Meridian Energy Ltd v Southland District Council
[2014] NZHC 3178
•12 December 2014
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CIV 2014-425-000041 [2014] NZHC 3178
BETWEEN MERIDIAN ENERGY LIMITED
Plaintiff
AND
SOUTHLAND DISTRICT COUNCIL Defendant
Hearing: 22 October 2014
Additional Submissions: 7 November 2014
Counsel:
D Goddard QC and L Theron for Plaintiff
B J Slowley for DefendantJudgment:
12 December 2014
JUDGMENT OF WHATA J
[1] Meridian Energy Limited (Meridian) owns and operates the Manapouri Power Station and associated works (MPS). The MPS is the largest generator of hydrogenation in New Zealand and supplies energy to the Tiwai Point aluminium smelter.
[2] Meridian is empowered under the Manapouri - Te Anau Development Act
1963 (MTADA) to undertake certain activities in relation to the MPS in the following comprehensive terms:
4. Authorising corporation to construct and use works
(1) The corporation shall have, and shall be deemed since the making of the agreement to have had, full power and authority-
(a) to erect, construct, provide, use, and operate all works, appliances, and conveniences which may be necessary or requisite for or in relation to-
MERIDIAN ENERGY LIMITED v SOUTHLAND DISTRICT COUNCIL [2014] NZHC 3178 [12 December
2014]
(i) the utilisation of water power from the said water resources for the generation of electrical power; and
(ii) the generation, transmission, use, supply, and sale of electrical power required from time to time to be supplied pursuant to the agreement; and
(iii) the transmission, use, supply, and sale of any other electrical power generated from the said water resources:
…
[3] Section 8 of the same Act provides:
8 Effect of Act
The provisions of this Act and of the agreement shall have
effect notwithstanding anything to the contrary in any other enactment.
[4] Section 9(3) of the Resource Management Act 1991 (RMA) states:
9 Restrictions on use of land
…
(3) No person may use land in a manner that contravenes a district rule unless the use-
(a) is expressly allowed by a resource consent; or
(b) is allowed by section 10; or
(c) is an activity allowed by section 10A.
…
[5] Meridian and Southland District Council (SDC) seek clarification as to whether s 9 of the RMA supersedes s 4 of the MTADA for the purpose of land use activities. The following questions are therefore before the Court:
(a) Does Meridian need a land use consent to carry out an upgrade of a ventilation shaft at the MPS?
(b)Does the MTADA override the requirements for land use consents that would otherwise apply in relation to the MPS under the RMA ?
[6] As should be obvious, the central issue is whether s 9(3) applies to the land use activities of the MPS.
Background1
[7] Meridian undertakes a number of activities at the MPS on an ongoing basis to ensure the effective operation of the power station. In 1996 consents were obtained for the use of water for generation purposes. Meridian also obtained a permit to discharge contaminants into Deep Cover for two years on 13 December 2000, a coastal permit to discharge waters to Doubtful Sound, a water permit to dam and divert the waters of Lake Manapouri and the Waiau and Maroroa Rivers and a water permit to take and use water from Lake Manapouri for power generation to enable the MPS to change the way it utilized the water available to it.
[8] However, prior to 2010 Meridian has not sought land use consent for projects at the MPS as it has assumed that the land uses are authorised by the MTADA. For example, in 1996 the Ministry for the Environment advised that no land use consents were required for a second tail race tunnel constructed between 1997 and 2002, because of the MTADA, and the tunnel was constructed on this basis without land use consents. There are a number of other structures for which Meridian does not hold land use consents because it has relied on the MTADA.
[9] In 2010 Meridian proposed construction of a new reticulated water system to comply with fire safety requirements. SDC expressed the view that a resource consent was required for this work. Because of the practical importance of this work Meridian applied for resource consent to ensure that the work could begin without delay, but noted in its application that the MTADA authorises the maintenance and replacement of vital infrastructure such as water reticulation.
[10] In 2011 Meridian decided to upgrade the ventilation shaft at the MPS
building. In July 2012 Meridian contacted SDC about the upgrade and again SDC
took the position that a land use consent was required.
1 The following background, largely taken from the submissions of Meridian, is not disputed.
[11] The parties have resolved to seek a declaratory judgment to clarify whether the upgrade required consent.
The 1963 agreement
[12] The MPS was constructed in the 1960s (though not fully operational until mid-1973) for the purposes of supplying electricity to Consolidated Zinc Pty Ltd, subsequently known as Comalco. In 1963 the Crown entered into an agreement with Comalco in relation to the construction of the MPS and the supply of electricity from MPS to Comalco (“the 1963 agreement”). The 1963 agreement is set out in the schedule of the MTADA.
[13] In essence, the agreement contemplates that the Crown will construct and operate a hydro-electric works at Manapouri and that this scheme will supply energy to Comalco for the purposes of an aluminium smelter. There are detailed provisions as to the supply of electricity, including in the event that, for whatever reason, electricity cannot be supplied to Comalco.2
[14] The 1963 agreement also contemplated a duration of some 100 years, though it was terminated and replaced by another agreement between Meridian and Comalco with effect from 2013.
[15] The MPS and the 1963 agreement were transferred to ECNZ after the establishment of ECNZ as a State owned enterprise in the late 1980s. These assets were then transferred to Meridian by agreement and deed in 1998 when ECNZ was
split into three SOE generation companies.
2 Clause 14 provides:
(a) The Crown shall not be liable to the Company for any failure to supply electrical power to the company hereunder if such failure is the result of: -
(i) war or act of public enemies; (ii) act of God;
(iii) strike or lock-out or stoppage or restraint of labour; (iv) riot or civil commotion;
(v) the Crown’s failure through no fault or neglect of its own to obtain adequate supplies of
plant, equipment or materials necessary for the generation, transmission or supply of electrical power; or
(vi) any other cause (except fire) beyond the control of the Crown.
The Crown shall use its best endeavours to recommence and continue the supply of electrical power to the company as soon as possible after any such failure.
[16] The nature and extent of the Crown’s undertaking is recorded at cl 27 of the
1963 Agreement (set out in the Schedule to the MTADA):
The Crown will take all such action as may be necessary to validate this agreement, the Crown’s operations and the Company’s rights hereunder (including but not without limiting the generality of the foregoing any authorisation which may from time to time be necessary or expedient under the provisions of any Act) and this agreement shall take effect from the date on which it is declared by Act of the General Assembly of New Zealand in Parliament assembled to be valid and binding in all respects and to have full force and effect according to its tenor.
The legislation
MTADA
[17] The preamble refers to the 1963 Agreement and states:
And where as it is necessary to validate the agreement first hereinbefore mentioned and to authorise and empower the Minister to carry out and perform the terms of and otherwise implement that agreement.
[18] Section 3 validates the 1963 Agreement in the following terms:
3 Validating agreement
(1) The agreement is hereby declared to be valid and binding in all respects and to have full force and effect according to its tenor.
(2) The Minister on behalf of Her Majesty the Queen shall be deemed to have been duly empowered to enter into and execute the agreement and to confer on the Company the rights specified therein.
…
[19] Section 4 is recorded at [2] and s 4A contemplates that the Minister will promulgate binding operating guidelines for the levels of Lakes Manapouri and Te Anau based on recommendations by the Guardians of Lakes Manapouri and Te Anau, and Meridian “aimed to protect the existing patterns, ecological stability, and recreational values of their vulnerable shorelines and to optimise the energy output of the Manapouri power station.”
[20] Section 5 requires that Meridian must consult:
5 Preservation of natural scenery and fishery
Before exercising any power conferred on him by section 4 within the
Fiordland National Park, the corporation shall consult-
(a) the Minister of Conservation on the measures to be taken with a view to preserving natural scenery that may be affected by the exercise of the power:
(b) the Minister of Conservation on measures to be taken to minimise any adverse effects on the trout fishery in Lakes Manapouri and Te Anau that may result from the exercise of the power.
[21] The Act is deemed by s 6 to be a special Act within the meaning of s 18 of the Public Works Act 1928, and s 7 prohibits the grant of a mining permit to any person over, in short, the lakes, rivers and tributaries subject to the scheme’s operation.
[22] Section 8 is recorded at [3].
The RMA
[23] The RMA provides a comprehensive framework for the regulation of the use of land, water and air. It signalled a major change from the direct and control emphasis of the previous planning regime to the sustainable management of resources,3 with its composite objective of enabling people and communities to provide for their wellbeing while, among other things, mitigating, avoiding or remedying adverse effects on the environment. The Act is carefully framed to
provide control of the effects of resource use, including regulatory oversight given to functionaries at national, regional and district levels.4 In general terms, all resource
use is amenable to its framework, unless expressly exempted from consideration.5
3 Resource Management Act 1991, s 5. But note that the Supreme Court in Environment Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593 recently emphasised that an overall assessment under s 5 may not be appropriate in circumstances where clear national policy directives apply.
4 For a comprehensive review of the overlapping roles of functionaries under the RMA see Royal Forest and Bird Protection Society of New Zealand Inc v Buller Coal Ltd [2012] NZHC 2156, (2012) 17 ELRNZ 220.
5 For example, the effects of greenhouse emissions: West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 87, [2014] 1 NZLR 32.
[24] Sections 9(1) and (3), 10, 10A, 13, 14 and 20A have most relevance to the present issue.
[25] Section 9 in short, restricts land use activity unless it is specifically authorised in a manner contemplated by the section. It states:
9 Restrictions on use of land
(1) No person may use land in a manner that contravenes a national environmental standard unless the use—
(a) is expressly allowed by a resource consent; or
(b) is allowed by section 10; or
(c) is an activity allowed by section 10A; or
(d) is an activity allowed by section 20A. (2) …
(3) No person may use land in a manner that contravenes a district rule unless the use—
(a) is expressly allowed by a resource consent; or
(b) is allowed by section 10; or
(c) is an activity allowed by section 10A. (4) …
(5) This section applies to overflying by aircraft only to the extent to which noise emission controls for airports have been prescribed by a national environmental standard or set by a territorial authority.
(6) This section does not apply to use of the coastal marine area.
[26] Section 10 then protects certain existing uses as follows:
10 Certain existing uses in relation to land protected
(1) Land may be used in a manner that contravenes a rule in a district plan or proposed district plan if—
(a) either—
(i) the use was lawfully established before the rule became operative or the proposed plan was notified; and
(ii) the effects of the use are the same or similar in character, intensity, and scale to those which existed before the rule became operative or the proposed plan was notified:
(b) or—
(i) the use was lawfully established by way of a designation;
and
(ii) the effects of the use are the same or similar in character, intensity, and scale to those which existed before the designation was removed.
(2) Subject to section 357 to 358, this section does not apply when a use of land that contravenes a rule in a district plan or a proposed district plan has been discontinued for a continuous period of more than 12 months after the rule in the plan became operative or the proposed plan was notified unless—
(a) an application has been made to the territorial authority within 2 years of the activity first being discontinued; and
(b) the territorial authority has granted an extension upon being satisfied that—
(i) the effect of the extension will not be contrary to the objectives and policies of the district plan; and
(ii) the applicant has obtained approval from every person who may be adversely affected by the granting of the extension, unless in the authority's opinion it is unreasonable in all the circumstances to require the obtaining of every such approval.
(3) This section does not apply if reconstruction or alteration of, or extension to, any building to which this section applies increases the degree to which the building fails to comply with any rule in a district plan or proposed district plan.
(4) …
(5) Nothing in this section limits section 20A (certain existing lawful activities allowed).
…
[27] Section 10A deals with the surface of water. The effect of this section is, in short, to require existing lawful uses of the surface of water to obtain resource consent within six months of a District Plan rule requiring a consent becoming operative or a similar proposed rule taking legal effect. The existing use must also be lawfully established and the character, scale and intensity of the effects of the use
must be similar to those that existed before the rules became operative or took legal effect.
[28] Section 13 then requires consent for uses of lake beds unless expressly allowed by a national environmental standard or a rule in a regional plan or is an activity allowed by s 20A.
[29] Section 14(2) and (3) prohibits the use of water unless authorised by an environmental standard, regional rule or resource consent. Given its significance I record those subsections here:
14 Restrictions relating to water
(1) …
(2) No person may take, use, dam, or divert any of the following, unless the taking, using, damming, or diverting is allowed by subsection (3):
(a) water other than open coastal water; or
(b) heat or energy from water other than open coastal water; or
(c) heat or energy from the material surrounding geothermal water.
(3) A person is not prohibited by subsection (2) from taking, using, damming, or diverting any water, heat, or energy if—
(a) the taking, using, damming, or diverting is expressly allowed by a national environmental standard, a rule in a regional plan as well as a rule in a proposed regional plan for the same region (if there is one), or a resource consent; or
[30] Section 20A however provides temporary dispensation for existing water use provided the use was lawfully established and its effects use are the same or similar in character, intensity and scale to the effects before the relevant controlling rule became operative or the proposed rule took legal effect. A consent must then be sought within six months of a rule becoming operative.
[31] It will be seen that this collection of sections broadly contemplates that the use of resources must be lawfully authorised under the RMA or, if otherwise authorised, the effects of the activity must be of the same scale, intensity, character
etc that existed prior to a relevant standard under the RMA took effect. I address the significance of this below at [39].
[32] It is also relevant to observe that the RMA does not expressly purport on its face to remove any existing statutory authority pursuant to s 9. Rather, it includes a raft of provisions specifically providing for the saving, amendment or repeal of empowering legislation and transitional provisions, and any permissions granted under them. Sections 383 and 386 of the RMA are particularly relevant here. They state:
383 Existing permissions to become land use consents
Every permission—
(a) granted under any of Parts 2, 4, and 5 of the Town and Country Planning Act 1977 (or the corresponding provisions of any former enactment) in respect of any area in a district; and
(b) in force immediately before the date of commencement of this
Act—
shall be deemed to be a land use consent granted under this Act on the same conditions (including those set out in any enactment whether or not repealed or revoked by this Act, except to the extent that they are inconsistent with the provisions of this Act) by the appropriate territorial authority; and the provisions of this Act shall apply accordingly.
386 Existing rights and authorities under Water and Soil Conservation
Act 1967
(1) Except as provided in subsections (2) to (7),—
(a) every right—
(i) granted under section 21(3) of the Water and Soil
Conservation Act 1967; or
(ii) deemed to be so granted by virtue of section 58(1) of the
Water and Soil Conservation Amendment Act 1988; or
(iii) referred to in subparagraph (vii) of section 365(d)—
(in this section called an existing right); and
(b) every authority under section 21(2) or section 21(2A) of the Water and Soil Conservation Act 1967 (in this section called an existing authority); and
(c) every right—
(i) referred to in section 21(1) of that Act that was granted during the period commencing on 10 September 1966 and ending with 31 December 1968; or
(ii) expressly authorised by any other Act (other than the Tasman Pulp and Paper Company Enabling Act 1954) or Provincial Ordinance before the passing of that Act in respect of any specified water; or
(iii) referred to in subparagraphs (vi) or (viii) of section 365(d);
or
(iv) deemed to be granted under section 21(3) of the Water and Soil Conservation Act 1967 by virtue of section 25(2)(d) of the Water and Soil Conservation Amendment Act (No 2)
1971—
(in this section called an existing authority)—
[33] It will be seen that s 386(1) expressly incorporates every water right expressly authorised by any other Act. No equivalent provision incorporates a land use right authorised by any other Act.
The arguments
Meridian
[34] Mr Goddard QC for Meridian made the following submissions (in summary): (a) The full power and authority conferred by s 4 of the MTADA to
construct and then operate the MPS is not compatible with the power to require and then refuse resource consent for those matters under the RMA.
(b)More specifically, the requirement at s 9 of the RMA requiring resource consent for MPS’s activities is irreconcilable with the clear power and authority conferred by s 4 to undertake those activities.
(c) Section 4 of the MTADA should take precedence having regard to the text, purpose and context of the respective statutory provisions. This is evident from the plain language of s 4 and its reference to “full power and authority” and the statutory directive at s 8 that the
provisions of the MTADA and of the agreement “shall have effect
notwithstanding anything to the contrary in any other enactment”.
(d)The statutory purpose is equally clear, emphasising the special nature of the MTADA, namely to validate the 1963 agreement and to authorise and empower the Minister to carry out and perform the terms of the agreement.
(e) The terms of the agreement reinforce the special character of the MTADA, being an agreement to secure the construction of the MPS and the supply of electricity to a proposed aluminium smelter for a period of 100 years.
(f) The MTADA gives effect to the Crown’s commitment at cl 27 of the
agreement.
(g)By contrast, the RMA is an Act of general application to land use activities, broadly directed to the achievement of the sustainable management purpose. The Act does not, however, expressly address the powers and/or authority conferred by s 4 of the MTADA and this can be drawn in contrast to the RMA’s treatment of other special legislation empowering hydroelectric schemes, including the repeal of the Clutha Development (Clyde Dam) Empowering Act 1982.
(h)The ordinary application of the RMA regime to the land use activities of MPS would directly derogate from the power and authority conferred by s 4 of the MTADA and the commitment made by the Crown to implement the agreement. The operation of the MPS would be made subject to the discretionary powers of the SDC with the potential for significant fetters on the operation of the MPS.
(i)Provisions protecting existing use rights, including transitional provisions, provide little, transient or no protection in terms of the ongoing operation and upgrading of the MPS. For example, there are
no existing use rights or transitional provisions for the construction and use of structures in a riverbed under the RMA. Section 13(1) of the RMA states that no person may in relation to the bed of a local river use, erect, reconstruct, place, alter, extend, remove or demolish any structure in, on, under or over the riverbed.6 Section 418, dealing with certain permitted uses, then does not provide a clear recognition of the authorisation conferred by the MTADA for the purposes of the MPS.
(j)Given the clear and express words used in the MTADA, including the statutory direction at s 8, as compared to the generalised and ambiguous protections afforded by the RMA, s 4 of the MTADA should be interpreted to take precedence over s 9 of the RMA and other provisions which may derogate from the enablement of the land use activities associated with the MPS.
(k)It is accepted that the water based activities may fall in a different category given the express language at s 386(1)(c)(ii) in the specific reference there to rights conferred by “any other Act” being deemed to
be “existing authorisation” and thus subject to the RMA framework.
SDC
[35] Mr Slowley responded (also in summary);
(a) Section 9 of the RMA and s 4 of the MTADA are not incompatible.
(b)The primary purpose of the MTADA was to confer authority to be upon the Crown for the purposes of enabling the MPS in a National Park.
(c) The focal point of concern at the time of the enactment of the
MTADA was the protection of the attractiveness of the National Park and that was secured by the limited provision for such matters at s 4A.
6 Refer Resource Management Act 1991, s 13(1), above at [28].
(d)The powers and authorities conferred by s 4 should be informed by the immediate context of MTADA’s promulgation, namely at a time when the Crown was not subject to town planning legislation.
(e) More specifically, there was no need to obtain planning permission and there was no formal administrative unit of local Government in Fiordland. Furthermore, the MPS was to be erected almost entirely within the Fiordland National Park, so the only applicable regulation was derived from the National Parks Act 1952.7
(f) In contrast the RMA, enacted some 36 years after the passage of the MTADA, represented a comprehensive reform of the law relating to use of land, air and water and, unlike previous planning legislation, was binding on the Crown. It represented a major change therefore in the approach taken by Parliament to the regulation of land use activities.
(g)The RMA nevertheless provides broad protection of existing land use rights, including all works already completed in order to implement the 1963 agreement and their usual maintenance. This means that the RMA land use regime does not derogate from the primary purpose of MTADA.
(h)Only new works with appreciably different effects fall outside the existing use rights protections with the result that any resource consenting requirements are not contrary to either the objective of the agreement or the powers and authorities conferred by the MTADA, that is to implement the 1963 Agreement.
(i)The direction at s 8 of the MTADA must also be read in context, namely that the purpose of the MTADA was to validate and
7 Section 3(i) of the National Parks Act 1952 stated:
It is hereby declared that the provisions of this Act shall have the effect for the purpose of preserving in perpetuity as National Parks, for the benefit and enjoyment of the public, areas of New Zealand that contain scenery of such distinctive quality or natural features so beautiful or unique that their preservation is in the national interest.
implement the 1963 agreement. It does not to expressly exclude the future application of regulatory legislation that is not inconsistent with the validation and implementation objective. Notably, the potential for the requirement to obtain other authorisations is specifically contemplated at cl 27 of the 1963 agreement (as noted above at [16]).
(j) Furthermore, to the extent that the RMA’s reach is limited, such
limitations are provided for expressly.8
Approach to Interpretation
[36] I commence the interpretative task with the text, informed by the purpose,9 and context,10 including the scheme of the Acts.11 I also note that it is not part of the judicial task to re-script clear statutory language.12 I will first seek to reconcile the enactments but if I cannot so this, I will examine which of the enactments should
prevail. Ultimately I approach the interpretation on the basis that I should prefer a result that best gives vent to the statutory language in light of its purpose.
Resolution
Text, purpose and context
[37] I have essayed the relevant enactments at [2]-[4], [17]-[33].
[38] The MTADA is a special Act of Parliament validating and implementing an agreement executed by the Crown. Commitments made in the agreement have been discharged by the Crown and Comalco, the contracting party, in reliance on the agreement and the validating legislation. The Act’s purpose was, and is, enabled in
very broad and largely unqualified terms by s 4, and was in fact achieved through the
8 For example, s 9(3) of the RMA does not apply to any work or activity by the Crown within areas managed under the Conservation Act 1987.
9 Interpretation Act 1999, s 5, Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR 767 at [24].
10 McGuire v Hastings District Council [2002] 2 NZLR 577 (PC).
11 Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597 at [6].
12 JF Burrows and RI Carter Statute Law in New Zealand (4th ed, LexisNexis, Wellington, 2009) at
226; See also Commissioner of Inland Revenue v Auckland Harbour Board [2001] UKPC 1, [2001] 3 NZLR 289; Robinson v Accident Compensation Corporation [2007] NZAR 193 (CA).
construction and ongoing operation of the MPS. Reinforcing the solemn commitment made by the Crown, s 8 of the MTADA is then a clear statutory direction that the provisions of the Act and the 1963 Agreement assume primacy over conflicting enactments. Contrary to Mr Slowley’s submission, the MTADA in plain words authorises MPS’s land use activities for all purposes (though Meridian accepts that the Building Act 2004 applies). There is no reason to refer to context given the plain language, but in any event, it is clear that the Crown sought to secure the construction and ongoing operation of the MPS without regulatory impediment. This is recorded in the preamble to the MTADA noted at [17] above.
[39] The RMA is an Act of general application on resource management matters, with the object of achieving sustainable management. The broad regulatory scope of the Act is exemplified at ss 9-15. As noted, these sections collectively require all activity affecting land, water and air to be lawfully authorised in specified ways. The text of s 9(3) prohibits the use of “land in a manner that contravenes a district rule” unless it is authorised by resource consent or it is a qualifying use pursuant to s 10 or
10A. Under those sections a qualifying use must have been “lawfully established before the rule became operative or the proposed plan was notified” and “the effects of the use are the same or similar in character, intensity, and scale to those which existed before the rule became operative or the proposed plan was notified.” The
RMA refers to these uses as existing uses.13
[40] Section 10(2) excludes a contravening use that has been discontinued for more than 12 months.14 Section 10(3) also excludes from existing use “reconstruction or alteration of, or extension to, any building” to which s 10 applies. Sections 13 and 20A then have similar effect in terms of the use of the bed of any lake or river, except that any use that has been discontinued for six months is excluded. The combined effect of the natural meaning of these sections is that any MPS activities that do not comply with a rule in the Southland District Plan (SDP)
must be authorised by resource consent or qualifies as an existing use.
13 Refer the title to the Resource Management Act 1991, s 10.
14 In Rodney District Council v Eyres Eco-Park Ltd [2007] NZCA 13, (2007) 13 ELRNZ 157 the Court of Appeal adopted a sinking lid approach to existing use so that the scope of the existing use right is fixed by reference to the low point of any contravening activity.
[41] Resource consent is defined at s 87 of the RMA as a “consent to do something that otherwise would contravene ss 9 or 13 (in this Act called a land use consent)”. Consent is not defined and it is not obvious that “consent” refers to existing statutory land use authorisation, though there is nothing in the Act to exclude it. But it is evident from the detailed scheme of the RMA that it refers to consents granted under the RMA or the Town and Country Planning Act 1977
(TCPA).15 I therefore assume (and it was not argued otherwise) that the MTADA
authorisation is not a resource consent for the purposes of ss 9 or 87.
[42] Existing uses are defined by the requirement for lawful authorisation and an existing envelope of effects (ie character, intensity and scale). MPS existing land use activities fall within this description. Future MPS activities may or may not qualify. Whether they do or not will depend on the assessment of effects of the proposed activity. Some evolution of activity is permissible.16 I understand that the new ventilation shaft is unlikely to meet the requisite threshold test, as the scale of the effects of proposed shaft is appreciably larger than the status quo. I also understand that the proposed alteration would increase the non compliance with the SDP.17
[43] Accordingly, the prohibitive effect of s 9(3) of the RMA is prima facie inconsistent with s 4 of the MTADA to the extent that any MPS activity that “is necessary or requisite for or in relation to” the activities listed at s 4(1)(a)(i)-(iii) of the MTADA does not qualify as an existing use for the purposes of the RMA. The proposed ventilation shaft is therefore not likely to qualify.
Can s 4 of the MTADA and s 9 of the RMA be reconciled?
[44] The two enactments are largely reconcilable in relation to existing MPS
activities. But there are various points of potential conflict, including:
(a) Alterations to built form that increase the degree to which the built form contravenes a rule in the SDP is not permissible. This cap on the
15 Refer Resource Management Act 1991, s 383.
16 Attorney-General ex rel Mundy v Cunningham [1974] 1 NZLR 737 (SC) at 741-742; Russell v
Manukau City Council [1996] NZRMA 35 (HC).
17 Rule FDL.3 of the SDP provides that the erection of a building structure in the Fiordland
Resource Area is a discretionary activity.
envelope of the building is irreconcilable with the enabling power in s
4 of the MTADA to “erect…all works” necessary to generate electricity, unless s 4 is read to enable only the initial construction. But it is clear that s 4 enables the ongoing operation of the MPS, given its purpose to secure the supply of electricity for 100 years.
(b)The loss of existing use status for elements of the scheme that are discontinued for periods of 12 months for land use and 6 months for water use. It is not possible to isolate those parts of the scheme that might be affected, but a sinking lid approach to a large hydroscheme is disenabling if relevant parts of the scheme are temporarily decommissioned for the specified periods.
(c) Any operational change requiring additions or alterations, to the built form that increases the scale of the effect of the built form, is not permissible under s 10(3) or s 13 of the RMA.
[45] This is not a complete list of potential areas of conflict, but they illustrate that if ss 9(3) and 13 of the RMA strictly apply to the MPS, the enabling power at s 4 would need to be qualified. More specifically, a resource consent could be required for “requisite” land use activities that are subject to ss 9(3) and 13 of the RMA. Mr Slowley makes the cogent submission that, of necessity, the analysis is going to be one of fact and degree and it may be that an existing use certificate under s 139 of the RMA would be granted for the ventilation shaft. But it is the exposure to a discretionary assessment per se that creates the irreconcilable conflict. I turn then to examine whether s 4 of the MTADA prevails over ss 9(3) and 13 of the RMA.
Does s 4 MTADA prevail?
[46] Yes. First, this Court should be slow to impute to Parliament an intention to derogate from solemn undertakings given by the Crown that are expressly affirmed
by legislation.18 The beneficiaries of the 1963 agreement must legitimately expect in light of s 4 (supported by s 8) strict adherence to its terms. Those expectations ought not to be disappointed except by unambiguous statutory language.
[47] Second, the RMA has wide application but it is not a comprehensive code in relation to land use activity. There are various specified exceptions (including the Crown in terms of activities in National Parks)19 and to the extent that the RMA purports to revoke or amend other Acts it has done so expressly. The MTADA is not one of the Acts listed for amendment or revocation in relation to land use.
[48] Third, the unambiguous direction at s 8 of the MTADA that the “Act and the agreement shall have effect notwithstanding anything to the contrary in any other enactment” provides firm guidance of legislative intent when dealing with a subsequent enactment of general application. Parliament could be expected to make clear any intention to derogate from this directive. While this direction cannot bind future Parliaments, it is binding on this Court unless there is an equally clear statutory direction otherwise. Notably the Clutha Development (Clyde Dam) Empowering Act 1982 (expressly repealed by the RMA) included a comparable provision to s 8 of the MTADA.
[49] Fourth, s 9 of the RMA does not purport to incorporate existing statutory land use authorisations into the RMA regime or otherwise extinguish them. On the
contrary, the clear objective of s 9 is to make unauthorised non-compliant activity
18 The general reluctance of the Court to permit this type of derogation was illustrated by Richardson J when dealing with s 9 of the SOE Act 1986 in New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA) [SOE case] at 680:
Third, rather than viewing s 9 as a provision outwardly raising expectations then
dashing them by a process of inference from other provisions, its true function in the Act should be recognised as constituting a general proscription of any conduct in breach of the principles of the Treaty and as such being a governing consideration in the exercise of the powers under s 23, with s 27 then being seen as specific machinery for dealing in due time with such land held by State-owned enterprises. (New Zealand Maori Council v Attorney General [1987] 1 NZLR 641 (HC & CA) [SOE case] at 680 per Richardson J.)
An extension of this principle was stated by Lord Woolf in New Zealand Maori Council v
Attorney-General [1994] 3 NZLR 140 (CA) [Broadcasting Assets case] at (525):
The assurance once given creates the expectation, or to use the current parlance the “legitimate expectation”, that the Crown would act in accordance with the assurance, and if, for no satisfactory reason, the Crown should fail to comply with it, the failure could give rise to a successful challenge on an application for judicial review.
19 Resource Management Act 1991, s 4.
subject to RMA assessment. It is not overtly directed to making unlawful that which is lawfully authorised. This is best illustrated by the exemption of activity that is expressly allowed by resource consent, including deemed consents granted under the TCPA. By contrast, ss 10A and 14 expressly makes water use unlawful without consent. Section 386(1)(c)(ii) of the RMA then clearly incorporates water rights “expressly authorised by any other Act” into its framework. This reflects the strong policy of the RMA to make water use subject to the Act’s sustainable management
purpose.20
[50] Fifth, it would be remarkable if a building authorised by a simple land use consent under the TCPA is exempt from ss 9(3) and s 10(3) of the RMA, while a special Act of Parliament expressly enabling the construction (including alteration) and ongoing operation of the MPS is not sufficient authorisation. Conversely, it appears reasonable to apply to this case the principle that general provisions do not
derogate from specific ones.21 Viscount Haldane put it simply and with respect aptly:
22
Individual rights arising out of individual treatment are presumed not to have been intended to be interfered with unless the contrary is clearly manifest.
[51] Sixth, the scope of the powers conferred by s 4 of the MTADA is not unfettered. The relevant works must be “necessary” or “requisite”. I accept Mr Goddard’s submission that this is something more than desirable. It expresses a legislative intention that the works must be no more than those that are necessary to implement the 1963 agreement. The balance of considerations provided for at s 4A when dealing with conservation management of the Lake and tributaries emphasises the importance of environmental considerations. Section 4 must also be interpreted
in light of circumstances as they arise, including the Crown’s subsequent
20 Refer s 14(2) RMA, noted at [29] above. Nothing I say here should be taken to mean that I have concluded that the MPS’s water use activities require consent. That requires a more detailed examination of the MTADA as it relates to those activities not undertaken by me.
21 There is a good analogue to Miller v Minister of Mines and Attorney-General [1961] NZLR 820 (CA) involving the overlapping application of the Mining Act 1926 and the Land Transfer Act
1952 so that a mining privilege survived change of ownership of the land. See also discussion
JF Burrows and RI Carter Statute Law in New Zealand (4th ed, LexisNexis, Wellington, 2009) at
457.
22 Corporation of Blackpool v Starr Estate Co Ltd [1922] 1 AC 27 (HL) at 34.
commitment to sustainable management.23 Given the national significance of the affected environment,24 it may also be that economic efficiency alone does not provide a sufficient basis in terms of need for the scale of the works.25 A corollary of this is that the requirement for necessity impliedly limits the potential extent of
lawful departure from the sustainable management purpose of the RMA.
[52] For completeness, I do not accept Mr Goddard’s concerns about an apparent lack of transitional provisions enabling the ongoing operation of the MPS. But for the unequivocal undertakings given by the Crown, as validated by the MTADA (including the immunity from contravening enactments afforded by s 8), I would have found that the RMA provided a transitional scheme to incorporate the MPS into the RMA. In short, ss 10 and 20A dealing with existing use rights, s 386 dealing with existing water rights and s 418 (as at 1991) and 418(3B) (as at 1993) provide a seamless mechanism by which existing legality is preserved and an opportunity to regularise relevant activities under the auspices of the RMA is afforded.
Outcome
[53] Section 9(3) of the RMA does not apply to land use activities that are necessary or requisite to operate the MPS pursuant to s 4 of the MTADA. Section
9(3) does, however, apply to all other MPS land use activities.
[54] While the parties appear to have reached agreement about the need for the ventilation shaft, I consider that the issue of whether the ventilation shaft is necessary and requisite for the purposes of s 4 of the MTADA should be re-examined in light of my observation at [51].
[55] If a declaration is required by the parties, they may file draft wording for my consideration, preferably before 5 pm, 17 December 2014 or a later date suitable to
the parties.
23 Interpretation Act 1999, s 6.
24 Doubtful Sound is plainly a landscape of outstanding natural character and a matter of national importance pursuant to s 6 of the RMA.
25 To borrow from RMA case law – McGuire v Hastings District Council [2002] 2 NZLR 577 (PC).
Costs
[56] I understand that by agreement costs are to lie where they fall. Submissions may be filed if necessary.
Solicitors:
Meridian Energy Limited, Wellington
B J Slowley, Invercargill
5
3
0