New Zealand: Clarity Of Resource Management Act Process Restored In Project Hayes Decision

Last Updated: 13 September 2010
Article by John Hassan, Jo Appleyard and Suzanne Janissen

Most Read Contributor in New Zealand, September 2016

Consent applicants under the Resource Management Act (RMA), territorial authorities and other RMA decision-makers will welcome the clarity of process provided by the High Court's ruling yesterday in relation to the Project Hayes wind farm.

The Court has ordered that the case be sent back to the same division of the Environment Court which declined the original resource consents and has imposed specific directions on how that Court will consider the matter, the effect of which is to return the Court's authority to the limits intended by the law.

High Court faults Environment Court's interpretation of the law

The Environment Court found that Project Hayes did not achieve sustainable management in terms of the RMA because the large quantity of renewable generation it would have delivered was not sufficient to outweigh the impact on the outstanding Lammermoor landscape.

In reaching this decision the Environment Court held that other sites should be investigated more fully first and that "realistic alternatives to a Lammermoor wind farm do exist and should have been considered". Integral to this was the Court's view that s 7(b) of the RMA "requires a comprehensive and explicit cost-benefit analysis of the proposal".

The Environment Court noted that, while it was not usually necessary to consider alternative uses of the resources in question, there were at least three exceptions to this rule:

  1. where the costs could not be fully internalised to the consent holder
  2. where there was no competitive market, or
  3. where a matter of national importance under Part 2 of the RMA was involved.

But the High Court found that this interpretation of s 7(b) was "erroneous in law" and "incompatible with the approach to alternatives expressly adopted by the RMA".

This finding should provide significant relief to consent applicants generally and to infrastructure providers in particular. The implications of the Environment Court's approach, had it been allowed to stand, would have been to significantly raise the bar in terms of the level of information required to support consent applications.

Chapman Tripp's earlier commentary on the Environment Court decision is available here.

Limits of the RMA spelled out

The High Court found that the Environment Court was entitled to require Meridian to provide evidence of alternative locations, but that it had overstepped the provisions and intention of the RMA in a number of respects.

The Court's authority to consider alternatives derived from cl 1(b) of Schedule 4 in the Act which provides that, where there is likely to be a significant adverse effect, the Assessment of Environmental Effects (AEE) should include "a description of any possible alternative locations or methods for undertaking the activity".

Given the size of the project, the High Court was satisfied that cl 1(b) was in play. However, it said that the provision was "very precise" in regard to what was required – namely "a description" of reasonable alternatives, not "a fine-grained analysis of the likely benefits and costs" of those alternatives.

Further, the High Court was "troubled" that the Environment Court had at various points in its judgment implied that the analysis of reasonable alternatives should extend beyond the territory covered by the Central Otago District Council. The RMA was clear that the functions accorded territorial authorities in s 31 were for the purpose of giving effect to the Act within their district.

The High Court also questioned the Environment Court's application of section 7(b) relating to "the efficient use and development of natural and physical resources". These are defined to include land, water, air, soil, minerals, and energy, all forms of plants and animals (whether native to New Zealand or introduced), and all structures".

The Court said that the list, while not exhaustive, was clearly focussed on tangibles but that the Environment Court had, incorrectly, included intangible landscape values. The High Court also rejected the notion that section 7(b) requires an explicit and comprehensive cost benefit analysis.

What now

The High Court has issued a series of specific directions to the Environment Court in reconsidering the case. Key among these are that:

  1. Meridian provide "a reasonably detailed description of alternative sites" (as required by cl 1(b) of Schedule 4)
  2. the Court consider this evidence as part of its s 104 analysis, not as part of the s 7(b) assessment. (In other words, it is to consider whether the same or a similar wind farm would generate less adverse environmental effects in an alternative site but will need to weigh this against "any diminution in the benefits of the project (e.g. poorer quality of mean wind velocity, distance from the grid etc), and any other relevant considerations such as the availability of the alternative site/s to Meridian"), and
  3. the Court not push the consideration of alternatives "too far", the High Court having explicitly rejected the proposition that Meridian must demonstrate that the Hayes site is "the best".

The High Court said the Environment Court could draw on the cost benefit findings that it reached when undertaking its s 104 evaluation, provided that it did not "penalise Meridian for failing to provide non market valuation evidence to landscape and heritage values".

With several large infrastructure projects likely to be tested through Council, Environmental Protection Authority, Board of Inquiry and Environment Court processes in the next few years, the decision provides welcome clarity about what the RMA requires in terms of the analysis of alternatives and consideration of benefits and costs.

The High Court has put the bar back to something realistically within reach for applicants and RMA decision-makers alike.

Our thanks to Patricia Herbert and Jessica Meech for writing this edition of Brief Counsel. For further information, please contact the authors on the right.

The information in this article is for informative purposes only and should not be relied on as legal advice. Please contact Chapman Tripp for advice tailored to your situation.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.