14 March 2005

Transpower - upper north island grid upgrade

Sunday had an interesting article on the proposed grid upgrade which, amongst other things, could lead to 70m high pylons from Taupo to Auckland. Network utility operators such as Transpower (known as requiring authorities) have special powers under the Resource Management Act to "designate" land for particular purposes. Designating land for a particular purpose has two main consequences (s176):
- First, it exempts the requiring authority from the general rule in section 9 that all works must comply with rules in district plans ("No person may use any land in a manner that contravenes a rule in a district plan or proposed district plan").
- Secondly, people cannot do anything in relation to the designation land that would "prevent or hinder" a project or work without the consent of the local authority.
In many respects, a designation is like a really big resource consent. In practical terms, the designation is incorporated into district plans and "overlays" the underlying zone or controls on the particular land.

There are some limits one what can be done under a designation.

A designation only permits authorised projects or works for the designated purpose; other projects or works are still subject to the usual controls (s179(2)) (As a result of the RMAA03 which amended the exemptions in s176, there is now an argument that requiring authorities still remain subject to the general duties imposed on occupiers of land (s16: duty to avoid unreasonable noise; s17: duty to avoid, remedy, or mitigate adverse effects)).

When the previous designations were carried over into the RMA from the earlier regime, the designated purpose was often rather bald (eg, simply "electricity substation" or "sewage treatment plant"). Nowadays, the designation usually includes comprehensive conditions. Cf Papakura District’s designations (Schedule 12) and Wellington City’s designations Designations aren’t the only way that operators can achieve their project.

In some cases, district plans are drafted to allow their activities as permitted or controlled activities (see for example Manukau City). Alternatively, the operators could simply obtain a resource consent. However, the designation process is so powerful it is generally preferred by operators. Designations also play an important role under the Public Works Act.

Generally, a designation will support the view that the land is "required for a public work" (the threshold for compulsory acquisition under the PWA).

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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