Meridian Energy Limited v Southland District Council

[2015] NZHC 389

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2014-425-000041 [2015] NZHC 389

BETWEEN

MERIDIAN ENERGY LIMITED

Plaintiff

AND

SOUTHLAND DISTRICT COUNCIL Defendant

Hearing:	On the Papers
Appearances:	D Goddard QC and L Theron for Plaintiff B J Slowley for Defendant
Judgment:	6 March 2015

JUDGMENT OF WHATA J [as to Declarations]

This judgment was delivered by Justice Whata on

6 March 2015 at 4.30 p.m., pursuant to r 540(4) of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Meridian Energy Limited, Wellington

B J Slowley, Invercargill

MERIDIAN ENERGY LIMITED v SOUTHLAND DISTRICT COUNCIL [2015] NZHC 389 [6 March 2015]

Judgment as to declarations

[1]      In my judgment of 12 December 2014, I decided that s 9(3) of the Resource Management  Act  1991  (RMA)  does  not  apply  to  land  use  activities  that  are necessary  or  requisite  to  operate  the  MPS  pursuant  to  s 4  of  the  Manapouri  – Te Anau Development Act (MTADA).1     Section 9(3) does, however, apply to all other MPS land use activities.  MPS is defined at [1] of that judgement as meaning the Manapouri Power Station and associated works.

[2]      I granted leave to file wording for declarations preferably before 5.00 pm,

17 December  2014,  or  at  a  later  date  suitable  to  the  parties.    It  transpires  that memorandum was not received from the counsel for Meridian Energy Limited (Meridian) until 5 February 2015 and a response from the Southland District Council (SDC) was not received until 3 March 2015.

[3]      There is disagreement as to the proper scope of the declarations.  Meridian initially sought the following declarations:

(a)      Section 9(3) of the Resource Management Act 1991 does not apply to land use activities that are necessary or requisite to operate the Manapouri Power Station and associated works pursuant to section 4 of the Manapouri – Te Anau Development Act 1963; and

(b)Resource consent is not required for the upgrade of the ventilation system at the Manapouri Power Station.

[4]      SDC submits that the reference to “and associated works” does not reflect the decision. It is also concerned that any declaration in respect of the ventilation system should not be wider than is appropriate and that the only information available to the Court was in respect of the specific upgrade that was subject to the without prejudice application for resource consent made by the plaintiff to the defendant. SDC is further concerned that the upgrade of the ventilation system sought by the plaintiff

can cover new work on the ventilation system that is over and above what was

1 Meridian Energy Limited v Southland District Council [2014] NZHC 3178.

required for meeting the operational needs of the power station in 1963 and not merely the work that was discussed between the parties.

[5]      Meridian responded by suggesting the following declarations:

(a)      Section 9(3) of the Resource Management Act 1991 does not apply to land use activities that are necessary or requisite to operate the Manapouri Power Station and associated works pursuant to s 4 of the Manapouri – Te Anau Development Act 1963; and

(b)Resource consent is not required for the upgrade of the ventilation system at the Manapouri Power Station that was subject of Meridian Energy Limited’s May 2013 resource consent application.

(emphasis added)

Resolution

[6]      A declaration to the effect that s 9(3) does not apply to land use activities that are necessary or requisite to operate the Manapouri Power Station and associated works  pursuant  to  s 4  of  the  Manapouri  –  Te Anau  Development  Act  1973  is unobjectionable. My decision was premised on the inclusion of associated works – see  [1]  of  the  judgment.  In  any  event,  provided  those  works  are  necessary  or requisite to operate the Manapouri Power Station, they fall within the ambit of s 4.

[7]      The second proposed declaration is more problematic. I apprehend this has come  into  focus  because  of  the  observation  at  [54]  of  my judgment.  In  short, paragraph [54] records my view that the need for the ventilation shaft should be re- examined in light of the Crown’s commitment to sustainable management. Meridian has now done that and confirms its view that the works are necessary.

[8]      The declaration sought by Meridian in effect requires the Court to form a view and to declare that the works identified in the resource consent are in fact necessary and requisite. SDC accepted that the works were necessary for the purpose of a declaration about the scope of s 9 RMA, but requires clarity as to the scope of

the works for the purpose of a declaration that they are in fact necessary. I agree. The declaratory judgment procedure is not suitable when the subject matter of the declaration is unclear or when there is a factual dispute.2    Meridian has sought to address this issue by framing the description of the works, ironically, by reference to a resource consent application for the ventilation shaft. I am prepared to make the declaration on this basis provided there is no dispute about it. If there is a dispute about it, then the proper course is to treat Meridian’s assessment of necessity as lawfully  made  until  set  aside  by  way  of  judicial  review  in  light  of  orthodox

principles of review.  For completeness nothing in paragraph [54] of my judgment should be taken to suggest a reviewable error.

[9]      Accordingly, I make the following declaration for the purpose of the sealing of the judgment:

(a)      Section 9(3) of the Resource Management Act 1991 does not apply to land use activities that are necessary or requisite to operate the Manapouri Power Station and associated works pursuant to s 4 of the Manapouri – Te Anau Development Act 1963.

[10]     I am also prepared to make the following declaration provided that there is no dispute about it:

(b)Resource consent is not required for the upgrade of the ventilation system at the Manapouri Power Station that was subject of Meridian Energy Limited’s May 2013 resource consent application.

[11]     If the parties are unable to agree, then I grant leave for either party to seek a teleconference before me for the purpose of final resolution within five working

days. Failing that, judgment is to be sealed in respect of the first declaration at [9].

2      New Zealand Insurance Co Ltd v Prudential Assurance Co Ltd [1976] 1 NZLR 84 (CA) at 85.