Contact Energy Ltd v Managatu-Wanganui Regional Council
| Jurisdiction | New Zealand |
| Judge | Judge C J Thompson,H M Beaumont,W R Howie |
| Judgment Date | 20 October 2010 |
| Neutral Citation | [2010] NZEnvC 406 |
| Docket Number | ENV-2009-WLG-000087 |
| Court | Environment Court |
| Date | 20 October 2010 |
In the Matter of an appeal under s 120 of the Resource Management Act 1991
Decision [2010] NZEnvC 406
Principal Environment Judge C J Thompson
Environment Commissioner H M Beaumont
Environment Commissioner W R Howie
ENV-2009-WLG-000087
BEFORE THE ENVIRONMENT COURT
Appeal against decision declining applications for land use resource consents and water permits. Appellant needed resource consent to establish and operate a windfarm — proposal had been significantly modified since original decision to avoid or mitigate adverse effects to an acceptable standard. The Council supported the modified proposal but some s274 parties contended that the proposal would still result in unacceptable adverse effects on landscape values — whether the modified proposal complied with all relevant sections of the Resource Management Act 1991.
M E Casey QC, P T Beverley and D G Allen for Contact Energy Ltd
M F McClelland and P D Tancock for Waitahora-Puketoi Guardians Inc and other s274 parties
J W Maassen and B A Pearse for the Manawatu-Wanganui Regional Council
S E Curran for the Tararua District Council
Decision issued: 26 NOV 2010
The appeal is allowed and the Decision of the Councils' Commissioners is not upheld
Costs are reserved
The Manawatu-Wanganui Regional Council and the Tararua District Council jointly appointed Commissioners to hear and decide upon applications by Contact Energy Limited for resource consents to enable it to establish and operate a windfarm on the Puketoi Range, to be known as the Waitahora windfarm. There were applications to the Regional Council for land use resource consents and for water permits. The application to the District Council was for a land use consent. In a decision delivered on 1 April 2009 the Commissioners declined all of the applications, This proceeding is an appeal by Contact against that decision.
The proposal now before the Court, significantly modified since the Commissioners' decision is, depending on the final choice of turbine, for alternatives of 58 turbines up to 125m high, or of 52 turbines up to 150m high. In either case there will be associated pads and foundations and, again depending on the final choice of turbine, possibly an external transformer at the base of each turbine with approximate dimensions of 2.5m(W) x 2.5m(H) x 4m(L). Additionally, there will be some 30 km of internal access roads; an electricity substation located near the centre of the site; 33 kV electricity reticulation from the turbines to the substation (by underground cable where practical); a borrow pit for the obtaining and processing of aggregate for the project; a construction water take; a concrete batching plant for the construction phase; spoil disposal sites, and storage/laydown areas, site offices and other ancillary facilities.
The reason for the different turbine numbers is that if the smaller turbines are chosen then it may be possible to install more of them within the same overall footprint.
The application does not specify exact proposed locations for the turbines or of the earthworks on the overall site. Rather, consent is sought to allow earthworks to be undertaken within an area defined as the Earthworks Consent Area (ECA) and for the turbines to be positioned within smaller areas designated Turbine Consent Areas (TCAs). The centre of each turbine tower must be located within a TCA and all earthworks must be located within the ECA. Since the application was made to the Councils, refinements of the proposal have reduced the total areas of the TCAs by 73% percent and of the ECA by 58% percent. The decision to make the application in that way arose partly as a result of no decision having yet been made as to the type of turbine to be installed and also of the need to undertake further geotechnical investigations to establish precise ground conditions for the foundation for each turbine, and for the roading and laydown areas.
The nominal total site size is now some 2700ha, spread along 9km of the western slopes of the Puketoi Range at its northern end. Construction earthworks will occupy some 100ha (ie 3.7% of the total area) and the finished installations will occupy about 50ha, once site rehabilitation is complete. The volume of earthworks now proposed is to be a little less than 1x10 6m 3, reduced from the 1.3x10 6m 3 in the original proposal, a reduction of 23%. Approximately half of the cut earthworks will be used as construction fill, with the remainder being placed in the soil disposal areas. Most of the windfarm is proposed to be built on farmland held by Waewaepa Station (2002) Ltd, with six turbines on a smaller piece of land, known as the Coonoor Property and owned by the A D B Williams Charitable Trust, at the southern end of the site.
The Puketoi Range has a total length of about 40km and runs north-east and south-west, reaching a height of some 800m. Some 4km to its west and running parallel to it is the Waewaepa Range and west of that again is the wide valley containing the towns of Woodville and Pahiatua, with SH 2 running up from the Wairarapa and the Manawatu Gorge towards Dannevirke, which is some 20km north-west of the site. The Waewaepa Range shields views of the site from the west. Access to the area is provided primarily by Waitahora Road, which runs approximately north-east/south-west along the valley floor between the two ranges, and by Waitahora Valley Road running approximately east/west to the north of the site.
The east coast of the North Island is some 30km to the east of the range, across steep broken country. The area surrounding the site is sparsely populated. The closest communities are Horoeka and Weber, respectively some 7km and 10km away to the east, with Makuri and Pongaroa some 13km to the south. The area is relatively remote, but not so much so as to be regarded as wilderness. There are 43 dwellings within 5km of the boundaries of the proposed site.
The Puketoi Range is a cuesta — once sea floor, now upthrust and folded by tectonic plate movement, and comprised of limestones and siltstones, underlain by mudstone of low permeability. It has a sharply defined and steep eastern scarp some 200 – 300m high, while the western dipslope is much less steep, although variable along its length. The southern and northern extremities of the range (the latter being the site of the proposal) are flatter, to the point of resembling somewhat knobbly plateaus. The geomorphology of the Range and the site is largely karst, a term describing landforms developed on limestones and predominantly formed by the dissolution of the water-soluble rock. Karst landscapes are characterised by sinking streams, underground rivers, caves, dry valleys, enclosed depressions, fluted rock outcrops and springs. We are told that karst landscapes are relatively uncommon in New Zealand, although they are something of a feature of the east coast of the North Island. The best known are at Waitomo, and the marble rocks of Mounts Arthur and Owen in northwest Nelson. The karst formations on this Range are relatively young in geological terms.
The present landuse on and around the site is predominantly sheep and beef farming, generally on quite large holdings, although there are some smaller lifestyle sized blocks. The Range, once indigenous forest valued as a source of food by Maori has, from the early 20 th century, been extensively cleared. It and the valley floors are now highly modified pasture with virtually no mature canopy trees present, although there is some remnant and regenerating bush in the steeper gullies. Both that regenerating cover, and the waterways, are not fenced and are open to stock.
Unsurprisingly Contact, as the applicant, supports its appeal and seeks the grant of the required resource consents, taking the position that the Commissioners were not correct about the water contamination issue to be discussed later, and submitting that the substantial improvements made to the proposal between the first hearing and now have avoided some adverse effects, and mitigated all others to the extent that they are acceptable. It also points to the positive effects and benefits the proposal would bring, all of which we shall discuss in more detail later.
Both Councils are now generally content with the proposal and support the grant of the required consents, subject of course to appropriate conditions. Neither supports the Commissioners' view that further consents might be required because of the possible contamination of water, although the Regional Council allows that there might be a possible qualification of that view to take account of a possible karst collapse into a waterway. We shall return to that possibility.
The District Council differs from Contact's position in respect of the noise conditions, arguing for a maximum level of 35dBA L 90, rather than the 37dBA L 90 contended for. For visual amenity reasons, it also wishes to see turbines with the maximum height of 125m specified as the required option.
The two site landowners, Waewaepa Station (2002) Ltd and the A D B Williams Charitable Trust were s274 parties but took no direct part in the hearing. They indicated, through a memorandum lodged by their counsel, that they support the proposal.
Rangitane o Tamaki nui a Rua are recognised as holding mana whenua over this area. The evidence from Contact witnesses was that as a result of discussions with them, three turbines close to the peak of Oporae, a place of particular significance to Maori, were deleted from the proposal and a further turbine moved away from...
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