Ngati Rangi wins appeal against Raetihi hydro-electric power scheme consent
An iwi and a regional council have won an appeal against an Environment Court decision, which mistakenly allowed an energy company to take vast quantities of water from various North Island rivers for a hydro-electric scheme.
The recent High Court ruling now means the Environment Court will have to reconsider the consent it granted New Zealand Energy Ltd for its Raetihi operation.
The privately-owned scheme, in place since 1918, sees water taken from the Makotuku river, the Makara and Makaraiti streams, and an unnamed tributary of the Mangaone stream, to create enough power to sustain 220 homes a year.
New Zealand Energy got consents for taking and discharging water when the Resource Management Act was put in place and applied to update them when Horizons Regional Council announced the creation of the One Plan – something it describes as a "one stop shop" resource management planning document.
But problems were found when New Zealand Energy looked to significantly up the amount of water it wanted to take.
Consents were granted by the council in early 2014, which included no limit on the maximum water take from the Mangaone tributary and the combined Makotuku and Makara catchments.
But both New Zealand Energy and a trust representing North Island iwi Ngati Rangi appealed. The iwi wanted conditions to mitigate alleged adverse effects, while the company wanted to significantly increase its water take.
The company suggested six scenarios in submissions to the Environment Court, of which it was happy with two, while the iwi gave two scenarios of its own.
However, in what that court described as "a final twist", the company said it wanted to have the consent the council was happy with as a fall-back position.
The council, which was part of the proceedings, wanted the Environment Court to make sure the scheme was in accordance with One Plan.
But that court found otherwise, because, among other reasons, the take had been in place for 100 years.
The Environment Court declined to up the water take in its March decision, but granted the company it's "fall-back" consent.
However, the High Court found that was incorrect.
In his decision, Justice David Collins said the Environment Court did not properly consider all the evidence.
It should have looked at all the scenarios offered by the iwi and the company, but instead only looked at the company's two favourite ones and the fall-back position.
"Had the Environment Court made its decision in accordance with one or more of the scenarios, which it ignored, the conditions which the Environment Court is likely to have granted would have been materially different from those that it ultimately elected to approve," the judge said.
The Environment Court was also wrong to say the take had been in place for 100 years, as the first consent was issued in 2003.
The judge quashed the Environment Court's decision to grant a consent on the fall-back position and directed that court to reconsider its decision in light of his judgment.