Note Meridian Energy Ltd v Central Otago Distict Council HC Dunedin Civ-2009-412-980
[2010] NZHC 2458
•10 November 2010
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NOTE 5
Meridian Energy Ltd v Central Otago Distict Council
High Court Dunedin CIV-2009-412-980 10
10 November 2010
Chisholm and Fogarty JJ
Resource management – Resource consents – Wind farm – Effıcient use and development of natural and physical resources – Whether consent authority 15 required to consider alternative locations – Whether comprehensive and explicit cost-benefit analysis of proposal could be required – Resource Management Act 1991, ss 7(b), 32, 88 and 104(1)(c) and sch 4, cl 1(b).
Resource management – Resource consents – Whether having regard to effects
of climate change includes considering causes of climate change – “Climate 20
change” – Resource Management Act 1991, s 7(i) – Climate Change Response
Act 2002.
Practice and procedure – Trial – Decision of Environment Court based on approach in another case decided after hearing – Whether Court should have heard further from parties before adopting that approach – Whether breach of 25 natural justice.
CHISHOLM AND FOGARTY JJ [1] In the judgment of this Court delivered on 16 August the last matter was referred back to the Environment Court for reconsideration in accordance with directions, which were set out at [148]. At [149] we reserved leave for the parties to seek clarification of any of 30 the directions.
All parties, with the exception of the fourth, eighth and tenth respondents, have now agreed upon some additions to the directions.
The parties supporting these amended directions have also invited us to strike out the fourth and eighth respondents with no costs arising. The fourth 35 respondent is no longer in existence. The eighth respondent is no longer a participant in these proceedings in this or any other court. They are struck out
as parties with no costs arising.
The application for amendment of the directions and the proposal of strike out of the fourth and eighth respondents has been served on the tenth 40 respondent, Mr Sullivan. His was a cross-appeal on a climate change point. We
do not consider he is affected by either the request for amendment of the directions (none of which apply to his point) or to the strike out of the fourth and eighth respondents. Accordingly, we agree with the submission that he is
not affected by these issues. He does not need to be heard. There is no reason 45 to delay this judgment.
We consider that the additions fit the criterion of clarification.
[6] Specific directions for the Environment Court’s reconsideration of the matter as at [148] of the original judgment are amended to be as follows:
(a) Meridian is to be given a reasonable opportunity to present further evidence on the question of alternative locations, including reference
to the District Plan and Proposed District Plan categorisation of the landscape qualities of possible alternative locations. The respondents are also to be given a reasonable opportunity to call evidence in response to Meridian’s evidence.
(b) Once any further evidence has been presented all parties are to be
given a reasonable opportunity to present further submissions about the evidence referred to in (a), as well as the overall implications of this decision for the findings and conclusions reached by the Environment Court.
(c) Meridian is not obliged to go beyond a description of any possible
alternative locations for undertaking the proposed wind farm (in terms of cl 1(b) of sch 4). As indicated at [93] these locations will need to be within the the Central Otago District Council district. Given the size of the Meridian proposal and its potential impact on the environment, we anticipate that a reasonably detailed description of
alternative sites would be provided by Meridian.
(d) Any further evidence concerning alternative locations will form part of
the Court’s Resource Management Act 1991 (the RMA) s 104 analysis of the Meridian proposal (not part of the RMA s 7(b) assessment). The inquiry will be whether, if the same or a similar wind farm could
be placed on any identified alternative site/s, it would generate less adverse effects on the environment. The description of effects undertaken for the alternative site/s does not have to be to the same level as for the subject proposal and site. That consideration will, however, need to be weighed against any diminution in the benefits of
the project (for example, poorer quality of mean wind velocity, distance from the grid and so on), and any other relevant considerations such as the availability of the alternative site/s to Meridian.
(e) As the Environment Court acknowledged, and our analysis of the
other wind farm cases demonstrates, consideration of alternative sites is relatively unusual. While it will be for the Environment Court to undertake any further analysis of the evidence before it, we emphasise that consideration of alternative sites should not be pushed too far. The Environment Court is not to devise alternatives to the project. We have
rejected the proposition that Meridian must demonstrate that its project has greater net benefits than any other project and that the Hayes site is “the best”. Rather than being a search for “the best” site, consideration of alternative sites is only part of the evaluation of the merits of the application in the context of s 104 and the focus needs to
be on the merits of Meridian’s proposal.
(f) The Court is also to reconsider the application of the efficiency
criterion on the basis that s 7(b) requires an assessment of the efficient use and development of the natural and physical resources involved in the application, namely, the wind and the land. In other words, the
Environment Court is to apply the s 7(b) test utilised in the other wind farm cases in which s 7(b) has featured. There is no obligation under
s 7(b) upon Meridian to internalise the effects of this project, and there is no requirement to attempt to quantify the effects of the project in monetary or societal value terms.
(g) Given the opportunity that is now available for the Court to receive
further evidence about whether the Mahinerangi wind farm project is 5 likely to proceed, the parties will also be entitled to present further evidence to the Environment Court on that topic.
(h) Nothing that we have said is intended to indicate that the Environment Court is precluded from utilising the cost-benefit findings that it reached as part of its s 104 evaluation. However, that evaluation is not 10 to penalise Meridian for failing to provide non-market valuation evidence in relation to landscape or heritage values. The effects of the proposal on matters such as recreation, heritage and landscape may be assessed by qualitative rather than quantitative methods.
(i) The parties will also be entitled to make submissions about any 15 conditions that might be lawfully imposed by the Environment Court
to avoid, remedy or mitigate adverse effects on the environment if the application is granted. The Court will also have power to impose such conditions.
Given that this judgment reflects an agreement by counsel for the other 20 parties there will be no order for costs.
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