Contact Energy Ltd v Managatu-Wanganui Regional Council

JurisdictionNew Zealand
CourtEnvironment Court
JudgePrincipal Environment Judge
Judgment Date20 Oct 2010
Neutral Citation[2010] NZEnvC 406
Docket NumberENV-2009-WLG-000087

Decision [2010] NZEnvC 406

BEFORE THE ENVIRONMENT COURT

Court:

Principal Environment Judge C J Thompson

Environment Commissioner H M Beaumont

Environment Commissioner W R Howie

ENV-2009-WLG-000087

In the Matter of an appeal under s 120 of the Resource Management Act 1991

Between
Contact Energy Limited
Appellant
and
The Manawatu-Wanganui Regional Council the Tararua District Council
Respondents
Counsel:

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

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.

Held: Ten years was an unreasonably long lapse period, given how knowledge and environments could change over that time. It could unreasonably impact on surrounding landowners uncertain of when the project would go ahead and also locked up a valuable resource, preventing its possible use by others for that period. In the absence of particular and convincing reasons for such a significantly extended period as ten years, the default lapse period of five years was appropriate. The absence of a proposal for the exporting of electricity from the windfarm to the national grid was not fatal although usually the practice was for all necessary resource consents to be sought at the same time.

In terms of s104(1)(a) RMA (consideration of effects on the environment), the main adverse effect concerns of the s274 parties were noise and traffic. There was no evidence establishing that the area had special qualities distinguishable from those of other rural areas in the district with similar characteristics and Contact was prepared to be limited to a sound level lower than that set out in the District Plan. A Construction Traffic Management Plan (CTMP) proposed a number of controls concerning speed, engine brakes, stock movements etc that would handle the extra traffic from construction and operation along with road improvements. The expressed concern about risk to horses on a local stud farm was not substantiated by experience in comparable situations elsewhere and the proposed conditions in the CTMP would reduce such risk to as there might be to a level not greater than what currently existed. Evidence was heard from a number of experts on the geology of the land and ground water. Because the wind farm site had been a working farm for many years and was already highly modified, it was almost devoid of the original cover of indigenous vegetation so that ecological values and the likelihood of significant adverse effects were low. Appropriate sediment and erosion control measures were included in the conditions of consent and adverse effects on neighbours' water supplies were most unlikely. Only a small percentage of the site would be affected by the works. Furthermore the proposal fitted comfortably enough into the terms of the different Councils operative and developing Plans.

The wind farm site was in a recognised “outstanding natural landscape” in terms of s6(b) RMA and therefore it had to be decided whether the proposal should be regarded as an inappropriate use and development there. The criteria for assessing the significance of a landscape had been further refined in Wakatipu Environmental Society v Queenstown-Lakes DC. There would inevitably be some adverse landscape and visual amenity effects, but to the greatest degree one could reasonably expect, the site and design reduced those effects to an acceptable level (objectively considered). Having particular regard to the factors set out in s7 RMA (other matters) only added to the conclusion that the project should be given the necessary consents.

Appeal allowed.

DECISION OF THE COURT

Decision issued: 26 NOV 2010

The appeal is allowed and the Decision of the Councils' Commissioners is not upheld

Costs are reserved

Introduction
1

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.

Project Description
2

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.

3

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.

Turbine Consent Areas and Earthworks Consent Area
4

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.

5

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.

General area description
6

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.

7

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.

8

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...

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