Are you worried about radiation from power lines? Margo Perpick discusses a recent case arising from the erection of new power lines after the 1998 power crisis in Auckland. Margo is a partner at the Christchurch Lawlink firm of Wynn Williams & Co. and specialises in civil litigation and resource management law. She has acted in a number of cases involving electromagnetic radiation. She holds a Bachelor’s degree in Engineering, as well as a Bachelor of Laws (Honours).
The recent decision of the High Court in Varnier v Vector Energy Ltd (CP 82/99, Salmon J, 16/3/2000) serves as a reminder that a resource consent issued under the Resource Management Act 1991 does not necessarily entitle the holder to create a nuisance or commit a negligent act or a trespass.
What Was The Case About?
The case involved an overhead electricity line erected in Parnell, Auckland by Vector Energy following the widespread power failures in the Auckland CBD in 1998. Mr Varnier and Miss Ravel (the plaintiffs) owned property close to the electricity line. The line emitted electromagnetic radiation (EMR). The plaintiffs alleged that the EMR from the line caused them to suffer headaches and general unwellness, and also caused interference with electronic equipment in the house (such as TV, phone, and computers).
Vector believed that the plaintiffs’ claims would not succeed in court, so it asked the High Court to reject the claims "summarily", thereby avoiding the need to go through a detailed court hearing whose result would be a foregone conclusion. The High Court did not agree with Vector.
Who Said What?
Vector produced evidence from a scientist from the National Radiation Laboratory that the magnetic fields on the plaintiffs’ property were significantly below internationally accepted levels of exposure. This witness said that measurements showed that the EMR emissions were 22 to 500 times lower than international guidelines. He had measured the range of emissions as between 0.2 and 4.5 microtesla, whereas the international guideline is 100 microtesla. This scientific witness also said that the current body of scientific evidence shows that magnetic fields at those levels do not cause an adverse effect on human health.
However, the plaintiffs said that Miss Ravel had lived at the property after the erection of the line, and during that time had experienced severe headaches and nausea. She had not suffered these effects before or after living at the property. She also said that it was impossible to watch TV or use a computer because the screen would flicker.
There was also evidence from two other people who had lived in the property, or visited it for short periods. They said that they also suffered from headaches and nausea. The plaintiffs also filed scientific evidence. The level of EMR normally found in a typical home is 0.02 to 0.05 microtesla in a bedroom or living area, and up to 1.5 microtesla in a kitchen up to a metre from a stove or microwave oven whilst in use. This suggested that the EMR levels in the property were up to 100 times greater than could be expected in the bedroom or living areas of a home. This evidence also included that the most common effects from living or working in electromagnetic fields in excess of 0.5 microtesla are headaches and the lowering of the body’s natural immune response.
The court was not hearing the substantive claims. At this stage, it was limited to deciding whether the claims should be defeated before getting the opportunity to go to a full hearing. For that reason, the court was not in a position to make any findings as to which evidence it found most persuasive.
The court acknowledged that apparently well-qualified people had quite different views about the likely effect of the emissions from the electricity lines.
One of the issues raised by Vector Energy was that the emissions complained of had been the subject of full consideration during a resource consent hearing, and that the plaintiffs had made a submission on the matter at the time. Before the electricity line had been erected, Vector Energy had obtained a resource consent. There was no suggestion that Vector had not complied with the resource consent conditions.
Vector said that the consent process involved assessing the environmental effects of the line and directly considering the plaintiffs’ submissions that the EMR emissions were a risk to health. The plaintiffs’ submissions at the resource consent hearing were the same as those advanced in its proceedings in the High Court. The plaintiffs had the right to appeal to the Environment Court, but had chosen not to do so.
Justice Salmon said that he could not accept that argument. He said that the matters for consideration under the Resource Management Act are quite different from those which the High Court would be required to consider if the proceedings were to continue.
His Honour pointed out that compliance with that act does not remove the need to comply with other applicable laws, regulations, bylaws. He said that it is clear that a resource consent is not intended to remove the right to sue in relation to effects arising from implementing a consent, at least as far as they affect people’s health.
Justice Salmon pointed out that it was not the supply of electricity itself which was the subject of the plaintiffs’ complaint. Nor was it the physical presence of the poles and the lines carrying that supply. Those matters were clearly permitted by the resource consent. The subject of the plaintiffs’ complaint was the EMR emissions, and Vector Energy had not shown that those emissions were the inevitable consequence of the activity which had been authorised. This high standard of proof is appropriate only on a strike out application or an application for judgment preliminary to trial. When the matter comes to trial, the plaintiff will need to prove, on the lesser standard of the balance of probabilities, that the EMR emissions caused the matters of which they have complained and that these matters constitute a nuisance at law.
The result of this decision is that there will be a substantive hearing of the plaintiffs’ claims. The court will have to decide whether the evidence proves that it is more probable than not that the EMR emissions have caused loss to the plaintiffs, and if so, whether that loss can be recovered from Vector Energy.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.