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Maniototo Environmental Society Incorporated v Central Otago District Council [ 2009] NZEnvC 293  (28 October 2009)

Last Updated: 5 October 2012

BEFORE THE ENVIRONMENT COURT

Decision No. C103/2009

IN THE MATTER of the Resource Management Act 1991

AND


IN THE MATTER of appeals under section 120 of the Act

BETWEEN MANIOTOTO ENVIRONMENTAL SOCIETY INCORPORATED

(ENV-2007-CHC-300)

UPLAND LANDSCAPE PROTECTION SOCIETY INCORPORATED

(ENV-2007-CHC-297)

J, S & A DOUGLAS (ENV-2007-CHC-299)

E AND C LAURENSON & THE ERIC AND CATE LAURENSON FAMILY TRUST

(ENV-2007-CHC-301)

I AND S MANSON AND RIVERVIEW SETTLEMENT TRUST

(ENV-2007-CHC-302)

GAELLE SOGUEL DIT-PIQUARD (ENV-2007-CHC-303)

E R CARR

(ENV-2007-CHC-304)

R P SULLIVAN

(ENV-2007-CHC-307) Appellants

MERIDIAN ENERGY LIMITED (ENV-2007-CHC-295)

Applicant (and Appellant)

AND CENTRAL OTAGO DISTRICT COUNCIL AND OTAGO REGIONAL COUNCIL


Respondents

Hearing: at Cromwell on 19, 21, 22, 23, 26, 27 and 28 May 2008, 28 to 31

July, 1 and 5 to 8 August 2008; and at Queenstown on 19 to 23, 26 to 30 January, and 9 to 12, 16 and 17 February 2009

Site inspections: 27 and 28 March, 29 May 2008 and 18 and 19 February, 16 and 17

March 2009

Court: Environment Judge J R Jackson

Environment Commissioner H A McConachy

Environment Commissioner A J Sutherland

Deputy Environment Commissioner K D F Fletcher

Appearances: Mr H Rennie QC, Mr A J L Beatson and Mr H J Tapper for Meridian

Energy Ltd

Mr A J Logan for the Otago Regional Council

Mr G M Todd and Ms J E Macdonald for Central Otago District

Council

Mr M Holm, Mr I M Gordon and Mr M J Slyfield for Maniototo Environmental Society Incorporated and Central Otago Environmental Society (section 274 party)

Mr E R Carr for himself, G S Dit-Piquard, Danseys Pass Coach Inn Limited and Brookside Properties Limited and for the Upland Landscape Protection Society Incorporated

Mr J Douglas for J, S & A Douglas

Mr N S Marquet for E & C Laurenson and The Eric and Cate Laurenson Family Trust and for I and S Manson and Riverview Settlement Trust

Ms S J Ritchie for the Crown (as a section 274 party)

Dr M J Floate for Otago Goldfields Heritage Trust – section 274 party

Ms J Kelly for Central Otago Recreational Users Forum – section

274 party

Date of decision: 28 October 2009

Date of Issue: 6 November 2009


DECISION

A: Under section 290 of the Resource Management Act 1991 the appeals ENV-2007- CHC-300, ENV-2007-CHC-297, ENV-2007-CHC-299, ENV-2007-CHC-301, ENV-2007-CHC-302, ENV-2007-CHC-303, ENV-2007-CHC-304 and ENV-

2007-CHC-307 are allowed.

B: As a consequence of A, no order is made in respect of appeal ENV-2007-CHC-

295 by Meridian Energy Limited.

C: The decisions of the Central Otago District Council and Otago Regional Council to grant resource consents to Meridian Energy Limited for a wind farm on the Lammermoor are cancelled.

D: Costs are reserved.


REASONS

Table of Contents Para

1.0 Introduction: a wind farm on the Lammermoor? [1]

1.1
The issue and the parties
[1]
1.2
The proposal
[8]
1.2.1
A 630 megawatt wind farm
[8]
1.2.2
Turbines – size and location
[9]
1.2.3
Substations and grid connection
[12]
1.2.4
Earthworks and roading design
[13]
1.3 The resource consents sought and their status [15]
1.3.1
Land use consents from the CODC
[15]
1.3.2
Regional consents
[17]
1.3.3
Resource consents from the Dunedin City Council
[22]
1.4 The matters to be considered [23]

2.0 The facts [25]

2.1 The Meridian site [25]

2.2 The wind resource [26] The wind data [28] Seasonality of the wind resource [36] Conclusions on the wind resource [38]

2.3 The surrounding area [39]

2.4 The history of the area [48]

2.5 The uses of the area (farming, water reservoir, energy

transmission) [60] Schemes for conserving water quantity and quality [61] Transmission infrastructure (and constraints) [63]

2.6 Other uses of the area (recreation, tourism, heritage protection) [68]

2.6.1 Introduction [68] (1) The Rock and Pillar Range [69]

(2) The Logan Burn Reservoir [69]

(3) The Old Dunstan Road [69] (4) Great Moss Swamp Wetlands, Shepherds Hut and

Stony Creek Wildlife Management Reserves [69]

(5) Te Papanui Conservation Area [69] (6) Rocklands Station [69] (7) The Upper Taieri River [69] (8) The Styx Jail and Hotel [69] (9) Other heritage sites [69]

2.6.2 Commercial tourism [70]

2.6.3 Fishing [71]

2.6.4 Tramping, walking and skiing [74]

2.6.5 Mountain biking [76]

2.6.6 Driving and sightseeing [77]

2.6.7 Horse trekking [79]

2.6.8 Hunting [80]

2.6.9 Photography, botanising, art and filming [81]

2.6.10 Recreational significance of the study area [82]

2.7 The vegetation of the Lammermoor [85]

2.7.1 Introduction [85]

2.7.2 Tussock grassland [87]

2.7.3 Shrubland [91]

2.7.4 Gully floors, bog wetlands [94]

2.7.5 Existing pest plant species [97]

2.7.6 Conclusions [98]

2.8 Fauna [102]

2.8.1 Birds [102]

2.8.2 Invertebrates [104]

2.8.3 Lizards [109]

2.8.4 Fish [119]

2.9 Other aspects of the existing environment [127] The Mahinerangi wind farm [128]

The Teviot wind farm [130]

The Kaiwera Downs wind farm [131]

2.10 Climate change [132]

3.0 The law [142]

3.1
The matters to be considered
[142]
3.2
Actual and potential effects on the environment


(section 104(1)(a)of the Act)
[143]


Accumulative effects
[151]
3.3
The Central Otago District Plan (s 104(1)(b)(iv) of the Act)
[153]
3.3.1
The scheme of the district plan
[153]
3.3.2
The resources and issues
[154]
3.3.3
The Rural Resource Area
[155]
3.3.4
District-wide rules (section 12 of the district plan)
[158]
3.3.5
Infrastructure, energy and utilities (section 13 of the


district plan)
[159]

The rules
[167]
3.3.6
Heritage
[173]
3.3.7
Financial contributions (section 15 of the district plan)
[174]
3.4
Plan Change 5 to the district plan (s 104(1)(b)(iv) of the Act)
[177]
3.5
The regional instruments (s 104(1)(b)(iii) of the Act)
[185]
3.6
Other matters to be had regard to (s 104(1)(c) of the Act)
[196]

3.6.1 Other relevant matters raised in the evidence
[196]

3.6.2 The National Energy Strategy
[197]

3.6.3 International treaties
[198]
3.7
Part 2 of the RMA
[199]
3.7.1
The strong directions in sections 6 and 8
[199]
3.7.2
Section 6 matters
[200]

Outstanding natural landscapes
[201]

Historic heritage
[207]
3.7.3
Section 7 of the Act (generally)
[209]

The ethic of stewardship (section 7(aa))
[210]

Energy (section (ba) and (j))
[214]

Maintenance and enhancement of amenity values and

quality of the environment (section 7(c) and (f)) [216]

Intrinsic values of ecosystems (section 7(d)) [217] Any finite characteristics of natural and physical

resources (section 7(g)) [219] The protection of the habitat of trout and salmon


(section 7(h))
[220]
The effects of climate change (section 7(i))
[221]
3.8
Efficient use of resources (section 7(b) of the Act)
[223]
3.8.1
Efficiency of using the wind
[223]
3.8.2
How is efficiency determined?
[227]
3.8.3
Are alternative locations relevant?
[234]
3.8.4
Conclusions on alternatives
[242]

4.0 The landscape [243]

4.1
Describing the landscape
[243]
4.2
Natural science characteristics and elements
[245]
4.2.1
Geomorphology
[245]
4.2.2
Vegetation and ground cover
[249]
4.2.3
Structures
[251]
4.2.4
Fauna
[252]
4.2.5
Summary
[253]
4.3 Identifying the relevant landscape [254]
4.3.1
The wider landscape
[254]

Mountain Ranges
[257]

Category 1A
[257]

Category 1B
[257]

Foothills and Ridges
[257]

Category 2A
[257]

Category 2B
[257]

Category 2C [257] Categories 2D to 2I [257] Alluvial Terraces and Basins [257] Categories 3A and 3B [257] Category 3C [257]

4.3.2
The evidence of the landscape architects as to the


landscape‟s boundaries
[259]

Mr P Rough‟s evidence
[260]

Mr S Brown‟s evidence
[265]

Ms E A Steven‟s evidence
[271]

Mr B Espie‟s evidence
[275]

Mr P Baxter‟s evidence
[282]

Dr M C G Mabin‟s evidence
[283]
4.3.3
Findings
[285]
4.4
Assessing the naturalness of the landscape
[292]
4.5
Is the landscape outstanding?
[301]
4.5.1
The Central Otago District Plan on the landscape
[301]
4.5.2
Plan Change 5 to the district plan
[302]
4.5.3
Evidence on the values of the Eastern Central Otago


Upland Landscape
[305]

Legibility of the landscape
[305]

Transient values
[306]

Shared and recognised values
[307]

Tangata whenua values
[311]

Aesthetic values
[312]

Historic values
[314]
4.5.4
Direct evidence on whether the landscape is outstanding
[315]

The evidence for Meridian
[315]

Evidence for other parties
[318]
4.5.5
The views of the local authority‟s commissioners
[321]
4.5.6
Having regard to the Otago RPS
[328]
4.5.7
Conclusions
[329]

5.0 The possible effects : qualitative analysis [331]

5.1
Introduction
[331]
5.2
Positive effects
[334]
5.2.1
Meeting the demand for more electricity
[334]
5.2.2
Placing downward pressure on electricity prices
[335]
5.2.3
Reducing carbon emissions
[337]
5.2.4
Complementarity of wind to hydro
[339]
5.2.5
Employment
[345]
5.2.6
Tourism attraction
[346]
5.3
Predictions about the effects of climate change
[351]
5.4
Earthworks, erosion and sedimentation
[356]
5.4.1
Overview
[356]
5.4.2
Earthworks remediation
[357]
5.4.3
The proposed management plans
[362]

Review of the proposed management plans
[363]

Erosion and sediment control guidelines
[367]

Basecourse material
[368]

Disposal sites
[370]

Extreme events
[375]

Snow and ice
[378]
5.4.4
Sedimentation in rivers
[379]

5.4.5 The agreed statement of facts, recommended

modifications and our conclusions [382]
5.5 Ecological effects – flora – damage and restoration [386]
5.5.1 The earthworks [386]
5.5.2 Remedial work [387]
5.5.3 Conclusions on revegetation [394]
5.6 Ecological effects – fauna [397]
5.6.1 Birds [397]
5.6.2 Invertebrates [405]
5.6.3 Lizards [411]

5.6.4 Fish [413] Sediment loads, unusual/infrequent loads [414]

Vehicle contamination [416] Pest species introduction [418]

Loss of habitat including spawning grounds [420] Water take [422]
Summary in relation to fish [423]
5.7 Landscape and visual effects [424]
5.7.1 Introduction [424]
5.7.2 Effects on the physical components of the landscape [425]

5.7.3 Effects on perceptions of the wind farm : methods [428] Selection of viewpoints [428]
Photo-simulations of the proposed wind farm [430]
Scales for assessing visual effects [439]

5.7.4 Assessment of effects on the landscape from the

viewpoints [441] Distant views [441]
Clarks Junction area [442]
Eastern side of Lammermoor (within Dunedin City) [444]

2009_29300.jpg Old Dunstan Road – eastern side of Logan

Burn Reservoir [445]

Near Logan Burn Reservoir [447] Rock outcrop by Old Dunstan Road [448]
Old Dunstan Road within Central Otago district [449]

Old Dunstan Road, near McPhees Creek [449] Old Dunstan Road, near Turbine V3Z3 [450] Old Dunstan Road, 2.97 kilometres uphill from

Paerau [452]

Styx-Patearoa Road and its continuation, Upper

Taieri Paerau Road [453]

Near Styx Creek [453] Upper Taieri Paerau Road [454] Serpentine Flat [455]

2009_29300.jpg Junction of Linnburn Runs Road and Deep

Creek Road [456]

2009_29300.jpg Middle of Serpentine Flat [459] Old Dunstan Road (Rough Ridge) [460] Serpentine Scenic Reserve [463] Southern end of the Meridian site [464] Pylon Road [464]

Taieri Rapids Scenic Reserve [465] Te Papanui Conservation Park [466] Rock and Pillar Range [467] McPhees Rock (1310 masl) [468]



5.7.5
Mitigation of effects on the landscape
[469]

Turbine design
[470]

Other infrastructure
[473]

Revegetation
[478]
5.7.6
Accumulative effects
[482]
5.7.7
Conclusions as to the values of the landscape
[491]

Mr Espie‟s evidence
[491]

Mr Rough
[492]

Ms Steven
[493]
5.7.8
Visual Absorption Capacity of the Meridian site
[494]
5.8
Effects
on amenities
[501]
5.9
Effects
on historic heritage
[509]

5.9.1
Archaeological heritage
[509]

5.9.2
The Old Dunstan Road
[517]


Changes to the fabric of the Old Dunstan Road
[518]


Surroundings of the Old Dunstan Road
[526]

6.0
Efficient use of resources – attempting to quantify the costs and


benefits
[534]

6.1 Introduction
[534]

6.2 Benefits
[536]

6.2.1 Summary of benefits
[536]

6.2.2 Benefits of electricity produced or contribution to

Gross Domestic Product [539]

The intermediate consumption
[540]

Is $80/MWh a fair estimate of price?
[544]
6.2.3
Reduced upward pressure on prices
[548]
6.2.4
Avoiding transmission losses on import of electricity

into Otago-Southland [554]

6.2.5 Improved security of supply [555]

6.2.6 Complementarity of wind to hydro [557]

6.2.7 Benefits to the economy from the construction of

the wind farm [559]

6.2.8 Development Impact Levy [571]

6.2.9 Economic benefit of operation [573]

6.2.10 Reduced CO2 emissions [574]

6.2.11 Other benefits [581]

6.3 The costs [584]

6.4

6.4.3 Conclusions [649]

7.0 Should the power generation facility be approved under the operative district plan? [651]

7.1 Introduction: achieving sustainable management of the

Lammermoor‟s resources [651]

7.2 Are the operative objectives and policies met? [652]

7.2.1 Applying the code in section 13 of the operative

district plan [652]

7.2.2 Does the proposal achieve the policies? [653] Positive effects of developing a wind farm [655]

7.2.3 Other rules [659]

7.3 Having regard to the Otago Regional Policy Statement [660]

7.4 Having regard to the local authorities‟ decision (section 279A

of the Act) [669]

7.5 Other matters (section 104(1)(c) of the RMA) [673]

7.5.1 The existing environment and the permitted baseline [673]

7.5.2 Crown policies [676]

7.5.3 Crown support for Meridian‟s proposal [680]

7.5.4 Conduct of the appellants and supporters [684]

7.5.5 Reversibility [689]

7.5.6 All or nothing? [691]

7.6 „Subject to Part 2 ...‟ [693]

7.6.1 Summary to this point [693]

7.6.2 Should we consider the application under Part 2 of

the Act? [694]

7.7 Is the proposal an efficient use of resources? [697]

7.7.1 Do the quantified benefits exceed the costs? [697] Summary of the benefits and costs [698]

7.7.2 Alternatives: could the same output be achieved at

lesser cost by using different resources? [702] Should alternatives be considered? [702]

Do alternatives exist? [705]

7.8 Other section 7 matters [711] Stewardship (section 7(aa)) [712]

Maintenance and enhancement of amenity values (section 7(c)) [714]

Intrinsic values of ecosystems (section 7(a)) [719] Maintenance and enhancement of the quality of the

environment (section 7(f)) [720]

Any finite characteristics of natural and physical resources

(section 7(g)) [721] The effects of climate change and the benefits of renewable

energy (section 7(i) and (j)) [722]

7.9 Weighing all relevant matters [723]

7.9.1 Appropriateness under sections 5 and 6 [723]

7.9.2 The actual and potential effects [725]

7.9.3 The provisions of the operative district plan [727]

7.9.4 The provisions of the provisional district plan (PC5) [728]

7.9.5 The provisions of the Otago Regional Policy Statement [729]

7.9.6 The Hearing Commissioners‟ decision [730]

7.9.7 Achieving sustainable management of the site‟s resources [732] Effects on the landscape [734]

Effects on historic heritage [740]

Conclusions [745]

8.0 Overall evaluation and outcome [751]

8.1
Consent under Plan Change 5?
[751]
8.2
Outcome
[757]

8.2.1 Summary on the application for a power generation


facility (land use)
[757]

8.2.2 Otago Regional Council land use consents
[759]

8.2.3 Costs
[760]

Dissenting Judgment of Commissioner Sutherland [761]

JUDGMENT OF THE MAJORITY

1.0 Introduction: a wind farm on the Lammermoor?

1.1 The issue and the parties

[1] Meridian Energy Limited applied to the Central Otago District Council (“CODC”) on 12 July 2006 and the Otago Regional Council (“ORC”) on 1 November 2006 for resource consents to establish and operate a wind farm using up to 176 wind turbines each capable of generating up to 3.6 megawatts (“MW”) of power on the Lammermoor Range in Central Otago. The two consent authorities granted consents on conditions, and the appellants lodged appeals in the Environment Court. Meridian‟s appeal was about conditions only. The ultimate issue for the Court in this decision is whether we should confirm or cancel or modify the consents granted by the two consent authorities.

[2] The proposed wind farm site is located on a high plateau generally more than 900 metres above sea level which is (approximately in each case) 70 kilometres to the north- west of Dunedin City, 40 kilometres to the south of Ranfurly and 15 kilometres west of Middlemarch. The site covers an area of 92 km2 as shown on the attached plan of the proposed wind farm marked “A”. The site covers the uplands part of five high country

stations. From south to north they and the proposed numbers of turbines on them are:


2009_29301.jpg Rocklands 35 turbines 2009_29301.jpg Lammermoor 66 turbines 2009_29301.jpg Glen Ayre 19 turbines 2009_29301.jpg Logan Burn 9 turbines Loganbrae 46 turbines

The owners of those properties, apart from Logan Burn which is now owned by Meridian have licence agreements with Meridian to allow the construction and operation of a wind farm on their land. The total area (“the site envelope”) is about 135 km2 and includes both the various parts of the site and the intervening land (including the Logan Burn Gorge and the valley of Spillers Creek) and roads leading to it.

[3] Meridian is a State owned enterprise and a major New Zealand energy company. The Government appeared1 through counsel for the Minister for the Environment to support Meridian‟s application and the local authorities‟ decisions as a section 274 party. Mr Parker explained that the Minister had presented what was described as an “All of Government Submission”2 to the Commissioners‟ hearing on the proceedings for the two councils and that the authority for the filing of that submission came from Cabinet. That is, apparently, the first „whole of Government‟ submission in support of an electricity project under the Resource Management Act 1991 (“the RMA” or “the Act”) as a project of national significance.

[4] The Regional Council and the CODC support the proposal and their decisions to grant it.

[5] All the appellants except Meridian (which appealed some land use conditions)

oppose the land use consent completely. Several other section 274 parties appeared to support the appellants:

2009_29301.jpg the Central Otago Environmental Society in support of the Maniototo

Environmental Society Incorporated (“MESI”);

2009_29301.jpg Otago Goldfields Heritage Trust; and

2009_29301.jpg Central Otago Recreational Users Forum in support of MESI and Messrs Carr and Douglas.

[6] The only exception to the “All of Government” support for Meridian‟s application

was from the Director-General of Conservation who lodged through the Otago

1 Submissions of Mr M T Parker 6 August 2008 [Environment Court document 36].

2 Mr P F Gurnsey, evidence-in-chief Exhibit „PFG-1‟ [Environment Court document 39].

Conservancy, acting under delegated authority, a separate submission3 to the consent authorities. The Otago Conservancy‟s concerns were met by agreement with Meridian (it appears a potential payment is proposed, which is quite legitimate, if not transparent) and so the Director-General‟s position was neither to support nor oppose the applications4. In contrast the Otago Conservation Board, a quango, appeared through two witnesses – Mr Sutherland and Dr Nixon – to oppose the application.

[7] The Executive called four witnesses:

Mr D E Boyle, Planning and Development Manager at Transpower;

Mr J C Gleadow, Director Transmission of the Electricity Commission;

Mr P F Gurnsey, Manager, Climate Change Policy for the Ministry for the

Environment; and

Mr S D Calman, Acting Deputy Secretary, Energy and Communications Branch of the Ministry of Economic Development.

The Court is grateful to all four of these witnesses for taking the time to give evidence to the Court, and especially to Mr Boyle and Mr Gleadow whose employers are not parties to the proceeding. Mr Gleadow was kind enough to return to the hearing in 2009 to answer further questions from the Court.

1.2 The proposal

1.2.1 A 630 megawatt wind farm

[8] Meridian‟s wind farm5 will be capable of generating power of up to 630 megawatts depending on the final turbine type selected. However, Meridian is interested in energy (measured in megawatt hours, or gigawatt hours) rather than in power. Because the wind does not blow all the time or, when it does, at the optimum strength, a wind farm only generates a proportion of its theoretical maximum capacity. If a 3.6 MW

turbine is selected and is assumed, over a year, to generate 40% of its theoretical

3 Mr P F Gurnsey, evidence-in-chief Exhibit „PFG-2‟ [Environment Court document 39].

4 Mr M T Parker, submissions for the Crown para 18 [Environment Court document 36].

5 Meridian called its proposal “Project Hayes” in honour of an engineer who worked in the area.

However, that has caused a good deal of confusion to outsiders such as journalists, some of whom have understood the proposal to be in the Lake Hayes area near Queenstown.

maximum then the 176 turbines of the Meridian proposal would generate sufficient electricity to supply power for 278,000 average homes.

1.2.2 Turbines – size and location

[9] A wind turbine is made up of:

(a) blades, typically three in the „Danish design‟ although a New Zealand home- grown model has two;

(b) a hub (the hub and blades make the rotor);

(c) a nacelle, which contains the drive train gearbox, generator and controller

(and to which the rotor and tower are attached); and

(d) a tower, which supports the nacelle and the electrical cables.

[10] In this case each of the turbines will have a maximum height of 160 metres to the tip of the rotor. Although consent is sought for turbines of up to that maximum size, Meridian offered a condition that all turbines would be of the same size (regardless of which model is finally selected) to ensure uniformity of appearance. The turbines proposed for Project Hayes are three-bladed turbines and similar (but larger) to those in other Meridian projects at White Hill (Central Southland), Makara (near Wellington) and Te Apiti (Manawatu), all of which we have inspected, with the parties‟ agreement, after the formal part of the hearing concluded.

[11] In addition, Meridian has sought a limited degree of flexibility in the final siting of turbines, in that each turbine would be sited within a 150 metre radius of a defined point6. That flexibility is sought because the final access, layout and position of turbines is intended by Meridian to be subject to survey, detailed design, ecological and geotechnical considerations as encountered at each turbine site during construction. At the beginning of the hearing Meridian acknowledged that it would be appropriate to relocate one turbine

(F9M3) away from the Taieri Rapids Scenic Reserve at the southern end of the site.

6 Mr A J Coulman, evidence-in-chief para 3.8 [Environment Court document 30].

1.2.3 Substations and grid connection

[12] Five 220kV substations will be required to connect the wind turbines to the transmission grid. Four of these will feed to the Sluicings Substation at the southern end of the Meridian site via an internal 33 kV line. Electricity produced by the wind farm will then be fed via the Sluicings substation into the Roxburgh-Three Mile Hill (Dunedin) transmission line that runs across the southern end of the site. Internal cabling between turbines, substations and the Roxburgh-Three Mile Hill line will be required. Where practicable, this will be located underground to minimise visual effects. Where the use of overhead lines cannot practically be avoided (in particular, between substations and to the link to the 220 kV network), Meridian proposes that they will be either hidden from public view points or located within an identified corridor that has been designed to reduce visual effects while maintaining a safe distance from turbines.

1.2.4 Earthworks and roading design

[13] Earthworks are required on the site for a number of purposes including to construct internal access roads, turbine platforms and foundations. An internal road network of approximately 150 kilometres will be constructed. Nearly 100 kilometres of these access roads will involve upgrading (sometimes major) of existing tracks. Wherever possible roads have been designed to follow existing farm tracks and tops of ridges. Meridian claimed that will reduce the potential visual effects from external viewpoints by minimising the amount of excavation required.

[14] Work will also be needed on the Old Dunstan Road east of the site to change grades, widen the road, strengthen its surface, enlarge corners and bridge streams.

1.3 The resource consents sought and their status

1.3.1 Land use consents from the CODC

[15] The resource consent sought from the CODC was simply to construct and commission a wind farm of up to 176 turbines on the Meridian site with each turbine having a „nameplate‟ capacity of 3.6 MW. The reason for the simple description of the

proposed activity is that rule 13.7.4 of the CODC‟s district plan states (relevantly) 7:

7 District Plan, pp. 13:16-17.

13.7.4 Power Generation Facilities

...

(iii) Discretionary Activities – Development of New Power Generation Facilities

Except as provided for by (iv) below, any activity that:

(a) Involves or is associated with the construction and commissioning of a power generation facility,

OR

(b) Results in an increase in the height of a dam ...

is a discretionary activity.

For the purposes of this rule “construction and commissioning” activities includes those activities directly involved with the building and operation of a new energy production facility. This includes site preparation, earthworks, quarrying, concrete batching, plant construction, road construction and widening, traffic generation, reservoir formation, clearance or inundation of vegetation, but specifically excludes investigative activities such as geological sampling and surveys.

In other words construction and working on new power stations includes all ancillary operations identified. A further sentence makes it clear that any need to reroute remote network facilities is also included in such an application.

[16] The parties agree that the land use applications are to be considered as an unrestricted discretionary activity under the operative district plan. They did not consider the status of the activity under the proposed plan constituted by Plan Change 5 which was notified during an adjournment of the hearing, but it appears to us still to be a discretionary activity. As such, the Court may grant or refuse consent under section 104B of the Act and, if consent is granted, may impose conditions under section 108 of the Act. As we have stated, while most of the appeals opposed the grant of the land use consents, Meridian‟s appeal was only concerned about seven of the conditions placed on the CODC consent – these related to traffic issues and to the amount payable under a development levy.

1.3.2 Regional consents

[17] A number of consents were applied for by Meridian from the Otago Regional Council. These are essentially related to construction activities and all are required in terms of the Regional Water Plan. The types of resource consents required are:

Landuse Consents:

2009_29301.jpg to replace and where necessary install culverts within various waterbodies throughout the proposed wind farm site;

2009_29301.jpg to disturb the beds of various waterbodies associated with construction works throughout the proposed wind farm site;

2009_29301.jpg to deposit fill material associated with fill disposal areas which may enter surface waterbodies;

2009_29301.jpg to deposit excess material which may enter surface waterbodies;

2009_29301.jpg to erect defences against water to manage and control waterbodies where necessary throughout the proposed wind farm site;

2009_29301.jpg to construct bores for the purpose of taking groundwater in order to lower localised groundwater tables.

[18] A number of discharge permits have also been sought as follows:

2009_29301.jpg to discharge stormwater runoff to land and water throughout the subject site associated with construction, maintenance and use of structures and ancillary facilities associated with the proposed wind farm;

2009_29301.jpg to discharge contaminants to land where they may enter water, namely silt and sediment from construction, maintenance and use activities associated with the proposed wind farm;

2009_29301.jpg to discharge contaminants to water, namely silt and sediment from construction, maintenance and use activities associated with the proposed wind farm;

2009_29301.jpg to discharge abstracted ground water to land as a result of lowering localised

water tables during construction throughout the proposed wind farm site.

[19] A number of water permits have also been applied for by Meridian:

2009_29301.jpg to take ground water in order to lower localised water tables during the construction of the proposed wind farm throughout the site;

2009_29301.jpg to temporarily divert water in order to install culverts within various water bodies associated with the proposed wind farm;

2009_29301.jpg to divert stormwater around fill disposal areas on the proposed wind farm site

during construction and on completion of the works.

[20] The applications and the activities for which consent is sought are variously to be considered either as a controlled activity, a restricted discretionary activity or a discretionary activity in terms of the Otago Regional Council Water Plan. At the time of the Council hearing, a report was prepared by a Regional Council officer, Mr Christophers. His report included a table of the consents in question and this table set out the activity status of each individual consent. No party questioned that before us.

[21] The only appeal relating to the Regional Council consents was that of Mr Douglas and his family. They opposed the grant of resource consents completely.

1.3.3 Resource consents from the Dunedin City Council

[22] We were advised by Mr Beatson for Meridian that roadworks within the road reserve width of the Old Dunstan Road do not require resource consents in either the Central Otago district or Dunedin City. However, it appears that some works (e.g. possible bridging of Sutton Stream at the base of the eastern scarp of the Rock and Pillar/Lammermoor Ranges) may require works outside the road reserve and so further resource consents may be necessary.

1.4 The matters to be considered

[23] Under section 104(1) of the RMA we are subject to Part 2 of the Act to have regard to any actual and potential effects on the environment of allowing the activity8; the relevant statutory instruments9; and other relevant matters10, and we must also have regard to the local authorities‟ decisions11. We set out our findings, predictions, and

judgements on each of those matters in the following chapters:

8 Section 104(1)(a) of the RMA.

9 Section 104(1)(b) of the RMA.

10 Section 104(1)(c) of the RMA.

11 Section 290A of the RMA.

Chapter 2.0 The facts Chapter 3.0 The law Chapter 4.0 The landscape

Chapter 5.0 The possible effects – qualitative analysis

Chapter 6.0 Efficient use of resources? – attempting to quantify the costs and benefits

Chapter 7.0 Should the power generation facility be approved under the operative district plan?

Chapter 8.0 Overall evaluation and outcome

[24] All issues between Meridian and the respondents have been resolved by consent.

19

2.0 The facts

2.1 The Meridian site

[25] The Meridian site is on the western side of the broad, heavily dissected, plateau which is the southern end of the Rock and Pillar Range and the northern end of the Lammermoor Range. To use the word „range‟ for the area encompassing the site feels quite wrong in the New Zealand sense of the word „range‟ as meaning a chain of

mountains. We have called the area which is:

2009_29301.jpg south of McPhees Rock (at the southern end of Rock and Pillar Range); and

north of Ailsa Crag (on the Lammermoor Range)

– “the Lammermoor” since it is a moor – a high tussocky, often bleak, tree-less area containing some bogs. Because so much of the case revolves around the nature of the relevant landscape and because the relevant plan says much about the objectives and policies for the district‟s and region‟s landscapes, we describe the Lammermoor‟s landscape, or the landscape of which the Lammermoor is part, in detail in Chapter 4.0.

2.2 The wind resource

[26] Situated in the “Roaring Forties” and remote from large land masses New Zealand is a windy country. Mr Botha, a mechanical engineer with Meridian and with considerable experience in wind farm development stated in his evidence-in-chief that New Zealand is “often referred to as the Saudi Arabia of the wind industry” 12. That this is an apt description is shown in a map of the World-wide wind resource appended to Mr Botha‟s evidence13. Within New Zealand there are14 “... clear concentrations of potential in the lower North Island, Canterbury, Otago and Southland” as shown on the

two maps15 annexed to this decision marked “B”.

12 Mr P C Botha, evidence-in-chief para 4.1 [Environment Court document 27].

13 Mr P C Botha, evidence-in-chief Figure 1 [Environment Court document 27].

14 Mr J C Gleadow, Appendix B of affidavit dated 13 August 2008 [Environment Court document

42] quoting a Connell Wagner Limited report dated 25 March 2008 and entitled “Transmission to

Enable Renewables Economic Wind Resource Study”.

15 Mr J C Gleadow, Appendix A of affidavit dated 13 August 2008 [Environment Court document

42].

[27] Wind records from 1976 to 1991 are available from work done at the University of Otago. This led Meridian to the conclusion16 that sites of particular potential value are located in the Lammerlaw and Lammermoor Ranges. This is generally confirmed by an

examination of the maps based on 2003 data in the Connell Wagner report mentioned above.

The wind data

[28] Because the Upland Landscape Protection Society (“ULPS”) contended that there was not enough wind on the Meridian site, especially during winter, we read and heard evidence about the wind resource on the site. Mr Botha wrote that he was responsible for establishing wind recording stations on and adjacent to the project site. Eight stations were installed and used to record wind speed and direction and air temperature. The records obtained range in length from a minimum of 95 days at one station, to 2.5 years at two stations. It was also Mr Botha‟s responsibility to ensure the quality of the records from these stations and to interpret the validated data. Cross- examined as to the duration of site specific data necessary for wind farm design, he stated that a minimum of one year was sufficient provided there was at least one station in reasonable proximity that could be used as a correlation station. The data from this station would be used to determine whether the particular year was an unusual one. Of five nearby stations three had records suitable for this purpose. These were at Deepstream, Glendhu and Traquair at approximately 20, 28 and 38 kilometres distance respectively from the centre of the project site. These stations allowed 11 years of data to be synthesised for each of Meridian‟s recording sites.

[29] Parameters of importance when evaluating a wind resource are mean wind speed at the level of the turbine hub, temporal and spatial distributions of wind speed, gustiness and turbulence intensity. Two of Meridian‟s wind stations measured at 80 metres above ground level (“agl”), and the other six recorded at 10 metres agl. The latter were converted to 80 metres agl by standard methods. Eleven year averages for each of the parameters listed above were estimated for those stations with records of

duration greater than one year by means of records from the correlation stations.

16 Mr P C Botha, evidence-in-chief para 4.2 [Environment Court document 27].

[30] Data from one wind station was requested by the appellant Mr Carr. This was provided by Meridian in tabular form showing at half hour intervals the wind speed and direction and temperature as recorded at the Rocklands B1 station in the southern section of the project site. Mr Carr had this data analysed and used it to point out anomalies in the record. In particular he noted a section of the record for which the anemometer appeared not to be responding. We are not troubled by that: such a section is not unusual in a long record. Reasons for this may include icing or jamming of the anemometer, or failure of the data transmission system. In any event Mr Carr did not pursue the issue in any substantive way.

[31] To determine conditions at each turbine site the computer program WAsP was used. This is a numerical model that calculates wind flow over a given topography. As input it accepts wind speed and direction as functions of time at the recording sites and calculates those parameters at other locations, in this case at each turbine site. This constitutes the modelled temporal and spatial distributions of wind speed and direction. These results, when combined with the turbine generation characteristics, allow the expected energy output from each turbine and thus the wind farm as a whole to be determined.

[32] Leaping ahead a little from facts to predictions we should explain that the expected energy output is used to calculate a capacity factor for the wind farm. This is the total energy predicted to be produced per year as a percentage of the energy that would be produced in a year if the turbines all operated at their maximum output for the whole year. Mr Botha combined the expected site wind distribution, determined as described above, with the power curve of the proposed turbines to estimate a capacity factor of 37% for Lammermoor site. In calculating this value allowance was made for typical losses including wake effects, electrical efficiency, turbine availability, icing, blade degradation and substation maintenance. The 37% compares very favourably with

the international average for existing wind farms of 23%17, although we should record

here that witnesses for other appellants did not accept that Meridian‟s 37% would be

met in practice. No evidence was produced to support any other capacity factor, so we

17 Mr A J Muldoon, evidence-in-chief para 11.2 [Environment Court document 26].

accept Meridian‟s prediction. We also note here that the capacity factor is not a measure of the efficiency of a wind farm in extracting energy from the wind. Modern turbines achieve efficiencies of up to 85%18. Nor is the capacity factor a measure of the time a wind farm will be generating power. For the Lammermoor wind farm the latter figure is expected to be at least 88%19.

[33] The wind rose for the site presented by Mr Botha20 shows the predominant wind (approximately 42% of the time) to be from the northwest sector, with winds from the southwest sector occurring some 24% of the time. The wind rose also shows the percentage or time the wind velocity lies within the stated bands. Mr Botha reported the average site speed is in excess of 8 m/s at 80 m agl21. This wind speed suggests an IEC

class II turbine would be appropriate22.

[34] The turbulence and gustiness of winds on the site are relevant because any turbine would need to deal with them. As to the first, turbulence intensities are calculated from the standard deviation of the wind speeds. On the project site turbulence intensities so calculated were low, reflecting the gentle rolling nature and

small surface roughness of the site. Gustiness was raised in cross-examination23. In

response, Mr Botha reported that the maximum recorded gust was 176 km/hr and that, with in excess of 10 years of record, there were statistical methods available to assign probabilities to extreme gust velocities. (The IEC class II turbine mentioned above can tolerate gusts up to 216 km/hr24. In view of this Mr Botha appeared to have no concern over the possibility of high velocity gusts effecting the turbines, so we consider these

issues no further.)

18 Mr P C Botha, evidence-in-chief para 9.7 [Environment Court document 27].

19 Mr P C Botha, evidence-in-chief para 9.5 [Environment Court document 27].

20 Mr P C Botha, evidence-in-chief Fig. 3 [Environment Court document 27].

21 Mr P C Botha, evidence-in-chief para 4.11 [Environment Court document 27].

22 Mr P C Botha, evidence-in-chief para 3.1 [Environment Court document 27].

23 Transcript, p. 996.

24 Mr P C Botha, evidence-in-chief para 3.1 [Environment Court document 27].

[35] The data recorded at the two 80 metre stations and its recording, validation and interpretation were subjected to independent audit by Garrad Hassan Pacific Limited. Its report25 states that the data as recorded was of high quality and sufficient to determine the parameters necessary for an evaluation of the site‟s potential as a wind farm. The report concludes by noting “the wind conditions and other site features make wind power generation extremely attractive on the proposed Project Hayes site.”

Seasonality of the wind resource

[36] Mr Leyland, an electrical and mechanical engineer with expertise in power systems appearing for Mr Sullivan, drew attention26 to the seasonality of a wind resource. By analysing the average monthly output of the Manawatu wind farms he found generation to be lower than the annual average in the March to August period and higher than the annual average in the spring months. This seasonal distribution corresponds to that of hydro lake inflows. These are low in autumn and winter and high in spring.

[37] Mr Botha presented examples of these seasonal variations by plotting actual average monthly wind speed variations from the annual mean for the West Wind and Te Apiti wind farms and the expected variations from the annual mean at the Lammermoor site based on 11 years of simulated data27. The wind speeds are some 2.5% lower than the annual mean in the May to August period28. We note that since power depends on

the cube of the wind speed this corresponds to a 10.7% reduction in power output, a value close to the 9% reduction given by Mr Leyland29. Also on his figure Mr Botha plotted data which are referred to in his evidence-in-chief as hydro averages for Lakes Tekapo, Pukaki and Ohau. On the figure the data are referred to as lake inflows while

Mr Leyland believed them to be lake levels30. The variation from the mean annual

25 Mr P C Botha, rebuttal evidence, Attachment A [Environment Court document 27A?.

26 Mr B W Leyland, evidence-in-chief section 4.0 [Environment Court document 80].

27 Mr P C Botha, rebuttal evidence Fig 3 [Environment Court document 27A].

28 Mr P C Botha, evidence-in-chief para 2.11 [Environment Court document 27].

29 Mr B W Leyland, evidence-in-chief para 4.4 [Environment Court document 80].

30 Transcript, pages 3074-5.

value for the March to August period averages 22 to 25%31. On this data “hydro averages” show greater seasonality than do wind speed and wind power output.

Conclusions on the wind resource

[38] In summary, we find the wind resource for the Meridian site to have been well researched and documented. We accept Mr Botha‟s views, as expressed throughout his evidence, that the wind resource combined with the extent and topography of the Meridian site make it an excellent site for a large wind farm. There are of course other matters we must consider when evaluating the appropriateness of a wind farm on the Lammermoor. They are considered elsewhere in this decision.

2.3 The surrounding area

[39] Looking at the big picture first: the eastern portion of the Central Otago district contains, by New Zealand standards, a very large area not traversed by a State Highway. A line from Ranfurly to Lawrence (north/south) is 90 kilometres long while a line from Roxburgh to Middlemarch (east/west) is 64 kilometres across. Where those lines intersect is the Meridian site on the Lammermoor. Neither of those lines crosses a sealed road, and much of the area between the four towns is a series of tree-less round- topped ranges accumulating towards the south into a large plateau.

[40] There are three principal sets of northeast-southwest ranges lying like barnacled leviathans across Central Otago. They are:

2009_29301.jpg on the eastern side is the Rock and Pillar Range;

2009_29301.jpg in the centre is the Rough Ridge with the North Rough Ridge north of it;

2009_29301.jpg in the west (and much lower) are the Knobby Range (above the Clutha River)


and north of that the Crawford Hills, Raggedy Range and Blackstone Hill.

Connecting the southern ends of the series of three is the northwest-southeastern line of the Pinelheugh Range, Mt Teviot, and the Lammermoor and Lammerlaw Ranges which

together form the large if dissected plateau we referred to in the previous paragraph.

31 Mr P C Botha, evidence-in-chief para 2.12 [Environment Court document 27].

[41] The complex upland massif formed by all those ranges is the heart of Central Otago. It is all connected visually and in landscape terms. It is possible to walk from the top of the Rock and Pillar Range in a sweeping semi-circle to the south and then up to Blackstone Hill32 without getting one‟s feet wet33. The general impression of these ranges when on them is of a vast (again, by New Zealand standards) and open, upland area.

[42] To find the site within this area one travels west from Mosgiel, near Dunedin, along State Highway 87 towards the long, high and even line of the Rock and Pillar Range (to the north or right side of the view) and the Lammermoor Range (to the south or left side). The crest of the ranges is (approximately) the western boundary of Dunedin City and beyond the ranges is Central Otago district. At Clarks Junction the highway turns north and runs parallel with the eastern scarp of the Rock and Pillar Range, towards Middlemarch. However, from Clarks Junction another road, the Old Dunstan Road (often called the „Dunstan trail‟ in tourist brochures), travels northwest directly towards a low point in the long ridge. This road follows the general alignment of an old goldminers‟ route used in the 1860s. At the foot of the eastern scarp of the ranges the road crosses Sutton Stream and climbs steeply up the scarp, with the predominant vegetation changing from the vivid greens of cropped/exotic pasture to the softer brown/golden endemic tussocks. At the top of the scarp at about 850 metres above sea level (having climbed 400 metres from Sutton Stream) a wide plateau dissected by streams is discovered. Old Dunstan Road then turns northeast above a lake (actually a reservoir created by damming the Logan Burn) set in a large shallow basin on the plateau. The road then travels north towards Round Hill (1058 masl) in a diagonal line across the plateau which is the Lammermoor.

[43] Northeast of Round Hill the main bulk of the Rock and Pillar Range rises another 300 metres. The road continues north to the western side of the Lammermoor. After pausing to observe the scroll plain of the Taieri River, winding across the Serpentine Flat 300 metres below, and the Rough Ridge beyond, the road then plunges

down that face to the heritage Styx Hotel and Jailhouse buildings. The line of the Old

32 On the ranges between Becks and Oturehua.

33 The only place the walker has to cheat is when crossing the Manuherikia River using a Central

Otago Rail Trail bridge.

Dunstan Road is briefly lost on the Serpentine Flat, but can be found a few kilometres northwest at the southern end of the Maniototo Plain.

[44] In the Taieri valley on the western side of the Lammermoor there are roads on both sides of the Serpentine Flat. On the eastern side of the valley and running southwest from the Styx Hotel is the Upper Taieri-Paerau Road. If the Loganburn Ford Road is followed across the Serpentine Flat the Linnburn Runs Road is reached. At the intersection of those two roads is a small group of houses including one owned by the appellants, Mr and Mrs Manson. Their farm includes the rock and tussock hillside of Rocky Peak (739 masl) which pushes the Taieri River into another gorge north of Paerau. Mr Manson gave evidence that he strongly believes that the site is misdescribed as being on the „Lammermoor Range‟, and that it is on the Rock and Pillar Range.

Looking at the topographical map34 NZ 260-H43 there is some strength in what he says.

We sidestep the issue by calling the area of the site the „Lammermoor‟ and not the

„Lammermoor Range‟. That is justified both by the moorland topography and by the

fact that some of it is part of Lammermoor Station.

[45] Also on the northwestern side of the Taieri River, and about 1.5 km south of the Linnburn Runs Road/Deep Creek Road is another farm, “Burnbrae”, which is owned by the appellants Mr E and Mrs C Laurenson and their family trust.

[46] The Lammermoor is in the catchment of the Taieri River which, encompassing

5,650 km2, is one of New Zealand‟s largest river catchments. The river‟s headwaters rise on the Lammerlaw Range to the south of the site. Collecting various small tributaries the Taieri River runs north at the foot of the Lammermoor Scarp and along the western edge of the Rock and Pillar Range. It then winds east around the northern end of the Rock and Pillar Range before heading south (parallel to its earlier course) along the eastern side of that range to below Sutton. From there the river flows southeast down the Taieri Gorge to the Taieri Plain and the sea. At 318 kilometres in

length, the river is New Zealand‟s fourth longest.

34 Exhibit 9.3.

[47] The Meridian site is nearly surrounded by publicly-owned land which in a number of places shares a boundary with the site. The public land is:

(1) the Rock and Pillar Conservation Area is to the northeast with its closest point about one kilometre from the Meridian site;

(2) the Stonehurst Conservation Area shares a boundary with the eastern side of the site (north of the Logan Burn Reservoir);

(3) the Te Papanui Conservation Park is to the southeast of the site on the broad crest of the Lammermoor Range (the closest points are about one kilometre apart and there are conservation covenants over the intervening part of Rocklands Station);

(4) the Taieri Rapids Scenic Reserve is a small reserve on the southwestern corner of the Meridian site;

(5) the Taieri Wetlands Wildlife Management Reserves is 200 to 300 metres below the site and to the west. It is part of the Serpentine Flat scroll plain at a distance of two or three kilometres from the site;

(6) the Logan Burn Reservoir including a reserve margin which varies in width between 600 and 1200 metres;

(7) Shepherds Hut and Stony Creek Wildlife Management Reserves which can be accessed from Pylon Road. They provide public access along the stream‟s margins and protection for the high biodiversity values remaining.

2.4 The history of the area

[48] The human history of the Meridian site is the history of the Lammermoor, and so is bound up as part of the history of Central Otago. Little is known of the Maori iwi – the Waitaha and Ngai Tahu – on the Lammermoor, probably because they were only visitors, and not inhabitants. Maori interest in the area focussed on food gathering, particularly of moa and weka, and as a route to get to other parts of Central Otago. It is not clear whether the Lammermoor was an actual hunting site, or a route to the hunting

grounds of the Maniototo Plain35. It is possible that the routes across the Lammermoor

that are the focus of the heritage interest today were first used by Maori, and later

35 Mr P R Petchey, evidence-in-chief, p. 6 [Environment Court document 5].

travellers were following routes established by the Maori36. A nohoanga site (traditional camping site) in the Logan Burn gorge near the Upper Taieri Paerau Road is shown on the District Council‟s Planning Maps.

[49] European settlement of the Lammermoor area began after the 1848 purchase by the Government of the mid-part of the South Island from Ngai Tahu in what has become known as „Kemp‟s Purchase‟. The land was made available initially for freehold purchase, and then as pastoral leasehold land in 1851. The evidence is somewhat confusing37, but it appears, based on the evidence of Mr Harrington38, that the entire Lammermoor area – including part of the Lammerlaws, Te Papanui, the Meridian site and the entire Rock and Pillar Range – was originally licensed (not leased) as one block known as the Loganburn Run covering some 120,000 acres. This large licence was divided into smaller pastoral leases soon after the turn of the century39. The current stations which have part of their land affected by Meridian‟s proposal were identified in part 1.1 of this decision.

[50] Sheep have been the main focus of the extensive pastoralism of the area. In the mid 1860s there were some 39,000 sheep run on two of the stations40. This extensive pastoralism remains a feature of the area today, with over 26,000 head of stock41 being grazed on the five42 properties within the project site. Rabbit numbers are unknown,

but rabbits reached the area in the early 1870s43.

36 Mr P R Petchey, evidence-in-chief para 3.4 [Environment Court document 5].

37 Compare Mr P R Petchey, evidence-in-chief paragraphs 3.7 to 3.9 [Environment Court document

5] with Mr J W Douglas „Rebuttal evidence of Mr P R Petchey‟ para 3.8 [Environment Court

document 15A].

38 Transcript, p. 2194 ff.

39 Mr P R Petchey, evidence-in-chief para 3.8 and exhibit 3.5 page 9 (Environment Court document

5].

40 Mr P R Petchey, evidence-in-chief para 3.8 records over 16,000 on Rocklands in 1868, and Exhibit

3.5 (p. 9) records 23,000 on the Rock and Pillar run [Environment Court document 5].

41 Mitchell Partnerships, Project Hayes Assessment of Environmental Effects 2006, Original hearing

AEE Vol. 1.0.

  1. Sheet 100 – Overall Site Development Land Ownership Plan, Appendix G to Appendix B AEE Vol. 2.0.

43 Exhibit 3.5 p. 9.

[51] The area was one of the earliest to undergo land tenure review when the Rocklands lease was reviewed in 1995. This review resulted in the creation of the Te Papanui Conservation Park which lies just to the south of the proposed wind farm44. It also resulted in a covenant over 2,500 hectares of freehold land to protect historic mining sites and the designation of 35 kilometres of public access tracks and 26 kilometres of riverbank reserves45. Since then the leases resulting from the division of the more northern part of what was the Rock and Pillar lease have also been through tenure review, resulting in significant sections of the Rock and Pillar Range being set aside as part of the conservation estate46. In fact the Rock and Pillar Conservation Area is now continuous along the eastern side of the Rock and Pillar Range from just north of the Meridian site47. Of the three leases at the southern end of what was the Rock and Pillar lease, two have entered into tenure review. The Stonehurst lease completed tenure review in or after 200548 with the result that part of that lease straddling Old Dunstan Road and abutting onto the project site between the Logan Burn Reservoir and Old Dunstan Road became part of the Rock and Pillar Conservation Area49. The Kelvin Grove lease lies between the ex-Stonehurst part of the Rock and Pillar Conservation Area and the rest of the Conservation Area. This lease entered tenure review at about the same time (1997-2005) as the Stonehurst lease50 but did not complete the tenure review process51.

[52] Pastoralism was the initial impetus for the development of a road over the Lammermoor. By the late 1850s there was a rough track across the Lammermoor called The Mountain Track by the isolated homesteads of Central Otago it served52. In

1858 funds were made available for three “pastoral roads” into Central Otago, one of

which was the option of the „Mountain Track‟ over the Rock and Pillars53. The

44 Mr P R Petchey, evidence-in-chief para 3.10 [Environment Court document 5].

45 Mr W Harrington, evidence-in-chief para 14 [environment Court document 51].

46 Exhibit 3.2 Map 5-15.

  1. Mr P Rough, evidence-in-chief Sheet 2 of the Attachments, Transcript p. 104, Exhibit 3.2 p. 5 (not paragraph 1 as stated in transcript) [Environment Court document 3].

48 Kingett Mitchell evidence to original hearing, AEE Vol. 3, Appendix E, p. 48.

49 See Sheet 2 of Rough evidence-in-chief attachments and maps 5-15 and 1 of Exhibit 3.2.

50 Transcript, p. 133 and handwritten date (28/2/97) on p. 1 of copy provided in evidence.

51 Transcript, p. 136.

52 Mr G C Sydney, evidence-in-chief para 25 [Environment Court document 11].

53 Ms S Hinds, evidence-in-chief p. 2 [Environment Court document 16].

„Mountain Track‟ was investigated in 1858/185954 and funds voted for its development as a dray track in 186055. It was ready for use by drays in April 186156.

[53] With the discovery of gold in the Dunstan region in August 186257, large numbers of gold-seekers headed into Central Otago. They were in a hurry and their choices were limited. The „Mountain Track‟ was the shortest route58. It is likely that several thousand hopeful prospectors travelled the „Mountain Track‟ over the next few months, most of them on foot or by dray59. On 6 November 186260 the first coach travelled the „Mountain Track‟ as a trial, and on 25 November 186261 the first scheduled coach run was made.

[54] Although the „Mountain Track‟ was the most direct route, it was also the most difficult and dangerous due to the steep climbs and the extremes of weather on the Lammermoor. After two years of often precarious coaching across the Lammermoor, and after the particularly hard winter of 1864 the decision was made to use the

alternative Pigroot (now State Highway 85) for winter coaching62. The „Mountain

Track‟ – now called „the Old Dunstan Road‟ was still used for coaches in the summer months, as well as by those on foot, horseback and by drays, servicing the travelling needs of both the gold-diggers and the pastoral communities well into the 1800s63. The use of the Old Dunstan Road continued into the 20th century at sufficient volumes that an hotel was still operating in the early part of the century64. Although closed to public use by locked gates in winter since 200365, it has continued as a summer route through

to the present day66.


  1. Mr J W Douglas, rebuttal evidence to Mr P R Petchey, appendix 1 p. 1 [Environment Court document 15A].
  2. Transcript, pages 357 and 363 and Ms S Hinds, evidence-in-chief p. 2-3 [Environment Court document 16].

56 Ms S Hinds, evidence-in-chief p. 3 [Environment Court document 16].

57 Mr P R Petchey, evidence-in-chief p. 8 [Environment Court document 5].

58 Mr P R Petchey, evidence-in-chief para 3.12 [Environment Court document 5].

59 Ms S Hinds, evidence-in-chief para 5 [Environment Court document 16].

60 Mr P R Petchey, evidence-in-chief extract p. 30 [Environment Court document 5].

61 Ms S Hinds, evidence-in-chief para 6 [Environment Court document 16].

62 Mr P R Petchey, evidence-in-chief para 3.13 [Environment Court document 5].

63 Ms S Hinds, evidence-in-chief para 7 [Environment Court document 16].

  1. Mr J W Douglas, Landscape/visual/heritage evidence-in-chief p. 16 para 5.3.5 [Environment Court document 15].

65 Mr J W Douglas, rebuttal evidence to Mr P R Petchey, para 5.11 [Environment Court document

15A].

66 Ms S Hinds, evidence-in-chief para 7 [Environment Court document 16].

[55] The Old Dunstan Road has been minimally upgraded through the years, including widening and installation of concrete fords and culverts at stream crossings, with some gravel application to parts of the road on the Dunedin side67. The Old Dunstan Road follows the same route as it did in the late 19th century and only slightly deviates from the route the diggers took in the 1860s68. In appearance, although slightly wider and of slightly better quality, it “retains the essential elements of its original existence”69. It is 102 kilometres from Clarks Junction to Moa Creek over the Lammermoor and Rough Ridge70.

[56] The „Mountain Track‟ was not the only way the gold-diggers crossed the Lammermoor in the 1860s. Spillers Track crossed the Lammermoor at the southern end. It also probably follows a route first established by Maori71. The history of the development and use of this track was not presented in evidence. It was still in use in the early 20th century72. The eastern end of Spillers Track is now Pylon Road which, as the name suggests, is a road servicing the power pylons of the Roxburgh-Three Mile Hill transmission line. While Pylon Road is closed to public vehicular traffic by a locked gate, Spillers Track (including Pylon Road) is open to self-propelled public access – walking, biking or on horseback73. Not only was Spillers Track a route across the Lammermoor, it also serviced the small amount of mining activity known to have occurred on the Lammermoor. These mines were probably first worked some time in the 1860s or 1870s74, and were still being worked into the 20th century75. The evidence of this mining activity can still be seen in many places in the area through which Spillers

Track passes76.

67 Mr P R Petchey, evidence-in-chief para 4.18 [Environment Court document 5].

68 Mr P R Petchey, evidence-in-chief para 4.15 [Environment Court document 5].

69 Mr P R Petchey, evidence-in-chief para 4.19 [Environment Court document 5].

70 Mr R J Greenaway, evidence-in-chief para 1.11 [Environment Court document 59].

71 Mr P R Petchey, evidence-in-chief para 3.4 [Environment Court document 5].

  1. Mr J W Douglas, Landscape/visual/heritage evidence-in-chief p. 20 para 6.1.2 [Environment Court document 15].

73 Mr R J Greenaway, evidence-in-chief Appendix 1 [Environment Court document 59].

74 Mr P R Petchey, evidence-in-chief paragraphs 3.11 and 4.9 [Environment Court document 5].

  1. Mr J W Douglas, Landscape/visual/heritage evidence-in-chief p. 20 para 6.2.2 [Environment Court document 15].

76 See Map 1, Archeological Site Locations, attached to Mr P R Petchey‟s evidence-in-chief

[Environment Court document 5].

[57] Prior to, and immediately following, the 1862 discovery of gold the only services to the travelling public on the „Mountain Track‟ were those provided by the homesteads of the pastoral leases77. The increase in travellers following the 1862 discovery prompted a number of establishments to set up and service the trade. As well as two coaching firms travelling the route, there were at least two hotels on the Lammermoor in the vicinity of the project site: McKirdy‟s Hotel beside what was then the Great Moss Swamp and is now the Logan Burn Reservoir, and McPhees Hotel on the Lammermoor summit in the vicinity of McPhees Rock78. Other establishments on the Mountain

Track included hotels at Deep Stream, possibly at Sutton Stream, two at Styx (Paerau)79,

and the jail at Styx.

[58] As gold fever died out travellers took easier routes and the services, no longer needed on the Mountain Track, faded away. The name applied to the route changed: from one reflecting the terrain it traversed (the Mountain Track) to one reflecting the destination it served (the Dunstan Road) and then again to reflect its history (the Old

Dunstan Road). The road remains, minimally maintained80, as a “back country dirt

road”81, usable with care by two wheel drive motor vehicles in prolonged dry weather82.

[59] Pastoral farming reasserted itself in the 20th Century as the pre-eminent activity on the Lammermoor. Recreational skiing began in the area in 193283 and recreational use of the area grew from then, and remains a feature of the area today.

2.5 The uses of the area (farming, water reservoir, energy transmission)

[60] The Meridian site is used for farming by the five landowners. Sheep and cattle are grazed at very low rates – about one sheep per two hectares. Post and wire fences have been constructed across the Meridian site, especially on the boundary lines. There

are stockyards and airstrips, and an extensive network of farm tracks on either side of

77 Ms S Hinds, evidence-in-chief paragraphs 4 and 5 [Environment Court document 16].

78 Mr P R Petchey, evidence-in-chief para 3.14 [Environment Court document 5].

79 Mr P R Petchey, evidence-in-chief para 3.14 [Environment Court document 5].

80 Mr P R Petchey, evidence-in-chief para 3.15 [Environment Court document 5].

81 Mr P R Petchey, evidence-in-chief para 4.22 [Environment Court document 5].

82 Mr P R Petchey, evidence-in-chief para 3.15 [Environment Court document 5].

83 Evidence of Mr R J Greenaway to original hearing, p. 98, AEE, Vol. 3.

the Logan Burn. About 350 hectares of the Meridian site within Lammermoor Station has been ploughed and sown (above the Logan Burn Reservoir) with exotic grasses. On our observation there has been limited take by sown grasses and instead other adventitious species (and some native species) such as sheep‟s sorrel (Rumex acetosella) have introduced themselves to the ploughed areas.

Schemes for conserving water quantity and quality

[61] The Logan Burn Reservoir was built to store water for release to the Maniototo irrigation scheme when required and to generate modest amounts of electricity at the Paerau generating station.

[62] Also relevant under this head is that one of the reasons for the Papanui Conservation Park was to protect the head of Deep Creek catchment which supplies some of Dunedin City‟s water.

Transmission infrastructure (and constraints)

[63] A corridor across the southern end of the Lammermoor is used for infrastructure. It contains the 220 kiloVolt (“kV”) Roxburgh-Three Mile Hill section of the national electricity grid. The pylons along this line vary in height, but the tallest is up to 45 metres high.

[64] At some point we need to discuss the wider grid because it raised issues of concern to parties opposing Meridian‟s application, and here is convenient. The starting point is that power is distributed throughout New Zealand over a network of high voltage transmission lines referred to as the National Grid. The grid is owned and operated by Transpower. Power generators such as Meridian have open access to the grid provided they meet minimum technical standards. The National Grid, in common with all transmission systems, has constraints which limit the operating capacity of the

system. Those of immediate importance to Meridian‟s proposal are:

2009_29301.jpg the capacity of the lines between the Clutha and Waitaki Rivers, referred to

as the Lower South Island („LSI‟) constraint; and

2009_29301.jpg the capacity of a 220/110 kV transformer at Roxburgh substation known as

the RoxT10 transformer („RoxT10‟).

The Cook Strait cable is also a constraint on the National Grid which could have a bearing on the proposal if its power is to be transmitted to the North Island or when, for example in a dry year, South Island power generation needs to be supplemented by generation in the North Island.

[65] Mr Timothy George, General Manager Grid Investment for Transpower, discusses the LSI and RoxT10 constraints in an Appendix to his evidence-in-chief84. He explained that there are three lines between the Clutha River and the Waitaki River over which power flows from and into the LSI. The constraint is the summer thermal limits on the Roxburgh/Livingstone line through Danseys Pass for both south to north (export) and north to south (import) flows. Mr George notes that in 2006 the constraint limited export flows for 0.1% of the time which he claimed was trivial85. Exhibit 73.1 “Lower South Island Transmission Upgrade Investigation” outlines the options being considered by Transpower to increase the capacity of the LSI constraint to assist with the potential connection of new generation in the LSI.

[66] The constraint on RoxT10 is a thermal constraint. It is applied so that flows in the event of a credible failure in one of the 110 kV circuits serving Otago/Southland do not exceed the technical limit of the transformer. There have been approximately 700 occasions totalling eight hours between March 2006 and April 2008 when the constraint

bound86. Options to reduce this constraint have been considered by Transpower but not

implemented as the constraint can be managed in ways that do not have a high cost.

[67] Further north, power transmission from the Waitaki Valley to the North Island is via the High Voltage Direct Current („HVDC‟) link from Benmore to Haywards which includes the Cook Strait cable. At present the cable is limited to 600 MW approximately but plans have been approved by the Electricity Commission to upgrade

its capacity to 1400 MW by 2012. Possible constraints on the wind farm proposal and

84 Mr T A George, evidence-in-chief appendix [Environment Court document 37A].

85 Mr T A George, evidence-in-chief para 148 [Environment Court document 37A].

86 Mr T A George, evidence-in-chief para 133 [Environment Court document 37A].

other South Island power going north and on the southward flow of power will thus be much reduced by that time.

2.6 Other uses of the area (recreation, tourism, heritage protection)

2.6.1 Introduction

[68] Recreational evidence was provided by two witnesses: Mr Greenaway, a consultant leisure and open space planner for Meridian, and Ms J I Kelly for the Central Otago Recreational Users Forum (“CORUF”). Ms Kelly informed us that CORUF consists of some 60 recreational clubs, groups and individuals comprising several thousand persons87.

[69] Around the site there are88 at least six reserves, two conservation parks, a reservoir used as a trout fishing destination, and a network of paper roads, public roads, easements and esplanade reserves allowing access. They are all available for recreational use. Clockwise we heard evidence pertaining to:

(1) The Rock and Pillar Range

This Range to the northwest of the site is used by walkers, hunters and trampers in summer89. It is also used by cross-country skiers in winter90. Access is via steep tracks on the eastern face, or by a track turning off the Old Dunstan Road towards McPhees Rock. The Rock and Pillar Range contains 23 km2 of reserve along the crest of the range, and more recently acquired land (formerly part of Stonehurst Station) along the eastern side of the Old Dunstan Road, near McPhees Rock91. There are two mountain huts on the range above Middlemarch. The Rock and Pillar Hut Trust maintains Big Hut and the Otago Tramping and Mountaineering Club maintains Leaning Lodge. At Big Hut visitor numbers increased from 96

in 2001 to 347 in 200792. The Department of Conservation does not

87 Ms J I Kelly, evidence-in-chief para 5 [Environment Court document 17].

88 Detailed above in section 2.3.

89 Mr R J Greenaway, evidence-in-chief p. 5/48 [Environment Court document 59].

90 Mr R J Greenaway, evidence-in-chief p. 5/48 [Environment Court document 59].

91 Mr R J Greenaway, evidence-in-chief p. 6/48 [Environment Court document 59].

92 Ms J I Kelly, further submissions called „rebuttal evidence 20 June 2008‟ para 30 [Environment

Court document 71].

promote 4WD activity in the Rock and Pillars, and avoids mentioning it as an appropriate activity93.

(2) The Logan Burn Reservoir

The place of this artificial lake in the landscape we will discuss later. The lake is used for angling, although „... actual angling use is likely to be moderate‟94. Boating on the reservoir is facilitated by a boat ramp near the Logan Burn dam. As many as 30 boats a day have been reported on the water in the January/February period with an average of three to six boats a day95.

(3) The Old Dunstan Road

This road is an easy four wheel drive route in three seasons but is closed in winter (June to 30 September). Apart from sight-seers in cars (50-60 vehicles per day in 2007 with a Waitangi Day peak of 15096), the Old Dunstan Road is used by fit mountain-bikers and by horse-riders. It is recognised as a mountain biking route comprising two sections. One from Clarks Junction to Paerau which skirts the project site and the other from

the upper Taieri Plain to the Ida Valley. Mr Greenaway‟s usage figures were disputed by CORUF97 as being limited in scope and based on inadequate research. Ms Kelly offered a selection of comments obtained from a web search that suggest the Old Dunstan Road receives a „varied and interesting‟ amount of use98. We cannot determine anything quantitative from this listing. In any event it is clear there are many

opportunities for recreation based on the Old Dunstan Road.

93 AEE, Appendix J page 48 and Transcript, p. 2429.

94 Mr R J Greenaway, evidence-in-chief p. 5/48 [Environment Court document 59].

95 Mr R J Greenaway, evidence-in-chief p. 11/48 [Environment Court document 59].

96 Mr R J Greenaway, evidence-in-chief p. 5/48 [Environment Court document 59].

97 Ms J I Kelly, further submissions called „rebuttal evidence 20 June 2008‟ para 9 [Environment

Court document 71].

98 Ms J I Kelly, rebuttal evidence 20 June 2008 paragraphs 13 to 33 [Environment Court document

71].

(4) Great Moss Swamp Wetlands, Shepherds Hut and Stony Creek Wildlife

Management Reserves

Although the significance of these lies principally in their ecological value, collectively they also provide access for recreational activities.

(5) Te Papanui Conservation Area

Mr Greenaway described the use of this area to the south of the site on the

Lammermoor Range as follows:

This area of snow tussock is predominantly of conservation rather than recreation value. However, a 4WD track extends through the park from Old Dunstan Road and is the dominant access route, leading to or from Lawrence. Some mountain biking and horse trekking occurs. The only recreational hut in the park – Mountain Hut – has recently been removed due to its poor condition ... Recreational use is low.

In cross examination by Mr Holm, Mr Greenaway stated that the area is “being managed by the Department of Conservation primarily for its conservation values rather than its recreation values”99. This was disputed by the Otago Conservation Board witness, Mr F Sutherland, a member of the Board when the Park was established, who in cross-examination by Mr Holm asserted100:

... it [Te Papanui Conservation Park] was primarily reserved for its tussock values and its landscape values and its recreational values in a location close to the city of Dunedin ...

(6) Rocklands Station

Parts of Rocklands Station at the southern end of the Meridian site are subject to access easements or contain legal roads which are used for a small amount of recreation101. The easements limit public use to access on

foot or by bike. Mr Greenaway wrote102:

99 Transcript, p. 2145.

100 Transcript, p. 3049.

101 Mr R J Greenaway, evidence-in-chief p. 6/48 [Environment Court document 59].

102 Mr R J Greenaway, evidence-in-chief p. 6/48 [Environment Court document 59].

The public walking and cycling route from Old Dunstan Road to the Taieri Rapids Scenic Reserve is largely based on Pylon Road ... and for much of the route is within 500 metres of its towers and cables.

(7) The Upper Taieri River

The public recreational areas include:

2009_29301.jpg the scroll plain (including the Serpentine Flat) west of the Upper

Taieri-Paerau Road; 2009_29301.jpg Canadian Flat;

the Taieri Rapids Scenic Reserve.

Mr Greenaway wrote103:

Canadian Flats, Serpentine and the upper Taieri River:

These areas include Department of Conservation Wildlife Management Reserves around the upper Taieri River and offer angling and hunting opportunities. Recreational use is very low at the Taieri Rapids Scenic Reserve and increases downstream. Where the river meets the flats, an important angling destination exists.

The upper Taieri wetlands are important. The Central Otago District Plan records104:

Of special significance is the Upper Taieri wetlands. These wetlands are at least of national importance for wildlife values ... Fifty-two species of bird have been recorded there. The former Wildlife Service rated the wetlands as being internationally important as waterfowl habitat, as one of the three most valuable freshwater wildlife habitats in Otago, and one of the ten most valuable in New

Zealand.

103 Mr R J Greenaway, evidence-in-chief p. 6/48 [Environment Court document 59].

104 Central Otago District Plan, para 2.4.3(iv).

Water fowl hunting is a popular recreational activity throughout the district. The Upper Taieri wetlands are a regionally significant waterfowl hunting area used by over 300 hunters annually.

(7) The Styx Jail and Hotel

These old heritage buildings are at Paerau where the Old Dunstan Road, after winding down the escarpment above the Taieri River, meets the Styx Patearoa Road on the flats.

(9) Other heritage sites

The main heritage goldmining site on the project site can be accessed from Spillers Track, an early road which retains its original form in some sections. This is the Pettigrew/Clunies claim which contains Pettigrews hut, water races and sluicing remains. Early pastoral sites include sod stockyards and early shepherds‟/boundary riders‟ hut sites. Trig stations are also considered to be part of the historic landscape as tangible

reminders of early surveying work105. We have no doubt that these form

part of a heritage landscape of interest to those whose enthusiasms lie in examining the past.

2.6.2 Commercial tourism

[70] Tourism Central Otago‟s website lists six tour operators offering tours in the study area106. Of these, two reported using the Old Dunstan Road and venturing onto the Lammermoor. One makes occasional visits to the Rock and Pillar Range to view flowering alpine plants and one takes tourists to the Otago Central Rail Trail. We note this is 2006 information. Ms Kelly updated107 it by referring to another company taking tourists to the Rail Trail. She also noted the numbers using the Rail Trail had increased approximately 10% per year since 2003. In view of the current financial

climate we consider we are safe to use Mr Greenaway‟s figures.

105 Meridian‟s AEE Volume 3 Appendix G, para 9.7.

106 Mr R J Greenaway, evidence-in-chief p. 9/48 [Environment Court document 59].

  1. Ms J I Kelly, further submissions called „rebuttal evidence 20 June 2008‟ paragraphs 34 -36 [Environment Court document 71].

2.6.3 Fishing

[71] In relation to the Logan Burn Reservoir, a Mr Kent, in a 2006 fishing guide quoted by Mr Greenaway108, stated:

... (the Logan Burn Reservoir) holds a reasonable stock of brown trout averaging 1.3 kg but these are not easy to catch on a fly until the cicadas arrive in late January. The water is brownish in colour...

Mr Greenaway reproduced figures from a National Angler Survey109 for angler days by two month periods. They are for one year (2001/2002), have large error margins and were described by the fishing guides interviewed by Mr Greenaway as being on the high side. In addition we note the comment from one of these guides110 that the fishing can be variable from year to year and thus we have little confidence in the figures presented. Against that, Ms Kelly, quoting from a NIWA publication, noted that the 2001/2002

National Angler Survey figures total 4280 compared to 1320 visits in 1994/96 and infers a significant increase in fishing at the Logan Burn Reservoir111.

[72] In regard to the Taieri River Mr Greenaway again quoted from Mr Kent‟s 2006

fishing guide112:

...the water is heavily peat stained making sight fishing difficult unless the fish are rising. There are few fish above Canadian Flat. At Serpentine Flat ... some excellent nymph and dry fly fishing can be experienced on calm days with accurate casting.

[73] Mr Greenaway interviewed three fishing guides identified through the Maniototo

Visitors Information Centre113. One takes visitors, including internationals to Logan

Burn Reservoir. However, the majority of internationals prefer river fishing and thus the

108 Mr R J Greenaway, evidence-in-chief para 2.9 [Environment Court document 59].

109 Mr R J Greenaway, evidence-in-chief para 2.11 [Environment Court document 59].

110 Mr R J Greenaway, evidence-in-chief p. 11/48 [Environment Court document 59].

111 Ms J I Kelly, further submissions called „rebuttal evidence‟ para 42 [Environment Court document

71].

112 Mr R J Greenaway, evidence-in-chief para 2.14 [Environment Court document 59].

113 Mr R J Greenaway, evidence-in-chief p. 10/48 et ff [Environment Court document 59].

guides make greater use of the upper Taieri River. Despite that, neither the Taieri River nor the Logan Burn Reservoir are referred to in “New Zealand‟s Top Trout Fishing Waters” by Kent and Marsden (2003) as quoted by Mr Greenaway114. Mr Greenaway notes they are also absent from the „more selective angling guides‟.

2.6.4 Tramping, walking and skiing

[74] Mr Greenaway wrote that there are no named formal walking tracks on the Lammerlaw/Lammermoor/Rock and Pillar Range plateau115, and that access is confined to the 4WD drive tracks. This was disputed by Ms Kelly in her submissions. She referred to tracks listed in “Day walks in Dunedin and Coastal Otago” by Bill Wilson (no date is given) and to tracks identified by trampers she interviewed116. These tracks encompass Te Papanui Conservation Area and the Rock and Pillar Range. Further, in our observation this is the sort of country where, if fit enough, a person can wander at will.

[75] Skiing is based around Big Hut and Leaning Lodge and is generally cross country skiing. That the maintenance of these facilities is now the responsibility of private groups is evidence of the values placed upon them117 and on the recreational opportunities they facilitate.

2.6.5 Mountain biking

[76] The Otago Central Rail Trail is the most heavily promoted mountain bike route in the district. It is mentioned in 16 of the popular guides cited by Mr Greenaway118. Only two mentioned the Old Dunstan Road as a mountain bike route. It, in common

with other mountain routes, is clay based and unsuitable in wet or winter conditions.

114 Mr R J Greenaway, evidence-in-chief para 2.8 [Environment Court document 59].

115 Mr R J Greenaway, evidence-in-chief para 2.16 [Environment Court document 59].

  1. Ms J I Kelly, further submissions called „rebuttal evidence 20 June 2008‟ paragraphs 72 -74 [Environment Court document 71].

117 Ms J I Kelly, further submissions called „rebuttal evidence 20 June 2008‟ para 79 [Environment

Court document 71].

118 Mr R J Greenaway, evidence-in-chief para 2.20 [Environment Court document 59].

2.6.6 Driving and sightseeing

[77] Mr Greenaway quotes from a 1988 publication by Mr B Mason as follows:

Recreational vehicle use is heaviest on the Old Dunstan Road which is usable by two wheel drives during dry conditions. This is a distinctive motoring experience although rapid pasture development, roadside fencing and road upgrading is taming the wild land character of th is upland... The Lammermoors and Lammerlaws are occasionally visited by off-road vehicle clubs, although there are considerable hazards.

We note the date of this publication and are aware that conditions may have changed in the intervening twenty-one years. In particular we find that the „pasture development‟ on the plateau is very limited. Most of the development has occurred between Clarks Junction and the eastern scarp (and on that face).

[78] No mention was made by Mr Greenaway of rally driving or multisport events, such as the Southern Traverse, which Ms Kelly claimed make use of the study area119.

2.6.7 Horse trekking

[79] The Otago Goldfields Trust organises an annual Goldfields Cavalcade which involves eight or nine trails of different grade, length and form of transport (walking, riding, heavy and light wagons) beginning at different locations and finishing at a host town. In 2007 the event comprised four walking trails, two wagon trails and four riding trails120. There have been 16 cavalcades since 1991 with recent ones involving some

500 people and 300 horses travelling for up to eight days121. In most years a trail will

pass over the Lammermoor/Lammerlaw area122. It was Ms Kelly‟s submission that the Old Dunstan Road is “at the heart of the Otago Cavalcade”123. Mr Greenaway offers the opinion124 that casual horse trekking is an infrequent activity in the area surrounding

the project site.

119 Ms J I Kelly, further submissions called „rebuttal evidence 20 June 2008‟ para 49 [Environment

Court document 71].

120 Mr R J Greenaway, evidence-in-chief para 2.30 [Environment Court document 59].

121 Dr M J Floate, submission para 21 [Environment Court document 22].

122 Mr R J Greenaway, evidence-in-chief para 2.30 [Environment Court document 59].

123 Ms J I Kelly, further submissions called „rebuttal evidence 20 June 2008‟ para 37 [Environment

Court document 71.

124 Mr R J Greenaway, evidence-in-chief para 2.29 [Environment Court document 59].

2.6.8 Hunting

[80] The Fish and Game New Zealand web pages devoted to hunting for the Otago Region make no mention of hunting in the study area125. Limited game bird hunting including for Canadian Geese and some ducks occurs in the Logan Burn area. We would be very surprised if there is not some shooting of rabbits and/or hares. We observed spent cartridges in a number of places during our site inspections.

2.6.9 Photography, botanising, art and filming

[81] These are all activities undertaken in the study area. Brief reference is made to them by Ms Kelly who has recorded the views of people she interviewed126. That was not, strictly speaking, evidence but we find it highly probable that people take photographs in the area, and we read evidence of the appellant Mr Douglas which states that he botanises in the area.

2.6.10 Recreational significance of the study area

[82] Having assessed each of his recreational „settings‟ in the study area and the activities within them Mr Greenaway concluded127 that the settings are most likely to be of regional significance, and that sufficient use is made of the sites to suggest to him that they are of more than local significance. He referred particularly to the Old Dunstan Road and the Logan Burn Reservoir. He also suggested that the Otago Central Rail Trail may be of national significance.

[83] Nowhere does Ms Kelly offer an alternative „significance‟ rating. She does comment that in relying on numbers Mr Greenaway failed to appreciate that people go to an area for the quality of the experience128. In her submission129 she challenged Mr Greenaway‟s apparent assumption that outdoor recreation can be, and is, divorced from

its surroundings.

125 Mr R J Greenaway, evidence-in-chief para 2.29 [Environment Court document 59].

  1. Ms J I Kelly, further submissions called „rebuttal evidence 20 June 2008‟ paragraphs 83 -86 [Environment Court document 71].

127 Mr R J Greenaway, evidence-in-chief para 3.5 [Environment Court document 59].

128 Ms J I Kelly, further submissions called „rebuttal evidence 20 June 2008‟ para 87 [Environment

Court document 71].

129 Ms J I Kelly, submission para 2 [Environment Court document 88].

[84] We find that the Old Dunstan Road and surrounding public lands are of great importance to recreational users. We consider the potential effects of the Meridian proposal on these users in Chapter 5.0.

2.7 The vegetation of the Lammermoor

2.7.1 Introduction

[85] We rely upon the descriptions primarily of Dr K M Lloyd, a botanist called by Meridian Limited, in the AEE report by Kingett Mitchell and of Dr A F Mark, called by the Maniototo Environmental Society Incorporated. Most of the wind farm site is located within the Rock and Pillar Ecological District (of the Central Otago Ecological Region) but the southern part lies within the Waipori Ecological District (of the Lammerlaw Ecological Region). In both districts the upland vegetation above 800 masl comprises largely indigenous tall tussock grassland vegetation in which the narrow- leafed snow tussock (Chionochloa rigida subsp. rigida) is the dominant species. A

range of other vegetation types is associated with rock outcrops and wetlands130. The

Manorburn Ecological District lies only 1-2 kilometres to the west and the Maniototo approximately 11 kilometres to the north.

[86] Although woody species may once have been more widespread131 the site vegetation is generally described as having a blanket uniformity which arises from the snow tussock dominance. A species inventory from a survey carried out on site notes

126 species – 25 exotic and 101 native – of lichens and mosses present132. Dr Lloyd

identified nine nationally or regionally threatened and uncommon plant species133 within the farm envelope134. Three vegetation plant communities – tussock grassland, wetland bog and rock outcrop shrubland – were identified. We detail them because of their importance as the drivers of ecosystems and in particular of fauna habitat and because

they underpin so much of the sense of place elsewhere described.

130 Dr K M Lloyd, evidence-in-chief para 2.1 [Environment Court document 35].

131 AEE, Volume 3 para 5.3.1.

132 AEE, Volume 3 para 5.3.1.

133 Dr K M Lloyd, evidence-in-chief Table 1 [Environment Court document 35].

134 Dr K M Lloyd, evidence-in-chief para 4.14 [Environment Court document 35].

2.7.2 Tussock grassland

[87] About 95% of the site is tussock grassland135 dominated by snow tussock. Inter- tussock vegetation usually comprises a mat of low growing native and exotic grasses, herbs and sub-shrubs136. Exotic grasses include perennial ryegrass (Lolium perenne), white clover (Trifolium repens), cocksfoot (Dactyllis glomerata), brown top (Agrostis capillaris) and sweet vernal (Anthoxanthum odoratum). Sheep‟s sorrel (Rumex acetosella) is widespread and on the more sparsely vegetated areas. Exotic weed species include two species of Hawkweed, mouse ear (Hieracium pilosella), tussock hawkweed (Hieracium lepidulum), cats-ear (Hypochoeris radicata) and Yorkshire fog

(Holcus lanatus).

[88] Dr Lloyd describes the native species golden Spaniard (Aciphylla aurea), patotara (Leucopogon fraseri), Raoulia subsericea, Hebe odora, and inaka (Dracophyllum longifolium) as ubiquitous in the tussock vegetation with a wide range of additional native species found at lower densities137. Three endemic spring annuals (Myosotis, Ceratocephalus, Myosorus) germinate, flower, fruit and seed all within spring138.

[89] Snow tussock values were outlined by Dr Mark who has researched their ability to maximise quantity, quality and delayed/sustained yield of water. The species make- up and quality of the tussock grassland cover over the site is driven by site topography and farming practices. Kingett Mitchell‟s AEE report found the southern and eastern areas inter-tussock flora healthier and more species rich with tussock height 0.5-1 metre tall leading to minimal inter-tussock gaps. It assessed vegetation along the western scarp as more modified with tussock height not greater than 0.5 metres with inter-

tussock gaps > 1.0 metre139. On dry shoulders and where thin soils occur on sunny

slopes snow tussock is described as sparse and dense mats of mouse-ear hawkweed are present. Dr Lloyd wrote140 that although these appear degraded a surprising diversity of

indigenous plant species may be present including patotara, Pimelia prostrata, Carex

135 AEE, Volume 3, para 5.3.1.

136 Dr K M Lloyd, evidence-in-chief para 4.4 [Environment Court document 35].

137 Dr K M Lloyd, evidence-in-chief para 4.1 [Environment Court document 35].

138 Exhibit 35.1.

139 AEE, Volume 3 para 5.3.2.

140 Dr K M Lloyd, evidence-in-chief para 4.5 [Environment Court document 35].

brevifolia, Coprosma petriei, Geranium sessilifolium, Raoulia subsericea, and blue tussock (Poa colensoi).

[90] Dr Lloyd stated that141older pasture which is present on some sunny slopes at lower elevation and sunny ridges (including some tussock species) was not formed by cultivation but by intense stock grazing pressure together with oversowing and/or topdressing. This pasture also occurs in linear strips beside most of the farm access roads. Despite the decrease in tussock vigour the evidence was that the vegetation still gives the impression of an extensive and continuous snow tussock cover142. Dr Lloyd believes these areas comprise indigenous vegetation.

2.7.3 Shrubland

[91] Dr Lloyd143 considered that rock outcrops are particularly important for the overall diversity of plant species at the site. There are many rock outcrops and cliffs in the deeply incised gorges of the Taieri River and the Logan Burn. They are also frequent on side slopes and scattered on ridges at higher elevations throughout the site. High elevation ridge tops are associated with porcupine shrub (Melictyus alpinus), herbs such as Acaena caesiiglauca and Veronica densiflora in open sites and the fern (Asplenium richardii) and hooked sedge (Uncinia zotovii) in shady overhangs. Coral broom is sparsely present. Rock outcrops in the Logan Burn have more extensive shrubland containing mingimingi (Coprosma propinqua), matagouri (Discaria toumatou), corokia (Corokia cotonieaster), Carmichaelia petriei on dry slopes with two Coprosma species, Hebe rakaiensis, and inaka (Intertexta alpinus) more prominent on shady slopes or where there is more moisture. Shrubland around rocky outcrops includes Coprosma propinqua, C. intertexta, Melicytus alpinus, Meulenbeckia complexi, Polystichum vestiturii, Pteridium esculentum and golden Spaniard. Mr Patrick also

noted Oleara cymbifolia, Oxothamus fulfida, and Drachophyllum uniflora.

141 Dr K M Lloyd, evidence-in-chief para 4.13 [Environment Court document 35].

142 Dr K M Lloyd, evidence-in-chief para 4.1 [Environment Court document 35].

143 Dr K M Lloyd, evidence-in-chief para 4.6 [Environment Court document 35].

[92] A remnant population of Hall‟s totara is present on bluffs in the upper Logan Burn Gorge144. This population is important as natural stands of native trees are very rare in Central Otago.

[93] Dr Lloyd stated145 that sheep often shelter beside rock outcrops particularly on hill tops and these stock camps are associated with locally intensive grazing that usually maintains a closely-cropped turf of exotic grasses and indigenous herbs such as Leptinella serrulata and Aceana tesca. Intense use of these stock camps results in raised fertility through high inputs of dung.

2.7.4 Gully floors, bog wetlands

[94] The AEE assesses these as comprising less than 3% of the site146. They occur where the rolling plateau of the site is described “as being dissected by a network of numerous small water courses and ephemeral stream gullies most of which contain marshes of varying size, wetness and composition. In total these gully systems cover approximately 346 hectares (this figure includes a five metre buffer147).

[95] The wetland community comprises a mosaic of sedges and cushionplants148. Kingett Mitchell described sphagnum (Sphagnum cristatum) and cushion bogs as common within the area and regionally and nationally significant because of their rarity149:

These wetlands also support significant threatened plant populations and provide habitat for a unique terrestrial fauna.

...

The upland Sphagnum dominated wetlands are considered to have had excellent water holding potential and contribute to the steady stream flow in many of the catchments.

144 Dr K M Lloyd, evidence-in-chief para 4.11 and Plate 3 [Environment Court document 35].

145 Dr K M Lloyd, evidence-in-chief para 4.7 [Environment Court document 35].

146 AEE, Volume 3, Appendix E p. 18.

147 AEE, Volume 3, Appendix E para 5.3.3.

148 AEE, Volume 3, Appendix E para 5.9.5.

149 AEE, Volume 3, Appendix E paragraphs 5.9.3 and 5.9.5.

Sphagnum bog is described as occurring150:

[w]ithin gullies with catchments of sufficient size to provide constant water seepage at or close to the soil surface. Sphagnum cristatum forms a sodden matt to about 50 cm deep down the central part of the wetland and is interspersed with a small range of associated species such as Centrolepis ciliata, Celmisia gratcilenta (pekapeka) and Drosera arcturi (wahu).

Other wetland species include Dracophyllum potitum, the penwiper fern (Blechnum pennamarina), Lycopodium fastigiatum and Uncinia rubra.

[96] Dr Lloyd describes151 red tussock (Chionochloa rubra subsp. cuprea) as being present in and on the margins of gully floor wetlands and also present as scattered plants along alluvial terraces beside larger streams such as the Logan Burn. Commonly found sedges, rautahi (Carex coriasea) and Carex gaudichaudiana are found in gully floor fens and bogs along with a wide range of herbs such as Ranunculus multiscapus, and Schizeilama cockayneana. Some gully wetlands have scattered shrubs of Olearia bullata. Exotic species are common in many gully floor wetlands including the grasses, sweet vernal, brown top, and Yorkshire fog (Holcus lantus) along with jointed

rush (Juncus articulatus) and J. conglomeratus. Dr Lloyd found ephemeral wetlands152

to be uncommon. Between Spillers and Soutra Hills he noted a distinctive suite of small wetlands which were potential fill sites.

2.7.5 Existing pest plant species

[97] Mouse-ear hawkweed is extensively distributed through the tussock grasslands with tussock hawkweed present on moist shady slopes. Dr Lloyd is of the opinion that hawkweed invasion on pasture is generally a consequence of grassland depletion, rather than the cause of it. A local farmer supported this view saying that Hieracium patches on the slope were the result of clover that had failed. Gorse (Ulex europaeus) is present

above the western side of the Logan Burn Reservoir. Dr Lloyd believes it was almost

150 AEE, Volume 3, Appendix E para 5.3.3.

151 Dr K M Lloyd, evidence-in-chief para 4.8 [Environment Court document 35].

152 Dr K M Lloyd, evidence-in-chief para 4.9 [Environment Court document 35].

certainly originated from seed dispersal on machinery used to construct the dam. One mature and several immature Lodge pole pines (Pinus contorta) were noted by Dr Lloyd as being in the vicinity and also one crack willow tree (Salix fragilis).

2.7.6 Conclusions

[98] We find that the site‟s vegetation is dominated by a broad expanse of tussock grassland. Shallow depressions, containing sphagnum and other wetland species form a fine network across the site and are regionally and nationally significant. Some rocky outcrops and a major gorge within the site envelope provide habitat for larger and some woody species. Rare and endangered plants are also found within the site envelope.

[99] Both the tussock and the sphagnum species have been shown to have water retention and dispersal properties which are of benefit to habitat health locally and the hydrological systems of the wider catchment. The site is dominated by native vegetation and has a species richness with the capacity to support a wide range of fauna. Pastoralism has introduced a range of plants which have added a further dimension to the mosaic of inter-tussock species. Where farming practices and roading have caused disturbance weed species are more widespread. While the vegetation looks (and is) largely natural it is not wholly the same as the vegetation that was on the site in the

1850s. It is likely that there were more „... scrub conifers and small leaved shrub species ...‟153. Some vestiges of former vegetation may be seen in areas which have been burnt less frequently if at all.

[100] All the stations comprising the Meridian site are working farms so these uplands have been extensively grazed by cattle and sheep; they have also been periodically burned, and parts of them oversown and topdressed154. For example on Lammermoor Station the slopes above the Logan Burn Reservoir have recently been ploughed and resown with exotic grasses as the owner showed us on one of our site inspections. Dr

Lloyd wrote that155 the farming practices:

153 Mr S K Brown, rebuttal evidence para 28 [Environment Court document 4A].

154 Dr K M Lloyd, evidence-in-chief para 4.1 [Environment Court document 35].

155 Dr K M Lloyd, evidence-in-chief para 4.1 [Environment Court document 35].

... have reduced the stature of tussock plants, and increased tussock density, relative to what would be expected in unmodified snow tussock grassland. Inter-tussock vegetation usually comprises a mat of low-growing native and exotic grasses, herbs, and subshrubs[:] The exotic species mouse-ear hawkweed (Hieracium pilosella), browntop (Agrostis capillaris), and sweet vernal (Anthoxanthum odoratum), and the native species golden spaniard (Aciphylla aurea), patotara (Leucopogon fraseri), and Raoulia subsericea are ubiquitous.

[101] Adjacent areas on the Rock and Pillar Range, the Lammermoor Range and the Lammerlaw Range – especially where contained in the Conservation Estate – have larger tussocks and fewer exotic species.

2.8 Fauna

2.8.1 Birds

[102] The evidence for Meridian only covered one bird species in any detail – the New Zealand falcon (Falco novaeseelandiae). That was the subject of evidence for Meridian from Dr Richard Seaton, perhaps New Zealand‟s leading expert on this species. He carried out a survey within the falcon‟s breeding season on 11, 12 and 13 December

2006. As to habitat suitability, he wrote that the whole of the Meridian site is suitable for hunting by falcons, but156 “only the rocky gorges, such as the Logan Burn, are suitable for nesting falcons”. During his survey he located three pairs of falcon and one lone bird in and around the site. Because the average home range of a pair of falcons in open habitat157 is 15 km2 he considered there were likely to be further falcon nest sites within and around the site. The eastern form of the falcon as found on the site is distributed through the eastern and central parts of the South Island158. Under the

Department of Conservation‟s „Threat Classification System Lists‟159 the eastern form is

described as being in „gradual decline‟. Dr Seaton says the species is not endangered.

... a species that faces extinction but that is buffered by a moderate to large population size

([e.g.] ... more than 5,000 individuals) and a very slow rate of decline (5% to 10% over the next

10 years).

156 Dr R Seaton, evidence-in-chief para 3.3 [Environment Court document 55].

157 Dr N Fox (1977) „The Biology of the New Zealand Falcon‟, Ph.D. thesis, University of Canterbury

Christchurch, 418 pp.

158 Dr N Fox (1977) „The Biology of the New Zealand Falcon‟, Ph.D. thesis, University of Canterbury

Christchurch, 418 pp.

159 R Hitchmough, L Bull and P Cromarty, (2007) „New Zealand Threat Classification Lists 2005‟,

DOC, Wellington, 194 pp.

[103] Over 50 species of birds have been recorded on the nearby Taieri scroll plain. Our site inspection in high summer showed that there are other bird species present even closer to the site especially near the Logan Burn Reservoir. We saw Paradise Shelduck, Spur-winged Plover, (Double-)Banded Dotterel, and various species of wildfowl and flocks of small (introduced) passerines. Skylarks and New Zealand Pipits were seen within the Meridian site.

2.8.2 Invertebrates

[104] Dr R Mitchell (called for Meridian) agreed with the description by Mr B Patrick (called for the Douglas family) of the entomology of the Meridian site which we have therefore used as a basis of fact regarding terrestrial invertebrates of the site. A large number of surveys have been undertaken on or near the Meridian site, particularly by Mr Patrick whose work (with others) on insects of grasslands, wetlands and shrublands of

the Great Moss Swamp area has taken place over a span of 26 years160.

[105] Habitats across the site, dense and more open grasslands, finger gully wetlands, and shrublands support a diverse assemblage of terrestrial invertebrates. Within them overall, the insect fauna is species rich, especially among moths and butterflies with a high degree of seasonality, habitat partition and altitudinal variation161. 189 species of Lepidoptera have been recorded in the vicinity162. The insect fauna of Central Otago has a number of special features in the New Zealand context. Some are present in the

proposed project area:


2009_29301.jpg species-rich autumn - emerging moth fauna representing three families of

Lepidoptera;

2009_29301.jpg flightless, relatively immobile females in some moth species representing several different Lepidoptera families;

2009_29301.jpg high species richness of day-flying geometrids - dependant on inter-tussock herbs and low shrubs;

a number of rare , threatened, local species at the biogeographical limit.

160 Mr B H Patrick, evidence-in-chief para 1.9 [Environment Court document 84].

161 Mr B H Patrick, evidence-in-chief para 2.7 [Environment Court document 84].

162 Mr B H Patrick, evidence-in-chief para 2.7 [Environment Court document 84].

[106] Rarely recorded species nationwide include the moths: Hydriomena canescens in the Tortricidae, a new genus and species Heloxycannus patricki, Trachypepla new species, Pasiphila humilis, Asterivora new species, Pasiphila new species, Dichromodes ida and Tmetolophota new species.

[107] Eight species of the ancient family Hepialidae are found here and are of international interest in terms of species richness, their moss bog habitat, number of genera represented, seasonality, mixture of diurnal, crepuscular and nocturnal species and annual or biennial emergence pattern163. One, Aoraia rufivena with a wing span of

7 cm, is among New Zealand's largest moths and has a mouse-sized flightless female164.

The grassmoth genus Orocrambus is well represented with 18 species in the grass and sedge communities both wet and dry165. Late autumn emerging moths include four small tortricids including the rare Eurythecta leucothrinca, the uncommon Epichorista tenebrosa, geometrid Asaphodes sericodes, an undescribed Scoparia new species first detected here and three hepialid species166. So far 22 species of day-flying geometrids have been identified. New Zealand has the largest number of species in this sub family (Larentiinae) and the Lammermoor- Great Moss Swamp-Rock and Pillar zone contains the highest number of diurnal species of this sub-family in New Zealand167.

[108] The representation described above covers many genera and confirms the ecological importance of the area. While that representation has relationships to both the Rock and Pillar and Lammermoor ranges, Mr Patrick emphasised168 that it has its own characteristics: high species richness of the Orocrambus grassmoth species, high species richness of hepialid moths and low altitudinal occurrences of many diurnal geometrids. Further, because the project site harbours one threatened moth species

(Heloxycannus patricki) – threatened in gradual decline and one rare moth species

163 Mr B H Patrick, evidence-in-chief para 2.10 [Environment Court document 84].

164 Mr B H Patrick, evidence-in-chief para 8 [Environment Court document 84].

165 Mr B H Patrick, evidence-in-chief para 2.11 [Environment Court document 84].

166 Mr B H Patrick, evidence-in-chief para 2.12 [Environment Court document 84].

167 Mr B H Patrick, evidence-in-chief para 2.13 [Environment Court document 84].

168 Transcript (2009), p. 3217.

(Heloxycannus candescens) the area is ecologically significant under the rarity and distinctiveness criterion169.

2.8.3 Lizards

[109] Ten species of lizard occur in Eastern Otago. Three have been recorded within the site envelope170: the gecko Hoplodactylus sp. “Otago large”, and two skinks – McCann‟s (Oligosoma maccanni) and the common skink (Oligosoma nigriplantare). All are legally protected under the Wildlife Act, the first having a conservation status of “Gradual Decline”, the second and third having the status of “Not Threatened”. A fourth species, the skink Oligosoma inconspicuum which has a conservation status of

“Gradual Decline”, has been recorded at several sites just outside the site envelope.

[110] For the section of its Assessment of Environmental Effects (“AEE”) on lizards Meridian commissioned a survey and report from Kingett Mitchell Limited. That firm reported171 that McCann‟s skink were widespread and common throughout the site envelope. The common skink (O nigriplantare polychroma) was found at 43% of the sites searched above 900 metres. The AEE report recorded172 that:

... the healthy lizard population observed during recent surveys is a good indicator that introduced predator populations in the area (particularly mustelids, rats and cats) are low which i s a key factor in the viability of the sites bird, lizard and invertebrate fauna.

[111] The report also recorded that the survey had found rocky outcrops and associated tussock and shrubland are key habitats for geckos and skinks. Rocky outcrops provided habitat for some species and sun basking for others, and grasslands were used as habitat

and corridors. It continued173:

169 Dr R A Mitchell, summary statement of caucus meeting para 6 [Environment Court document 56].

170 Mr T R Jewell, evidence-in-chief para 3.8 [Environment Court document 50].

171 Meridian‟s AEE Volume 3 para 5.5.2.

172 Meridian‟s AEE Volume 3 para 5.9.4.

173 Meridian‟s AEE Volume 3 para 5.9.2.

... lizards that inhabit individual rock outcrops must be considered as part of a wider population which relies upon vegetation areas to facilitate the movement of individuals and genes between sub-populations (i.e., meta-population).

[112] At the hearing Meridian called Mr T R Jewell, an ecologist specialising in the lizards of southern New Zealand, to present evidence on the species and status of lizards

in the Lammermoor Range and within the site envelope. His evidence was based on:

2009_29301.jpg a site visit in January 2008;

2009_29301.jpg the lizard assessment in the AEE;

2009_29301.jpg a lizard report prepared by Messrs Golder Kingett in 2007;

2009_29301.jpg the ecology evidence presented at the Council hearing; and relevant literature.

In Mr Jewell‟s opinion this information base was adequate to define the current position with respect to lizards in the site envelope area and to assess the effects that wind farm construction may have on the lizards and their habitat.

[113] The relevant literature was chiefly reports by Dr Geoffrey Patterson who had published papers in 1985 and 1992 on surveys carried out along Old Dunstan Road. Both Mr Jewell and Mr B H Patrick, an ecologist called by Mr Douglas, relied upon Dr Patterson‟s work and on personal communication with Dr Patrick for updated information.

[114] Mr Jewell concluded from his analysis of the available data and his site visit that lizard abundance on the site is already low174 although he was also of the opinion that Oligosoma maccanni and Oligosoma nigriplantare polychroma are present and widespread175. Mr Jewell sited habitat loss and the introduction of mammalian predators as having contributed to a decline. Farming practices, he wrote, had the effect

that176:

174 Mr T R Jewell, evidence-in-chief para 3.11 [Environment Court document 50].

175 Mr T R Jewell, evidence-in-chief para 5 [Environment Court document 50].

176 Mr T R Jewell, evidence-in-chief para 4.2 [Environment Court document 50].

...most of the natural grassland and shrubland habitat has long since has been replaced by pasture

in which secondary native plant growth has sprung up or encroached.

This and the use of fire he believed were farming practices contributing to low abundance and diversity. Mr Patrick, whose snow tussock habitat assessments have been integral to his invertebrate research, viewed the habitat differently. He described177 the area as:

..dominated by the endemic snow tussock Chionachloa rigida, with significant native shrublands

on steep slopes and wetland margins...significantly the inter-tussock cover is high ...

[115] There was some a debate about the exact nature of the Oligosoma inconspicuum identified by Dr Patterson in the vicinity of the site. Mr Patrick wrote178 that recent genetic analysis shows it to be genetically distinct from Oligosoma inconspicuum making the proposed project site part of its only known habitat. Mr Jewell said further taxonomic work was necessary. We note that the Kingett Mitchell Limited report states179 that lizard taxonomy in the South Island has half the species known still waiting formal description and a scientific name. This 'backlog' explains somewhat the process around a skink which has been found locally but is yet to be taxonomically identified as a new species.

[116] Kingett Mitchell Limited searched for this species as part of their 2007 investigation and did not find any within the envelope. Mr Jewell concluded that if Oligosoma inconspicuum is present within the project envelope then it is of much rarer occurrence than it is in some adjacent lands180. Mr Patrick contended that Mr Jewell‟s evidence with respect to Oligosoma inconspicuum was incomplete181. He believed that

Oligosoma inconspicuum are difficult to find and hard to identify and, further, that the surveys did not adequately search in the appropriate places. In his rebuttal evidence Mr

Jewell disagreed with these assertions.

177 Mr B H Patrick, evidence-in-chief para 2.1 [Environment Court document 84].

178 Mr B H Patrick, evidence-in-chief para 3.19 [Environment Court document 84].

179 Meridian‟s AEE Volume 3 para 5.5.1.

180 Mr T R Jewell, evidence-in-chief para 3.9 [Environment Court document 50].

181 Mr B H Patrick, evidence-in-chief para 3.17 [Environment Court document 84].

[117] Dr R M Bartlett, an ecologist called by Meridian, reviewed Meridian‟s expert ecological evidence. She agreed with the findings of Mr Jewell and in particular that the project site does not provide any core habitat for threatened species182. We give this evidence minimal weight because basically it just relies on Mr Jewell‟s evidence.

[118] We prefer the evidence of Mr Patrick to that of Mr Jewell because Mr Jewell only visited the site once for a couple of hours; relied on others‟ evidence including the survey material done at much greater depth but then does not rely on it; admitted the survey work is still inadequate (as did Dr Bartlett). Further, Mr Bartlett‟s opinions were more consistent with the AEE. In the end result we are left with a fairly hazy picture of the site‟s significance for lizards. That is of concern given that a section 6(c) matter of national importance may be raised – whether the site is a significant habitat of indigenous fauna.

2.8.4 Fish

[119] We read evidence from Meridian's witness, Dr R M Allibone, an eminent specialist in fresh water fisheries, and from Mr M J Dale, a water resource scientist for the Otago Regional Council, about research on the non-migratory galaxiid of the area around and including the project site. They did meet and agree on a number of issues including that the fisheries values of the areas include the presence of habitat of two threatened native fish, trout spawning areas, and a stream occupied by a threatened fresh water crayfish. The distribution of these species is known for all the areas of

construction and roading, and sites of instream works are all identified183.

[120] The project development lies entirely within the Taieri River catchment with the total length of waterways in the site envelope, said by Dr Allibone to be 121.9 km184. The Taieri River scroll plain and the Logan Burn Reservoir are closely associated receiving waters. A description of the aquatic systems within the boundary of the

project site was provided by Dr Allibone185:

182 Ms R M Bartlett, evidence-in-chief para 6.20 [Environment Court document 60].

183 Dr R M Allibone, rebuttal evidence para 24 [Environment Court document 33A].

184 Dr R M Allibone, evidence-in-chief para 3.4 [Environment Court document 33].

185 Dr R M Allibone, evidence-in-chief paragraphs 5.1 and 5.2 [Environment Court document 33].

The area encompasses much of the Logan Burn and its tributaries that enter the Burn in its gorge and other small streams, Spillers Creek, an unnamed tributary of the Styx Creek and tributaries of the upper Taieri River. Two characteristic stream types are present; shallow to steep gradient rocky bottomed streams with schist gravel and cobble substrate and shallow gradient meandering streams often with the dominant cover provided by macrophytes (aquatic plants)... A large wetland exists between the headwaters of the unnamed Logan Burn tributary and Spillers Creek. Other wetland areas exist in the tussock grasslands at the head of gullies and on the top of ridges.

[121] Dr Allibone said the invertebrate fauna of the two stream types are different with the variety of habitats in the streams providing for a diverse range of invertebrate taxa including the threatened invertebrate, the freshwater crayfish or koura (Paranephrops zealandicus)186. Koura are classified as in „gradual decline‟. They co-exist with brown trout and occur in very low densities187. The two threatened native galaxiid occurring in the site vicinity are the flathead galaxias, described as being in „gradual decline‟ and Eldon's galaxias currently classified as „nationally vulnerable‟188. All the species mentioned have populations living elsewhere in the Taieri catchment.

[122] The area has been surveyed frequently over a number of years189 and in the project site the distribution of brown trout and flathead galaxiid is mutually exclusive190:

2009_29301.jpg the brown trout spawning grounds within the project site were described by Dr Allibone as being at Shepherd Hut Stream and McHardies Creek with fish passage through the Pylon Road culvert on Shepherd Hut Stream restricted at times during low flows. Brown trout also occur downstream of the reservoir with spawning occurring in the Logan Burn tributaries.

2009_29301.jpg Dr Allibone described the surveyed locations of flathead galaxiid as Spillers Creek, a small Logan Burn Reservoir tributary, the Upper Taieri River and its tributaries, McPhees Creek, a small unnamed Logan Burn tributary, the upper reaches of Shepherds Hut Creek, and tributaries of McHardies Creek. These are described as key aquatic areas by Dr Allibone because of the threat

status of the fish. Riparian margins of these streams are also strategic areas

186 Dr R M Allibone, evidence-in-chief para 5.10 [Environment Court document 33].

187 Dr R M Allibone, evidence-in-chief para 4.2 [Environment Court document 33].

188 Dr R M Allibone, evidence-in-chief para 4.4 [Environment court document 33].

189 Dr R M Allibone, evidence-in-chief para 5.3 [Environment Court document 33].

190 Dr R M Allibone, evidence-in-chief para 5.5 [Environment Court document 33].

as they maintain bank structure, provide shade and minimise sediment inputs191.

[123] There was a consensus that brown trout eliminate smaller non-migratory galaxiids from streams where they have become established. The introduction of trout into the Logan Burn appears to have excluded flathead galaxias from 80-90% of the catchment192. Naturally enough the most significant threat to the non-migratory galaxiids is introduced predators. The locations of barrier waterfalls that prevent brown trout access to the galaxiid habitat have been located during survey work. They are documented on Dr Allibone's Map 14 as being at Spillers Creek Cascade, McPhees Creek Cascade and McPhees Creek waterfall. Barriers have been identified by the

Department of Conservation as a first priority of protection in the non-migratory galaxiid recovery plan193.

[124] Dr Allibone wrote that natural sediment sources are not widespread or frequent194. Most existing sediment sources are related to disturbance by human farming activities which include existing roads and tracks, bulldozer lines cut to clear tussock to ease access for fencing, ploughed fire breaks, small stock tracks, stock damage to riparian areas and headwater wetlands and soil cultivation such as ploughing195. Despite the disturbance which is associated with farming Dr Allibone stated that the galaxiid species maintain good populations in streams where low intensity sheep and cattle grazing occurs.

[125] Current sediment levels are already elevated above the natural level. Dr Allibone's research in the area showed196 that the high quality of these systems indicate they are resilient to intermittent sediment pulses (associated with storm events) and the

present increased sediment levels. However, streams containing Elsdons galaxiid

191 Dr R M Allibone, evidence-in-chief para 6.2 [Environment Court document 33].

192 Dr R M Allibone, evidence-in-chief para 5.5 [Environment Court document 33].

193 Dr R M Allibone, evidence-in-chief para 6.10 [Environment Court document 33].

194 Dr R M Allibone, rebuttal evidence para 4 [Environment Court document 33A].

195 Dr R M Allibone, rebuttal evidence paragraphs 5 to 8 [Environment Court document 33A].

196 Dr R M Allibone, evidence-in-chief paragraphs 6.0 to 6.9 [Environment Court document 33].

populations will only be affected by road construction activities as there are no populations recorded within the turbine construction envelope197.

[126] Potential threats to ecosystems generated by the project were identified as:

2009_29301.jpg Sediment loads, unusual /infrequent loads

2009_29301.jpg Vehicle contamination

2009_29301.jpg Pest species introduction

2009_29301.jpg Loss of habitat - including spawning grounds

2009_29301.jpg Land use changes

Water take

We discuss the possibility of these in Chapter 5.0 of this decision.

2.9 Other aspects of the existing environment

[127] We have discussed most of the relevant aspects of the environment of the Meridian site earlier, for example in 2.3 where we discussed the surrounding area. However, there are three recent resource consents which may be relevant. Suites of resource consents have been granted to three proposed wind farms: at Lake Mahinerangi, near the Teviot River, and at Kaiwera Downs respectively.

The Mahinerangi wind farm

[128] This site is four kilometres north of Lake Mahinerangi and on a lower plateau (at between 600 and 730 masl) at the very southern end of the Lammermoor Range. At its closest point the Mahinerangi site is 17 kilometres from the Meridian site. On 25 July

2008 the Environment Court issued an interim decision198 confirming the grant of

resource consents for this wind farm. A final decision was issued on 19 December

2008199. The Mahinerangi wind farm (“MHF”) is proposed to have up to 100 turbines,

rather smaller than those on the Meridian site (maximum height 145 metres).

197 Statement of agreed facts para 2a [Environment Court document 1A].

198 Upland Landscape Protection Society Incorporated v Clutha District Council and Otago Regional

Council Decision C85/2008.

199 Upland Landscape Protection Society Incorporated v Clutha District Council and Otago Regional

Council Decision C140/2008.

[129] The crests of the Lammermoor and Lammerlaw Ranges to the west and northwest of the Mahinerangi site are at about 1100 masl, that is about 400 metres higher than the site itself.

The Teviot wind farm

[130] Resource consent was granted by the CODC in October 2007 for a small wind farm (1.8 MW nameplate capacity) on a peninsula above the Teviot River at Horseshoe Bend.

The Kaiwera Downs wind farm

[131] This site is approximately 15 km southwest of Gore and 10 km east of Mataura. The site area is 2,568 hectares and consent was granted for a maximum of 83 turbines with a maximum height to blade tip of 145 metres. The Kaiwera Downs site is 70 or more kilometres south of the Mahinerangi site. The local authorities‟ decision200 granting consents was appealed to the Environment Court but the appeal was withdrawn on 9 February 2009.

2.10 Climate change

[132] At first sight it is curious that a case about a windfarm should need any consideration of climate change since wind energy is a renewable resource. The issue arises as an unintended (or so we assume) consequence of the enactment of section 7(i) and (j) of the RMA on 2 March 2004. Those paragraphs now require a consent authority (including, on appeal, the Environment Court) to have particular regard to:

...

(i) the effects of climate change

(j) the benefits to be derived from the use and development of renewable energy.

[133] Evidence on climate change was presented principally by Dr D S Wratt for

Meridian and Professor R M Carter for the appellant Mr Sullivan. Others who


  1. Decision of Gore District Council and Southland Regional Council dated 30 May 2008 attached to the Notice of Appeal in Upland Landscape Protection Society Incorporated v Gore District Council and Southland Regional Council (ENV-2008-CHC-151).

addressed climate change were Professor C R de Freitas for Mr Sullivan and Mr P F Gurnsey for the Crown.

[134] The general scientific meaning of „climate change‟ refers to the sum of all changes in climate without reference to the causes of change. It is often discussed in terms of changes in globally averaged temperatures over time. Estimates of these changes have been developed for the past 65 million years by using proxies for temperature. These include tree rings, pollen counts, oxygen isotopes and the chemical composition of marine fossils. There was no dispute among the witnesses that climate change had occurred, is occurring now and will continue in the future. Similarly, there was no dispute that until approximately the mid-19th century all climate changes occurred naturally. The driving forces included the sun‟s activity, variations in the earth‟s orbit and in the angle of tilt of its axis. Cycles of differing periodicities ranging from tens to thousands of years have been identified in the climate record and linked to these variations.

[135] The witnesses all agreed that since the mid-19th century human activity (anthropogenic activity) has influenced climate change by increasing the concentrations of greenhouse gases (“GHGs”) in the atmosphere. These GHGs include carbon dioxide, methane, nitrous oxide, hydrofluorocarbons and water vapour. They are referred to as GHGs because they trap heat within the lower atmosphere, thus causing the earth‟s surface to be warmer than it would be in their absence – the greenhouse effect. Any increase above „natural‟ levels will enhance this effect and may cause further warming and induce other, not well understood, changes in the climate system. It is these latter effects, their mechanisms and the resultant feed-back loops which are being vigorously debated by the scientific community. As a consequence there is ongoing argument as to the magnitude of the anthropogenic effect and even as to whether its end result is to warm or cool the atmosphere. An understanding of the anthropogenic effect is important because the RMA has introduced a specific definition

of „climate change‟ as201:

201 Section 2 of the RMA – added from 2 March 2004 by section 4 of the Resource Management

(Energy and Climate Change) Amendment Act 2004 (2004 No. 2).

a change of climate that is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and that is in addition to natural climate variability observed over comparable time periods.

Professor Carter observed that the definition does not allow meaningful scientific discussion because it refers to attribution rather than evidence, it does not define who is to do the attributing, and it only considers change that is caused by human induced greenhouse gas emissions. While this may be so, it is the definition we must use when applying the RMA.

[136] By virtue of RMA section 7(i) we must have particular regard to the effects of climate change as defined in the Act. This is not to say we ignore natural variations in climate change since section 104(c)(1) allows us to consider any matter we see as being relevant.

[137] Dr Wratt is General Manager (Climate Change) at the National Institute of Water and Atmospheric Research. He has published widely on matters related to climate change and served as a Lead Author for both the Third and Fourth Assessment Reports (“ARs”) published by the Intergovernmental Panel on Climate Change (“IPCC”) in 2001 and 2007 respectively. The role of the IPCC as set out by Dr Wratt is to202:

... assess on a comprehensive, objective, open and transparent basis the latest scientific, technical, socio-economic literature produced world-wide relevant to the understanding of the risk of human induced climate change, its observed and predicted impacts and options for adaptation and mitigation.

[138] Dr Wratt further described the IPCC‟s role as203 to provide comprehensive assessment reports every five to seven years backed up by other more technical papers. He described how there are contributions from experts all over the world in all relevant disciplines. This process, its transparency, possible bias and the likelihood of it being

captured by governments was traversed extensively in both Professor Carter‟s evidence

202 Dr D S Wratt, evidence-in-chief para 10 [Environment Court document 28].

203 Dr D S Wratt, evidence-in-chief para 11 [Environment Court document 28].

and in cross-examination of Dr Wratt. He responded to the cross-examination by outlining in detail the IPCC procedures as they relate to preparation of draft documents, their review, the response to review criticisms and the formalisation of final documents and summary statements. We have considered Professor Carter‟s evidence to the effect that the IPCC Reports are not universally accepted by the scientific community but we accept Dr Wratt‟s views as to the robust nature of the IPCC processes and the reliance that can be placed on their published reports.

[139] One of the key findings of the IPCC Fourth Assessment Report noted by Dr

Wratt is that204:

Global atmosphere concentrations of carbon dioxide, methane, and nitrous oxide have increased markedly as a result of human activities since 1750 and now far exceed pre-industrial values determined from ice cores spanning many thousands of years.

Dr Wratt was not so emphatic in his conclusions where he linked this undoubted increase in greenhouse gas concentrations with climate change205:

... most of the observed increase in global average temperatures since the mid 20th century is

very likely due to the observed increase in anthropogenic greenhouse gas concentrations.

“Very likely” is defined by the IPCC and adopted by Dr Wratt to mean greater than

90% probability. That is the meaning that has also been adopted by at least some divisions of the Environment Court, and which we use here for reasons we explain briefly in Chapter 5.0 of this decision when we come to make our predictions as to the possible effects of Meridian‟s specific proposal in this case.

[140] When asked by the Court to outline the evidential basis for his conclusion Dr Wratt referred to detailed computer modelling studies206. These studies started with an assessment, commissioned by the IPCC, of the changes in temperature over the last 100 years for all major continental areas except Antarctica, which lacked the necessary

records. A number of different modelling groups then attempted to reproduce these

204 Dr D S Wratt, evidence-in-chief para 14 [Environment Court document 28].

205 Dr D S Wratt, evidence-in-chief para 44 [Environment Court document 28].

206 Transcript, page 1171, lines 20-46.

changes using best estimates of changes in energy from the sun and of volcanic eruptions. For the first 50 years the observed temperature changes lay within the band defined by the outputs from the various models. For the second 50 years they lay well outside this band. Thus no model was able to produce an output replicating the observations. Known changes in GHGs and aerosol emissions were then added to the models. The observed results then lay within the band defined by the models for the whole 100 years. Thus without the inclusion of GHGs the models could not simulate the warming that occurred in the latter part of the 20th century. With GHGs included however the models could simulate this warming.

[141] It is this evidence that Dr Wratt believes underlies the IPCC conclusion that there is at least a 9 out of 10 chance that207:

... globally averaged net effect of human activities since 1750 has been one of warming.

Even if we do not accept Dr Wratt‟s and the IPCC‟s attribution of changes in the composition of the global atmosphere to human activity because of the 90% probability assigned to it, we must accept the unequivocal attribution by the New Zealand Government as set out in section 7(i) of the RMA. This was reinforced by the evidence presented on climate change for the Crown by Mr Gurnsey. The evidence is clearly premised on the Government‟s view that human activity is increasing the concentrations of greenhouse gases in the atmosphere and that this is a cause of climate change. This

is clearly set out in his rebuttal evidence208:

The New Zealand government is of the view that climate change is real, is happening now and requires a response. This approach is based on the majority opinion of the international scientific community that human activities have resulted in substantial global warming from the mid-20th century, and that continued growth in greenhouse gas concentrations caused by human -

induced emissions will generate high risks of dangerous climate change.

207 Dr D S Wratt, evidence-in-chief para 18 [Environment Court document 28].

208 Mr P F Gurnsey, rebuttal evidence para 8 [Environment Court document 39].

3.0 The law

3.1 The matters to be considered

[142] At the end of Chapter 1.0 we set out the matters to be considered under section

104(1) of the RMA. In summary they are:

2009_29301.jpg the actual and potential effects of the proposed wind farm on the environment;

2009_29301.jpg the statutory instruments – in this case the Central Otago District Plan, Plan Change 5 to that plan, and the Otago Regional Policy Statement are most relevant;

2009_29301.jpg other matters to be had regard to; and

Part 2 of the RMA.

We consider the legal issues raised by each of those matters in turn.

3.2 Actual and potential effects on the environment (section 104(1)(a) of the

Act)

[143] The phrase „actual and potential effects ... on the environment‟ in section

104(1)(a) of the Act has caused difficulties in some cases. In particular, the law is unclear as to whether potential effects that may occur (but may not) should be considered as part of the environment. For example, in this case should we consider the potential effects (on the landscape in which the Lammermoor is set) of a wind farm near Lake Mahinerangi?

[144] The interpretation of section 104(1)(a) has been approached from two directions. First the question “What is „the environment‟?” is, at first sight, simply answered by referring to the definition in section 2 of the RMA which states that:

Environment includes –

(a) Ecosystems and their constituent parts, including people and communities; and

(b) All natural and physical resources; and

(c) Amenity values; and

(d) The social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) of this definition or which are affected by those matters:

The complication that arises is whether a consent authority should take into account the possibility of future changes in the environment not caused by the application under consideration.

[145] Secondly, the use of the phrase “actual and potential effects ... (on the environment)” in section 104(1)(a) is rather puzzling because in a sense all the effects of a proposed activity are potential rather than “actual” at the time of consideration by the consent authority209. We consider that Parliament probably intended “actual effects” to be the likely effects of an activity, and “potential effects” to be the unlikely effects, i.e. effects of “low probability but high potential impact”210. However, in Dye v Auckland Regional Council211 the Court of Appeal settled that:

... Parliament has implicitly abandoned the s 3 definition of effect which only applies unless the context otherwise requires. Had Parliament wished to adopt the definition, it would have used simply the word “effects” (as in s 105(2A)) rather than the words “any actual or potential effects”. Indeed if the definition is invoked it would have the awkward consequence that s

104(1)(a) would be dealing with actual potential effects and potential effects. Everything points to a deliberate intention here to address only effects which are “actual” and “potential”; albeit putting the matter that way is in any case inherently very wide and capable of capturing some, if not all, of the subtleties of the s 3 definition. So far therefore, in spite of the seemingly deliberate decision not to rest on the defined term “effect”, it is not easy to see what confining purpose the legislature may have had.

[146] To see what Parliament was contemplating it is useful to recognise that the “actual and potential effects” of a land use activity in terms of section 104(1)(a) of the RMA, and the other relevant212effects occurring or which may possibly occur in or on

the environment containing an application site can be placed in the following sets:

209 Unless the application is to retrospectively authorise an existing illegal activity.

210 As in the definition in section 3(f) RMA.

211 Dye v Auckland Regional Council [2001] NZCA 330; [2001] NZRMA 513 at [41]; [2001] NZCA 330; [2002] 1 NZLR 337; (2001) 7

ELRNZ 209.

212 Under section 104(1)(c) of the Act.

(1) existing effects of current activities in the existing environment;

(2) the effects which “will” – see Dye v Auckland Regional Council213 – and the potential effects “which may happen or ... may not”214 occur as a result of the activity;

(3) all other section 3 and other relevant possible effects of the proposed activity;

(4) permitted baseline potential effects of other activities on the site (see

Bayley v Manukau City Council215);

(5) potential effects of permitted and/or approved activities off-site (Queenstown Lakes District Council v Hawthorn Estate Limited216 (“Hawthorn”) effects);

(6) possible future effects under resource consents contemplated for the surrounding environment not granted (Dye v Auckland Regional Council217, Gould v Rodney District Council218 effects).

That sets (1) and (2) should be considered is uncontroversial and we consider set (3) effects are almost always relevant under section 104(1)(c) of the Act. As for set (4), section 104(2) of the RMA gives a consent authority a discretion to consider those or not.

[147] The effects in set (5) were decided authoritatively to be relevant by the Court of

Appeal in Hawthorn219 where the Court of Appeal explained that:

213 Dye v Auckland Regional Council [2001] NZCA 330; [2001] NZRMA 513 at [38]; [2001] NZCA 330; (2001) 7 ELRNZ 209; [2002] 1

NZLR 337,

214 Dye v Auckland Regional Council [2001] NZCA 330; [2001] NZRMA 513 at [39]; [2001] NZCA 330; (2001) 7 ELRNZ 209; [2002] 1

NZLR 337.

215 Bayley v Manukau City Council [1998] NZRMA 396; [1999] NZLR 568.

216 Queenstown Lakes District Council v Hawthorn Estate Limited [2006] NZCA 120; [2006] NZRMA 424 at para [57].

217 Dye v Auckland Regional Council [2001] NZCA 330; [2001] NZRMA 513; (2001) 7 ELRNZ 209; [2002] 1 NZLR

337.

218 Gould v Rodney District Council [2006] NZRMA 217.

219 Hawthorn [2006] NZCA 120; [2006] NZRMA 424.

... the provisions of the Act ... lead to the conclusion that when considering the actual and potential effects on the environment of allowing an activity, it is permissible, and will often be desirable or even necessary, for the consent authority to consider the future state of the environment, on which such effects will occur.

However, the Court qualified that by stating220:

It would be too speculative to consider whether or not [future applications might be made and] consents might be granted and to then proceed to make decisions about the future environment as if those resource consents had already been granted.

The Court concluded221:

In our view, the word “environment” embraces the future state of the environment as it might be modified by the utilisation of rights to carry out permitted activity under a district plan. It also includes the environment as it might be modified by the implementation of resource consents which have been granted at the time a particular application is considered , where it appears likely that those resource consents will be implemented. We think Fogarty J erred when he suggested that the effects of resource consents that might in future be made should be brought to account in considering the likely future state of the environment. We think the legitimate considerations should be limited to those we have just expressed. ...

[Our emphasis]

[148] The effects in set (6) were, in effect, rejected as irrelevant when the Court of Appeal decided in Dye that cumulative effects are “all ... effects which are going to happen as a result of the activity under consideration”. Tipping J wrote222:

The definition of effect includes “any cumulative effect which arises over time or in combination with other effects”. The first thing which should be noted is that a cumulative effect is not the same as a potential effect. This is self evident from the inclusion of potential effects separately within the definition. A cumulative effect is concerned with things that will occur rather than with something which may occur, that being the connotation of a potential effect. This meaning is reinforced by the use of the qualifying words “which arises over time or in combination with other effects”. The concept of cumulative effect arising over time is one of a gradual build up of

consequences. The concept of combination with other effects is of effect A combining with

220 Hawthorn [2006] NZCA 120; [2006] NZRMA 424 at para [74].

221 Queenstown Lakes District Council v Hawthorn Estate Limited [2006] NZCA 120; [2006] NZRMA 424 at para [84].

222 Dye v Auckland Regional Council [2001] NZCA 330; [2001] NZRMA 513 at paragraphs [38] and [39].

effects B and C to create an overall composite effect D. All of these are effects which are going to happen as a result of the activity which is under consideration. The same connotation derives from the words “regardless of the scale, intensity, duration or frequency of the effect. [Emphases added]

Dye was explained by Cooper J in Gould v Rodney District Council223 as follows:

... I consider that all that was said in Dye was that an effect that may never happen, and which, if it does, will be the result of some activity other than the activity for which consent is sought, cannot be regarded as a “cumulative effect”.

That appears to indicate that Dye only applies in a resource consent situation and, presumably, where there are not any express objectives, policies and rules about cumulative effects, or alternative sites.

[149] It is not clear that the Court of Appeal agrees with the High Court in Gould v Rodney District Council that the narrow interpretation in Dye should be tightly applied.. In Auckland Regional Council v Living Earth Limited224 that Court referred, again on a resource consent appeal, to a definition in the Auckland Regional Policy Statement (“the ARPS”) which reads:

The term „effects‟ is defined in section 3 of the RM Act. Within that definition, „cumulative effects‟ include:

...

(d) effects which would arise over time as a result of implementing a particular policy, as well as the effects which may stem over a period of time from a particular decision.

William Young P (giving the decision of the Court) remarked obiter:

We note in passing that this definition proceeds on the basis of an interpret ation of “cumulative effects” that was rejected in Dye at [39].

223 Gould v Rodney District Council [2006] NZRMA 217 at [122].

224 Auckland Regional Council v Living Earth Limited [2008] NZCA 349; (2008) 14 ELRNZ 305 at [37].

In other words, if potential effects caused by a relevant activity may occur in combination with other effects for other possible activities a local authority must ignore those (at least when considering a resource consent application).

[150] In summary on sets (5) and (6) effects: as we understand Gould, Cooper J was stating that the effect of Dye is that set (6) should not be considered. We respectfully agree that is the practical course when considering a resource consent application. However, the wider reading of Dye confirmed by Auckland Regional Council v Living Earth Limited suggests that set (5) should not be considered either. That seems

inconsistent with Hawthorn225 in which Cooper J delivering the judgement of the Court

of Appeal simply confirmed226 his own explanation of Dye as given in Gould.

Accumulative effects

[151] In Robinson et ors v Waitakere City Council227 the Environment Court sidestepped the problem it perceived with a wide interpretation of Dye (as in the Living Earth case) as follows:

Since there are undoubtedly possible effects which may or may not occur – and with differing probabilities – and possibly in combination with other such effects we use the term

„accumulative effects‟ to apply to those. „Accumulative effects‟ are a large set of effects which includes the more limited set of „cumulative effect[s]‟ defined by section 3(d) of the RMA...

We follow that approach and hold that the intersection of the effects of the possible activities in the sets (1), (2), (3) and (5) identified above will cause “accumulative effects” in the meaning of Robinson et ors v Waitakere City Council228. Another way of looking at the potential accumulative effects of consented activities is to regard those as part of „the environment‟ in accordance with Hawthorn quoted above. The disadvantage of that approach is that it encourages the consent authority to look at the consented activity (e.g. in these proceedings the Mahinerangi wind farm) rather than its

potential effects and thus leads it away from the issue of concern to the consent authority

225 [2006] NZCA 120; [2006] NZRMA 424.

226 [2006] NZCA 120; [2006] NZRMA 424 at para [83].

227 Robinson et ors v Waitakere City Council Decision A3/2009 at [34].

228 Robinson et ors v Waitakere City Council Decision A3/2009 at [34].

which is the intersection of those potential effects and those from the proposal being considered.

[152] If we find in a later chapter that there is a medium likelihood that the Mahinerangi project (for which TrustPower holds a resource consent) will be built if the Meridian project on the Lammermoor is also approved then we hold that we should consider either:

(a) the accumulative effects of the Lammermoor proposal together with those from a Mahinerangi wind farm; or

(b) the effects of the Meridian proposal on an „environment‟ which contains


the Mahinerangi wind farm;

– since we see no real difference between those two statements. If we find that there is less than a medium likelihood that Mahinerangi will be built then perhaps it should be considered as an alternative to Meridian‟s project. We consider whether alternatives are relevant later in this chapter.

3.3 The Central Otago District Plan (s 104(1)(b)(iv) of the Act)

3.3.1 The scheme of the district plan

[153] The Central Otago District Plan became operative on 1 April 2008. There are two volumes to the CODC‟s district plan – one of issues, objectives, policies and rules, and the second of maps. Volume One contains 19 chapters called „Sections‟. The relevant sections are as follows:

1. ...

2. The Resources and Significant Resource Management Issues of the District

3. ...

4. Rural Resource Area

5. ...

...

12. District-wide Rules

13. Infrastructure, Energy and Utilities

14. Heritage Buildings, Places, Sites, Objects and Trees

15. Financial Contributions

16. ...

...

18. Definitions

19. Schedules

3.3.2 The resources and issues

[154] In section 2 of the CODC district plan various “areas of outstanding landscape value” are identified229. The areas shown are considered230 by the district plan to be outstanding natural features or landscapes within the district and are to be provided for in terms of section 6(b) of the RMA. In addition to being shown on the figure they are

listed in the text as231:

2009_29302.jpg Kawarau Gorge

2009_29302.jpg Butchers Dam locality 2009_29302.jpg Upper Clutha terraces 2009_29302.jpg Cromwell Gorge

2009_29302.jpg Alexandra rock faces

2009_29302.jpg Elevated areas providing visual backdrop to Lake Dunstan near Bendigo

2009_29302.jpg Blue Lake/St Bathans backdrop

2009_29302.jpg Old Man/Old Woman Garvie Range complex 2009_29302.jpg Hawkduns/Ida Range including Danseys Pass 2009_29302.jpg Upper Manorburn/Poolburn/Serpentine

2009_29302.jpg Lindis Pass

2009_29302.jpg Poolburn Gorge

2009_29302.jpg Nevis Valley backdrop

2009_29302.jpg Dunstan Mountains tor tops

2009_29302.jpg Upper Taieri scroll plan

● Upper Manuherikia and Hawkdun escarpment.

229 Figure 2.2 [District Plan, p. 2:9].

230 District Plan, p. 2.7.

231 District Plan, p. 2:7.

The nearest of these areas to the Meridian site are the „Serpentine‟ and the Upper Taieri Scroll Plain (both to the west of the site). Since most of the Meridian site is over 900 masl it is relevant that the district plan also states232:

Areas of outstanding landscapes, areas over 900 metres in elevation, and land in the Upper

Manorburn-Lake Dunstan Management Area have been shown on the planning maps.

3.3.3 The Rural Resource Area

[155] Section 4 of the district plan deals with the „Rural Resource Area‟ of the district. As shown on Maps 70 and 71 of Volume Two of the district plan the Meridian site is in the Rural Resource Area. The prima facie relevant objectives for the Rural Resource Area include paraphrases233 of section 5(2) and 6(c) of the RMA, which we will not

repeat, and three more specifically worded objectives. The latter are234:

4.3.2 Objective – Landscape and Amenity Values

To maintain and enhance rural amenity values created by the open space, landscape, natural character and built environment values of the District‟s rural environment.

4.3.3 Objective – Outstanding Landscapes and Natural Features, Land Over 900 metres and Land in the Upper Manorburn/Lake Onslow Landscape Management Area

To protect the Districts235 outstanding landscapes and natural features, land over 900

metres and land in the Upper Manorburn/Lake Onslow Landscape Management Area (including landforms) from the adverse effects of inappropriate subdivision, use and development.

4.3.4 Objective – Recreation Resources

To maintain and enhance the quality of the District‟s recreation resources and public

access to those resources.

We note here that, strangely, the three categories of land in objective 4.3.3 have the same objective, i.e. they appear to be required to be treated the same way. That equal

treatment flows through into the policies as we see next. So areas over 900 masl are

232 District Plan, p. 2:8.

233 Objective 4.3.1 [Central Otago District Plan, p. 4:7] and Objective 4.3.8 [Central Otago District

Plan, p. 4:8].

234 Objectives 4.3.2 to 4.3.4 [Central Otago District Plan pp. 4:7 – 4:8].

  1. Here and in succeeding quotations all apostrophes are omitted or added as shown in the district plan.

treated rather uncomfortably as a kind of „Clayton‟s‟ outstanding natural landscape: an

outstanding natural landscape which you do not actually call that. [156] The most relevant policies are236:

Policy – Landscape and Amenity Values

To manage the effects of land use activities and subdivision to ensure that adverse effects on the open space, landscape, natural character and amenity values of the rural environment are avoided, remedied or mitigated through:

(a) The design and location of structures and works,

(b) Development which is compatible with the surrounding environment including the amenity values of adjoining properties,

(c) The ability to adequately dispose of effluent on site,

(d) Controlling the generation of noise in back country areas,

(e) The location of tree planting, particularly in respect of landscape values, natural features and ecological values,

(f) Controlling the spread of wilding trees;

– and237:

Policy – Outstanding Landscapes and Natural Features, Land Over 900 metres and Land in the Upper Manorburn/Lake Onslow Landscape Management Area

To recognise the District‟s outstanding landscapes and natural features and land over 900 metres

and land in the Upper Manorburn/Lake Onslow Landscape Management Area which:

(a) Are unique to the district, region or New Zealand; or

(b) Are representative of a particular landform or land cover occurring in the Central Otago District or of the collective characteristics and features which give the District it‟s particular character; or

(c) Represent areas of cultural or historic significance in the district, region or New Zealand;

or

(d) Contain visually or scientifically outstanding geological features; or

(e) Have characteristics of cultural, historical and spiritual value that are significant to Kai

Tahu ki Otago

236 Policy 4.4.1 [Central Otago District Plan, p. 4:9].

237 Policy 4.4.6 [Central Otago District Plan, p. 4:12].

and provide protection for them from inappropriate subdivision, use and development.

The Explanation238 includes the following:

... Landscapes and natural features considered to be outstanding in the Central Otago District are identified as Sections 2.3.1 and 2.3.2 commencing on page 2:6 and are identified on the planning maps. Elevated areas of the District that are over 900 metres and land in the Upper Manorburn/Lake Onslow Landscape Management Area are also identified on the planning maps.

The right-hand bottom corner of Map 70239 shows areas of land above 900 metres above sea level. Most of the Meridian site is within an area above 900 masl.

[157] The rules for the Rural Resource Area provide240 that any activity not listed as controlled, discretionary etc is a permitted activity if it complies with the rules and standards set out in sections 4.7.6 and 12 to 15 of the plan. Thus farming is a permitted activity on the Lammermoor site. However, for land over 900 metres that is subject to a rule which sets a standard for activities as follows241:

(1) No activity shall have the effect of:

(a) Erecting any structure (excluding post and wire fences) or building, or

(b) Cutting new roads, new tracks, new landings, or new utility service lines, or

(c) Excavating material in excess of 20m3 (volume) and/or disturbing any land 50m2 in area or greater in any one hectare in any continuous period of 5 years but excluding cultivation of areas previously cultivated (for the avoidance of doubt this does not apply to the maintenance of roads, tracks, landings, fire breaks and other works), or

(d) Establishing woodlots, production forestry or shelter belts, or

(e) Subdivision of land (except for the purpose of creating reserves or conservation areas),

within any area identified as an outstanding landscape, land over 900 metres or land in the Upper Manorburn/Lake Onslow Landscape Management Area as shown on the planning maps and including outstanding landscapes as identified in Schedule 19.6.2 except as

provided for by Rules 13.7.6 and 13.7.8.

238 Central Otago District Plan, p. 4:12.

239 Central Otago District Plan, Volume 1 Map 70.

240 Rule 4.7.1 [Central Otago District Plan, p. 4:28].

241 Rule 4.7.6L [Central Otago District Plan, p. 4:65].

Thus for a considerable part of the Meridian site any permitted baseline is basically limited to current high country pastoral farming activities. The exceptions in rules

13.7.6 and 13.7.8 are for recently freeholded properties under the Crown‟s tenure review

process. They are not relevant for the purposes of these proceedings.

3.3.4 District-wide rules (section 12 of the district plan)

[158] Section 12 of the district plan provides district-wide rules and performance standards. None of these is relevant in this case because section 13 (discussed next) over-rides this section.

3.3.5 Infrastructure, energy and utilities (section 13 of the district plan)

[159] Section 13 of the district plan contains provisions for infrastructure, energy and utilities. The substantive objectives are preceded by a statement which reads242:

The objectives in this section of the Plan are intended to provide a complete code for those activities to which Section 13 applies.

The same statement appears in chapter 13.4 of the plan which sets out relevant policies. There is a similar statement later in the rules but without the use of the word „intended‟.

[160] There are three objectives in section 13. They relate to the roading network, utilities and to the development of energy resources. The latter two objectives are particularly relevant to this proposal. Objective 13.3.2 relates to utilities and is243:

To enable the efficient operation and development of utilities while ensuring that effects on amenity, heritage, landscape values and public safety are avoided, remedied or mitigated.

Objective 13.3.3 relates to the development of energy resources and requires244:

In the development of energy resources, to have particular regard to the use of natural and physical resources in a manner which avoids, remedies or mitigates significant adverse effects on the environment.

242 Central Otago District Plan, p. 13:4.

243 Central Otago District Plan, p. 13:4.

244 Central Otago District Plan, p. 13:4.

[161] A number of implementing policies within section 13.4 are also relevant. Policy

13.4.1 recognises the positive contribution of infrastructure. This policy is:

To recognise the essential and positive contribution that infrastructure and its ongoing development makes to the social, economic, and cultural wellbeing, and to the health and safety of the District‟s people and communities.

[162] Policy 13.4.3 relates to public works and network utilities. This policy reads245:

To enable the development and operation of public works and network utilities that are sited or designed in such a way that amenity, heritage and landscape values are not significantly adversely affected.

This policy is relevant to the assessment of the transmission line (and the substations) because these are utilities. There is also a policy246 as to co-siting of utilities and their location in corridors.

[163] Policy 13.4.7 is most important because it is specific to the development of power generation facilities. “Power generation facility” is defined247 as meaning “a facility, operation, or activity whose principal purpose is to generate energy, and includes ... wind turbines ...” and “Infrastructure” is defined248 as meaning “those built structures necessary for operating and supplying utilities and services to the community including ... electricity ...”. We hold that Meridian‟s proposed wind farm is a power generation facility. The policy seeks249:

To ensure that the development of power generation facilities avoids, remedies or mitigates: (a) Adverse effects on ecosystems, habitats, soils and minerals.

(b) Impact on communities, infrastructure and services.

(c) Adverse effects generated during the construction phase, particularly in terms of noise, lightspill, glare, vibration, dust, traffic generation and earthworks.

245 Central Otago District Plan, p. 13:6.

246 Policy 13.4.5 [Central Otago District Plan].

247 Central Otago District Plan, p. 18:8.

248 Central Otago District Plan, p. 18:5.

249 Central Otago District Plan, pp. 13:7 and 13:8.

(d) Potential for the loss of or irreversible change to outstanding landscapes. (e) Impacts on heritage values.

(f) Adverse effects on cultural values of importance to Kai Tahu ki Otago. (g) Ongoing effects of the development including land stability issues.

(h) Potential effects on local climate.

(i) The potential impact of natural hazard events and the effect the activity itself may have on exacerbating natural hazards.

(j) Impact on public access to and along the margins of lakes and rivers or to natural and physical features.

We note that this is a very general policy in that it copies the formula in section 5(2)(c)

of the RMA of avoiding, remedying or mitigating adverse effects.

[164] Policy 13.4.8 may be relevant to the subject proposal. This policy250 seeks to reduce the environmental impact of developing power generation by “... encouraging investigation into a wide range of renewable energy sources ...”. Its explanation states that development of energy production facilities has to date concentrated on resources that are more easily accessed; that, with advances in technology and depletion of these resources, together with a greater awareness of the environmental cost often associated with the development of these resources, alternate energy resources are becoming a more attractive development option; and that the investigation and development of low impact renewable sources of energy is encouraged.

[165] Policy 13.4.9 deals with conservation and efficient use of energy and is251:

To promote the conservation and efficient use of energy through:

(a) Encouraging the use of energy efficient technology and building design. (b) Educating the public about energy efficiency and its benefits.

(c) Encouraging industry and transport operators to adopt energy efficient management

practices.

250 Central Otago District Plan, p. 13:8.

251 Central Otago District Plan, p. 13:9.

[166] Section 13.6 of the plan sets out the principal reasons for adopting the objectives, policies and methods. It notes252 that “the development of infrastructure, network utilities and power generation facilities within the District has the potential to create significant adverse environmental effects”. It recognises that these activities are essential elements in the efficient functioning of the community, and explains that utilities and works with potentially significant effects will require assessment through the resource consent process.

The rules

[167] Section 13.7 of the plan sets out rules that are relevant to infrastructure, energy and utilities. Rule 13.7.1 states that section 13.7 is to be a complete code. More particularly, this section of the plan states that253:

The rules in this section of the Plan provide a complete code for those activities to which Section

13 applies. Other than in relation to Financial Contributions (Section 15) and Subdivision (Section 16) and the Definitions in Section 18, no rule in any other part of this plan shall apply to any activity dealt with by this section, unless the application for that rule is directly referred to in this section of the Plan.

[168] As indicated earlier, section 13 includes rules relevant to utilities and power generation facilities. The following rules from section 13.7 of the plan are relevant to the activities proposed by Meridian in this case. Rule 13.7.2 makes the „construction, upgrading or realignment of roads within road reserves ... a permitted activity‟ and encroachment beyond the road reserve is similarly a permitted activity.

The construction of a road not aligned with a legal road is a discretionary activity254.

[169] Rule 13.7.4(iii) as to power generation facilities states that any activity that255:

252 Central Otago District Plan, p. 13:12.

253 Central Otago District Plan, p. 13:13.

254 Rule 13.7.2(iii) Central Otago District Plan, p. 13:13.

255 Rule 13.7.2(iii) Central Otago District Plan, p. 13:13.

(a) Involves or is associated with the construction and commissioning of a power generation facility,

OR

(b) Results in an increase in the height of a dam ...

is a discretionary activity.

For the purposes of this rule “construction and commissioning” activities includes those activities

directly involved with the building and operation of a new energy production facility.

That shows (albeit confusingly) that development of a new power generation facility: (a) includes both its construction and its commissioning; and

(b) „commissioning‟ „includes its operation‟ by virtue of the special definition

for this rule.

It is important that the rule refers not only to development of such facilities but also to their operation. That is the only express reference (but it is enough) to actual operation of a facility such as a wind farm in section 13 of the district plan.

[170] Rule 13.7.7 relates to the operation, maintenance, repair, upgrading and removal of network utilities. Relevant parts of this rule include256:

(i) The operation, maintenance, repair, replacement, reconstruction and upgrading of network utilities (including existing network utilities and earthworks to maintain the utility‟s function) is a permitted activity.

That list is fairly comprehensive and made more so by an inclusive definition of

„upgrading‟. We consider any changes or connection to the Roxburgh-Three Mile Hill

Line would be covered by this rule.

[171] Rule 13.7.10 relates to electricity reticulation. It states (relevantly)257:

256 Central Otago District Plan, pp. 13:17-18.

257 Central Otago District Plan, pp. 13:19-20.

(i) New overhead lines ... and new support structures not exceeding 15 metres in height are: (a) Permitted activities in the Rural ... Resource Area..., and

...

provided that this does not apply to ...


  1. Areas of outstanding landscape, land over 900m and land in the Upper Manorburn/ Lake Onslow Management Area as identified on the planning maps, and

2. Areas of significant indigenous vegetation, habitat of indigenous fauna and

wetlands identified in Schedule 19.6.1 and the planning maps; and

...

(ii) Support Structures Exceeding 15m in Height

New pylons, poles and other support structures exceeding 15m in height together with associated lines, ancillary structures and telecommunications facilities for the purpose of transmitting electricity are discretionary activities258.

[172] Rule 13.7.15 sets out a range of performance standards for utilities. These standards relate to ground disturbance, parking, radio frequency radiation, stormwater control, noise, provision of as-built plans, construction and general standards, and separation distances. Where one or more of these standards are breached by the creation of a utility, then consent to a discretionary activity is required. We consider the application of section 13 of the operative district plan in Chapter 7.0 of this decision.

3.3.6 Heritage

[173] The most relevant heritage objective requires259 recognition and provision for the protection of those sites that contribute to the district‟s historic character. „Significant‟ historic260 sites are identified in a schedule261 to the district plan. The Styx Gaol at Paerau is shown262 as one such item, as are the neighbouring Styx Hotel and Stable263.

The Old Dunstan Road is not included.

258 Central Otago District Plan p. 13:20.

259 Objective 14.3.2 [Central Otago District Plan, p. 14:5].

260 Policy 14.4.7 [Central Otago District Plan, p. 14:8.

261 Schedule 19.4 to the Central Otago District Plan.

262 Schedule 19.4 item 284 to the Central Otago District Plan.

263 Schedule 19.4 item 285 [Central Otago District Plan].

3.3.7 Financial contributions (section 15 of the district plan)

[174] Section 15 of the district plan deals with financial contributions, and we record here that the CODC‟s decision imposed a condition264 setting a „development impact levy at 0.375%‟ of the total capital value of the consented wind farm development265. In his submissions for the CODC Mr Todd relied on this as a roll-up provision for any adverse environmental effects. He relied on policy 15.4.2 which includes, amongst the

purposes for which financial contributions may be sought, the following:

(a) To provide for the expansion and/or development of the recreational resources and

facilities of the District ...

...

(c) To protect and/or enhance ecosystems, habitats, landscapes, landforms or significant natural features including the natural character of rivers, lakes and wetlands and their margins;

(d) To maintain and enhance amenity values;

(e) To provide, relocate or upgrade public services and facilities including parking facilities; (f) To protect sites of heritage and cultural value ...

(g) To avoid, remedy, mitigate or compensate for adverse environmental effects on the community or any group within the community;

(h) To provide for public access where appropriate;

(i) To restore land and/or other natural physical resources upon completion of any activity. [Our emphasis]

[175] Policy 15.4.4 is:

... to encourage sub dividers and/or developers to first deal with environmental effects not

readily quantifiable through:

(a) Negotiation and private agreement with affected parties; and/or

(b) Through project design;

(c) Before utilising financial contributions to compensate for such effects.

Thus the agreement which the Department of Conservation and the New Zealand

Historic Places Trust reached with Meridian were encouraged by the district plan.

264 Condition 83.

265 The method to determine this value is given in Advice Note (a) of the CODC consent conditions.

[176] Rule 15.6.4 then sets out the circumstances where development impact levies can be imposed. In particular these include where adverse effects cannot be adequately avoided or remedied.

3.4 Plan Change 5 to the district plan (s 104(1)(b)(iv) of the Act)

[177] On 11 October 2008 – between two parts of the hearing of this proceeding – the CODC notified Plan Changes 5A to 5W (generically called “PC5”) to the district plan. Submissions closed on 23 December 2008. PC5 is primarily concerned with landscape.

[178] Plan Change 5A proposes to add to the description of features and landscapes in the district plan a further explanation and description as follows266:

Further work and considerable consultation on the Rural Study in 2005 and 2006 and a report prepared by Robson Garland, Ian Brown Consultants and LA4 Landscape Architects entitled Central Otago District Rural Review has resulted in the identification of a number of landscapes of high natural character values and high landscape quality that are areas of Extreme or High sensitivity, landscapes that are of Significant sensitivity and Significant landscape features within the District. The landscapes identified in the report as being areas of Extreme or High sensitivity are outstanding natural landscapes in terms of section 6(b) of the Act and are as

follows:

2009_29302.jpg Pisa and Dunstan Ranges

2009_29302.jpg Hector, Nevis Valley, Garvie and Old Woman Ranges

2009_29302.jpg Hawkdun and St Bathans Ranges

Lake Dunstan and Lake Roxburgh

The landscapes of significant sensitivity are: 2009_29302.jpg Lindis Pass

2009_29302.jpg Cairnmuir, Obelisk and Old Man Ranges

2009_29302.jpg Northern Knobby, Lammerlaw and Lammermoor Ranges

2009_29302.jpg Kawarau Gorge

2009_29302.jpg Clutha River below Clyde Dam

2009_29302.jpg Upper Manuherikia

2009_29302.jpg Lowburn, Bendigo and Clyde Terraces

2009_29302.jpg Terrace between the Dunstan Range and Manuherikia River.

266 PC5, p. 3.

Significant landscape features are:

Sugar Loaf and Bendigo glacial river terraces

Rocky backdrop to Alexandra

Flat Top Hill

Upper Taieri Scroll River

Lakes Onslow, Manorburn and Poolburn

Blue Lake, St Bathans

Tiger Hill

The landscapes and landscape features identified in the Rural Study are categorised on the basis of sensitivity as shown on the “Central Otago Rural Review Landscape Assessment Maps” that are contained in Schedule 19.22.

It will be noted that the Lammermoor Range is described as a landscape of „Significant sensitivity‟ but that the Rock and Pillar Range is omitted (perhaps because its crest is within Dunedin City).

[179] The Significant Issues in section 2 of the district plan are also proposed to be changed (relevantly) as follows – the underlined words are those to be added:

Significant Issue – Outstanding Landscapes

The District contains a number of outstanding landscapes that require identification and protection from inappropriate subdivision, use and development. In determining what is inappropriate subdivision, use and development in these landscapes it must be recognised that these landscapes are often utilised by people and communities to provide for their social, economic and cultural wellbeing.

Cross Reference: Issue 4.2.1 (pg 4:2) Objective 4.3.3 (pg 4:7)

and:

Significant Issue – Cen t r al Ot ago ‟s Un i q u e and Di sti n cti ve

Landscape

The Central Otago District has a unique and distinctive landscape. While the landscape is constantly evolving through natural processes, farming and other land use activities the semi-arid, rocky nature of the landscape means it can be vulnerable to the effects of change, in particular the visual effects of structures (including telecommunication masts, wind farms and other large structures), cultivation of tussock grasslands, large scale earthworks, new roads, residential built development on elevated land establishing woodlots, production forestry or shelter belts on elevated land and wilding tree spread. Subdivision is often the precursor of land use activities such as those listed above. The District‟s built heritage, particularly in the form of cottages and ruins, and remnants of the early goldmining era, has also made a significant contribution to the landscape values of Central Otago.

Cross Reference: Issue 4.2.2 (pg 4:2) Objective 4.3.2 (pg 4:7)

[180] PC5C then proposes to amend and reorder two relevant objectives for the Rural

Resource Area (which includes the Lammermoor) as follows267:

4.3.3 2 Objective – Outstanding Landscapes and Natural Features, Land Over 900 metres, and Land in the Upper Manorburn/Lake Onslow Landscape Management Area and areas of Extreme and High Sensitivity and Significant

Landscape Features

To protect the Districts outstanding landscapes and natural features, land over 900 metres, and land in the Upper Manorburn/Lake Onslow Management Area (including landforms) and areas of Extreme and High sensitivity and Significant landscape features as shown on the Landscape Assessment Maps in Schedule 19.22 from the adverse effects of inappropriate subdivision, use and development.

4.3.2 3 Objective – Landscape and Amenity Values

To maintain and enhance rural amenity values created by the open space, landscape, natural character and built environment values of the District‟s rural environment,

and to maintain the open natural character of the hills and ranges.

267 Text to be included is double underlined and text to be deleted is struck out: PC5, pp. 6 and 7.

[181] PC5D then proposes to amend policies 4.4.1 – 4.4.6, 4.4.9 and 4.4.10 in section

4.4 of the Operative Central Otago District Plan as follows (relevantly):

4.4.6 1 Policy – Outstanding Landscapes and Natural Features, Land Over 900 metres, and Land in the Upper Manorburn/Lake Onslow Landscape Management Area and areas of Extreme and High Sensitivity and Significant Landscape Features To recognise the District‟s outstanding landscapes and natural features and land over

900 metres, and land in the Upper Manorburn/Lake Onslow Management Area and areas of Extreme and High sensitivity and Significant landscape features as shown on the Landscape Assessment Maps in Schedule 19.22 which:

(a) Are unique to the district, region or New Zealand; or

(b) Are representative of a particular landform or land cover occurring in the Central Otago District or of the collective characteristics and features which give the District it‟s particular character; or

(c) Represent areas of cultural or historic significance in the district, region or


New Zealand; or

(d) Contain visually or scientifically outstanding geological features; or

(e) Have characteristics of cultural, historical and spiritual value that are significant to Kai Tahu ki Otago;

(f) Have high natural character values and high landscape quality that can be distinguished from the general landscapes of the Central Otago District

and provide protection for them from inappropriate subdivision, use and development.


4.4.1 2 Policy – Landscape and Amenity Values

To manage the effects of land use activities and subdivision to ensure that adverse effects on the open space, landscape, natural character and amenity values of the rural environment are avoided, remedied or mitigated through:

(a) The design and location of structures and works, particularly in respect of the open natural character of hills and ranges, skylines, ridgelines, prominent places and natural features,

(d) Development which is compatible with the surrounding environment including the amenity values of adjoining properties,

(c) The ability to adequately dispose of effluent on site,

(d) Controlling the generation of noise in back country areas,

(e) The location of tree planting, particularly in respect of landscape values, natural features and ecological values,

(f) Controlling the spread of wilding trees.

(g) Encouraging the location of buildings in valley floors rather than on hillsides to maintain the open natural character of hills and ranges.

In respect of section 13 of the district plan PC5P proposes to delete268 the passages which intend the objectives and policies to be a code for the activities to which section

13 applies.

[182] Until very late in writing this decision we had overlooked, as counsel must have during the hearing, that one consequence of the notification of Plan Change 5 is that in effect it constitutes a “proposed plan” under which consent is also necessary. That results from section 9 of the RMA which states:

(1) No person may use any land in a manner that contravenes a rule in a district plan or proposed district plan unless the activity is –

(a) expressly allowed by a resource consent ...

“Proposed plan” is defined269 in the Act as meaning (relevantly):

... a proposed plan, or variation to a proposed plan, or change to a plan that has been notified

under clause 5 of Schedule 1 but has not become operative in terms of clause 20 of Schedule 1...

We consider that the “proposed plan” for the purposes of section 9 is the district plan as

if all the components of the plan change were included.

[183] Thus there are two district plans for the application to be considered under. That situation arose in O’Connell Construction Limited v Christchurch City Council270 where the High Court was considering an appeal about a resource consent in a situation where

there was an operative (transitional) plan and a proposed plan. Panckhurst J wrote271:

268 PC5, p. 32.

269 Section 2 of the RMA.

270 O’Connell Construction Limited v Christchurch City Council [2003] NZRMA 216 (HC).

271 O’Connell Construction Limited v Christchurch City Council [2003] NZRMA 216 (HC) at [79]

and [80].

The final question of law is whether the Environment Court erred in its approach by considering the application as if two separate consents were required under the transitional and proposed plans. The submission of counsel was to the effect that the application was assessed and declined under both plans; whereas the Court was required to consider the activity in light of each plan, but ultimately determine which plan was to be accorded most weight as part of the discretionary process under s 105(1)(c).

I did not understand there to be any difference between counsel as to the correct approach. The Court of Appeal in Bayley v Manukau City Council272 held that assessments under both the transitional and proposed plans were required, although the weight to be given “t o the outgoing plan especially a transitional plan prepared under former legislation, will depend on the stage which the proposed plan has reached”.

[184] He continued273:

After the application has been considered in terms of both plans if the inclination is t o grant, or refuse, it under both then there is no need to assess the weight to be accorded to each plan. That further step will only be necessary where the inclination is to grant under one and refuse under the other. See Stokes v Christchurch City Council274, Boon’s Neighbourhood Action Group (Inc) v Christchurch City Council275. I agree with this analysis.

In the light of that authority we hold that the proposed plan as a whole consists of Plan Changes 5A to 5W as inserted into those parts of the operative district plan which are not affected by Plan Change 5. As we understand it, the status of the proposed wind farm does not change under the proposed plan – it is still discretionary. However, there are different objectives and policies to apply to the proposed activity under Plan Change

5 and its deemed proposed plan.

3.5 The regional instruments (s 104(1)(b)(iii) of the Act)

[185] Under section 104(1)(c) of the RMA we must have regard to the Otago Regional

Policy Statement (“the RPS”) and to the Otago Regional Plan: Water. We will discuss

272 Bayley v Manukau City Council [1998] NZRMA 513 at 519 (CA).

273 O’Connell Construction Limited v Christchurch City Council [2003] NZRMA 216 at [81].

274 Stokes v Christchurch City Council [1999] NZEnvC 238; [1999] NZRMA 409.

  1. Boon’s Neighbourhood Action Group (Inc) v Christchurch City Council, Environment Court, Christchurch, C71/2001, 4 May 2001, Judge J A Smith.

that to the extent necessary when considering Mr Douglas‟ appeal. It is also worth noting that since the 2005 amendment to section 75 of the RMA, the district plan should “give effect to” the RPS, and that Plan Change 5 to the district plan (discussed above) is partly motivated by the wish to give effect to the RPS.

[186] The RPS, which came into force on 1 October 1998, ten years earlier than the operative district plan, contains objectives and policies on many relevant issues. The most relevant chapters in the RPS – to these proceedings – are emphasised in the following list:

1. Introduction

2. Treaty of Waitangi

3. Regional Description

4. Manawhenua Perspective

5. Land

6. Water

7. Air

8. Coast

9. Built Environment

10. Biota

11. Natural hazards

12. Energy

13. Wastes etc

14. Monitoring and Review

15. Cross Boundary Issues

[187] Most of the relevant objectives276 for land use are high-minded but vacuous. Almost any application for resource consent would meet objectives 5.4.1, 5.4.2 and

5.4.4.

276 Objectives 5.4.1, 5.4.2 and 5.4.4 [RPS pp. 50 and 51].

[188] Objective 5.4.3 is simply „To protect outstanding natural features and landscapes

...‟277. The RPS does not state precisely where an ONL or ONF may be found within the region. The relevant implementing policy is278:

5.5.6 To recognise and provide for the protection of Otago‟s outstanding natural features

and landscapes which:

(a) Are unique to or characteristic of the region; or

(b) Are representative of a particular landform or land cover occurring in the Otago region or of the collective characteristics which give Otago its particular character; or

(c) Represent areas of cultural or historic significance in Otago; or

(d) Contain visually or scientifically significant geological features; or

(e) Have characteristics of cultural, historical and spiritual value that are regionally significant for Tangata Whenua and have been identified in accordance with Tikanga Maori.

The words of this policy suggest that any landscape which is to be protected must both be an ONL and possess one of the characteristics identified in (a) to (e).

[189] The explanation which follows is not really consistent with the policy279. The explanation is :

The recognition and identification of outstanding natural features and landscapes should be based on objective criteria and undertaken in consultation with the community or have outstanding or significant values that are substantially recognised by the Otago community.

Features and landscapes that give the Otago region its distinctive character and particular identity include its expansive tussock grasslands and semi arid lowland tor country, the south -east Otago bush remnants and scroll plain wetlands, glacial lakes and block mountain ranges and heritage landscapes such as the historic goldfield sites.

It is important that identification of Otago‟s outstanding natural features and landscapes be carried out as part of the process for protection from inappropriate subdivision, use and development. Until this identification is completed, careful consideration will need to be given

as to whether a particular feature or landscape falls within the scope of Policy 5.5.6.

277 RPS pp. 50-51.

278 RPS p. 56.

279 RPS pp. 56-57.

The means of achieving protection may include voluntary arrangements, covenants, the resource consent process or where necessary and appropriate, purchase.

The explanation seems to suggest that the five sets of characteristics are the criteria for being an outstanding natural landscape. Despite that confusion, and importantly for this case, the explanation does strongly imply that “expansive tussock grasslands” are one type of outstanding natural landscape and that they contribute to the region‟s “distinctive character and particular identity”.

[190] Finally, in relation to landscape the methods identified in the RPS to accomplish those policies include (relevantly) the ORC preparing280 (after consultation) „an inventory of Outstanding Natural Features and Landscapes that are regionally significant‟. This does not seem to have been carried out by the ORC in the ten years since the RPS came into force.

[191] The Methods which the RPS states “... may be used by Otago‟s territorial local

authorities ...” include281:

5.6.20 Develop policies and other means, including rules where appropriate, to ensure that Otago‟s outstanding natural features and landscapes are protected from inappropriate subdivision, use and development.

That contrasts with policy 13.4.7 of the operative district plan which merely requires that the development of a power generation facility avoids, remedies or mitigates “Potential for the loss of or irreversible change to outstanding landscapes”.

[192] Chapter 10 (Biota) of the RPS includes these three objectives for biota

(relevantly):

280 Method 5.6.17 [RPS p. 60].

281 Method 5.6.20 [RPS p. 60].

2009_29302.jpg To maintain and enhance the life-supporting capacity and diversity of Otago‟s biota282;

2009_29302.jpg To protect Otago‟s natural ecosystems ... from significant biological and natural threats283; 2009_29302.jpg To maintain and enhance the natural character of areas with significant indigenous

vegetation and significant habitats of indigenous fauna284.

[193] Chapter 12 (Energy) of the RPS states in its introduction285:

... less conventional energy sources such as biogas, solar, cogeneration and wind power are increasingly recognised as acceptable long-term energy sources which, for Otago, appear likely to offer more promising opportunities and lower associated environmental impacts (eg. the potential wind farm site of Rocklands in inland Otago).

So the RPS has identified an area on the Lammermoor which the RPS calls „Rocklands‟

– presumably the farming station of that name – as being a particularly appropriate site for a wind farm. Considerable emphasis was given to this statement in submissions by counsel for Meridian and the CODC. However, it is only an introductory comment, not an objective or policy and we give it no weight.

[194] The objectives in the RPS in respect of energy are286:

12.4.1 To avoid, remedy or mitigate the adverse effects on Otago‟s communities and

environment resulting from the production and use of energy.

12.4.2 To sustainably and efficiently produce and use energy taking into account community values and expectations.

12.4.3 To encourage use of renewable resources to produce energy.

The policies do not add much to those three objectives. It is not clear to us how these objectives are meant to work with (for example) objective 5.4.3 as to protection of

outstanding natural landscapes.

282 Objective 10.4.1 [Otago RPS p. 139].

283 Objective 10.4.2 [Otago RPS p. 139].

284 Objective 10.4.3 [Otago RPS p. 139].

285 Regional Policy Statement p. 171.

286 Regional Policy Statement p. 171.

[195] Finally on the RPS, it is worth recording that it contains an objective about cross- boundary issues. Objective 15.4 is287:

15.4.1 To ensure that cross boundary issues are identified, agreed to and are dealt with in an efficient and effective manner.

An earlier policy288 in respect of territorial local authorities requires that „Otago‟s ... district councils must show the processes they will use to deal with issues which cross territorial boundaries‟. We were not referred to anything in the Central Otago District Plan about this, despite the fact that the Meridian site is on the Dunedin City boundary. We discuss the implications of that proximity in Chapter 7.0.

3.6 Other matters to be had regard to (s 104(1)(c) of the Act)

3.6.1 Other relevant matters raised in the evidence

[196] Various other matters were raised in the evidence. We will discuss the relevant matters when making our overall assessments under the plans. In the following two sections we identify two relevant sets of national documents which we should have regard to.

3.6.2 The National Energy Strategy

[197] A number of witnesses referred to the current National Energy Efficiency and

Conservation Strategy containing the renewable energy generation target of 90% by

2025. At the continuation of the hearing in 2009 (after the national elections in November 2008) Ms Arthur appeared for the Crown to confirm the Crown‟s position. Ms Arthur did not explicitly mention the National Energy Efficiency and Conservation Strategy or the renewable energy target, but stated289 more generally that “Government policy has not changed”. She outlined the changes that the new government had initiated – the review of the Emissions Trading Scheme (“ETS”) and the bill to repeal

the ten-year restriction on the construction of new thermal base-load capacity – and went on to state290 “the Crown still supports the use of renewable energy”. From this we

conclude that, with the exception of the details of the ETS and the restriction on new

287 Regional Policy Statement, p. 213.

288 Policy 15.2.3 (Regional Policy Statement, p. 211).

289 Ms B H Arthur, further submissions 29 January 2009 para 2 [Environment Court document 65].

290 Ms D H Arthur, further submissions 29 January 2009 para 5 [Environment Court document 65].

thermal capacity, the National Energy Efficiency and Conservation Strategy, including the target of 90% renewable generation of 2025 is the policy of the new government.

3.6.3 International treaties

[198] A number of witnesses referred to the United Nations Framework Convention on Climate Change and its Kyoto Protocol. The obligations under these treaties have been enacted in domestic law in the Climate Change Response Act 2002 and the section 7 amendments to the RMA. Various divisions of the Environment Court have considered

these provisions in wind farm cases in recent years:

2009_29301.jpg Genesis Power Limited v Franklin District Council291 (“the Awhitu case”);

2009_29301.jpg Meridian Energy Limited v Wellington City Council292 (“the Makara

decision”);

2009_29301.jpg The Outstanding Landscape Protection Society Incorporated v Hastings

District Council293 (“the Unison One decision”);

2009_29301.jpg Upland Protection Society Incorporated v Clutha District Council294 (“the

Mahinerangi decision”);

2009_29301.jpg Motorimu Wind Farm Limited v Palmerston North City Council295

(“Motorimu”);

Unison Networks Limited v Hastings District Council296 (“Unison Two”).

These all had regard to New Zealand‟s approach to its international obligations when

undertaking the overall assessment required by the Act and we follow their approach.

291 Genesis Power Limited v Franklin District Council [2005] NZEnvC 341; [2005] NZRMA 541.

292 Meridian Energy Limited v Wellington City Council Decision W31/2007.

  1. The Outstanding Landscape Protection Society Incorporated v Hastings District Council [2007] NZEnvC 87; [2008] NZRMA 8 at paragraphs [99] to [101].

294 Upland Protection Society Incorporated v Clutha District Council Decision C85/2008.

295 Motorimu Wind Farm Limited v Palmerston North City Council Decision W67/2008 (26

September 2008) at para [346].

  1. Unison Networks Limited v Hastings District Council Decision W11/2009 (23 February 2009) at paragraphs [137] – [138].

3.7 Part 2 of the RMA

3.7.1 The strong directions in sections 6 to 8

[199] Under section 104(1) of the RMA our regard to the matters in paragraphs (a) to (c) is “subject to Part 2” of the Act. First and most importantly in that part, section 5 sets out that the RMA has the single purpose of sustainable management of the relevant natural and physical resources. Sections 6 to 8 then provide „strong directions‟ – to use the phrase of the Privy Council in McGuire v Hastings District Council297 – as to how to achieve that sustainable management. Issues were raised as to the meaning of some of these provisions, including an important issue as to how much the RMA contemplates a consent authority looking at alternatives to the proposal before it. We consider that

issue later in this chapter.

3.7.2 Section 6 matters

[200] The relevant matters of national importance under section 6 are:

...

(b) The protection of outstanding natural features and landscapes from inappropriate subdivision, use, and development:

(c) The protection of areas of significant indigenous vegetation and significant habitats of

indigenous fauna:

...

(f) The protection of historic heritage from inappropriate subdivision, use, and development.

The issues under section 6(c) in this proceeding are all factual and predictive but the application of sections 6(b) and 6(f) is more complicated.

Outstanding natural landscapes

[201] Section 6(b) requires us to recognise any relevant outstanding natural landscape. In Wakatipu Environmental Society Incorporated v Queenstown Lakes District Council298 the Court identified the components of a landscape as the amended Pigeon

Bay criteria. Extra factors arising out of „cultured natural landscape‟ were discussed in

297 McGuire v Hastings District Council [2001] UKPC 43; [2001] NZRMA 557; [2002] 2 NZLR 577 (PC) at [21].

  1. Wakatipu Environmental Society Incorporated v Queenstown Lakes District Council [2000] NZRMA 59.

Long Bay-Okura Great Park Society et ors v North Shore City Council 299. We now pull together the threads from those cases and state what we understand a landscape to be under the RMA by recategorising the amended Pigeon Bay criteria in an attempt to parcel them into three sets with the more objective factors in (1) and the more value- laden factors in (2) and (3). This comes with a sense of caution about reducing discussion of any landscape to its elements. There is always a danger of not seeing a landscape for the tussocks.

[202] In our view a landscape is four-dimensioned in space and time within the given environment – often focussed on a smaller relevant space such as an application site – which is the sum of the following:

(1) a reasonably comprehensive (but proportionate to the issues) description of the characteristics of the space such as:

2009_29301.jpg the geological, topographical, ecological and dynamic components of the wider space (the natural science factors);

2009_29301.jpg the number, location, size and quality of buildings and structures;

2009_29301.jpg the history of the area;

2009_29301.jpg the past, present and likely future (permitted or consented) activities in the relevant parts of the environment; and

(2) a description of the values of the candidate landscape including:

2009_29301.jpg an initial assessment of the naturalness of the space (to the extent this is more than the sum of the elements described under (1) above);

2009_29301.jpg its legibility – how obviously the landscape demonstrates the formative processes described under (1);

2009_29301.jpg its transient values;

2009_29301.jpg people and communities‟ shared and recognised values including the memories and associations it raises;

2009_29301.jpg its memorability;

2009_29301.jpg its values to tangata whenua;

2009_29301.jpg any other aesthetic values; and

299 Long Bay-Okura Great Park Society et ors v North Shore City Council Decision A78/2008.

2009_29301.jpg any further values expressed in a relevant plan under the RMA; and

(3) a reasonably representative selection of perceptions – direct or indirect, remembered or even imagined – of the space, usually the sub-sets of:

(a) the more expansive views of the proposed landscape300; and

(b) the views, experiences and associations of persons who may be affected by the landscape.

[203] There is some repetition within the sets. For example the objective characteristics of the landscape go a long way towards determining its naturalness. More widely, the matters in the third set influence the perceptions in the second.

[204] To describe and delimit a landscape a consent authority needs at least to consider the matters in set (1) and, to the extent necessary and proportionate to the case, those in sets (2) and (3) also. After delimiting the landscape, the consent authority must assess its naturalness. The criteria for „naturalness‟ were stated by the Environment Court in Long Bay-Okura Great Park Society Incorporated et ors v North Shore City Council301

to include:

2009_29301.jpg relatively unmodified and legible physical landform and relief;

2009_29301.jpg the landscape being uncluttered by structures and/or obvious human influence;

2009_29301.jpg the presence of water (lake, river, sea);

2009_29301.jpg the presence of vegetation (especially native vegetation) and other ecological patterns.

[205] There is sometimes criticism of Part 2 of the RMA for the extent of subjectivity it is said to introduce. Some of this may be inevitable if Parliament maintains the role of the RMA in reconciling different cultural attitudes to resources as in sections 6(e),

7(a) and 8 of the Act. But the test of naturalness in section 6(b) is an important

qualification of the word „landscape‟ and introduces a considerable degree of objectivity

300 Kircher v Marlborough District Council Decision C90/2009 (Judge McElrea) at para [76].

301 Long Bay-Okura Great Park Society Incorporated et ors v North Shore City Council Decision

A78/2008 at para 135.

to the concept of a natural landscape. Supporting the relative objectivity of the concept we note that humans may even have an evolved preference for those characteristics. In his recent book The Art Instinct Mr Denis Dutton describes recent work on “... the kind of ideal landscape that human beings would find intrinsically pleasurable”302. He lists

its elements as303:

2009_29302.jpg open spaces of low (or mown) grasses interspersed with thickets of bushes and groupings of trees;

2009_29302.jpg the presence of water directly in view, or evidence of water nearby or in the distance;

2009_29302.jpg an opening up in at least one direction to an unimpeded vantage on the horizon;

2009_29302.jpg evidence of animal and bird life;

a diversity of greenery, including flowering and fruiting plants.

The coincidence between those elements and the „criteria‟ for naturalness in the Long Bay case seems remarkable304. The ideal landscape type described by Mr Dutton is of course closer to the „cultured native landscape‟ described by Dr Simon Swaffield, than to what we might call the „near endemic landscape‟ type that still exists in some (mainly coastal or mountainous) parts of New Zealand.

[206] There are no invariable criteria for outstandingness – it depends on the specific characteristics of the „natural landscape‟ being considered. The landscape of the Meridian site is discussed in the next chapter.

Historic heritage

[207] Section 6(f) makes the protection of historic heritage from inappropriate development a matter of national importance. Section 2 of the Act defines the phrase “historic heritage” as:

(a) means those natural and physical resources that contribute to an understanding and appreciation of New Zealand‟s history and cultures, deriving from any of the following

qualities:

302 D Dutton, The Art Instinct (Bloomsbury Press at New York) 2009, p. 15.

303 D Dutton, The Art Instinct (Bloomsbury Press at New York) 2009, p. 15.

304 Or perhaps not: the Long Bay criteria were stated after considering research by Dr Simon

Swaffield of Lincoln University. Mr Dutton works less than 20 kilometres away at Canterbury

University.

(i) archaeological: (ii) architectural: (iii) cultural:

(iv) historic: (v) scientific:

(vi) technological; and


(b) includes –

(i) historic sites, structures, places, and areas; and

(ii) archaeological sites; and

(iii) sites of significance to Maori, including wahi tapu; and

(iv) surroundings associated with the natural and physical resources.

The important point for present purposes is that the concept of historic heritage appears to include the context of a heritage site, structure, place or even area. We infer that from the inclusion of „surroundings‟ within the definition of “historic heritage”. For example, in these proceedings we have found that the Old Dunstan Road across the Lammermoor is historic heritage. A further issue for us to determine will be the extent of the „heritage surroundings‟ or, as the landscape architect called for MESI (Ms Steven) put it, the „heritage setting‟ of the Old Dunstan Road.

[208] The phrase „heritage landscape‟ is often used when speaking of the surroundings of historic heritage. Mr Rough referred305 to a “Heritage Landscapes Thinktank” whose thoughts were published by the New Zealand Historic Places Trust which explored the utility of the phrase. However, we consider this usage may be dangerous under the RMA where the word „landscape‟ is used only in section 6(b). Further, the concept of a landscape includes heritage values, so there is a danger of double-counting as well as of confusion if the word „landscape‟ is used generally in respect of section

6(f) of the Act.

3.7.3 Section 7 (generally)

[209] We are to have particular regard (relevantly) to these matters:

305 Mr P Rough, evidence-in-chief paragraphs 113 and 114 [Environment Court document 3].

(a) ...

(aa) The ethic of stewardship:

(b) The efficient use and development of natural and physical resources: (ba) the efficiency of the end use of energy:

(c) The maintenance and enhancement of amenity values: (d) Intrinsic values of ecosystems:

(e) Repealed.

(f) Maintenance and enhancement of the quality of the environment: (g) Any finite characteristics of natural and physical resources:

(h) The protection of the habitat of trout and salmon: (i) the effects of climate change:

(j) the benefits to be derived from the use and development of renewable energy.

Because more submissions were made about section 7(b) that is considered in 3.9 below. We discuss the other paragraphs of section 7 in order now.

The ethic of stewardship (section 7(aa))

[210] Mr Todd submitted for the CODC306 that “... currently the owners of the land have the primary role of stewardship ...” and that the Regional and District Councils play a role through their plans and consent procedures. He also acknowledged that government departments and quangos such as the Department of Conservation and the Historic Places Trust also have a stewardship role in relation to adjoining lands. On the other hand, in The Outstanding Landscape Protection Society Incorporated v Hastings

District Council307 the Environment Court wrote:

... It is valid to see “stewardship” in two ways in this context. First, that it would be best achieved by preserving these visual, landscape and other amenity values unaltered, and that change to them should be avoided. Alternatively, that we will be better stewards of the planet‟s resources for the benefit of future generations if we accept some compromise of those values for the purpose of at least slowing climate change, by taking advantage of non-polluting and renewable sources of energy. The issue here is whether the compromise required for this proposal, whether alone or cumulative upon that already accepted to allow [two other consented]

proposal[s] goes beyond the point of what is appropriate and acceptable.

306 Mr G M Todd, submissions 16 February 2009 [Environment Court document 85].

  1. The Outstanding Landscape Protection Society Incorporated v Hastings District Council [2007] NZEnvC 87; [2008] NZRMA 8 at [88].

[211] The „ethic of stewardship‟ has a long if rather theocentric history. In Plato‟s Phaedrus308 a character states: “It is everywhere the responsibility of the animate to look after the inanimate”. In the 17th century Hale CJ wrote, extrajudicially309:

The end of man‟s creation was that he should be the viceroy of the great God of heaven and earth

in this inferior world; his steward ... or farmer of this goodly farm of the lower world.

[212] The idea that stewardship appears to involve a responsible compromise of landowners‟ dominion over their land seems to be demonstrated in the Makara310 decision. There the Environment Court discussed stewardship and appeared to find it cut both ways:

First, that [stewardship] would be best achieved by preserving this landscape unaltered, and that change to it should be avoided. Alternatively, it could be argued that we will be better stewards of the planet‟s resources for the benefit of future generations if we allow some compromise of amenity for the purpose of at least slowing climate change, by taking advantage of non -polluting and renewable sources of energy.

We assume that the italicised “we” refers to all New Zealanders. Importantly the

decision also links stewardship with section 5(2) of the Act.

[213] We were not given any substantive submissions or evidence that would help us resolve who Parliament is intending to apply the ethic of stewardship to. We will attempt to resolve this briefly in Chapter 7.0.

Energy (section 7(ba) and (j))

[214] There is one interpretative issue here: “what is meant by the efficient end use of energy”? As the Environment Court did in Lower Waitaki River Management Society Incorporated v Canterbury Regional Council311 we adopt the approach of the Board of

Inquiry into the Upper North Island Grid Upgrade312 concerning section 7(ba):

308 Phaedrus 246b.

309 Sir Matthew Hale The Primitive Origination of Mankind (London, 1677) Section 4, p. 370.

310 Meridian Energy Limited v Wellington City Council Decision W31/2007 at para [369].

311 Lower Waitaki River Management Society Incorporated v Canterbury Regional Council Decision

C80/2009 at para [193].

312 Draft Report and Decision (May 2009) at para 2341.

... the end-use of energy, outside the scope of a transmission grid, and is beyond being influenced by however robust and resilient the grid may be. This topic is simply irrelevant to the circumstances of the proposed ... resource consents.

We consider that the end use of energy, and the efficiency thereof (outside of any issues in supplying to the receiving electricity grid), are not relevant to resource consents for generation facilities.

[215] The benefits of developing and using renewable energy (section 7(j)) are factual and predictive issues which we consider elsewhere.

Maintenance and enhancement of amenity values and quality of the environment

(section 7(c) and (f))

[216] Amenity is defined in section 2 of the RMA as meaning:

... those natural or physical qualities and characteristics of an area that contribute to people‟s

appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes.

The Court has held that protection of views under this paragraph is not only for adjacent landowners but also for passers-by and future generations: Pacific Investment Trust v Banks Peninsula District Council313. Otherwise these values are largely subsumed in consideration of the landscape values we consider later.

Intrinsic values of ecosystems (section 7(d))

[217] We received little or no evidence on the economic values of any „intrinsic values‟ possessed by the land subject to the application. The „existence value‟ of ecosystems has been the subject of investigation by economists recently, so there is the potential for probative evidence to be given on this issue. That is important because a matter we are to have particular regard to should not have been simply ignored by the

parties.

313 Pacific Investment Trust v Banks Peninsula District Council Decision C86/2000.

[218] We did receive ecological evidence about the values of the various ecosystems and we attempted to describe that in Chapter 2.0.

Any finite characteristics of natural and physical resources (section 7(g))

[219] This paragraph raises questions of fact and prediction considered later.

The protection of the habitat of trout and salmon (section 7(h))

[220] Several issues were raised in the evidence – the effect of trout habitat including spawning grounds being affected by sedimentation (and/or eutrophication?).

The effects of climate change (section 7(i))

[221] Section 7(i) of the RMA states that we are to have particular regard to the effects

of „climate change‟. That term is defined by section 2 of the RMA as meaning:

... a change of climate that is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and that is in addition to natural climate variability observed over comparable time periods.

We consider the definition has two components. Climate change is a change:

(1) that is attributed to human activity that alters the composition of the global atmosphere; and

(2) that is in addition to natural variability.

Sentence (1) does not say „caused by‟. We consider if a party reasonably attributes changes to the composition of the global atmosphere to human activity then it falls within the definition of climate change for the purposes of the Act. We assume Parliament‟s intention was for local authorities to avoid scientific discussion about the existence and extent of anthropogenic climate change and get on with the local circumstances of resource consent applications.

[222] In Chapter 2314 we accepted the New Zealand Government‟s attribution to human activity of the changes in the composition of the global atmosphere. Section 7(i) thus applies and we must have particular regard to the effects of climate change as defined in the RMA.

3.8 Efficient use of resources (section 7(b) of the Act)

3.8.1 Efficiency of using the wind

[223] It was a general theme of Meridian‟s case and supported by the CODC through Mr Todd‟s submissions315 that it would be efficient in terms of section 7(b) to use the wind which is currently not utilised. There is support for that proposition in two of the wind farm cases decided to date by the Environment Court: Genesis Power Limited v Franklin District Council316 (“the Awhitu case”); and more directly in The Outstanding

Landscape Protection Society Incorporated v Hastings District Council317 (“the Unison

One decision”) where the Court wrote318:

... the energy in the wind is a presently untapped resource, and the use of that resource to produce electricity by a process which does not emit pollutants is at the heart of this project. It would plainly be an efficient use of the resource, which will otherwise be wasted.

[224] In wind farm cases it is becoming common – see for example Makara319, Unison One320 – to put two benefits into the ledger as efficient use of resources: the use of the wind (previously „wasted‟) and the continued use of the (farm) land underneath. While we certainly agree that both those are important positive potential effects of a wind farm,

we consider that approach is potentially misleading. If section 7(b) is to be more than

another way of restating a value judgement about irreconcilable values then the issues it

314 At section 2.10 of this decision.

315 Environment Court document 85.

316 Genesis Power Limited v Franklin District Council [2005] NZEnvC 341; [2005] NZRMA 541 at para [200].

  1. The Outstanding Landscape Protection Society Incorporated v Hastings District Council [2007] NZEnvC 87; [2008] NZRMA 8 at paragraphs [99] to [101].
  2. The Outstanding Landscape Protection Society Incorporated v Hastings District Council [2008] NZRMA at para [89].

319 Meridian Energy Limited v Wellington City Council Decision W31/2007 at para [370].

  1. The Outstanding Landscape Protection Society Incorporated v Hastings District Council [2007] NZEnvC 87; [2008] NZRMA 8.

raises should be stated more concretely and fully for the reasons stated in the Lower

Waitaki321 case.

[225] In Unison One322 the Court held that it is efficient to utilise wind – it is a waste to leave it unutilised – and also to continue production from the farm underneath it. We consider it might equally be alleged that it is efficient to spend the money that would be needed to buy expensive wind turbines, to buy cheap coal and cheap coal-driven plants and pay any carbon tax. In fact that was Mr Leyland‟s evidence in these proceedings. It is also efficient, in the sense of avoiding waste, not to reduce the area of outstanding natural landscapes.

[226] We are uncomfortable with a cherry-picking approach to efficiency. We prefer to follow the decision of the Court (slightly differently composed) in Lower Waitaki River Management Society Incorporated v Canterbury Regional Council323:

We consider that efficiency in section 7(b) of the RMA requires a consent authority to consider the use of all the relevant resources and, preferably, their benefits and costs. It is nearly meaningless to consider the benefits of only some of the resources involved in the proceeding because the artificial weighting created by sections 5 to 8 of the Act will not be kept within the statutory proportions if the only matters given the „particular regard to‟ multiplier (see Baker Boys Limited v Christchurch City Council324) in section 7(b) are those which are not identified elsewhere in section 7. Further, it is very helpful if the benefits and costs can be quantified because otherwise the section 7(b) analysis merely repeats the qualitative analysis carried out

elsewhere in respect of sections 5 to 8 of the Act.

321 Lower Waitaki River Management Society Incorporated v Canterbury Regional Council Decision

C80/2009.

  1. The Outstanding Landscape Protection Society Incorporated v Hastings District Council [2007] NZEnvC 87; [2008] NZRMA 8 at [89].

323 Lower Waitaki River Management Society Incorporated v Canterbury Regional Council Decision

C80/2009 at [196].

324 Baker Boys Limited v Christchurch City Council [1998] 433 at para (98).

3.8.2 How is efficiency determined?

[227] First we emphasise that we are not concerned with the viability or profitability of the project to Meridian itself. We respectfully follow Greig J in NZ Rail v Marlborough District Council325 where he stated:

That economic considerations are involved is clear enough. They arise directly out of the purpose of promotion of sustainable management. Economic well-being is a factor in the definition of sustainable management in s 5(2). Economic considerations are also involved in the consideration of the efficient use and development of natural resources in s 7(b). They would also be likely considerations in regard to actual and potential effects of allowing an activity under s 104(1). But in any of these considerations it is the broad aspects of economics rather than the narrower consideration of financial viability which involves the consideration of the profitability or otherwise of a venture and the means by which it is to be accomplished. Those are matters for the applicant developer and, as the Tribunal appropriately said, for the boardroom.

[228] Counsel for Meridian submitted326 that because the wind farm is a discretionary activity under the district plan this raises the inference that the activity is an efficient use of resources. Mr Beatson‟s authority for this was the Awhitu decision327 and which referred to LRG Investments Limited v Christchurch City Council328 that appears to ultimately rely on Swindley v Waipa District Council329. There the Planning Tribunal stated that when considering an application for a discretionary activity, consent authorities330:

... do not have responsibility for determining the relative efficiency of the use of resources proposed, compared with other possible uses of those resources. Rather, the fact that a particular class of activity is recognised by a district plan as a permitted, controlled or discretionary activity implies that in general that class of activity is an efficient use and development of the resources

for the purposes of Part II .

325 NZ Rail v Marlborough District Council [1994] NZRMA 70, 88 (HC).

  1. Mr A Beatson, submissions dated 28 July 2008 paragraphs 129 and 195 [Environment Court document 23].

327 Genesis Power Limited v Franklin District Council [2005] NZEnvC 341; [2005] NZRMA 541.

328 LRG Investments Limited v Christchurch City Council C64/1998.

329 Swindley v Waipa District Council Decision A75/1994.

330 Swindley v Waipa District Council Decision A75/1994 at p. 23.

However, Swindley does record331 that the matter was not argued fully before the

Tribunal.

[229] The Tribunal in Swindley stated that having a discretionary status implied that “in general that class of activity” was efficient. This implies that while there is a priori an assumption that a class of activity may be efficient, it may not necessarily be so for any specific proposal, and needs to be confirmed with regard to the specifics of that proposal. For the economic reasons stated in the Lower Waitaki decision we consider that is correct, and especially where a matter of national importance is raised under section 6 to the RMA, the specific costs and benefits of a proposal should be examined and if possible quantified.

[230] While in an engineering sense efficiency means the ratio of outputs to inputs, in economic terms it is not an absolute but a relative concept. We hold that under section

7(b) of the Act there are two questions to answer when determining the efficiency of the use of resources:

(1) is the value achieved from the resources utilised the greatest benefit that could be achieved from those resources?

(2) could that same benefit be produced utilising resources of lower value if they were organised differently, or if a different set of resources was used?

The first point is about maximising the benefits achieved from the resources being utilised; and the second is about minimising the resource costs of achieving a given benefit. However, Meridian challenged whether at least the alternative in (2) was relevant under the RMA.

[231] Mr Rennie QC referred to the recent High Court decision in Dome Valley Residents Association Incorporated v Rodney District Council332 which was about an application to establish a helicopter base in a rural area. The appellant society argued

that the Environment Court was wrong not to have considered alternative locations.

331 Swindley v Waipa District Council Decision A75/1994 at p. 23.

332 Dome Valley Residents Association Incorporated v Rodney District Council [2008] NZHC 1205; [2008] NZRMA 534.

There was no issue of national importance under section 6 of the RMA in the proceeding. Priestley J held333 that “There is no authority ... which suggests that as part and parcel of the consideration of a resource consent application, alternative sites have to be considered or cleared out”. He expanded on that when refusing leave for an appeal to the Court of Appeal in Dome Valley District Residents Society Incorporated v Rodney District Council334:

... [A]lternative sites may be an issue where section 6 matters of national importance are in play or with applications where there will be significant adverse effect on the environment.

...

This in my judgment is not such a case. The adverse effects in terms of determinations by RDC

and the Environment Court were minor rather than significantly adverse.

It would be a nonsense to suggest that the dictum of Hammond J, [in the TV3 Network case] made in a s 6 context, should be carried across holus bolus to all resource consent applications. Such an outcome would need legislative change and would probably, in respect of most applications for unpermitted uses, lead to chaos. The current policy and structure of the legislation is not designed to force an applicant to trail from backyard to backyard to appease the aggrieved backyard owners of a preferred site.

[232] Counsel for Meridian then submitted335:

These comments from the High Court indicate that alternatives may be an issue, but their consideration should be on a case-by-case basis – not considered “holus bolus” in all applications. This is consistent with Meridian‟s position – that is, in reality, there are no

„alternatives‟ for wind farms in a practical sense. The only real question regarding alternatives

is whether [to] make use of the wind resource at a site or not.

We also point out that there is a complete difference between that case, which relates to what can be done from a site, and the present application which relates to what can be done on this site. Transmission towers can be sited in many places, to transmit from the selected site. Windfarms

must be sited where the wind resource exists.

333 [2008] NZHC 1205; [2008] NZRMA 534 at para [98].

  1. Dome Valley District Residents Society Incorporated v Rodney District Council HC Auckland, CIV-2008-404-587, 8 December 2008, at paragraphs [37] and [38].

335 Closing submissions paragraphs 362 and 363 [Environment Court document 93].

Later Mr Rennie referred to Motorimu Wind Farm Limited v Palmerston North City Council336 as authority for the proposition that the alternatives available are simply whether to use the resource or not. We consider the answer to that is given in the Lower Waitaki case already referred to.

[233] For MES Mr Holm submitted337:

Without some very strong and clear justification, that is specific, inherent and unique to the power generation at the Hayes site (and is an attribute which in generation terms only applies to the Hayes site), the Court is entitled to consider whether or not the Applicant has, as a matter of evidence, given consideration to other sites where the wind resource can be utilised so that the conflict with Section 6(b) can be avoided, mitigated or remedied and sustainable management of natural resources better promoted (section 5).

3.8.3 Are alternative locations relevant?

[234] We note what the Environment Court recently stated in Lower Waitaki River

Management Society Incorporated v Canterbury Regional Council338:

Economic efficiency generally requires that all credible alternatives to a proposal should be identified and included within a cost-benefit analysis339 to reduce the risk of choosing projects ahead of alternatives that contribute more to society. Not only should the benefits of a project be greater than the costs, but the least cost way of producing those benefits should be implemented340. However, there is a real issue as to whether that is required by the RMA.

The Court then went on to find that the RMA does require consideration of alternatives in certain circumstances. It concluded341:

... it is not usually necessary to consider alternative uses of the resources in question, or the use of alternative resources to obtain a similar benefit. However, there are at least three exceptions:

336 Motorimu Wind Farm Limited v Palmerston North City Council Decision W67/2008.

337 Mr Holm, final submissions para 1.32 [Environment Court document 89].

338 Lower Waitaki River Management Society Incorporated v Canterbury Regional Council Decision

C80/2009 at para [197].

339 Kahn, James R. The Economic Approach to Environmental & Natural Resources, 3rd ed.

Thompson South-Western, Ohio, USA. (2005) p. 155.

340 Kahn, James R. (2005) pp 154-155.

341 Lower Waitaki River Management Society Incorporated v Canterbury Regional Council Decision

C80/2009 at para [201].

(1) where the costs cannot be fully internalised to the consent holder;

(2) where there is no competitive market (e.g., in congestion on roads where the relevant resource is the land near those roads; we also note there is a very limited market in water permits); or

(3) where there is a matter of national importance in Part 2 of the Act involved and the cost benefit analysis requires comparing measured and unmeasured benefits and costs (as is usually the case) so that the consent authority has to rely principally on its qualitative assessment, e.g. TV 3 Network Services Limited v Waikato District Council342.

We take that as a starting point, but in these proceedings we heard rather more legal argument on the issue. So we now turn to consider the case law.

[235] First we should point out that there is one express provision in the RMA in Schedule 4 clause 1(b) which suggests that alternatives do need to be considered on a resource consent application. That arises out of the requirement343 that every application for a resource consent must include an assessment of environmental effects “... in accordance with Schedule 4...”. The Schedule identifies matters which should be included in such an assessment and “[w]here it is likely that an activity will result in any significant adverse effect on the environment ...” requires:

... a description of any possible alternative locations or methods for undertaking the activity.

[236] In TV3 Network Services Limited v Waikato District Council344 the appellant had appealed to the High Court on the ground (amongst others) that the Environment Court had “... erred in law when it considered the question of alternative sites”345. Hammond

J stated346:

342 TV 3 Network Services Limited v Waikato District Council [1997] NZRMA 539: [1998] 1 NZLR

360 (HC).

343 Section 88(2) of the RMA.

344 TV3 Network Services Limited v Waikato District Council [1997] NZRMA 539 (HC); [1998] 1

NZLR 360.

345 [1997] NZRMA 539 (HC) at 542.

346 [1997] NZRMA 539 (HC) at 542.

As a matter of common sense, a consideration of whether there are suitable alternatives strikes me as a fundamental planning concern. But, in response to the specific technical objection raised by Mr Brabant, I can see nothing in the Act which precludes the course taken by the Environment Court. I can understand Mr Brabant‟s practical concern that an applicant for a resource consent should not have to clear off all the possible alternatives. But I do not think th at that is what the Court was suggesting. It is simply that, when an objection is raised as to a matter being of “national importance” on one site, the question of whether there are other viable alternative sites for the prospective activity is of relevance.

We do not understand Dome Valley to undermine the principle in TV3 Network that alternatives should be examined when a matter of national importance is raised.

[237] McGuire v Hastings District Council347 was a designation case. Lord Cooke, giving the advice of the Privy Council, recorded that the potential road-line affected Maori values which are a matter of national importance under section 6(e) of the RMA. He continued:

the ... statutory provisions quoted do mean that special regard to Maori interests and values is required in some policy decisions as determining the routes of roads. Thus, for instance, Their Lordships think that if an alternative route not significantly affecting Maori land which the owners desire to retain were reasonably acceptable, even if not ideal, it would accord with the spirit of the legislation to prefer that route. So, too, if there were no pressing need for a new route to link with the motorway because other access was reasonably available.

Of course in designation cases there is a statutory obligation348 for the requiring authority to consider “alternative sites, routes, or methods of undertaking the work”, so McGuire is not authoritative on the issue facing us.

[238] More directly relevant is a recent section 120 appeal – Te Maru o Ngati Rangiwewehi v Bay of Plenty Regional Council349. In that case the matter of national importance was under section 6(e) of the Act – the importance to Ngati Rangiwewehi of

springs “... known as Te Puna of Pekehaua ... colloquially called The Taniwha

347 McGuire v Hastings District Council [2001] UKPC 43; [2001] NZRMA 557; [2002] 2 NZLR 577 (PC) at [21].

348 Section 168A(3)(b) of the RMA.

349 Te Maru o Ngati Rangiwewehi v Bay of Plenty Regional Council [2008] NZEnvC 245; [2008] 14 ELRNZ 331.

Springs”350 as one of their taonga. The Environment Court referred to the authorities above (and another designation case351) and concluded that352:

The authorities clearly establish that a consideration of the merits of an alternative source of supply is a necessary part of whether a proposal will result in sustainable management, when as here, an objection is raised as to a matter of national importance.

[239] There is also a recent passage in the judgment of the Court of Appeal in McLaurin v Hexton Holdings Limited353 that suggests it is comfortable with alternatives being looked at in RMA proceedings, at least if that makes life easier for Superior Courts. That case concerned the provision of access to land which was „landlocked‟ within the meaning of section 129B of the Property Law Act 1952. The Hexton family was faced with a „chicken-and-egg situation‟354 where:

... the Environment Court ... held off making a final decision while access was sorted out in the High Court but the lack of resource consent was now being used as a ground of opposition to the s 129B application [in the High Court].

The Court of Appeal continued355:

With respect, we think the Environment Court was wrong not to decide the issue. And Hexton was wrong not to press that issue to finality before commencing its s 129B application. The structure of the Resource Management Act is such that “any person” may apply for resource consents affecting land over which they might have no ownership or other rights: see s 88 ... What consent authorities are concerned with is the proposed activity‟s effects, not the nature of the applicant‟s legal rights or interest in the particular land. Of course, obtaining a resource consent in circumstances where the applicants have no rights to the land in question will not avail those applicants unless they can acquire an interest in the land which permits them to make use of the resource consent obtained. In this case, there is no reason why the Environment Court could not have evaluated the three access options Hexton put up. ...

[Our emphasis]

350 [2008] NZEnvC 245; (2008) 14 ELRNZ 331 at [2].

351 Friends and Community of Ngawha Inc v Minister of Corrections [2002] NZRMA 401 para [55].

352 [2008] NZEnvC 245; (2008) 14 ELRNZ 331 at [57].

353 McLaurin v Hexton Holdings Limited CA212/2007; [2008] NZCA 570.

354 CA212/2007; [2008] NZCA 570 at para [43].

355 CA212/2007; [2008] NZCA 570 at para [47].

[240] Mr Rennie submitted356:

If alternative (and not so productive) sites are advanced, then such proposals could not be expected to be advanced through the consent process and on to construction. As an example of the next best sites available to potential competitors, Mahinerangi and Kaiwera Downs appear to fall into this category. Given the evidence before this Court, you cannot rely upon or assume those projects as alternatives to this one – they may not be built at all.

We consider that is not correct. If an alternative site has been identified in another resource consent application then that is useful whether or not it is used by another applicant. If a similar project on an alternative site:

(a) is not likely to proceed then it can be considered as an alternative site (if circumstances require that to be examined); or

(b) is likely to proceed (or is at least not fanciful) then it comes into the equation as part of the relevant „environment‟ or as a potential accumulative effect.

[241] Mr Rennie also submitted357 that:

Once one starts looking at alternative sites, there would be almost no end to the comparisons between projects that could be undertaken. Equally there would be no end to the various externalities that could arise in relation to each location. There would be no reliable and detailed costing of the various possible options for other projects. The fine grained comparison that the Act requires could not be undertaken.

The answer to this is that if an alternative site does not raise any matter of national importance then a fine-grained analysis may not be necessary.

3.8.4 Conclusions on alternatives

[242] In summary, section 7(b) requires a comprehensive and explicit cost-benefit analysis of the proposal. In that analysis:

356 Final submissions, paragraphs 369-370 [Environment Court document 93].

357 Final submissions, para 370 [Environment Court document 93].

(a) where market valuations are not available, non-market techniques may be used; and

(b) where the values of the market are different from those of society, alternative societal values may be applied.

The idea behind the cost-benefit analysis is to assess, firstly, whether the proposal has a positive net benefit, and then whether there are credible alternative uses of the resources, or credible alternative resources that could produce the desired output, which have a greater net benefit. In doing so, we need to have regard for whether (environmental) compensation is being given, and the adequacy of that compensation. The outcome of this assessment of efficiency is then one matter in the overall assessment under section 5. We hold that alternatives can be considered where section

6 matters are concerned. It is possible, but we do not decide, that alternatives should also be considered in other cases where there are significant environmental effects.

4.0 The landscape

4.1 Describing the landscape

[243] Map 70 of the Central Otago District Plan358 contains the Meridian site. The key shows that different areas are marked as (variously):

2009_29301.jpg areas of outstanding landscape value359;

2009_29301.jpg the areas over 900 metres; and

the Lake Onslow Landscape Management Area.

We attach marked “C” a copy360 of Map 70 to show the categorisation of the Meridian site as (mostly) in an area over 900 metres but not as an area of outstanding landscape value. Thus the district plan is clear: the Meridian site is not an outstanding natural landscape under section 6(b) of the Act. Despite that the appellants (other than Meridian) and supporting parties argued that the Meridian site is part of an outstanding natural landscape. As a question of fact and judgement we may decide that issue for ourselves. We are not bound by the categorisations in the district plan – see Unison Networks Limited v Hastings District Council361 – although obviously we must give that plan appropriate weight.

[244] So one of the most important factual issues in this case is whether the Meridian site is, or is part of, an outstanding natural landscape. After describing the natural science characteristics and elements of the area we then have to determine: first what landscape the Meridian site is in, secondly the extent of its naturalness and, finally,

whether it is outstanding.

358 Volume 2: District Planning Maps, Map 70.

359 That is the description of “OL” in the key to the Planning Maps.

360 Reduced to A4 size from the original A3.

361 Unison Networks Limited v Hastings District Council HC Wellington, 11 December 2007, CIV-

2007-485-896, Potter J.

4.2 Natural science characteristics and elements

4.2.1 Geomorphology

[245] The ranges of Central Otago are made of some of New Zealand‟s older rocks –

metamorphic schist. The landform is362:

... typically gently rolling low relief surfaces that are described as broadly flat -crested and differentiate them from the quite different narrow sharp-crested ridges typical of most mountains in the Southern Alps.

Those surfaces comprise part of the „Waipounamu Erosion Surface‟. The conventional understanding363 of the Waipounamu Erosion Surface is that it is part of an ancient plain that formed between 110 and 30 million years ago. Weather and erosion wore down the landscape which was then again submerged and layers of sedimentary rock laid down on the erosion surface. It was then raised above sea level again, but irregularly with the ranges raised more than the valleys. Subsequent erosion has stripped most of the younger sedimentary rocks off the surface.

[246] Dr Mabin produced364 a figure showing how the Waipounamu Erosion Surface now appears. This figure was drawn by a Mr McCraw365 in 1965 and shows what he called the upland landscape as nearly 29% of the Waipounamu Erosion Surface. Dr Mabin described it as the “most commonly occurring and extensive” landform366 in Central Otago. The higher parts of Central Otago generally comprise what Mr McCraw

showed as:

2009_29301.jpg Mountain Tor landscape; 2009_29301.jpg Fretted landscape;

2009_29301.jpg Modified Tor and Fretted landscape;

Upland landscape.

362 Dr M C G Mabin, evidence-in-chief para 3.3 [Environment Court document 6].

363 Dr M C G Mabin, evidence-in-chief para 3.9 [Environment Court document 6].

364 Dr M C G Mabin, evidence-in-chief Figure 1 [Environment Court document 6].

365 NZ Geographical Society Miscellaneous Series 5: 30-45.

366 Dr M C G Mabin, evidence-in-chief para 3.16 (Table 1) [Environment Court document 6].

We think it is more appropriate to use the word “landform” than “landscape” (which is usually a wider concept in the RMA) but otherwise accept Dr Mabin‟s use of Mr McCraw‟s descriptions. Dr Mabin points out367 that the Meridian site is in the “Upland” landform.

[247] The Lammermoor is much broader than one would expect from looking at it from below. It is about 12 kilometres across the top of the plateau between the crests of the western scarp (300 metres vertically above the Taieri River) and the eastern scarp (400 metres higher than Clarks Junction). The Meridian site is on the northwestern side of the Lammermoor, west of the Logan Burn Reservoir. While the site is generally contained within the “Upland” landform it contains more detailed landforms which Dr

Mabin described as368:

2009_29301.jpg Tor-less terrain;

2009_29301.jpg Valleys in Tor-less terrain; 2009_29301.jpg Gorges in Tor-less Terrain;

Basin Margin slopes (above the Logan Burn Reservoir).

The majority of the site is „Tor-less Terrain‟ and that contains the vast majority of the proposed turbines369:

Broad rounded ridge crests occur at the top of the landscape, and will be the landform element most affected by Project Hayes. The ridges run for several kilometres with relatively little change in elevation.

The area is less geomorphically dynamic than many in New Zealand. Erosion by water is the most common370 geomorphic process but it is slow because of the relatively low rainfall371 – less than 800 mm per year. As a result many small streams and shallow valleys have formed a complex and subtle patterning across the Lammermoor. There

are also two deep gorges within the Meridian site envelope – the Logan Burn winds a

367 Dr M C G Mabin, evidence-in-chief para 3.21 [Environment Court document 6].

368 Dr M C G Mabin, evidence-in-chief para 4.6 and Figure 2 [Environment Court document 6].

369 Dr M C G Mabin, evidence-in-chief para 4.11 [Environment Court document 6].

370 Dr M C G Mabin, evidence-in-chief para 4.27 [Environment Court document 6].

371 Dr M C G Mabin, evidence-in-chief para 4.27 [Environment Court document 6].

very twisted course through the northern end of the site, and the smaller Spillers Creek runs through a gorge as it descends the scarp about one-third of the distance from the southern end of the site.

[248] The soils on the Meridian site are372 brown soils, strongly acidified, with low levels of phosphorus and calcium, low availability of nutrients, and average levels of organic matter and nitrogen. Those factors limit plant productivity of introduced commercial species on the site. Native plants have of course adapted to the conditions (subject to the vagaries of climate change).

4.2.2 Vegetation and ground cover

[249] For anyone on the site or surrounding area, the most obvious thing about the area is the remarkable uniformity of its vegetation, dominated by tussocks as far as the eye can see across the peneplain. This is an important finding which has serious implications for our assessment of the landscape. We have already described the components of the vegetation of the Meridian site in part 2.7 above.

[250] Adjacent to the site, the higher areas on the Rock and Pillar Range (Summit Rock at 1450 masl) and the Lammermoor Range (highpoint is Lammermoor at 1160 masl – at the intersection of the Lammermoor and Lammerlaw Ranges) have greater annual rainfall than the site, and stock is excluded so they have much larger tussocks at greater densities. The vegetation cover changes westward because the annual rainfall decreases in that direction. The driest place in New Zealand is at Alexandra which set a

New Zealand record minimum of 167 mm of rain in 1963-64373. With less rain the

native vegetation takes correspondingly longer to recover from fires and grazing. As a consequence the vegetation off the site and towards the north and west is generally sparser and there are more introduced weeds, the larger species being thyme, sweet briar

and pines.

372 Dr K M Lloyd, evidence-in-chief para 3.3 [Environment Court document 35].

373 Mr S K Brown, evidence-in-chief para 44 [Environment Court document 4].

4.2.3 Structures

[251] There are very few structures of any kind above 900 metres in Central Otago – some gravel or clay roads, fences, power lines, small dams, and scattered buildings – cribs and other huts, yards, and the Serpentine Church on the western side of the Taieri catchment. The site is no exception – fences, tracks some graveled, a few archaeological remains, and the power pylons across the southern end of the site, are the only structures.

4.2.4 Fauna

[252] As described earlier, the fauna of the Meridian site includes endemics which are rare and threatened. It has species rich and diverse invertebrate (insect) communities, birds including pairs of nesting falcon, and an abundant lizard population. There are native fish species, some rare, in the streams, which still support populations of aquatic invertebrates that require high quality habitat. There are also sheep, cattle, rabbits and hares in the area.

4.2.5 Summary

[253] The native natural science elements are the dominant features of the Lammerlaw/ Lammermoor/Rock and Pillar Ranges. They are the legible signs of a landscape and ecosystems that have developed on a much longer timescale than human existence (even if modified by fire over the last few centuries).

4.3 Identifying the relevant landscape

4.3.1 The wider landscape

[254] It is commonplace to speak of „the Central Otago Landscape‟ although that means different things to different people. For example, it used to be common to speak of the areas around Lakes Wakatipu, Wanaka and Hawea as part of „Central Otago‟. We suspect that with the naming of the Central Otago District – which does not include those lakes – the „Central Otago landscape‟ is generally shrinking to the size of the district.

[255] Only one of the landscape witnesses, Mr S K Brown, took much space placing the sites in the regional context. He analysed various „landscape units‟ within „Inland Otago‟ by landscape type. The area he analysed is generally enclosed between the

Waitaki River to the north and the Clutha River to the south, the Pisa Range, Old Woman Range, Old Man Range and the western horizon of the Clutha River to the west, and a line parallel with the Otago Coast to the east. The area he discussed included most of the Central Otago District, and land within the Waitaki District, the Central Otago and Clutha Districts, the Queenstown Lakes District and Dunedin City.

[256] The four geophysical descriptions into which he first categorised his components/locations were shown in his Table 1, a simplified and abbreviated version

of which we show here374:


Mountain ranges
...
(e.g. Dunstan Mountains, St Bathans Range, Old Man
Range)
Foothills and ridges
...
Raggedy Range, North Rough Ridge, Rock and Pillar
Range,
Lammerlaw Range, Mt Teviot, Strath Taieri Hills ...
Mt Stuart [West Milton])
Alluvial terraces and
basins
...
... Serpentine Flat, Lake Onslow ...
Major river valleys
...
...

We regard that typology as at least limited and in fact probably wrong. To lump so many types of landscape into „Foothills and ridges‟ was not very helpful because there are so many examples of those categories. Further, the categorisation undervalues those

„ridges‟ which are in fact named as „ranges‟ e.g. most obviously the Rock and Pillar Range. Also we find on Dr Mabin‟s evidence there are differences between the rounded ranges of Central Otago and „the narrow sharp-crested ridges typical of ... the Southern Alps‟375. The reader would not make that distinction from Mr Brown‟s categories.

[257] We now examine Mr Brown‟s classification of particular “components/

locations” into the four geophysical descriptions he has identified.

374 Mr S K Brown, evidence-in-chief para 65 [Environment Court document 4].

375 Dr M C G Mabin, evidence-in-chief para 3.3 [Environment Court document].

Mountain Ranges

2009_29301.jpg Category 1A

As Ms Steven pointed out376 Mr Brown has at least over-simplified matters here. He has parcelled the St Bathans Range and the Hawkdun Range – both of which are block mountains with relatively clean, round lines – with the much more broken greywacke ranges of the Kakanui Mountains between

the Maniototo Plain and the Waitaki River.

2009_29301.jpg Category 1B (Old Man/Old Woman/Garvie/Umbrella Range)

We have no particular problem with this classification or the description of the Ranges given above (although only part of the Garvie and Umbrella Ranges are within the District377). However, Mr Brown‟s map378 includes the Clutha River and part of Lake Dunstan (upstream of Cromwell) in his category 1B whereas we would have thought the Clutha River and the lake

must logically go into his Category 4 type as a new landscape type 4C.

Foothills and Ridges

2009_29301.jpg Category 2A (Raggedy Range, North Rough Ridge, Rock and Pillar Range) This classification includes the three block ridges with tor or fretted landscapes and also much of Rough Ridge but excludes Poolburn Reservoir and the ridge between its catchment and those of the other three reservoirs to the southwest and south. The different vegetation on the three examples of landscape type 2A does not seem to be reflected on his maps379. As Ms Steven observed, the areas close to Alexandra, the Knobby Range, and the much lower Raggedy Range and its northern extension (Blackstone Hill) contain much more shrubby growth dominated by sweet briar and other weeds. Even the Rough Ridge has an old carpet of grazed and burnt tussock

with extensive patches of Hieracium. In contrast, further east and therefore wetter (and higher) the higher part of the Rock and Pillar Range (above 900

masl) has dominant tussock and other alpine plant communities.

376 Ms E A Steven, rebuttal evidence para 107 [Environment Court document 9A].

377 Mr S K Brown, evidence-in-chief Annexures 2B and 3 [Environment Court document 4].

378 Mr S K Brown, evidence-in-chief Annexure 4 [Environment Court document 4].

379 Mr S K Brown, evidence-in-chief Annexures 4 and 5 [Environment Court document 4].

2009_29301.jpg Category 2B (Lammerlaw Range, Mt Teviot)

Despite that description – Lammerlaw Range and Mt Teviot – Mr Brown includes much greater areas in this landscape type than those two ranges. Inspection of his overlays on the topographic map380 shows he has also

included:

2009_29301.jpg Pinelheugh

2009_29301.jpg the Knobby Range southeast of Alexandra

2009_29301.jpg the extensive Separation Road area east of the Greenland Reservoir lower hills south of Lake Mahinerangi.

Again the vegetation and geomorphical differences between those areas, as described by Ms Steven381, are not obviously taken into account. Including the lower hills south of Lake Mahinerangi with the crests of the Lammermoor Range, Lammerlaw Range and Mt Teviot is also difficult to

understand.

2009_29301.jpg Category 2C (Taieri Ridge, Highway Hill ..., Lower Ben Lomond,

Maraewhenua, Ngapara)

Inspection of the topographic maps382 (which we regard as „notorious‟383 for general altitudinal purposes) shows that all this country is much lower than land either north of the Lammermoor or east of it. Categorising the limestone hills of the Ngapara area south of the Waitaki River in the same landscape type as the greywacke hills further up the Waitaki River or the

schist of the Taieri Ridge seems very crude to us.

2009_29301.jpg Categories 2D to 2I

We find the distinctions between these and their boundaries very difficult to understand.

380 Mr S K Brown, evidence-in-chief Annexures 4 and 5 [Environment Court document 4].

381 Ms E A Steven, evidence-in-chief, for example para 21.4 [Environment Court document 9].

382 Department of Survey and Land Information Infomap series 260 used by Mr Brown.

383 In the legal (non-moralistic) sense of „generally known and relied on‟.

Alluvial Terraces and Basins

Categories 3A and 3B

These seem to be acceptable types, although it is difficult to see why the area

northeast of Lake Dunstan is not 3A rather than 1B as shown on Mr Brown‟s

map384.

2009_29301.jpg Category 3C (Serpentine Flats, Lake Onslow, Mossburn, Poolburn)

There are three inconsistencies here. First, by analogy, we do not understand why the Logan Burn Reservoir is not in its own landscape using Mr Brown‟s logic. Secondly why is the broad ridge separating Lake Onslow from its northern neighbours included in the „lake‟ landscape when it is indistinguishable from the landscape east and west of it? Thirdly and most importantly we consider each of the lakes sits in, and is part of, a wider landscape as shown in Ms Steven‟s map. We find Mr Brown‟s classification of this category 3C very artificial (even recognising the

artificiality of all debates about landscape).

[258] Three members of the Court have heard from Mr Brown before and found him very insightful. But in this part of his evidence we have reservations. In addition to our concerns about his initial typology of „geophysical descriptions‟ we must add serious concerns about the reliability of his landscape types. Another reason to place little weight on Mr Brown‟s evidence identifying the landscape is that cross-examination by

Mr Gordon385 and Mr Marquet386 showed that he was not deeply familiar with the

landscape(s) of Central Otago.

4.3.2 The evidence of the landscape architects as to t he landscape ‟s boundaries

[259] To assist us identify the landscape on which the Meridian proposal is to be set, we read evidence and heard cross-examination of five landscape architects. Mr S Brown, as we have already mentioned, and Mr P Rough were called by Meridian, Ms E

A Steven and Mr P J Baxter by the Societies. Mr B Espie was „made available‟ by, but

384 Mr S K Brown, evidence-in-chief Annexure 4 [Environment Court document 4]

385 Transcript, p. 295 et ff.

386 Transcript, p. 322 et ff.

not called by, the Central Otago District Council at the Court‟s request387 because he had given evidence to the joint hearing by the Councils' commissioners. The evidence of Dr Mabin was also relevant to this issue.

Mr P Rough’s evidence

[260] Mr Rough, the first landscape architect called by Meridian, analysed its site in terms of the amended Pigeon Bay factors388 and then concluded389:

The above assessment of the site, in the context of its surroundings and in terms of the accepted criteria for identifying outstanding natural features and landscapes, suggests that the site, despite having a range of values, does not warrant being accorded the status of outstanding in terms of Section 6(b) of the RMA. This is consistent with the site not being within an area identified in the CODC Plan as an Area of Outstanding Landscape Value or as an outstanding natural landscape feature, place or landscape in the regional study undertaken for the Otago Regional Council390.

It is also consistent with a comprehensive landscape assessment undertaken for the CODC by

Mary Buckland of LA4 Landscape Architects and others391.

[261] We have a number of difficulties with Mr Rough‟s approach and conclusion. First we found Mr Rough‟s primary discussion of the „landscape‟ very confusing. One example is in paragraph 83 of his evidence-in-chief392 where he used the word as

applying to several different things and/or areas in successive sentences:

2009_29301.jpg “The Lammermoor Range is a component of the basin and range landscape

...” – this suggests he is talking about a „landscape type‟;

2009_29301.jpg “This landscape of wide north-east–south-west trending valleys, separated by broad flat-crested mountain ranges characterises the Central Otago region”

(sic) – here the whole area between Alexandra and Middlemarch is being

387 Under section 276(1)(c) of the RMA.

  1. See Wakatipu Environmental Society Incorporated v Queenstown Lakes District Council [2000] NZRMA 59.

389 Mr P Rough, evidence-in-chief paragraphs 107-108 [Environment Court document 3].

390 Boffa Miskell Limited (1998). Investigations into Otago’s Natural Character Landscape and

Significant Natural Areas.

391 LA4 Landscape Architects, Robson Garland Limited and Ian Brown Consulting, 2007. “Central

Otago District Rural Review, Landscape Assessment Report and Recommendations.”

392 Mr P Rough, evidence-in-chief para 83 [Environment Court document 3].

treated as one landscape; the sentence might have been more accurate if he

had written „This landscape type ... characterises the region‟.

2009_29301.jpg “... the tor-less terrain of Lammermoor Range in the vicinity of the site ...”

is treated as a landscape even though he is only considering its geology and geomorphology at this point.

Mr Rough did not clearly identify what landscape he was discussing and whether the site is part or all of it. In the end we believe it comprises something like what we have described as the Lammermoor

[262] Second, Mr Rough recognised at some points the huge scale of the relevant landscape when he referred to:

2009_29301.jpg „... the vast scale of the landscape ...‟393;

2009_29301.jpg „The landscape in which the farm is located [as being] rural high country

with a character that is large scale, open and expansive‟394;

2009_29301.jpg „... [the] propos[al] as taking place in an open rural and very expansive

landscape‟395;

2009_29301.jpg „... the landscape in which the proposed wind site occurs is rural high country with a character that is large scale open and expansive‟396

– but never what that landscape is.

[263] Third, we consider little reliance should have been placed on the „comprehensive landscape assessment‟ by Ms Buckland because she was not called to give evidence. Meridian said she was available but we were reluctant397 to hear from her when she had not lodged a brief of evidence with the Environment Court nor given evidence to the Commissioners (and because she may be a witness on Plan Change 5 to the Central

Otago District Plan).

393 Mr P Rough, evidence-in-chief para 91 [Environment Court document 3].

394 Mr P Rough, evidence-in-chief para 294 [Environment Court document 52].

395 Mr P Rough, evidence-in-chief para 306 [Environment Court document 52].

396 Mr P Rough, evidence-in-chief para 319 [Environment Court document 52].

397 Anticipating the concerns in Mr Todd‟s submission (16 February 2009), para 96 [Environment

Court document 85].

[264] Fourth, Mr Rough wrote that while he had carried out „broad-ranging field work‟398 to assess the landscape values of the site he relied more on both “the Proposed Central Otago and the Dunedin City District Plans”399. So we are left uncertain as to how much weight we should give to his assessment of the site. Fifth, his assessment based on the plans determined that it has values more associated with section 7(c) and (f) of the RMA than section 6(b) of the Act400. It concerns us that he made his assessment before he considered the amended Pigeon Bay factors. Finally Mr Rough turned to assess “the northern end of the Lammermoor Range and the site in terms of the

generally accepted criteria for identifying outstanding natural features and landscapes”401. The „criteria‟ Mr Rough referred to appear402 to be those in Pigeon Bay403. But those factors – as they are more properly called – do not provide „... criteria for identifying outstanding natural features and landscapes‟404. As the Environment Court pointed out in Long Bay-Okura Great Park Society et ors v North Shore City Council405, the amended Pigeon Bay factors (as discussed in Wakatipu Environmental Society Incorporated v Queenstown Lakes District Council406) are descriptive not evaluative. In particular while they help to identify landscapes and the

values which affect whether those landscapes are natural and/or outstanding, they do not provide a full checklist for that assessment.

Mr S Brown’s evidence

[265] The second landscape architect called by Meridian, Mr Brown, was also initially rather vague about what landscape he was discussing in his evidence-in-chief407. He seemed to identify the landscape with the Lammermoor Range408 and that is confirmed

by his analysis of the Landscape/Amenity/Natural Character in his Table 5409. But then

398 Mr P Rough, evidence-in-chief para 81 [Environment Court document 3].

399 Mr P Rough, evidence-in-chief para 81 [Environment Court document 3].

400 Mr P Rough, evidence-in-chief para 82 [Environment Court document 3].

401 Mr P Rough, evidence-in-chief para 82 [Environment Court document 3].

402 Mr P Rough, evidence-in-chief para 70 [Environment Court document 3].

403 Pigeon Bay Aquaculture Limited and Others v Canterbury Regional Council Environment Court

Decision C32/1999.

404 Mr P Rough, evidence-in-chief para 70 [Environment Court document 3].

405 Long Bay-Okura Great Park Society et ors v North Shore City Council Decision A78/2008.

406 Wakatipu Environmental Society Incorporated v Queenstown Lakes District Council Decision

C180/1999.

407 Mr S K Brown, evidence-in-chief para 89 et ff [Environment Court document 4].

408 Mr S K Brown, evidence-in-chief paragraphs 89, 91, 92, 93 [Environment Court document 4].

409 Mr S K Brown, evidence-in-chief para 96 [Environment Court document 4].

his Annexure 5 shows the „Lammermoor Range‟ “landscape unit” as containing the land

within these lines:

2009_29301.jpg it starts at a point near Patearoa near the (lower) Maniototo Plain; and then 2009_29301.jpg runs nearly due south to McPhees Rock

2009_29301.jpg then swings southwest past the east side of Round Hill 2009_29301.jpg to the eastern side of the Logan Burn Reservoir, then

2009_29301.jpg southeast to a point at the foot of the eastern scarp at the junction of Sutton

Stream and Ratty Creek;

2009_29301.jpg the landscape line then follows the foot of the scarp along the line of Deep

Creek (not to be confused with Deep Stream to the east)

2009_29301.jpg then runs approximately northwest straight across the Lammermoor Range across the Taieri River to Davidsons Top

2009_29301.jpg then northwards down Bullocky Creek to where the Taieri Rapids emerge from their gorge; and

2009_29301.jpg northeast along the foot of the western scarp of the Lammermoor

2009_29301.jpg until it crosses the Taieri where it cuts a gorge in the western flank of the

Rock and Pillar Range before

following the road to the starting point.

[266] Our initial view of this „landscape‟ is that – even allowing for the fact that a landscape in the RMA is an “arbitrary cultural lumping”, as the Court described it in Wakatipu Environmental Society v Queenstown Lakes District Council410 – it is particularly arbitrary. It is difficult to understand why:

(a) the sides of the flat-topped plateau are included in the landscape; rather they seem to belong to the landscapes each side (from which they can be seen and which they partly enclose);

(b) the area north of the Logan Burn Reservoir seems to have been defined by

default (it is not, on Mr Brown‟s view, part of the Rock and Pillar Range);

410 Wakatipu Environmental Society v Queenstown Lakes District Council [2000] NZRMA 59 at para

[78].

(c) the east-west line over the Lammermoor Range makes no sense (why here, not further north or south?) because the vegetation either side of this line is the same, and there are no distinguishing features either side of Mr Brown‟s line.

[267] In his rebuttal evidence Mr Brown agreed411 with Ms Steven that the Meridian site is „... not a landscape entity in its own right and should be identified as part of a wider Lammermoors landscape unit or type‟. With respect, that sentence disregards basic semantic distinctions and is at odds with the fine distinctions he makes in landscape terms a little later in his evidence. A unit is usually seen as part of a whole, and a landscape unit is thus a part of a landscape – see Wakatipu Environmental Society

Incorporated v Queenstown Lakes District Council412. A „type‟ on the other hand is “a

class of things ... having common characteristics”413. In our view any landscape type includes a set of landscapes and each of those in turn includes a set of landscape units (and/or features). Mr Brown criticised414 Ms Steven for “coalesc[ing]” the Lammermoors, Lammerlaws and Pinelheugh Ranges and the Onslow Basin “... into one unit”. Checking Ms Steven‟s evidence shows that she was in fact writing about her landscape „type‟.

[268] We find Mr Brown‟s own approach even more confusing. He included the Logan Burn Reservoir in his Lammermoor landscape but excluded Lake Onslow, the Manorburn Reservoir and the Poolburn Reservoir from their encompassing landscape, rather putting them in their own landscape type. We find that very artificial and indeed inconsistent. In our view the Poolburn Reservoir in particular sits on top of its landform.

The contours on the topographical map415 show that it is only about 40 metres below the

411 Mr S K Brown, rebuttal evidence para 11 [Environment Court document 4A].

412 Wakatipu Environmental Society Incorporated v Queenstown Lakes District Council Decision

C3/2002 at [33] and later.

413 The New Zealand Oxford Dictionary [1999] OUP.

414 Mr S K Brown, rebuttal evidence para 16 [Environment Court document 4A].

415 Topographic Map 260-H42 “Waipiata” (not in evidence but a matter of public record) (2003)

LINZ.

ridge to its northwest whereas the Logan Burn is set much deeper in the (same or different) landscape. The Poolburn reservoir is more „extrovert‟ to use Mr Brown‟s word416 than the Logan Burn reservoir.

[269] Mr Brown was also critical of Ms Steven‟s landscape (type) because it contains two ranges – the Lammerlaw Range and the Lammermoor Range – which run at right angles417. We consider that is meaningless in this context: certainly the boundary of the Taieri catchment turns at right angles, but it is very difficult to tell that from most places within the landscape. The dominant feeling is usually of the broken peneplain. Mr Brown gave too much weight to the inferences to be drawn from the names

„Lammerlaw‟ and „Lammermoor‟ Ranges on a map. Those are arbitrary names for a high plateau formed by the intersection of those areas and Rough Ridge (and, arguably, Pinelheugh) much of which is above 900 masl and gently rolling.

[270] Mr Brown did not initially identify what „landscape type‟ his „Lammermoor Range‟ as identified in his Annexure 5 was. At the hearing when asked by the Court he described it as a new “2C”. That puts the Lammermoor area shown in his Annexure 5 (which clearly includes the western flanks of the Rock and Pillar Range) in nearly the same category of landscape as the foothills south of the Waitaki River and the coastal hills near Oamaru. We do not find that comparison accurate or helpful.

Ms E A Steven’s evidence

[271] As a preliminary point to our consideration of Ms Steven‟s evidence we record that Meridian criticised Ms Steven for her involvement with the Royal Forest and Bird Protection Society Incorporated (“the RFBPS”) in the adjacent Queenstown Lakes District and in the Mackenzie District. The RFBPS has made submissions under her name as signatory on landscape issues, and Meridian implied that Ms Steven‟s work for that society somehow discredited her objectivity here. We feel uncomfortable with that. Any professional person is entitled to have their own life in other areas, and we consider it is normally inappropriate to bring that into a hearing unless directly relevant. In any event we consider Ms Steven‟s written evidence was full, careful and coherent and

generally consistent. She also gave her answers in cross-examination dispassionately

416 Mr S K Brown, rebuttal evidence para 16 [environment Court document 4A].

417 Mr S K Brown, rebuttal evidence para 17 [Environment Court document 4A].

and after thought. We are slightly troubled that she has a picture418 of the “Central Otago community‟s vision for the future landscapes of the district ...” which is not419 contained in the district plan or a change to it, but we do not consider that significantly weakens her evidence. We have reviewed the extensive and testing cross-examination

of Ms Steven by Mr Beatson and consider that our initial impressions, that her opinions were not substantially weakened, still hold.

[272] Ms Steven gave evidence which focussed clearly on the first key landscape question: „What landscape is the Meridian project in?‟ She explained her approach as follows420:

A „landscape‟ for the purposes of assessment such as this is based on a unit of assessment called a „landscape type‟. To delineate a landscape type, a geomorphically determined „land type‟ is initially identified augmented by examination of vegetation cover and ecological patterns (which tends to reflect climatic variations as well) and land uses. There may be isolated anomalous features such as lakes or cultural elements, but broadly there is a consistency of visual character over the landscape type and it evokes similar emotions and thoughts.

Classifying of landscape into types is critical step because it orders the information into a framework that is then used in subsequent landscape evaluation. It can have a significant impact on which landscapes are identified as important within the district or region.

Based on that approach she then concluded that the relevant „landscape type‟ is421:

The „landscape type‟ I define as the site area and the Lammermoor and Lammerlaw ranges, and the Onslow Basin through to the Pinelheugh range. This area features broad open rounded macro landforms shallowly and evenly dissected into curvaceous, smooth, vast tor-less terrain including numerous small flat-bottomed gullies with wetland vegetation. A large water body occupies a central depression. Snow tussock grassland is almost ubiquitous. Landuse is consistently extensive pastoral, summer grazing only of sheep and cattle; or more recent conversion to conservation land. One-off elements include the pylon line, three roads and a few cultivated areas. Plantation forestry is unfortunately about to intrude in the Lake Onslow basin.

The deep rocky gorges are a repeated feature along the edges of the Lammermoor range.

418 Ms E A Steven, evidence-in-chief para 28.5 [Environment Court document 9].

419 Transcript (2008), p. 522.

420 Ms E A Steven, evidence-in-chief paragraphs 21.8 and 21.11 [Environment Court document 9].

421 Ms E A Steven, evidence-in-chief para 21.12 [Environment Court document 9].

We call that area (Ms Steven‟s landscape type) “the Wider Eastern Central Otago

Upland Landscape”. It includes the Lake Onslow basin.

[273] To move from the landscape „type‟ to a particular landscape Ms Steven then

wrote that the process requires422:

To define a „landscape‟ however also requires an appreciation of its spatial structure and the way it is generally perceived by people as a place. When one senses a change in character, in the thoughts and emotions being evoked by what is seen, then it is likely a different „landscape‟ has been entered.

Ms Steven then went on to identify a smaller landscape within the Wider Eastern

Central Otago Upland landscape. Her Figure 2423 includes the crest of the full

Lammermoor plateau from a line:

2009_29301.jpg across the Lammermoor from above Paerau southeastwards past McPhees

Rock to the top of the scarp east of „The Castle‟

2009_29301.jpg then southwest along the crest of the scarp to

2009_29301.jpg The Twins and the Ship at Anchor

2009_29301.jpg along the (very flat) crest of the Lammerlaw Range, to the vicinity of

2009_29301.jpg Lammerlaw Top

2009_29301.jpg north along the western edge of the Taieri headwaters to

2009_29301.jpg Davidsons Top and Bottle Rock 2009_29301.jpg northeast to Canadian Flat

2009_29301.jpg south to the Taieri Rapids and then northeast

2009_29301.jpg along the crest of the scarp above the Upper Taieri Paerau Road to

the end/start point where the Old Dunstan Road climbs onto the plateau.

[274] Ms Steven‟s rationale was that424:

422 Ms E A Steven, evidence-in-chief para 21.9 [Environment Court document 9].

423 Ms E A Steven, evidence-in-chief Figure 2 Attachment F [Environment Court document 9].

424 Ms E A Steven, evidence-in-chief para 21.4 [Environment Court document 9].

... the area between the Rock and Pillar Range and the crest of the Lammerlaw Range (see Fig. 2

Attachment F) taking into account the way the landscape is perceived. Moving over the high parts at either end of this landscape, one senses a different landscape (summit of Rock and Pillar or the Lake Onslow basin).

We accept that her reduced landscape425 has some anomalies as shown by Mr Beatson in cross-examination426, for example we cannot see why the eastern scarp and the Canadian Flats are included. In our view a more consistent line would have been from Spillers Hill southwest to Bottle Hill so as to incorporate the Taieri Gorge Scenic Reserve. In

the end her „landscape‟ is roughly the same as Mr Brown‟s: rather more the western

scarp than the Lammermoor as we have defined it.

Mr B Espie’s evidence

[275] Prior to the Council hearing Mr Espie prepared a report427 for the CODC commenting on the landscape effects of Meridian‟s application. Following the hearing he wrote a further report428 reflecting the additional information presented at the hearing. Finally, his evidence before this Court updated his views in response to the evidence exchanged before this hearing. We find the views expressed in his reports and in his evidence to be largely consistent and balanced and he kept to his expertise. For example, he pointed out that even if the Meridian site was found to be within an outstanding natural landscape that did not mean the Meridian development was

automatically inappropriate.

[276] In Mr Espie‟s opinion both the Dunedin City Council and the CODC parts of the Lammermoor Range, together with the Rock and Pillar Range and „perhaps part or all of the Lammerlaw Range as well‟ form a coherent whole that reads as one landscape429; and that landscape is an outstanding natural landscape. Meridian was critical of the brevity and, Mr Rennie wrote, superficiality of Mr Espie‟s evidence and reports. Mr Beatson referred to the first report430 to the Hearing Commissioners where Mr Espie had

written:

425 Ms E A Steven, evidence-in-chief Attachment 2/F [Environment Court document 9].

426 Transcript (2008), pp 504-506 and 539-544.

427 Mr B Espie, Exhibit BE1 [Environment Court document 21].

428 Mr B Espie, Exhibit BE2 [Environment Court document 21].

429 Transcript (2008) p. 719; Mr B Espie, Exhibit BE2 para 4.12 [Environment Court document 21].

430 Mr B Espie, Exhibit BE1 para 4.12 [Environment Court document 21].

I consider that the landscape of the Rock and Pillar/Lammermoor/Lammerlaw mountains is both outstanding and natural when it is assessed as a whole. Its physical landform is unmodified, highly legible and includes many features of geomorphological interest. The clutter of human influence is very limited compared to most landscapes. There is a very significant degree of indigenous vegetation and ecological patterns as well as remarkable water courses and lakes. It is eminent on a district-wide and national scale due to its dramatic aesthetic qualities, its sense of remoteness and naturalness, its transient values (due to remarkable light and weather conditions) and its memorability.

and asked431: “That is the totality of the analysis contained in your initial report where

you concluded that the site is outstanding and natural isn‟t it?”. Mr Espie replied:

Well, it is a little bit unfair I think to say that “the analysis is contained in the report”. The

“report” is a report, which writes down findings.

Given the emphasis put on this passage by Meridian‟s counsel we have thought about what it means. We find that Mr Espie was implying that his process of arriving at his conclusions are not in the report, only his findings are, and therefore not too much criticism can be made of him. Further, if his report is examined as a whole, we find that he quite properly notes432 near the beginning:

... that the Peter Rough report is thorough in terms of its description of the site, its context and the proposal. In this report I will not repeat the findings of the Peter Rough report that I agree with.

That was an admirable attempt to keep his report brief so he should not be penalized for it.

[277] Mr Espie was consistent in his approach to the landscape issues, stating that the first key issue is to ascertain what is the „landscape‟ that section 6(b) requires. For that reason he was critical of Mr Brown‟s use of „landscape units‟ and the comparisons he

drew between them433. Mr Espie considered that Mr Brown‟s units were smaller than

431 Transcript (2008), p. 733.

432 Mr B Espie, Exhibit BE1 at para 2.3 [Environment Court document 21].

433 Mr B Espie, evidence-in-chief para 4.10 [Environment Court document 21].

the landscapes referred to in section 6(b) of the Act and thus of little help in deciding whether the landscape containing the subject site is outstanding or not. Mr Espie also agreed434 with Ms Steven‟s general assertion that the Lammermoors retain a high degree of natural character.

[278] Mr Rennie QC wrote435 of Mr Espie‟s criticism “... of others who chose different terminology” that it was “simply a means of superficially discussing the opinion of others as to the area that comprises a landscape without having to critically analyse the reasons for that difference”. He submitted436 that “[t]he term unit does not change the fact that an expert has assessed an area as being separately identifiable as a coherent landscape area with similar characteristics”. We consider Mr Rennie is, with respect, wrong. Certainly Mr Espie did not go into the detail in the same way as the other three principal landscape architects. But, perhaps because of that, he seemed to have a better view of the bigger picture. Nor do we consider Mr Espie to have been superficial in his identification of the landscape within that big picture frame.

[279] Mr Rennie also submitted that Mr Espie‟s approach437 “... lacked subtlety and did not appreciate the finer distinctions that can be important when large swatches of upland areas are under consideration”. It is a truism that every landscape is different from every other if only because it is in a different place. It is also true that parts (units) of a landscape may differ in qualities from others. However, we find when one looks at the Wider Eastern Central Otago Upland Landscape (including the Lake Onslow Basin) its most obvious, indeed outstanding, characteristics are the overall flatness and the remarkable homogeneity of its dominant tussock vegetation (Chionochloa rigida).

[280] It is possible, as Meridian‟s witnesses – Mr Brown and Mr Rough in particular – did, to make fine distinctions between the Meridian site and the rest of the Lammermoor, or the wider area, on the grounds of the greater degree of human interference in this area. However, we find that the fact remains that the similarities are much more marked than the differences as objectively assessed. It is a simple matter of

seeing how few structures there are in the landscape; how few ploughed areas there are,

434 Mr B Espie, evidence-in-chief para 4.21 [Environment Court document 21].

435 Meridian‟s closing submissions para 132 [Environment Court document 93].

436 Meridian‟s closing submissions para 133 [Environment Court document 93].

437 Meridian‟s closing submissions para 137 [Environment Court document 93].

and that tussocks are the dominant vegetation in most places. We find that Mr Brown has made distinctions which are too fine when reasonably assessed.

[281] We accept that the crest of the Rock and Pillar Range has different characteristics as Mr Brown identified438 and Mr Espie conceded439. However, we are uncertain that the crest of the Rock and Pillar Range is large enough in its context to be a landscape. It is more accurately described as an outstanding natural feature within the wider landscape. Mr Espie appeared440 to consider the Rock and Pillar Range as more than its crest. We find that is correct. It contains a large area above 900 metres which is not on its crest, so we do not find Mr Espie as inconsistent as Mr Rennie QC suggested he was.

Mr P Baxter’s evidence

[282] Mr Baxter, who is an experienced landscape architect based in Queenstown, had the weight of his evidence very heavily undermined when he admitted in cross- examination by Mr Beatson that he had made a personal submission441 opposing Meridian‟s application. He explained that when he took instructions to appear as an expert he had forgotten making the submission and that he had not appeared at the Council hearings. However, he then admitted that he had been reminded of his submission when finalising his evidence-in-chief. Despite that he could not explain why he had not mentioned his submission in either his evidence-in-chief or his rebuttal evidence. That omission appears to us to be a significant breach of his duty as an expert

witness to advise the other parties and the Court of any relevant factors known to him. The existence of an undisclosed submission expressing strong views on a number of aspects of Meridian‟s proposal is relevant because it throws doubt on the objectivity or rather, since landscape architecture is a very subjective discipline, the impartiality and rationality of his evidence. The fact that he did not compose his submission himself –

he described it as a „pro forma‟ submission – is irrelevant if it was not disclosed. He

438 Mr S K Brown, evidence-in-chief paragraphs 91-93 and 97 [Environment Court document 4].

439 Transcript (2008), p. 717.

440 Transcript (2008), p. 719 line 16.

441 Mr P J Baxter, Exhibit 10.2 [Environment Court document 10].

signed it and so became responsible for it. We have not considered his evidence in this decision.

Dr M C G Mabin’s evidence

[283] Dr Mabin (called by Meridian) is not a landscape architect, but he did give us useful evidence about the geomorphology of the area. As he pointed out the names of the areas describe their characteristics and hence the differences between them: the

„Rock and Pillar Range‟ is very different from the moorland on the „Lammermoor‟. However, his evidence was not consistent in that his Appendix 1 map shows both to be a tor-less landscape. In any event he concluded442:

Project Hayes will be situated on low rolling hills on the broad crest of the Lammermoor Range, and these low-relief mountain tops are characteristic of Central Otago District mountains, and the mountains of the wider central Otago area.

These mountains are formed from remnants of the very large Waipounamu Erosion Surface. The most common landform type of this surface is the Tor-less terrain, and most of the turbines of Project Hayes will be constructed on this landform type.

[284] We find that there are only two high (above 900 metres) tor-less peneplains within Central Otago, one contains the Rock and Pillar, Lammermoor, Lammerlaw Ranges and (South) Rough Ridge and all the land to the west of the Onslow Basin, and an even higher one including the Old Man and Old Woman Ranges. The former, containing the Meridian site is the larger in extent and at lower altitude. The significance of height is the consequential effect on the vegetation of this peneplain: areas of the Waipounamu erosion surface below 900 metres have been much more disturbed.

4.3.3 Findings

[285] We have described how, for Ms Steven, the Meridian site is in a landscape type constituted by the Lammermoor (as we defined it), the Lammerlaw Ranges, the Lake Onslow basin and the Pinelheugh Range, and how she then drew a considerably smaller landscape despite the fact that the Wider Central Otago Upland Landscape contains

several contiguous landscapes of the same type.

442 Dr M C G Mabin, evidence-in-chief paragraphs 8.1 and 8.2 [Environment Court document 6].

[286] Mr Brown considered that was inappropriate for several reasons443:

(1) Ms Steven suggested that 90% or more of the landscape of the Lammermoor is tussock. Mr Brown alleged that is not correct for the Meridian site444 „... significant parts of which have been subject to ploughing, grass oversowing ...‟. However, Mr Brown did not quantify the extent of the ploughed areas, and in fact Meridian‟s own AEE described445 the site as having about 95% tussock grasslands, less than 3% gully wetlands, and less than 3% exotic pastoral grassland, and Dr Bartlett gave446 92%, 4%, 4%.

(2) Similarly, Mr Brown wrote that the „greater prevalence of pastoralism and pine and douglas fir woodlots‟447 is a feature of the southwestern margins of the Lammerlaws – but we find those areas are not on the plateau but are a series of complex foothills dropping from about 900 masl down to the Clutha River.

(3) Mr Brown considered the Lammermoors as he has defined them are “[i]n purely geophysical terms ... an area of transition”448 which is449:

2009_29302.jpg less elevated – than the Rock and Pillars;

2009_29302.jpg less visually prominent – in general; and

2009_29302.jpg more physically and visually isolated from the web of settlements and transportation corridors.

We do not understand what Mr Brown meant by a „geophysical transition‟. In any event, even the natural science factors include more than merely physical factors. Other factors such as the vegetation and presence (or absence) of buildings and other structures are very important too. We are left with a persistent concern that Mr Brown gave inadequate weight to the vegetation, homogeneity and scale of the area, as well as the relative lack

of buildings and infrastructure. For example when he responded to Ms

443 Mr S K Brown, rebuttal evidence para 16 [Environment Court document 4A].

444 Mr S K Brown, rebuttal evidence para 18 [Environment Court document 4A].

445 Meridian AEE Volume 3 Tab E para 5.3.1.

446 Dr R M Bartlett, evidence-in-chief para 5.1 [Environment Court document 60].

447 Mr S K Brown, rebuttal evidence para 18 [Environment Court document 4A].

448 Mr S K Brown, rebuttal evidence para 22 [Environment Court document 4A].

449 Mr S K Brown, rebuttal evidence para 22 [Environment Court document 4A].

Steven who makes precisely those points in her evidence-in-chief450 he did not disagree with her but observed that451:

... it is the very immensity of the landscape that offers potential to „swallow up‟

the sort of scale of development envisaged ...

(4) Mr Brown regarded the different susceptibility452 or sensitivities453 of the landscape as somehow affecting its identification. We consider that is the wrong way around. Identification of the landscape must come before identification of its sensitivities to development.

[287] In summary we prefer Mr Espie‟s view (supported to some extent by Ms Steven‟s view) to that of Mr Brown on the identification of the landscape. We are encouraged in that preference by Mr Brown‟s opinion of the immensity of the landscape. He fails, even in his rebuttal evidence, to consider the scale of the landscape as an identifying feature but simply moves to consider the size and “simplicity”454 of the landscape as a factor limiting the inherent „sensitivity‟ of the landscape which is to take into account an irrelevant factor at this point.

[288] While acknowledging the differences between the Lammermoor and the higher, differently vegetated Rock and Pillar Range identified by Meridian‟s witnesses, we consider from the evidence of Ms Steven – as to landscape type – and Mr Espie, and from our site inspections that these differentiating features are outweighed by the amazing homogeneity of the landscape. All the pictures of the area show a vast (by New Zealand standards) treeless plateau covered in either soft-textured golden-brown tussock or snow (or a mix of the two).

[289] We conclude that on the evidence of Mr Espie and of Ms Steven‟s type that the relevant landscape is the Wider Central Otago Upland Landscape identified above with most of the Lake Onslow Basin and the area to the north of it be excluded for three reasons. First the Lake Onslow Basin is455 “... about to be significantly compromised

... by a large conifer plantation that is just starting to show above the tussocks under Mt

450 Ms E A Steven, evidence-in-chief para 18.10 [Environment Court document 9].

451 Mr S K Brown, rebuttal evidence para 24 [Environment Court document 4A].

452 Mr S K Brown, rebuttal evidence para 12 [environment Court document 4A].

453 Mr S K Brown, rebuttal evidence para 19 [Environment Court document 4A].

454 Mr S K Brown, rebuttal evidence para 21 [Environment Court document 4A].

455 Ms E A Steven, rebuttal evidence para 9 [Environment Court document 9A].

Teviot”; and, secondly, the shape of the landscape should be kept compact and so the separation of the Lake Onslow Basin necessitates that the other two reservoirs (Pool Burn and Manor Burn) and surrounding land should be excluded too. Thirdly, as Ms Steven stated, as one moves into the Lake Onslow Basin there is some sense of moving into a different lower landscape despite the fact this area is still part of the Waipounamu Erosion Surface.

[290] For the avoidance of doubt we describe the landscape as comprising the following area (starting at the western corner):

2009_29301.jpg it starts at 900 masl by the track Point 003446 on Infomap 260 G43 (Roxburgh) which is about two kilometres west of Lammerlaw Rock (1167 masl)

2009_29301.jpg then runs southeast along the 900 metre contour south of Lammerlaw Top

(1210 masl)

2009_29301.jpg along the 900 metre contour on the south side of the Lammerlaw Range past

„Lammermoor‟ at 1160 masl to Little Peak (945 masl) above Lake

Mahinerangi

2009_29301.jpg northeast at the 900 metre contour below the crest of the scarp on the eastern side the Lammermoor Range to the Old Dunstan Road

2009_29301.jpg northeast to the junction of Stony Creek and Burgan Stream then northeast to

Trig G (1051 masl)

2009_29301.jpg around the entire Rock and Pillar Range at the 900 masl contour and back southeast to

2009_29301.jpg the Old Dunstan Road at 900 masl above Paerau

2009_29301.jpg southwest along the 900 masl contour at the top of the escarpment above the

Styx basin (jumping the Logan Burn gorge)

2009_29301.jpg in a southwest line along the scarp edge past Spillers Creek along the 900 metre contour line on the northwestern side of Spillers Hill (960 masl) to the Taieri Rapids Scenic Reserve

2009_29301.jpg further southwest across the Taieri River to the 900 metre contour below

Bottle Rock (974 masl)

around Bottle Rock along the 900 metre contour to the north and west

2009_29301.jpg along that contour to the west of Davidsons Top (1127 masl) and

2009_29301.jpg then southwest along the 900 metre contour around the 900 metre contour to the west of Davidsons Top and Lammerlaw Rock (enclosing Teviot Swamp)

to the start.

For precision we call that landscape “the Eastern Central Otago Upland Landscape” although basically it is the three – Lammerlaw/Lammermoor/Rock and Pillar – Ranges. We have adopted the 900 masl contour as the bottom line of the landscape in deference to the Central Otago District Plan‟s use of that line, and we have tried to keep the shape of the landscape compact for the same reason. We consider the crest of the Rock and Pillar Range is likely to be an outstanding natural feature within that landscape we have just described.

[291] Although precision is often necessary when describing an area with reference to map features, we acknowledge that boundaries of landscapes are not always so clear. The description above should not be read with excessive precision. If outlining the landscape on a map, it should be marked with a broad brush, not a fine-tipped pen (except where the 900 metre contour is followed).

4.4 Assessing the naturalness of the landscape

[292] In the previous chapter we referred to the criteria of naturalness given in Long Bay-Okura Great Park Society Incorporated et ors v North Shore City Council456. There the Environment Court stated that:

... the list of criteria of naturalness under section 6(b) of the RMA ... includes:

2009_29302.jpg relatively unmodified and legible physical landform and relief;

2009_29302.jpg the landscape being uncluttered by structures and/or obvious human influence;

2009_29302.jpg the presence of water (lake, river, sea);

the presence of vegetation (especially native vegetation) and other ecological patterns.

We now consider the Eastern Central Otago Upland Landscape in the light of those

criteria.

456 Long Bay-Okura Great Park Society Incorporated et ors v North Shore City Council Decision

A78/2008 at para 135.

[293] We find that the Eastern Central Otago Upland landscape is relatively unmodified, and the peneplain or Waipounamu Erosion Surface is clearly legible. The landscape has certainly been affected by human activity: Maori probably reduced the areas of woody vegetation by burning, and since Europeans arrived there has been the history of mining, pastoral farming, fence, road and track building, and recreation described earlier. Even if the observer does not know of the landscape‟s earlier history, it has been noticeably affected to some extent by humans – we have described tracks, fences, old mining works, huts, sheepyards, and some ploughed and grassed areas. Across the southern side of the Meridian site there are also the 220 kV Roxburgh-Three Mile Hill electricity lines, shadowed by Pylon Road. However, the extent of modification and human influence should not be overstated: even the evidence of

human influence on the site envelope extends over a very large area (about 135 km2

according to Dr Mabin). We agree with Mr Espie when he wrote457:

I believe that Mr Rough generally overstates the degree to which these modifications reduce the naturalness of the landscape. I believe that the scale of the landscape must be borne in mind. This is a vast, open and very empty landscape.

Cross-examination458 did not affect those statements. We accept them as correct and important, as we do the next sentence459:

The modifications that Mr Rough points out have only a minor impact on the natural character that is appreciated by observers.

[294] As for the presence of water: there are several lakes in the wider area – the Onslow, Manorburn, Greenland and (especially) Logan Burn Reservoirs – which look natural but are not. Their dams are low unobtrusive structures tucked into gorges and away from the main body of water. Mr Brown suggested that the presence of these reservoirs reduced the naturalness of the area. However, as he pointed out in his

general discussion of naturalness460 the presence of “water areas” is one of the criteria of

457 Mr B Espie, evidence-in-chief para 4.7 [Environment Court document 21].

458 Transcript (2008), p. 715.

459 Mr B Espie, evidence-in-chief para 4.7 [Environment Court document 21].

460 Mr S K Brown, evidence-in-chief para 31 [Environment Court document 4].

naturalness. So, paradoxically, the cultured naturalness of the landscape is enhanced

by these „unnatural‟ lakes.

[295] Focussing on the Eastern Central Otago Upland Landscape the Logan Burn Reservoir is in the middle of that landscape. The lake was created by a small concrete dam (recently raised by 0.80 metres) across the Logan Burn. Despite that the reservoir looks natural – like a lake – and, we find, enhances the overall level of perceived naturalness of its setting. Turning to the ground cover: much of the landscape is in narrow-leaved snow tussock, interspersed with smaller plants of different species depending on the density of the tussocks. That density is determined largely by the interplay of rainfall, fires, ploughing (in small areas), topdressing and grazing. There

are a few small cribs461 around the lake, and an abandoned bus462.

[296] In his Table 5 the Meridian witness, Mr Brown, evaluated463 the naturalness of his Lammermoor Range landscape as „High Moderate‟. He defined that value as

follows464:

2009_29302.jpg Naturalness/Natural Character: Reflects the relative predominance of natural elements, patterns and processes in the landscape and the relative absence of manmade structures and overt signs of human

activity.

We find it quite baffling that the much lower Raggedy Range and Blackstone Hill, with

their highly modified vegetation (part of Mr Brown‟s 2A landscape), should be given a

„high‟ sense of naturalness compared with the Lammermoor.

[297] Mr Rough‟s main discussion of the naturalness of the site comes under the

heading „Aesthetic values including memorability and naturalness‟465. He wrote466:

461 „Baches‟ to people north of the Waitaki.

462 Mr P Rough, evidence-in-chief para 66 [Environment Court document 3].

463 Mr S K Brown, evidence-in-chief Table 5, following para 96 [Environment Court document 4].

464 Mr S K Brown, evidence-in-chief para 66 [Environment Court document 4].

465 Mr P Rough, evidence-in-chief before para 88 [Environment Court document 3].

466 Mr P Rough, evidence-in-chief para 89 [Environment Court document 3].

From the Serpentine Flat on the north-western side of the Lammermoors the relatively steep slopes above the valley floor and the broad crest of the range on the skyline appear to be highly natural and lacking in obvious human activity (refer Figure 10 above). This north -western side of the Lammermoor Range has higher aesthetic value than the south-eastern side which is perhaps less memorable because the landform is much less imposing and considerable areas of the land‟s surface has been modified by cultivation and the establishment of exotic pasture. On the other hand, despite its artificial origin, the alpine lake appearance of the Logan Burn Reservoir has considerable aesthetic quality, is a memorable feature and, away from the dam, evokes qualities of naturalness.

[298] Mr Rough considered the signs of human influence we have described and continued467:

The reservoir itself, with its dam, spillway and access road, although it may generally appear to be a natural feature in the landscape, is artificial and in having flooded the bulk of the Great Moss Swamp reduced the inherent naturalness of the foreground to, and thus the setting of, the northern section of the Lammermoor Range. Despite its historic association, its memorable nature and the opportunity it affords to experience the high country landscape in the vicinity of the site, Old Dunstan Road is a feature that also somewhat reduces the naturalness of environment in the vicinity of northern end of the Lammermoor Range.

Farm roads, fences, airstrips and trig stations are features on the land which also diminish its naturalness but, in the context of the vast scale of the landscape, these are very minor elements and their effect on reducing aesthetic value and natural character is accordingly very minor.

We conclude that Mr Rough is saying that farm features have a very minor effect on naturalness, but the Logan Burn Reservoir, the Old Dunstan Road and (elsewhere he suggests) the Pylon Road and the 220 kV line reduce naturalness rather more. Elsewhere he stated that the site does not have any indigenous forest cover (in fact it has relicts in the Logan Burn gorge which is surrounded by the site and this part of the site envelope) nor does it have “... the resplendent cover of indigenous tussock grassland

such as is found ...in Te Papanui Conservation Park ...”468.

467 Mr P Rough, evidence-in-chief paragraphs 90 and 91 [Environment Court document 3].

468 Mr P Rough, evidence-in-chief para 86 [Environment Court document 3].

[299] We find that Mr Rough is generally accurate in describing the elements which reduce the naturalness of the site. However, his evidence is weakened by his failure to acknowledge the scale of the site compared with the principal signs of human occupation (roads, the reservoir, power lines). Further, he vacillates between describing the site or a larger area outside it so as to include features (the Logan Burn dam and lake and the Old Dunstan Road) which he says reduce the naturalness. It is also convenient that his „Northern Lammermoor‟ landscape is just large enough to contain what he regards as derogating features (the reservoir, Old Dunstan Road, Pylon Road, and the line of pylons) and small enough to exclude the Rock and Pillars and, more importantly, the southern Lammermoor Range and the Lammerlaw Range. There is a slight self- serving turn in his selection which makes us doubt the objectivity of his assessment.

[300] Ms Steven wrote469:

Whilst certainly not pristine in an ecological sense, the existing landscape is highly natural in a relative sense, within the context of the central ranges (most of which are more modified than this one) and relative to the modified basin floors.

She continued470:

In the wider Otago sense this area would still be regarded as very natural by most people, simply because there is a relative absence of obvious human artifacts particularly ones not related to pastoral run farming, and because of the apparently intact tussock grassland cover. The great sweeps of unbroken tussock, fold after fold of unmodified land form, clean landform horizons, rock outcrops, falcon and the patterns of wetland under a big sky are essential features supporting naturalness.

We find that Ms Steven has accurately described both her landscape and the slightly more logical (as we believe it to be) Eastern Central Otago Upland landscape. We

consider Mr Espie‟s view is consistent with that of Ms Steven.

469 Ms E A Steven, evidence-in-chief para 18.15 [Environment Court document 9].

470 Ms E A Steven, evidence-in-chief para 18.16 [Environment Court document 9].

4.5 Is the landscape outstanding?

4.5.1 The Central Otago District Plan on the landscape

[301] The Explanation471 to policy 4.4.6 includes the following:

... Landscapes and natural features considered to be outstanding in the Central Otago District are identified as Sections 2.3.1 and 2.3.2 commencing on page 2:6 and are identified on the planning maps. Elevated areas of the District that are over 900 metres and land in the Upper Manorburn/Lake Onslow Landscape Management Area are also identified on the planning maps.

The right-hand bottom corner of Map 70472 shows areas of land above 900 metres above sea level. Most of the Meridian site is within such an area (i.e. is above 900 masl), but it is not described as a “outstanding landscape area” and is therefore not regarded as an “outstanding natural landscape” for the purposes of the operative district plan.

4.5.2 Plan Change 5 to the district plan

[302] On 11 October 2008 – between the second and third stages of the hearing of this proceeding – the CODC notified Plan Changes 5A to 5W (generically called “PC5”) to the district plan. PC5 is primarily concerned with the landscapes of the district.

[303] Plan Change 5A proposes to add to the description of features and landscapes in the district plan a further explanation and description as follows473:

Further work and considerable consultation on the Rural Study in 2005 and 2006 and a report prepared by Robson Garland, Ian Brown Consultants and LA4 Landscape Architects entitled Central Otago District Rural Review has resulted in the identification of a number of landscapes of high natural character values and high landscape quality that are areas of Extreme or High sensitivity, landscapes that are of Significant sensitivity and Significant landscape features within the District. The landscapes identified in the report as being areas of Extreme or High sensitivity are outstanding natural landscapes in terms of section 6(b) of the Act and are as

follows:

471 Policy 4.4.6 [Central Otago District Plan, p. 4:12].

472 Central Otago District Plan, Volume 1 Map 70.

473 PC5, p. 3.

2009_29302.jpg Pisa and Dunstan Ranges

2009_29302.jpg Hector, Nevis Valley, Garvie and Old Woman Ranges

2009_29302.jpg Hawkdun and St Bathans Ranges

Lake Dunstan and Lake Roxburgh

The landscapes of significant sensitivity are:

2009_29302.jpg Lindis Pass

2009_29302.jpg Cairnmuir, Obelisk and Old Man Ranges

2009_29302.jpg Northern Knobby, Lammerlaw and Lammermoor Ranges

2009_29302.jpg Kawarau Gorge

2009_29302.jpg Clutha River below Clyde Dam

2009_29302.jpg Upper Manuherikia

2009_29302.jpg Lowburn, Bendigo and Clyde Terraces

Terrace between the Dunstan Range and Manuherikia River.

Significant landscape features are:

Sugar Loaf and Bendigo glacial river terraces

Rocky backdrop to Alexandra

Flat Top Hill

Upper Taieri Scroll River

Lakes Onslow, Manorburn and Poolburn

Blue Lake, St Bathans

Tiger Hill

The landscapes and landscape features identified in the Rural Study are categorised on the basis of sensitivity as shown on the “Central Otago Rural Review Landscape Assessment Maps” that are contained in Schedule 19.22.

[Our emphasis]

It will be noted that the Lammermoor Range is described as a landscape of „Significant sensitivity‟ but that the Rock and Pillar Range is omitted (perhaps because its crest is within Dunedin City).

[304] The Significant Issues in section 2 of the district plan are also proposed to be changed (relevantly) as follows – the underlined words are those to be added:

Significant Issue – Outstanding Landscapes

The District contains a number of outstanding landscapes that require identification and protection from inappropriate subdivision, use and development. In determining what is inappropriate subdivision, use and development in these landscapes it must be recognised that these landscapes are often utilised by people and communities to provide for their

social, economic and cultural wellbeing.

Cross Reference: Issue 4.2.1 (pg 4:2) Objective 4.3.3 (pg 4:7)

and:

Significant Issue – Cen t r al Ot ago ‟s Un i q u e and Di sti n cti ve

Landscape

The Central Otago District has a unique and distinctive landscape. While the landscape is constantly evolving through natural processes, farming and other land use activities the semi-arid, rocky nature of the landscape means it can be vulnerable to the effects of change, in particular the visual effects of structures (including telecommunication masts, wind farms and other large structures), cultivation of tussock grasslands, large scale earthworks, new roads, residential built development on elevated land establishing woodlots, production forestry or shelter belts on elevated land and wilding tree spread. Subdivision is often the precursor of land use activities such as those listed above. The District‟s built heritage, particularly in the form of cottages and ruins, and remnants of the early goldmining era, has also made a significant contribution to the landscape values of Central Otago.

Cross Reference: Issue 4.2.2 (pg 4:2) Objective 4.3.2 (pg 4:7)

4.5.3 Evidence on the values of the Eastern Central Otago Upland Landscape

Legibility of the landscape

[305] Because of the uniformity of the dominant tussock cover, and because there is almost no higher vegetation on it, the whole upland area (to use a neutral term) of and around the Lammermoor is readily legible as an eroding plain. Given the general homogeneity of ground colour and texture – brown/golden or greenish (when seen from close to) tussocks – it reads as a plain that is being slowly and gently eroded by the streams running off it into the Taieri River. It has a soft and undulating landform.

Transient values

[306] We usually put very little weight on transient values. All landscapes, even (especially) industrial landscapes, can look exceptional in certain light and atmospheric conditions. However, the „two season‟ values of the Lammermoor are worth recording. For at least half of the year the area is a tussock landscape but for some months it may

be covered in snow. So there is a sense of „two landscapes for one‟ here that otherwise only exists in New Zealand‟s much more widely spread toothed mountains. Other ephemeral values are recognised in the writing about Central Otago which we describe (briefly) soon.

Shared and recognised values

[307] For Meridian Mr Rough relied on the fact that the district plan does not describe the Meridian site as an outstanding natural landscape. That is often a valid way of assessing the issue as to whether a landscape has shared and recognised values, although there are reasons (inconsistencies in the district plan; the proposed Plan Change; the characterisation in the Dunedin City Council Plan; the provisions of the Regional Plan) which we discuss later as to why it may not be appropriate in these proceedings.

[308] Mr G Sydney, a well-known474 artist who is also a member of the MESI gave evidence as to the values of the landscape. We accept his expertise to give evidence about the aesthetic, and shared and recognised values of the landscape although we consider that evidence very carefully due to his own personal involvement in the issues. He wrote how 475:

... [his own] oil painting „Maniototo‟, 1996, depicts a view across the Maniototo Plains, looking south and west, and features the ridge that may become the Project Hayes site. Ironically, the landscape depicted in that work has been endorsed by the Department of Conservation as a fitting example to accompany its promotional material Celebrating the Outstanding Landscapes of Central Otago ... and the reproduction of the work was paid for by the Department.

Mr Sydney also wrote without false modesty476:

These landscapes of Central have been the focus and subject of artists and writers too numerous to list. Film-makes from the freshest amateur to the world‟s most prominent directors have made fine use of its magnetic appeal. Examples include Illustrious Energy, In My Father’s Den,

Fifty Ways of Saying Fabulous, and Lord of the Rings. ...

474 One of his paintings of the Ida Valley is on the front cover of the district plan.

475 Mr G C Sydney, evidence-in-chief para 21 [Environment Court document 11].

476 Mr G C Sydney, evidence-in-chief para 33 et ff [Environment Court document 11].

Some of the great names in New Zealand‟s art heritage have come to this expansive Central Otago landscape for inspiration, for rich subject matter, and to discover more aesthetic forms with which to explore our identity and our separateness. Marilynn Webb has identified painters Colin McCahon, Rita Angus, Michael Smither, Bill Sutton, Trevor Moffitt, R N Field, Doris Lusk, George O‟Brien, Austen Deans, Peter McIntyre, Elizabeth Stevens, Neil Driver, Ralph Hotere, Tom Field and myself; and writers Janet Frame, Ruth Dallas, Owen Marshall, Vincent O‟Sullivan, Elizabeth Smither, Brian Turner, Charles Brasch, James K Baxter, David Eggleton, Neville Peat, O E Middleton, Cilla McQueen, and Lauris Edmond.

...

We find that to be an impressive list which suggests strongly that the wider “Central

Otago landscape” does have widely recognised and shared values.

[309] Mr Sydney attempted to explain how those values are so widely recognised477:

It does not surprise me that I frequently hear people confessing – often with some bewilderment

– that they feel “at home” in a particular landscape, for reasons they themselves cannot explain. And the number of times one hears this belonging to and love of particular South Island landscapes expressed by those who have spent very little time amongst them, is telling.

...

Why is it we so often cling to the significance of one special place, one special spot, one particular view, and hold that to our hearts for comfort, for a clearer sense of „where we come from‟ and for confirmation of our identities? I believe that everyone has a deep secret spot, a special place, a landscape that brings them a profound, often inexplicable contentment, whether they carry it only in their memories, or can access it frequently. I believe too that the thousands of New Zealanders for whom Central Otago carries so much private meaning turn to the writers, poets and artists for tangible evidence of what they themselves feel and sense, but cannot always explain.

[310] We should also record our finding that the naturalness of the Wider Eastern Central Otago Upland Landscape is enhanced by the presence of a number of lakes – Lake Onslow and the Poolburn, Manorburn and Logan Burn Reservoirs. These lakes

are all artificial, but they “look” natural, unless one is on or near their dams.

477 Mr G C Sydney, evidence-in-chief para 36 et ff [Environment Court document 11].

Tangata whenua values

[311] We read little evidence as to the values of the Meridian site or the wider landscape for tangata whenua. The project site is regarded as being associated with the waka Araiteuru478 and Te Runanga O Otakou have identified they hold important links

with this particular area479. The Old Dunstan Road is identified as a traditional trail of

significance and it is likely that camps were established along this trail particularly near rocky outcrops480. Lithic sources, moa and weka hunting drew Maori to the area with the latter continuing until about 1870481. The District Plan maps show a Nohoanga site on the edge of the Logan Burn.

Aesthetic values

[312] We read the evidence of Mr Brian Turner, a writer. Mr Turner is strongly opposed to the Meridian wind farm. In his opinion482:

One of the priceless things that makes Central Otago unique and so captivating – gives it the

„world of difference‟ that the brand-assigners and the Central Otago District Council (CODC) use to proudly advertise and promote the area – is that most of its hills and block mountain ranges aren‟t visually polluted. It gives them an extraordinary and memorable aura, one that‟s ineffable, often grand.

The title poem of his collection Taking Off includes a passage about birds soaring:

...

where the nor‟ wester

flips off the ridges and the tussock is restless and shines

on the hillsides, ...

478 Meridian AEE Volume 1 para 9.13.1.

479 Meridian AEE Volume 1 para 9.13.2.

480 Meridian AEE Volume 1 para 9.13.2.

481 Meridian AEE Volume 3 Tab G para 5.1.

482 Mr B L Turner, evidence-in-chief para 33[ Environment Court document 12].

That northwest wind is in fact the predominant wind which Meridian wishes to use on its site. Because Mr Turner has lived in and written about Otago for most of his life we regard him as an expert on the aesthetics of Central Otago although we treat all his opinions with great caution because of his frank subjective approach to the concept of a wind farm on the Lammermoor.

[313] Mr Turner drew our attention to earlier references to the scale of the landscape and to its predominant tussock cover. He referred to an essay483 by Mr T H Scott published in 1950 which contains both themes when it referred to a „... noble and old country ... lovely with tussock‟ and a country that „... could have been a continent‟. He concluded by referring to Mr Philip Temple‟s summary484 – which plays with the golden colour of the tussock landscape – „Here, the gold will always be the land ...‟. We accept those are valid and now shared descriptions of the wider landscape‟s values. The tramper pushing into a nor‟wester or the musterer hit by a southerly buster are likely to express their feelings more ruggedly.

Historic values

[314] These have been described earlier in this decision.

4.5.4 Direct evidence on whether the landscape is outstanding

The evidence for Meridian

[315] Meridian‟s witness, Mr Rough, conceded485 in answer to a question from Mr Marquet that he had not made his own district-wide assessment but had relied on the district plan. In Mr Rough‟s own assessment of the site he would only go this far486:

... it is clear that the northern end of the Lammermoor Range, in the general vicinity of Logan Burn Reservoir, and which occupies both Central Otago District and Dunedin City District land, is not of as high landscape and visual quality as conservation lands on the Rock and Pillar Range to the north, and within Te Papanui Conservation Park to the south, or a range of other areas

within the Otago District.

483 T H Scott, „South Island Journal‟ Landfall 1950.

484 P Temple, Introduction to Central (a book of photographs by Arno Gasteiger).

485 Transcript (2008), p. 152..

486 Mr P Rough, evidence-in-chief para 111 [Environment Court document 3].

[316] Meridian‟s other landscape witness Mr Brown summarised his evaluation of the

Meridian site in his Table 5 as follows487:

LAMMERMOOR RANGE : PROJECT HAYES SITE VALUES

Landscape / Amenity / Natural Character:

Expressiveness: Unity: Naturalness: Sense of Place:

Structure & Patterns: Heritage Associations: Gateway Values:

Value Rating:

He defined those terms as follows488:

2009_29302.jpg Expressiveness: The degree to which a landscape is „self evidently‟ spectacular or at least sufficiently dramatic that it leaves a lasting impression

2009_29302.jpg Unity: The degree to which a landscape displays a certain consistency and harmony in relation to its internal components

2009_29302.jpg Naturalness/Natural Reflects the relative predominance of natural elements, patterns

Character: and processes in the landscape and the relative absence of manmade structures and overt signs of human activity

2009_29302.jpg Sense of Place: The extent to which a landscape‟s array of features, elements and patterns evokes the feeling of a distinctive local character that can be distinguished from that of other locations, districts &/regions

2009_29302.jpg Structure & Patterns: Reflecting the attractive interplay and counterpoint of landscape components that contribute to both its attractive composition and visual coherence

2009_29302.jpg Historic Associations: Reflecting the presence and interaction with key historic sites &


heritage areas

2009_29302.jpg Gateway Values: The degree of which particular landscapes contribute to the experience of entering Central Otago and impart impressions of its landscape character and values.

487 Mr S K Brown, evidence-in-chief following para 96 [Environment Court document 4].

488 Mr S K Brown, evidence-in-chief Table 2 (after para (66)) [Environment Court document 4].

[317] We refer to Mr Brown‟s detailed analysis shortly. Here we record his conclusion489:

As a result, it is my opinion that the subject site displays somewhat less overall landscape value and sensitivity to wind farm development than other high country landscapes, both within its immediate vicinity and closer to both the Otago coast and Alps. Many of those landscapes are indeed truly eminent, conspicuous, outstanding and worthy of protection in perpetuity from my point of view. By contrast, Meridian Energy‟s Project Hayes‟ site is rather more recessive – both at the macro and local scales – and displays a range of attributes that make it acceptable as wind farm site.

Evidence for other parties

[318] For the Maniototo Environmental Society Ms Steven wrote that490 “[t]here is no doubt in my mind that the summit landscape on the Lammermoor is an outstanding natural landscape”. She set out in a table491 her very brief summary of the various witnesses‟ assessment of the qualities of the landscape. Mr Rough (for Meridian) was aggrieved by that492 but we consider Ms Steven is not unfair in what she is doing. There is a consistent negative quality about Mr Rough‟s assessment, which is caused in our view by his isolation of the „Northern Lammermoor Range‟ from the Rock and Pillars to the north, and the rest of the Lammermoor Range (and the Lammerlaw Range) to the south and southwest.

[319] Ms Steven also set out in a further table493 in her rebuttal evidence her response

to Mr Brown‟s evaluation. We repeat her table here, but referencing the passages in Mr

Brown‟s evidence in her left-hand column:

489 Mr S K Brown, evidence-in-chief para 114 [Environment Court document 4].

490 Ms E A Steven, evidence-in-chief para 19.9 [Environment Court document 9].

491 Ms E A Steven, evidence-in-chief Attachment H [Environment Court document 9].

492 See Mr P Rough, rebuttal evidence para 3.5 [Environment Court document 3A].

493 Ms E A Steven, rebuttal evidence after para 115 [Environment Court document 9A].


Mr Brown‟s findings:
[Ms Steven‟s] response:
The Lammermoors have a profile which is less strongly articulated494

Lacks the visual presence, less distinctive visual profile ... less influential as a gateway range

A much more remote and495 visually discreet feature
The range form is very legible with a strongly
defined scarp on each side

Has a distinctive skyline, “doorstep to Central”,

In direct view approaching from the east and beckoning; dominant feature at close range enclosing the Styx basin and directly confronting travellers/recreationists coming from the west via Lake Onslow/Deep Creek or Rough Ridge;

Is more remote from Maniototo basin but still
definitive enclosing rim or „wall‟.
“certainly less than pristine”496

“internally the character of the Lammermoor is also clearly influenced by past farming use across most of its upper slopes, continuing pastoral activity on its margins and the apparently natural but in fact highly modified man induced character of the Logan Burn/Great Moss Swamp plateau497

rough pasture grasses still prevail across much of the Lammermoor landscape498

its rather jumbled terrain lacks the coherence and drama of the likes of the adjoining Rock and Pillar Range499
The landscape is ecologically modified but ... in fact
less so ... than other ranges such as Raggedy (no snow tussock left), North Rough Ridge (little snow tussock left), Rough Ridge (comparable but possibly more patchy).

All ranges are affected by pastoral activity but this range has large areas retired from grazing. The landscape still has a significant indigenous component and is not all man-induced (95% of the site has a snow tussock cover; there is a substantial part of the whole range under conservation management for its indigenous qualities, more than anywhere else in Central). The area is thought to have always carried snow tussock.

“Rough pasture grass” is a somewhat derogatory term for snow tussock. All larger lakes in Central are man made.

The terrain is no more “jumbled” than anywhere else in my opinion, in fact the terrain has lower legibility where there is extensive tor development. Coherence is more related to the continuity of tall tussock cover and absence of intrusive cultural changes such as cultivation – generally coherence is as high here as on other ranges, if not higher. The landscape can be dramatic under certain light conditions.

494 Mr S K Brown, evidence-in-chief para 91 [Environment Court document 4].

495 Mr S K Brown, evidence-in-chief para 92 [Environment Court document 4].

496 Mr S K Brown, evidence-in-chief para 97 [Environment Court document 4].

497 Mr S K Brown, evidence-in-chief para 93 [Environment Court document 4].

498 Mr S K Brown, evidence-in-chief para 93 [Environment Court document 4].

499 Mr S K Brown, evidence-in-chief para 93 [Environment Court document 4].


Lacks drama500 and majesty501 of the
mountain chains

Does not have the same level of visual drama, definition, containment or interest or memorability as the other ranges502
High visual drama not a pre-requisite for high value;
its different natural character contributes to total natural landscape diversity.

Is well defined and contains Styx basin and Rocklands plateau strongly; also southern rim to the Maniototo; is memorable for its long even skyline, the „waist‟ between the two higher ends.
Enjoys a sense of remoteness and
relative isolation from the outside world503

that to an appreciable degree enhances its austere even barren aesthetic504
Agree that it does have a sense of remoteness and
isolation but this is a key value rather than an advantage.

Not so austere as the semi-arid rocky areas, in fact the Lammermoor is renowned for its dense tussock and moister environment and extensive wetlands.
Does not have the same proximity to
areas of settlement or the Rail Trail and State highways, a degree of physical isolation and visual discreetness505
It is true it is more remote from settled places and
main highways. It is seen from the Rail Trail between Wedderburn and Ranfurly at a distance as an enclosing range. See note above re isolation.

Very close proximity to important recreation experiences (Old Dunstan Trail; Logan Burn reservoir; Rock and Pillar; Stonehurst and Te Papanui conservation areas)
Is not a focus of view due to
expansive nature of landscapes it is part of506
True, but wind farm will become a focus of attention
because of alien form and movement.
The scale of this landscape with long
viewing distances to and across them enhances the potential to visually accommodate and „swallow up‟ even quite large scale modification507
Applicable to all the ranges; scale is in principle
compatible; but other wind farm attributes are not such as unnatural character and alien form and breakdown of isolation
Historic heritage is not exceptional compared to other parts of Central508
Is just as important as anywhere else, although I note
very high heritage ratings have been given to more modified settings such as St Bathans and Lake Roxburgh.

On the whole we find Ms Steven‟s evidence considerably more accurate where the witnesses disagree.

[320] Mr Espie has the advantage that he considered what we have found to be the correct landscape – his Rock and Pillar/Lammermoor/Lammerlaw Ranges landscape

which we have called the Eastern Central Otago Upland Landscape. He consistently

500 Mr S K Brown, evidence-in-chief para 93 [Environment Court document 4].

501 Mr S K Brown, evidence-in-chief para 73 [Environment Court document 4].

502 Mr S K Brown, evidence-in-chief para 97 [Environment Court document 4].

503 Mr S K Brown, evidence-in-chief paragraphs 93 and 97 [Environment Court document 4].

504 Mr S K Brown, evidence-in-chief para 93 [Environment Court document 4].

505 Mr S K Brown, evidence-in-chief para 98 [Environment Court document 4].

506 Mr S K Brown, evidence-in-chief para 99 [Environment Court document 4].

507 Mr S K Brown, evidence-in-chief para 93 [Environment Court document 4].

508 Mr S K Brown, evidence-in-chief para 95 [Environment Court document 4].

described this as an outstanding natural landscape. We have already quoted his first conclusion509. In his second report510 he succinctly ran through the Pigeon Bay factors, then referred to the fact that part of the relevant landscape511 is in Dunedin City and has been described as outstanding, and concluded that512:

The slabs of Peneplain mountains that make up the Lammerlaws, Lammermoors and the Rock and Pillar Range are inseparable, are one landscape and are both outstanding and natural when assessed as a whole.

He confirmed in his evidence that the two reports represented his professional opinion513. We accept his opinion above the other experts in these proceedings.

4.5.5 The views of the local authority‟s commissioners

[321] The local authority commissioners were split over whether the site is, or is in, an Outstanding Natural Landscape („ONL‟). The majority view (with the Chairman, Mr Matthews dissenting) was that514:

... although the landscape is significant it is not outstanding in its qualities. It is the view of the four Commissioners holding this majority view that if this landscape were classified as outstanding then all the block folded mountains of Central Otago would be similarly classified.

The Commissioners heard a different suite of landscape architects than us – although Mr Brown, Mr Rough, and Mr Espie were common to both hearings. The reasons for their views were first that they preferred the evidence of Mr Brown and Mr Rough; and secondly515:

Commissioners in the majority view arrived at the conclusion that the Project site is not an outstanding natural feature or part of a natural outstanding landscape and that the general landscape and environmental values of the Project site are considerably less than those found on

the Rock and Pillar Range, in Te Papanui Conservation Park and on Rough Ridge. Put


  1. Mr B Espie, Exhibit BE1 para 4.12 [Environment Court document 21] – quoted in section 4.3.2 above.

510 Mr B Espie, Exhibit BE2 [Environment Court document 21].

511 Mr B Espie, Exhibit BE2 para 2.15 [Environment Court document 21].

512 Mr B Espie, Exhibit BE2 para 2.15 [Environment Court document 21].

513 Mr B Espie, evidence-in-chief para 5.1 [Environment Court document 21].

514 Commissioners‟ decision (undated) p. 109.

515 Commissioners‟ decision (undated) pp 110-111.

differently, the Commissioners ascribing to this view, accept that the Project site is not outstanding when viewed in the Central Otago context; rather this landscape type is common place in that context. To be outstanding in the Central Otago context, the Lammermoor Range or the Project site needs to have special qualities that lift it above the norm for the District. None of the evidence in these Commissioners[‟] view revealed such particular qualities of the site when compared to the similar block mountain ranges that comprise much of the remainder of the district.

We are uneasy with their conclusions. First we do not prefer the ultimate opinions of

Mr Rough and Mr Brown for reasons we have endeavoured to explain.

[322] Secondly, while the Commissioners compared the site with „similar block ranges‟ in the district, we consider that ignores these differences:

(a) while many of the „block ranges‟ of Otago are isolated and may be considered as separate landscapes, the Eastern Central Otago Upland Landscape is a much larger continuous area – more a crumpled tablecloth on a table than a block;

(b) as Dr Mabin‟s map shows, there is only one other landscape in Central Otago that is similar and that is the Old Man/Old Woman Ranges complex (which is higher but smaller in area);

(c) there are rainfall and, very importantly, vegetation differences between this area and land further west of Pinelheugh (as pointed out by Ms Steven).

[323] The approach taken by the Hearing Commissioners is supported by a submission from Mr Rennie QC in his closing516 where he referred to a statement in Wakatipu Environmental Society Incorporated v Queenstown Lakes District Council517 (“the first

Queenstown landscape case”). The Court observed518:

516 Meridian‟s closing submissions para 147 [Environment Court document 93].

  1. Wakatipu Environmental Society Incorporated v Queenstown Lakes District Council [2000] NZRMA 59.
  2. Wakatipu Environmental Society Incorporated v Queenstown Lakes District Council [2000] NZRMA 59 at para [85].

... what is outstanding can in our view only be assessed – in relation to a district plan – on a district-wide basis because the sum of the district‟s landscapes are the only immediate comparison that the territorial authority has.

That passage was recently adopted by the Environment Court in Unison Networks Limited v Hastings District Council519 (“Unison Two”). We disagree for several reasons. First, too much emphasis can be given to the statement in the first Queenstown landscape case. For example, the very next sentence in that decision states520:

In the end of course, this is an ill-defined restriction, since our “mental” view of landscapes is conditioned by our memories of other real and imaginary landscapes in the district and elsewhere, and by pictures and photographs and verbal descriptions of them and other landscapes.

Secondly, an extension to that approach has to be made if regional considerations are relevant as Unison Two recognised. Thirdly, while the local authority may be confined to its knowledge of its district, the Environment Court need no longer be since, in the intervening 11 years since the first Queenstown landscape case was decided, it has built up its knowledge of New Zealand‟s landscapes.

[324] When considering the significance of the relevant landscape each side has criticised the other‟s witnesses for not giving sufficient weight to the relevant differences between the Meridian landscape setting and other landscapes. For example, Meridian‟s counsel submitted521 that Ms Steven and Mr Espie had:

(a) down-played the differences between the Meridian site and both the Rock and Pillar Range and the part of the Lammermoor Range within Te Papanui Conservation Park; and

(b) failed to recognise that522 “most or all of the block faulted ranges in Central

Otago have similar or better qualities”.

519 Unison Networks Limited v Hastings District Council W11/2009 at [85].

520 The First Queenstown landscape case [2000] NZRMA 59 at [85].

521 Mr H Rennie QC, closing submissions at [168] [Environment Court document 93].

522 Mr H Rennie QC, closing submissions at para [168] [Environment Court document 93].

The arguments for the (other) appellants were the mirror image of those. Who is closer to being correct?

[325] While we accept all the signs of human involvement on the Meridian site and surrounding area described by Meridian‟s witnesses, we have found them to be overstated. From almost anywhere around the site there is a feeling of a continuous tussock dominated landscape. The Lammermoor is, objectively examined, a remarkable natural area within a larger homogenous area generally of higher quality. So we consider that Meridian‟s witnesses and counsel have exaggerated the relatively small-scale differences.

[326] We judge that Meridian has wrongly assessed the landscape in itself and compared with other parts of Central Otago and the region. We agree immediately that the Eastern Central Otago Upland Landscape has lesser qualities than the plateau centred on the Old Woman Range. However, the comparison consistently made between the Meridian site‟s landscape, as identified most clearly by Mr Brown, and the other “better” block mountains he identifies within Central Otago is a serious over- simplification:

(1) to reduce the Lammermoor‟s environs to being simply a block faulted range ignores its clearly legible origins as part of the Waipounamu erosion surface with the Lammermoor and Lammerlaw Ranges. The views from near McPhees Rock523 clearly show that;

(2) the Eastern Central Otago Upland Landscape as a whole is a plateau not

simply a block-faulted mountain. At best it could be described as two block-faulted mountain ranges at right angles, hinged around Lammermoor trig (1160 masl) but even that understates the sense of an upland plateau gained from many parts of the landscape. So we consider the Eastern Central Otago Upland Landscape is not the same as the other long, thinner, rounded ranges of Central Otago;

(3) the vegetation on the Meridian site is, despite its poorer quality, still

dominated by tussock and it is:

523 Mr Rough‟s photopoint 120.

(a) very similar to the rest of the Lammermoor within Dunedin City, and that of the slopes above 900 metres around the Rock and Pillar summit (which has a smaller area of different vegetation) and to the Lammermoor Range and Lammerlaw Range;

(b) increasingly different from the dryland vegetation of Rough Ridge and the (lower) ridges further west towards Alexandra and the Manuherikia River which contains more and larger weeds;

(4) the Eastern Central Otago Upland Landscape is almost tree-less;

(5) while the Meridian site is lower than the Rock and Pillar Range on the southern Lammermoor Range it is a little higher than the Lammermoor within Dunedin City and considerably higher than land to the east and west of its scarps.

[327] We conclude that the witnesses of Meridian‟s opponents described the site‟s landscape and its qualities and relative differences more accurately and objectively than Meridian‟s own witnesses did. They concentrated on the large and important differences, not on the “finer distinctions” referred to by Mr Rennie and the witnesses called by Meridian.

4.5.6 Having regard to the Otago RPS

[328] We must have regard to524 any relevant provisions of525 the Otago RPS. We identified earlier526 the objective in that plan and the implementing policy which requires protection of those of Otago‟s outstanding natural landscapes which also527 (relevantly) are unique to, or characteristic of the region, or representative of a particular

land form or land cover or of the collective characteristics which give Otago its particular character, or represent areas of cultural or historic significance. We find that the Eastern Central Otago Upland Landscape is unique to the region as well as characteristic of it. It is also representative of the tor-less upland landform covered in (mainly) native tussocks, and it represents an area of both cultural and historic significance. When the Court asked Meridian‟s witness Mr Brown whether he knew of

similar landscapes in New Zealand he referred to the Mackenzie Basin and the Volcanic

524 Section 104(1) of the RMA.

525 Section 104(1)(b)(iii) of the RMA.

526 In Chapter 3.0 of this decision.

527 Policy 5.5.6 [Otago RPS p. 56].

Plateau. In the Court‟s experience those landscapes are completely different. They are at different (lower) altitudes. They have different land forms (the Mackenzie Basin is at the bottom of its landscape, and the Volcanic Plateau is dominated by the volcanoes which formed it). They contain many more introduced plants, especially conifers: the Mackenzie Basin is lined with windbreaks and contains some plantations; the Volcanic Plateau‟s shrubland contains greater areas of introduced heather; and there are Pinus contorta wildings and plantations of other species.

4.5.7 Conclusions

[329] There are a number of landscapes and landscape types528 in Central Otago. Some of the most famous Central Otago landscapes are the views portrayed in many of Grahame Sydney‟s paintings – flat lowlands (with or without railway shed or farm building) in the foregrounds and softer mysterious round hills in low sun in the background. These paintings show the „range and basin‟ landscape described by the landscape architects529 although it needs to be borne in mind that „range‟ is used as

much in the meaning of that word in the „Home on the Range‟. That is, it means530:

(a) a large area of open land used for grazing or hunting;

(b) a tract over which one wanders,

– as more or more than the usual New Zealand sense of531:

a a row, series, line, or tier, esp of mountains or buildings (Ruahine Range). b (esp. as the ranges) NZ & Aust. mountainous or hilly country not necessarily forming a single divide.

In many ways the block-faulted mountains of Central Otago fit within both those sets of

meanings of „range‟, but those to the east are more within the first set.

528 Ms E A Steven, evidence-in-chief paragraphs 8.1 to 8.15 [Environment Court document 9] and the concept of „landscape type‟ is discussed (in rather different terms) by Mr S K Brown, evidence-in- chief paragraphs 40-42 [Environment Court document 4].

529 Ms E A Steven, evidence-in-chief para 8.5 [Environment Court document 9].

530 The New Zealand Oxford Dictionary p. 930 „range‟, meanings 11a and b.

531 The New Zealand Oxford Dictionary p. 930 „range‟ meaning 4.

The basin and range landscapes contain natural features such as Blackstone Hill and the North Rough Ridge which may or may not be outstanding. There is a separate landscape on the modified tor and fretted landscape between Alexandra and the Greenland and Manorburn Reservoirs that is different in many ways to almost all other landscapes within the district – it is drier, weedier, rockier, more treed (albeit mainly with exotic conifers) than most of the other upland landscapes. There also appears to be a working landscape in the Maniototo and vineyard landscapes around Alexandra and Cromwell. There are clearly separate upland landscapes west of the Clutha River.

[330] In this case we are concerned with the Eastern Central Otago Upland Landscape as we have defined it. After long and careful thought we prefer the evidence of Mr Espie (supported to a considerable extent by Ms Steven‟s evidence on landscape type) and find that the Eastern Central Otago Upland Landscape is an outstanding natural landscape within the meaning of section 6(b) of the RMA. Our reasons for that conclusion are as follows:

(1) the landscape is a separate whole with its own landform (tor-less uplands); it is covered by grassland dominated by the native narrow-leaved snow tussock532; it is an upland peneplain which falls away on all sides except to the tor-studded ridges to the west and north; and it contains its own suite of native birds and insects;

(2) the landscape is also close to the natural end of the continuum from natural to urbanised. Despite the fact that it has been affected by human activity, Meridian accepted533 that “the area has a high degree of naturalness”;

(3) the landscape is legible in the sense that its peneplain looks like part of a

Waipounamu Erosion Surface;

(4) the landscape has important transient values – it has two seasons – one with snow and one without; and pairs of charismatic New Zealand falcon live in the landscape for much of the year. Other transient values include the sunrises and sunsets over the tussock landscape and low light

conditions which create dramatic shadowing effects in the folds of the

532 Chionochloa rigida.

533 Meridian, closing submissions para 164 [Environment Court document 93].

land. Those and cloud phenomena such as the „Taieri Pet‟534 we regard as of very minor but not negligible importance;

(5) the values we have described are largely shared and recognised, although there is some sense of a „farmers versus the rest‟ divide. For example, those of the farmers or trustees who own the land comprising the Meridian site and gave evidence – Mr Elliott535 and Mr Harrington536 – strongly emphasised the modified nature of their farms (Lammermoor and Rocklands Station respectively). The Hearings Commissioners too

regarded the Meridian site as a „working farm landscape‟. On the other hand the members of the appellant MES, supported by the Central Otago Recreational Users Forum (“CORUF”), represent what we find is a large group in the Central Otago and wider communities who share the values described by Mr Sydney, Mr Turner and Ms Kelly;

(6) the historical associations of the landscape are important. Prehistoric evidence is limited but suggests stone working and hunting activities. The common link is the Old Dunstan Trail which has both European and Maori sites associated with it. Other relevant archaeological sites include Spillers Track and the gold mining and pastoral sites;

(7) it meets two of the special criteria in the Otago RPS: it is a type of landscape which is unique to and characteristic of the region, and it is also an area of historic significance mainly through the presence of the Old Dunstan Road;

(8) the landscape includes the entire headwaters of the Taieri River as another unifying theme;

(9) finally, and very importantly it is, by New Zealand standards, a large landscape as Mr Espie and Ms Steven (of the type) observed. While New Zealand has millions of hectares of „high country‟ not much of it is (relatively) flat. There are extensive areas of plain, e.g. the Canterbury Plains, but they are usually lower and have been substantially modified by ploughing. The landscape is very unusual for its large size, openness, long

natural skylines, relative flatness, the expansive homogenous vegetation

534 Ms E A Steven, evidence-in-chief Second Attachment [Environment Court document 9].

535 Mr R J S Elliot, evidence-in-chief [Environment Court document 54].

536 Mr W O Harrington, evidence-in-chief [Environment Court document 51].

cover dominated by tussocks, and for the fact that it is at the top rather than at the foot of mountains.

5.0 The possible effects : qualitative analysis

5.1 Introduction

[331] We now turn to our predictions as to the potential effects of the proposed wind farm. We use „prediction‟ to mean our collective degree of belief about the relative degree of certainty or uncertainty about each of the alleged possible effects. We try to express our degree of uncertainty in probabilistic terms: see the list in the Schedule attached to Clifford Bay Marine Farms Limited v Marlborough District Council537.

[332] One column of that list includes the scale of probability terms used by the International Panel on Climate Change (“the IPCC”). These were criticised by Professor Carter, a witness called by the appellant Mr Sullivan, who wrote538:

The IPCC has adopted a qualitative scale of probability terms (which are deployed by Dr Wratt throughout his statement) that has no rigorous basis. IPCC terms such as “likely (>66% probable)” and “very likely (>90% probable)” have no actual statistical meaning, but instead represent only considered opinions. This is because the IPCC provides no empirical evidence that events predicted to have a >66% probability have indeed occurred at least two times out of three in the past.

The use of such terminology is highly misleading, and represents sociology not science.

We cannot comment on whether the IPCC‟s approach is sociology or science, although we are concerned that Professor Carter is using a very limited and high-minded definition of science. If we say that the probability of a true die rolling a 1, 2, 4 or 5 on one throw is 66%, is that statistically meaningless? In any event our approach to predictions about possible future events is the legal one required under the RMA: we express Bayesian probabilities rationally based on the evidence presented – see Long

Bay-Okura Great Park Society Incorporated et ors v North Shore City Council539 and

the authorities referred to there. Courts do not have the luxury of time in which to find statistically meaningful results approaching the ideal of near-certainty and confirming (or not) a null hypothesis. We generally have to decide the cases given to us within a

short period on the evidence, however incomplete, presented by the parties.

537 Clifford Bay Marine Farms Limited v Marlborough District Council Decision C131/2003.

538 Professor R M Carter, evidence-in-chief para 7.1.12 [Environment Court document 24].

539 Decision A78/2008 at para [302] et ff.

[333] We will assess the „actual and potential effects of the activity on the environment‟540 both qualitatively in this chapter and, as far as the evidence will allow, quantitatively in the next. At all points where possible avoidance, remediation or mitigating of potential adverse effects was discussed in the evidence we consider that too, particularly in relation to the form of adaptive management proposed in Meridian‟s Construction Environmental Management Plan (“CEMP”) and supplementary plans

under it.

5.2 Positive effects

5.2.1 Meeting the demand for more electricity

[334] In his evidence-in-chief, Mr Waipara informed us of the ongoing need for new electricity generation, both nationally and regionally, to meet the growth in electricity demand541. He stated that national electricity demand was expected to grow by 500–

700 GWh per annum on average542. He stated that South Island demand growth had

exceeded supply growth over a number of years543 and that there was a „clear need‟544 for new South Island generation to increase security of supply and to place downward pressure on electricity prices. He drew support for his view from the joint statement of transmission experts, when they agreed that545:

Additional energy in GWh in the Otago-Southland region from wind generation will improve the regional energy demand balance. The same applies to the South Island as a whole.

However, we note that Mr Waipara‟s comments were made in the context of a discussion on the constraints546 of moving energy into and out of the Lower South Island („LSI‟) and the South Island generally, and the likelihood of the possible upgrades to lessen or remove those constraints. He provided no quantification of the value of the

social benefit that would result if a wind farm is built on the Lammermoor.

540 Section 104(1)(a) of the RMA.

541 Mr G M T P Waipara, evidence-in-chief pp 7-9 [Environment Court document 25].

542 Mr G M T P Waipara, evidence-in-chief para 32 [Environment Court document 25].

543 Mr G M T P Waipara, evidence-in-chief para 34 [Environment Court document 25].

544 Mr G M T P Waipara, evidence-in-chief para 37 [Environment Court document 25].

545 Mr G M T P Waipara, evidence-in-chief para 43 [Environment Court document 25].

546 The constraints are identified and discussed earlier in Chapter 2.0 of this decision.

5.2.2 Placing downward pressure on electricity prices

[335] Mr Muldoon appeared to consider the benefits of renewable generation as self- evident and Meridian‟s commitment to renewable generation in general, and wind generation in particular, as a logical consequence of these benefits547.

[336] Mr Muldoon described the benefits of wind generation to Meridian as including that it is the most “environmentally benign” of the economic generation alternatives548, it complements Meridian‟s hydro portfolio549, and it aligns with government policy settings550. Mr Muldoon stated that “...wind has very substantial environmental and socio-economic benefits” and that the costs are “...essentially a subjective response to the visual and landscape effects”551. In his rebuttal Mr Muldoon claimed that the Lammermoor wind farm will deliver „major benefits‟ to South Island consumers and the

electricity market as a whole in “improving security of supply and placing downward pressure on electricity prices”552. In response to questions from the Court Mr Muldoon clarified that this does not mean the Lammermoor wind farm would cause or contribute to a decrease in electricity prices but it will “hold the price”553. We discuss this further in the next chapter.

5.2.3 Reducing carbon emissions

[337] Mr Muldoon put the CO2 emissions avoided, if the Lammermoor wind farm was built, at 1.280 million tonnes per annum554. Dr Denne explained that the economic benefit to New Zealand in terms of reduced carbon emissions flows directly from New Zealand‟s ratification of the Kyoto Protocol555 and the intention to meet the commitments under the Protocol556. It is clear from this that the economic benefit has been severed from the debates about the environmental effects that may flow from the Kyoto Protocol, or indeed from the debates surrounding climate change generally. This

was confirmed by Dr Denne in cross-examination when he stated that emissions trading

547 Mr A J Muldoon, evidence-in-chief pp 4-7 [Environment Court document 26].

548 Mr A J Muldoon, evidence-in-chief para 10.8(c) [Environment Court document 26].

549 Mr A J Muldoon, evidence-in-chief para 10.8(d) [Environment Court document 26].

550 Mr A J Muldoon, evidence-in-chief para 10.8(f) [Environment Court document 26].

551 Mr A J Muldoon, evidence-in-chief para 10.10 [Environment Court document 26].

552 Mr A J Muldoon, rebuttal evidence para 1.37 [Environment Court document 26A].

553 Transcript p. 962.

554 Mr A J Muldoon, evidence-in-chief para 10.13 [Environment Court document 26].

555 Dr T Denne, evidence-in-chief para 14 [Environment Court document 29].

556 Dr T Denne, evidence-in-chief para 19 [Environment Court document 29].

has “turned an environmental objective into an economic objective”557. The Court put to Dr Denne558 that the economic benefits of an emissions trading scheme flow from the Kyoto agreements and trading in Kyoto units. Dr Denne agreed and stated:

... the fact that New Zealand has signed up to Kyoto and intends to meet its commitments, means

that there are economic benefits in New Zealand from a reduction in emissions here.

We understand the effect of the Kyoto Protocol to be that New Zealand gains economically while the environmental benefit is global, and that the benefits to New Zealand flow from our commitment to the Kyoto Protocol, independent of any emissions trading scheme.

[338] Under the Protocol, New Zealand has an allocation of allowed carbon emissions (309.5 million Kyoto units) for the period 2008 - 2012559. To the extent that New Zealand has a higher level of carbon emissions the country is required to purchase Kyoto units from other countries. Any reduction in emissions either reduces the number of Kyoto units that have to be purchased or creates a surplus of Kyoto units, which can then be sold. Kyoto units trade at a price and this price sets the value of any reduction in carbon emissions560. Dr Denne informed us that the Kyoto commitments are to be internalised through the mechanism of the Emissions Trading System (ETS) set up by the Climate Change (Emissions Trading and Renewable Preference) Bill561. This establishes New Zealand Units equivalent to Kyoto units, which will be traded at the same price as Kyoto units562. Electricity generation using carbon-emitting fuels and technology will incur the cost of the New Zealand units required to account for their emissions. Non-emitting generation will not. Carbon-emitting generators are expected to pass on the cost of the required units in their offer prices, causing an increase in the wholesale electricity price and increased profitability to non-emitting generators563. We

discuss Dr Denne‟s quantification of these factors in the next chapter.

557 Transcript p. 1206.

558 Transcript, p. 1210.

559 Dr T Denne, evidence-in-chief para 15 [Environment Court document 29].

560 Dr T Denne, evidence-in-chief para 19 [Environment Court document 29].

561 Dr T Denne, evidence-in-chief para 26 [Environment Court document 29].

562 Dr T Denne, evidence-in-chief para 28 [Environment Court document 29].

563 Dr T Denne, evidence-in-chief para 30-31 [Environment Court document 29].

5.2.4 Complementarity of wind to hydro

[339] Several witnesses proposed that generation by the Lammermoor wind farm would allow synergies between wind and hydro generation to be obtained. Mr Waipara stated564:

...hydro generation...is an ideal compl[e]ment to wind generation. In simple terms, hydro generation can be utilised to firm wind by increasing electricity generation at times when the wind doesn‟t blow. Moreover, hydro generation can also be reduced at times when wind generation is operating at high output levels. It is this ability of hydro generation to flexibly moderate its output across a day in response to wind generation variations that makes the two technologies an ideal compli[e]ment to one another.

He restated this in his rebuttal evidence in the context of a discussion on the costs of wind integration565, then went on to state that “...the New Zealand system has an abundance of hydro capacity that can be employed over short time horizons to manage or balance the output of a wind farm”. Mr Muldoon endorsed this when outlining Meridian‟s reasons for developing significant wind generation capacity, although he restricted his assessment of the benefits of wind-hydro complementarity to within the Meridian generation portfolio566. He went further in his rebuttal evidence when he stated567:

Meridian[‟]s strategy is to unlock the flexibility of the hydro system with storage to meet the short term peak demand – a role which hydro is extremely good at fulfilling. ... The combination of the Waitaki system with Hayes (the short term flexibility of hydro and the long term predictability of wind) makes the overall system work.

[340] The witnesses for the Crown reiterated the same theme. Mr Gurnsey in the context of the dry year risk stated568:

One of the considerable advantages of electricity generated by wind is that it can help complement hydro-generation. Typically there is still wind available in dry years or expected

periods of low rainfall, enabling water to be conserved.

564 Mr G M T P Waipara, evidence-in-chief Appendix A, para 98 [Environment Court document 25].

565 Mr G M T P Waipara, rebuttal evidence paragraphs 19-25 [Environment Court document 25A].

566 Mr A J Muldoon, evidence-in-chief para 10.8(d) [Environment Court document 26].

567 Mr A J Muldoon, rebuttal evidence para 1.26 [Environment Court document 26A].

568 Mr P F Gurnsey, evidence-in-chief Attachment One, page 4 [Environment Court document 39].

Mr Calman stated569:

Wind energy can complement hydro-generation and reduce the impact of dry years. Even if there is little rain, there is usually still wind, allowing water in hydro lakes to be conserved. . . . Hayes, with its proximity to the Waitaki hydro system, would be in a good position to enable smooth integration with hydro and would help to ensure continued electricity supply during dry periods.570 . . . Hydro generators can respond quickly to changes in generation requirements, in the event that there is not enough electricity being generated, and can store water when the wind is blowing for later use.

[341] Mr Boyle stated that wind and hydro generation are complementary: “when the wind is blowing, hydro generation can be reduced, water conserved and wind spill reduced”571. From this we gather that the benefit of the complementarity works in favour of wind generation, allowing the maximum output of a wind farm to be achieved. It suggests that there is a benefit external to the wind farm in terms of the potential for hydro generators to conserve water for later use. Mr Calman reiterated this view when he said that572 “[e]ven if there is little rain, there is usually still wind, allowing water in hydro lakes to be conserved”. Mr Boyle wrote that taking advantage of this complementarity makes commercial sense when one generator has both hydro and wind generation facilities. He noted that, although this was still possible through the market operations when there were different owners of the different generation types, transaction costs may prevent it573.

[342] However, we agree with Mr Leyland574 that the utility of wind power being complementary to hydro power is reduced by the seasonal distributions of the wind resource and of hydro lake inflows or lake levels. We acknowledge that for complementarity to be effective there must be hydro storage available when the wind blows and water available for generation when it does not. The situation will vary from

year to year.

569 Mr S D C Calman, evidence-in-chief para 32 [Environment Court document 40].

570 Mr S D C Calman, evidence-in-chief para 29 [Environment Court document 40].

571 Mr T A George, evidence-in-chief para 83 [Environment Court document 37A].

572 Mr S D C Calman, evidence-in-chief para 29 [Environment Court document 40].

573 Mr T A George, evidence-in-chief para 84 [Environment Court document 37A].

574 Mr B W Leyland, evidence-in-chief para 42 [Environment Court document 80].

[343] Complementarity of wind and hydro generation was discussed by Professor Strbac in his evidence-in-chief and reflected his wind integration study for Meridian575. That study considered scenarios based on measured wind and water flows for 2005. This was the year with the lowest average wind speed for the period 1995 to 2006 and was also a dry year. Generally complementarity would thus be expected to be low for the scenarios. One of the scenarios, termed the Southland scenario, tested the impact of

installing significant quantities of wind generation in the lower South Island. Results of the study showed that capacity-related additional costs were modest for up to 8% more penetration by wind. Professor Strbac ascribes this to the large amount of hydro generation in the South Island and its ability to deal with the inherent variability of wind generation. Professor Strbac made the further point576 that while the amount of hydro generation greatly exceeds the amount of wind generation it is only at peak times that complementarity between wind and hydro becomes an issue with respect to system reliability. These times occur only for a few hours each day. We find that complementarity while present is very likely to be only a minor positive benefit of a

wind hydro system to be put in the scales when weighting the costs and benefits.

[344] There are two important conclusions to be drawn from Professor Strbac‟s evidence which did not seem to be fully understood by the appellant Mr Sullivan or his witnesses. First that windpower does not solve the problems posed by a shortage of energy at peak times in the winters of dry years. We think Mr Sullivan agreed with that. Despite that, the second conclusion – supported by Professor Strbac‟s report – is that for up to 20% penetration by wind of the energy supply market, windpower significantly reduces the risk of system failure at those critical times. The reason for the first conclusion is of course that the wind may not be blowing at peak times in dry winters; the reason for the second is that the wind may be blowing somewhere within a

wind farm or on a different wind farm.

575 Submitted with Mr G M T P Waipara‟s rebuttal evidence [Environment Court document 25A].

576 Professor G Strbac, evidence-in-chief paragraphs 5.21 and 5.24 [Environment Court document 48].

[345] The project may take five years to construct and commission577. At any one time there could be 150 construction workers578 on site over that period. The majority of that workforce is likely to come from Otago and Southland with „... specialized support‟ from New Zealand and overseas579.

5.2.6 Tourism attraction

[346] Meridian‟s recreation expert Mr R J Greenaway stated that the wind farm is “... highly unlikely to have any effect – positive or negative – on recreation or tourism use of any area ... away from the Lammermoor ...”580. As for visitors to the Lammermoor

itself he wrote that581:

This means, the proposed wind farm as a tourism product is likely to respond to how it is promoted. If the development is treated as an opportunity and promoted as a sustainable form of land-use and an attraction, it will be one; albeit not a major destination as result of its access issues. If it is described as a negative in tourism literature, tourist perception will likely respond accordingly.

For example, Mr Greenaway regarded the proximity (60 metres) of the nearest turbine to the Old Dunstan Road just above the descent to Paerau as beneficial because it will “reduce the need for visitors to traverse tussock land and/or private land to gain a close view, ... and it is almost certain that many visitors will seek this experience”582.

[347] There is no doubt in our minds that the proposed turbines would have a simple, elegant sculptural quality, and that the scale of the proposed project would, upon completion, make a very impressive sight. Some people would find pleasure both in viewing the farm in itself and, as Ms Steven wrote, for “what it symbolises in terms of

progress, technical success and use of renewable energy”583.


  1. Mr P A Wilson, Project Manager for Meridian, evidence-in-chief para 3.1 [Environment Court document 57].

578 Mr P A Wilson, evidence-in-chief para 3.1 [Environment Court document 57].

579 Mr P A Wilson, evidence-in-chief para 3.5 [Environment Court document 57].

580 Mr R J Greenaway, evidence-in-chief para 4.41 [Environment Court document 59].

581 Mr R J Greenaway, evidence-in-chief para 4.40 [Environment Court document 59].

582 Mr R J Greenaway, evidence-in-chief para 5.2 [Environment Court document 59].

583 Ms E A Steven, evidence-in-chief para 27.15 [Environment Court document 9].

[348] In Mr Greenaway‟s opinion584, except for temporary displacements during construction, the wind farm “will not affect the ability to carry out any of the existing recreational activities” on the Lammerlaw, Lammermoor or the Rock and Pillar Ranges, and recreational effects are limited to visual amenity effects. The visual amenity effects “will cause a shift in the characteristics of the recreational setting ... (and) will modify the level of supply of particular types of recreation settings in Otago”585. Although relying on Mr Rough‟s assessment of the visual amenity impact on the area as “substantial”, Mr Greenaway was not convinced586 that this would result in “notably reduced use” by those seeking a rural or back country experience. He considered angling likely to be the least affected activity as the productivity of the fishing would not be altered. He acknowledged that some displacement to other high country destinations was likely for those seeking a relatively remote experience, and that this would incur additional travel input. He suggested the Poolburn Reservoir, Lake Onslow, the Old Man Range and the Garvie Mountains as likely alternatives. He considered Otago has a “high level of recreation setting substitutability” and that the effect on regional recreation will be low. However, he also acknowledged in cross-examination587 that the Garvie Mountain alternative he suggested is “a longer drive ... two to three times (longer)” than the Lammermoor for people coming from Dunedin.

[349] We agree with Mr Greenaway that all the many recreational activities that are currently exercised on the Lammermoor (with the possible exception of hang-gliding) will be able to be undertaken under, round, between or in sight of the wind farm. However, we have three difficulties with his general approach. First, we agree with Ms Kelly‟s submission that the value that many people get from their recreation on the Lammermoor will be diminished by the presence of the wind farm. Secondly, we are not convinced by Mr Greenaway‟s principle of substitutability when it is applied in practice. For example, we do not consider that cross-country skiers from Dunedin who

pick a fine winter‟s day to go skiing can simply substitute the Old Man Range for the

584 Mr R J Greenaway, evidence-in-chief para 4.1 [Environment Court document 59].

585 Mr R J Greenaway, evidence-in-chief para 4.26 [Environment Court document 59].

586 Mr R J Greenaway, evidence-in-chief para 4.33 [Environment Court document 59].

587 Transcript, p. 2430.

Lammermoor Range. Thirdly, we are not convinced that all recreation is equal. In our opinion some recreation may contribute more than other types to people‟s welfare. For example, it is arguable that activities like walking, mountain-biking, cross-country skiing, angling and horse-riding contribute more than quad-biking or merely sight- seeing by car. Further, for those people who are car-bound there will be ready substitutes whereas for the more active recreationalists it is likely that there are not.

[350] We consider that the value of the recreational experience will be reduced to a more than minor extent, and we consider the issue of quantifying that loss in value in Chapter 6.0.

5.3 Predictions about the effects of climate change

[351] Climate change is an extremely complex subject and we are very reluctant to enter a discussion of its causes, and directions and magnitude without a clear direction from Parliament that we should do so. There is none: as discussed in Chapter 3.0

Parliament directs us to assume there is climate change attributable to human causes and to move on from there. That leads us to consider the (very limited) evidence about possible changes to the site envelope and the surrounding area as a result of climate change.

[352] Mr Rennie588 informed us that the life expectancy of a wind turbine is 25 years

but with the “benign conditions” of the Lammermoor site one could reasonably expect

30 years. Witnesses who provided quantitative estimates of climate change did so on time scales much greater than the 35 year life of the first generation of turbines. For example, Dr Wratt gave figures for the Otago region for the year 2090589. It would be unwise to try and estimate values for 35 years hence and we decline to do so. There may be a warming or cooling, increased or decreased rainfall and changes in wind characteristics over the 35 years. Insofar as they affect the operation of the wind farm the effects are Meridian‟s concern. Our concern in this respect is limited to whether climate change over the 35 year term would impact on the outcome of the cost benefit

analysis for the project that we undertake in Chapter 6.0. Within that time frame we

have no evidence as to how climate change may affect the wind resource. Therefore we

588 Mr H Rennie, closing submissions para 379 [Environment Court document 93].

589 Dr D S Wratt, evidence-in-chief paragraphs 35 and 38 [Environment Court document 28].

can only assume that there will be no net effect of climate change on the cost benefit analysis over that time period.

[353] Any other concerns relate to the potential effects on the flora and fauna of the site and on recreational activities in and around the site. No witness suggested that there would be any effects of climate change in these areas.

[354] In having regard to the effects of climate change we can consider how these effects might be reduced. We have accepted that anthropogenic induced increases in carbon dioxide concentrations in the atmosphere contribute to climate change. Thus using wind generation rather than carbon emitting generation of electricity will reduce climate change and its effects. Meridian‟s proposal would thus contribute to reducing the effects of climate change as defined in the Act. Under section 7(i) of the RMA we see it as appropriate to consider this aspect of the proposal as a benefit to be included later in our final assessment under Part 2 of the Act.

[355] Other effects of climate change include the Kyoto Protocol and its attendant

responsibilities, proposals for carbon charging and the government‟s commitment to

90% renewable generation of electricity by 2025. We consider this under section 7(b)

of the RMA in Chapter 6.0.

5.4 Earthworks, erosion and sedimentation

5.4.1 Overview

[356] On the issues of earthworks and the potential for erosion and sedimentation cross-examination of the experts for Meridian by the opposing parties focussed on the likelihood and effect of extreme events, the presence of snow and ice for long periods, the difficulties with revegetation of disturbed areas, the selection of fill sites and the possibility of sedimentation in the Logan Burn reservoir and the Taieri scroll plain. No expert evidence on erosion and sedimentation was produced by those opposed to the wind farm. Mr Douglas did produce evidence on these issues but did not claim expertise in the subject. The Court agrees these are all important issues which deserve close consideration and we discuss those in the context of the proposed management plans shortly.

5.4.2 Earthworks remediation

[357] There will be a substantial volume of earth moved in the development of this project. For a start the 176 turbine platforms (each 20 m x 25 m) will typically require

1.5 to 3 metre excavation cut depths with certain sites up to five metre depth590 to create

a working platform and/or interface with access roads. Turbine platform construction is likely to generate a volume of 264,000 m3 of spoil. There is also a perimeter drain formed to collect stormwater591. Basecourse is left in situ to assist with future component needs592.

[358] Approximately 150 km of internal access roads (including Pylon Road and

Reservoir Road) will be required to access the sites with 100 kilometres following existing tracks593 and 50 kilometres of new roads. Of this roading:

2009_29301.jpg Approximately 133 kilometres, or 89%, will be on ridgelines and broader flat areas with cuts up to 1.5-2 metres;

2009_29301.jpg Approximately 8 kilometres, or 5%, will be on gentle cross slopes with cuts of 3-4 metres;

2009_29301.jpg Approximately 4.5 kilometres, or 3%, will be on steeper cross slopes with

cuts of 6-7 metres.

Mr Coulman wrote594 that internal access roads between turbines would have a running surface ten metres wide, with access routes from the public road network or between main turbine groups a nominal five metres width with localised widening on tight corners.

[359] Temporary “fit-to-purpose” access tracks three metres wide will be constructed from core roads to the transmission tower locations. The tracks will use-underlying

substrate but may require upgrading with basecourse material. We are not sure how long

590 Mr A J Coulman, evidence-in-chief para 9.12 [Environment Court document 30].

591 Mr A J Coulman, evidence-in-chief para 9.13 [Environment Court document 30].

592 Mr A J Coulman, evidence-in-chief para 9.18 [Environment Court document 30].

593 Mr A J Coulman, evidence-in-chief para 3.4 [Environment Court document 30].

594 Mr A J Coulman, evidence-in-chief para 2.16 [Environment Court document 30].

these tracks are intended to be595 and therefore cannot assess the areas of clearance or volumes of fill needed.

[360] The external access road is the Old Dunstan Road from Clarks Junction. That road will have the following changes, mostly outside the CODC boundaries made to it:

2009_29301.jpg Typical widening of existing 3-5 metres unsealed surface to 5 metres (0-66% increase) over 29.2 kilometres of 31.4 kilometres being upgraded (93% of the total route);

2009_29301.jpg Widening between 5-7.5 metres for 0.8 km (2.5%);

2009_29301.jpg Widening between 7.5 metres –10 metres for 0 .6 kilometres (2.0 %); 2009_29301.jpg Widening 10 metres for 0.8 kilometres (2.5%)596

2009_29301.jpg Significant variation is envisaged at Sutton Stream, Stony Creek and the


initial section of the Old Dunstan Road totalling over 1.8 kilometres (6%).

Again these changes are proposed to be mitigated by narrowing the road after construction of the wind farm. A major bridge over Suttons Creek within Dunedin City appears to be necessary at the foot of the eastern scarp of the Lammermoor. While many of the proposed works along Old Dunstan Road can probably be carried out within the road reserve as permitted activities, it seems that the bridge over Suttons Creek would require resource consent from the Dunedin City Council. We are concerned that was not applied for at the same time. It should have been for the reasons given in Affco

NZ Limited v Far North District Council No. 2597, but we acknowledge that is likely not

to be a critical issue.

[361] Other activities requiring earthworks for which we have not been given a volumetric assessment include:

2009_29301.jpg the fire substations;

2009_29301.jpg sediment control measures;

temporary office and batching plant facilities;

595 Mr A J Coulman, evidence-in-chief para 9.19 [Environment Court document 30].

596 Mr A J Coulman, evidence-in-chief Appendix 4 para 4 [Environment Court document 30].

597 Affco NZ Limited v Far North District Council No. 2 [1994] NZRMA 224.

2009_29301.jpg laydown areas;

2009_29301.jpg basecourse borrow pits and crushing platforms;

infrastructure related to the internal transmission.

Given the overall scale of the project the majority of us consider these are likely to have minor effects if mitigated as proposed.

5.4.3 The proposed management plans

[362] Meridian has recognised the potential for adverse effects associated with the proposed earthworks and the necessity for mitigation of these effects. It proposes to control and thus mitigate erosion and sedimentation effects through the development and implementation of the CEMP and a series of Supplementary Environmental Management Plans (“SEMPs”). The CEMP is proposed as an umbrella document that identifies the management processes and techniques to ensure appropriate environmental management of the site. The SEMPs include details of the erosion and sediment control measures to be used in specific locations or in association with nominated activities. The use of such plans is a standard procedure for large civil engineering works such as those proposed for the Meridian site. This approach was not challenged by any party.

Review of the proposed management plans

[363] The conditions imposed by the earlier joint hearing required a CEMP and sixteen SEMPs. Eleven of the SEMPs were to deal with particular sections of the site598 and five were to deal with specific activities including the concrete batching plant and the construction of substations. Issues that as a minimum must be addressed in each plan were set out in detail within the conditions. The conditions also require the CEMP and the SEMPs to be developed in consultation with ecological and hydrological experts and then submitted to the CODC and ORC for approval one month before any work is undertaken.

[364] In his role as a reviewer Mr R B O‟Callaghan considered the list of items to be

included in the CEMP as set out in the conditions imposed by the Joint Hearings panel.

598 Mr R B O‟Callaghan, evidence-in-chief Appendix 1 [Environment Court document 32].

He concluded599 that the requirements were appropriate for the site and the proposed activity. With respect to the SEMPs he stated600 that the proposed framework will allow construction activities to take place in an environmentally acceptable manner. No arguments to the contrary were advanced and thus we accept his evaluation.

[365] Meridian‟s experts pointed to experience gained at Te Apiti, Makara and White Hill wind farms as providing a foundation upon which to develop and implement the CEMP and the SEMPs for the Meridian site on the Lammermoor. It is thus necessary to consider the similarities and differences between these sites before accepting the previous experience to be relevant and appropriate. Mr O‟Callaghan helpfully provided a table601 in which the physical characteristics of Meridian‟s four wind farms are set out. The volume of earthworks estimated for the Lammermoor site, while somewhat greater in absolute terms than the volumes noted for the other farms, is much less in terms of per turbine and thus per unit area of project site. Further, the construction is to be staged

over a period of five years compared to construction periods of two years or less for the other three farms. Differences in slope, site stability and geology all favour the Lammermoor site. The differences in geology are important with respect to erosion. The schist materials of the Lammermoor site contain a much larger proportion of rock and less fine grained material than the soils at Te Apiti. They will therefore be less prone to erosion and will be easier to control by using settling basins.

[366] Mr O‟Callaghan‟s conclusion was that it will be easier to manage erosion and sediment control at the Lammermoor site than at Te Apiti and that the problems at the Lammermoor site will be similar to those encountered and managed at the White Hill and Makara sites. The major problem with the Lammermoor site is the altitude which, being 800 masl to 1000 masl, is up to twice the altitude of the other wind farms and is likely to introduce problems not met at those farms. Coping with snow and ice and revegetation problems are cases in point. The Court agrees with Mr O‟Callaghan‟s conclusion apart from the perceived problems arising from altitude. Those are

discussed later in this section of the decision.

599 Mr R B O‟Callaghan, evidence-in-chief para 4.10 [Environment Court document 32].

600 Mr R B O‟Callaghan, evidence-in-chief para 4.11 [Environment Court document 32].

601 Mr R B O‟Callaghan, evidence-in-chief para 6.20 [Environment Court document 32].

Erosion and sediment control guidelines

[367] Condition 23(c) of the CODC consent for the Lammermoor site requires the SEMPs to be prepared in accord with the Erosion and Sediment Control Guidelines for the Greater Wellington Region dated September 2002. Condition 4 of the ORC consent has the same stipulation. The wisdom of this was queried both in cross-examination and by the Court. Mr O‟Callaghan addressed this issue in his assessment of Meridian‟s proposals for sediment control. He considered that the Wellington guidelines were more

appropriate than the alternative Auckland Regional Council guidelines because602:

...(Wellington) guidelines are comprehensive, they have proved to be effective on numerous large earthworks projects and the nature of the soils expected to be encountered at Project Hayes are closer to the soils of the Wellington and Manawatu regions than the soils in the Auckland Region.

Mr Levy, for the ORC, noted that the erosion and sediment control guidelines that have been prepared in New Zealand are based on well-established principles drawn from overseas practice and local experience603. In his view any one of the Auckland, Canterbury or Greater Wellington Regional Council guidelines could be applied to the Lammermoor site. By way of explanation Mr Levy drew particular attention to the rainfall intensity experienced on the site, being only 60% of that in Wellington. Given

that rainfall intensity is a key driver of erosion Mr Levy concluded that using the Wellington guidelines for the sizing of treatment measures will be a conservative approach. He concurred with Mr O‟Callaghan‟s comments that the soil type at the Lammermoor site will make sediment control feasible using the Wellington guidelines. The Court has no concerns over this approach to sediment control design because of its conservatism.

Basecourse material

[368] Mr Coulman604 expected to source basecourse material for construction of the internal access roads from within the site. Some would be obtained from excavations for the roads and turbine foundations or from borrow areas. Mobile crushing plant and

screens would process the material on site. The quantity of basecourse available within

602 Mr B R O‟Callaghan, evidence-in-chief para 6.2 [Environment Court document 32].

603 Mr G J Levy, evidence-in-chief para 13 [Environment Court document 68].

604 Mr A J Coulman, evidence-in-chief para 9.9 [Environment Court document 30].

the site will be determined at the design stage following geotechnical investigations. We thus have no information as to the quantity of material that may be involved nor as to the possible size and location of the borrow areas. There was no mention of how these areas would be treated following construction.

[369] It is possible that the obtaining, transporting and processing of the basecourse material will be a major on-site operation with attendant sedimentation and revegetation issues. We believe that a SEMP for this activity is warranted. Should the project proceed we will thus add “Obtaining and Processing of Basecourse Material” to the list of activities requiring a SEMP.

Disposal sites

[370] Excavation volumes for access roads and turbine foundations are estimated605 to be 1.27x106 m3 and 2.6x105 m3 respectively. These figures include modifications to the northern end of the Old Dunstan Road which have since been removed from the proposal. Some of this material will be used as fill on site, a “cut-to-fill” approach, and

the remainder it is proposed to place in disposal sites. Assuming a “cut-to-waste” approach and that all the material (a total of 1.5x106 m3) is surplus, Meridian calculated that 1 km2 at an average depth of fill of 1.5 metres will be required. This is a most conservative assumption and represents 1.1% of the site area. More than 100 possible disposal sites are shown on Exhibit 3.6606.

[371] The final choice of disposal sites will be based on an assessment of earthworks, ecological and environmental factors and a list of criteria set out by Mr Coulman607. Mr M J Dale for the ORC suggested608 a list of experts whom he considers should form an independent panel to assess, amongst other matters, the location of disposal sites. Mr O‟Callaghan suggested609 a more modest listing for such a group. We prefer Mr O‟Callaghan‟s listing which includes appropriate ORC staff (Mr Dale suggested they be from the Resource Science Unit of the ORC and we concur), the land owner and

Meridian‟s ecological and environmental specialists. The presence of ORC staff, the

605 Mr A J Coulman, evidence-in-chief para 9.2 [Environment Court document 30].

606 Produced by Mr Rough.

607 Mr A J Coulman, evidence-in-chief para 6.3 [Environment court document 30].

608 Mr M J Dale, evidence-in-chief para 24 [Environment Court document 63].

609 Mr R B O‟Callaghan, evidence-in-chief para 4.9 [Environment Court document 32].

professional approach expected by the Court of technical people and the requirement that the selection of sites, as part of an SEMP, must be approved by the ORC and CODC should allay Mr Dale‟s concerns about independence of the group.

[372] Mr Coulman610 set out the disposal site construction and rehabilitation process. This includes installation of erosion and sedimentation control measures, stripping and stockpiling of top soil, forming the fill surface to blend with the surrounding terrain, and replacing the top soil which would be hydroseeded. The sediment control devices will be maintained, monitored and audited on a regular basis. We would expect the material contained in this Appendix 2 to be incorporated into each of the location specific SEMPs.

[373] The Court looked at disposal sites on its visits to White Hill and Te Apiti. All had either been successfully revegetated and blended well with the landscape or were in the process of revegetating. We do not overlook the higher altitudes at the Lammermoor site and the associated revegetation problems discussed elsewhere in this decision. They may require the sedimentation control methods to remain in place for a considerable period of time and possibly for the life of the project. The SEMPs contained in the Councils‟ decisions require reference to be made to the removal and decommissioning of sediment control measures. Adding the requirement that ORC approval be obtained before any sediment control measures associated with disposal sites are decommissioned is desirable. This would be a condition of any consent approved by this Court.

[374] Mr Douglas advocated trucking the surplus material to “suitable valley floor paddocks” for disposal611. During cross-examination by Mr Logan, Mr Patrick also advocated trucking surplus material off site rather than covering up to 100 hectares of disposal area612. The logistics of such an exercise, including the construction of a suitable road from the Lammermoor to the valley floor, strongly militate against it. The

Court sees the suggestion as impractical.

610 Mr A J Coulman, evidence-in-chief Appendix 2 [Environment Court document 30].

611 Mr J W Douglas, statement of evidence on construction para 5.4 (23 July 2008) [Environment

Court document 72B].

612 Transcript, pages 3203-4.

Extreme events

[375] Parties opposed to the Lammermoor site quite properly raised the issue of the ability of the proposed sediment control measures to cope with extreme events. No evidence was produced to document or quantify these extreme events so the cross- examination of Meridian‟s witnesses and their replies lacked specificity and were of a general nature only. The Court acknowledges that extreme events will occur over the project site and they must be considered.

[376] Sediment control devices are designed to operate most efficiently under specified conditions. These are normally related to large but not extreme events. The latter are catered for by measures which operate only during these events. They include managed overflows with higher sediment concentrations and discharges to vegetated areas which can capture the entrained sediment. No evidence was produced to discredit this approach. Dr Richard Allibone, a senior ecological consultant with Golder Associates (NZ) Limited, considered the possible effects of unexpected failure of sediment control structures including as a result of extreme events. It is his experience that the aquatic ecosystems in the upper Taieri catchment are robust and recover rapidly from sudden

injections of sediment into streams and rivers613. We have no reason to doubt this

assertion.

[377] It is during the detailed design phase and the development of the SEMPs that close consideration will be given to expected magnitudes, frequencies and durations of extreme events. The final designs will reflect this analysis and be subject to the approval of both Councils. The Court believes this is the correct approach and has no major concerns about it. We accept that streams are able to recover from one-off storm events but remain unsure as to whether revegetation can provide sufficient entrapment to avoid raising sedimentation levels in the currently pristine stony bottomed streams. Fertiliser is recommended for plant growth by Meridian witnesses but as fill sites are invariably in gully headwaters this aid is not recommended because of the potential for

eutrophication of the streams.

613 Dr R M Allibone, evidence-in-chief para 6.12 [Environment Court document 33].

Snow and ice

[378] Mr Carr cross-examined Meridian‟s experts at length on the issue of how the sediment control devices would cope with the heavy snowfalls experienced on the site and with the frequent icy conditions. It become clear that Mr O‟Callaghan had given little thought to these problems614. Further, Mr O‟Callaghan acknowledged his lack of experience in such conditions615. In response to Mr Carr‟s questions, Mr O‟Callaghan

took the opportunity to describe how he would deal with the problem of ice formation on the settling ponds616. He then expressed confidence that the problem “can be quite relatively easily managed” by virtue of the geometry of the ponds and their entry configuration. He concluded617 that:

...on this site the entry of water into the pond in an ice situation would need to be dealt with as part of the design of the inlet to the pond, and I might say, the outlet to the pond.

We agree and thus endorse the ORC suggestion that the requirement for the:

Design and maintenance of the erosion and sediment measures shall take into account the effect of freeze and thaw of ice and snow

– be inserted into the specification for the SEMPs. The Councils will thus have the opportunity to consider the design proposals as part of their approval process for the SEMPs.

5.4.4 Sedimentation in rivers

[379] Mr Douglas noted618 that the Taieri Scroll Plain wetlands are gradually filling up with current sediment flows. His concern is that the earthworks at the Lammermoor site will accelerate this process. A similar situation no doubt exists at the Logan Burn Reservoir which acts as a permanent sediment trap, i.e. no sediment will be passed from

the reservoir to the Taieri river. Any sediment that reaches the Scroll Plain from the

614 Transcript, p. 1407.

615 Transcript, p. 1401.

616 Transcript, p. 1408.

617 Transcript, p. 1410.

618 Mr J W Douglas, statement of evidence on construction para 4.8 (23 July 2008) [Environment

Court document 72B].

project site must have originated from the western section. Possible sources are roadworks, excavations for turbines and from disposal sites.

[380] Meridian is relying on the methods proposed for sediment control to minimise the sediment contribution even in storm events. From observations619 made by Dr Allibone we consider it is likely that this will be achieved. He pointed out that the site is in a comparatively low (with respect to other parts of the upper Taieri catchment) rainfall area and thus the potential for construction and operation of the wind farm to affect catchment scale run-off or water quality is very limited. Any effect on the filling up of the wetlands of the Scroll Plain feared by Mr Douglas is likely therefore to be minimal.

[381] Dr Allibone drew our attention to possible effects on the fauna, including endangered species, in the small streams in and around the project site. He then stated620:

It is therefore my experience that high sediment input events in the Taieri River system, while appearing dramatic and significant to the eye, rarely have significant deposition impacts or consequential impacts on aquatic ecology in these hill country streams. On occasions the high flows do reduce population densities ... However biodiversity values (such as threatened fish) are not lost, and recovery is rapid.

We respect Dr Allibone‟s expertise in these matters and accept his predictions on the

likely effects on biodiversity values after occasional high sediment input events.

5.4.5 The agreed statement of facts, recommended modifications and our conclusions [382] There is an agreed statement signed by Mr O‟Callaghan and Mr Levy621. It sets out modifications to the conditions imposed by the Joint Hearing Committee relating to the management of construction and storm water discharge. We endorse these modifications and would expect to see them incorporated into consent conditions should

the consent for the Lammermoor site be confirmed.

619 Dr R M Allibone, evidence-in-chief para 3.5 [Environment Court document 33].

620 Dr R M Allibone, evidence-in-chief para 6.12 [Environment Court document 33].

621 Exhibit 32.1.

[383] Mr Levy622 gave a more extensive list of modifications which he recommends be made to the Joint Hearings Panel‟s conditions. Some form the basis of the agreed statement just discussed. There are others the Court would make if it confirms the resource consents. These are:

(1) A new condition be inserted in the CODC and ORC consents as recommended to read “All sediment control measures shall be retained on each earthworks site until that area is fully stabilised to the satisfaction of the consent authority”.

(2) The provisions of the CODC condition 42 should apply also to the ORC consent, in regard to monitoring, and particularly trigger levels and mitigation responses.

(3) Condition 20 of the CODC consent should be a condition of all ORC

consents.

(4) A new condition be inserted in the CODC and ORC consents as recommended to read:

There shall be appropriate fencing of each construction site to exclude stock from the site until such time as the site is stabilised and revegetation has fully established.

(5) The following words be added to clause 6 of ORC consent 2006.488:

“and, where necessary, fully stabilised”.

(6) A new condition be added to the CEMP as follows:

Design and maintenance of the erosion and sediment measures shall take into account the effect of freeze and thaw of ice and snow.

[384] There is much detailed design of erosion and sediment control procedures and devices to be completed. Under the CEMP/SEMPs approach all this work will be subject to the approval of both Councils. The Court thus expects robust and practical management plans to be developed. Their implementation and monitoring will be of particular importance in ensuring the required environmental outcomes are achieved. The conditions imposed by the Councils‟ Commissioners supplemented as set out in the

previous paragraph are sufficient to enable the necessary monitoring. We note also the

622 Mr G J Levy, evidence-in-chief Schedule 1 [Environment Court document 68].

opportunity to implement section 128 of the RMA is contained in the conditions set by

the Councils‟ Commissioners.

[385] The Court sees no reason to decline consent for the Meridian wind farm on the basis of concerns about erosion and sedimentation issues provided we are satisfied as to the outcome of the revegetation programme (discussed shortly).

5.5 Ecological effects: flora – damage and restoration

5.5.1 The earthworks

[386] The flora of the Lammermoor will be affected by earthworks required for:

(1) Substations

2009_29301.jpg Spillers (76 metres x 85 metres)

2009_29301.jpg Airstrip (105 metres x 115 metres) 2009_29301.jpg Yards (105 metres x 155 metres) 2009_29301.jpg Styx 1 (20 metres x 160 metres)

2009_29301.jpg Sluicings (270 metres x 110 metres )623

(2) Mounding around Styx substation624;

(3) Services building located outside substation fence625; (4) Turbine platforms626;

(5) Fill sites for excess earth from platforms for turbines and cranes, substation yards, borrow areas, roads, sediment ponds, temporary laydown areas and offices, and batching plants;

(6) Roads

2009_29301.jpg 150 km internal roads including Pylon and Reservoir Roads627; 2009_29301.jpg Old Dunstan Road;

2009_29301.jpgtemporary haulage tracks 3 metres wide628;

(7) Transmission lines being:

2009_29301.jpg transmission line (buried); and

623 AEE Volume 1, para 5.7.

624 Mr P Rough, evidence-in-chief para 205(j) [Environment Court document 3].

625 AEE Volume 2, Appendix B para 4.2.9.

626 AEE Volume 2, Appendix B para 4.1.1.

627 Mr A J Coulman, evidence-in-chief para 9.2 [Environment Court document 30].

628 Mr A J Coulman, rebuttal evidence para 5.3 [Environment Court document 30].

2009_29301.jpg poles or lattice tower foundations for transmission lines and connection to Roxburgh-Three Mile Hill line;

(8) Temporary office facilities workshop, stores, and laydown areas; (9) Stockpile areas629;

(10) Batching plant facilities;

(11) Three meteorological monitoring masts630;

(12) Erosion control for the sediment detention basins, and sediment control measures.

In total that will cause about 70 hectares of earthworks per year for five years, a total of about 350 hectares631 (and more along Old Dunstan Road outside the Central Otago District). Meridian proposes to take substantial steps to remedy the revegetation disturbance and loss.

5.5.2 Remedial work

[387] Dr Lloyd described the main purpose of revegetation on the site as to establish a ground cover as quickly as possible to avoid or reduce potential sedimentation and visual effects632:

Revegetation at Project Hayes does not have the goal of returning affected vegetation to its condition prior to wind farm construction. Indeed over most of the site landowners have sought that pasture vegetation be re-established. The land owners of Rocklands expressed a wish to include tussocks in some revegetation areas but even then it is not to return the vegetation to pre - construction condition.

The CEMP document633 identified a seed mix (50% dogtail, 35% brown top, 15% white clover) for hydro-seeding and drilling which supports this view. Hydro-seeding germination of 85% after one month and, for drilling, a uniform cover of 85% after six

weeks634 were suggested targets. Cross-examined Dr Bartlett said there was no

629 Mr A J Coulman, rebuttal evidence para 6.1 [Environment Court document 30].

630 AEE Volume 2, Appendix B para 4.2.12.

631 Dr A F Mark, transcript (2009), p. 2952.

632 Dr K M Lloyd, rebuttal evidence para 2.1 [Environment Court document 35A].

633 AEE Volume 2 para 4.6.1.

634 AEE Volume 2 para 4.6.2.

provision being made to add native plant seeds to the seed mix. In any event Dr Lloyd agreed with Professor Mark that sowing with tussock seeding would be problematic635.

[388] We were given evidence on rehabilitation at other wind sites and we have described our observations of White Hills, Te Apiti and Makara. Generally both shaping and revegetation had been successfully achieved in all cases using exotic pasture grass (with some tussock at White Hill). Pastured rehabilitated sites were particularly effective at Te Apiti. A number of witnesses pointed out that altitude, climatic conditions and the natural vegetation on the Lammermoor site is different to the other sites.

[389] Dr Lloyd has carried out revegetation trials for Meridian with the co-operation of the landowners. Trials were carried out on the Rocklands Station at about 870 masl and Lammermoor Station at about 940 masl. Both presented a range of aspect, slope and soil fertility underpinned by different farming practices. Planting was carried out in November and February. The sites were prepared to mimic disturbance that will occur within the proposed development. Stock was excluded. Plot trials were replicated at the two locations. Two exotic grass mixes – one high producing and one low – were applied by drilling. A control plot was left as bare ground. A tussock transfer trial was also included on the Rocklands site. While Dr Lloyd described in his

evidence636 how each plot was subject to a conventional lime and fertiliser regime prior

to establishment of treatments, in a later report he stated637 that “No lime or fertilizer was applied to any of the experimental plots or trial fill sites ...”. We are left uncertain whether fertiliser was applied or not – our inspection suggested not.

[390] We visited the revegetation trials in February 2009 and, concerned with what we saw, requested an updating report through counsel. In fact, Dr Lloyd appears to have already carried out further analysis because we quickly received (in March 2009) his report638 “Revegetation trials at the 'Project Hayes' wind farm site, Lammermoor Range,

Otago Report No 2149”. Both the MESI and Mr Douglas objected to this becoming

635 Dr K M Lloyd, rebuttal evidence para 2.6 [Environment Court document 35A].

636 Dr K M Lloyd, evidence-in-chief para 9.3 [Environment Court document 35].

637 Dr K M Lloyd, Report No. 2149 [Environment Court document 96].

638 Dr K M Lloyd, Report No. 2149 [Environment Court document 96].

evidence unless a letter from Dr Mark639 (for MESI) and a statement from Mr Douglas himself were also considered. None of those documents were the subject of cross- examination or submissions. However, because Dr Lloyd‟s report and Dr Mark‟s letter are from acknowledged experts we consider we should receive these documents as relevant and therefore appropriate under section 276(1)(a) and (2) of the RMA. We enter Mr Douglas‟ statement as a courtesy and as a record of his submission as to the outcome.

[391] Dr Lloyd's initial findings were included in his evidence but we refer to the most recent analysis. He described how in February 2009 – 15 months and a winter after his

previous inspection:

2009_29301.jpg bare ground was more frequent in control subplots indicating seed sowing and tussock planting treatments had some positive effect on plant cover, although he did also note that after 15 months the difference in bare ground between the control and treated subplots was no longer significant;

2009_29301.jpg seed sowing treatments were associated with a lower frequency of bare ground than tussock planting;

2009_29301.jpg low producing pasture treatment had lower frequency of bare ground and this was associated with higher species richness in the seed mix;

2009_29301.jpg there were no significant differences between replicate trial plots at each of the two sites indicating that the findings are robust to small variations in landform, slope and aspect;

2009_29301.jpg hare and rabbit browsing was partly responsible for some bare ground;

2009_29301.jpg direct transferred snow tussock had a survival rate of 95% with only a small difference between tussock planted in November and February;

2009_29301.jpg occasional small live tussock were found in subplots where they had not been

planted.

His description of the extent of bare ground was that640:


  1. Dr A F Mark, letter dated 8 April 2009 attached to Memorandum of Counsel for MESI [Environment Court document 97].

640 Dr K M Lloyd, Report No. 2149 para 6.2 [Environment Court document 96].

The combination of more productive soils and exclusion of stock resulted in establishment of a dense ground cover in sowed treatments at Lammermoor site after 1.25 years, but bare ground was still relatively frequent at the Rocklands site.

Dr Mark was concerned that Dr Lloyd‟s methodology was:

... seriously flawed, particularly the assessment of bare ground on the basis of even one live plant in a 10 x 10 cm „sub-square‟ .... Such an assessment must seriously under-estimate the real areal extent of bare ground in the results, as presented in the Wildland report.

We assume that the real intent of his first sentence is that it should read as if qualified as follows “... so that if one lone plant was found the 100 cm2 was not described as „bare ground‟”. We have to say that confirms our impression on our site visit which is that most of the trials contained a worrying area of bare ground.

[392] Dr Lloyd's March 2009 conclusion succinctly included his conclusions from the trials641:

Diverse seed mixtures are more likely to result in a rapid attainment of a dense vegetation cover. Naturally invading pastoral weeds, such as mouse ear hawkweed and sheep's sorrel, will also enhance the speed of revegetation. Soil fertility appears to be a major constraint to plant growth within the wind farm envelope, meaning that lime and fertiliser should be applied to post construction revegetation landforms before seed sowing. Revegetation at the site is constrained by hare and rabbit browsing in addition to soil fertility. Control of hares and rabbits will be required to maximise the speed at which dense vegetation cover is attained on revegetation sites. Rabbits and/or hares strongly browsed palatable plant species at the Rocklands site. It is particularly important to minimise such browsing in the early stages of plant growth (i.e. for the first two growing seasons) because, with a short growing season , early loss of plant foliage is likely to result in a persistent reduction of plant cover.

Dr Lloyd also recommended that stock be excluded from revegetating642 areas for at least one year and preferably two growing seasons after seed sowing. He stressed that low soil fertility affected plant growth and vegetation frequency. Although Dr Lloyd

said that the application of fertiliser will be required to achieve rapid growth at some

641 Dr K M Lloyd, Report No. 2149 para 6.2 [Environment Court document 96].

642 Dr K M Lloyd, Report No. 2149 para 6.5 [Environment Court document 96].

sites643, Dr Bartlett cautioned against the use of fertiliser in gully fill areas to avoid the potential nutrient enrichment of wetlands644.

[393] Dr Lloyd's trials demonstrate that with sufficient management, which would need to include variable seed species mixes supplemented by the invasion of other species including weeds, the addition of fertiliser, stock exclusion and hare/rabbit control, revegetation of some sort will be possible at this elevation, although it may take two or more growing seasons to achieve sufficient cover to “reduce potential sedimentation and visual effects”645 of the earthworks. We predict that it is more likely than not that there will be increased cover of weeds based on our inspection and on Dr Mark‟s comment646 that:

One serious trend in the records [for the trial sites] ... is the much incre ased cover of the weeds Hieracium pilosella (mouse-eared hawkweed), Rumex acetosella (sheep sorrel) and Hypochaeris radicata (catsear) none of which were in the seed mix, and the equally strong decrease in the favoured species ... perennial ryegrass ... and clovers.

Whether the necessary management efforts are possible across such a large site or at the high level and speed of cover the CEMP indicates is required, is not clear. Despite the positive trials of transplanted tussock there is no suggestion that wide scale tussock transference will take place. Where tussocks are to be included Dr Lloyd was of the opinion that tussock vegetation rehabilitated this way will have a closer resemblance to tussock growing in pasture than to the existing tussock grassland plant community647.

5.5.3 Conclusions on revegetation

[394] In order for revegetation to be successful it would be necessary that stock be excluded over an expansive area and we had little evidence on how that was to be

achieved, nor on how rabbits and hares would be controlled.

643 Dr K M Lloyd, Report No. 2149 para 5.1 [Environment Court document 96].

644 Dr R M Bartlett, evidence-in-chief para 8.3 [Environment Court document 60].

645 Dr K M Lloyd, rebuttal evidence para 2.1 [Environment Court document 35A].

646 Dr A F Mark, letter dated 8 April 2009 [Environment Court document 97].

647 Dr K M Lloyd, evidence-in-chief para 8.3 [Environment Court document 35].

[395] Rapid cover is an aim of the revegetation proposal. We find that the field trials demonstrated that cover could be achieved through species diversity in the environs and seed mix, but that it would not be rapid. Pasture weeds such as hawkweed and sheep sorrel spread rapidly on disturbed ground so they would be a necessary evil for sediment entrapment and site rehabilitation. The consequence is that for revegetated sites the spread of weeds is an outcome. This may lead to further ploughing as we were told that was the preferred Hieracium control of at least one farmer. That in itself is of concern because ploughing, we heard, is the most disruptive practice for tussock grassland integrity as it lowered species diversity. Other parts of the operative district plan recognise that: ploughing previously uncultivated land is a controlled activity above

900 metres. That control does not apply to ancillary works for an energy development facility under Part 13 despite the fact that the wind farm may open 350 hectares of such land to future ploughing.

[396] We predict that revegetated sites will likely be dominated by exotic weeds and will have lower indigenous species diversity. This effect will be long term because of the future management problems it will present at the site‟s elevation above 900 metres.

5.6 Ecological effects – fauna

5.6.1 Birds

[397] Dr Seaton, the falcon expert called by Meridian, identified three potential effects of wind farms on New Zealand falcon:

2009_29301.jpg disturbance 2009_29301.jpg displacement

collision mortality.

He considered that disturbance to falcon was more likely to occur during construction than in operation of a wind farm because there will be earthmoving by heavy equipment. However, in his opinion, falcons are not as sensitive to disturbance during breeding as

other species. His research648 showed that if large mechanical operations in plantation forests are excluded from a circle with a 200 metre radius from a nest during breeding then nest failure is avoided. He considered a similar setback would avoid nest disturbance on the Meridian site. Once erected he considered the productivity of the falcons would not be affected by operation of the turbines649.

[398] In Dr Seaton‟s opinion falcon are unlikely to be displaced from hunting activity during construction of a wind farm because they are bold hunters650 not easily frightened off by human activity. He referred specifically to a report on falcons at the White Hill site in central Southland651 which showed that falcons continued to use the site during both construction and operation.

[399] Dr Seaton wrote that652:

The key factor in establishing collision risk is whether a bird will develop avoidance behaviour. The data required to definitely establish this is lacking for falcon in New Zealand. Studies of birds approaching wind turbines in the USA, show that most birds pass over or through wind turbine blades, avoiding collision (Sterner et al. 2007). Nevertheless, each different bird species has unique behavioural characteristics which affect the risk posed by turbine strike and these have not been assessed in New Zealand. Accordingly, although it is generally accepted that falcons being highly manoeuvrable, intelligent and likely to learn to avoid and modify flight behaviour around turbines further research in New Zealand is required prior to reaching such a definite conclusion. As a result, it is not possible at this time to fully determine if falcons develop avoidance behaviours and research at active wind farms is required to establish this.

He described the work of Dr Fox653 as showing that most of the falcon‟s searching strategies involve searching below 40 metres (the height of the proposed lower turbine blade). The exception is a „soaring/prospecting‟ technique which usually occurs 50 to

200 metres above ground level. That is of relevance because the „rotor swept‟ area on

648 Dr R Seaton, evidence-in-chief para 5.3 [Environment Court document 55] referring to Dr R Seaton „The ecological requirements of New Zealand falcon in plantation forests‟. Ph.D. thesis, Massey University Palmerston North, 126 pp.

649 Dr R Seaton, evidence-in-chief para 5.4 [Environment Court document 55].

650 Dr R Seaton, evidence-in-chief para 5.6 [Environment Court document 55].

651 Boffa Miskell (D008) „White Hill windfarm falcon monitoring‟, Report prepared for Meridian ...

10 pp.

652 Dr R Seaton, evidence-in-chief para 5.13 [Environment Court document 55].

653 Dr N Fox (1977) „The biology of the New Zealand falcon‟, Ph.D. thesis, Canterbury University

Christchurch 418 pp.

the Meridian site is 40 to 160 metres above ground654, and655 “Dr Fox observed the

[soaring/prospecting] technique being employed in 27.4% of all searches”.

[400] Attached to Dr Seaton‟s evidence was a review by Dr R Powlesland656 of literature about overseas onshore wind farms. The author noted that “as far as I am aware there has been no report of carcass searches made at New Zealand wind farms using a scientifically robust methodology or any reports or published papers detailing the effect of habitat loss or disturbance on bird populations at NZ wind farms”. He concluded that there were major gaps in New Zealand knowledge with regards to

impacts of birds on wind farms657. We have found the review useful background. A

number of issues raised are relevant to the Lammermoor site.

[401] Dr Powlesland‟s review also states that the data suggests that physical features on the landscape may influence bird movement and behavior658. Thus the placement of turbines close to a prominent feature such as the Logan Burn Reservoir may influence the number of birds moving through a wind farm particularly migrants and wetland species. That is relevant because Meridian‟s AEE stated that the proposed farm is not on a migratory path but does raise the possibility that waterfowl may travel between the Serpentine Flats and the Logan Burn Reservoir659. This of course means that the birds would have to traverse the wind farm which is on a direct flight path between these two water bodies, and raises the possibility of collisions. Overseas research suggests that most collisions involve single birds and most occur when there are poor flight and visibility conditions660. Lit turbines can attract birds especially in conditions of poor

visibility661. We had evidence that poor visibility conditions are part of the climatic

environment at this elevation and that some turbines will be night lit to comply with

Civil Aviation requirements.

654 Dr R Seaton, evidence-in-chief para 5.12 [Environment Court document 55].

655 Dr R Seaton, evidence-in-chief para 5.12 [Environment Court document 55].

  1. Exhibit 55.1 Department of Conservation publication Impacts of wind farms on birds: a review, R Powlesland, 2009.
  2. Exhibit 55.1 Department of Conservation publication Impacts of wind farms on birds: a review, R Powlesland, 2009, s.8.

658 Exhibit 55.1 Department of Conservation publication Impacts of wind farms on birds: a review,

Ralph Powlesland, 2009, s. 2.5.

659 AEE Volume, Tab E para 5.4.1.

  1. Exhibit 55.1 Department of Conservation publication Impacts of wind farms on birds: a review, Ralph Powlesland, 2009, s. 3.
  2. Exhibit 55.1 Department of Conservation publication Impacts of wind farms on birds: a review, Ralph Powlesland, 2009, s. 2.3.2.

[402] Structures associated with wind farms following construction have also been responsible for avian fatalities662. These include overhead wires (power transmission and distribution lines), guy wires, lighting and insulated electrical equipment and meteorological masts. Data suggests that several groups of birds appear to be susceptible to collision with wires, most notably waterfowl, shore birds and raptors although waterfowl and shore birds avoid turbines.

[403] Arising from the research Dr Powlesland wrote that when considering potential impacts it is important to consider the average effect of each turbine and the cumulative effect of the total number of turbines and associated structures and even the cumulative impacts of other wind farms in the range of a bird population, particularly when rare or threatened species are concerned663. The report cautions against discounting small numbers as even relatively small increases in mortality rates may be significant for the

populations of some birds especially long-lived species with low annual productivity and slow maturity. The cumulative mortality from multiple wind farms may also contribute to population declines in susceptible species. Increases in mortality greater than .5% could have serious population impacts664.

[404] We had no evidence to inform us on potential cumulative effects on birds. Until further research is carried out we have concerns that the assessment of risk at this stage is inadequate for us to adduce the effects of this wind farm for the species relying on the wind farm site and adjacent water bodies and their vicinities. Dr Seaton also proposed amendments to the proposed conditions of consent to assist in mitigation and monitoring of effects of the wind farm. He agreed that, during monitoring, all falcons in and

around the site would need to be fitted with radio transmitters665. The mitigation

included predator control666 (on or off-site depending on the effect to be mitigated). We


  1. Exhibit 55.1 Department of Conservation publication Impacts of wind farms on birds: a review, Ralph Powlesland, 2009, s. 2.4.
  2. Exhibit 55.1 Department of Conservation publication Impacts of wind farms on birds: a review, Ralph Powlesland, 2009, s. 2.1.
  3. Exhibit 55.1 Department of Conservation publication Impacts of wind farms on birds: a review, Ralph Powlesland, 2009, s. 4.

665 Transcript (2009), p. 2341.

666 Dr R Seaton, evidence-in-chief para 8.2 [Environment Court document 55].

consider that a useful suggestion. In the end Dr Seaton thought the proposed research and predation control outweighed the negatives for New Zealand falcons.

5.6.2 Invertebrates

[405] Dr Mitchell and Mr Patrick in their caucus report agreed on the invertebrate values to be protected and also that it is feasible to work around the adverse effects of wind farm development so that existing invertebrate values would persist during the life of the wind farm. They differed as to how this should be done. Dr Mitchell felt the conditions imposed by the Councils were sufficient while Mr Patrick felt additional measures were required.

[406] Section 2.8.2 of this decision sets out the facts regarding invertebrates in the vicinity of and in the project area and concludes that the area is ecologically significant under the rarity and distinctiveness criterion. It thus requires protection both during the construction phase and throughout the operating life of the wind farm. In this we are heartened by Mr Patrick‟s observation that667:

Given the large area, and mostly uniform semi-natural vegetation cover of the proposed project area, sustainability of the current insect fauna is reasonably assured under the current extensive pasturalism ...

– although he qualified that in the next sentence: “The challenge is to allow this fauna, which is well documented, to survive another layer of change”. Mr Patrick668 noted that with appropriate management both during construction and the on-going operation of the proposed wind farm, these entomological and ecological values can be retained, with detrimental effects minimised. But we understand that conclusion to be based on two assumptions (which may not hold). The first is that the revegetation would return the tussock grasslands to a similar condition to the current state; and secondly that all

fill would be taken offsite.

667 Mr G H Patrick, evidence-in-chief para 3.15 [Environment Court document 84].

668 Mr G H Patrick, evidence-in-chief para 3.16 [Environment Court document 84].

[407] Construction of the wind farm will result in earthworks disturbing vegetation and invertebrate habitat over an area of some 350 hectares which is approximately 3.8% of the site. Construction will take place over five years and thus only a portion of the 346 hectares will be disturbed at any one time. Approximate locations for turbine sites and disposal sites have been identified with the understanding that final locations will be determined only after ecological and hydrological investigations have been undertaken. The site is etched with waterways so we see this as important and thus endorse Condition 23 of the CODC consent which requires the SEMP‟s controlling areas to be disturbed, disposal areas and soil stock pile areas all to be prepared with the assistance of personnel with expertise in hydrology and ecology.

[408] We acknowledge that there are mitigating and avoiding factors in relation to invertebrate habitat, particularly:

2009_29301.jpg the small areas, compared to the site area, which will not be rehabilitated including turbine sites, substations, access ways and transmission towers;

2009_29301.jpg the spatial configuration of the turbines;

2009_29301.jpg the flexibility that will have been exercised in selecting turbine and disposal site locations; and

2009_29301.jpg the continued existence, over more than 90% of the site, of the existing vegetation cover and pasture which Mr Patrick believes will reasonably

assure the sustainability of the invertebrates currently on the site.

Further, following each phase of construction disturbed areas and disposal sites will be revegetated in accord with CODC Conditions 25 to 27. These require a SEMP and monitoring of its implementation by a suitably qualified person. However, even with that supervision we have found that most of the revegetated areas are likely not to replicate the current habitat but to change into a weed and exotic pasture mix with fewer indigenous species of flora and, we suspect, fauna.

[409] We now turn to some matters that were discussed by the witnesses as possibly requiring further conditions in addition to those imposed by the CODC:

(1) Ecological supervision of works on the site. The CODC consent conditions require ecologists to be involved in the development and implementation of the CEMP and the SEMPs. We believe this is sufficient.

(2) Avoidance of the northern and eastern parts of the site. Mr Patrick was not clear as to the extent of the area he wished to be protected nor were any focussed arguments advanced in its favour. We doubt if avoidance of the suggested area is necessary to ensure sustainability of the invertebrate communities. We note that Meridian is to set aside 95 hectares in the Logan Burn gorge as a reserve. Further, Dr Mitchell supported Mr Patrick

to the extent that he agreed669 with the suggestion that important sites in

these areas should be identified to see if they could be avoided. We consider a pre-commissioning report should be required by condition.

(3) Monitoring of key native insects. Mr Patrick suggested this be undertaken post-construction to ensure the most significant aspects of the insect fauna are retained. Dr Mitchell acknowledged670 that:

More studies are needed to be able to infer terrestrial invertebrate diversity response to management intensity as the factors conferring resilience to degrading forces, such as exotic species invasions, are unknown.

It is not clear to us how monitoring per se would achieve this, but hope the SEMPs would be sufficiently flexible to allow action to be taken. We consider a post-construction monitoring condition should be added.

(4) All surplus soil should be taken off site. We have discussed this and rejected it in the section on erosion and sedimentation issues.

(5) Mitigation should include the cessation of grazing. Mr Patrick commented671 that:

With the elimination of domestic grazing animals, the grasslands shrublands and inter-tussock communities of Te Papanui Conservation Park have flourished as they would in the proposed wind farm site ... with retirement from grazing of sheep and cattle.

We discuss the difficulties of fencing later in this chapter.

669 Dr R A Mitchell, rebuttal evidence para 9 [Environment Court document 56A].

670 Dr R A Mitchell, evidence-in-chief para 16 [Environment Court document 56].

671 Mr G H Patrick, evidence-in-chief para 3.7 [Environment Court document 84].

(6) Revegetation be with a suitable local native seed mix. We cannot impose this on land not owned by Meridian. Further, we believe the required supervision of rehabilitation by suitably qualified people will ensure appropriate plant mixtures are used to achieve revegetation (if only with weeds and exotic pasture in the slightly longer term – but that is all the district plan seems to require once land has been disturbed).

[410] We find that the conditions imposed by the CODC, modified as suggested above, have a medium likelihood of being sufficient to protect the invertebrate values identified on and around the wind farm site. We are not happy with that finding because a probability of between 33% and 67% seems to create a high risk for endemic fauna. However, the evidence satisfied us no further.

5.6.3 Lizards

[411] Mr Jewell carefully considered possible effects of construction and operation of the proposed wind farm on the lizard population within the project envelope672. He concluded that:

... the effect of Project Hayes on the lizard fauna will be negligible/less than minor as the overall proportion of disturbance to lizard habitat ... will be small and localised ... the wind farm development will not compromise the viability or conservation status of any lizard species at any level ...

That reasoning was not challenged by any party although Mr Patrick673 suggested further monitoring of Oligosoma inconspicuum be undertaken “to ensure the survival of key known populations”. Mr Jewell saw no need for such monitoring.

[412] Conditions were imposed by the earlier hearing with respect to lizards and their habitat. CODC condition 52 requires buffer zones around rock habitats and condition

53 provides for the implementation of a lizard rescue and relocation plan should that

prove necessary. The Court endorses these conditions but considers a further fuller

672 Mr T R Jewell, evidence-in-chief section 4 [Environment Court document 50].

673 Mr G H Patrick, evidence-in-chief section 4 [Environment Court document 84].

study will be necessary prior to implementation of any consent in order to gain more information about the distribution and abundance of the various lizard species.

5.6.4 Fish

[413] Section 2.8.4 records the status of existing fish populations in and around the site and identifies potential threats to these ecosystems generated by the proposed wind farm. We now consider each of these potential threats.

Sediment loads, unusual/infrequent loads

[414] We discussed sedimentation in rivers earlier in this decision and accepted Dr Allibone‟s conclusion that high sediment input events into the Taieri River system rarely have impacts on its aquatic ecology. Such impacts occur naturally and with the sediment control devices planned for the project any additional sediment input arising from construction or maintenance activities will be minor. We note Mr Dale‟s comment674 that the effect of proposed works with appropriate sediment management on the Logan Burn and Sutton Stream would be less than minor.

[415] Mr Dale drew our attention to the particular threat of sedimentation to flathead galaxias. This, he averred, highlighted the need for extremely effective sediment management techniques. In reliance on Dr Allibone‟s view that675 flathead galaxias spawning sites are not vulnerable to siltation as they lay their eggs on the underside of large rocks in riffle areas, we predict that through the SEMP system which is to be informed by appropriate experts that the streams in which flathead galaxias have been

found will be adequately protected.

Vehicle contamination

[416] The suite of consents granted by the ORC contains conditions to ensure there is no contamination of waterways by vehicles or heavy machinery brought onto the site. These include the ability to construct culverts at stream crossings (Consent No.

2006.483), the requirement to water blast all earthmoving machinery before it enters the site, cleaning with chemicals to kill didymo if the machinery has worked in waterways

and a prohibition on washing machinery in water courses. Fuel spill is a possible

674 Mr M J Dale, evidence-in-chief para 16 [Environment Court document 63].

675 Mr M J Dale, evidence-in-chief para 7.8 [Environment Court document 63].

contamination associated with vehicles. Refuelling is to be done by trained operators and in the vicinity of the work sites and no refuelling is to be done in stream beds. The majority of work sites are away from streams. Thus the likelihood of a spill occurring and then entering a waterway is remote.

[417] The CEMP and SEMP process, which includes certification by the ORC, will provide the necessary control on vehicle movement and maintenance on site. We see no reason to impose further controls.

Pest species introduction

[418] We have recorded in section 2.8.4 that the most significant threat to the non- migratory galaxiids is introduced predators. Trout are one such species. The ORC conditions of consent require that where culverts or other stream crossings are constructed they shall be impassable to trout if trout occur below but not above the crossing. This will ensure continuance of the present condition in the trout-free area. Other possible „pests‟ that may be introduced include other salmonids and didymo. The latter may occur by way of vehicles as discussed above and by careless fisher folk about which we can do nothing. Salmonids could be introduced as below.

[419] A possible source of pest species not present on site is the water supply. At the time of the hearing the location of this supply had not been identified and no water permits had been applied for. If the supply is from on-site there should be no problem. However, Mr Dale676 noted that there may well be difficulties with this since the Taieri catchment is substantially over-allocated. If it is a surface source off-site the possibility of fish or eggs being brought onto the site exists. A condition to ensure this does not happen will need to be imposed.

Loss of habitat including spawning grounds

[420] Meridian holds consents from the ORC to undertake work and erect structures in the beds of streams (Consent No. 2006.483) and to deposit fill material which may enter water courses (Consent No. 2006.484). These activities have the potential to reduce

habitat for fish. They have to be undertaken within the strictures of the CEMP and the

676 Mr M J Dale, evidence-in-chief paragraphs 30 and 31 [Environment Court document 63].

SEMPs which are to be developed with input from suitable experts and then are subject to approval by the ORC. We have confidence in this process.

[421] We note the ORC conditions require that where in conjunction with the DOC, Otago Conservancy, there are any actual or potential adverse effects on spawning of trout or galaxiids the proposed work shall not take place during the spawning season. We see this as appropriate and sufficient to protect the fish habitat.

Water take

[422] We have no information as to any proposed water take from the site. Water permits have not been applied for. When they are applied for will be the appropriate time to consider any possible adverse effects.

Summary in relation to fish

[423] We find that, with the Councils‟ conditions supplemented as indicated above, any adverse effects of construction and operation of the wind farm on fish are likely to be less than minor.

5.7 Landscape and visual effects

5.7.1 Introduction

[424] Possibly the most important single question in these proceedings is the effect of the proposed wind farm on the landscape in which the Meridian site is set. We now examine how the expert witnesses have assessed the effects of the proposed wind farm

on the three sets of landscape considerations identified in Chapter 3.0 (The law):

2009_29301.jpg the physical components;

2009_29301.jpg the perceptions of the landscape;

the values of the landscape especially its naturalness.

Another standard method of assessing effects relies on „visual absorption capacity‟

studies. Mr Brown‟s analysis of the Meridian site in those terms is discussed below.

5.7.2 Effects on the physical components of the landscape

[425] At its most basic the Meridian proposal‟s effect on the landscape can be summarised as the construction and operation of up to 176 turbines, each up to 160 metres high to the tip of an upright rotor677, over a total footprint of 135 km2 (including the peripheral land within the site and the Logan Burn Gorge which is straddled by the wind farm678). The construction and operation will also have some effects on the topography of the landscape in the form of new roads, although these will be reduced in width after construction and the sides will be reinstated, there will be cuttings on some slopes, especially at the top of the scarp on the northwestern side of the site (above Serpentine Flat), and some other effects on the vegetation and ecology of the landscape.

[426] Turning to consider the effects at or near ground level: in relation to vegetation we agree with Ms Steven679 that Mr Rough may well have over-estimated how well tussock rehabilitation of worked areas will succeed. While we have found on the basis of Dr Lloyd‟s evidence that the platforms and spoil disposal areas will revegetate adequately to avoid erosion problems, what they will revegetate with is another question. Dr Mark was very dubious about restoration of tussocks if they are to be grazed680 within one year of the earthworks‟ completion. Revegetation along the road lines appears especially difficult because for revegetation, especially in exotic grasses, to be successful stock need to be kept out681, and it is difficult to see how that can be done over the whole Meridian site without affecting farming operations substantially. On the other hand, Ms Steven and Mr Espie may have overstated the adverse effects on vegetation if stock are excluded for sufficiently long. We return to this issue below.

[427] Most of the other potential effects of the wind farm were discussed in the context of perceptions of changes in the landscape or its naturalness, so we return to the issue

under those headings.

677 In contrast the existing power pylons along Pylon Road are up to 45 metres in height.

678 The smaller footprint (i.e. without those areas) is 92 km2.

679 Ms E A Steven, rebuttal evidence para 101 [Environment Court document 9A].

680 Transcript (2009), p. 2972.

681 Transcript (2009), p. 2972.

5.7.3 Effects on perceptions of the wind farm : methods

Selection of viewpoints

[428] Mr Rough described how some viewpoints were selected under his instruction and that of Meridian, and others were identified as representative of areas of community and recreational importance. He then had photo-simulations prepared by the firm of another witness, Mr T G Coggan, and we discuss those shortly.

[429] For her part Ms Steven described682 how she had travelled around the area „... to determine just how extensive views of the wind farm might be‟. She itemised683 the distant viewpoints and then concluded684:

... that the wind farm will be visible from a very large number of viewpoints and I think it is likely to have a substantial effect on the perceptions of the Central Otago landscape because of this. Essentially, it will introduce large scale industrial characteristic into a mountain r ange and basin landscape that is at present free of such features.

She continued685:

Generally it is true that with distance visual effects are reduced, but the advantage of distance is not so applicable with a project of this scale, type and location. In respect of distant views toward the range, it occupies a very sensitive location. It may not be the highest or most dramatic part of the overall range, but it is still important skyline in my view.

Photo simulations of the proposed wind farm

[430] To assist us assess the visual and landscape effects of the Meridian proposal, we were presented with three sets of computer-generated simulations of the project. For Meridian Mr Coggan, a computer simulation expert, presented two sets of „Truescape‟ simulations. In addition to a disk with a drive-through/fly-through along the Old Dunstan Road from east to west, he produced a series of „photographs‟ from viewpoints around the site. Those viewpoints were chosen by Mr P Rough, the landscape architect called for Meridian. Mr Coggan explained that the simulations were designed to

capture the dimensions of the average human view, i.e. 126° in width and 56° in height.

682 Ms E A Steven, evidence-in-chief para 27.3 [Environment Court document 9].

683 Ms E A Steven, evidence-in-chief para 27.4 [Environment Court document 9].

684 Ms E A Steven, evidence-in-chief para 27.6 [Environment Court document 9].

685 Ms E A Steven, evidence-in-chief para 27.7 [Environment Court document 9].

Mr Coggan‟s photographs were very large – some of the panoramas were two metres long. He explained that they were reproduced that size because when viewed “at arm‟s length”686 that was as close as he could make the simulation to the experience a viewer would have in reality.

[431] We should record that there were a number of aspects of the wind farm which were not shown on the first set of Truescape simulations:

2009_29301.jpg the cuttings on the re-aligned Old Dunstan Road;

2009_29301.jpg the cuttings for the turbine platforms;

2009_29301.jpg any borrow pits;

2009_29301.jpg the spill areas;

2009_29301.jpg any unsuccessful revegetation areas;

2009_29301.jpg any changes in vegetation patterns arising from revegetation in grasses different from the surrounding area.

[432] Study of the simulations produced by Mr Coggan shows that depending on various factors (distance of the proposed turbines from the viewpoint, time of day, cloud cover, atmospheric conditions) the visibility of the proposed turbines varies greatly. So we infer that in the photographs where the turbines are seen very clearly, they may not in fact be seen at all, and vice versa. Also, and Mr Coggan accepted687 this, the eye sees more detail in reality than his simulations can show, and our site comparisons of his photographs with the actual view confirmed that to be true.

[433] To help us assess the accuracy of its simulations Meridian gave us, with the agreement of all parties, a large Truescape photo-simulation of the operating White Hill wind farm viewed from the Mossburn rugby ground in Southland. Having carefully compared the photo-simulation with the constructed wind farm the Court makes the

following observations as a result of our field inspection:

686 Mr T G Coggan, evidence-in-chief Appendix A, para 3.1 [Environment Court document 2].

687 Transcript (2009), p. 47.

(1) evaluation of the photo-simulations depended on the individual. Although in general agreement, members of the Court differed over the degree to which photo-simulations represented reality;

(2) even when viewed at the correct distance (a long arm‟s length) the White Hill photo-simulation, we agreed, seemed to reduce the scale of the landscape. Thus both the hills on which the turbines were placed and the turbines themselves appeared larger in reality than in the simulations;

(3) one member of the Court thought the scale discrepancy was of the order of

50%. Other members did not think the discrepancy was nearly as large being content to say it was discernible;

(4) conditions were cloudy during the Court‟s visit in contrast to the conditions under which the Truescape photos were taken. Members agreed that even under the cloudy conditions the turbines seemed to be more visible in reality than in the photo-simulation;

(5) objects on the edges of the photo-simulations appeared increased in size with respect to those in the centre.

[434] Similarly, on our comparison of the photographed simulations688 under the „True View 2‟ program on the Meridian site we found that the transmission towers of the Roxburgh-Three Mile Hill line could be seen from each point the Court visited. The towers always appeared more visible in reality than in the photo-simulations. Further, at photo point 109 (the roadside rock) members measured the arc subtended by two objects (rocks) in the photo-simulation and the arc subtended the same two objects in reality. For objects near the centre of the image the arcs were very similar both in the horizontal and vertical directions. This suggests a true representation has been achieved at or near the centre of the image. However, one member of the Court still perceived the simulated objects to be much smaller than the real objects. We conclude the interpretation of the images becomes a matter of one‟s perception rather than the physics

involved.

688 Exhibit 83.2.

[435] The outcome of our reflections on the Truescape photo-simulation is thus a split decision. One member feels the images need to be discounted as being too seductive. They „look‟ accurate even if demonstrably they are not especially towards the edges. Despite Mr Coggan‟s assurances as to the accuracy of the photographs, Mr Rough

agreed689 that the second set of simulations (designed to help assess the accumulative

effects of development with the Mahinerangi project) were distorted at the sides where objects tend to be stretched. The other three members accept the images as acceptable representations of a possible reality at least in the centre of the images.

[436] As for identifying the conditions when turbines are most visible Mr Rough considered those to be when turbines are backlit and the sky is clear690. We agree with that, but from our experience consider that another situation is equally or more important : when turbines are front-lit with dark cloud behind. We are rather surprised that Mr Rough has not considered that situation since it may (for all we know) occur as frequently as Mr Rough‟s clear sky scenario.

[437] We conclude that, when looking at the simulations, the observer should always bear in mind:

(a) they should be looked at from the correct distance (i.e. one arm‟s length

from the image691);

(b) that the detail in the landscape is always clearer than a photograph of the same conditions692;

(c) that conditions in the simulations which make the turbines difficult to see, or conversely which highlight them, are both possible so that conditions which are not shown always need to be considered;

(d) objects on the edges are larger than in reality;

(e) objects in reality are seen in three dimensions, not two.

689 Transcript, p. 2293.

690 Mr P Rough, evidence-in-chief para 278 [Environment Court document 3].

691 Mr T G Coggan, evidence-in-chief para 3.2 [Environment Court document 2].

692 Mr P Rough, evidence-in-chief para 209 [Environment Court document 3].

[438] For the Societies, Mr G van Maren produced an equivalent set of 27 „stills‟ of the completed project and a video connecting them with a simulated fly-through of the site and surrounding area. Mr van Maren‟s simulation used a „K2Vi‟ model which he accepted was not so accurate with its colours as the Truescape model. In our experience of the stills it also has unfocussed foregrounds which reduce the illusion of realism quite

substantially. Ms Steven relied693 to some extent on Mr G van Maren‟s computer

modelling which we accept as a result of Meridian‟s evidence and cross-examination may overstate the distant visibility somewhat. But we do not think that vitiates Ms Steven‟s conclusions substantially. We do prefer Mr Coggan‟s simulations.

Scales for assessing visual effects

[439] Mr Rough produced694 a table which had been developed by another well-known landscape architect, Mr Allan Rackham (based on Mr Rackham‟s assessment of the Meridian wind farm at Te Apiti on the northern side of the Manawatu Gorge for turbines which have a height to the top of the rotor of 110 metres). It is:

Table: Visual Impacts in Relation to Viewing Distance


Less than 1 km turbines tend to dominate the landscape and the potential for visual effects is substantial.
At 1-3 km turbines are highly prominent and the potential for visual effects is substantial.
At 3-6 km while still prominent and a distinctive feature in the landscape, the potential for visual effects is moderate.
At 10 km while turbines are distinguishable the wind farm becomes a minor feature in the wider landscape and the potential for visual effects is negligible.
At 25 km+ turbines and an entire wind farm become difficult to distinguish and a minor feature in the wider landscape so visual effects are not an issue.

Magnitude
Definition
Dominant
The feature has a defining influence on the view and is a focus in the view.
Prominent
The feature is clearly visible in the view and forms an important but not defining element of the view.
Present
The feature is neither dominant nor prominent but is visible in the view.
Negligible
The feature is visible but may go unnoticed as a minor element in the view, or is not visible.

We are puzzled by the change of terminology in the „Magnitude‟ definitions. The first

two defined terms „dominant‟ and „prominent‟ refer to the presence of turbines in the

693 Ms E A Steven, evidence-in-chief para 27.3 [Environment Court document 9].

694 Mr P Rough, evidence-in-chief para 174 [Environment Court document 3].

landscape. The third term „present‟ is not descriptive in any meaningful way, and the fourth term „negligible‟ refers not to the presence of turbines but to their „potential for visual effects‟. The scale for visual effects seems to move from a high of „substantial‟, down through „moderate‟ to „negligible‟ to „non-existent‟. We respectfully find that the table is neither consistent nor scientific in its approach to categorising the visual effects of wind turbines as a function of distance.

[440] For his part, Mr Rough, after giving that table, immediately acknowledged that it could only be of partial assistance in regard to the Meridian project because the turbines proposed on the Lammermoor will be up to 160 metres high (to the top of the rotor arc)

– that is nearly half as high again as the Te Apiti turbines and rotors. Nor did he make any allowance for the very different topography and vegetation of the Lammermoor site compared with Te Apiti. Further, after stating the categories Mr Rough is not consistent in his use of them, so we are left baffled by why he introduced them at all.

5.7.4 Assessment of effects on the landscape from the viewpoints

Distant views

[441] We find that views from more than 30 kilometres away – e.g. from Ranfurly – are very likely to be negligible in almost all circumstances695. On this we prefer the evidence of Mr Rough to that of Ms Steven696.

Clarks Junction area

[442] Clarks Junction is where State Highway 87 from Dunedin and Mosgiel turns north towards Middlemarch and the Old Dunstan Road starts its trek directly towards the scarp above Sutton Stream. From a point 3.4 kilometres southeast of Clarks Junction parts of the wind farm will be visible at a range of 27 kilometres (or more). At this point the landscape is typical working countryside – green fenced paddocks on rolling countryside with shelterbelts of pines and conifers as conspicuous features697. The

skyline is the long, „almost flat horizon‟698 of the Rock and Pillar, Lammermoor and

Lammerlaw Ranges. Features that stand out are the pylons of the existing Roxburgh-

695 Mr P Rough, evidence-in-chief paragraphs 219, 261 and 261 [Environment Court document 3].

696 Ms E A Steven, rebuttal evidence para 62 [Environment Court document 9A].

697 Mr P Rough, evidence-in-chief para 221[Environment Court document 3].

698 Mr P Rough, evidence-in-chief para 221[Environment Court document 3].

Three Mile Hill transmission line. In Mr Rough‟s opinion699 “the wind farm‟s effect on visual amenity values will be slight” when viewed from this area. In contrast Ms Steven was of the opinion that700:

The skyline would appear to literally bristle with turbines especially when back lit. The existing pylons, which can be picked out at this distance, virtually disappear relative to the turbines. Whilst not dominant scale-wise, the turbines would stand out and attract attention because of their sky line location, and unnatural vertical form and motion.

Cross-examined by Mr Beatson701 she conceded that it would be about one-third of the skyline as seen by the observer. In her opinion the effects would be more than

„slight‟702. Mr Rough also assessed as „slight‟703 the effect on views further north on the

road towards Middlemarch.

[443] Coming a little closer to the wind farm: from Clarks Junction the Old Dunstan Road leads generally northwest towards the ranges across open green, largely tree-less farmland704. The turbines of the wind farm will be visible on the skyline (with the

closest turbines nearly 22 kilometres away705). Mr Rough considered that, especially

when backlit706 in the afternoon, the turbines would be more obvious. In Mr Rough‟s opinion the wind farm “... will not appear as a dominant or even prominent feature”707 from his photopoint 2 which is 2.29 kilometres west of Clarks Junction708. In Ms Steven‟s opinion709:

The sense of anticipation of experiencing a remote upland natural landscape would be significantly diminished, and this is the only experience of its kind in Central Otago.

After crossing Deep Stream the wind farm will not be visible because it is hidden by the eastern scarp of the ranges looming up in front of the observer.

699 Mr P Rough, evidence-in-chief para 223 [Environment Court document 3].

700 Ms E A Steven, rebuttal evidence para 66 [Environment Court document 9A].

701 Transcript (2008), p. 557.

702 Ms E A Steven, rebuttal evidence para 64 [Environment Court document 9A].

703 Mr P Rough, evidence-in-chief para 224 [Environment Court document 3].

704 Mr P Rough, evidence-in-chief para 229 [Environment Court document 3].

705 Mr P Rough, evidence-in-chief para 230 [Environment Court document 3].

706 Mr P Rough, evidence-in-chief para 230 [Environment Court document 3].

707 Mr P Rough, evidence-in-chief para 232 [Environment Court document 3].

708 Mr P Rough, evidence-in-chief para 231 [Environment Court document 3].

709 Ms E A Steven, rebuttal evidence para 68 [Environment Court document 9A].

Eastern side of Lammermoor (within Dunedin City)

[444] After climbing the scarp on the eastern side of the ranges the now metalled – often sparsely – and much rougher Old Dunstan Road turns northeast (at the un- signposted junction with the Pylon Road) to skirt what was the Great Moss Swamp and is now the Logan Burn reservoir. From most places along the Old Dunstan Road as it

runs north across the peneplain the wind farm will be visible.

2009_29301.jpg Old Dunstan Road – eastern side of Logan Burn Reservoir

[445] Of a viewpoint710 on the eastern side of, and above, the Logan Burn reservoir Mr Rough wrote711 “... the landscape is characteristically high country – the scale is grand, open and expansive and tussock grassland appears to be the dominant land cover”. Turbines will be obvious through one quarter of the “... 360° panoramas that are afforded from the Old Dunstan Road in the high plateau”712. The closest turbines would be 5.18 kilometres away and three substations (and some service roads) would be

visible. In Mr Rough‟s opinion the wind farm will be a prominent feature in the landscape but will not dominate it713. Further, “... the landscape‟s fundamentally rural character will remain”714 but the effect of the wind farm will be „substantial‟715 on visual amenity values.

[446] In contrast Ms Steven‟s view was that716:

... the wind farm would not be a subordinate element; it would be seen as a major intrusion and

distraction due to its obviously unnatural hi-tech rotating forms. It would compete for and win visual attention over the reservoir and wider tussock landscape.

710 Mr P Rough‟s photopoint 3.

711 Mr P Rough, evidence-in-chief para 233 [Environment Court document 3].

712 Mr P Rough, evidence-in-chief para 234 [Environment Court document 3].

713 Mr P Rough, evidence-in-chief para 235 [Environment Court document 3].

714 Mr P Rough, evidence-in-chief para 235 [Environment Court document 3].

715 Mr P Rough, evidence-in-chief para 235 [Environment Court document 3].

716 Ms E A Steven, rebuttal evidence para 71 [Environment Court document 9A].

She pointed out717 that “similar effects ... would be experienced from many places within the wander-at-will Stonehurst Conservation Area”. Further, because parts of the Stonehurst Conservation Area are higher (up to 1100 masl)718:

... more of the internal roading, substations, turbine construction sites and disposal areas would

potentially be visible. This would have considerable adverse effect on the panoramic experience of natural landscape enjoyed at present.

2009_29301.jpg Near Logan Burn Reservoir719

[447] From the Old Dunstan Road there is a well-formed metal road – Reservoir Road

– leading down to the lake edge and the dam on the Logan Burn. As Mr Rough fairly observed “Many people ... would not be aware that the reservoir is an artificial body of water and some would no doubt assume that it is a natural high country lake”. There is a boat-launching ramp at the end of the road, and another vehicle track leads 600 metres south along the edge of the lake providing access at various points. Mr Rough‟s photopoint 4 is on that vehicle track and the nearest turbines are 1.44 kilometres away

and above the viewer720. Mr Rough assessed the effect of the proposed wind farm from

here as follows721:

The closest turbines will, because of their prominence, have a substantial effect on amenity values in the proximity of the reservoir dam but despite the turbines‟ presence the reservoir will remain the dominant feature in the scene. The overall view from the simulation viewpoint is very expansive and the sense of openness continues considerably to the left and out of the picture. In the simulation (and in preceding ones) the turbines appear to “sit” on the landscape rather than in it and in doing so allow the essential rural character of the landscape to prevail.

Ms Steven doubted722 that the turbines would have “a subordinate position” and we tend

to agree.

717 Ms E A Steven, rebuttal evidence para 73 [Environment Court document 9A].

718 Ms E A Steven, rebuttal evidence para 73 [Environment Court document 9A].

719 Mr P Rough‟s photopoint 4.

720 Mr P Rough, evidence-in-chief para 237 [Environment Court document 3].

721 Mr P Rough, evidence-in-chief para 239 [Environment Court document 3].

722 Ms E A Steven, rebuttal evidence para 74 [Environment Court document 9A].

2009_29301.jpg Rock outcrop by Old Dunstan Road723

[448] 1.5 kilometres north of the junction with Reservoir Road the Old Dunstan Road rises to pass by a rock outcrop (one of the few near the road) which is in fact within the Stonehurst Conservation Area724. From the top of the rock about 100 turbines are likely to be visible over a 120° arc, the closest 0.9 kilometres away, and the farthest 16

kilometres725. Other visible features of the wind farm are likely to be726:

2009_29301.jpg sections of internal access roads;

2009_29301.jpg monopoles supporting internal power transmission lines;

two substations.

Mr Rough‟s opinion was that from here the wind farm would be a dominant feature in the landscape727. He then wrote that its overall effect would be substantial when looking to the west. Ms Steven agreed728.

Old Dunstan Road within Central Otago district

2009_29301.jpg Old Dunstan Road, near McPhees Creek729

[449] About one kilometre north of the previous photopoint, Mr Rough assessed the

wind farm as having a „substantial effect [on] visual amenity values‟730 from this vicinity and Ms Steven agreed731.

2009_29301.jpg Old Dunstan Road, near Turbine V3Z3732

[450] Mr Rough assessed the potential effects of the wind farm at the point where the

Old Dunstan Road dives down the scarp into the Taieri River Valley at Paerau. He described this locality as follows733:

723 Mr P Rough‟s photopoint 5.

724 Mr P Rough‟s photopoint 13.

725 Mr P Rough, evidence-in-chief para 242 [Environment Court document 3].

726 Mr P Rough, evidence-in-chief para 242 [Environment Court document 3].

727 Mr P Rough, evidence-in-chief para 243 [Environment Court document 3].

728 Ms E A Steven, rebuttal evidence para 76 [Environment Court document 9A].

729 Mr P Rough‟s photopoint 17.

730 Mr P Rough, evidence-in-chief para 248 [Environment Court document 3].

731 Ms E A Steven, rebuttal evidence para 77 [Environment Court document 9A].

732 Mr P Rough‟s photopoint 13.

733 Mr P Rough, evidence-in-chief para 254 [Environment Court document 3].

Adjacent to a 4.8 km long section of the road the five closest turbines will be potentially within

60 m to 375 m from the road. Turbine V3Z3 will be the closest turbine to the road and the photo-simulation from Photo-point 13 conveys a view from a position on the road, 120 m north of the turbine.

Looking south from Mr Rough‟s viewpoint 13 other turbines will be substantially visible, as will two access roads734. In his opinion735:

The turbines, especially [V3Z3] closest to Old Dunstan Road, will be a strong visual focus and will have a very substantial effect on visual amenity values

– and that is from inside a vehicle. From outside, he opined that736:

From beyond the confines of a vehicle turbine V3Z3 will assume greater dominance as the full height of its tower and moving rotor will be manifest. While the structure may offend some people others can be expected to be curious and interested to experience a wind turbine at close quarters following their being gradually acquainted with the wind farm from considerable distances when approaching the site by road from either the north or the south.

[451] Ms Steven wrote737:

... Whilst it is true some people may be able to satisfy their curiosity over the turbines, others will be shocked to find how enormous they really are, as well as seeing the scale of roading required – which will be bigger than the firebreaks already next to the road, including batters and water tables. Such roading would obliterate the existing 3-4m wide grass and dirt 4WD tracks. The cumulative effect with the firebreak would be heavy, on what is one of the most visually attractive parts of the journey and the first experience of expansive snow tussock grassland on

reaching the summit coming from the west, where rock tors are the biggest sky line feature.

734 Mr P Rough, evidence-in-chief para 255 [Environment Court document 3].

735 Mr P Rough, evidence-in-chief para 256 [Environment Court document 3].

736 Mr P Rough, evidence-in-chief para 257 [Environment Court document 3].

737 Ms E A Steven, rebuttal evidence para 81 [Environment Court document 9A].

2009_29301.jpg Old Dunstan Road, 2.97 kilometres uphill from Paerau738

[452] This viewpoint towards the top of the 300 metre vertical ascent from Paerau contains nine turbines with the closest 690 metres away739. As Mr Rough pointed out, from this section of the road views – at least to the south and east – tend to be restricted by the topography, which is varied – rock outcrops and bumps in the land, the winding road, scattered areas of tussock740 amongst the grass and Hieracium. In his view741:

The turbines, however, will be very prominent and will become dominant elements in the landscape when viewed at such close quarters and, although only a few turbines will be seen, collectively they will have a very substantial effect on visual amenity values. Despite this, the turbines will mostly appear to be breaking the skyline and thus appear to be s itting on the landscape rather than in it. This factor, combined with the individual turbines being set generally well apart from each other will allow the landscape to retain its rural character. [Our emphasis.]

We will discuss shortly Mr Rough‟s analysis of the site in terms of its „rural character‟.

Styx-Patearoa Road and its continuation, Upper Taieri Paerau Road

2009_29301.jpg Near Styx Creek742

[453] The Styx-Patearoa Road rises through a fretted landscape and into the Styx area at the bottom end of the uppermost Taieri scroll plain. From here about four kilometres north of Paerau the first views of the wind farm will be seen if built as proposed. Twenty-one further turbines will be visible near Old Dunstan Road743. More will be visible on the skyline and the scarp-face to the south. Mr Rough considered744 that in the area “the wind farm will be a prominent and distinct feature in the landscape” but that “the rural character will prevail”745. Ms Steven again considered he had

understated it. She wrote746:

738 Mr P Rough‟s photopoint 7.

739 Mr P Rough, evidence-in-chief para 259 [Environment Court document 3].

740 Mr P Rough, evidence-in-chief para 260 [Environment Court document 3].

741 Mr P Rough, evidence-in-chief para 260 [Environment Court document 3].

742 Mr P Rough‟s photopoint 6.

743 Mr P Rough, evidence-in-chief para 269 [Environment Court document 3].

744 Mr P Rough, evidence-in-chief para 270 [Environment Court document 3].

745 Mr P Rough, evidence-in-chief para 271 [Environment Court document 3].

746 Ms E A Steven, rebuttal evidence para 84 [environment Court document 9A].

The degree of incongruity of the wind farm elements and its scale can only make it dominant and attention-grabbing. I expect that there would be a substantial adverse effect on the perceived

natural character of the landscape, and the level of visual amenity would decline accordingly.

2009_29301.jpg Upper Taieri Paerau Road

[454] The Styx Patearoa Road terminates at Paerau by the heritage Styx Hotel and Jail. Ms Steven considered the turbines would be visible from the school and would have substantial effects on the visual amenity of the views from these buildings747. From here the Old Dunstan Road climbs the scarp as already discussed. The main road continues up the eastern side of the valley as the Upper Taieri Paerau Road for about 15 kilometres. There are four dwellings at intervals along this road, one of which is

connected to the Paerau School. From the school the rotors of three turbines will be visible748 at a distance of about 1.6 kilometres. The moving rotors will be “a strong visual focus and will have a substantial effect on the visual amenity of the school”749.

Serpentine Flat

[455] On the northwestern side of the uppermost Taieri scroll plain (where the river winds sinuously) is the Serpentine Flat. The scroll plain itself is described as an „area of outstanding value‟ in the district plan. Along the far side of the valley from the wind farm is the Linnburn Runs Road. The river and its wide margins are within a straight- sided reserve. Outside the reserve the plain is intensively farmed. It is covered in exotic grasses in large paddocks with exotic shelterbelts running in lines across the

valley.

2009_29301.jpg Junction of Linnburn Runs Road and Deep Creek Road750

[456] From this intersection the western edge of the Lammermoor is visible about 300 metres above the valley floor. If the wind farm is built „numerous‟751 turbines will be seen along and above that skyline over a distance of about 20 kilometres. Some

sections of access roads will be visible752. The closest turbine will be 5.45 kilometres

747 Ms E A Steven, rebuttal evidence para 86 [Environment Court document 9A].

748 Mr P Rough, evidence-in-chief para 272 [Environment Court document 3].

749 Mr P Rough, evidence-in-chief para 272 [Environment Court document 3].

750 Mr P Rough‟s photopoint 8.

751 Mr P Rough, evidence-in-chief para 275 [Environment Court document 4].

752 Mr P Rough, evidence-in-chief para 275 [Environment Court document 4].

from this viewpoint753. The views from Linnburn Runs Road are of particular concern to farmers and others who reside here.

[457] Mr Rough assessed that the proposed wind farm will be754 “a very prominent and distinctive feature”, with which Ms Steven agreed. He continued755:

It will, however, not be the dominant feature. The Lammermoor Range and the prominent foreground farmland will continue to be the most prominent features in the landscape and, following construction of the wind farm, the rural character of the scene will prevail.

When Mr Marquet (for local residents) asked him in cross-examination whether it would be „an energy production landscape‟ he answered that „... the rural character is still the predominant character of the landscape‟756. His evidence-in-chief summarised the effect of the wind farm as having757 “a substantial effect on visual amenity values”.

[458] Mr E Laurenson and Mr I Manson, both landowners on the western side of the Paerau Valley, gave evidence on visual effects. Mr Laurenson stated758 “that the visual impact will never go away”, while Mr Manson wrote759:

As is the case with farming, we spend our lives outside and with the way our property is oriented and the sheer scale of the project there is nowhere on Riverview [the Manson property] that the massive turbines won[‟]t be the dominant feature.

There is no doubt the proposed wind farm will have a significant visual effect on these landowners and on others who choose to fish or recreate in the Paerau Valley.

753 Mr P Rough, evidence-in-chief para 275 [Environment Court document 4].

754 Mr P Rough, evidence-in-chief para 276 [Environment Court document 4].

755 Mr P Rough, evidence-in-chief para 276 [Environment Court document 4].

756 Transcript (2008), p. 154.

757 Mr P Rough, evidence-in-chief para 277 [Environment Court document 4].

758 Mr E Laurenson, evidence-in-chief para 18 [Environment Court document 19].

759 Mr I Manson, evidence-in-chief para 3.1 [Environment Court document 20].

2009_29301.jpg Middle of Serpentine Flat

[459] From the middle of Serpentine Flat (near the Taieri River) Mr Rough considered760 that fewer turbines would be visible but they would be closer (about three kilometres) so the effect from here would also be substantial.

Old Dunstan Road (Rough Ridge)

[460] Across the Serpentine Flat the line of the Old Dunstan Road has been lost, or at least it was not identified for us. The route picks up again from the foot of the Linnburn Runs Road and then climbs in a southwesterly direction over the flank of South Rough Ridge Hill, thence over Rough Ridge to the Poolburn reservoir and then down into Ida Valley.

[461] The wind farm will not be visible761 from most of the northern part of the Old Dunstan Road because views are generally blocked by South Rough Ridge Hill. Views will be limited to the lower slopes of that especially when climbing from below since the view will be at about 45° to the direction of travel. From these slopes762 Mr Rough assessed the wind farm as “a reasonably prominent and distinct feature in the wider landscape”. Again we note the ambivalence in Mr Rough‟s evidence about what he means by landscape. For her part Ms Steven assessed the effects as a very dominant element of the landscape763.

[462] However, we consider her statement that764:


Travelling east, the site is in direct view emphasizing the adverse effect

– as rather an over-simplification since the Old Dunstan Road from where the Meridian site is visible runs mainly northeast-southwest so the occupants of a car are not looking towards the Meridian site which is nearly 902009_29303.jpgto the right of their general course.

However, if one stops a vehicle and looks east then her statement is correct.

760 Mr P Rough, evidence-in-chief para 277 [Environment Court document 4].

761 Mr P Rough, evidence-in-chief para 280 [Environment Court document 4].

762 Mr P Rough‟s photopoint 9.

763 Ms E A Steven, rebuttal evidence para 89 [Environment Court document 9A].

764 Ms E A Steven, rebuttal evidence para 90 [Environment Court document 9A].

Serpentine Scenic Reserve

[463] This reserve contains 750 hectares at the southern end of South Rough Ridge Hill. The vegetation of the reserve is principally snow tussock, in which are set two areas of old gold diggings and the old Serpentine Church built out of local schist. The wind farm will not be visible from the church, but from higher points in the reserve and contiguous areas it will be visible. In Mr Rough‟s opinion765 the wind farm will have a

„slight to moderate effect on visual amenity values‟. Ms Steven generally agreed766.

Southern end of the Meridian site

2009_29301.jpg Pylon Road

[464] There are public access easements by foot or bike over this road767. We were given no assessment of the effect of the wind farm on the visual amenity from this road by Mr Rough, but as stated above, Ms Steven considered the impact was

incompatible768.

2009_29301.jpg Taieri Rapids Scenic Reserve

[465] Again Mr Rough made no assessment from here, and Ms Steven‟s opinion was that the wind farm was incompatible with views from here (although that opinion was reached before Meridian volunteered to move the closest turbine).

Te Papanui Conservation Park

[466] The Lammermoor Range is partly within the Te Papanui Conservation Park. A rough 4WD track runs north-south along its broad crest. This can be accessed from either on the Old Dunstan Road or from roads up the Lammerlaw Range to the south. The general trend of the Lammermoor Range is to dip downhill north towards the Meridian site from the high point known as „Lammermoor‟ (1160 masl) at the junction

of the Lammerlaw and Lammermoor Ranges. From the Conservation Park boundary the

765 Mr P Rough, evidence-in-chief para 284 [Environment Court document 4].

766 Ms E A Steven, rebuttal evidence para 91 [Environment Court document 9A].

767 Mr R J Greenaway, evidence-in-chief page 6 [Environment Court document 59].

768 Ms E A Steven, evidence-in-chief para 23.28 [Environment Court document 9].

nearest turbine would be four kilometres away769. From a musterer‟s hut770 on that boundary Mr Rough wrote that turbines would be „clearly visible spread out along the crest‟771 of the Lammermoor. He assessed the wind farm would be a „prominent and distinctive feature on the skyline‟772 but the landscape would remain „fundamentally rural‟773. Ms Steven agreed with the first of those opinions774 but added775:

Given the expectation of the landscape experience of Te Papanui (which extends beyond its boundaries to other parts of the summit landscape, much of which is also conservation area or is assessed to warrant proposal as such) is remote and highly natural character, the presence of the wind farm would be a very significant detracting element in my view. It would fundamentally alter the existing extensive pastoral/conservation land character of the summit landscape.

Rock and Pillar Range

[467] The highest block mountain range within eastern Central Otago is the Rock and

Pillar Range. A large part of the crest and eastern scarp of this range is within a

Conservation Park. We earlier described the recreational use of this area.

2009_29301.jpg McPhees Rock (1310 masl)776

[468] The wind farm site is overlooked from much of the southern part of the Rock and Pillar Range. From McPhees Rock the nearest turbine will be 2.22 kilometres away and numerous turbines will be visible777. However the turbines will not be on the

skyline778; all will be viewed against a backdrop of tussock grass. Three substations

will be visible – most obviously the Styx substation which is only one kilometre from the Old Dunstan Road – as will sections of several access roads. Mr Rough assessed the wind farm as having a moderate effect779 on visual amenity values. That caused a

stronger reaction from Ms Steven780:

769 Mr P Rough, evidence-in-chief para 286 [Environment Court document 4].

770 Mr P Rough‟s photopoint 10.

771 Mr P Rough, evidence-in-chief para 286 [Environment Court document 4].

772 Mr P Rough, evidence-in-chief para 287 [Environment Court document 4].

773 Mr P Rough, evidence-in-chief para 287 [Environment Court document 4].

774 Ms E A Steven, rebuttal evidence para 92 [Environment Court document 9A].

775 Ms E A Steven, rebuttal evidence para 92 [Environment Court document 9A].

776 Mr P Rough‟s photopoint 11.

777 Mr P Rough, evidence-in-chief para 290 [Environment Court document 4].

778 Mr P Rough, evidence-in-chief para 291 [Environment Court document 4].

779 Mr P Rough, evidence-in-chief para 292 [Environment Court document 4].

780 Ms E A Steven, rebuttal evidence paragraphs 93 and 94 [Environment Court document 9A].

There would be a very substantial effect on the perception of natural character, and a change from pastoral rural to industrial rural – in an area where remote and expansive natural landscape is the expectation. The wide spacing of the turbines is of little relevance to the overall effect. From these elevated positions, parts of the access roading and other earthworks would be visible, degrading the coherence of the landscape, as they will remain permanent visual scars marked by a change in vegetation cover.

The rotating motion and vertical unnatural form of the turbines would ensure they remain the constant focus of visual attention.

Mr Espie was critical of Mr Rough‟s evidence, writing that781:

It appears that „substantial‟ is the strongest adjective that Mr Rough has in his arsenal. In fact

„very substantial‟ occurs at least once. Further „substantial‟ is the highest word for visual effects

in the table Mr Rough was basing his analysis on.

5.7.5 Mitigation of effects on the landscape

[469] Mr Rough listed a number of steps that he believes will mitigate against some of the visual effects of the development on the landscape. They are in three categories relating first to turbine design and layout features; next, changes to the landform due to the on-site earthworks; and lastly the rehabilitation of the site's vegetation.

Turbine design

[470] It was Mr Rough's view that the blade glint of the turbines would be diminished by the painting of the structure and blades in a light grey782. We accept that to be very likely. He also believed this colour would mitigate the visual impact of the turbines when viewed against the sky. We viewed the Truescape time-lapse video that usefully compressed the varying light conditions over a day to show a range of effects on the visibility of the turbines. As a result we would qualify Mr Rough's assessment to say that a light grey colour reduces visibility in some light conditions. On the video we viewed, taken from Linnburn Runs Road – this effect was achieved for a few hours

when the sun passed in front of the turbines (mid to late afternoon from that viewpoint).

781 Mr B Espie, evidence 9 May 2008 para 4.14 [Environment Court document 21].

782 Mr P Rough, evidence-in-chief para 205(e) [Environment Court document 3].

[471] Mr Rough viewed the turbines as elegant and visually cohesive structures. We agree that for some viewers this would be so. All the members of the Court consider they have elegant, kinetic sculptural qualities and that cumulatively all the turbines in a wind farm are often both spectacular and dynamic.

[472] The placement of turbines on ridges and their separation by landform was said by Mr Rough to be a design feature that would help retain the open character of the landscape783. We accept that is so to a considerable extent although we find that principally the sites were chosen on the ridges (where the bedrock is relatively shallow784) and gentle terrain for geotechnical considerations785. Ms Steven was of the view that because the landscape is so open inserting tall vertical elements into a dominantly horizontal landscape will increase their prominence786. That factor too will come into play.

Other infrastructure

[473] Transmission cables which cannot be accommodated underground will be sited so as to obscure them from the skyline, masking them from the ODR and the Taieri River Valley where practical787. Under-grounding cables is appropriate mitigation. While the masking which is included in the above-ground approach is laudable we are not sure how this is to be achieved.

[474] The proposed Styx substation has been moved to avoid visual effects from Old Dunstan Road788. We agree that this would be an effective mitigation of visual effects arising from the substation on views from Old Dunstan Road.

[475] Mr Rough wrote that disposal sites and other temporary sites such as batching plants and laydown areas would be reshaped to conform to the existing topography and

783 Mr P Rough, evidence-in-chief para 205(f) [Environment Court document 3].

784 Mr A J Coulman, evidence-in-chief para 3.11 [Environment Court document 30].

785 Mr A J Coulman, evidence-in-chief para 3.7 [Environment Court document 30].

786 Ms E A Steven, evidence-in-chief para 27.8 [Environment Court document 9].

787 Mr A J Coulman, evidence-in-chief para 9.15 [Environment Court document 30].

788 Mr P Rough, evidence-in-chief para 205(j) [Environment Court document 3].

would result in mitigation of the visual effects of the earthworks across the site. He concludes there will be no long-term visual impact from disposal sites. As long as consent conditions require this, we accept that earthworks will result in a less than minor visual effect on landforms from disposal and temporarily used sites. Similarly, Mr Rough believed that battering cut slopes and revegetation would mitigate the visual effects of turbine platforms. We find that because they are required for the on-going maintenance of the turbine infrastructure the turbine platforms cannot be reshaped, although they will be reduced in size once the turbines are installed. The mitigation proffered will have little effect on the visual landscape effects of 176 turbine platforms.

[476] Mr Coulman stated that wherever practical cuttings will be treated to blend back into the landscape by revegetation (which we deal with next) and the rounding of berms where road cuttings are significant789. The outcome at the White Hill wind farm can be seen in Photo 9 of Mr Coulman's rebuttal evidence. We find that the substantial visual effect of earthworks allied to roading was not mitigated very much at White Hill. Mr Coulman also envisaged that base course matched from site790 will mitigate the visual effects of widening. We agree that the visual attenuation of road surfacing by the use of local aggregate will mitigate visual effects of widening and should form part of the conditions. Where seal has been necessary for steepness it can be removed791. We agree but make no direction as to conditions as this may be a safety issue for the Council.

[477] Ms Steven regarded the use of existing farm tracks as helpful in diminishing the total fresh roading footprint across the landscape.

Revegetation

[478] In response to a request from the Court Mr Coulman supplied a list of all elements of disturbance that would require revegetation792. Using upper bound estimates for the volume of earthworks as set out in the Construction Effects Report he

then calculated the projected area to be revegetated as 240 hectares which is

789 Mr A J Coulman, evidence-in-chief para 9.10 [Environment Court document 30].

790 Mr A J Coulman, evidence-in-chief Appendix 4 para 5 [Environment Court document 30].

791 Mr A J Coulman, evidence-in-chief Appendix 4 para 14 [Environment Court document 30].

  1. Mr A J Coulman, supplementary statement of evidence 8 August 2008 [Environment Court document 30B].

approximately 2.6% of the core site area793. With a five year construction period this means some 48 hectares will require revegetating each year.

[479] We find that there are at least four scenarios for the site and its landscape setting arising out of the relationship between the wind farm and pastoral farming while revegetation is being given a chance to succeed. They are to operate:

(1) the wind farm only, i.e. to exclude all stock for at least five years;

(2) (at the other extreme) wind farm plus normal stocking patterns. This seems to be a recipe for Hieracium spread unless there is regular exotic seed application and high fertiliser application;

(3) a modified version of (2) whereby the regime depends on the landowner‟s


preference, e.g. the Meridian land is closed to farming, but others are open; (4) the fourth scenario is to fence off all road margins and turbine and other earthworked sites until revegetation is complete. We consider this is a substantial imposition on any consent-holder because there are 150 kilometres of internal roads and 176 turbines. If the perimeter of a turbine

site is 90 metres then the minimum length of fences needed just for roads and turbines is:

150 km x 2 = 300 km (roads)

90 metres x 176 = 16 km (turbines)


316 km

The effect of those fences and the different vegetation patterns on either side of the fence on the landscape is likely to be more than minor.

A fifth scenario would be to completely close any block being rehabilitated until complete and to find alternative grazing elsewhere, but our understanding is that is

inconsistent with Meridian‟s licences from the landowners.

793 Note that this differs from the 350 hectares put to Dr Mark by Mr Rennie (see section 5.5.1 above).

350 hectares is the approximate area of earthworks, 240 hectares is the approximate area to be revegetated, i.e. excluding those areas that will not be revegetated – road surfaces, turbine platforms, substations.

[480] Ms Steven believed the revegetated areas would present a contrast to the surrounding landscape. We agree that at the time of year when the pasture is green in the relatively small areas of pasture that is likely to be so. It will also present a contrasting texture to the surrounding land differentiating it from the tussock grassland. It will establish a visual perception of a more rural and managed landscape with a higher level of weed penetration. This was apparent in the trial plots and outcomes and we confirm that this was also our impression from our site visit.

[481] We find that revegetation will not mitigate the visual effects of earthworks across the site. Indeed it seems likely that it will draw attention to them.

5.7.6 Accumulative effects

[482] We have described how the hearing was further adjourned so that the Court could hear evidence about any impact of a wind farm at Mahinerangi on this proposal. At the 2009 resumption of the hearing Meridian produced some new photosimulations794 of the area. These included those views in which both a Meridian wind farm and a Mahinerangi wind farm, 15 kilometres apart at the closest points and with some 28 kilometres between their centroids, could both be seen.

[483] There is some doubt as to whether Mahinerangi will proceed. Mr Gleadow said in answer to Mr Todd that TrustPower had been quoted in the media as stating that “... under the present policy settings [it] may well not construct Mahinerangi”. That is of course hearsay, and we do not know what current settings are of concern to them. Further, it has taken us so long to finalise this decision that more recent media reports suggest that Mahinerangi is likely to proceed. We make no finding either way: as we stated (in Chapter 3.0) if Mahinerangi proceeds then the Meridian project may cause accumulative effects, and if it does not then the Mahinerangi site may be an alternative which we should consider.

[484] Two key landscape witnesses discussed the accumulative effects. Following what is becoming an increasingly standardised methodology for wind farms they

794 Mr C G Coggan, part of his evidence-in-chief [Environment Court document 49].

identified three different ways in which the two wind farms (if both are built) might be

experienced. Ms Steven identified these as795:

2009_29302.jpg Simultaneous visibility – both facilities are seen in the same view

2009_29302.jpg Successive visibility – both facilities are seen from the same viewpoint but not in the same view (ie, the head has to turn and eyes focus on another part of the landscape in order to see both facilities)

2009_29302.jpg Sequential visibility – the facilities are seen one after the other as one moves through the

landscape.

[485] Mr Rough considered796 there were nine general locations from which both wind farms would be „theoretically‟797 visible simultaneously. Some we will not consider further: the first is Flagstaff Hill, northwest of Dunedin, which is in a band a minimum of 30 kilometres from the Mahinerangi site and 40 kilometres from the Lammermoor

site; another is on Eldorado track near Mahinerangi but this is largely inaccessible to the public so we regard it as unimportant; and the third is on the summit of the Rock and Pillar Range beyond McPhees Rock. We consider that is covered adequately in any discussion of views from McPhees Rock.

[486] The accumulative visual effects of the simultaneous, successive or sequential views from the other viewpoints where these would occur Mr Rough assessed as

follows:

795 Ms E A Steven, further evidence (November 2008) para 18 [Environment Court document 75].

796 Mr P Rough, further evidence-in-chief para 27 [Environment Court document 52].

797 Mr P Rough, further evidence-in-chief para 27 [Environment Court document 52].



(a) (b) (c) (d)
(e)
Location

Intersection SH 87/Mahinerangi Road

Mahinerangi Road

Black Rock Runs Road

SH 87 – 3.4 km south of Clarks Junction

SH 87 – 7.9 km north of Clarks Junction
Mr Ro u gh ‟s ac cu m ul at i ve ef f ect s
Negligible798
Negligible799
Slight800
Slight to moderate801
Slight to moderate802
(f)
Old Dunstan Road – 2.29 km northwest of

Clarks Junction

Slight803
(g)
Old Dunstan Road – east of Logan Burn

reservoir

Slight to moderate804
(h)

(i)
Old Dunstan Road – roadside rock outcrop

Near McPhees Rock (Rock and Pillar Range)
Slight805
Slight806
(j)
Te Papanui Conservation Park – information

area

Slight to moderate807
(k)
Te Papanui Conservation Park – Ailsa Cra[i]g
Moderate808

[487] Mr Rough‟s opinion was that809:

... cumulative visual effects (whether they be combined, succession or sequential), resulting from the two wind farms, will range from being negligible to moderate, but overall they will be slight and, from a landscape and visual perspective, not unacceptable.

[488] The overall issue is whether Mr Rough properly assessed the cumulative effects of the proposed wind farm. Ms Steven wrote810:

I find that the cumulative effect of all the roading changes, earthworks and turbines and other structures as one moves through this upland tussock landscape has also not been adequately addressed. Each visual impact description is largely related only to the view in the photosimulation. A more realistic approach would have been to consider the effects in terms of

the various ways the existing landscape is experienced, for example, thinking of the whole

798 Mr P Rough, further evidence-in-chief para 36 [Environment Court document 52].

799 Mr P Rough, further evidence-in-chief para 39 [Environment Court document 52].

800 Mr P Rough, further evidence-in-chief para 41 [Environment Court document 52].

801 Mr P Rough, further evidence-in-chief para 44 [Environment Court document 52].

802 Mr P Rough, further evidence-in-chief para 46 [Environment Court document 52].

803 Mr P Rough, further evidence-in-chief para 49 [Environment Court document 52].

804 Mr P Rough, further evidence-in-chief para 64 [Environment Court document 52].

805 Mr P Rough, further evidence-in-chief para 67 [Environment Court document 52].

806 Mr P Rough, further evidence-in-chief para 69 [Environment Court document 52].

807 Mr P Rough, further evidence-in-chief para 55 [Environment Court document 52].

808 Mr P Rough, further evidence-in-chief para 60 [Environment Court document 52].

809 Mr P Rough, further evidence-in-chief para 99 [Environment Court document 52[.

810 Ms E A Steven, rebuttal evidence para 102 [Environment Court document 9A].

journey along the Old Dunstan Trail from the summit of Rough Ridge to Clarks Junction and vice versa; or the journey up to Te Papanui from Outram; and imagining how those total experiences would be altered by the presence of the wind farm.

[489] Having undertaken that assessment with the help of a relatively basic DVD simulation using K2Vi software produced811 by Mr van Maren, Ms Steven‟s assessment of the accumulative effects on the character of the landscape was812:

The two wind energy facilities significantly diminish the sense of openness and naturalness, interfere with skylines, disrupt natural quiet (and associated stillness), reduce sense of spaciousness, affect peoples[‟] outlook, introduce buildings of relatively huge scale exaggerated by their pale colour and motion, and during construction introduce large volumes of heavy traffic. Visual coherence is less affected although landscape is visibly „chopped up‟ and segmented ...

[490] In our view the likely strength of the cumulative effects is somewhere between Mr Rough‟s and Ms Steven‟s views. We consider that the addition of the Meridian wind farm to a Mahinerangi wind farm will have a moderate adverse extra effect on the natural qualities of the landscape. Having said that, it is clearly the placement of the huge Meridian wind farm in the landscape which generates the major effects to be considered.

5.7.7 Conclusions as to the values of the landscape

Mr Espie’s evidence

[491] Mr Espie‟s evidence was relatively brief, and did not take the accumulative effects of Mahinerangi into account. However, he had considered the evidence of Mr Rough, Mr Brown and Ms Steven when writing his report813 for the local authorities‟ Commissioners. We consider he was as objective as it is possible to be in this field when he concluded814 that “I do not believe that th[e] degree of effect [on the landscape]

can realistically be described as minor”. We do not find that affected by Mr Beatson‟s

811 Mr G van Maren, further evidence-in-chief (November 2008) [Environment Court document 76].

  1. Ms E A Steven, further evidence-in-chief (November 2008) para 111 [Environment Court document 75].

813 Mr B Espie, evidence (9 May 2009) para 4.16 [Environment Court document 21].

814 Mr B Espie, evidence (9 May 2009) Exhibit BE2 [Environment Court document 21].

cross-examination. He also observed815 that “... the existing landscape character of the

site and its vicinity will change dramatically”.

Mr Rough

[492] A persistent theme in Mr Rough‟s evidence was that even where the wind farm is dominant in the landscape its “rural character” would remain. That can be criticised as the wrong legal test under all of the district plan, the regional plan, and Part 2 of the Act. Further, we tend to agree with Ms Steven‟s observation816 that Mr Rough was “... mentally separating the wind farm from other landscape elements”. Earlier Ms Steven had written817:

I find it odd that Mr Rough refers to the turbines as sitting lightly upon the land allowing the existing rural landscape to flow underneath – when the NZILA definition of landscape is the “landscape reflects the cumulative effects of natural and cultural processes”. Furthermore the roading and other earth disturbance will have a cumulative effect on the ground itself as will the presence of buildings and power lines.

We find that the wind farm is so large that it will have the effect of creating a new, not unattractive wind farm landscape of much less naturalness than the larger landscape the Meridian site is currently part of.

Ms Steven

[493] Ms Steven considered818 the wind farm would be “simply incompatible”819 with the qualities of high naturalness, “sense of remoteness and isolation” which she identified820 as “... probably the most valued attributes” enjoyed from these viewpoints.

In her opinion821:

815 Mr B Espie, evidence (9 May 2009) para 4.16 [Environment Court document 21].

816 Ms E A Steven, rebuttal evidence para 72 [Environment Court document 9A].

817 Ms E A Steven, rebuttal evidence para 61 [Environment Court document 9A].

818 Ms E A Steven, evidence-in-chief para 23.28 [Environment Court document 9].

819 Ms E A Steven, evidence-in-chief para 23.28 [Environment Court document 9].

820 Ms E A Steven, evidence-in-chief para 23.28 [Environment Court document 9].

  1. Ms E A Steven, further evidence-in-chief (November 2008) para 111 [Environment Court document 75].

... the insertion of large-scale fields of turbines into the pastoral landscape causes a fundamental shift in character from a dominantly pastoral or treed landscape to one that is overwhelmingly a

„sustainable energy‟ or a „rural industrial‟ landscape. Landform and trees will no longer be the dominating elements. The solid pale-coloured turbines are of such a large scale and are uncharacteristically moving that they elevate their presence to a level where they become a dominant part of the landscape. They could not be said to be able to be integrated into the landscape the same way farm buildings or even pylons can.

Overall we prefer Ms Steven‟s individual assessments to those of Mr Rough. We consider she has more accurately assessed the probable effects of the wind farm on the landscape. And we have already found that she more accurately assessed what the landscape is, its extent and its quality.

5.7.8 Visual absorption capacity of the Meridian site

[494] Mr S K Brown, the other landscape expert for Meridian, approached his assessment from the other end of the telescope to Mr Rough, by taking the big picture. The implicit logic seemed to be that if the landscape, as Mr Brown defined it, is not very sensitive, then it is acceptable (in landscape terms) to site a wind farm there. Mr Brown used the „visual absorption capacity‟ technique on his defined landscape. That is a two- step technique where first the “VAC” of the target landscape is assessed, and then an assessment is made of how well a proposed structure is likely to be absorbed by the landscape. Mr Brown carried out the first part of that analysis for his Lammermoor landscape (including that part within Dunedin City Council) and his conclusions as to

the „sensitivities‟ of the Meridian site for development are822:

822 Mr S K Brown, evidence-in-chief following para 96 [Environment Court document 4].

SENSITIVITIES RELATED TO WIND FARM DEVELOPMENT

Local Sensitivities:

Major Road Corridors: Settlements & Housing Otago Rail Trail: Outstanding Landscapes:

Historic sites:

Topography: Scale:

Relative Elevation: Land Uses:

Complexity / Diversity:

Sensitivity Rating:

[495] We understand Mr Brown to have analysed the Meridian site in two ways – first the sensitivity of its relationship to other qualities of the surrounding area; and secondly the capacity of the site to „absorb‟ a wind farm. Apart from the „outstanding landscapes‟ the district plan‟s policies are silent about the „sensitivities‟ he raised so why he called them „local sensitivities‟ is difficult to understand. On the other hand there is some justification for considering each of these sensitivities under sections 5 to

7 of the Act, although Mr Brown did not expressly recognise the different weights to be given to the factors identified in each of these sections. For example outstanding natural landscapes and historic heritage are matters of national importance to be recognised and provided for823 whereas the other matters have (at best) to be had particular regard to824. While Mr Brown may be quite correct that the Meridian site

might not have any effect on the amenities of major road corridors, settlements and housing (although on this last some of the appellants would disagree in respect of their properties on Linnburn Runs Road) and the Otago Rail Trail, there is minimal or no policy justification for protecting those amenities in section 13 of the district plan. The only policy we can think of is policy 13.4.7 which requires Meridian to avoid, remedy or

mitigate the “impact on communities”825.

823 Section 6 of the RMA.

824 Section 7 of the RMA.

825 Policy 13.4.7 [Central Otago District Plan, pp 13:7 and 13:8].

[496] As for Mr Brown‟s second table, of visual absorption capability, we find that difficult to understand. For a start it has to be read as a „sensitivity‟ rating, so to obtain his assessment of visual absorption capacity we have to reverse each assessment. The next difficulty is with Mr Brown‟s topography rating. Of his three explanatory examples we would have accepted that the Lammermoor best fitted the description of having a simple planar character – which is described as less able to absorb new development. It follows from this that the landscape has a low capability of absorbing development and therefore a high sensitivity.

[497] When we examine Mr Brown‟s assessment of „scale‟ we find that the site has a high visual absorption capacity for that heading which must be intended to mean that the wind farm is small in relation to the landscape. We can understand what that means if one is going to place one or two turbines within the 135 km2 footprint of the entire Meridian project (including the area of the Logan Burn Gorge) but we do not understand how the scale can be high where turbines are to extend over 92 km2 of that area (92/135

– about 68%). „Scale‟ is a relative and confusing concept for lay people. We understand that „large scale‟ means the object being considered is large in the context of the area or space being considered. „Small scale‟ means the object is small in comparison with the area or space. In the landscape context this must surely compare the size or volume of the objects of concern (here, many huge turbines) with the size or volume of the area or space in which they are to be placed, ostensibly in Mr Brown‟s evidence the Meridian site or the landscape as he defined it.

[498] But if a site is to have a high visual absorption capacity in relation to scale the object(s) to be placed within it must surely be relatively small. Of course, compared with the area of the Meridian site each turbine is very small in area. However, it is really a combination of two factors that make up the object to be compared with the site area – the ground area (a rectangle) swept by each turbine‟s rotors and the fact that there are 176 turbines proposed. We find that we cannot accept Mr Brown‟s assessment in relation to scale.

[499] The only way we can see that Mr Brown can give a scalar visual absorption capacity as high as he does is by placing the Meridian site in a larger landscape which includes the Rock and Pillar Range to the north, the Lammermoor Range to the south,

and the Lammerlaw to the southwest. The bigger the landscape the smaller the Meridian site in comparison and hence the smaller the scale and larger the VAC. Effectively Mr Brown implicitly chose a large landscape when he stated in his conclusion826:

By contrast, Meridian Energy‟s Project Hayes‟ site is rather more recessive – both at the macro and local scales – and displays a range of attributes that make it acceptable as wind farm site.

Mr Brown‟s „macro‟ scale is inconsistent with his own finding that the Lammermoor site – as he defines it – is, with the western scarp, a landscape in itself.

[500] We prefer the conclusion of Ms Steven on the capacity of the landscape to absorb the wind farm827:

For the applicant it is suggested that because of the scale of the landscape and its open expansive character, the wind farm could be absorbed into it. I disagree. Because the landscape is so open the wind farm would be prominent, but more significantly it inserts tall vertical elements into a dominantly horizontal landscape thus increasing prominence. I would expect absorption capacity to be higher in a more deeply dissected range and valley landscape with strong vertical components and where the terrain limits external views to a greater degree.

5.8 Effects on amenities

[501] There are various other aspects of wellbeing which section 7 of the RMA directs us to have particular regard to828. The Act defines829 “amenity values” as “... those ... qualities of an area that contribute to people‟s appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes”.

[502] Mr Greenaway‟s conclusion in relation to the effects of the Meridian project on recreational amenity was830:

826 Mr S K Brown, evidence-in-chief para 114 [Environment Court document 4].

827 Ms E A Steven, evidence-in-chief para 27.8 [Environment Court document 9].

828 Section 7(c) and (f) – referred to in Chapter 3.0.

829 Section 2 of the RMA.

830 Mr R J Greenaway, evidence-in-chief para 7.2 [Environment Court document 59].

While the total recreation days in the setting may increase (that is, there ma y be a case to claim a net recreation benefit, particularly with regard to tourism), a negative effect will be registered by a portion of current visitors to the area due to changes in its visual amenity qualities. Other users will perceive the presence of the wind farm as a positive. Considering the low or moderate level of use of the setting, and the fact that all current recreational activities will remain possible and retain almost all of their setting and experience characteristics, the net effect of the proposal on current recreation and tourism activities will be only minor.

We hope it is not unfair to Mr Greenaway‟s evidence when cross-examined on that by Mr Holm to summarise his view as being that there are not many recreational users of the Lammermoor and surrounding area and that those who do so and are offended by the wind farm could move elsewhere.

[503] Ms Kelly was critical of that evidence831:

The surrounding ROS settings will be compromised by way of aesthetics, movement, noise and light, both day and night (over-night camping), all of which will detract from the designated recreational back country/natural/remote experience. The wind farm will also have a much wider effect in terms of the adjacent uplands. At present one can see across the block mountain tops, from one to another, and find them an unsullied open, natural experience as far as one can see, which is a very long way.

[504] Mr Brown accepted the visual aspects as significant832:

There seems little doubt that the proposal would have a significant impact upon the landscapes of the Lammermoor range and Upper Taieri Styx Valley.

On whether this challenge to the „natural order‟ of the existing landscape was

appropriate or not, he wrote regarding amenity833:

The essence of all amenity landscapes, however, regardless of their underlying nature.....and related audiences, is an existing landscape 'glued together' by a certain cohesion of expression and unity of elements that gives rise to it being 'pleasant' 'aesthetically' cohesive' and havi ng cultural or recreational appeal

831 Ms J A Kelly, rebuttal evidence para 148 [Environment Court document 17A].

832 Mr S K Brown, evidence-in-chief para 8 [Environment Court document 4].

833 Mr S K Brown, evidence-in-chief para 37 [Environment Court document 4].

The essence of maintaining such values is usually the retention of the status quo, or at least the maintenance of the major building blocks that contribute most to a localit y‟s present day appearance and imagery [Our emphasis].

[505] Ms Kelly focussed the CORUF appeal specifically on the detail of amenity, highlighting the appreciation of the current amenity as a consistent theme. Ms Kelly supplied a collection of CORUF member statements to support this. The 4WD enthusiasts‟ club wrote of the challenges they enjoy driving the current road alignment and the added aesthetic value of the setting. They regard the upgrade of the road and the aesthetic changes as significantly altering the present experiential amenity they

value834. This appeared typical of the responses gathered.

[506] We also heard from farmers in Linnburn Runs Road who will view the turbines along the ridge. They made it clear that the introduction of the turbines will affect the rural aesthetic they cherish. Mr Manson wrote835:

After being faced with the turbines all day long there will be no reprieve for us, as our house faces the site and our dominant view is the proposed site. Even in the evenings the towers navigation lights will flash destroying our night sky. Any new visitor to our house can‟t help but be moved and awestruck by the beauty of our view which we have always seen ourselves as very fortunate to have and will be devastated to lose.

[507] In summary we predict that the visual effects on the amenities of the residents of Linnburn Runs Road will be more than minor. The effects on the amenities of users of the Eastern Central Otago Upland Landscape will be major, although care has to be taken in respect of these to place little weight on this matter because it duplicates concern about landscape values.

[508] Mr Laurenson836 and Mr Manson837 also both drew our attention to possible noise effects on their amenity and on that of the Paerau School. Evidence838 was prepared by a noise expert, Mr M J Hunt, for Meridian. No party wished to cross-

examine Mr Hunt so it was entered into the Court record without opposition. Mr

834 Ms J A Kelly, rebuttal evidence Appendix 1F(3) [Environment Court document 17A].

835 Mr I Manson, evidence-in-chief para 3.2 [Environment Court document 20].

836 Mr E Laurenson, evidence-in-chief para 8 [Environment Court document 19].

837 Mr I Manson, evidence-in-chief paragraphs 5.1 – 5.9 [Environment Court document 20].

838 Mr M J Hunt, evidence-in-chief [Environment Court document 58]

Hunt‟s opinion839 is that noise effects from the operation of the wind farm would be no more than minor and we accept that.

5.9 Effects on historic heritage

5.9.1 Archeological heritage

[509] The evidence of Mr Petchey840 was that, the Old Dunstan Road aside, the wind farm will have only a minor direct impact on known archeological sites. All known sites have been incorporated into Meridian‟s Planning Construction Map System, and all have been avoided apart from track crossing points over water races841. Two points have been identified where track crossings of water races will be required842. There will be damage to the water races at these points arising from the construction of the

tracks. Mr Petchey stated that only a small proportion of the total length will be affected and the crossings will not affect the overall condition of the races.

[510] One turbine (WTG J4P4) will be located near to a set of sod yards and the water race from Spillers Creek to Pettigrew‟s/Clunie‟s workings843. Mr Petchey stated in evidence that this turbine will be “... the closest construction area to a significant archeological site ...”. He did not say how close the turbine will be to the site. The map844 entitled “Project Hayes Environment Court Appeal Reference Drawing” shows the location and identity of each turbine. It also purports to show the location of archeological sites – they are one of the labelled items in the key – but does not appear to do so. On the similar map supplied to us by Meridian for use on our first site inspection, entitled “Project Hayes Consent Hearing Reference Drawing”, turbine locations and identity are shown along with archeological sites. Referring to this map, it appears that turbine J4P4 is very close to an archeological site – the „dot‟ for the turbine overlaps the „dot‟ for the archeological site. There appear to be another five or

six sites in very close proximity of the turbine – within 200 metres of the site, as near as

839 Mr M J Hunt, evidence-in-chief para 18 [Environment court document 58].

840 Mr P R Petchey, evidence-in-chief para 6.2 (the second one) [Environment Court document 5].

841 Mr P R Petchey, evidence-in-chief para 5.1 [Environment Court document 5].

842 Mr P R Petchey, evidence-in-chief para 5.2 [Environment Court document 5].

843 Mr P R Petchey, evidence-in-chief para 5.3 [Environment Court document 5].

844 Exhibit 3.1.

the scale of the map and our eyesight allows us to determine. Two of these sites appear to be less than 100 metres from turbine J4P4. The „dot‟ for one of these sites also overlaps the line on the map representing the road from turbine J4P4 to turbine J4Q1. Mr Petchey wrote that, “... great care will be required during construction to avoid damage to [these] sites ...”. He stated that the fencing off of these sites with “warratahs and flagging tape” is required, and concluded that “... if care is taken [the turbines] will not physically affect [the sites] or their archeological values.”

[511] Mr Petchey acknowledged845 in cross examination that:

... some of these sites are actually really hard to see. These old stockyards beside this hut have


escaped two previous archeological surveys and the landowner didn‟t know they were there.

Given this difficulty for the untrained eye to discern some of these sites, the topography of the wind farm site, and the ease with which vehicles can travel „off-track‟, we have concerns about any site that is in near proximity to any construction site, road or track. If we decide to grant consent we may make it a condition that all known heritage sites within near proximity (perhaps 50 metres) of construction activity, roads or tracks be clearly and visibly marked and delineated „on the ground‟ before construction commences, and remain so marked throughout the construction of the wind farm. CODC condition 77 currently requires that “identified archeological sites are clearly marked during construction”. We would extend this for those in near proximity to construction activity that they should also be clearly and visibly delineated on the ground.

[512] Mr Petchey indicated846 that there has been some discussion of fencing around the stock yards and the remnants of the hut847 that Mr Rough pictured in his evidence848. From a comparison of the location of turbine J4P4 on the map referred to above, with the site of R3, H43/70 on the map attached to Mr Petchey‟s evidence, we suspect these

are the archeological sites close to turbine J4P4 referred to above. Given the danger to

this site, and the “great care” that would need to be exercised during construction, then a

845 Transcript, p. 383.

846 Transcript, p. 383.

847 Identified by Mr Petchey as R3, H43/70, Transcript, p. 381.

848 Mr P Rough, evidence-in-chief p. 22 Figure 12 [Environment Court document 3].

condition of any consent may be that turbine J4P4 and the road leading from it to turbine J4Q1 be located so as to give a 100 metre clearance from these sites. Given the 150 metre radius flexibility in turbine siting, this may be possible within the original envelope.

[513] Mr Petchey indicated849 that the greatest danger to archeological sites on the Lammermoor is from stock. Mr Harrington, a trustee of Rocklands Station, said in answer to questions from the Court850 that stock tend to gather and “tent” in areas of exotic grasses. For this reason they (Rocklands Station) have requested remediation in tussock where possible. In conjunction, these facts lead us to concerns that remediation in exotic grasses may increase the risk to nearby archeological sites by encouraging greater concentrations of stock than would normally occur. If consent is granted, it will be required that any archeological sites within 50 metres of areas remediated in exotic

grasses be permanently protected from stock damage in a way that does not reduce the archeological features of the sites.

[514] We record here that Meridian have reached agreement851 with the New Zealand

Historic Places Trust to identify and appropriately protect any historic sites within the wind farm. In addition Meridian has agreed to:

2009_29301.jpg contribute $20,000 towards Conservation and Management Plans;

2009_29301.jpg fence two sod yards and two chimneys to a maximum cost of $35,000;

2009_29301.jpg contribute up to $80,000 towards archeological reports;

2009_29301.jpg contribute up to $32,000 towards an archeological authority under section 12 of the Historic Places Trust 1993;

contribute $12,000 towards research on the Old Dunstan Road.

[515] Provided the mitigation is put in place and is protected by the proposed conditions, then we agree with Mr Petchey852 that the wind farm will have only a minor

effect on the archeological sites of the Lammermoor. The discrete recorded sites will

849 Transcript, p. 383.

850 Transcript, p. 2202.

851 Mr A Beatson, opening submissions (28 July 2008) para 157 [Environment Court document 23].

852 Mr P R Petchey, evidence-in-chief para 6.2 [Environment Court document 5].

remain virtually unchanged and the “landscape forms and historic infrastructure that connect the sites and give them meaning will survive intact”853. The archeology of the sites will still be available and able to be interpreted in a meaningful way.

[516] It is a condition854 of the consent granted by the CODC that there be an Accidental Discovery Protocol in place as part of the Construction Environmental Management Plan. Responding to Mr Douglas855, Mr Petchey was clear that this needs to be “very robust” and that Meridian “can‟t afford to muck it up”. He was explicit856 that the success of such a protocol “relies entirely on the company in charge having a ... willingness to follow it”. Based on his previous experience in working with Meridian,

Mr Petchey was confident that Meridian would follow it and had an appropriate attitude to such protocols857. Mr Petchey accepted858 that the initial discovery of a site during a construction process “usually damages it to a certain extent”, but that “nothing else happens until it is inspected”. We agree that an Accidental Discovery Protocol is needed and accept Mr Petchey‟s experience that Meridian is a good corporate citizen in implementing such protocols.

5.9.2 The Old Dunstan Road

[517] Mr Petchey discussed859 the quandary he faced in assessing the Old Dunstan Road as an archeological or a heritage site. As an archeological site, the entire length of the road has been modified to an extent, but in total “the road remains a significant heritage feature”. He concluded that the Old Dunstan Road “retains significant heritage values, despite the incremental modifications”. The values relate to the “overall

experience of the road”, not the “specific preservation of the original fabric”.

853 Mr P R Petchey, evidence-in-chief para 5.23 [Environment Court document 5].

854 Conditions 74-79 of Schedule One to Mr H Rennie‟s submissions of 19 January 2009[Environment

Court document 44A].

855 Transcript, p. 367.

856 Transcript, p. 386.

857 Transcript, pp 386-388.

858 Transcript, p. 389.

859 Mr P Petchey, evidence-in-chief para 5.12 [Environment Court document 5].

Changes to the fabric of the Old Dunstan Road

[518] We understand from the engineering evidence of Mr Coulman860 there will be the following modifications to the road: the widening of the road to a uniform 5 metres width, and 10 metres width on some corners, the creation of some box cuts to improve the gradient at steep points, the sealing of some of the steeper sections of the road and the improvement in the surface of the road to take the weight of the transport vehicles. Post construction the road will be rehabilitated back to a 5 metre width. Mr Coulman

stated861 that:

... seals will be designed to remain insitu as per the proposed conditions of consent862. Later he stated863:

However all (tar)seal can be removed following construction.

In his rebuttal to Mr Douglas on dust issues, Mr Coulman wrote864 that:

A further key mitigation strategy ... is the sealing of the access roads and Old Dunstan Road with an appropriate metalled surface...

[519] We understand that that the word “seal” is being used in two senses. We understand that all or most of the length of Old Dunstan Road will be upgraded by “sealing” with metal to provide an appropriate surface to handle the volume of traffic and the oversize traffic that will occur during construction. Some short, steeper sections of the road will be “sealed”, as in tarsealed, to improve traction and reduce maintenance. Mr Coulman‟s statement above, in the context of the tarseal, indicates that the tarseal could be removed. Presumably the metal-seal could also be removed. However, there is no evidence that states the intention is to remove either the tarseal or

the metal seal. Further, condition 65 states865 that:

860 Mr A J Coulman, evidence-in-chief Appendix 4 [Environment Court document 30].

861 Mr A J Coulman, evidence-in-chief Appendix 4 para 10 [Environment Court document 30].

862 Condition 65, Schedule One to Mr H Rennie‟s submission of 19 January 2009 p. 24 [Environment

Court document 44A]

863 Mr A J Coulman, evidence-in-chief Appendix 4 para 14 [Environment Court document 30].

864 Mr A J Coulman, rebuttal evidence para 6.1[Environment Court document 30A].

865 Schedule One to Mr H Rennie‟s submission of 19 January 2009 p. 24 [Environment Court

document 44A]

... the proposed seal on hill sections of Old Dunstan Road shall be designed and retained as a

permanent seal.


[Our emphasis]

[520] Mr Coulman‟s statements in answer to Mr Carr866 indicate that the original intention of Meridian had been to remove the tarseal, but the consent conditions require that it be retained. In response to questions from the Court867 Mr Coulman confirmed that the improved road surface would remain in place on Old Dunstan Road. We understand that the rehabilitation of the road will reduce the road width to a standard five metres, but will not include removing any of the metal, the tarsealing or the improvement to the quality of the road surface.

[521] Mr Coulman stated868 that the intention is to use local material as the basecourse for the upgrading of Old Dunstan Road “... provided it is of adequate strength, to match the existing basecourse ... and to remain in keeping with its existing appearance”. We understand that basecourse usually has a layer metal on top when forming an unsealed road. From the tenor of the evidence we assume that the intention is that the basecourse is also the top course, so the Old Dunstan Road will have local material on the visible surface as well as the underlayers, if sufficient suitable material can be found locally. The road will generally retain its present alignment.

[522] Mr Petchey noted869 that the road had already been modified for its entire length and that it was the “visual condition, route and setting” that were the most important heritage values. Therefore he considered that “rehabilitation of the road back to its present appearance as far as practicable” was appropriate. He considered870 that rehabilitation would return much of the road back to its present appearance. He relied871 on Meridian “achiev(ing) what they assure me they (can) achieve with the

rehabilitation of the road”, in which case the average visitor will not be aware of the

866 Transcript, p. 1320.

867 Transcript, p. 1379.

868 Mr A J Coulman, evidence-in-chief Appendix 4 para 5 [Environment Court document 30].

869 Mr P R Petchey, evidence-in-chief para 5.14 [Environment Court document 5].

870 Mr P R Petchey, evidence-in-chief para 5.18 [Environment Court document 5].

871 Transcript, p. 375.

changes to the road. He noted872 that the box cuttings would have the greatest lasting effect on the road, as they will be permanent modifications that will not be totally rehabilitated. Mr Petchey had enumerated873 seven box cuttings, including one at Sutton Stream and four on the descent into the Taieri Valley. In cross examination he noted874 that a bridge over Sutton Stream was under discussion, which would replace one cutting. Subsequent to Mr Petchey giving evidence, we have been advised by Mr Wilson,875 that the use of a quarry in the vicinity of Clarks Junction means that no alteration to Old Dunstan Road going from the Lammermoor down into the Taieri valley will be required. Thus there will be no box cuttings on the northern end of Old Dunstan Road, and the cutting at Sutton Stream may be replaced by a bridge. Presumably the bridge will remain after construction of the wind farm is complete. Whether the bridge will have a greater or lesser impact on the heritage values of the Old Dunstan Road than the box cutting is unknown to us, and is irrelevant for present purposes anyway.

[523] Given that the tarsealed areas of the road, and the metal-sealed length of the road, will remain after construction is completed, we predict that all or most of the road will no longer “... retain essential elements of its original existence including the ... unsealed appearance” as Mr Petchey described876 the current condition of the road. That is consistent with Mr Petchey‟s opinion877 that the lasting improvement in the

quality of the road surface – improving it to the point where all-year use is feasible – would “change the nature of the road”. In discussion with Dr Floate878, Mr Petchey acknowledged that in a good summer rainstorm getting a vehicle stuck on the road was still possible at present. He agreed with Dr Floate879 that this is one aspect in which the present day road still bears some of its original characteristics. Although not discussed further, we take from this that the improvement to the road surface, separate from its appearance, will be a further lasting change that will negatively impact on the heritage

value of the road.

872 Mr P R Petchey, evidence-in-chief para 5.17 [Environment Court document 5].

873 Mr P R Petchey, evidence-in-chief para 5.17 [Environment Court document 5].

874 Transcript, p. 375.

875 Transcript, pp 2377-2378.

876 Mr P R Petchey, evidence-in-chief para 4.19 [Environment Court document 5].

877 Mr P R Petchey, evidence-in-chief para 5.16 [Environment Court document 5].

878 Transcript, p. 371.

879 Transcript, p. 372.

[524] We agree with Mr Petchey that the visual condition of the road is most of what the physical construction of the road contributes to the heritage value of the road. We would add to this that the road surface also adds much to the heritage experience of travelling the road, and so is important to the heritage value of the road. We conclude that the archeological significance of the Old Dunstan Road has been diluted by the modifications that have occurred over the last 140 plus years. However, the archeological significance is only one part of heritage value. Despite the dilution of the archeological significance, the appearance of the road and nature of the road surface does “retain essential elements of its original existence”, and that these contribute to the heritage experience and the heritage value of the road. The proposed modifications to the road by box cuts and/or bridging at Sutton Stream will substantially change the appearance of the road at localised points, as will localised tarsealing of the road. If the upgrading of the road surface is not done sympathetically, using locally-sourced material, this will change the appearance of the upgraded section of the road. The upgrading of the road surface from a dry season, back-country road, to an all-year round, graveled road will change the experience of travelling on the road. While these changes will be seen as positive to the travelling public, and will substantially enhance the accessibility of the Lammermoor for other activities, they will have a substantial negative impact on the heritage experience of travelling the road.

[525] We acknowledge, as Mr Petchey did880, that construction, upgrading or realignment of roads within the road reserve is a permitted activity within the Central Otago District Plan. Therefore the changes that Meridian is proposing to Old Dunstan Road, with the exception of bridging, can all occur as of right so long as they remain within the road reserve. However, absent the wind farm, we consider the likelihood of any substantial changes is very low.

Surroundings of the Old Dunstan Road

[526] Mr Petchey was of the view881 that the loss of the heritage experience was of greater concern to submitters and objectors than potential damage to archeological

values. Despite the modifications to the Old Dunstan Road, Mr Petchey stated882 that

880 Mr P R Petchey, evidence-in-chief para 5.13 [Environment Court document 5].

881 Mr P R Petchey, evidence-in-chief para 5.9 [Environment Court document 5].

882 Mr P R Petchey, evidence-in-chief para 5.21 [Environment Court document 5].

the landscape of today is the same in scale and form that the miners of the 1860s saw, and that the overall experience would probably be similar. He found the impact of the turbines on the landscape “difficult to assess”883. The “archeological landscape itself will still be able to be „read‟ beneath the towers” 884, however the visual change to the

setting will be “undeniable”885. In concluding his assessment on the historic landscape,

Mr Petchey wrote886:

Overall, my opinion is that the proposed windfarm will have a visual impact on the heritage landscape, particularly on views from Old Dunstan Road, but this landscape will still be able to be „read‟ by archeologists and visitors. At a discrete archeological site level, the effects will be relatively minor...

Although he found the effects “relatively minor” at the discrete (archeological) site level, Mr Petchey does not quantify the effects at the heritage surroundings level. When asked about the „heritage landscape‟ Mr Petchey deferred to Mr Rough, as a landscape matter887.

[527] Mr Rough did not consider himself as having “particular expertise in the study of heritage landscapes”, although he acknowledged that he has had “considerable experience” on heritage sites in multi-disciplinary teams888. He noted that this occurred in the “mid 1970s”, which we place as very early in his career, as he stated that he has been practising as a landscape architect for 34 years889, which indicates he began practising in 1974. In his brief review of the concept of „heritage landscapes‟890, Mr Rough quoted a New Zealand Historic Places Trust briefing paper on heritage landscapes and points out that heritage landscapes are “... potentially more difficult to identify, understand, evaluate and protect”891. He then stated892 that the site and

potentially a wider and:

883 Mr P R Petchey, evidence-in-chief para 5.23 [Environment Court document 5].

884 Mr P R Petchey, evidence-in-chief para 6.5 [Environment Court document 5].

885 Mr P R Petchey, evidence-in-chief para 5.24 [Environment Court document 5].

886 Mr P R Petchey, evidence-in-chief para 5.25 [Environment Court document 5].

887 Mr P R Petchey, evidence-in-chief para 5.19 [Environment Court document 5] and Transcript, p.

375.

888 Mr P Rough, evidence-in-chief para 116 [Environment Court document 3].

889 Mr P Rough, evidence-in-chief para 1 [Environment Court document 3].

890 Mr P Rough, evidence-in-chief para 114 [Environment Court document 3].

891 Mr P Rough, evidence-in-chief para 114 quoting from NZHTP (2003), Heritage Landscapes Think

Tank, Wellington [Environment Court document 3].

892 Mr P Rough, evidence-in-chief para 117 [Environment Court document 3].

very extensive area could be regarded as a heritage landscape. However ... it is very difficult to identify boundaries of what may be regarded as a heritage landscape associated with the site and/or the Old Dunstan Road.

After briefly outlining the heritage values of the Lammermoor893, Mr Rough gave his opinion894 that:

the notion of the site and its vicinity being a heritage landscape is a very broad concept indeed. And ... it is somewhat difficult not to come to a conclusion that most, if not all of Central Otago has similar heritage landscape connotations. ... it is my opinion that a heritage landscape associated with the site and its vicinity is very difficult, if not impossible to define. The Old Dunstan Road is not a heritage landscape but is an historic route and (quoting Mr Petchey) “a highly significant heritage feature.

Mr Rough summarised895 his discussion on the „heritage landscape‟ (we prefer „heritage surroundings‟) status of the area rather ambiguously as follows:

In essence ... if the site and its broad vicinity is to be regarded as a heritage landscape it is, like most landscapes, a dynamic one.

[528] Mr Rough has been careful to not directly give any opinions as to the heritage status of the Lammermoor landscape. He is clear that the Old Dunstan Road itself is a heritage feature, not a „heritage landscape‟; he indicates he has difficulty with the wind farm site and its vicinity being a heritage landscape; but he does not address whether the landscape of the Old Dunstan Road is a „heritage landscape‟. The closest he comes

to expressing his opinion is a statement896 that he is “... aware that the broad landscape

within the site, like much of Central Otago, is likely to be part of a heritage landscape.”

In cross-examination897 on this statement, Dr Floate asked Mr Rough:

Do you accept that you still consider it to be part of a heritage landscape?

893 Mr P Rough, evidence-in-chief para 118-125 [Environment Court document 3].

894 Mr P Rough, evidence-in-chief para 126 [Environment Court document 3].

895 Mr P Rough, evidence-in-chief para 137 [Environment Court document 3].

896 Mr P Rough, evidence-in-chief para 346 [Environment Court document 3].

897 Transcript, p. 254.

To which Mr Rough replied:

That‟s what I‟ve written in paragraph 346, yes. I haven‟t changed my opinion on that.

Despite the “yes” in that statement, we take it to mean that Mr Rough has not changed his opinion that the Lammermoor is “likely to be part of a heritage landscape”. This is not saying that it is his opinion that it is a heritage landscape.

[529] Given his diffidence as to his experience in this area, we conclude that Mr Rough does not feel qualified to express an opinion as to whether the Old Dunstan Road, the site or the Lammermoor is a heritage landscape or part of one.

[530] Perhaps aware of the difficulties we discussed in Chapter 3.0 about use of the term “heritage landscape” Ms Steven generally uses the term “heritage setting”. At the conclusion of the „Heritage‟ part of her description of the Landscape Context she quoted898 the Commissioners‟ Decision quotation of Mr McLean, a senior heritage policy advisor of the Historic Places Trust899, that the:

... isolated (landscape900) setting over the Lammermoor ... is an essential landscape context for

the road.

She wrote later901 that:

The protection of heritage values has moved in recent years from merely protecting artifacts and physical remains as isolated features to considering links and relationships between features and with their settings.

Ms Steven concurred with Mr McLean, whom she quotes902 as holding that:

... the Lammermoor Range is an essential landscape feature of the Old Dunstan Road and is not readily separable from it and that the isolated setting is integral to its heritage.

898 Ms E A Steven, evidence-in-chief para 16.10 [Environment Court document 9].

899 Identified at Commissioners‟ Decision, p. 76.

900 Inserted by Ms Stevens, not in the original Commissioner‟s Decision.

901 Ms E A Steven, evidence-in-chief para 26.4 [Environment Court document 9].

902 Ms E A Steven, evidence-in-chief para 26.16 [Environment Court document 9].

[531] Mr Brown did not directly address the issue of heritage surroundings or setting, but in his assessment of the landscape values of the site and the Lammermoor903 he ascribes “High – Moderate” to Heritage Associations. He echoed Mr Rough when he commented904 that the historic associations of the Old Dunstan Road and the Lammermoor:

... hardly set this part of the District apart from most others...the effects identified in relation to the Project Hayes site are far from exceptional in relation to the heritage and historic sites of the District.

[532] We consider that whether other parts of Central Otago may or may not be considered as heritage „landscapes‟ or settings (about which we express no opinion) is not relevant to determining the heritage landscape status of the Lammermoor or the Old

Dunstan Road. Noting Mr Petchey‟s views that:

2009_29301.jpg “The landscape that the miners of the 1860s saw would therefore have been the same in scale and form to that of today ... (and) the overall experience was probably similar ...”905;

2009_29301.jpg Travelling the Old Dunstan Road is “...the closest that you can reasonably

get to experiencing that journey to the goldfields”906; and

2009_29301.jpg Despite the changes over time the Old Dunstan Road “... still retains

essential elements of its original existence, including the overall

setting...”907

– we conclude that there is a heritage surrounding or setting associated with the Old Dunstan Road and the Lammermoor, and that the proposed wind farm will have a significant negative impact on that heritage surrounding. We do not need to define the boundaries of the heritage surrounding precisely but state that it encompasses the area that is viewed as the high plateau of the Lammermoor is traversed via the Old Dunstan

Road. As Mr Petchey stated908, the effects of the wind farm on the heritage landscape

903 Mr S K Brown, evidence-in-chief para 96 Table 5 [Environment Court document 4].

904 Mr S K Brown, evidence-in-chief para 95 [Environment Court document 4].

905 Mr P R Petchey, evidence-in-chief para 5.21 [Environment Court document 5].

906 Transcript, p. 372.

907 Mr P R Petchey, evidence-in-chief para 2.19 [Environment Court document 5].

908 Mr P R Petchey, evidence-in-chief para 5.24 [Environment Court document 5].

are “undeniable”, and “...the scale of the proposed (turbine) towers will make them an

obvious element in the landscape”.

[533] Mr Petchey concluded909 that:

The greatest overall impact (of the wind farm) will be on the landscape setting of the historic and archeological sites ... The visual change to the setting of this part of the Old Dun stan Road and the recorded archeological sites in the area will be obvious.

Similarly, Ms Steven put it910 as follows:

... the experience associated with travelling the Old Dunstan Road will be significantly altered

...The sense of remoteness and immersion in the vast natural landscape with apparent isolation from things cultural, ... - the key elements of the experience – would vanish. This applies to the physical road experience itself and the perception of the wider heritage landscape with the road at its core. ... (the wind farm) would effectively sever the relationship with the past, reducing it to mere artifacts devoid of any contextual meaning.

We agree with both these statements and accept that the proposal will have more than minor adverse effects on the nationally important historic heritage values of the Old

Dunstan Road‟s surroundings.

909 Mr P R Petchey, evidence-in-chief para 6.5 [Environment Court document 5].

910 Ms E A Steven, evidence-in-chief para 26.8 [Environment Court document 9].

6.0 Efficient use of resources – attempting to quantify the costs and benefits

6.1 Introduction

[534] We have qualitatively assessed the possible effects of a wind farm on the Lammermoor, and the probabilities of such effects in Chapter 5.0. We now assess what quantitative evidence there is on the potential benefits and costs of the proposal.

[535] To assist the Court at the 2009 continuation of the hearing, Meridian advanced the evidence911 that Dr Layton, former chief executive of NZIER, had prepared for Meridian in response to Contact Energy‟s abandoned appeal. Further supplementary evidence912 and rebuttal evidence913 from Dr Layton was also produced. This evidence, especially the Supplementary Evidence, gave us clearer statements on the benefits and costs of the Lammermoor wind farm, and attempted to place values on many of these914. Dr Layton was of the opinion that915 “The economic value of a wind farm is its contribution to economic well-being in the community as a whole”. He explained that this covered the net benefits – positive and negative impacts (or benefits less costs)916.

6.2 Benefits

6.2.1 Summary of benefits

[536] We have summarised the benefits as identified by Dr Layton in the table below917:

911 Dr T B Layton, evidence-in-chief dated 29 May 2008 [Environment Court document 45].

912 Dr T B Layton, supplementary evidence dated 14 November 2008 [Environment Court document

45A]

913 Dr T B Layton, rebuttal evidence dated 16 December 2008 [Environment Court document 45A].

914 Dr T B Layton, supplementary evidence para 8 [Environment Court document 45A].

915 Dr T B Layton, supplementary evidence para 8.6 [Environment Court document 45A].

916 Dr T B Layton, supplementary evidence para 8.6-8.7 [Environment Court document 45A].

917 Dr T B Layton, supplementary evidence para 8.26, Summary table of costs and benefits

[Environment Court document 45A].


Benefit Identified
Value or impact
The value of the electricity produced
$157.3m/year
Lower priced power supply (which he clarified as “some suppression of price rises”918)
Minor impact
Avoided transmission losses on importation of power into Otago- Southland arising from a decreased need to import power into the region.
Minor impact
Improved security of supply - i.e. the reduced probability of supply disruption
Significant impact


The value of any synergies realised by Meridian by the joint operation of the wind farm with other generation assets919
Identified but not discussed or assessed
The direct and indirect benefits to the local economy from the construction and operation of the wind farm
Construction: $840m and 380 jobs over 5 years;
Operation: $2-$3m/year and
28-35 jobs
The development impact levy
Identified as 0.375% of capital cost
The value of reduced greenhouse gas emissions from the displacement of fossil fuels-based thermal generation
$14.9m-$67.6m/year

The „minor‟ and „significant‟ impacts were not quantified by Dr Layton.

[537] Dr Layton considered that costs and benefits were best analysed on a national basis920 and that transfers between New Zealanders have no net benefit and so should be excluded. On this basis the payment from Meridian to the landowners was neutral and not a benefit921. We agree that transfers between private New Zealand individuals (e.g. Meridian to the landowners) are neutral and have no net benefit. However, transfers from a private New Zealand individual (e.g. Meridian) to the public (e.g. Central Otago District Council) are not neutral and so are a benefit. The benefits of a Lammermoor wind farm are both national and regional, while the costs are also both national and regional. Thus, while we agree with Dr Layton that the cost-benefit analysis should be on a national basis, this does not ignore the regional effects, both

positive and negative.


  1. Dr T B Layton, supplementary evidence para 8.7(b) first bullet point [Environment Court document 45A].

919 Dr T B Layton, supplementary evidence para 8.7(a) [Environment Court document 45A].

920 Dr T B Layton, supplementary evidence para 8.8 [Environment Court document 45A].

921 Dr T B Layton, supplementary evidence para 8.10 [Environment Court document 45A].

[538] Dr Layton did not mention the community fund Mr Muldoon confirmed in cross- examination. We can only assume that he was unaware of it. From the evidence we do have of the similar funds in place for Te Apiti and White Hill and other projects922, the value is not likely to be large, probably less than $1.6m.

6.2.2 Benefits of electricity produced or contribution to Gross Domestic Product

[539] Dr Layton stated that the benefit of the value of electricity produced by the Lammermoor wind farm, on the basis of a 37% capacity factor and allowing for transmission loss of 3.7% with an electricity price of $80/MWh, was $157.3m/year923.

We have recreated his calculation as follows:


Value of Energy Output
Nameplate capacity
MW
630
(a)
Hours per year
Hours
8760
(b)
Energy output capacity per year
GWh
5519
(c) = (a) x (b) x 10-3
Capacity Factor

0.37
(d)
Actual expected annual energy output
GWh
2042
(e) = (c) x (d)
Transmission Loss/year @ 0.037
GWh
76
(f) = (e) x 0.037
Energy delivered to retailers/year
GWh
1966
(g) = (e) - (f)
Price of energy
$/MWh
$80.00
(h)
Value of energy per year
$
$157,300,000
(i) = (g) x (h) x 1000

We have two concerns about the accuracy of Dr Layton‟s calculation of $157.3m/year as the value of the benefit to the country. These derive, first from the omission of any reference to intermediate consumption, and secondly from the price of $80/MWh he has

used.

922 Transcript pp. 905 and 907.

923 Dr T B Layton, supplementary evidence para 8.11 [Environment Court document 45A].

The intermediate consumption

[540] As to the first point, despite an allusion to the “on-going operational costs”924, Dr Layton presented the gross output ($157.3 m/year) as the value of the benefit, with only an offset of the value of the operational labour component in his costs column925. We understand the value of production to the country (rather than to Meridian) is measured by its contribution to Gross Domestic Product (GDP), which is assessed by the value that is added in the process of production (Value Added). Value Added is the value of goods and services produced (Gross Output) less the value of goods and services consumed in the process of production (that is defined as “the intermediate

consumption”). In response to questions from the Court Dr Layton initially maintained this position that $157.3 m/year was a “value added benefit”926. After considerable questioning927 by the Court Dr Layton did concede that the value added benefit to the country should be calculated net of the intermediate consumption, although he had no idea as to what the value of that intermediate consumption would be928.

[541] In fact Mr Leyland, an engineer with many years of experience in the New Zealand Electricity industry, did provide us with an estimate of “operation and maintenance costs” of $26.5m/year929. This was expanded as a time series in the second line of his Exhibit 8 spreadsheet, and shows $26.5m/year for years 1-5,

$20.8m/year for years 6-12 and $37.8m/year for years 13-20930. Mr Leyland explained

to the Court that he had derived the values based on a cost curve for maintenance sourced from a firm called PB Associates931. He stated that the curve includes only maintenance, and assumes a maintenance contract between the suppliers of the turbines and Meridian, similar to that in place for the Te Apiti wind farm932. Mr Leyland

confirmed to the Court that the estimate does not include operational costs, considering

924 Dr T B Layton, supplementary evidence para 8.7(a) [Environment Court document 45A].

925 Dr T B Layton, supplementary evidence para 8.26 [Environment Court document 45A].

926 Transcript p. 1859.

927 Transcript pp. 1859-1861.

928 Transcript p. 1861.

929 Mr B W Leyland, evidence-in-chief para 3.6 [Environment Court document 80].

930 Mr B W Leyland, evidence-in-chief Exhibit 8 [Environment Court document 80].

931 Transcript p. 3132.

932 Transcript p. 3131.

these as “not particularly significant” at only “one or two men (sic)...Maybe at most half a dozen”933. He stated that the estimate does not include depreciation934.

[542] Despite extensive rebuttal of Mr Leyland‟s general evidence by Dr Layton935, Mr Waipara936, Mr Muldoon937 and Mr Botha938, the only comments made on Mr Leyland‟s maintenance costs estimates is in a single paragraph by Mr Muldoon. Mr Muldoon merely states that the metric of “$/kW is not used (by wind turbine owners) as the likely

maintenance requirements of a turbine are based on the run hours at load of a turbine”939. Mr Muldoon does not suggest that Mr Leyland‟s estimates are wrong or out of order, nor does he provide any alternative estimates. In the absence of any significant criticism, the failure of Meridian to provide its own estimate must work to Meridian‟s disadvantage. We accept both Mr Leyland‟s estimates of the maintenance costs as broadly correct and his opinion that operational costs other than maintenance are likely to be not very significant.

[543] We conclude that the intermediate consumption of the Lammermoor wind farm will be at least the values given by Mr Leyland940. We calculate the annual average of Mr Leyland‟s time series as $29.025m. We accept $30m/year as the estimated minimum value of intermediate consumption of the Lammermoor wind farm. Offsetting this $30m/year intermediate consumption against the gross output of

$157m/year of Dr Layton gives the value added benefit of the electricity generated by

the Lammermoor wind farm as $127 m/year.

933 Transcript p. 3132.

934 Transcript p. 3132.

935 Dr T B Layton, supplementary evidence paragraphs 9.10-9.14 [Environment Court document

45A].

936 Mr G M T P Waipara, rebuttal evidence (8 pages) [Environment Court document 25A].

937 Mr A J Muldoon, rebuttal evidence pp. 1-13 [Environment Court document 26A].

938 Mr P C Botha, rebuttal evidence (7 pages) [Environment Court document 27A].

939 Mr A J Muldoon, rebuttal evidence para 1.11 [Environment Court document 26A].

940 Mr B W Leyland, evidence-in-chief Exhibit 8 [Environment Court document 80].

Is $80/MWh a fair estimate of price?

[544] Our second concern with Dr Layton‟s calculation of $157m/year as the value added benefit to the country is the price of $80/MWh he has used. The Court noticed that both in the written evidence and in cross-examination, the terms “cost”, “price”, and “value” were used loosely by many witnesses. Dr Layton was no exception. When questioned by the Court on one instance, he conceded that his “value” of electricity of

$75/MWh941 would better be termed the “cost” of electricity,942 and acknowledged that

“cost” can be very different from “value”943. In determining his estimate of

$157m/year, Dr Layton stated he used “an average price of $80/MWh”944, which he qualifies in his summary table as the “mid-point estimate”945. Our concern arises from uncertainty as to what this “price” represents. Dr Layton did not source this price in his evidence and was not asked its source in Court. An exchange with the Court where Dr

Layton stated that New Zealanders pay the $80/MWh indicated that it might be a genuine price. However Dr Layton went on to say “but I have got that against the cost of the construction”946 [our emphasis], which confuses the issue again. A little later, in another answer to the Court, Dr Layton stated in relation to the $80/MWh “That‟s the market price...”947. However, if New Zealanders are paying the price, that suggests the price might be the retail price, for which $80/MWh seems too low, and the retail price would not be the correct price for the output of a generation facility.

[545] Dr Layton‟s $80/MWh coincides very closely with his “conservative value” of

$75/MWh948 that he conceded, in answer to the Court, was better termed “cost”. It is

also within the cost range of $75-$90/MWh that Dr Layton quotes from Connell Wagner

949, and within the cost range of $80-$85/MWh he quotes from the Electricity

Commission950. It also coincides closely with the estimates of cost used by other

witnesses called by Meridian. Mr Waipara uses $85/MWh for the “long run marginal

941 Dr T B Layton, evidence-in-chief para 7.6 [Environment Court document 45].

942 Transcript p. 1872.

943 Transcript p. 1875. In response to “...then the value might be a lot high(er) than the cost?” Dr

Layton responded: “Very High”.

944 Dr T B Layton, supplementary evidence para 8.11 [Environment Court document 45A].

945 Dr T B Layton, supplementary evidence para 8.26 [Environment Court document 45A].

946 Transcript p. 1853.

947 Transcript p. 1856.

948 Dr T B Layton, evidence-in-chief para 7.6 [Environment Court document 45].

949 Dr T B Layton, supplementary evidence para 9.13(b) p. 32 [Environment Court document 45A].

950 Dr T B Layton, supplementary evidence para 9.13(b) p. 33 [Environment Court document 45A].

cost of new generation”951. Mr Muldoon identified potential wind generation in the range of $59/MWh to $112/MWh, which we take to mean costs within that range952. The mid-point of this range is $85.50/MWh953. Mr Muldoon also stated in evidence that the unit cost of electricity from the Lammermoor wind farm had been assessed at “approximately 75-80 $/MWh”954, a figure Dr Layton stated in cross-examination that he was aware of955, and which he quoted later in his evidence956.

[546] In the extensive cross-examination, and in all the rebuttal evidence, the only negative comment about Dr Layton‟s $80/MWh was from Mr Leyland in his final paragraph of his last supplementary evidence. He held that due to the counter cyclical nature of wind and electricity prices “the actual income earned by the wind farm would be less than that calculated using an average spot price”957. Mr Leyland was not disputing $80/MWh was the average price, but that the actual average price received for electricity from the wind farm would be lower than the average price as the wind farm would generate more during the lower priced months and less in the higher priced

months.

[547] The evidence on electricity prices958 does not assist in resolving our concern about the price Dr Layton used. Fortunately, exactly the same question was addressed and resolved in the recently released Waitaki decision where Meridian was again the applicant: Lower Waitaki River Management Society Incorporated v Canterbury

Regional Council959. The Court in that case concluded that the appropriate electricity

951 Mr G M T P Waipara, evidence-in-chief para 116 [Environment Court document 25].

952 Mr A J Muldoon, evidence-in-chief para 4.8 [Environment Court document 26].

953 (59 + 112) / 2 = 85.5.

954 Mr A J Muldoon, rebuttal evidence para 1.12 [Environment Court document 26A].

955 Transcript p. 1819-20.

  1. Dr T B Layton, supplementary evidence para 9.13(b) final bullet point , p. 33 [Environment Court document 45A].

957 Mr B W Leyland, supplementary evidence 5 Feb 2009, para 10 [Environment Court document

80D].

958 The NZIER report „Exploring Wind Hydro Correlation‟ attached to Dr Layton‟s supplementary

evidence, the Fitch Ratings report „New Zealand Power and Utilities Credit Outlook 2009‟ (Exhibit

80.1), the Electricity Commission report „Frequency Regulation Market Development‟ (Exhibit

80.2) and the Electricity Commissioner‟s 2008 „Statement of Opportunities‟ all contain some

electricity price information.

  1. Lower Waitaki River Management Society Inc v Canterbury Regional Council, Decision C80/2009 para 495 et ff.

price for use in a current cost benefit analysis should be no higher than $70/MWh960. We are relieved to be able to adopt the same price. Using an average price of

$70/MWh in Dr Layton‟s formula then produces a gross output value of $137 m/year.

Subtracting intermediate consumption of $30 m/year gives a benefit to the country of

$107 m/year. It is important to remember that this is the maximum value of the benefit of the power output to the community. It is based on the assumption that Meridian will install 176 turbines with a rated output of 3.6 MW. Meridian‟s application is for up to

176 turbines with a capacity of up to 3.6 MW. It may well install a lesser number and/or of a lower rating. If this eventuates, the output will be less, with a consequential reduction in the value of the benefit in terms of power output. Whether the marginal reduction in the effect on the landscape will be proportionate to the reduced output is doubtful.

6.2.3 Reduced upward pressure on prices

[548] Several witnesses called by Meridian commented in their written evidence that the Lammermoor wind farm would place downward pressure on electricity prices961. When questioned on this962 it was conceded that the best the Lammermoor wind farm would do is, in the words of Mr Calman for the Crown963: “help reduce upward pressure on electricity prices.” Dr Layton clarified this himself when he used the phrase “some suppression of price rises”964. Dr Layton assessed that the general price effect of the Lammermoor wind farm would “probably (be) small” with a “minor impact”965.

[549] Wholesale prices are set by the highest-priced generator dispatched966. The Lammermoor wind farm therefore will have an impact on wholesale prices only when its additional generation acts to totally displace the highest priced generator such that it

is not dispatched. Retail prices only relate to wholesale prices in the long term and on


  1. Lower Waitaki River Management Society Inc v Canterbury Regional Council, Decision C80/2009 para 503.
  2. See Mr G M T P Waipara, evidence-in-chief para 37 [Environment Court document 25], Mr A J Muldoon, rebuttal evidence para 1.37 [Environment Court document 26A], Dr T B Layton,

evidence-in-chief para 8.7(b) first bullet point and para 8.26 [Environment Court document 45].

962 See Transcript pp. 867-8 & 899 and Transcript p. 962 .

963 Mr S D C Calman, evidence-in-chief para 43 [Environment Court document 40].

  1. Dr T B Layton, supplementary evidence para 8.7(b) first bullet point [Environment Court document 45A].

965 Dr T B Layton supplementary evidence para 8.26 [Environment Court document 45A].

966 Transcript p. 867.

an average basis967. There are already wind farms operating that when combined equate to approximately half the output of the Lammermoor wind farm968 and no evidence was presented to us to support a claim that these wind farms in combination had had an effect in moderating price increases. As Dr Layton acknowledged, the

effect of the Lammermoor wind farm is unlikely to be different from that of any other wind farm that could be built969. Therefore we consider the likelihood of a detectable lessening of general price increases due to the output of the Lammermoor wind farm to be so low as to be insignificant. Although we acknowledge the theoretical possibility, practically it is not something that we should take account of.

[550] Dr Layton did consider there was a special case where the impact of the Lammermoor wind farm on electricity prices would be significant. This arises out of the impact of dry years in the lower South Island on the availability of energy in the area, causing a localised spike in wholesale prices, which impacts on local retail profits. Dr Layton contended that in the long run the increased dry year risk of very high wholesale prices in the Lower South Island would be passed on to local consumers in the form of higher retail prices. In Dr Layton‟s view the expansion of wind generation in the Lower South Island would ameliorate the dry year risk and cause “an avoidance of (price)

increases to cover increasing risk of under supply”970.

[551] We have two concerns with Dr Layton‟s views on this point. First, the causes of the higher lower South Island prices in May-June 2008 were not discussed in cross- examination, and Dr Layton gave no support to his contention that they were due to under supply in the Lower South Island. Our understanding of the evidence before us is that wholesale prices are a function of the highest priced dispatched generator, the transmission losses between the points of injection and the points of off-take and the

extent to which any constraints are binding971. Thus the “materially higher” South

Island wholesale prices that Dr Layton refers to could have been due to the constraints in

967 Dr T B Layton, supplementary evidence para 8.15 [Environment Court document 45A].

968 Statement Of Opportunities („SOO‟) Tables 10 & 11 (Tararua Stage 3 93 MW + Te Apiti 90 MW

+ Tararua Stage 1 & 2 68 MW + White Hill 58 MW = 309 MW compared to the Lammermoor wind farm 630 MW.

969 Dr T B Layton, supplementary evidence para 8.12 [Environment Court document 45A].

970 Dr T B Layton, evidence-in-chief paragraphs 8.13-8.15 [Environment Court document 45].

  1. This understanding has been garnered from several witnesses. See Mr R A Sutton, evidence -in- chief para 2.12-2.13 [Environment Court document 47] for the most succinct statement.

the grid on import into the lower South Island (and the South Island generally through the HVDC link) coming into play. This was supported by the evidence of Mr R Sutton, CEO of Orion New Zealand, when he stated972: “if there is insufficient generation in a transmission constrained region, local spot prices can rise to extremely high levels reflecting the risk of supply shortage”. The implication we take from this is that two factors are required to cause localised price spikes – insufficient local generation and constraints on the ability to import electricity into the region. The corollary of this is that there are two possible approaches – more local generation and reduction of the

transmission constraints. Therefore the upgrade to the HVDC link to be completed by

2014 and the upgrade(s) to address the LSI constraints that would be required if the Lammermoor wind farm is built may ameliorate the risk of materially higher South Island prices. This would obviate price increases in Otago-Southland in excess of national price movements.

[552] Secondly, Dr Layton‟s solution to higher LSI price pressures due to dry year risk was “the expansion of wind farm generation in the lower South Island”973. There are already two new wind farms consented in the lower South Island (Mahinerangi and Kaiwera Downs) which, if built, together974 will add over two-thirds of the capacity that the Lammermoor wind farm will. We are doubtful that the Lammermoor wind farm will add significantly to the reduction of localised price rises in the lower South Island arising from dry year risk. We predict that the marginal effect of the Lammermoor wind farm over that of Mahinerangi and Kaiwera Downs combined on the dry-year risk price premium in the lower South Island is likely to be minimal.

[553] Given these two concerns we are reluctant to accept Dr Layton‟s view that the impact of the indirect suppression of local electricity price rises by reducing the dry year risk is “likely to be appreciable” or that it will be a “significant” impact. We find that there may be some impact of this proposal on price increases through the amelioration

of dry year risk in the lower South Island, but it is likely to be minimal.

972 Mr R A Sutton, evidence-in-chief para 2.14 [Environment Court document 47].

973 Dr T B Layton, supplementary evidence para 8.15 [Environment Court document 45A].

  1. There is a third very small farm already built at Teviot Bend, which we ignore here and elsewhere in these calculations as negligible in energy terms.

6.2.4 Avoided transmission losses on import of electricity into Otago-Southland

[554] We accept Dr Layton‟s view that increased generation will reduce the need for importation of electricity into the lower South Island, and that there will be a concomitant reduction in transmission losses on inward flows of electricity. Although the actual quantum of losses is difficult to determine, as Dr Layton indicated975, we are able to estimate the maximum avoided transmission loss. Mr Stevenson has provided us with the volume of electricity imports into Otago/Southland for the years 2005-2007. The mean annual import over these three years was 360 GWh976 which is less than the expected annual output of the Lammermoor wind farm of 2050 GWh. So the Meridian project could in theory result in a maximum average reduction in electricity imports into the Lower South Island of 360 GWh. At a reasonable maximum transmission loss of

10%977, this would be a loss on average of 36 GWh/year. At the Benmore average

wholesale spot price of $56.79/MWh978 the reasonable maximum average value of transmission losses avoided due to the Meridian proposal would be $2m/year. At the reasonable price of $70 MWh we adopted earlier the figure would be $2.5m/year. Either way, even if the maximum transmission loss on importation of electricity into the lower South Island is avoided, we are satisfied that Dr Layton is likely to be correct and that this gain is likely to be small. Therefore it has only a minor (positive) impact979.

6.2.5 Improved security of supply

[555] Dr Layton stated that the extent to which the Lammermoor wind farm would improve security of supply was “not clear and...difficult to quantify”980. We agree. It is clear from Professor Strbac in cross-examination981 that additional generation from whatever source that meets the technical requirements of grid connection cannot help but improve the security of supply. Professor Strbac did acknowledge in response to

questions from the Court that as the level of wind penetration increases the marginal

975 Dr T B Layton, supplementary evidence para 8.26 [Environment Court document 45A].

  1. Mr T Stevenson, evidence-in-chief para 76, (378 + 383 + 320) / 3 = 360.3 [Environment Court document 73].

977 Dr T B Layton, supplementary evidence para 8.11 [Environment Court document 45A] and

Transcript, p. 1867.

978 NZIER report “Exploring Hydro-Wind Correlation”, 5 September 2008 attached to Dr T B Layton,

supplementary evidence Table 4 p. 10 [Environment Court document 45A].

979 Dr T B Layton, supplementary evidence para 8.26 [Environment Court document 45A].

980 Dr T B Layton, supplementary evidence para 8.17 [Environment Court document 45A].

981 Transcript p. 2006.

contribution of wind generation to security of supply will become less and will become insignificant at some point982.

[556] We agree with Dr Layton that the Lammermoor wind farm will have only a small impact on the probability of supply disruptions and that the benefit of the Lammermoor wind farm to security of supply is minor983.

6.2.6 Complementarity of wind to hydro

[557] Dr Layton makes only a passing mention of this benefit, and he places it only in the context of Meridian‟s operations. He included984 the „benefit of any synergies‟ in his initial discussion of the benefits, but made no further mention of it. He did not attempt to quantify the benefit, nor did he include it in his summary table985. From the tenor of his comment, and the lack of any further reference to it, we assume that Dr Layton does not consider the complementarity of wind to hydro generation to be of any significant benefit additional to the generation of electricity assessed above. If that is Dr Layton‟s position, then we agree. The flexibility of hydro generation with water storage capacity already exists. Wind generators take advantage of that flexibility in requiring other generation capacity to fill the gaps in their output when the wind is not blowing. Hydro is useful in that it can adjust to short-term variations in wind output by ramping up or down very quickly. This is the flexibility of hydro generation assisting

wind generation rather than a benefit arising from wind generation. When the wind is blowing through the turbines, other generators are able to store their fuel for later use, but that is true for any generation form with storage capacity, and it may well be a thermal fuel that is stored for later use.

[558] We discuss some issues which are the obverse to this later under „Costs‟ under

the sub-headings of „Back-up generation‟ and „Frequency keeping‟.

982 Transcript p. 2119.

983 Dr T B Layton, supplementary evidence para 8.26 [Environment Court document 45A].

984 Dr T B Layton, supplementary evidence para 8.7(a) [Environment Court document 45A].

985 Dr T B Layton, supplementary evidence para 8.26 [Environment Court document 45A].

6.2.7 Benefits to the economy from the construction of the wind farm

[559] Dr Layton applied multiplier analysis to the expected New Zealand component of the expected capital cost of the wind farm to calculate the expected benefit to the local economy of the construction of the wind farm as $840m spread over the period of construction. Included in this is the expected creation of an additional 380 jobs for the period of construction. This is made up of $400m in direct spending (20% local content of total cost of $2b) and $440m of indirect spending, with 200 jobs in direct construction

of the wind farm (Meridian‟s figure) and 180 additional jobs in the region986.

[560] Multiplier analysis draws on inter-industry comparisons. An inter-industry study (or input-output study) gives the impact that additional spending by one industry has in increasing demand for the output of other industries in the economy. Increased spending by one industry requires increases in the output of other industries. These in turn require increases in the output of further industries. By aggregating the effects on the different parts of the economy, the total effect across the economy is calculated and expressed as a co-efficient. This co-efficient is the multiplier by which the impact that additional spending by one industry has across the whole economy is calculated. Dr Layton was careful to caution us in using some relevant multipliers, given the age of the

data that the multiplier is derived from987. The multipliers Dr Layton has used come

from a 1985 Ministry of Agriculture and Fisheries publication988, which Dr Layton acknowledged to the Court would be based on 1981 official input-output tables. He stated that there would be a margin of error given their age (up or down), but that they were the best available989. Dr Layton indicated990 that economists „downplay‟ the local benefits as they may replace benefits in another place, but that in the current economic climate the local benefits could have more substance. While we accept that an investment of the size of Lammermoor may have a significant regional benefit in the current economic climate, we note that Meridian has requested a 10-year

implementation period, and that construction is expected to take five years. Thus, if consent is granted, construction may not begin until 2014, when economic conditions

may be considerably different from now.

986 Dr T B Layton, supplementary evidence para 8.20 [Environment Court document 45A].

987 Dr T B Layton, supplementary evidence para 8.19 [Environment Court document 45A].

988 Dr T B Layton, supplementary evidence page 22, footnote 20 [Environment Court document 45A].

989 Transcript, p. 1887.

990 Transcript, p. 1785.

[561] The Court knows from its own experience and expertise that while New Zealand does not produce official regional inter-industry studies, national level inter-industry studies have been produced periodically, the most recent being for 1996. Various private bodies, including the NZIER, do calculate regional input-output tables and regional multipliers using the 1996 inter-industry study as a starting point. It is puzzling that Dr Layton did not refer to any of this work, including that of the NZIER, from which he had just retired as Chief Executive.

[562] Accepting the multipliers supplied by Dr Layton as the best available to us, the critical issues that determine the value of the benefit to the local economy are the total capital cost of the project and the proportion of that cost that will be spent domestically. Dr Layton uses a total cost of $2b, of which 20% would be spent domestically. The

20% is based on previous experience of wind farms in New Zealand, and is similar to the 25% identified by Meridian as the domestic proportion of the capital cost991. Dr Layton was firm in cross-examination that the $2b capital cost figure he used was provided to him by Meridian992:

...I said it‟s Meridian Energy‟s, I was very careful about that.993

[563] No witness called by Meridian other than Dr Layton gave any figures for the cost of the wind farm project. This is despite Mr Leyland advancing extensive evidence as to his view of what the project might cost, and these estimates being severely criticised in rebuttal by and in cross-examination of Mr Muldoon. When directly asked for Meridian‟s cost estimates, Mr Muldoon was clear that Meridian do not release that

information994:

MR MULDOON: With respect to how we populate a model such as this, the type of information that goes into it is extremely commercially sensitive, and the information that we disclose, for example, we have never said the cost of

any of our projects and we have never disclosed our cost of capital nor the

991 Dr T B Layton, supplementary evidence para 8.20 [Environment Court document 45A].

992 Transcript, pp 1822, 1827-1828, 1835.

993 Transcript, p. 1827.

994 Transcript, p. 933.

assumptions which go into our economic evaluations. That‟s a commercial decision that‟s taken by our board of directors.

A similar statement was made a little later in cross-examination in regard to the earthworks costs of the wind farm995. Given the absence of any evidence from Meridian on the expected cost, we must draw what conclusions we can from the evidence that is available to us. If that works to Meridian‟s disadvantage in this decision the problem is of their own making.

[564] We do know from Dr Layton that the development impact levy will be calculated as 0.375% of the capital cost996. (We assume the figure of 0.365% as given by Mr Todd in his closing submissions was a simple error997.) We have not found figures for the

value of the levy in evidence but counsel gave various figures:

2009_29301.jpg Mr Todd998: „in the range of $3-$7.5 million‟;

2009_29301.jpg Mr Beatson999: „in the vicinity of $3.75m-$7.5m‟;

Mr Rennie1000: „in the range of $3.75 million to $7 million‟.

[565] One further complication is that the proposed condition1001 relating to the development impact levy states that the levy is to be 0.375% of capital value, not capital cost1002. An advice note to the condition states:

Capital value shall be based on an internationally accepted Wind Industry index of Capital cost $

per MW installed plant. (Capitalisation as per the condition as written.)

995 Transcript, p. 936.

996 Dr T B Layton, supplementary evidence para 8.26, summary table [Environment Court document

45A].

997 Mr G M Todd, closing submissions for CODC para 83 [Environment Court document 85].

998 Mr G M Todd, closing submissions for CODC para 82 [Environment Court document 85].

999 Mr A Beatson, further submissions 28 July 2008, para 157(a) [Environment Court document 23].

1000 Mr H Rennie QC, closing submissions 27 February 2009 para 24 [Environment Court document

93].

1001 Proposed Conditions of Consent, para 83 [Environment Court document 44A].

1002 Proposed Conditions of Consent, para 83, Advice Note (a) [Environment Court document 44A].

Thus the capital cost for purposes of calculating the development impact levy would not be the actual capital cost incurred by Meridian. The loose terminology used by counsel

– “cost” when “value” is stipulated by the condition – is not assisted by the circularity of the wording of the condition. The condition states that the levy shall be based on “total capital value”, but the advice note states that capital value shall be determined by “capital cost”, and that capital cost shall be determined by an unspecified international index of capital cost. Thus the basis of the levy calculation will be quite independent of the actual value or cost of the wind farm on the Lammermoor. The condition states that the levy shall be calculated on the capital value “of the consented wind farm development”. Strictly speaking, the value of the “consented wind farm development” is the value of the consent before any construction has occurred – i.e. the consented but undeveloped wind farm.

[566] The advice note goes on to state:

For the avoidance of doubt, the total capital value will not include the value of any off -site works undertaken by the Consent Holder.

[567] We infer that the upgrading and restoring of Old Dunstan Road, bridging Sutton Stream, adjustments to the alignment of the corner of Riccarton Road if required and any work required at the gravel quarry in the vicinity of Clarks Junction1003 are all excluded from the capital value on which the development impact levy is calculated. Further, the condition states that capital value is to be determined at the time construction activity commences. At commencement of construction activity the

capital value is limited to the value of the consent without any construction, and the capital cost is unknown. As the condition is currently worded the actual amount spent by Meridian on the project may be quite different from that used in the calculation of the development impact levy. If consent is granted, we will require that this condition be redrafted to give greater clarity and to provide for the levy to be based on actual cost as

constructed.

1003 Transcript, p 2302.

[568] Using the value of the levy as being in the range of $3.75m-$7.5m, and using the calculation basis of 0.375%, we calculate the cost (or value) of the wind farm as between $1 billion and $2 billion (plus any off-site works). This range is so wide that it may not help us greatly. However, it is worth noting that the cost of the wind farm Meridian supplied to Dr Layton was at the very maximum of the range that the development impact levy suggests. We note that Mr Leyland estimated the cost of the

wind farm as between $1.89b and $2.2b1004. Mr Muldoon was very critical1005 of the

data that Mr Leyland used in making his estimates, and in the scope of those estimates.

[569] Given:

2009_29301.jpg the lack of relevance of the calculation base of the levy to the cost of the wind farm;

2009_29301.jpg the huge range of cost suggested by the range of levy value that has been put before us;

2009_29301.jpg the criticism of the inputs into, and scope of, Mr Leyland‟s estimates;

the failure of Meridian to provide actual estimates of construction costs

– we find that we can place little reliance on the results of the multiplier analysis of Dr Layton. This is not a reflection on Dr Layton, but stems from the doubt we have as to the validity of his starting point of a $2b expected cost, which he stressed was a Meridian-supplied value. If $2b is the expected construction cost, and Meridian gave it to Dr Layton knowing that it would be revealed in evidence, Meridian should have been willing to place the figure in evidence. Given they did not do so, and noting the position Meridian takes on releasing such information, as given to us by Mr Muldoon, we have no assurance of the validity of the $2b figure.

[570] Given the range of possible construction costs that are before us ($1b - $2.2b), and the caution with which we must treat the actual multipliers due to their age, we are very limited in the conclusions we can make on this aspect of Dr Layton‟s evidence.

We conclude there is a medium likelihood that there will be benefits to the economy

1004 Mr B W Leyland, evidence-in-chief para 8.1 [Environment Court document 80].

1005 Mr A J Muldoon, rebuttal evidence paragraphs 1.2-1.10 [Environment Court document 26A].

resulting from the multiplier effect of spending by Meridian on regional content of the wind farm construction, that the combined value of the direct plus indirect benefits will be in the order of double the value of direct spending alone, and that the value could range from as low as $400m to over $800m.

6.2.8 Development Impact Levy

[571] As discussed in the preceding section, Meridian will pay a Development Impact Levy of between $3.75 and $7m to the CODC, as provided for in policy 15.4.2 of the district plan. We were given no information as to what this will be used for, but as noted in Chapter 3.0 (The law) its possible use includes “to avoid, remedy, mitigate or compensate for adverse environmental effects on the community or any group within the community”. This is a benefit of the proposal because the transfer is from a private citizen to a public body although the size of benefit is unclear as discussed above.

[572] We are also concerned that the “adverse environmental effects” for which the Council is taking the money have not been identified. In fact Meridian‟s own appeal was on precisely that point, but it has done a deal with the Council so that the Central Otago District gains $3.75m. We do not approve of payments (possibly ultra vires) like this which look like they could go to a fund for distribution by Council committees to their favourite causes. Such payments (if that is how they are to be used) do not make the operation of the RMA look principled.

6.2.9 Economic benefit of operation

[573] Dr Layton also applied multiplier analysis to the ongoing operational expenditure of the wind farm. Using data supplied by Meridian1006 Dr Layton calculated the total direct and indirect ongoing employment benefit to the region to be between $2.24m and $2.8m with a total employment impact of an additional 28 to 35 jobs in the region1007. As discussed above, Dr Layton did not allow for intermediate consumption. On the assumption that most of this will be spent locally (most probably

by contract with the turbine supplier using locally resident staff trained by the turbine

1006 Dr T B Layton, supplementary evidence para 8.9 [Environment Court document 45A].

1007 Dr T B Layton, supplementary evidence para 8.21 [Environment Court document 45A].

supplier as indicated by Mr Leyland1008), this quantum should be included in the multiplier analysis of the ongoing benefit from operation of the wind farm. Applying Dr Layton‟s output multiplier to the $30m annual value of intermediate consumption discussed earlier, we would get additional spending of a maximum of some $33m1009 giving a total spending of $63m. However, much of the spending other than labour costs would be imported parts for the turbines which would have no direct or indirect benefit to New Zealand. The total impact of ongoing operational spending will be greater than the $2.8m calculated by Dr Layton, but not nearly as large as the $63m

applying the multiplier to the total intermediate consumption would indicate. Using the 20% domestic content which Dr Layton applied to the construction costs, we conclude that the total impact of the operation spending will be in the order of $12.6m.

6.2.10 Reduced CO2 emissions

[574] Dr Layton estimated the value of reduced greenhouse gas emissions under the Kyoto Protocol as between $14.9m and $67.6m per year, depending on what fuel source was displaced by the wind farm output1010. This range encompasses the $25m per year

that Dr Denne thought would be a reasonable value1011. Dr Layton used the price range

of $25-$40/tonne of CO2 equivalent1012, whereas Dr Denne used a price of $25/tonne of CO2 equivalent1013. Dr Layton used emissions factors of 380 tonnes CO2 equivalent/GWh for modern gas-fired generation and 860 tonnes CO2 equivalent/GWh for coal-fired generation. Dr Denne used an emissions factor of 625 tonnes CO2 equivalent/GWh, as used by the Ministry for the Environment1014.

[575] Mr Carr drew our attention to the latest thinking on emissions factors promoted by the British Wind Energy Association (BWEA)1015. The BWEA is promoting the use

of an average emissions factor of 430 tonnes of CO2 equivalent/GWh. Dr Layton

1008 Transcript, p 3131.

1009 $30m x 2.1 – $30m.

1010 Dr T B Layton, supplementary evidence para 8.22 [Environment Court document 45A].

1011 Transcript, pp 1237-1238.

1012 Dr T B Layton, supplementary evidence para 8.22 [Environment Court document 45A].

1013 Transcript, p 1237-1238.

1014 Dr T Denne, evidence-in-chief para 53 [Environment Court document 29].

1015 Exhibit 45.2 Article from The Telegraph dated 21 Dec 2008.

pointed out that 430 tonnes of CO2 equivalent/GWh was within his range of 380-860 tonnes CO2 equivalent/GWh and so did not materially change his view1016.

[576] We agree with Dr Layton1017 that the relevant emissions factor depends on the type of generation plant that would be required if the wind farm was not built, and that this is unknown. Is the comparator the existing generation technology that might be displaced if the wind farm was built, or the new generation technology that would be required to meet demand if the wind farm was not built? Dr Layton suggests that it is more likely that output from the wind farm will displace thermal generation due to its higher short run marginal costs, therefore the emissions factor should be that relating to gas or coal fired generation rather than renewable generation1018. However this does not address the issue of whether it will be new technology (with low emissions) or old technology (with high emissions). Dr Layton states that his gas-fired emissions figure relates to a “modern combined cycle gas-fired plant”, while the coal-fired emissions

figure he uses seems to relate to an old technology plant, given his use of 860 tonnes

CO2 equivalent/GWh1019.

[577] We do not have sufficient evidence to make any conclusions as to what technology would be generating if the wind farm is not built. Dr Layton‟s range seems to encompass both low emission, modern gas technology and high emission, old coal technology. The range makes no allowance for any displacement of non-emitting

generation, although Dr Layton does acknowledge that possibility1020. The best we can

conclude is that if the wind farm is built to its largest dimension, the emissions avoided will be a maximum of 1.69m tonnes of CO2 equivalent. The minimum level of emissions avoided is less than 0.75m tonnes of CO2 equivalent.

[578] We do not know at what price Kyoto Units will sell. Ms Arthur in her submission of 29 Jan 2009 told us that the change in government had not changed

government policy in relation to this wind farm proposal1021. She informed us that a

1016 Transcript, p 1778-1779.

1017 Dr T B Layton, supplementary evidence para 8.23 [Environment Court document 45A].

1018 Dr T B Layton, supplementary evidence para 8.23 [Environment Court document 45A].

1019 Dr T B Layton, supplementary evidence para 8.22 [Environment Court document 45A].

1020 Dr T B Layton, supplementary evidence para 8.23 [Environment Court document 45A].

1021 Ms B H Arthur, submission para 2 [Environment Court document 65].

select committee had been established to review the Emissions Trading Scheme1022. Although she did not state it, we understand that along with this review, it is government policy to delay the implementation of the Emission Trading Scheme to allow for the outcome of this review. It is with some relief that we note that the benefit to New Zealand of avoiding CO2 emissions is not dependant upon the fate of the Emissions Trading Scheme (“ETS”) or a possible carbon tax. The ETS, or a carbon tax, affects the allocation of costs and benefits between emitters and non-emitters in, in our case, the electricity industry. From the evidence of Dr Denne we accept that the benefit to New Zealand as a whole flows from the Kyoto Protocol itself, not how it is implemented within New Zealand. It is the price of Kyoto Units that will determine the value of the emissions avoided, whether this be through the ETS, a carbon tax or some other mechanism.

[579] Dr Denne suggested a Kyoto Unit price of NZ$25/tonne of CO2 emissions, while Dr Layton used a price range of NZ$20-$40/tonne. Using Dr Layton‟s minimum price with the minimum volume of emissions avoided would produce an annual value of emissions avoided of less that $15m. Using the maximum price with the maximum volume of emissions avoided would produce an annual value of $67.6m. Given the evidence before us we are unable to come to a more precise estimate of the value of the benefit of avoided carbon emissions that may occur as a result of a wind farm on the Lammermoor. We note that uncertainty over the price of Kyoto Units is such that the value of the benefit could conceivably lie somewhere outside this range (either above or below). However, for the purposes of our assessment we will accept the range as stated above.

[580] Mr Carr raised with Dr Layton the uncertainty surrounding the Kyoto Protocol, and hence the value of avoided carbon emissions, beyond 2012, the end of the first commitment period of the Kyoto Protocol. Dr Layton considered that the timing is “often difficult” and that “it may take a while”, but he suggested it would be “rather foolish” of New Zealand not to continue on the assumption that we would eventually get

there1023. We recognise that there is uncertainty around what the value of avoided

1022 Ms B H Arthur, submission para 4 [Environment Court document 65].

1023 Transcript, p 1781.

carbon emissions will be beyond 2012, but this is no different from the uncertainty around any projection into the future.

6.2.11 Other benefits

[581] Mr Greenaway suggested1024 that the wind farm may be a positive tourist attraction in the region, albeit not a major destination. We predict that is not likely. While wind turbines do have a sculptural element to them, and people do visit wind farms as part of a tourism activity, we do not consider that likely to occur on the Lammermoor. As Mr Greenaway wrote1025, the wind farm as a tourism product will respond to how it is promoted. We understand that there is no intention to facilitate visitors to the wind farm, that there will be no public access to the site and there will be no information area. More importantly, if visitors to Otago want to view a wind farm there will be wind farms easier to access than one on the Lammermoor. Mahinerangi and White Hill wind farms are much closer to Dunedin, and Queenstown and Invercargill respectively than the Lammermoor, and much easier to access. People

wishing to visit a wind farm are more likely to visit the one closest and with easy access1026.

[582] In addition to the benefits quantified above, the court has identified a further (mixed) benefit not raised in evidence. This is the benefit of improved access to and across the Lammermoor. The upgrading of the Old Dunstan Road required for the construction of the wind farm will remain and presumably be maintained. This will improve access to and across the Lammermoor during the nine months of the year the road is open. Potentially it will make all year round access possible. This will be of benefit to those who access the Lammermoor for recreation and possibly provide a faster route from the Upper Tairei Valley to Dunedin. Winter access may enhance the recreational use of the conservation areas on the Rock and Pillar Range. Although this was not discussed in evidence it is a benefit that should be included in the cost benefit

analysis.

1024 Mr R J Greenaway, evidence-in-chief, para 4.40 [Environment Court document 59].

1025 Mr R J Greenaway, evidence-in-chief, para 4.40 [Environment Court document 59].

1026 Transcript, p. 2861.

[583] The upgrading of the existing farm tracks to all-weather roads, and the creation of an additional 50 km or so of new roads across the Lammermoor will have a beneficial effect for farming operations and any other potential users of the area. Although the roads may not be where the farmers would have placed them for their purposes they will undoubtedly improve access and enhance farming efficiency. They may enable other uses of the Lammermoor to be extended or developed under the turbines.

6.3 The costs

6.3.1 Listing the possible costs

[584] Not surprisingly, the costs of a wind farm on the Lammermoor were expounded at considerable length by the various opponents of the proposal. In summary, the costs

identified by the opponents of the wind farm were:

2009_29301.jpg Cost of electricity from wind

2009_29301.jpg Additional electricity system costs – frequency keeping and reserve capacity

2009_29301.jpg Additional costs in upgrading the national grid

2009_29301.jpg Additional transmission losses

2009_29301.jpg Loss of landscape values

2009_29301.jpg Loss of recreational amenity

2009_29301.jpg Loss of heritage values

2009_29301.jpg Impact on tourism activity both locally and within the Otago region

Ecological costs to flora, fauna and water quality

[585] Prior to our procedural decision1027 of 8 August 2008 requesting further evidence, we had insufficient quantification of the public costs in a way that could be assessed in the same way as the benefits have been assessed above. Further, the evidence to that date had raised further potential costs that we needed to be better informed about before we could assess their relevance and significance. We identified

those as being1028:

1027 Maniototo Environmental Society Incorporated v Central Otago District Council and Otago

Regional Council Decision C89/2008.

1028 Decision C88/2008, para 12.

The possible incentive in Transpower‟s policy of open access to the core grid to locate new generation at a distance from demand at consumers‟ expense, and whether this imposes an

additional public cost arising from a wind farm on the Lammermoor.

and:

The costs associated with the risk of having too much wind generation in the Otago-Southland region and it all being affected by a lack of wind at the same time.

Subsequent to the procedural decision, we received further evidence on costs from Dr Layton, Mr Leyland, Mr Stevenson and Mr Gleadow. This was helpful in regard to the quantification of the various public costs of the Lammermoor wind farm.

6.3.2 Cost of electricity from wind

[586] We heard a significant amount of evidence and vigorous cross examination on the relative costs of wind energy in general, of the output from the Lammermoor wind farm specifically, and of energy from other forms of generation generally. Messrs Muldoon, Leyland and Stevenson all gave evidence (some of it irrelevant) and were cross-examined on the topic.

[587] Fortunately we are not required to adjudicate on some of the matters that were raised by the witnesses. We are directed in section 5 of the RMA to provide for the “economic well-being” of “people and communities”, through the sustainable management of “natural and physical resources” while giving appropriate regard to the issues covered in sections 6 – 8. We are not required to be concerned for the financial wellbeing of corporate entities or with their use of their financial resources. As such, we are not concerned with how much the project might cost Meridian, what the long run marginal cost to Meridian of electricity generated by the wind farm might be, or with the wisdom or otherwise of Meridian‟s investment decisions. As discussed in Chapter 3.0 these are matters for Meridian‟s Board of Directors and, in Meridian‟s case, ultimately the Shareholding Minister.

[588] The long run marginal cost of electricity produced from a wind farm on the Lammermoor could be relevant to us if it was going to impact on the economic wellbeing of New Zealanders through the price they pay for electricity. The evidence before us is clear that a wind farm is required to offer electricity into the market at a

price of $0.01/MWh under current market rules1029. As such it will not cause an

increase in electricity prices.

6.3.3 Additional electricity system costs – frequency keeping and reserve capacity [589] It was common ground that the inclusion of wind into the fuel source mix of the New Zealand electricity system would impose additional costs on the electricity system1030. Further, it was agreed that the additional system costs associated with wind generation were greater than those associated with thermal or hydro generation1031. What was at issue was the nature of the additional costs, the magnitude of the additional

costs, and the penetration levels of wind into the New Zealand system at which they came into play.

[590] Rather different terms for the additional system costs that may occur were used by the different experts that gave evidence. Mr Leyland in his primary evidence used the terms “frequency keeping costs”1032 and “back-up generation”1033. Mr Waipara used the terms “operating reserves” and “generation capacity” and equated these to Mr Leyland‟s terms1034. The Strbac Report1035 referred to “generation capacity and capacity costs”1036, “instantaneous reserve”, “frequency keeping reserve” and “standing

reserve”1037. Dr Layton, who is an economist not an expert in generation systems uses

the terms “back-up generation”1038, “frequency keeping”1039 and “instantaneous

1029 Dr T B Layton, supplementary evidence para 5.4 [Environment Court document 45A].

1030 Mr G M T P Waipara, rebuttal evidence para 22 [Environment Court document 25A].

1031 e.g. Dr T B Layton regarding frequency keeping costs, Transcript p 1854.

1032 Mr B W Leyland, evidence-in-chief para 3.7 [Environment Court document 80].

1033 Mr B W Leyland, evidence-in-chief para 6.0 [Environment Court document 80].

1034 Mr G M T P Waipara, rebuttal evidence paragraphs 20 and 21 [Environment Court document

25A].

1035 “The System Impacts and Costs of Integrating Wind Power in New Zealand”, Meridian Energy

Limited, June 2008 (Strbac Report).

1036 Professor G Strbac, Report p. 3 paragraphs 1- 8 [Environment Court document 48].

1037 Professor G Strbac, Report paragraphs 4.8-4.16 [Environment Court document 48].

1038 Dr T B Layton, supplementary evidence para 5.1 [Environment Court document 45A].

1039 Dr T B Layton, supplementary evidence para 6.4 [Environment Court document 45A].

reserves”1040 when assessing the values associated with the costs. This multiplicity of terms has not helped us. For clarity, we understand the “back-up generation” of Mr Leyland and Dr Layton to be the same as the “generation capacity” of Mr Waipara and the “generation capacity and capacity costs” of the Strbac Report. We equate Mr Leyland‟s „frequency keeping reserves‟ with Mr Waipara‟s „operating reserves‟. We understand that these terms encompass both the frequency keeping and instantaneous reserves as used by both the Strbac Report and Dr Layton, together with the Strbac Report‟s standing reserve.

[591] The additional system costs that may be relevant are for:

2009_29301.jpg Back-up generation

Frequency keeping and operating reserves

6.3.4 Back-up generation

[592] The need for back-up generation to support wind energy is clearly stated in the

Strbac Report, viz1041:

Wind generation is primarily an energy source with limited ability to provide reliable output at times of peak demand. This results in the need to maintain higher levels of generation capacity in the system, with additional capacity costs, in order to maintain system reliability at a desired level.

As Mr Waipara put it1042: “What happens when the wind doesn‟t blow?”. At issue between the experts was what level of additional generation capacity was required to enable peak demand to be reliably met.

[593] Mr Leyland assessed that only 10% of the installed capacity of the wind farm would be relied upon to meet peak demand. On this basis, after allowance for the use of other system reserves at peak demand periods, he assessed that an additional generation capacity of 350 MW would be required as back-up generation capacity to the

Lammermoor wind farm.1043. He assumed this would only be required in the winter

1040 Dr T B Layton, supplementary evidence para 6.5 [Environment Court document 45A].

1041 Professor G Strbac, Report para 1.12 [Environment Court document 48].

1042 Mr G M T P Waipara, rebuttal evidence para 14 [Environment Court document 25A].

1043 Mr B W Leyland, evidence-in-chief para 6.1 [Environment Court document 80].

months when all available hydro capacity is often required. He assumed a 350 MW thermal plant would be required, probably an open cycle gas plant, with an operating cost of $1100/kW, operating for 10% of the year, with a discount rate (or return on investment) of 10%1044. He assessed the cost of this back-up generation at

$30.7m/year1045.

[594] Mr Waipara was very critical of Mr Leyland‟s estimate of the additional generation capacity requirement associated with the wind farm proposal. He described it as “unreliable, misrepresentative and incorrect”1046, criticism he stood by during cross- examination1047. Mr Waipara regarded1048 Mr Leyland‟s failure “to recognise that the New Zealand system has an abundance of hydro capacity that can be employed over

short time horizons to manage or balance the output of a wind farm” as the “critical flaw” in Mr Leyland‟s analysis. Mr Waipara‟s thesis, relying heavily on the work embodied in the Strbac Report, was that back-up generation was not provided as back- up to a specific plant (like a wind farm) but to the generation system as a whole1049. He said that it is the “generation capacity” of the system that is the critical issue1050 and continued:

New Zealand has a significant number of hydro power stations which have the ability to ramp up and down at short notice to provide both the generation capacity or back up capacity as well as operating reserves required to manage short term fluctuations in wind farm output. (This) means that the economic cost of accessing this generation capacity to balance wind power is close to zero, as the costs are already sunk. It is not until significant quantities of wind power are installed and the hydro generation stations reach the limit of their ability to firm wind power that additional generation is required to be installed and the additional system costs become material.

Mr Waipara based his statements on the „Strbac Report‟. This presents the results of

work commissioned by Meridian and led by Professor G Strbac of Imperial College

London.

1044 Mr B W Leyland, evidence-in-chief paragraphs 6.1- 6.4 [Environment Court document 80].

1045 Mr B W Leyland, evidence-in-chief Exhibit 8 [Environment Court document 80].

1046 Mr G M T P Waipara, rebuttal evidence para 40 [Environment Court document 25A].

1047 Transcript. pp 853 and 854.

1048 Mr G M T P Waipara, rebuttal evidence para 35 [Environment Court document 25A].

1049 Transcript, p. 854.

1050 Mr G M T P Waipara, rebuttal evidence paragraphs 24-25 [Environment Court document 25A].

[595] Professor Strbac and his colleagues modelled the New Zealand electricity system for wet, dry and average hydrological conditions as determined from historical records. Plausible degrees of penetration of wind generation into the New Zealand electricity system were investigated and referred to as the 2010, 2020 and 2030 scenarios, these years being when the associated assumed wind penetration could be expected to be reached. The results for two scenarios were presented, the “Reference” scenario and the “Southland” scenario. The Reference scenario had wind generation being installed predominantly in the North Island, by a ratio of approximately 2:1. The Southland scenario had an approximately equal level of wind generation in both islands, with the South Island capacity all in Otago-Southland. Under both scenarios, wind generation

reached 20% of total generation by 20301051. The results are presented as the cost of

additional capacity that results from wind generation, over above that which would be required if alternate thermal generation was installed. The costs are presented as $ per MWh of wind generation1052.

[596] The results of the modelling show that the additional capacity cost rises as the level of wind penetration increases. The 2010 Southland projection, which simulates existing plant plus that which is committed to and will be completed by 2010, has wind generation penetration of 7% and an additional capacity cost of $1.7-$2.5/MWh of wind generation. The 2030 Southland projection, with wind penetration of 20% has an additional capacity cost of $3.6-$9.5/MWh of wind generation.

[597] The Strbac Report states, and Professor Strbac reiterated1053, that the aim of the modelling work was to derive “order of magnitude estimates of the additional system

costs”1054. It was looking at the impacts of wind power in general on the New Zealand


  1. Professor G Strbac, Report Table 1 p. 2 and Tables 6 and 7, pp 18-19 [Environment Court document 48].

1052 Strbac Report, para 3.50.

1053 Transcript, p. 1981.

1054 Strbac Report, para 1.2.

electricity system, not at the costs a specific proposal might impose on the system. We bear that in mind when we consider the apparent discrepancy between Mr Leyland‟s estimates, the costs indicated by the modelling and the view taken by Dr Layton. We note also that the range of costs (e.g. $3.6-$9.5/MWh) comes from different assumptions for the capital cost of generation. The lower figure in each range assumes an “investment cost” of $100/kW/yr with the upper bound assuming an investment cost of

$150/kW/yr for base load thermal plant1055. We do not have enough information to

know whether the costs of generation that the Strbac Report and Mr Leyland are using are consistent. Given that neither side has criticised the other on the cost of generation used, we assume there is not a material difference.

[598] Dr Layton did not allow for any additional capacity cost in his analysis of the costs of a Lammermoor wind farm. He took the view that building a wind farm on the Lammermoor does not require any additional back-up capacity to be added to the system1056:

...add(itional) wind-powered capacity cannot reduce the ability to meet current demand, even though the wind farm will not produce all the time. Therefore, there is no logical link from building a wind farm to having to build other additional capacity, in the short term.

Relying on the evidence of the Strbac Report, Professor Strbac and Mr Waipara1057, Dr Layton claimed that wind penetration is currently so low that further wind capacity would not be a “material issue” for the electricity system. When wind penetration rises such that it becomes a material issue, Dr Layton relied on the market to give the appropriate signals and incentives to deliver whatever back-up capacity is required, efficiently and at least cost to consumers1058.

[599] We accept that New Zealand‟s large hydro capacity gives the potential for a significant level of wind penetration at a relatively low cost. The additional generation capacity required to provide back-up generation for when the wind does not blow is low

while wind penetration is low. This is predicated on the assumption that there is

1055 Strbac Report, para 3.50.

1056 Dr T B Layton, supplementary evidence para 5.2 [Environment Court document 45A].

1057 Dr T B Layton, supplementary evidence p 11 footnote 11 [Environment Court document 45A].

1058 Dr T B Layton, supplementary evidence para 5.7 [Environment Court document 45A].

sufficient capacity above the level of peak demand to allow for the wind to not blow when required and peak demand still to be met. Thus we believe the additional capacity costs will be closer to those predicted in the Strbac Report than those calculated by Mr Leyland, while wind penetration is below 20% of total generation. Once wind penetration rises to around 20% and above, we cannot state with any certainty what the additional capacity costs will be, but they may well be of the order of Mr Leyland‟s calculation.

[600] We do not accept Dr Layton‟s evidence that, until wind penetration reaches significant levels, there are no costs of additional capacity that we need to consider in relation to the specific proposal we need to decide upon. While there may be no need to build specific additional capacity to back-up a specific wind farm, there are costs that are imposed on the system that we need to have regard to. For completeness, we note that in Dr Layton‟s view we only need to concern ourselves with additional system costs if, and to the extent, those costs fall on other than Meridian. If Meridian bears the costs then the costs are an internal matter to Meridian and not something we should

consider1059. Dr Layton did not explicitly answer the question of who faces the costs of

additional capacity. However, he concluded his discussion of additional capacity costs with the implication that they are borne by consumers1060:

Moreover, the operation of the market will continue to ensure that total electricity demand is satisfied at least overall cost to consumers, including the provision of back-up generation capacity.

[Our emphasis]

[601] Mr Waipara held an opposing opinion. Cross-examined by Mr Holm he said1061:

The system cost in economic terms should be quantified and then the feedback loop is that the cost of those should be allocated to the technology of the source.

1059 Dr T B Layton, supplementary evidence para 6.2 [Environment Court document 45A].

1060 Dr T B Layton, supplementary evidence para 5.7 [Environment Court document 45A].

1061 Transcript, p. 847.

He clarified this further in response to Mr Casey QC who asked whether Meridian or any generator pays that cost. Mr Waipara responded1062:

At the moment, no, because wind is immeasurable in terms of effect but my expectation, and this might not be Meridian‟s, is that there will be a time – as it has with other reserve markets and ancillary services markets – where if the cost is material then they will be allocated to those who cause (it).

In answer to questions from the Court on this issue he reiterated that it was his personal view that once the costs became significant they would be allocated to those who caused them1063.

[602] We find from Mr Waipara‟s various comments on this issue that there is no mechanism in place at the moment by which the costs of additional capacity will be paid by the generators whose facilities create the requirement for additional capacity. Therefore we conclude that the costs of additional capacity brought about by wind generation are currently being paid by consumers and will continue to be paid by consumers for the foreseeable future. They are a cost that we are required to have regard to.

[603] It appears that Professor Strbac‟s 2020 Reference scenario provides the most comparable situation to that of the Lammermoor wind farm when first constructed. This scenario has a total wind capacity of 2066MW installed (12% wind penetration), with 632MW in Otago-Southland1064. This scenario has an additional capacity cost of

$3.6-$5.5/MWh of wind generation1065. On the basis that the Lammermoor wind farm

produces 2042 GWh per year, we calculate that this puts the additional capacity cost arising from the Lammermoor wind farm in the range of $7.4-$11.2m per year. The

2030 Southland scenario, with a total wind capacity of 3401MW, of which 1706MW are

in Otago-Southland, has an additional capacity cost in the range of $6.3-$9.5/MWh.

1062 Transcript, p. 876.

1063 Transcript, pp 898-9.

1064 Strbac Report Table 6, p.18.

1065 Strbac Report Table 1, p 2, which is copied in Mr G M T P Waipara‟s rebuttal evidence para 26

[Environment Court document 25A].

We calculate the additional capacity cost under this projection to be in the range of

$12.9-$19.4m per year.

[604] Bearing in mind that the modelling was only designed to produce an order of magnitude estimate of the costs of additional capacity required, and the uncertainty over the costs of that capacity, we conclude that the additional capacity costs imposed on the system by a Lammermoor wind farm will vary between $7m and $19m per year over the

20 year life of the project. This is predicated on the wind farm being completed and commissioned without delay if consent is granted. If completion and commissioning are delayed (by the 10 year window requested by Meridian), or the life of the wind farm extends beyond 20 years, and wind penetration rises above 20% of total generation, then the additional capacity costs may be much higher. They may be in the order of $30 m per year as suggested by Mr Leyland. If we are of a mind to grant consent, this may be something that we need to consider in setting conditions on the period during which the consent must be implemented.

6.3.5 Frequency keeping and operating reserves

[605] Although there were differences between witnesses as to what other system costs were included in the various terms being used, this is not an issue that we need to resolve. It was common ground that the other reserve costs would be substantially less than the additional capacity costs. Mr Leyland stated1066:

Although these (frequency keeping) costs are real, it is difficult to determine them with accuracy so

I have allowed for them at $5 million p.a.

This is considerably less than the $30.7 million per year he calculated for back-up generation.

[606] Dr Layton‟s view was that frequency-keeping costs would fall on consumers, but that frequency keeping in the South Island was already required and any additional costs resulting from the Lammermoor wind farm would be negligible1067. Professor Strbac

presented the results of the Strbac Report in putting the additional reserve costs as

1066 Mr B W Leyland, evidence-in-chief para 3.10 [Environment Court document 80].

1067 Dr T B Layton, supplementary evidence para 8.18 [Environment Court document 45A].

varying between $0.19/MWh and $2.42/MWh, depending on the scenario and level of wind penetration1068. He informed us that extreme dry conditions would lift these costs to the level of $4.42/MWh1069. Mr Waipara did not separately discuss other reserves, but accepted the results of the Strbac report at a total level. Using the Strbac Report estimates, we calculate the additional reserve costs of the Lammermoor wind farm would vary between $0.4m and $5m per year, depending on the level of wind

penetration and the scenario being used. In an extreme dry year these costs would be up to $9m per year.

[607] Given the Strbac Report estimates are an “order of magnitude” estimate, we conclude that there is no significant difference between Mr Leyland‟s estimate and that of the Strbac Report. Although Dr Layton may have been a little generous in assessing these costs as negligible, we accept that on their own they are not very significant. We agree with Dr Layton that these costs will fall on consumers and so are something that we need to have regard to.

6.3.6 Additional costs in upgrading the national grid

[608] It was common ground, and we accept, that to realise the full benefit of a wind farm on the Lammermoor of the size proposed, an upgrade to the transmission system in the lower South Island is required. Dr Layton acknowledged (and Mr Gleadow confirmed1070) that the costs of transmission upgrades will fall on consumers, but assessed that these were likely to be modest1071.

[609] Mr Waipara assessed the costs of the possible upgrades as identified from Electricity Commission documents as $37m (which he rounds to $40m at times) to upgrade the Roxburgh-Livingston line and $60m to install series capacitors on the

Roxburgh-Livingston line1072. It is unclear from the evidence whether both projects are

1068 Professor G Strbac, evidence-in-chief para 6.4 [Environment Court document 48].

1069 Professor G Strbac, evidence-in-chief para 6.5 [Environment Court document 48].

1070 Transcript, p. 1665.

1071 Dr T B Layton, supplementary evidence para 8.18 [Environment Court document 45A].

  1. Mr G M T P Waipara, evidence-in-chief Appendix A Transmission Analysis, para 88 [Environment Court document 25].

required to accommodate both Mahinerangi and Lammermoor wind farms. At one point Mr Waipara stated1073:

With the first $40m duplexing transmission upgrade in place I estimate that between 650 -750

MW of new wind generation could be accommodated within the region.

He continued1074:

With the second series capacitor upgrade in place at an estimated cost of $60m (i.e. with no new transmission line), I estimate that the entire combined output of Project Hayes and Mahinerangi at 830 MW could be accommodated within the region.

In response to questions from the Court Mr Waipara clarified that the $37m upgrade would allow for the existence of the Lammermoor wind farm, but not other new generation sources in the lower South Island. The Lammermoor output would be accommodated with the $37m upgrade but not, for example, Mahinerangi plus

Lammermoor1075.

[610] The “with no new transmission line” comment by Mr Waipara1076 suggests that the output of both wind farms could be accommodated by the series capacitor upgrade without the duplexing upgrade. However in his „Transmission Analysis Appendix‟ Mr Waipara prefaces his discussion on upgrade costs by describing both upgrades as1077:

...incremental upgrades as they require alterations to existing transmission lines, not the construction of new lines.

(Emphasis added)

From this we conclude that adding lines (duplexing) to an existing transmission line is

not a “new line”. So to accommodate more capacity than the Lammermoor wind farm

output requires both the duplexing upgrade and the series capacitor upgrade (or an

1073 Mr G M T P Waipara, evidence-in-chief para 58 [Environment Court document 25].

1074 Mr G M T P Waipara, evidence-in-chief para 59 [Environment Court document 25].

1075 Transcript, pp 886-887 and Mr G M T P Waipara, evidence-in-chief para 58-59 [Environment

Court document 25].

1076 Mr G M T P Waipara, evidence-in-chief para 59 [Environment Court document 25].

1077 Mr G M T P Waipara, evidence-in-chief Appendix para 87 [Environment Court document 25].

alternative), at a combined cost of $97m (or less if there are cheaper alternatives to the series capacitor upgrade).

[611] Mr Waipara was confident the Roxburgh-Livingston upgrade would go ahead, but was less confident about the installation of series capacitors on the line. This was partly due to technology having moved on1078 and partly the high cost ($60m), which

may result in some other solution being adopted1079. Mr Boyle of Transpower

commented in cross-examination that Transpower were currently assessing the future transmission requirements between the Clutha and Waitaki valleys. Indications at that time were that investment would be justified. He stated in response to one question that he took no exception to Mr Waipara‟s analysis1080. We assume this referred to the specifics of the possible upgrades as identified by Mr Waipara, and the cost estimates Mr Waipara proposed.

[612] We understand from the evidence of Mr Boyle, that there may be an additional element of any upgrade required if the wind farm goes ahead. This is to increase the capacity of the 220/110 kV transformer at Roxburgh. The cost of this is in the region of

$4.5 m - $5.5m. This has not been progressed to date, as there have been other, cheaper options to managing the constraint1081. We find that, to realise the benefits of the Lammermoor wind farm, an upgrade to the Roxburgh-Livingston line is likely to be required, and we accept the cost estimate of Mr Waipara of $37m. We also accept that an increase to the capacity of the Roxburgh transformer will be required at a likely cost of $5m. Mr Waipara was nearly certain that the upgrade will happen. He wrote that if the Lammermoor wind farm proceeds1082:

... there can be no credible expectation that these transmission upgrade projects will not be approved and implemented.

1078 Transcript, p. 849.

1079 Transcript, p. 886.

1080 Transcript, p. 1543.

  1. Mr D E Boyle, evidence-in-chief prepared by Mr T A George para 135 [Environment Court document 37A].

1082 Mr G M T P Waipara, evidence-in-chief paragraphs 57 and 60(c) [Environment Court document

25].

In cross-examination he affirmed this view, although he did state that there may be alternative solutions to the $60m capacitors1083.

[613] Mr Stevenson was not so certain. In response to questions from the Court he put the current likelihood of the upgrade proceeding at less than 50% with the Mahinerangi and Kaiwera Downs wind farms consented. Consenting the Lammermoor wind farm as well would put the likelihood „much higher‟, lifting it over 50%. If any of the wind farms are actually built the upgrade becomes more certain. Mr Stevenson was reluctant to go so far as to say the upgrade would become inevitable1084.

[614] We accept that there is still uncertainty as to whether these upgrades will actually proceed. We note from the evidence of Mr Stevenson1085 that Transpower is currently investigating the upgrade proposals, and expects to submit its proposals to the Electricity Commission for approval in mid-20091086. We find, based on Mr Stevenson‟s evidence, that if any of the proposed wind farms are actually constructed, the upgrade becomes more likely, and, from Mr Waipara, that if the larger Lammermoor wind farm is built the upgrade is very likely to happen.

[615] We accept the views of Dr Layton and Mr Gleadow that the costs of the upgrade are very likely to be met by the consumer. They are costs that we need to have particular regard to under section 7(b) of the RMA.

[616] The Lammermoor wind farm is likely to be accumulative on the Mahinerangi and the Kaiwera Downs wind farms because they are likely to be built first. In response to questions from the Court Mr Waipara estimated that an additional 300 MW of capacity could be absorbed into the lower South Island before transmission would become a problem. He indicated that Mahinerangi (or Kaiwera) could be accommodated within this, but that the Lammermoor wind farm could not1087. Thus neither Mahinerangi or Kaiwera Downs would require the $37m duplexing upgrade.

Either one plus Lammermoor would require the duplexing plus the capacitor upgrade (or

1083 Transcript, p. 849.

1084 Transcript (2009), p. 2927-2928.

1085 Mr T Stevenson, Exhibit 73.1 [Environment Court document 73].

1086 Exhibit 73.1.

1087 Transcript (2009), p. 885.

its equivalent). Taking accumulative effects into account the cost of transmission

upgrades of the Lammermoor wind farm will be:

2009_29301.jpg $37m for duplexing

2009_29301.jpg plus $4.5-$5.5m to upgrade the Roxburgh transformer

2009_29301.jpg plus up to $60m to install series capacitors (or some cheaper alternative) on the Roxburgh-Livingston line.

6.3.7 Additional transmission losses

[617] It was claimed by the opponents of the wind farm that it was “in the wrong place” in terms of transmission losses1088. It was common ground that additional generation in the Lower South Island would result in a loss of electricity due to transmission losses as it was sent north to meet the demand in the North Island. It was uncontested that the average transmission loss across the grid was 3.7%1089. In response to questions from the Court on the transmission loss between the Lower South Island and Auckland, Dr Layton accepted that 10% would be a reasonable estimate and that 5% would be a conservative estimate1090.

[618] Dr Layton‟s view was that where a cost is borne by Meridian and not by external parties, we can assume that the cost is not an externality and we need not consider it1091:

If Meridian bears the costs, the Court can assume that they will be factored into its decision as to whether to invest in Project Hayes and not an externality the Court needs to consider ....

We agree with Dr Layton that if a cost is fully borne by Meridian then it is part of the financial equation that Meridian calculates in assessing whether a project is viable, and that is not of concern to us. Whether the revenue from a project is sufficient to cover the costs that Meridian will have to pay to generate that revenue is purely an internal matter for Meridian. The question for us is „does the cost fall fully upon Meridian? or

does it fall, in part or in whole, upon the community?‟. If it does fall, even in part, on

1088 MES. Closing Submission para 1.4 (b) [Environment Court document 89].

1089 Dr T B Layton, supplementary evidence para 8.7(b), p. 18 [Environment Court document 45A].

1090 Transcript, pp 1866-1867.

1091 Dr T B Layton supplementary evidence para 6.2 [Environment Court document 45A].

the community then we need to assess the magnitude of the cost, and include it in our consideration.

[619] Dr Layton‟s contention was that the dispatch decisions of the system operator take transmission losses into account in determining the least cost generation to meet demand, and therefore the electricity market imposes the cost of transmission loss onto Meridian1092. We find that the cost of transmission losses will fall on Meridian but not for the reason advanced by Dr Layton. In the dispatch decision Meridian faces only the risk that the output from the Lammermoor wind farm will not be dispatched in favour of an equally low cost generator located closer to the demand. Unless the dispatch decision actually goes against the Lammermoor output, dispatch decisions impose no

costs at all on Meridian. In response to questions from the Court, Dr Layton conceded that the probability of non-dispatch of a wind generator was low1093. It will only occur when demand can be fully satisfied by generators offering their output within, at most,

10% of $0.01/MWh which are located closer to the demand than the Lammermoor. Dr Layton conceded that the market might clear at $0.01/MWh in the middle of the night (but not in winter), or when there was an excess of water and it had to be spilled. He thought that might be 10 to 15 percent of the time – “maybe”1094. We conclude that the probability of non-dispatch is very low. Further, non-dispatch will only occur when the wholesale price is very low – at or very close to $0.01/MWh. If non-dispatch does

occur, the cost in terms of revenue forgone is very low.

[620] We conclude, contrary to Dr Layton‟s assertion, that dispatch decisions do not impose the cost of the transmission loss, on the export of Lammermoor electricity northwards, on to Meridian. However, there are other reasons why Meridian would bear the cost of transmission losses. They are that Meridian:

(a) would not be paid for the electricity that was lost in transmission; or

(b) would receive a lower price for the electricity it supplied to the grid, other things being equal, by the extent of the transmission loss.

1092 Dr T B Layton, supplementary evidence para 8.16 [Environment Court document 45A].

1093 Transcript, pp 1868-1869.

1094 Transcript, p. 1868.

However, the fungible nature of electricity, once injected into the grid, means that the destination of the Lammermoor output cannot be determined. The loss in transmission of the Lammermoor output cannot be separated from the loss across the system as a whole. It is our understanding that Meridian will receive the relevant nodal price for all the electricity they supply to the grid and thus (a) above does not apply.

[621] The wholesale price of electricity does vary across the system. This is apparent in the price data included in the NZIER report attached to Dr Layton‟s supplementary evidence. This shows that the mean spot price was $56.79/MWh at Benmore,

$59.30/MWh at Haywards and $61.49/MWh at Otahuhu over the period 1996-20081095.

The issue for us is whether these variations are due to the transmission loss across the system or something else. What determines the price differentials across the grid is, as Dr Layton put it1096 “really complicated” and was the subject of an extended discussion with Dr Layton1097. At the end of that discussion the question was put directly to Dr Layton as to whether Meridian faced the direct financial cost of the transmission loss

through the price they received for the electricity they supplied to the grid. Dr Layton‟s answer was clear: Meridian does face the financial cost of the transmission loss in terms of the lower price received in the Lower South Island compared to the North Island, and this reflects, among other things, the transmission loss across the system1098.

[622] We find that Meridian does face the financial cost of the transmission loss resulting from their supplying electricity “in the wrong place” in relation to the location of demand. This occurs because it receives a lower price for its injection to the grid at Roxburgh compared to the price available closer to the major points of demand. Among other system costs, this price differential encompasses the transmission loss across the system. We conclude that the cost of the transmission losses inherent in supplying electricity at Lammermoor at a considerable distance from the major demand centres is very likely to be borne fully by Meridian and therefore is not something to

which we have to have regard.

1095 NZIER report “Exploring Wind-Hydro Correlation”, 5 September 2008 attached to Dr T B Layton,

supplementary evidence Table 4, p. 10 [Environment Court document 45A].

1096 Transcript, p. 1869.

1097 Transcript, pp 1869-1871.

1098 Transcript, pp 1871-1872.

6.3.8 Impacts on recreation and tourism

[623] Dr Layton acknowledged the costs of a wind farm included the displacement of recreational activities and the loss of flora, fauna, heritage sites and landscape values1099. He noted that the value of these impacts was not revealed by markets and can only be inferred indirectly by non-market valuation techniques. He acknowledged non-market valuation techniques are available and gave some examples1100. He stated that such techniques were “complex and often contentious”. Dr Layton made no attempt to utilise the non-market techniques he identified. In his evidence he stated that the relevant experts for Meridian had found the environmental effects were acceptable1101. In cross- examination he stated that he relied on those experts for his assessment that the costs in terms of recreational and landscape were acceptable1102. He admitted1103 that he had made no assessment of the environmental costs of a Lammermoor wind farm, but he considered it “highly unlikely” that the environmental costs would outweigh the benefits1104. The basis for this opinion was1105:

...the magnitude of the benefits being very large and the test ... that (how much) people without transaction costs would in fact be willing to pay on an annual basis to compensate the rest of us (for) foregoing those benefits.

In response to questions from the Court he confirmed that he had not analysed the issue1106.

[624] Mr Greenaway, the recreational planner engaged by Meridian, was questioned by the Court on travel cost valuation methods. He described using the travel cost method or recreational valuation as “... challenging ...”. He raised the difficulty of identifying motivations where there are multiple access routes to a recreational area1107.

He stated that a travel cost valuation could be done for the Lammermoor, but he

1099 Dr T B Layton, supplementary evidence para 8.7(c) [Environment Court document 45A].

1100 Dr T B Layton, supplementary evidence para 8.24 [Environment Court document 45A].

1101 Dr T B Layton, supplementary evidence para 8.25 [Environment Court document 45A].

1102 Transcript, pp 1771-1772.

1103 Transcript, p. 1979.

1104 Transcript, p. 1787, repeated p. 1797.

1105 Transcript, p. 1797.

1106 Transcript, p. 1859.

1107 Transcript, p. 2472.

indicated that it would be a substantial exercise1108. Given that Dr Layton had identified that there are recognised non-market methods of placing a value on these environmental impacts, it is disappointing that Meridian‟s principal expert failed to utilise them. Accepting that neither Dr Layton nor Mr Greenaway may have particular expertise in such methods, Meridian could have engaged someone with appropriate expertise to provide what estimates they could using such methods.

[625] In the absence of any quantitative assessment of the costs to recreation, tourism and the environment in general we can only make a qualitative assessment based on what evidence we have available. We have some data available on the number of visitors to the area and on the relative costs of alternatives to the Lammermoor for recreation. Mr Greenaway provided data from a traffic survey in the area which was undertaken over the nine-day period 4 February –12 February in 2007 (including the Waitangi Day public holiday, which fell on a Tuesday that year). Traffic was measured at two points, Sutton Stream on the Old Dunstan Road and at the Taieri Bridge on the Patearoa–Paerau Road. The average daily traffic count recorded was 53 vehicles per day (“vpd”) and 60 vpd respectively. This includes a spike of 152 vehicles at Sutton Stream on Waitangi Day.

[626] These numbers may include some traffic that is not recreational. Vehicles using the Old Dunstan Road as the most expedient route to get to their destination, vehicles related to the agricultural activity on the Lammermoor, or conceivably vehicles related to the proposed wind farm itself may be included. We do not consider these likely to be significant. Travel on the highway network is usually both more comfortable and faster unless a point on the Old Dunstan Road itself between Clarks Junction and the Styx is the destination. Most people choosing to travel the route as a means of going beyond it, would have chosen to do so for some element of the experience of travelling the road. Our own observation during our site visit in February 2009 was that the internal farm tracks usually gave more direct access from the homesteads to the working areas of the farms. It is unlikely that there would be significant numbers of vehicles travelling Old

Dunstan Road for farming purposes. As we accept that the traffic counts are at best an

1108 Transcript, p. 2473.

indicator, the presence of a small number of non-recreational vehicles in the count is not considered significant.

[627] Mr Greenaway advised us in response to questioning that there is a standard methodology for using short duration traffic counts to derive annual total estimates of traffic, using statistical multipliers1109. However, he did not provide the results in an annualised form, nor did he supply the multipliers that would be appropriate to the Old Dunstan Road. When questioned, he advised1110 that he had not instigated the traffic survey but had requested the road count data from the survey, and he indicated that he did not attempt to get the annual traffic data or the number of visitors to the area1111. He stated he did not know whether it was normal to include a public holiday in a short duration traffic count of this sort1112. We agree with Ms Kelly that this piece of research is “inadequate”1113. As such, indications derived from Mr Greenaway‟s research can only be considered as a minimum.

[628] Mr Greenaway was involved in the project from late 20051114. There was certainly time for him to request of Meridian that a fuller traffic or visitor survey be undertaken. Given the limited number of walking access points, as Mr Greenaway testified, a count of the number of vehicles accessing those access points should have been possible without difficulty. A full year assessment of the traffic on Old Dunstan Road would also have been a simple matter to obtain. Even the full year estimate based on the short duration traffic count that was undertaken would have been useful. Perhaps the reason he did not is, as he stated in response to questioning1115, that he is not “particularly fond” of travel cost methods for deriving a “definitive statement about the

recreational value of the setting.

1109 Transcript, p. 2470.

1110 Transcript, p. 2470.

1111 Transcript, p. 2471.

1112 Transcript, p. 2471.

1113 Ms J A Kelly, rebuttal evidence 20 June 200? para 9 [Environment Court document 17A].

1114 Transcript, p. 2468.

1115 Transcript, pp 2472-2473.

[629] Mr Greenaway stated that his evidence is based on the report he prepared for Meridian‟s resource consent application. He wrote that1116 the object of that report included:

[To i]dentify information gaps which will be required to be filled to adequately describe the effects of the proposed scheme on recreation values.

Nowhere in his evidence does Mr Greenaway indicate that his report identified any information gaps so we conclude that he considered there were no information gaps. If so, Mr Greenaway was mistaken.

Cost of alternative recreational venues

[630] We need to consider the cost that current users of the area will face if they are required to go elsewhere to obtain the recreational satisfaction they currently enjoy on the Lammermoor. Dr Layton agreed that recreational costs could be assessed by the costs involved in accessing the nearest alternative recreational facility of a similar

kind1117. Both Dr Layton and Mr Greenaway were of the opinion that alternative

options to the Lammermoor for undertaking the same recreational activities were readily available. Mr Greenaway said1118:

Nor does the study area feature any particular natural feature or recreation opportunity that is regionally rare.

Dr Layton said1119:

The question you would ask as an economist is how unique are the recreational opportunities there, and nothing I have seen have suggested to me they are unique, which suggests the opportunity costs to them is relatively low.

[631] In his evidence, Mr Greenaway discussed the likely alternatives to the

Lammermoor for those seeking a relatively remote experience. He suggested1120:

1116 Mr R J Greenaway, evidence-in-chief para 1.10 [Environment Court document 59].

1117 Transcript, pp 1858-1859.

1118 Mr R J Greenaway, evidence-in-chief para 3.3 [Environment Court document 59].

1119 Transcript p. 1798.

1120 Mr R J Greenaway, evidence-in-chief para 4.33 [Environment Court document 59].

... areas such as the Poolburn Reservoir and Lake Onslow, and the likes of the Old Man Range and

Garvie Mountains.

When asked in cross-examination by Mr Holm how far these alternatives were from

Dunedin, Mr Greenaway conceded1121 “they are all further than the stated area”.

[632] In response to Ms Kelly he reiterated that the Garvie Mountains and Old Man Range were alternatives to the Rock and Pillar Range for someone seeking a remote experience1122. However, he conceded to Ms Kelly that the Garvie Mountains were “... a much further drive – a longer drive. It is a longer experience ... two to three times (longer)” because the route from Dunedin would be by way of Milton, Balclutha and Gore to Riversdale, and up the Waikaia River to Piano Flat1123.

[633] In assessing the cost the proposed wind farm will impose on recreational uses of the Lammermoor and Rock and Pillar Range, we are hampered by a paucity of information. The traffic count data provided by Mr Greenaway has very limited coverage. We identify the following recreational users that would not be included in

an estimate using Mr Greenaway‟s evidence:

2009_29301.jpg Those who access the area while the Old Dunstan road is closed. These will include all cross-country skiers and winter trampers;

2009_29301.jpg Those who access the Rock and Pillar Range via one of the walking access points referred to by Mr Greenaway1124;

2009_29301.jpg All who bicycle the Old Dunstan Road or travel it by other than vehicular means. This will include mountain-bikers (like Dr Nixon of the Otago Conservation Board, who has ridden his mountain bike across the Lammermoor on the Old Dunstan Road1125), those who ride the Old Dunstan Road to make a round trip of cycling the Otago Central Rail Trail, and those

who cycle the road for its own sake or as part of a cycle tour. It will also

1121 Transcript, p. 2426.

1122 Transcript, p. 2431.

1123 Transcript, p. 2430.

1124 Transcript, p. 2414.

1125 Transcript, pp 3058-3059.

include any who travel it on foot or horseback or other means to gain an appreciation of the experience of the gold diggers;

2009_29301.jpg Those crossing the Lammermoor as part of the Otago Goldfields Cavalcade. 2009_29301.jpg Those who visit Te Papanui and do not continue any further along the Old

Dunstan Road.

[634] Of the points identified above we only have quantitative data on the use of the area by the Goldfields Cavalcade. We accept Dr Floate‟s submission that the Cavalcade averages 500 people and 300 horses travelling the gold trails of Otago for up to eight days1126. We understand from the contribution of the Otago Goldfields Trust in the evidence of Ms Kelly, that they do so in groups of up to 100 people, and that in all or most years the Old Dunstan Road is a significant part of the Cavalcade1127. We accept the evidence of Ms Kelly that, if the wind farm is built as proposed1128:

... it is unlikely that the Road would be used in future because its heritage value, and the experience of re-enacting Gold Rush travel would be lost.

We have no basis on which to determine the value of the Old Dunstan Road to the Cavalcade, and so are unable to value the impact that the loss of the heritage value of the road would have on the Cavalcade. We are also unable to estimate the value of that experience to those who participate in it.

[635] Mr Greenaway stated that the setting was “not significant” for mountain biking or horse trekking, and thus the wind farm, even during construction, would not be significant on these activities1129. Although he noted the Old Dunstan Road was “a recognised mountain biking route”,1130 he stated that mountain biking occurred “to a lesser extent” in what was a “low or moderate” level of recreation and tourism

activity1131. Mr Greenaway presented no data on the level of mountain biking or horse

1126 Dr M Floate, submission para 21 [Environment Court document 22].

1127 Ms J A Kelly, evidence-in-chief para 40 [Environment Court document 17].

1128 Ms J A Kelly, evidence-in-chief para 40 [Environment Court document 17].

1129 Mr R J Greenaway, evidence-in-chief para 7.3 [Environment Court document 59].

1130 Mr R J Greenaway, evidence-in-chief para 2.18 [Environment Court document 59].

1131 Mr R J Greenaway, evidence-in-chief para 3.7 [Environment Court document 59].

trekking (excluding the Goldfields Cavalcade) activity in the area. His quantitative data was limited to a literature search of references to the area in travel guides. He gave no evidence of any personal experience of mountain biking, yet he gave an unsourced comment on the sensitivity of the Old Dunstan Road to wet weather biking. We find his views in this respect lack support.

Tourism in the wider region

[636] Although not clearly argued, it was a theme of the appellants (apart from Meridian) that a Lammermoor wind farm would have an impact well beyond the immediate environs. They considered1132 that this would have a detrimental impact on tourism within Central Otago that went beyond the impact on the Lammermoor and Rock and Pillar Range. The Central Otago District Council‟s marketing strategy of “A World of Difference”1133 and “Last, Loneliest, Loveliest Land” was relied on as support for the proposition that even the Council recognised the qualities of the relevant landscape. Then as Ms Kelly stated1134:

The surrounding (recreation) settings will be compromised by way of aesthetics, movement, noise and light, both day and night, all of which will detract from the designated back country/natural/remote experience. The wind farm will also have a much wider effect in terms of the adjacent uplands.

[637] In contrast Mr Greenaway was of the opinion that the wind farm was unlikely to have any effect on the wider region – i.e. “from where the visual effects are described by Mr Rough as moderate, slight or nil”. He went further and stated1135:

Future tourism and recreation development away from the Lammermoor plateau will be abl e to proceed with no regard for the development.

In his expert opinion the wind farm was “unlikely to have measurable negative effects”

on tourism in Otago1136. He deferred to Mr Rough with respect to the more general

1132 See Ms J A Kelly. submissions of 14 November 2008, para 9 [Environment Court document 71].

1133 Exhibit 11.2.

1134 Ms J A Kelly, evidence-in-chief para 148 [Environment Court document 17].

1135 Mr R J Greenaway, evidence-in-chief para 4.41 [Environment Court document 59].

1136 Mr R J Greenaway, evidence-in-chief para 6.16 [Environment Court document 59].

effects of the proposal on landscape1137. Mr Greenaway did not consider that the Mahinerangi wind farm was relevant to the effects on recreation of the Lammermoor wind farm1138.

[638] Mr Greenaway‟s reliance on the assessment of Mr Rough is misplaced. We have already found that we generally prefer the evidence in these proceedings of Ms Steven over that of Mr Rough. We find Ms Steven‟s assessment of the accumulative impact of a Lammermoor wind farm and of the Mahinerangi wind farm to be persuasive. It is clear from the simulation provided that when entering or leaving Central Otago on the eastern side, or when spending any time in the eastern ranges of the region, the

presence of a wind farm is likely to be noticed1139. We are unable to assess how much

impact this will have on tourism in the region, but we accept that the potential impact will be negative.

Other environmental and ecological costs

[639] The environmental costs are the major concerns for opponents of Meridian‟s proposal. The assessment of Meridian‟s experts was that these environmental costs are acceptable. The qualitative assessments by Meridian‟s experts should have been supported by the quantitative assessments of the costs through the methods that Dr Layton identified are available. Such estimates, and the cautions that come with them, would have been valuable to the Court. We have to weigh the quantified benefits detailed above plus any other unquantified benefits against those costs that have been quantified, together with any other costs not quantified. Some of these other costs could have been quantified but have not been.

[640] The analysis of costs and discussion above still leaves some costs to be assessed on a qualitative basis. These have been assessed in Chapter 5.0 (the Qualitative Assessment) and include the landscape and heritage values most significantly as well as impacts on the flora and fauna of the area and any degradation in the quality of the

waterways either during construction or on an on-going basis.

1137 Mr R J Greenaway, evidence-in-chief para 6.17 [Environment Court document 59].

1138 Transcript, p. 2461.

1139 Cumulative Effects simulation prepared by Mr Van Maren for Ms Steven.

6.4 Summary of cost benefit analysis

6.4.1 Tables of benefits and costs

[641] In assessing efficiency for the purposes of section 7(b) we summarise the quantified cost–benefit analysis of the proposed Lammermoor wind farm from the previous paragraphs in three tables as follows:

TABLE 1


ONE-OFF BENEFITS
Minimum
$m
Maximum
$m
Qualitative
Assessment
Who benefits or bears the cost?
Economic benefit of construction1140
400
800

NZ economy





ONE-OFF COSTS1141




Grid upgrade-duplexing

37

Electricity
consumers
Grid upgrade-Roxburgh transformer
4.5
5.5

Electricity
consumers
Grid upgrade- series capacitor

60

Electricity
consumers
TOTAL ONE-OFF COSTS

103



1140 See section 6.2.7 of this decision .

1141 See section 6.3.6 of this decision .

TABLE 2


ON-GOING ANNUAL BENEFITS









Avoided transmission loss on import1142

2
Minor
Electricity
consumers
Improved security of supply1143


Minor
Electricity
consumers
Contribution to GDP1144

107

NZ economy





Complementarity of wind to hydro1145


None

Economic benefit of operation1146

13

NZ economy
Reduced CO2 emissions1147
15
68

NZ Government
TOTAL ON-GOING BENEFITS

190







ON-GOING ANNUAL COSTS




Additional capacity1148
7.4
19

Electricity
consumers
Frequency keeping & reserves1149
0.4
5







TOTAL ON-GOING COSTS
7.8
24



TABLE 3


BENEFITS NOT QUANTIFIED (or at least not to the Environment Court)
Who benefits or
bears the cost?
Improved road access to and across the Lammermoor
Public
(1) Retire from farming and fencing 95 hectares

(2) Meridian is to pay various sums as described by Mr Beatson

(3) Meridian to the Department of Conservation

(4) Meridian proposes a community fund

(5) Development Impact Levy



COSTS NOT QUANTIFIED
Who benefits or bears the cost?


Lammermoor/Rock & Pillar Recreation via Old Dunstan Road
Public
Lammermoor/Rock & Pillar recreation during winter closure of Old Dunstan Road
Public
Recreation accessed other than via Old Dunstan Road
Public
Non-vehicular use of Old Dunstan Road
Public
Otago Goldfields Cavalcade
Public
Visitors to Te Papanui Conservation Park
Public
Regional tourism
NZ economy
COSTS NOT PRESENTLY AMENABLE TO QUANTIFICATION

Heritage effects not included in recreation
Public
Ecological effects
Public1150
Other landscape costs not captured above
Public

1142 See section 6.2.4 of this decision.

1143 See section 6.2.5 of this decision .

1144 See section 6.2.2 of this decision .

1145 See section 6.2.6 of this decision .

1146 See section 6.2.8 of this decision .

1147 See section 6.2.9 of this decision .

1148 See section 6.3.4 of this decision .

1149 See section 6.3.5 of this decision .

1150 We note that this ignores any “intrinsic values” (section 7(d) of the RMA) of the biota in question.

The benefits outlined above are on the basis that the wind farm is constructed to the maximum number of turbines of the maximum capacity applied for. To the extent that a lesser number or a lesser capacity turbine is installed, the benefits may be less.

[642] In an extreme dry year the additional reserve costs could be as high as $9m. The up to $800m one-off benefit of construction needs to be treated very cautiously, given the age of the multipliers used to calculate it.

6.4.2 Probabilities

[643] In the preceding discussion on benefits and costs of the proposal we have attempted to quantify the value of the benefits and costs. In doing so we have concluded that the quantified benefits of the proposal will be up to $190 m per year, while the costs will lie between $8m and $24m per year. In addition there are one-off benefits ranging from $400m to over $800m, and one-off costs of up to $103m. Before drawing final conclusions we need to assess the probability of where within the ranges identified the costs and benefits will fall.

One-off benefits and costs

[644] The final value of the benefit of construction activity to the New Zealand economy will depend on the size of the multiplier effect and the value of the domestic content of construction costs. We have no reason to expect that the multiplier for non- building construction would have changed dramatically since Dr Layton‟s multipliers were derived, so we expect that a multiplier of around 2 is likely to be relevant. Dr Layton‟s 20% domestic content of total construction cost appears conservative, being less than the 25% he attributed to Meridian. Given that Mr Leyland‟s estimates of costs were at the upper end of the range implied by the value of the development impact levy we expect that the cost of construction will be closer to $2b than $1b. On the basis of these assessments we expect the value of the benefit of the construction activity to be

closer to $800m, rather than $400m. Noting Dr Layton‟s comment1151 that these

benefits are usually „just a transfer of resources around‟, and that the generation capacity

that Lammermoor represents will be constructed somewhere in New Zealand, we

1151 Transcript, p. 1785.

conclude that this will be a regional benefit that would be cancelled out at the national level.

[645] The one-off costs arising from the proposal are more certain. Accepting the cost of the Roxburgh transformer upgrade will be $5m, the only uncertainty is whether the series capacitor upgrade occurs or some cheaper solution is used. Given that the output of the proposal will require that this constraint be reduced, and there was no evidence given as to what the alternative means of alleviating the constraint might be, we expect that it will occur at a cost of $60m. We therefore expect that the one-off costs of this proposal will be $102m.

[646] There will be timing differences between the benefit being realised and the costs occurring. The wind farm construction will be spread over five years, while the transmission upgrades could be done within two years of approval1152. So simply subtracting the one-off costs from the one-off benefits to derive a net figure is not strictly correct. We were not given the net present values of these expenditures. We do not know the relative start dates of the wind farm and the grid upgrades, nor was

there an agreed discount rate which we could apply. Therefore we are prevented from doing our own calculation. However, we assume that both figures are expressed as current dollar values, so we can say that if the one-off benefits and costs coincided, and were fully incurred within a year, then there would be a net one-off benefit arising from the proposal of up to $600-$700m.

On-going benefits and costs

[647] The value of the on-going benefits will depend crucially on the price of Kyoto Units. We have no evidence as to the current price of Kyoto Units and only uncertainty as to their future price path. The best expectation we have is that the price will be no more than the $25/tonne of CO2 equivalent that Dr Denne said was the figure used by the government. On this basis, using Dr Layton‟s expected emissions avoided figures,

we expect the value of reduced CO2 emissions to be about $19m/year1153. Using the

1152 Transcript, p. 885.

1153 Scaling up Dr Layton‟s minimum value of $15m based on a price of $20/tonne, 25/20 * $15m =

$18.5m.

mid-point of the range of on-going costs there is a medium likelihood that the on-going costs of the wind farm will be about $16m/year.

[648] The on-going costs and benefits have similar problems of timing that are discussed above in the context of the one-off benefits and costs, but they are likely to be even more problematic. Apart from the maintenance costs, we have no indication of the path over time of the benefits and costs, we have no certainty over the total time frame over which they would occur and no agreed discount rate that could be applied to do a net present value calculation. The best we can do is assume that the values are all in current prices and that they all occurred within the one year of operation.

6.4.3 Conclusions

[649] In assessing the economic efficiency of the Lammermoor wind farm proposal we have quantitatively assessed the benefits identified and those costs that we have been able to. There are significant costs that we have not been able to quantitatively assess due to lack of appropriate evidence (costs in terms of recreation and tourism) and others that are less amenable to quantitative assessment (heritage and intrinsic landscape costs). The quantitative assessment that we have been able to do produces a net benefit in both one-off and on-going terms. The size of the net benefit as assessed describes in dollar terms the limits that the other costs (not assessed in dollar terms) must not exceed if there is to be an overall net benefit to the proposal. The measured net benefit of the Lammermoor wind farm, if constructed to the maximum size and output suggested, can

be summarised as:

2009_29301.jpg A regional benefit from construction activity with a medium likelihood of being about $800m (one-off), and a very likely regional benefit of about

$13m/year from on-going operation, although these have no net benefit at a national level.

2009_29301.jpg A one-off cost to the economy of upgrading the electricity grid in the lower

South Island very likely to be about $100m.

2009_29301.jpg A benefit to the economy very likely to be about $107m/year from the generation of electricity, and from reduced CO2 emissions with a medium likelihood of being about $20m/year, for the 30-year life of the wind farm.

2009_29301.jpg A cost to the economy with a medium likelihood of about $16m/year to

accommodate the variability of wind energy.

[650] Against these measured benefits must be put the very real, but unmeasured, costs in terms of landscape, heritage and recreation and tourism that will not be remedied or mitigated. We note that the large regional benefits will be at the expense of some other region that does not gain, at this time, a large electricity construction project if Lammermoor goes ahead. The landscape, heritage and tourism costs of the project will be both national and regional. Although our cost benefit analysis is on a national basis, the regional effects are a part of this. On balance we conclude that there is a net benefit arising from the Lammermoor wind farm. However, we consider that the unmeasured costs are significant and that the size of the net benefit is not nearly as substantial as the numbers above might indicate.

7.0 Should the power generation facility be approved under the operative district plan?

7.1 Introduction: achieving sustainable management of the Lammermoor’s

resources

[651] In this chapter we judge whether land use consent should be granted to Meridian for a power generation facility under the operative district plan. That judgement only needs to be re-examined if we come to a provisionally different view as to whether to grant consent under the proposed plan with Plan Change 5 – see O’Connell Construction Limited v Christchurch City Council1154 (discussed in Chapter 3.0). In the meantime the ultimate issue is whether it is appropriate to grant consent for what would be the largest wind farm in the Southern Hemisphere to be built on the very extensive upland landscape of which the Lammermoor is part. In deciding that issue section 5 of the

RMA directs us to achieve „the single broad purpose‟ – McGuire v Hastings District Council1155 – of the Act. That purpose is the “sustainable management” of the relevant resources as that term is defined in section 5(2) of the RMA. Under sections 104, 104B and section 279A of the Act and possibly sections 5 to 8 also, various matters must be put in the scales for and against the proposition that the Meridian project would be sustainable management of the relevant resources. Our task now is to assess the

relative weight of each of the relevant matters.

7.2 Are the operative objectives and policies met?

7.2.1 Applying the code in section 13 of the operative district plan

[652] We have held that section 13 is a code1156 within the operative district plan. Rule 13.7.4(iii) states that a power generation facility such as the Meridian proposal is a

discretionary activity. Section 13‟s three objectives are1157:


  1. O’Connell Construction Limited v Christchurch City Council [2003] NZRMA 216 at [79] and [80] (HC).

1155 McGuire v Hastings District Council [2001] UKPC 43; [2001] NZRMA 557 at [21] (PC).

1156 See Chapter 3.

1157 Objectives 13.3.1 to 13.3.3 [Central Otago District Plan p.13:14].

13.3.1 Objective – Transportation Network

To enable the safe and efficient operation and development of the transportation network while ensuring that amenity values and environmental quality is maintained or enhanced.

13.3.2 Objective – Utilities

To enable the efficient operation and development of utilities while ensuring that effects on amenity, heritage, landscape values and public safety are avoided, remedied or mitigated.

13.3.3 Objective – Development of Energy Resources

In the development of energy resources, to have particular regard to the use of natural and physical resources in a manner which avoids, remedies or mitigates significant adverse effects on the environment.

Despite the fact that the previously stated issues in Chapter 13 identify1158 “[a] secure and adequate supply of energy” as important, there is no objective to that effect. The objectives only approach that issue by enabling utilities.

7.2.2 Does the proposal achieve the policies?

[653] Implementing objectives 13.3.1 to 13.3.3, policy 13.4.7 is specific to the development of power generation facilities. Although we quoted it in Chapter 3.0 (The law) we repeat the relevant paragraphs here because of their importance. The policy seeks1159:

To ensure that the development of power generation facilities avoids, remedies or mitigates: (a) Adverse effects on ecosystems, habitats, soils and minerals.

...

(c) Adverse effects generated during the construction phase, particularly in terms of noise, lightspill, glare, vibration, dust, traffic generation and earthworks.

[(d) Potential for the loss of or irreversible change to outstanding landscapes.] (e) Impacts on heritage values.

...

(j) Impact on public access to and along the margins of lakes and rivers or to natural and physical features.

1158 Issue 13.2.3 [Central Otago District Plan P 13:4].

1159 Central Otago District Plan, pp. 13:7 and 13:8.

We have placed paragraph (d) in square brackets because on the face of the operative district plan it is not relevant. As recorded in Chapter 3.0 the Meridian site is not within an “outstanding landscape area” as identified in the plan. We also note that policy

13.4.7 is very general in that it copies the formula in section 5(2)(c) of the RMA of avoiding, remedying or mitigating adverse effects. Unlike Part 2 of the RMA it does not contain directions similar to sections 6 to 8 of the Act. We judge that the Meridian proposal including all the proposed mitigatory and compensatory measures stated at the hearing or added by this decision achieves the relevant paragraphs of policy 13.4.7.

[654] We assess that policy 13.4.8 – which seeks to reduce the environmental impact of power generation – is not met because the proposal does not have a “low impact” on land above 900 metres, or on its predominant vegetation which is a significant habitat for native fauna. It is ironic that a proposal apparently designed to help reduce carbon emissions can only do so by having a large impact on the environment in which the wind farm is set.

Positive effects of developing a wind farm

[655] Policy 13.4.9 of the operative district plan is to encourage the use of energy efficient technology. We consider the proposal is likely to be a relatively efficient use of the wind energy resource in terms of policy 13.4.9 because the capacity factor of the wind farm is likely to approach 40% which is high by international standards.

[656] Quite apart from policy 13.4.9 we must have regard to all the „actual and potential effects‟ of the proposed wind farm. The generic positive effects of wind farms were summarised by the Environment Court in the first reported case on a wind farm in New Zealand – Genesis Power Limited v Franklin District Council1160 (the Awhitu decision) – as follows:

(i) Electricity is a vital resource for New Zealand. There can be no sustainable management of natural and physical resources without energy, of which electricity is a major component.

1160 Genesis Power Limited v Franklin District Council [2005] NZEnvC 341; [2005] NZRMA 541 at [64].

(ii) New Zealand needs a more diverse electricity generation base, to avoid for example over- reliance on hydro which is susceptible to dry years; in any event new large hydro options are limited.

(iii) More thermal generation will have adverse effects, including contributing to climate change and depleting fossil fuels.

(iv) As a matter of national energy policy set in accordance with relevant legislation, New

Zealand is pursuing options for renewable energy.

(v) Wind is a source of renewable energy which is plentiful but which is best able to be utilised only in certain locations.

[The Court then summarised the benefits of renewable energy from the

Awhitu site.]

In general we agree with the five general points stated there based on the evidence of Mr Muldoon1161 and others for Meridian, and find that they apply to the Meridian proposal here.

[657] In these proceedings Meridian said that the wind farm would produce enough energy to power 278,000 average homes and that the energy was renewable. We accept that. The proposal would also create jobs within the surrounding districts during the construction period which is a positive given the current depressed economic climate. However, Meridian has asked for a ten-year lapsing period within which to exercise the resource consents. The economic conditions may be different when construction actually occurs, so the extent to which the creation of jobs in the region is a positive is uncertain.

[658] Under section 104(1)(a) of the Act we have regard to all those very large positive effects in this decision even if they do not directly implement any policy in Chapter 13

of the operative district plan.

1161 Mr A J Muldoon, evidence-in-chief para 108 [Environment Court document 26].

7.2.3 Other rules

[659] Rule 13.7.10 for electricity reticulation is not met, since large sections of the internal overhead transmission line cross land over 900 masl and are therefore non- complying. A resource consent would be required for this.

7.3 Having regard to the Otago Regional Policy Statement

[660] We are to have regard to the Otago RPS. In Chapter 3.0 we drew attention to the relevance of the RPS land use objectives. The broader objectives are met, but we have some concerns about the lack of reference by the planning witnesses to landscape objective 5.4.3. For Meridian, its planner Mr J Kyle considered RPS objective 5.4.3 was irrelevant because Meridian‟s landscape witnesses considered the site is not within an outstanding natural landscape. Further, we were puzzled that Ms M E Weaver, the Manager of Consents called by the Otago Regional Council, did not draw our attention to objective 5.4.3 or the implementing policy 5.5.6, despite the fact that she stated that

she set out in her evidence1162:

... the relevant provisions of the ... RPS and the Regional Water Plan in respect of the issues that the ORC must consider in assessing the ... applications [to the ORC]. Part B [of her evidence] sets out other provisions of the RPS that are relevant to all the consents that are required for the wind farm.

[661] Ms Weaver also quoted as relevant to the land use consents, the RPS objectives

and policies on the „built environment‟. We agree that the wind farm will constitute a

„built environment‟1163 but consider those objectives and policies are largely irrelevant unless and until a wind farm is built.

[662] Having regard to Chapter 5 of the RPS, we find that the Eastern Central Otago Upland Landscape (including the Lammermoor) is not only an outstanding natural landscape within the meaning of the RPS but also meets at least two1164 if not three1165

of the additional criteria required in the Otago RPS policy 5.5.6. The conclusion is that

1162 Ms M E Weaver, evidence-in-chief para 7 [Environment Court document 69].

1163 Defined in the RPS at p. 221 as “... man-made facilities and structures ...”.

1164 Policy 5.5.6(a) and (b) [RPS p. 56].

1165 Policy 5.5.6(c) [RPS p. 56].

the landscape should be protected, and we find that is not achieved by the Meridian proposal.

[663] In respect of the biota of the region, Chapter 10 of the RPS includes policies requiring maintenance and enhancement1166 of the natural character of areas with significant indigenous vegetation and significant habitats of indigenous fauna. The explanation explicitly refers to a lizard species as an example. As we found in Chapter

5.0 we consider (and that by a majority of three to one) that Meridian has only established to a medium likelihood that the habitats of herpetofauna and/or invertebrates will be maintained and enhanced.

[664] Another „biota‟ policy that is relevant but was not referred to is1167:

To reduce and where practicable eliminate the adverse effects of plant and animal pests on

Otago‟s communities and natural and physical resources through:

(a) Developing strategies to effectively manage Otago‟s plant and animal pests; and

(b) Educating about the responsibilities of all parties in the management of Otago‟s plant and

animal pests; and

(c) Adopting the most practicable method of pest control while safeguarding the environment.

A parallel policy is to reduce1168 the adverse effects of movements of undesirable new species around Otago. We were given no evidence about any strategy for dealing with Hieracium species (which are plant pests) or with rabbits and hares.

[665] The explanation to policy 10.5.3 states that1169:

Threats may be reduced ... by allowing natural succession, for example ... allowing vegetation to shade out weeds, for example a closed tussock cover may reduce hieracium vigour. Methods using native species may have other benefits, such as biodiversity, landscape and aesthetic

benefits.

1166 Objective 10.4.2 [RPS p. 139].

1167 Policy 10.5.3 [RPS p. 142].

1168 Policy 10.5.4.

1169 RPS p. 142.

The Meridian proposal will, for quite a large area – at least 240 hectares and up to 350 hectares spread over the site envelope of 135 km2 – achieve the opposite: it will open that area to weeds such as Hieracium and sheep sorrel. We do not consider these policies are given effect to. Meridian relied on the fact that farming is a permitted activity on the site and that replacement of tussock with exotic grasses was a natural and desirable consequence of its proposal. However, we consider it likely to very likely that

weed species will come in and the land will be worse off, even if the landowners are being paid their licence fees. We find that Mr Kyle is wrong to write1170 that the proposal is consistent with the biota objectives in the RPS, and it certainly does not give effect to them (which is the correct test).

[666] The objectives in respect of energy encourage the proposal1171 because it uses the renewable resource of wind, and discourage it1172 because the particular proposal does not, we find, adequately mitigate the adverse effects on the landscape and historic heritage. We acknowledge the often-quoted recognition in the RPS of the wind

resource of Rocklands (on the Lammermoor) but give it no weight because it is not in a policy. We have recognised and taken into account the high quality (Grade II) wind resource over the Meridian site as a matter of fact. Mr J Kyle, the planner called for Meridian, wrote1173 that “Renewable sources of energy are strongly promoted by the

...RPS”. We consider that is an overstatement of the objectives we identified in

Chapter 3.0.

[667] Finally in respect of the Otago RPS objective 15.4 we consider that the cross- boundary issue about the status of the landscape of which the Lammermoor is part – and which crosses the boundary between the Central Otago District and the Dunedin City – has not been identified in the Central Otago District Plan let alone „dealt with in an efficient and effective manner‟1174. The operative district plan is distinctly

unneighbourly.

1170 Mr J Kyle, evidence-in-chief para 5.6, 2nd bullet [Environment Court document 61].

1171 Objective 12.4.3 [RPS p. 171].

1172 Objective 12.4.1 [RPS p. 171].

1173 Mr J Kyle, evidence-in-chief para 5.6, 5th bullet [Environment Court document 61].

1174 Objective 15.4.1 [RPS p. 213].

[668] Reading the RPS as a whole we find there is an asymmetry between the general empowering objectives and the more specific protecting objectives. The empowering

objectives promote or encourage and contain internal checks. For example:

2009_29301.jpg objective 5.4.1(a) (land use) is:

To maintain and enhance the primary productive capacity and life-supporting capacity of

land resources; ...

2009_29301.jpg objective 12.4.2 (energy) is:

To sustainably and efficiently produce and use energy taking into account community values and expectations.

2009_29301.jpg objective 12.4.3 (energy) is simply:

To encourage use of renewable resources to produce energy.

[Emphases added]

In contrast the landscape and biota objectives we identified in Chapter 3.0 are more focussed and not so heavily qualified. We judge that on the whole the more specific relevant objectives and policies in the RPS are not given effect to by the proposal, although in the end we have decided to treat the RPS as neutral on the proposal.

7.4 Having regard to the local authorities’ decision (section 279A of the Act) [669] By a majority the Hearing Commissioners concluded that the Meridian proposal would be appropriate first because a wind farm is contemplated by the district plan, and

because of three other „broad factors‟1175:

2009_29302.jpg The site is a modified rural working landscape in which farming activities currently occur. In this respect the site is neither culturally or environmentally pristine. A wind farm facility can operate simultaneously with the existing and future farming regime.

2009_29302.jpg The project site is comparatively remote from residences with only a small cluster of residences approximately 5km away across the scrolls along Linnburn Runs Road. It is also remote from well trafficked public viewpoints. At the same time it is not so remote that the

site could be considered to have wilderness qualities.

1175 Local Authority Decision p. 112.

2009_29302.jpg The site is of undisputed scale and quality in terms of the wind resource. This fact was first promoted in the 1980s by Dr Keith Dawber, a University of Otago academic and reintroduced by Meridian as part of this project. Furthermore, the site is located in close proximity to

transmission facilities.

We accept the second and third bullet points with one proviso – that while the site may not have permanent wilderness qualities, the landscape may under snow qualify as a wilderness seasonally.

[670] The Commissioners also relied on the district plan‟s map of the area as excluding it as an outstanding natural landscape. They did not accept evidence to the contrary. We have been persuaded both by evidence and by the inconsistencies in the district plan, and in Plan Change 5, to conclude that the Lammermoor is part of an outstanding natural landscape. We find that the site is farmed and thus can be said to be part of a rural working area. We also find that is only a part of its description. The Meridian site is also and more obviously a unit within an evocative outstanding natural landscape predominantly covered in native tussocks without trees (except for a few small totara in

a gorge, a windbreak of short conifers1176 above the Logan Burn Reservoir, and a

plantation of – as yet – small conifers on Mt Teviot, about 15 kilometres west of the southwestern corner of the site).

[671] The Commissioners concluded that if a wind farm was not allowed on this site

„... [we] find it hard to see where in Central Otago a wind farm‟ might locate. That is despite having as evidence a report1177 from the Planner for the CODC – Mr Whitney – in which he wrote1178 that he considered there were potentially suitable sites “elsewhere in the Central Otago District and elsewhere in Otago including in locations south and west of the Clutha River”. We have annexed a map of New Zealand showing the

extensive windy areas1179. That map shows areas near Cromwell and Alexandra which

appear to have suitable wind to be a Grade I or II site. Those areas are also interesting


  1. The Central Otago District Council might wish to investigate the legality of that part of the windbreak above 900 metres.
  2. Mr W D Whitney, evidence dated 3 July 2008 para 60 and attachment WDW3 at para 5.3 [Environment Court document 67].

1178 Mr W D Whitney, evidence dated 3 July 2008 para 60 [Environment Court document 67].

1179 Attachment “B” .

because on our observation they contain areas which are much less natural than the Eastern Central Otago Upland Landscape we have defined. Those areas are at lower altitudes with a predominant vegetation which is a mix of thyme, sweet briar, or wilding pines and, on terraces, grapes and pasture. If these areas are outstanding natural landscapes as the operative district plan suggests, then a wind farm in one of these areas might be able to provide environmental compensation in the form of weed control or management.

[672] Of more concern to us about the Commissioners‟ majority decision is that there appears to be an unexpressed premise that a wind farm must be remote from houses. We consider that citizens of working landscapes in rural New Zealand beyond a range of about three to five kilometres from a windy site may need to get used to the idea of a wind farm within their sight, if the site is not within an outstanding natural landscape or protected by another nationally important matter in section 6 of the RMA. In any event there is no justification for such a premise within section 13 of the district plan.

7.5 Other matters (section 104(1)(c) of the RMA)

7.5.1 The existing environment and the permitted baseline

[673] The permitted baseline1180 for that part of the Rural Resource Area above 900 metres is a limited list. Several activities traditionally regarded as normal farming operations in the rural parts of New Zealand such as planting of trees or ploughing are not permitted1181 as of right on much of the site. In any event the installation of the power generation facility and the earthworking activities proposed by the applicant in this case come under the chapter 13 code so the rural resource permitted baseline is irrelevant.

[674] In relation to the existing environment there are various suggestions1182 that Meridian may have been disadvantaged because (a different division of) the Court heard and decided the smaller Mahinerangi application by TrustPower Limited first (see

Upland Landscape Protection Society v Clutha District Council1183), even though

1180 Section 104(2) of the RMA.

1181 Rule 4.74(viii) (tree planting) and 4.7.6 J, K, KA and L [Central Otago District Plan p. 4:46 and

4:60 et ff].

1182 For example, Mr Todd, submissions 16 February 2009, [Environment Court document 85].

1183 Upland Landscape Protection Society v Clutha District Council Decision C85/2008.

TrustPower‟s application was lodged with the relevant local authorities later than Meridian‟s. We consider there is no disadvantage. First, we hope it is unnecessary to point out that this is not a “priority of hearing” case under the principle (first in time, first in right) in Fleetwing Farms Limited v Marlborough District Council1184. From a procedural point of view this case involves different resources within two different districts. Secondly, we consider the point is irrelevant. The possibility of generating

energy from wind at Mahinerangi is, for the reasons we stated in Chapter 3.0, relevant

as:

2009_29301.jpg either a part of the existing environment as it falls within the definition allowed by Queenstown Lakes District Council v Hawthorn Estate Limited1185 (or as an accumulative effect); or

an alternative.

[675] We hold that the existing environment must include the potential effects of a wind farm above Lake Mahinerangi. We consider the accumulative effects of adding a wind farm on the Lammermoor to those effects will be at least moderate on the heritage surroundings about the Old Dunstan Road even on the scale of the two landscapes being considered.

7.5.2 Crown policies

[676] Mr Parker submitted, and we accept, that we should give weight to the relevant Crown policies as „other matters‟ under section 104(1)(c) of the RMA. He referred in particular to the national policy that by 2025, 90% of New Zealand‟s electricity generation is to be supplied by renewable resources1186 (and to the role of the New Zealand Emissions Trading Scheme to encourage that). We have regard to the fact that a wind farm on the Lammermoor would make a real contribution to achieving that goal.

[677] We were also asked to give weight to the Climate Change (Emissions Trading and Renewable Preference) Bill since enacted in two parts as the Climate Change


  1. Fleetwing Farms Limited v Marlborough District Council [1997] 3 NZLR 257; 3 ELRNZ 249; [1997] NZRMA 385.

1185 Queenstown Lakes District Council v Hawthorn Estates Limited [2006] NZCA 120; [2006] NZRMA 424.

1186 The New Zealand Efficiency and Conservation Strategy, Mr P F Gurney, evidence-in-chief Exhibit

PFG-3 [Environment Court document 39].

Response (Emissions Trading) Amendment Act 2008 and the Electricity Renewable Preference Amendment Act 2008. We also take judicial notice of the select committee review of the Emissions Trading Scheme (“ETS”) as enacted. The ETS is relevant in that it internalises to (relevantly) electricity generators the obligations that New Zealand has accepted by adopting the Kyoto Protocol. We have taken into account the benefits under the Kyoto Protocol of carbon emission reductions in our quantitative analysis of the costs and benefits of the proposal because that is a potential economic benefit regardless of the form of an ETS adopted by New Zealand. To give these benefits further weight under the Climate Change Response (Emissions Trading) Amendment Act 2008 would be to double count them.

[678] As we have stated earlier, it is the New Zealand Energy Strategy to 2050 (“NZES”) and the New Zealand Energy Efficiency and Conservation Strategy (“the NZEECS”) which set the renewable electricity target – that the proportion of electricity generated from renewable resources be 90% by 2025. The NZECS states that1187 “To achieve this outcome requires a very high rate of investment in renewable generation”. We accept and give weight to these strategies as supporting Meridian‟s proposal.

[679] We note that the New Zealand Energy Strategy also states that1188:

We [i.e. the Government] need to balance the climate change benefits of increasing renewable electricity against the potential impact on the local environment. We will support this balancing act by giving consent authorities guidance on the various trade-offs involved.

In this case neither the previous (2008) Government nor the 2009 Executive appears to have complied with its own policy. There is no evidence that either Government gave any guidance to the local authorities, nor did they call evidence before us about the trade-offs involved. The Government apparently regarded1189 any issue as to the effect of the wind farm on landscape, heritage or amenities as a local issue, notwithstanding

that at least two matters of national importance were raised on the evidence.

1187 NZEECS p. 68, Mr P F Gurney, Exhibit PFG-4 [Environment Court document 39].

1188 NZES para 4.61 [p. 23].

1189 Mr M T Parker, submissions for the Crown para 89 [Environment Court document 36].

7.5.3 C rown support for Merid ian‟s proposal

[680] In respect of the involvement by the Crown as a section 274 party Mr Parker wrote that the Crown1190:

... acknowledged that an “All of Government” submission made under s 141A(4)(c) is not to be given greater weight than any other submission. An “All of Government” submission highlights that the Crown considers the particular application is a matter which is, or is part of, a proposal of national significance, and provides a national context for the consideration of the decision maker when considering the application under s 104 of the RMA.

We are not quite sure what to make of that legal submission. We accept that an Executive „submission‟ as such (i.e. under section 141A of the RMA) does not have more weight than any other. But of course submissions on resource consent applications are not normally documents that have weight, rather they confer or limit jurisdiction. We consider the Crown‟s involvement (duly assessed in the light of all the evidence) should be treated as an „other matter‟ for the purposes of section 104(1)(c) of the Act.

[681] The Executive‟s submission1191 was made under section 141A(4)(c) of the RMA

because the Crown regarded the following factors1192 as making the Meridian proposal of national significance:

2009_29301.jpg the widespread public interest regarding its actual or likely effect on the environment;

2009_29301.jpg it involves significant use of natural and physical resources; and

2009_29301.jpg it has effects on more than one district or region, as the benefits of the proposal (such as environmental benefits associated with the increased use of renewable energy) are likely to be national in effect.

1190 Mr M T Parker, submissions for the Crown para 30 [Environment Court document 36].

1191 Mr M T Parker, submissions from the Crown paragraphs 28 and 29 [Environment Court document

36].

1192 Out of the list in section 141B(2) of the RMA.

[682] The issues advanced by the Crown at the hearing related to sections 7(b), 7(j) and various subordinate statutory instruments and national policies. We have had regard to all those matters in previous sections of this decision.

[683] We should also have regard to the agreement1193 reached between the Department of Conservation (“DOC”) and Meridian. In resolving DOC‟s concerns with the proposal Meridian has agreed to:

(a) pay $175,000 to maintain or improve public access to the Rock and Pillar Conservation Area and/or to fund research into the decline of the Eastern Falcon;

(b) volunteer conditions on:

(i) woody weed control; (ii) fire management;

(iii) accidental discovery protocols; (iv) spring annuals survey;

(v) threatened species survey;

(vi) timing of construction in waterways to avoid impacts on fish; (vii) avoidance of pest introduction;

(viii) bird strike.

We will consider these conditions if we are of a mind to grant consent. As for the payment: research into the Eastern Falcon is relevant and so has the potential to provide mitigation and/or environmental compensation for the effects of the wind farm. The

$175,000 is like Meridian‟s proposed 95 hectare reserve, they each provide a small measure of environmental compensation in the event the decision is very finely balanced.

7.5.4 Conduct of the appellants and supporters

[684] It is an essential part of New Zealand‟s judicial system that our Courts should

not be swayed by public opinions on the issues to be determined. To help Judges and

1193 Exhibit 78.1.

other judicial officers the common law states that cases should not be commented on whilst they are before the Court (and sub judice)1194.

[685] That principle is relevant because up to and during the 2008 hearings we were concerned that some of the appellants – especially members of the Maniototo Environmental Society Incorporated – were making remarks in the media about the Meridian project which appeared to be attempts to sway public opinion against the proposal. Meridian did not complain, but we were sufficiently concerned that in an oral

procedural decision1195 adjourning the hearing in 2008, we reminded1196 “opponents of

the Meridian proposal ... [that] the ... proceedings are still being heard and therefore sub judice”. We then stated: “Comments on the merits of the proposal in the media should stop”.

[686] The May 2009 issue of the magazine North and South1197 contains an article called „Wind Lyrics‟ which describes itself as a photo-essay on the Maniototo “... scene of a proposal, which its critics describe as vandalism”1198. Some of the witnesses who gave evidence to us (Mr Brian Turner in particular) are then reported as saying things which should not have been published in a national magazine (or even a local newspaper) before our decision was issued. For example, Mr Turner is quoted as saying1199:

This talk that Meridian‟s scheme is in the „national interest‟ – I hate that term. I hate the cringing acquiescence people have to the „national interest‟. What really pisses me off is that the attempt to sacrifice nature is beyond any so-called benefits.

We have taken particular care not to be influenced by such remarks. But the mere fact that so many of that type have been made during this case may lead to a perception that the Court can be influenced by such remarks. All parties to future proceedings are

warned that they must take care not to make such statements during a hearing or before

1194 Latin for „under a judge‟.

1195 Maniototo Environmental Society Incorporated v Central Otago District Council and Otago

Regional Council C89/2008.

1196 Maniototo Environmental Society Incorporated v Central Otago District Council and Otago

Regional Council C89/2008 at para [16].

1197 North and South May 2009 at p. 72.

1198 North and South May 2009 at p. 72.

1199 North and South, May 2009, p. 72 at 78.

a decision is released. Otherwise the Environment Court may invoke its powers to deal with contempt on its own volition (without waiting for a complaint).

[687] We are aware that ordinary citizens or small local groups when taking cases against local authorities or large companies like Meridian have a number of disadvantages of lack of money, experts and lawyers (the first lack tends to imply the second two). So public advertisements soliciting funds is not inappropriate. Going beyond that and making strongly emotional pleas by words or pictures may be a contempt of Court.

[688] However, we judge that the conduct of some of the appellant‟s witnesses should not be a factor that weighs in our overall decision. It might be relevant on the issue of costs (as might be the two Governments‟ submission under section 141 of the Act).

7.5.5 Reversibility

[689] Meridian‟s counsel Mr Beatson submitted that even if the adverse effects on the landscape were more serious than its witnesses believed (and indeed we have predicted that is likely) then in any event those adverse effects are reversible. He stated that the life of a turbine is between 30 and 35 years, and in answer to a question from the Court said1200:

I think you can fairly assume that they‟ll be there for at least that long, probably longer. But it‟s a difficult exercise and the reason I say that is because they do have to be replaced after a certain amount of useful life, and it‟s possible that the energy technology will have moved on during that period and it may not be economical to replace them. So I don‟t think we can assume that it‟s an open ended situation, I think it‟s quite a human scale situation. You know, a hundred years might not be unrealistic but I think it‟s getting difficult to make predictions in that timescale.

[690] However, Meridian was not prepared to put a term on the land use consents. At the most, Mr Beatson said1201:

1200 Transcript (2008), p. 524.

1201 Transcript (2008), p. 524. Repeated by Mr Rennie in his final submissions at para [378].

Well we would accept a condition that says “at the end of their useful life they will be removed

and the site will be rehabilitated”.

Mr Rennie made a more restricted statement in his closing submissions1202:

Meridian will accept a condition that at the end of the useful life of the windfarm turbines are to be removed and the site is to be remediated.

He then went on to say1203 that “one could reasonably assume a life expectancy of 30 years for the turbines that are installed”. We note that Meridian is not accepting a condition of removal and remediation after 30 years, or at the end of the life of the turbines installed, but only at the „end of the useful life of the windfarm‟ (our emphasis). The end of the useful life of the wind farm could be after the turbines themselves have been replaced many times over and therefore bear no relation to the 30 years postulated as the life of a turbine.

7.5.6 All or nothing?

[691] An odd feature of the way this case was presented was its „all or nothing‟ quality on landscape issues. In most cases, cross-examination (at least) explores possibilities of limiting potential adverse effects. Mr Douglas stated in evidence1204 and in his closing

submissions1205 that a project on a smaller scale might be acceptable. We also

acknowledge there was cross-examination on mitigating effects on the dimensions and construction of Old Dunstan Road and we have had due regard to that.

[692] But no party cross-examined the witnesses of the others on the potential for reducing the scale of the proposal in the landscape. Apart from Mr Douglas‟ lay suggestion the biggest move we can find is that Meridian contemplated1206 (but did not offer) moving turbines further from the Old Dunstan Road at the northern end of the site but that is all. So we are not in a position to consider whether a smaller wind farm

might be appropriate if we decide to cancel the Council‟s decision.

1202 Mr H Rennie QC, closing submissions para 378 [Environment Court document 93].

1203 Mr H Rennie QC, closing submissions para 378 [Environment Court document 93].

  1. Mr J W Douglas, evidence-in-chief (recreation) para 5.4 and attached map [Environment Court document 72A].

1205 Mr J W Douglas, closing submissions para 6.11 [Environment Court document 91].

1206 Mr H Rennie QC, closing submissions paragraphs 261 and 262 [Environment Court document 93].

7.6 ‘Subject to Part 2 ...’

7.6.1 Summary to this point

[693] If the matters in the previous sections of this chapter were all we had to consider we would agree with the planner1207 called by the District Council, Mr D R Anderson, that we should grant consent to Meridian. However, section 104(1) of the RMA begins:

When considering an application for a resource consent and any submissions received, the consent authority must, subject to Part 2, have regard to –

...

We now consider whether we should look at Part 2 of the Act.

7.6.2 Should we consider the application under Part 2 of the Act?

[694] The precise location of the words in the current form of section 104(1) was substituted1208 by the Resource Management Amendment Act 2003. Prior to that the words “Subject to Part 2 ...” came at the beginning of the section. Of the wording prior to 1 August 2003 the Planning Tribunal stated in Minister of Conservation v Kapiti Coast DC1209 that the Part 2 provisions were to prevail in the event of conflict; and that the matters raised under Part 2 were to be given greater weight, or primacy, when compared with other considerations. The Tribunal also wrote1210:

It is possible that by prefacing s 104(1) with the phrase „Subject to Part 2‟, Parliament intended to convey, indirectly, that it was not only the process of having regard to the various matters listed in that subsection, but also the weighing of them to make the discretionary judgment enabled by [what is now is 104B] and (c), that was to be subject to Part 2.

The authority relied on was an appeal under the Town and Country Planning Act 1977 –

Environmental Defence Society v Mangonui County Council1211 where Cooke P held that:

1207 Mr D R Anderson, evidence-in-chief [Environment Court document 62].

1208 Section 44 Resource Management Amendment Act 2003.

1209 Minister of Conservation v Kapiti Coast DC (1993) 1B ELRNZ 234; [1994] NZRMA 385 (PT).

1210 Minister of Conservation v Kapiti Coast DC (1993) 1B ELRNZ 234; [1994] NZRMA 385 (PT).

1211 Environmental Defence Society v Mangonui County Council [1989] NZCA 17; [1989] 3 NZLR 257 at 260; (1989)

13 NZTPA 202.

the qualification “subject to” are “a standard drafting method of making clear that the other

provisions referred to are to prevail in the event of a conflict”.

We consider the removal of „... subject to ...‟ to later in the section does not make any difference to its meaning and role, but was placed there because it is a more logical point in the sentence to introduce a qualification.

[695] As discussed in Chapters 2.0 to 5.0 the Meridian proposal does raise several matters of national importance under the RMA. In particular we have found that the Meridian site is within an outstanding natural landscape under section 6(b) of the Act. When trying to reconcile the operative district plan with Part 2 of the Act a major

difficulty is that for energy developments the relevant objective1212 in the district plan

states that we are merely to have particular regard to avoiding remedying and mitigating significant adverse effects on the environment. Such a general objective can hardly be said to subsume section 5(2)(a) and (b) and sections 6 to 8 of the RMA within it. If an objective is intended to do so the district plan should be much more explicit about its intentions.

[696] There are at least five further factors which cumulatively determine that we should now consider sections 5 to 8 of the Act. They are, as identified in Chapter 3.0 and subsequent chapters:

(1) the inconsistent objectives and policies in the operative district plan about landscape;

(2) the inconsistencies in the operative district plan as to the location of outstanding natural landscapes;

(3) the failure of the operative district plan to deal with cross territorial boundary issues;

(4) the completely inadequate cost-benefit analysis as found in Chapter 6.0;

(5) the requirement we identified in Chapter 3.0 to look at alternative sites under section 7(b).

1212 Objective 13.3.3 [Central Otago District Plan p. 13:4] quoted above.

We consider we should proceed to assess the proposal under sections 5 to 8 of the RMA.

We do so in three sections:

2009_29301.jpg is the proposal an efficient use of resources? (7.7)

2009_29301.jpg other matters to have particular regard to; (7.8)

weighing all relevant matters (7.9).

7.7 Is the proposal an efficient use of resources?

7.7.1 Do the quantified benefits exceed the costs?

[697] We turn to consider the application under section 7(b) of the Act. One approach to assessing whether a proposal is sustainable management of the resources involved is to analyse whether the public benefits exceed the costs. The cost benefit analysis can only be a partial estimate because there are some values which cannot be quantified directly (for example, intrinsic values of ecosystems under section 7(d) and others which cannot be readily valued at present (e.g. landscape)). Mr Rennie QC claimed1213 that after over seven weeks of hearings the Court was „... fully informed on all aspects of Project Hayes”. We have found that is not so. The evidence provided on the benefits

and costs to recreation was inadequate and that on tourism minimal. We neither read evidence-in-chief nor heard further evidence quantifying the value of the landscape in which the proposed wind farm is to be placed, or of the costs of the project to the heritage values of the Old Dunstan Road. We have also expressed doubts about the adequacy of the evidence about roads on the site.

Summary of the benefits and costs

[698] In Chapter 6.0 we assessed the efficiency of the proposal for the purposes of section 7(b) of the Act, and summarised the quantified net benefit of the proposed

Lammermoor wind farm as follows:

2009_29301.jpg A medium likelihood of a net one-off regional benefit from construction of about $800m and a very likely one-off national cost to upgrade the grid of

about $100m;

1213 Meridian‟s closing submissions para 1 [Environment Court document 93].


2009_29301.jpg A very likely on-going net annual benefit from operation of about ($107-

$16=) $91m nationally and about $13m regionally. In addition there is a national benefit from reduced carbon emissions with a medium likelihood of being about $20m annually. We were not given any net present value for the

ongoing values, nor the data with which to do the calculation ourselves.

[699] There will be some unquantified or unknown benefits:

(1) Meridian intends to retire from farming and fence 95 hectares around the part of Logan Burn Gorge within its property which its experts consider are of high ecological value. (While we agree we also bear in mind that the gorge land is under much less ecological pressure – it cannot be ploughed – so as environmental compensation it is not „like for like‟);

(2) Meridian is to pay various sums to protect, inform and advance the knowledge of the archeological sites on the Lammermoor as described by Mr Beatson in his opening submissions1214 to the July 2008 hearing;

(3) it will pay $175,000 to the Department of Conservation; (4) Meridian proposes a community fund;

(5) Meridian will pay a „Development Impact Levy‟ guesstimated by Mr


Rennie1215 at between $3.75 and $7 million to be paid to the CODC;

(6) there will be a substantial improvement to the accessibility of the Lammermoor due to the upgrading of the Old Dunstan Road, potentially to an all-year round, most weather access (the road would probably still be affected by snow for significant parts of the winter);

(7) the upgrading of the existing „farm tracks‟ into permanent formed roads for turbine access will be of benefit to the farming operations on the land, and potentially for access for other activities as may be allowed by the land owners.

[700] There are also unquantified costs of the project in terms of its effects on:

1214 Mr A Beatson, opening submissions (28 July 2008) para 157 [Environment Court document 23].

1215 Mr H Rennie QC, closing submissions para 24 [Environment Court document 95].

(1) Rock and Pillar and Lammermoor Ranges recreation via Old Dunstan

Road;

(2) Otago Goldfields Cavalcade;

(3) visitors to Te Papanui Conservation Park; (7) regional tourism

(8) heritage effects not included in recreation; (9) ecological effects;

(10) other landscape costs not captured above.

[701] We have already commented on the large gaps in the Court‟s cost-benefit analysis. We find it extraordinary that in a $2 billion project more effort was not made by Meridian to value more of the costs and benefits much more thoroughly. It is even more remarkable that two Governments endorsed the proposal without insisting that Meridian carried out a cost-benefit analysis, or requesting Treasury to do so. We accept entirely the principle of proportionality in relation to any party‟s case in any proceedings

– that the evidence to be called needs to be proportional to the significance and size of the issues to the applicant, the people and communities affected, and to society as a whole – but in this case Meridian is thinking big. Meridian claims that the proposed wind farm would be the largest in the Southern Hemisphere. Given that scale we would have expected proportionate evidence on what were clearly always going to be key issues – the potential adverse effects on heritage and, especially, landscape values.

7.7.2 Alternatives: could the same output be achieved at lesser cost by using different resources?

Should alternatives be considered?

[702] In Chapter 3.0 (The law) we decided that in certain circumstances section 7(b) leads to a requirement to consider alternatives. After considering the submissions and cases, we held that we should follow the recent Waitaki North Bank Tunnel Concept

decision1216 where the Court concluded1217:

1216 Lower Waitaki River Management Society Incorporated v Canterbury Regional Council Decision

C80/2009.

1217 Lower Waitaki River Management Society Incorporated v Canterbury Regional Council Decision

C80/2009 para [201].

... that the consideration of alternative uses of resources, or the use of alternative resources to achieve the same or similar benefit, is not usually required under the RMA, and, secondly that there are at least three exceptional situations where considerations of efficiency under section 7 (b) may require consideration of alternatives. These situations are:

1. where the costs cannot be fully internalised to the consent holder;

2. where there is no competitive market for the relevant resources; or

3. where there are matters of national importance in Part 2 of the Act involved and the cost benefit analysis requires comparing measured and unmeasured benefits and costs, such that the consent authority has to rely principally on a qualitative assessment.

Although the consideration of alternatives may be required, this does not necessarily mean that alternatives should be considered in all cases. The Waitaki NBTC decision stated1218 that whether and which alternatives should be considered can only be decided in the context of the specific facts of each case.

[703] Considering the extent to which the situations 1-3 above apply to a Lammermoor wind farm we find:

1. The costs in terms of landscape, heritage in respect of the Old Dunstan Road and the heritage surroundings in which it sits, and recreation and tourism have not been internalised to the consent holder. There may be some possible remedy or mitigation in respect of recreation and tourism, although none has been proposed to us. The evidence before us was that the landscape and the Old Dunstan Road heritage costs could not be remedied or mitigated. Therefore they have not been (and in respect of landscape and the heritage of the Old Dunstan Road, cannot be) internalised to the consent holder.

2. There is no competitive market for the landscape or heritage resources.

The „market‟ for recreation or tourism resources has not been adequately explored by the applicant. The issue of alternative recreational opportunities was mentioned in evidence and discussed (briefly) in cross-

examination. The issue of tourism was barely mentioned.

1218 Decision C80/2009 para [548]

3. There are two matters of national importance involved: an outstanding natural landscape1219 and historic heritage1220 – which we must recognise and provide for their protection from inappropriate use and development.

We have considered whether in the interests of fairness we should hear from the parties further on the issue of categories 2 and 3 since the Lower Waitaki decision has only recently been issued. However, we have decided that there is no need to do so because TV3 Network applies – matters of national importance are raised – and we heard argument about that.

[704] We have quoted policy 13.4.8 in section 13 of the operative district plan which also suggests strongly that alternatives should be considered.

Do alternatives exist?

[705] The evidence is that:


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