RMA framework

The Resource Management Act defines renewable energy as "energy produced from solar, wind, hydro, geothermal, biomass, tidal, wave, and ocean current sources". ^{0567cf93-db93-463d-9988-0e8bd9befed8}

Duties and restrictions 

Section 9 of the RMA prohibits the use of land in a manner that contravenes a regional or district plan unless it is allowed by a resource consent. Terrestrial renewable energy developments (including wind farms and solar panels) therefore only need to obtain resource consent if required by a regional or district plan.

Section 12 of the RMA prohibits a range of activities in the coastal marine area unless they are allowed by the regional coastal plan or a resource consent. The regulated activities include the construction of a structure in the coastal marine area. Marine renewable energy developments (including offshore wind farms and wave or tide turbines) will therefore need to be allowed by the regional coastal plan or a resource consent.

Sections 13 and 14 of the RMA prohibit certain uses of water and a range of activities in the beds of rivers unless they are allowed by the regional plan or a resource consent. The regulated activities include the erection of a structure on the bed of a river and the use or damming of water. Hydroelectricity and geothermal developments will therefore need to be allowed by the regional coastal plan or a resource consent.

Part 2 purpose and principles 

Part 2 of the RMA contains the purpose and principles of the Act.

The purpose of the RMA is "to promote the sustainable management of natural and physical resources".This is discussed in detail in the RMA section of this website.

The RMA also identifies a number of principles that are of special significance for resource management. ^{6ea04c34-534f-4577-b409-31df83c20c8a} These principles give “further elaboration” to the section 5 purpose of sustainable management ^{f7bb5e35-fc56-4ae8-96d0-e2aa391cf09e} by stating particular obligations for those administering the RMA. ^{c590304b-fee7-4e5b-a8e3-270af19250a5} There are three sets of principles: 

• Matters of national importance - which decision makers must "recognise and provide for; 
• Other matters - which decision makers must "have particular regard to"; and
• The principles of the Treaty of Waitangi - which decision makers are required to "take into account"

These principles are discussed in detail in the RMA section of this website. Two principles specifically relate to renewable energy:

• Section 7(i) requires decision-makers to have particular regard to the effects of climate change; and
• Section 7(j)  requires decision makes to have particular regard to the benefits to be derived from the use and development of renewable energy.

National Policy Statements  

National policy statements (NPS) enable central government to prescribe objectives and policies for matters of national significance which are relevant to achieving the sustainable management purpose of the RMA. ^{18934d05-222d-4859-9f09-d0c969136bf6}  

NPS guide subsequent decision-making under the Resource Management Act at the national, regional and district levels and can therefore significantly affect resource management practices in New Zealand. Regional policy statements, regional plans and district plans are all required to give effect to all national policy statements. ^{f56c6ea9-e7f4-4e7d-98d3-1fb0caa7b266} Consent authorities must have regard to any relevant national policy statement when considering an application for a resource consent. ^{bba0c3c7-df24-4093-bbd7-252e8c384b28} NPS are discussed in more detail in the RMA section of this website. 

National Policy Statement on Renewable Electricity Generation 

The National Policy Statement on Renewable Electricity Generation 2011 came into effect on 13 May 2011. The objective of the NPSREG is: 

To recognise the national significance of renewable electricity generation activities by providing for the development, operation, maintenance and upgrading of new and existing renewable electricity generation activities, such that the proportion of New Zealand’s electricity generated from renewable energy sources increases to a level that meets or exceeds the New Zealand Government’s national target for renewable electricity generation.

The national target is for 90 percent of electricity generated in New Zealand to be derived from renewable energy sources by 2025. 

The NPSREG contains policies which requires decision makers to: ^{cbe2a366-a3b8-4c7e-9083-08c2702075ee}

• Recognise the benefits of renewable electricity generation activities (Policy A)
• Acknowledge the practical implications of achieving New Zealand’s target for electricity generation from renewable resources (Policy B)
• Acknowledge the practical constraints associated with the development, operation, maintenance and upgrading of new and existing renewable electricity generation activities (Policy C)
• Manage reverse sensitivity effects on renewable electricity generation activities (Policy D)
• Incorporate provisions for renewable energy generation activities into regional policy statements and regional and district plans (Policy E)
• Incorporate provisions for small and community-scale renewable energy generation activities into regional policy statements and regional and district plans (Policy F)
• Enable the identification of renewable electricity generation possibilities (Policy G)

The NPSREG specifically directs decision-makers to have regard to adaptive management measures and offsetting /compensation measures (Policies C1(e) and C2).

The NPSREG generally directs decision-makers to “recognise and provide for” or “have regard to” relevant matters. The direction to “recognise and provide for” a matter requires actual provision to be made for the matter. The direction to “have particular regard to” or “have regard to” a matter means that the decision-maker must give genuine attention and thought to the matter and determine what weight it is to be given in the particular circumstances. ^{047077a2-7c0f-49b9-a2b3-7fa0ea821416}

The NPSREG provides certainty regarding the benefits of renewable electricity generation and requires those benefits to be explicitly acknowledged. However, it does not resolve all the potential resource management policy tensions that can occur between renewable electricity generation activities and other activities or interests (such as the protection of outstanding natural landscapes). ^{d7161a51-9779-4ee3-a0e0-f2d19826af9b} Regional policy statements, regional plans and district plans should seek to resolve those tensions and identify sensitive receiving environments where renewable electricity generation will be prohibited or discouraged and less sensitive areas where renewable electricity generation will be enabled. ^{5c1ef7c7-eab2-44dc-888b-751aa3da8bcd}

National Policy Statement for Freshwater Management 

Hydroelectricity activities will also be affected by the National Policy Statement for Freshwater Management 2014, which sets out the framework to be applied at a regional level to avoid over allocation of freshwater.

Planning documents 

Regional and District councils are required to prepare regional policy statements, regional plans and district plans. Planning documents and associated processes are discussed in detail in the RMA section of this website. The section below focuses on the requirement for planning documents to give effect to the NPSREG.

To develop planning documents which give effect to the NPSREG, local authorities will need to understand the composition and operational requirements of existing renewable electricity assets, threats to existing renewable electricity generation assets (including reverse sensitivity), the nature and extent of renewable energy potential within their region or district, and sensitive receiving environments within their region or district. ^{77cb29a6-a88c-4836-9e0a-85c7d0034e13}

Regional Policy Statements

Regional Councils must proactively consider the requirement to give effect to the NPSREG when reviewing or changing a regional policy statement. A regional policy statement will need to include specific provision for renewable electricity generation activities in objectives, polices and methods. They may form part of a wider suite of provisions directed towards energy or regionally significant infrastructure. ^{08fcc595-ba0d-42b0-abb6-9befafdf97a5}

The Southland Regional Policy Statement 2017 can be viewed here. Chapter 16 address objectives and policies in relation to Energy.

The Canterbury Regional Policy Statement 2013 can be viewed here. Chapter 16 addresses objectives and policies in relation to Energy. 

Regional Coastal Plans and other Regional Plans

Regional Councils must proactively consider the requirement to give effect to the NPSREG when reviewing or changing a regional plan. A regional plan will need to include specific provision for renewable electricity generation activities in objectives, polices and methods (including rules). Where different regional plans address different natural resources each regional plan should recognise the national significance of renewable energy generation activities. ^{d5c3f7a9-d6b7-4f14-8baa-01a36074c5c4}

Regional coastal plans will manage wave and tidal energy projects and marine wind farms. Other regional plans will manage hydroelectricity and geothermal energy projects.

The Wellington Regional Freshwater Plan can be viewed here. Policy 6.2.15 addresses the damming or diversion of water in any river, lake, or wetland. 

District Plans 

District Councils must proactively consider the requirement to give effect to the NPSREG when reviewing or changing a district plan. A district plan will need to include specific provision for renewable electricity generation activities in objectives, polices and methods (including rules).

District plans will manage terrestrial wind farms and solar energy production (as well as any land use components of hydro and geothermal activities). They may also manage bioenergy indirectly, for example through management of forestry activity.

The Wairarapa Combined District plan can be viewed here. Chapter 16 contains objectives and policies regarding network utilities and energy. 

Resource Consents 

The Resource Management Act classifies activities into six primary categories: permitted, controlled, restricted discretionary, discretionary, non-complying and prohibited. ^{119bcb81-ae78-4559-bd51-90e2c6334157}

A resource consent is required to undertake a controlled, restricted discretionary, discretionary, or non-complying activity. When considering a resource consent application, the consent authority must have regard to:

• The purpose and principles of the RMA;
• Any actual and potential effects on the environment of allowing the activity;
• Any relevant provision of a national environmental standard, other regulations, a national policy statement including the New Zealand Coastal Policy Statement;
• Any relevant provisions in the applicable regional policy statement and any proposed regional policy statement;
• Any relevant provisions in the applicable plans or any proposed plans; and 
• Any other matters the consent authority considers relevant and reasonably necessary to determine the application.

 The resource consent process is discussed in detail in the RMA section of this website. This section provides a brief overview of some recent renewable energy resource consent decisions.

Mainpower NZ Ltd v Hurunui District Council [2011] NZEnvC 384

Mainpower NZ Ltd applied (via direct referral) for resource consent to establish and operate a wind farm at Mt Cass, Waipara. The Environment Court heard evidence that the site has the best wind resource in North Canterbury. The Environment Court assessed the following key considerations:

Biodiversity: The Court found that the site had considerable biodiversity value. Under section 6(c) of the RMA the Court was required to recognise and provide for the protection of the significant indigenous biodiversity. The wind farm would require removal of 3 ha of tussock grassland and just under 1 ha of woody vegetation. The Court determined that the biodiversity offset programme (establishment of a conservation management area across 127 ha of the site) would ensure there would be a net biodiversity gain in the medium to long term.

Outstanding Natural Feature: The Court found that the Mt Cass ridge was an outstanding natural feature. Under section 6(b) of the RMA the Court was required to recognise and provide for the protection of the outstanding natural feature from inappropriate development. The Court determined that the covenant in perpetuity over the Mt Cass Conservation Area, exclusion of windfarms from the most distinctive section of the feature, and ongoing environmental management of the feature, meant that the outstanding natural feature would be protected.

Visual, recreation and tourism amenity: The Court accepted that the turbines would be clearly visible over a wide area and would adversely affect many people’s enjoyment of the landscape. The Court found that the existing walkways and proposed extension will continue to provide recreational amenity.  The Court determined that the wind farm would not negatively impact wine tourism in the area.

Noise: The Court determined that the proposal will comply with the noise standards set in the district plan and NZS6808:2010 Acoustics – Wind farms. The Court was satisfied that the conditions would adequately remedy or mitigate noise effects.

The Environment Court granted the resource consent application.

Maniototo Environmental Society v Central Otago District Council (NZEnvC C103/09, 28 October 2009) and Meridian Energy Ltd v Central Otago District Council [2011] 1 NZLR 482 (HC)

Meridian Energy was granted resources consent for a wind farm on the Lammermoor Range in Central Otago (“Project Hayes”). The Environment Court heard an appeal against the council decision. It assessed the following key considerations:

Outstanding Natural Landscape: The Environment Court found that the proposed wind farm would be located within an outstanding natural landscape. Under section 6(b) of the RMA the Court was required to recognise and provide for the protection of the outstanding natural landscape from inappropriate development. The Court found that the wind farm was inappropriate development.

Efficiency: The Environment Court held that, for projects of national importance or where costs could not be fully internalised to the consent holder, it was necessary to consider alternative locations. The Court criticised Meridian Energy for failing to provide estimates of costs and benefits to enable to the Court to determine whether the proposal would be an efficient use of resources under section 7(b) of the RMA.

The Environment Court concluded that the national importance of providing renewable energy was outweighed by the adverse effects, most notably the impacts on the outstanding natural landscape and visual amenity.

On appeal, the High Court determined that the Environment Court did not err when calling for consideration of alternatives (although this could only be considered under section 104(1)(c) not section 7(b)). However, the Environment Court erred when it required an explicit cost benefit analysis as part of its examination of the efficiency criterion in section 7(b). The matter was referred back to the Environment Court for reconsideration. Meridian Energy subsequently withdrew its resource consent application.

Re Meridian Energy Ltd [2013] NZEnvC 59

Meridian Energy applied (via direct referral) for resource consent to construct, operate and maintain a 33 turbine wind farm in Hurunui. The proposal was a discretionary activity.

The Environment Court considered the actual and potential effects of the proposal. Positive effects included the national benefit of a reliable renewable energy source and economic benefit for the local and regional economy. Negative effects included landscape and visual amenity, noise, traffic and ecological effects.

Landscape and visual amenity: The Court found that the site was not an outstanding natural landscape or feature and certain turbines were removed to reduce adverse visual amenity effects for some local properties.

Noise:  The Court was satisfied that NZS6808:2010 should be utilised and the noise from the turbines was predicted to be well within acceptable levels.

Traffic: The Court determined that these would be adequately mitigated by the Construction Traffic Management Plan and any change in road safety risk would be negligible.

Ecology: The Court was satisfied that the proposed conditions would avoid, remedy and mitigate potential effects on avifauna and other ecology.

The application was granted.

Crest Energy Kaipara Ltd v Northland Regional Council (NZEnvC A132/09, 22 December 2009) and Crest Energy Kaipara Ltd v Northland Regional Council [2011] NZEnvC 26

Crest Energy applied for resource consent to place, on a staged basis, 200 turbines on the seabed near the mouth of the Kaipara Harbour to produce renewable electricity. The Environment Court assessed the following key considerations:

Commercial fisheries: The Court was unsatisfied with the extent of evidence available about effects on commercial fisheries (an important existing industry). The Court received evidence that the harbour entrance was an essential conduit for species migrating between the harbour and the open sea. The Court emphasised the need for robust baseline monitoring. Crest Energy proposed one year baseline monitoring for fish. A key witness was unclear about the length of baseline monitoring required.

Noise: The Court noted that assessing the potential effects of underwater noise from tidal turbines on marine fauna was based on science ‘very much in its infancy’. There was considerable disagreement between the two experts on noise matters. There was ‘no reliable evidence’ to assess the likely response of mammals and fish to turbine noise or how they might respond to the presence of the obstruction.

Marine mammals: The evidence focused on Maui’s dolphin, listed as critically endangered. The expert for Crest asserted that the number of Maui’s dolphins in the Kaipara Harbour in recent years was ‘virtually nil’ and considered the proposed gaps between turbines would not impede the movement of dolphins. The expert for the Appellant asserted that there was insufficient information to assess the collision risk. The Court noted that the death of even one dolphin could impact on the survival of the species.

Cultural wellbeing: The Maori cultural relationship with the harbour waters and surrounding land were not disputed. Potential cultural effects included effects on mauri, mana, kaitiakitanga, and taniwha. Crest proposed funding for a trust for environmental restoration in and around the Kaipara Harbour. The Court stated that this addressed cultural offence deriving from degradation of land and water. It held that this would adequately provide for the relation of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu and other taonga as required by section 6(e) of the RMA.

The matters in favour of the proposal included enabling people to provide for their economic wellbeing, the efficient use and development of natural and physical resources, the benefit to be derived from the use and development of renewable energy, and the contribution toward achieving the national energy policy.

The Environment Court was satisfied that issues relating to public access, safety and cultural issues could be adequately addressed through conditions. The potential for adverse effects on commercial fisheries was ‘the big question mark’. On the issues of noise and marine mammals the Court was ‘closer to holding’ that these could be dealt with through conditions.

In regard to the proposed conditions of consent and proposed Environmental Monitoring Plan, the Court stated that it was concerned about the use of ill-defined terminology such as “acceptable versus unacceptable effects”. These terms raised concerns as to whether outcomes could be measured in a clear and enforceable way. The Court determined that ‘a fully fleshed out’ Environmental Monitoring Plan was required before consent could be granted. The use of an adaptive management approach was a critical component of this resource consent application.

The Environment Court issued an interim decision indicating tentative approval for the proposal subject to further work including further evidence and improvements to the conditions and Environmental Monitoring Plan. The Environment Court’s final decision recommended that consent should be granted.

Alexandra District Flood Action Society v Otago Regional Council C102/2005

This was an appeal by the Alexandra District Flood Action Soc Inc and others against the council's decision to grant consent to Contact Energy Ltd (" Contact") to dam, divert, take, and discharge water from the Clutha River to generate electricity. Contact Energy operates an integrated hydro-electric generation system based on Lakes Hawea, Dunstan (the Clyde dam) and Roxburgh.

The Public Works Act 1928 and the Clutha Development (Clyde Dam) Empowering Act 1982 had been the original sources of deemed water rights and therefore deemed consents in respect of Contact’s activities on the Clutha River. This case concerned Contact's application for new consents to replace (to “re-consent”) the deemed consents. None of the activities for which consent was sought were permitted activities under the regional plan nor were they allowed under the RMA. The activities were discretionary.

The Court considered what the proper basis was for considering the environmental effects of the operation of the scheme; it held that a consent authority should not compare the existing environment and the effects of new (renewed) water permits with a hypothetical situation which might result in a consequence of ceasing the existing activities.

The Court noted that normally where a new activity was applied for, the "environment" to be considered is the environment of the application site as it was at the date of the hearing. It is normally necessary only to look forward at the possible effects of the proposed activity on that environment. Reasons to look at aspects of a past environment might be where an application was made retrospectively to justify illegal land use or where the activity was for the renewal of a suite of consents granted earlier. In such a case the environment considered may need to reflect improvements and (or) detractions made by some of the suite of consents. In this case it was generally to consider the environment as it was during the hearings, but allowing for seasonal variations.

The Court considered that allowing some degree of erosion connected with the scheme achieved sustainable management, provided such erosion was carefully monitored and that no landowner other than Contact was having its land eroded.

The Court considered the issue of the standard of flood protection to which Alexandra was entitled.  A condition was imposed on the water permit to dam which required Contact to remedy flood damage under a voluntary compensation regime. While there was doubt as to whether it had the power to impose a compensation provision, therefore, the Court concluded that it would create an incentive for Contact to volunteer a compensation regime by providing for differential consent terms (35 or 15 years) depending on whether a regime was volunteered.

The Court confirmed that all water permits sought should be granted, subject to changed consent conditions. The Court concluded overall that more precise rules were needed to guide management plans. The Court expressed concerns with the repeated conditions about flood management procedures. The Court stated that the Flood Rules should have priority over the conditions of consent because they were for potential emergencies and to protect life and property. The Court declined claims for financial contributions to be paid to the council. The Court considered that a 35 year term was appropriate for the Lake Hawea and Lake Dunstan consents and that a 15 year term was appropriate for the Lake Roxburgh consent unless Contact volunteered a compensation regime. The Court dismissed the appeal and confirmed the grant of consents.

Last updated at 11:58AM on January 18, 2018