IN THE MATTER of the Resource Management Act 1991 MERIDIAN ENERGY LIMITED. Appellant SOUTHLAND DISTRICT COUNCIL. Respondent NOTICE OF APPEAL

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1 BEFORE THE ENVIRONMENT COURT AT CHRISTCHURCH ENV-2014-CHC- IN THE MATTER of the Resource Management Act 1991 AND IN THE MATTER BETWEEN of an appeal under Clause 14(1), First Schedule of the Act in relation to the Proposed Southland District Plan Decisions MERIDIAN ENERGY LIMITED Appellant AND SOUTHLAND DISTRICT COUNCIL Respondent NOTICE OF APPEAL ANDERSON LLOYD LAWYERS DUNEDIN Solicitor: S W Christensen / R J Brooking Level 10, Otago House Cnr Moray Place & Princes Street, Private Bag 1959, DUNEDIN 9054 DX YX Tel Fax

2 1 TO: The Registrar Environment Court Christchurch 1 Meridian Energy Limited ("Meridian") appeal parts of a decision of Southland District Council on the Proposed Southland District Plan. 2 Meridian made a submission and further submissions on that Plan. 3 Meridian is not a trade competitor for the purposes of section 308D of the Resource Management Act 1991 ("RMA"). 4 Meridian received notice of the decision on or about 13 October The decision was made by Southland District Council. General Reasons 6 Meridian s proposed amendments to the Plan will better achieve the purpose of both the Manapouri Te Anau Development Act 1963 ("MTADA") and the RMA than the provisions as amended by the Decision. The general reason for Meridian's appeal is to protect its assets in Southland District. These assets include the Manapouri Hydro Electric Power Scheme being nationally important infrastructure and the White Hill Wind Farm being regionally significant infrastructure. Meridian is also interested in the potential to further optimise these assets and consider options to develop other future electricity generation resources in the District. In particular it wishes to ensure that existing infrastructure is appropriately recognised. 7 The provisions as amended by the Decision present potential obstacles to the use and development of renewable energy and may be better balanced to assist with assessing the overall merits of such proposals. Greater clarity is required so that the consideration of complex issues and values that occur within the district and regional planning context, and for individual development projects, is assisted by clear policy guidance. 8 The particular decisions that Meridian appeals follow.

3 2 Manapouri Te Anau Development Act Meridian sought recognition and provision for MTADA's role in relation to the operation of the Manapouri Power Station. This included making Manapouri Power Station activities a permitted activity (submission numbers and 184.5). The decision rejected the submissions and this rejection is the subject of this appeal. 10 Meridian and Southland District Council have recently appeared in the High Court to seek a declaration on whether or not MTADA prevails over the RMA. A decision of the High Court has not yet been made. If the High Court declares that MTADA prevails, then an inconsistency with the provisions of the District Plan can be avoided by a clear statement in the District Plan that activities authorised by MTADA are not regulated by the District Plan. In its decision Southland District Council have retained the status quo and did not provide for MTADA. Reasons 11 MTADA gives Meridian full power and authority to construct and operate works in relation to the Manapouri Power Scheme. 1 Meridian sought recognition of this power in the: introductory section; Fiordland / Rakiura Zone; Rural Zone; and Energy, Minerals and Infrastructure section. 12 Activities regulated by MTADA should not be regulated by the District Plan in order to avoid inconsistency between MTADA and the District Plan an RMA instrument. Double regulation is both inefficient and inconsistent with MTADA. 13 If the High Court declaration is that MTADA prevails over the RMA then a statement to this effect should be included in the Plan. If the High Court declares that MTADA does not prevail then the Plan should continue to permit the operation of the Manapouri Power Station and enable future work. Meridian seeks the following relief 14 Appropriate recognition within the Plan confirming that activities authorised by MTADA are not regulated by the Plan. 1 Section 4(1)

4 3 15 Alternative relief is sought in the event of a High Court declaration that MTADA does not prevail over the RMA being that all activities associated with the Manapouri Power Scheme and authorised by MTADA are a permitted activity under the District Plan. 16 In addition to the above, the following relief is also sought: Any additional or alternative relief that achieves the same or similar outcome; Consequential or ancillary changes to the above. Section 2.3 Natural Features and Landscapes 17 Policy NFL.3 relates to adverse effects to landscapes not identified as "Visual Amenity Landscapes" or "Outstanding Natural Features and Landscapes". Meridian submitted that Policy NFL.3 be deleted. The decision amended Policy NFL.3. Reasons 18 The retention of Policy NFL.3 means that landscape effects will need to be assessed in areas that have low values and may create unrealistic expectations as to management. Policy NFL.3 will lead to uncertainty about when landscape issues are relevant and is unnecessary. The deletion of Policy NFL.3 will better achieve the sustainable management purpose of the RMA. Meridian seeks the following relief 19 The deletion of Policy NFL In addition to the above, the following relief is also sought: Any additional or alternative relief that achieves the same or similar outcome; Consequential or ancillary changes to the above. Section 2.4 Coastal Environment 21 Objective CE.1 relates to development in the coastal environment and lists 8 requirements for that development. The appeal relates to the

5 4 wording of the requirements at 1, 2 and 3 and a new requirement at 9. The wording of the requirements at 1, 2 and 3 are absolute and do not include a qualifier for the requirement to only apply to "inappropriate development". The list of requirements do not recognise the locational needs or technical constraints associated with infrastructure. 22 Policy CE.1 is to avoid or mitigate adverse effects on the coastal environment. The term "remedy" is not included in Policy CE.1. The qualifier of "inappropriate development" is also not included in Policy CE.1. Reasons 23 Objective CE.1 and Policy CE.1 should focus on development that is "inappropriate". To apply the restrictions in this objective and policy to all development is unnecessary and does not achieve the sustainable management purpose of the RMA. Development needs to be qualified and understood in the context of the effects that it has on the identified values associated with the resource under consideration. 24 The locational functional and technical needs associated with some infrastructure in close proximity to the coast should be recognised. Providing for infrastructure's locational functional and technical constraints and associated requirements is consistent with the sustainable management purpose of the RMA. 25 Consideration of remedying adverse effects on the coastal environment should be included in Policy CE.1. In some circumstances it will be appropriate to remedy adverse effects on the coastal environment rather than mitigate them. Meridian seeks the following relief 26 Amend Objective CE.1 by inserting the following underlined words and deleting the following strike through words at requirements 1, 2, 3 and 9: "1. Preserves the natural character of the coast coastal environment and protection of it from inappropriate subdivision, use and development." "2. Protects Outstanding Natural Features and Landscapes from inappropriate subdivision, use and development."

6 5 "3. Maintains Visual Amenity Landscapes from inappropriate subdivision, use and development." "9. Recognises that some infrastructure, such as the electricity generation and energy projects have a need to be located within the coastal environment." 27 Amend Policy CE.1 by inserting the following underlined words: "Avoid, remedy or mitigate the adverse effects of inappropriate subdivision, land use and development on the coastal environment." 28 In addition to the above, the following relief is also sought: Any additional or alternative relief that achieves the same or similar outcome; Consequential or ancillary changes to the above. Section 2.9 Energy, Minerals and Infrastructure 29 Objective ENGM.1, as amended by the decision, is "Energy and mineral resources are developed and electricity is generated, in a manner that minimises adverse effects on the environment". Submitters, supported by Meridian's further submission, sought an amendment to reflect that it is not always practical to minimise adverse effects of generation. 30 Policy ENGM.4 (previously Policy ENGM.3) and its explanation recognise that generation can have requirements for being "sited at a particular location". Meridian submitted that the policy should specifically refer to renewable energy. Meridian also submitted that the explanation to this policy should be amended to specifically refer to renewable energy. Reasons 31 Electricity generation is important to the district, regional and national economy and should be encouraged. The Manapouri Power Station generates 12% of the country's energy requirements and is nationally important. The Plan should allow some adverse effects where it is not practical to minimise them.

7 6 32 Renewable energy is a specific consideration in section 7 RMA and the Plan should explicitly provide for renewable energy and relevant locational requirements. Meridian seeks the following relief 33 Amend Objective ENGM.1 by inserting the following underlined words: "Energy and mineral resources are developed and electricity is generated, in a manner that minimises adverse effects on the environment as far as practical." 34 Amend Policy ENGM.4 by inserting the following underlined words: "Recognise that development of energy and mineral resources and the generation of electricity, including renewable energy, can have a functional, technical or operation requirements to be sited at a particular location." 35 Amend the explanation to Policy ENGM.4 to include an explanation of the relationship between the location of the resource and the development of energy facilities. 36 In addition to the above, the following relief is also sought: Any additional or alternative relief that achieves the same or similar outcome; Consequential or ancillary changes to the above. Section 3.1 Rural Zone 37 Meridian sought the inclusion of a new "Rule Rural.1 Permitted Activities (Investigation and Assessment Works for Electricity Generation Projects)". The decision rejected Meridian's submission and there is no new rule. 38 Rule RURAL.1 lists activities that are permitted provided they meet the General Rural Standards. At paragraph 7 earthworks within a riparian margin are permitted up to 25m 3. At paragraph 8 earthworks 20m away from a water body are permitted up to 1000m 3. There are a number of conditions in paragraphs 7 and 8 that apply to earthworks. Paragraph 17 permits "The operation, maintenance, refurbishment,

8 7 enhancement and minor upgrading of any existing electricity generation facilities." 39 The relationship of the earthworks rules (paragraphs 7 and 8) to the upgrading of existing generation facilities (paragraph 17) is not clear. A submitter, supported by Meridian's further submission, sought an amendment to clarify that the requirements (conditions) in paragraphs 7 and 8 do not apply to the upgrading of existing generation facilities (paragraph 17). Reasons 40 A new rule that permits investigation and assessment work for electricity generation works should be included in the Plan. The inclusion of a new rule is consistent with the National Policy Statement for Renewable Electricity Generation 2011 and section 7(j) RMA. 41 Clarification regarding whether or not earthworks relating to the upgrading of existing generation facility is required. Meridian seeks the following relief 42 Insert a new Rule into Rule RURAL.1 paragraph 21 to read: "21. Investigation and Assessment Works for Electricity Generation Projects The following activities undertaken for the identification and assessment of potential sites and energy sources for renewable electricity generation and research-scale investigation into existing and emerging renewable electricity generation technologies and methods are permitted activities that do not have to comply with the RURAL 7 General Rural Standards: (i) The erection of meteorological masts that do not exceed 100 metres in height; (ii) (iii) Digging test pits, drilling boreholes, constructing investigation drives and removing samples to investigate geological conditions; The installation of instruments into drill holes for monitoring groundwater levels and land movement;

9 8 (iv) (v) (vi) Erecting survey monuments and installing instruments to monitor land movement; Installing flumes and weirs to measure water flows; Erecting telemetry stations for the transmission of instrument data; (vii) Installing microseismic stations to measure microseismic activity and ground noise; (viii) Erection of signs or notices giving warning of danger; (ix) Construction and maintenance of access tracks and roads to any investigation and assessment sites and facilities; except: this activity is not undertaken in an area of Outstanding Natural Features and Landscapes the activity does not affect any items listed in the Historic Heritage Schedule 5.2 Providing that: At the end of the investigation or assessment period, any ground disturbed by such activities shall be reinstated to a condition no less than that which existed prior to the commencement of the work No such investigation or assessment period shall exceed five (5) years; (c) All equipment and structures shall be removed at the end of the investigation or assessment period and the site shall be restored and rehabilitated to a condition no less than that which existed prior to the works commencing." 43 Amend rule RURAL.1 paragraphs 7 and 8 by inserting the following proviso: "Provided that this rule does not apply to the ongoing operation, maintenance, enhancement, refurbishment or upgrading within the existing envelope of any lawfully established energy generation facility."

10 9 44 In addition to the above, the following relief is also sought: Any additional or alternative relief that achieves the same or similar outcome; Consequential or ancillary changes to the above. Section 4 Definitions 45 Additional definitions were requested to provide for the enhancement, upgrading or expansion of existing energy facilities. In response there is a new definition of "minor upgrading". The new definition of minor upgrading "means an upgrade to an existing electricity generation facility lawfully established which does not increase the building envelope by more than 100m 2 or 10% whichever is the lesser, within a 5 year period." A related new definition is "existing envelope (for electricity generation facilities): is the floor area / structure footprint that has been consented or otherwise authorised for the activity". Reasons 46 The new definitions of "minor upgrading" and "existing envelope" do not accord with section 10 RMA existing use rights and unnecessarily constrains the rights of electricity generators; particularly the operations of the Manapouri Power Scheme. Meridian seeks the following relief 47 Delete the definition of "minor upgrading" and replace with the following: "Minor upgrading (in relation to existing energy facilities) means modification of an energy facility including structures and associated earthworks and site works where the effects of that utility remain the same or similar in character, and scale. Minor upgrading includes the replacement of a structure in the same location, and replacement of parts of such." 48 Delete the definition of "existing envelope". 49 In addition to the above, the following relief is also sought:

11 10 Any additional or alternative relief that achieves the same or similar outcome; Consequential or ancillary changes to the above. 50 The following documents are attached to this notice: (c) A copy of Meridian's submission and further submissions. A copy of the relevant parts of the decision. A list of names and addresses of persons to be served with this notice. DATED this 24th day of November 2014 S W Christensen / R J Brooking Counsel for Meridian Energy Limited Address for service of Appellant: Anderson Lloyd Lawyers Private Bag 1959 Dunedin 9054 Phone: Fax: Contact person: Stephen Christensen / Rachel Brooking stephen.christensen@andersonlloyd.co.nz / rachel.brooking@andersonlloyd.co.nz

12 11 Advice to recipients of copy of notice of appeal How to become party to proceedings You may be a party to the appeal if you made a submission or a further submission on the matter of this appeal and you lodge a notice of your wish to be a party to the proceedings (in form 33) with the Environment Court within 15 working days after the period for lodging a notice of appeal ends. Your right to be a party to the proceedings in the court may be limited by the trade competition provisions in section 274(1) and Part 11A of the Resource Management Act You may apply to the Environment Court under section 281 of the Resource Management Act 1991 for a waiver of the above timing or service requirements (see form 38). How to obtain copies of documents relating to appeal The copy of this notice served on you does not attach a copy of the appellant's submission, further submissions or parts of the decision appealed. These documents may be obtained, on request, from the appellant. Advice If you have any questions about this notice, contact the Environment Court in Christchurch.