6. Appropriateness of National Intervention

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The Merits and Potential Scope of National Guidance on the Management of Electricity Transmission under the RMA: Report of the Reference Group

Reference Group on Electricity Transmission

[ Last Updated 21 August 2006 ]

Within this section …

6.1 The Options Available to Address Issues Associated with the RMA's Management of Transmission
6.2 Overview of Evaluation

Although Transpower's and landowners' perspectives about the nature of problems faced will differ, the general subjects under debate are common enough. To recap, the matters that are challenging parties, and that may prima facie lend themselves to some form of intervention, may be organised around the following themes:

the consideration to be given to the benefits of transmission in decision-making processes;
the management of the effects of activities on the transmission network (including issues arising from uncertainty about affected landowners' rights and obligations in respect of undertaking potentially incompatible uses);
the management of certain adverse effects of the transmission network- including (a) issues arising from uncertainty about Transpower's rights and obligations in respect of using, maintaining and upgrading existing lines; and (b) the management of visual amenity, electric and magnetic fields, noise and cultural values; and
matters of RMA process and practice in relation to the preceding three issues.

6.1 The Options Available to Address Issues Associated with the RMA's Management of Transmission

Broadly speaking, there are seven options available to the government to address issues identified. These are:

Status Quo

This involves letting district and regional plans evolve and rely on increased experience and case law development to resolve issues over time.

Legislative Change

Key sections of the RMA, including the matters of national importance in Part II of the Act, could be amended to specify requirements in relation to transmission and associated issues.

Changes to other related legislation (e.g. Electricity Act and Building Act) may also be options for specific issues.⁵³

Non Statutory Guidelines

Non statutory guidelines could be prepared to provide policy guidance and suggest specific performance standards. They could also recommend processes to help resolve issues.

Submissions on Plans and Projects

Government agencies could produce individual or "whole-of-government" submissions on policies and plans, and on any designations and/or resource consents. If decisions departed from the views expressed in submissions, agencies could take matters to the Environment Court for determination.

Call-in of Individual Resource Consents

The Minister for the Environment may call-in an application(s) for resource consent (or notices of requirement) and appoint a board of inquiry to hear and make a decision on the application.

National Policy Statement(s)

NPS(s) could be prepared to address some or all of the issues.

National Environmental Standard(s)

NES(s) could be prepared to address some or all of the issues.

The options are not mutually exclusive. The general advantages and disadvantages of these policy tools are set out in Table 1 below.

Table 1: Generic Evaluation of Intervention Options
Option	Advantages	Disadvantages
Status quo	No new costs on local authorities in terms of having to change policies and plans. No disruption to case law. Allows communities and stakeholder groups to debate issues and seek solutions that suit local circumstances. Low cost for government.	No guarantee that existing issues will recede over time. Leaves existing challenges unresolved. Risks to transmission provision and environmental outcomes remain. Long term economic cost if electricity supply is limited or disrupted.
Legislative Change	Could have immediate effect (not reliant on changes to local policies and plans). Would be determinative of the actions of functionaries and the Courts. Can remove debate and uncertainty.	Option limited by what is appropriate to include in statute. Statute can provide limited policy guidance beyond recognising importance. Legislation does not normally attempt to address the subtleties of policy direction or matters of practice. The scheme of the RMA is for particular levels of environmental performance to be specified in district and regional plans and policies and NESs and NPSs rather than in the Act itself. Can have uncertain effect until case law is established. Can upset existing case law.
Guidelines	Relatively cheap and easy to produce. Can provide advice and suggestions while allowing for flexibility in approach. Guidelines are not constrained by scope of any governing legislation and can discuss policy in a wider context.	Can be ignored and cannot be enforced. Would have uncertain weight at Environment Court.
Submissions on plans and projects	Government can tailor messages to the context. Messages/ guidance can evolve over time as better information is available or circumstances change.	Resource intensive. Must maintain an on-going effort on individual plans, NORs and applications, including appearing at hearings and taking/defending matters to the Environment Court on appeal.⁵⁴ Takes a long time to achieve outcome in terms of changes to policies and plans, as they only come up for review every 10 years. Adds to the matters to be considered in RMA processes adding costs. Potential for messages to be variable and fluctuate over time as governments and officials change. This can add to any confusion. Local authorities are not bound by submissions. Government submissions have no more weight than any other submission.
Call-in	Can allow government to control the process and take responsibility for time and efficiency concerns. Appointment of board of inquiry can ensure that national interests are represented in decision-making process.	Applications that are called-in still have to be determined against the same matters that would be used by a local authority. They cannot, therefore, substitute for an inadequate or inappropriate policy framework. Call-in has to be used on a case-by-case basis, and would require significant resourcing. Would probably not obviate the need for other forms of intervention.
National Policy Statements	Establishes policy that must be "had regard to" in resource consent decision-making and "given effect to" in plans. Provides clear guidance without removing decision-making discretion totally from local authorities. Establishes policy framework that assists the development of policies and plans at the local and regional levels. Can apply to both designation and resource consent process.	Adds another layer of instrument to be "had regard to" in resource consent decisions. Complicates decision-making processes. Full implementation relies on translation into local policies and plans. Can still be debated on a case by case basis and therefore does not necessarily reduce costs (particularly in short term). Cannot require particular methods. Potential scope constrained by purpose of the Act, and the inability to remove any discretions provided by the Act, or to offer an interpretation of sections of the Act.
National Environmental Standards	Can be developed relatively quickly. Do not rely (necessarily) on application through regional or district plans. Can remove need for consideration of performance standards on a region by region, district by district basis, and therefore can save cost and increase certainty.	May over-ride local decision-making, and may not be sensitive to local circumstances. Cannot provide policy guidance on the substantive issues considered in decision-making.

The appropriateness of applying these options to the issues identified is described in Table 2.

Table 2: Evaluation of Policy Options against Issues (a)
	Status quo	Legislative Change	Guidelines	Submissions
Benefits of transmission	Case law has shown that benefits can be taken into account in context of other infrastructure. A "wait and see" approach could work, but cannot be guaranteed to do so, and certainly not in the short term.	Legislative change to emphasise the benefits of transmission may be unnecessary as case law has established that taking benefits into account is possible under the current law.	Could apply, but no guarantee of consistent application. May not be successful because of established practice of not referring explicitly to benefits.	Could apply, but no guarantee of success. Likely to be challenged, and may need to be regularly argued on appeal.
Effects on transmission	The primary existing mechanism (NZECP 34) has proved partially effective. There is no indication that compliance is improving.	RMA Legislative change is unnecessary as Act and established practice is already clear on the ability for local authorities to manage / control the effects of one activity on another. It would be inappropriate to make special reference to transmission in the Act. Building Act The Building permit process could be amended to ensure that building permits are not issued for building that contravenes NZECP 34. The limitation of this is that buildings are only one form of risk that needs addressing For more detailed analysis of non-RMA options to address this issue see Appendix 2	Could apply, but no guarantee of consistent application. Based on Transpower's experience on seeking consistency, guidelines are unlikely to be effective.	Could apply, but no guarantee of success. Likely to be challenged and may need to be regularly argued on appeal.
Effects of transmission
Clarify / limit network use and development rights	Experience to date has shown variability in the way transmission-related activities are permitted in district plans. A "do nothing" approach would likely see this variability continue.	Any legislative change would have to single out transmission. Although that was done for a transitional period it would be inappropriate to establish preferential rights within the Act on a permanent basis. That would conflict with the general approach of the RMA. (Furthermore, the Act would have to be amended to include a level of detail that would be inconsistent).	Could apply, but no guarantee of consistent application. Based on Transpower's experience on seeking consistency, guidelines are unlikely to be effective.	Could apply, but no guarantee of success. Likely to be challenged and may need to be regularly argued on appeal.
Visual	-	The RMA already contains general statements about the importance of amenity values, landscape, significant natural areas and habitats and similar matters that are relevant to route selection. More detailed policy within the statute is not appropriate. Not applicable.	Potentially applicable. Guidelines could be developed on how to undertake a route selection process that mitigates visual / character impacts. However, without legal weight guidelines likely to have limited effect and provide no assurance to either Transpower or the public.	Could apply in context of having policies included in district plans, but no guarantee of success. Would not be appropriate in context of particular notices of requirements or resource consents since it would involve government agencies taking a position either for or against visual impacts. Partially applicable / effective.
Electric and Magnetic Fields	-	Direction required is highly specific and could not be appropriately contained within the Act. Not applicable.	Could apply, but no guarantee of consistent application. ICNIRP guidelines already exist but issues remain.	Could apply, but no guarantee of success. Likely to be challenged and may need to be regularly argued on appeal.
Noise	-	Direction required is highly specific and could not be appropriately contained within the Act. Not applicable.	Could apply, but no guarantee of consistent application.	Could apply, but no guarantee of success. Likely to be challenged and may need to be regularly argued on appeal.
Cultural, archaeological and biodiversity values	-	Act already contains general policy within Part II regarding recognition and protection of cultural and biodiversity values.	Could advocate for values to be taken into account in route selection process, but no guarantee of consistent application. Could also include guidance on procedures to be followed in case of archaeological finds. This would be best dealt with as a matter of process (see below).	Could apply, but no guarantee of success. Would need to make submissions on all plans. Would take many years to achieve effective coverage.
Process
Depiction of lines	-	Act provides a list of matters to be included and discretion to include "any other information". Direction required is a matter of practice that is inappropriate to include in legislation. Not applicable.	Could advocate for depiction of lines in planning maps, but no guarantee of success.	Could apply, but no guarantee of success. Would need to make submissions on all plans. Would take many years to achieve effective coverage.
Consultation		It would be inappropriate to prescribe a consultation process in the Act in addition to the notification / submission process already provided for. Consultation requirements will depend on the circumstances and could not be defined in legislation.	Guidelines could be developed that recommend processes for different circumstances. As with all guidelines, there is no guarantee of success. Local authorities and other parties may not accept the validity of non statutory guidelines. However would be suitable since the Act does not require consultation and it would therefore be inappropriate to prescribe requirements in an NPS/NES that remove that discretion.	Not applicable. Plans cannot prescribe consultation process.
Affected Party Status		It would be inappropriate for the Act to single out one activity for automatic affected party status. However, it certainly is possible to amend the Resource Management (Forms, Fees and Procedures) Regulations 2003. These regulations already identify parties that should be served notice of resource consent applications and could appropriately require notice to be served on Transpower in respect of applications close to transmission lines. Change to Regulations applicable and potentially effective.	Guidelines could be developed to recommend that local authorities regard Transpower as an affected party in prescribed circumstances. (However, comments above apply).	Not applicable.
Alternatives		Amendment to RMA could clarify law by stating that the alternatives to a project (as apposed to alternative ways of undertaking the project) is not a relevant consideration. However, it would need to be evident that the Courts were currently applying the Act (particularly section 171) contrary to the intended policy.	Could explain the role of the Electricity Commission under the Electricity Act and the relationship to RMA processes.	Could apply, but no guarantee of success.

Table 2: Evaluation of Policy Options against Issues (b)
	Call-in	NPS	NES
Benefits of transmission	Limited efficiency because policy framework remains unchanged.	Could provide policy support for the approach that would have to be "given effect to" in plans and" had regard to" in resource consents and designations. Applicable and potentially effective.	Not an applicable tool / could not address.
Effects on transmission	Not applicable because call-in cannot be used to determine plan content. Could, in theory, call in applications that might affect lines, but would be infeasible and inappropriate since there are too many such activities and they are of a relatively minor nature.	Could include policy to suggest that local authorities ought to manage (specified) effects on transmission, but could not specify how that control should be exercised (e.g. it could not require local authorities to have rules for certain activities under lines). Applicable but only partially effective.	Could prohibit activities or specify that certain activities, or activities with certain effects, should be controlled, discretionary, non complying etc activities in district plans. Can limit the matters that a local authority is to consider in determining an application, but could not provide policy guidance on when applications should be approved or declined. Applicable, but only partially effective.
Effects of transmission
Clarify / limit network use and development rights	Not applicable because call-in cannot be used to determine plan content.	Could provide general support for clarification through plans. An NPS is an option that could promote plans providing for certain established activities, but the approach would have limitations. Applicable, but only partially effective.	Could specify what activities are to be allowed, which are to be subject to consent (and which /what type of consent). Highly applicvable and potentially effective.
Visual	There is no guarantee that a Board of Inquiry (BOI) would deal with visual impacts any better than a local authority or local authority appointed commissioners - especially if the same policy framework applied.	Could set out matters that are appropriate for the local authority to take into account when determining whether visual (and potentially other) effects have been mitigated to the extent possible. May be difficult to do so in a way that adds value to decision-making since issues will be site specific. Potentially applicable. Effectiveness uncertain.	Visual impacts raise matters of policy that cannot be addressed by an NES. Not applicable.
Electric and Magnetic Fields	As above.	Could provide general guidance on what fields / effects are and are not relevant to consider, but could not specify technical performance standards.	Could specify technical performance standards (or incorporate relevant existing guidelines by reference). Highly applicable. Could be effective.
Noise	As above.	Could promote use particular noise management techniques.	Highly applicable for specifying noise levels. Could be effective.
Cultural, archaeological and biodiversity values	As above.	Could include guidance to ensure Māori and biodiversity values are taken into account in route selections process. Might also include guidance on process to be followed in case of archaeological finds.	Limited applicability. Could prescribe consent category for activities on, or affecting, a known site of cultural or biodiversity value. However, this is likely to be of limited value since many sites of value are only identified through the resource consent process.
Process
Depiction of lines	Plans cannot be called-in. Not applicable.	An NPS may be able to suggest that "any other information" should include transmission lines, but it is questionable whether it could require it or simply require local authorities to consider inclusion.	Not applicable.
Consultation	Not applicable. Applications are called-in after any pre-lodgement consultation has occurred.	Not directly applicable, NPSs only apply to local authorities not applicants. Could be used to suggest that local authorities should regard certain processes as adequate, but as Act does not require consultation, it is doubtful an NPS would add value.	Not applicable.
Affected Party Status	Not applicable.	Section 94B of the Act already sets out matters to be taken into account in determining whether a person ought not to be considered as affected. An NPS cannot able to suggest when a person should be regarded as affected without restricting discretion provided in the Act. Not applicable	Not applicable.
Alternatives	As above.	Limited application. NPS cannot include guidance on how the Electricity Act processes work. Neither can it seek to define how section 171 should be applied. Not applicable.	Not applicable.

6.2 Overview of Evaluation

6.2.1 Process and Practice Matters

Most of the process and practice matters do not lend themselves to resolution through either an NPS or NES. The exception is the depiction of transmission lines on planning maps which could be required by way of an NPS.

Guidelines seem most suitable for clarifying consultation expectations and for ensuring the proper consideration of alternatives (recognising separate roles of the Electricity Commission and Resource Management Act processes).

Amendment to the Resource Management (Forms, Fees and Procedures) Regulations 2003 seems the best option to ensure Transpower is regarded as an affected party in respect of applications that may affect the transmission network.

6.2.2 Other Issues

Tables 1 and 2 show that an NPS (and/or NES) could be applied to comprehensively address the three other broad issues identified.

The tables also show that other options are potentially applicable and useful in addressing these issues. However, options such as submissions and call-in are applicable to individual projects and do not change the policy framework within which decisions must be taken. In addition, options such as guidelines and submissions provide a lower level of certainty about outcomes.

It is important to note, however, that NPSs/NESs and options such as guidelines, submissions and call-in, are not mutually exclusive. These mechanisms could be used in conjunction with one another, but in any event it seems that an NPS and/or NES could be part of an effective response to the issues identified. Indeed, an NPS might well allow other mechanisms to be used more effectively.

An alternative not assessed in Table 2 is to have NPSs on specific natural resource issues rather than on transmission per se. For example, it could be that NPS policy on landscape could be contained within a specific landscape NPS rather than in an electricity transmission NPS. However, in respect of landscape (and undoubtedly other issues) such an option would itself be complex and contentious. A landscape NPS could only address one of the many issues associated with transmission and could not be regarded as a substitute for an NPS on transmission. The option has not been considered in depth for those reasons and because it is outside the Reference Group's terms of reference.

There are few options outside of the RMA that could be effective in addressing the issues as described. Better enforcement of New Zealand Electrical Code of Practice for Electrical Safe Distances (NZECP 34)⁵⁵ as part of the building permit process is one viable option. This option appears to have merit in its own right and warrants follow-up by the relevant departments and parties. However, it only solves some aspects of one of the issues and is not therefore a substitute for an NPS or NESs.

6.2.3 Deemed Designation Option

Another option that might be of some assistance in addressing several of the issues identified, is for the RMA to be amended to deem all existing transmission lines to be designated for the purpose of 176 of the RMA. Such a proposal would greatly extend the scope and duration of the transitional arrangements that transmission lines enjoyed in the initial years of the RMA (see section 4.3.4). While such an approach might provide some benefits it would also involve significant costs and would remove the public's ability to be involved in the designation making process. It is not recommended for those reasons. Analysis of this option is set out in Appendix 3.

⁵³ These options are discussed further in Appendix 2.

⁵⁴ Federated Farmers note that this option merely requires the Government to be subject to the same processes as other parties.

⁵⁵ NZECP 34 is a code prepared under the Electrical Act 1992. It sets minimum safe distance requirements for electric line installations and other works associated with the supply of electricity. Compliance with the code is mandatory.

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Printed: 25/11/2009