Society and others. Mr Holm for the Society argues that Federated Farmers’ concern is with the impact of the Environment Court decision on normal farm activities that require resource consent rather than with projects;  that by contrast the Environment Court  in this case was addressing a large wind farm project;  that the Environment Court  findings are clearly not relevant to Federate Farmers’ normal activities that require resource consent.

[8]      In reply Federated Farmers’ counsel, Mr Gardner, argues that the perspective of Federated Farmers as intervener would be of assistance to the Court to illustrate the potential breadth of the new test that was developed by the Environment Court. He argues that the test developed by the Court will, if it is upheld, impact on farmers in ways which are not currently clearly defined or even ascertainable;  that there are farming activities that require resource consent which need to recognise and provide for matters of national importance in s 6 of the RMA.   Accordingly, quite minor activities might be of considerable significance in terms of the Act.

[9]      There  appears  to  be  no  dispute  that  the  Court  does  have  an  inherent jurisdiction to allow interveners.  This, of course, is well recognised in the superior appellate Courts.  Mr Gardner instances the interim judgment of the Supreme Court in Ngai Tahu Property Limited v Central Plains Water Trust [2009] NZSC 24 which records two parties as interveners.

[10]     Interveners have been allowed at High Court level.  See Diagnostic Medlab

Limited v Auckland District Health Board and Ors HC AK CIV 2006-404-004724

18 October 2006, Lang J.

[11]     Appeals from the Environment Court are limited to questions of law.  There are rights of appeal, by way of the Judicature Act 1908, against decisions of the High Court by right to the Court of Appeal and with leave to the Supreme Court.

[12]     Policy issues can be embedded in questions of law when there are a number of available interpretations of the law and the task of the Court is essentially to judge which is the correct interpretation.  That judgment is often contextual and indeed can often not be truly separated from the question of applying the statutory language to the facts.  The High Court on appeal starts with the objective of examining whether or not there is a material error of law in the reasoning of the Environment Court.  It is a review of the Environment Court’s legal reasoning in respect of the facts found by the Court.  The strength of a High Court judgment is that it is a judgment as to the Environment Court’s application of the law to a specific set of facts.  The High Court judgment may expose “policy” issues better considered by the Court of Appeal and even the Supreme Court.  Although it is possible that the High Court may have to engage on some of those policy issues, essentially on an appeal on a point of law the High Court is examining whether or not there is an error of law in one Environment Court decision addressing one project.

[13]     Obviously, this Court has been alerted by these two applications by Federated Farmers of a wider concern.  Our judgment at this stage is whether or not we would be assisted by elaboration of this concern, beyond its articulation already recorded in this judgment.

[14]     Elaboration  of  this  concern  might  assist  us  but  it  also  runs  the  risk  of deflecting our attention away from examining the Environment Court’s application of the law to the facts.  That is the primary task of the High Court on appeal.  It is most important that we do not get distracted by being immersed in other hypotheticals.

[15]     For these reasons it is our judgment that we would not be assisted from hearing submissions from Federated Farmers.   Should this case go further, to the Court of Appeal or the Supreme Court, those appellate Courts may well take a different view.

[16]     The application is dismissed.

[17]   Costs are reserved.   We do not think this application was particularly burdensome for the Maniototo Environmental Society.  If the Society does seek costs we would not expect them to be a significant sum.

Solicitors:

Bell Gully, Wellington, for Appellant

Macalister Todd Phillips, Queenstown for Central Otago District Council

Ross Dowling Marquet Griffin, Dunedin, for  Otago Regional Council, Laurenson Family Trust and Manson and Riverview Settlement Trust

Atkins  Holm  Joseph  Majurey,  Auckland,  for  Maniototo  Environmental  Society  Inc,  Central

Otago Environmental Society and Upland Landscape Protection Society Inc