KAPITI HIGH VOLTAGE COALITION INCORPORATED V KAPITI COAST DISTRICT COUNCIL HC WN CIV-2008-485-2723

KAPITI HIGH VOLTAGE COALITION INCORPORATED V KAPITI COAST DISTRICT COUNCIL HC WN CIV-2008-485-2723

Court held Waikanae certificates of compliance were invalid and Waikanae reconductoring is not protected by existing use rights; southern reconductoring consents were quashed by agreement but, on merits, southern works generally enjoy existing use rights under s10 except the span between poles 892–894 (Hindry) where reconductoring caused injurious affection and continuing trespass; EPR and EMF risks were not sufficient generally to defeat existing use rights except at Hindry playing field where risk and usage made effects material; s23 protected the remaining reconductoring works; Transpower ordered to apply for any required consents within three months.

Citation
openlaw-abe315ec_a6d5_4792_9603_7073c74eac1d.pdf
Parties
First Plaintiff: Kapiti High Voltage Coalition Incorporated; Second Plaintiff: Michael Philip Alexander; Second Plaintiff: Brandon Robert Hindry; Second Plaintiff: Juergen Gerhard Jenkner; First Defendant: Kapiti Coast District Council; Second Defendant: Transpower New Zealand Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 November 2012
Procedural Posture
Judicial Review and Private Law Claims (trespass/injurious Affection) / High Court Judgment (trial Concluded)
Outcome
Court quashed multiple RMA certificates/consents, declared lack of existing use rights for Waikanae works and for the A-line span between poles 892–894, declared continuing trespass on Hindry land, protected other reconductoring by s23, and ordered Transpower to apply for any required consents within three months;...
Legal Topics
Existing Use Rights (s10 Rma), Certificates of Compliance (s139 Rma), Resource Consents, Statutory Authorisation (s22/s23 Electricity Act 1992), Injurious Affection, Earth Potential Rise (epr), Electromagnetic Fields (emf), National Regulations for Electricity Transmission (2009)
Resource Management Electricity Law Property Law Tort (trespass and Injurious Affection) Administrative Law (judicial Review) Existing Use Rights (s10 Rma) Certificates of Compliance (s139 Rma) Resource Consents +5 more

Case Brief

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Parties

Kapiti High Voltage Coalition Incorporated

First Plaintiff

Michael Philip Alexander

Second Plaintiff

Brandon Robert Hindry

Second Plaintiff

Juergen Gerhard Jenkner

Second Plaintiff

Kapiti Coast District Council

First Defendant

Transpower New Zealand Limited

Second Defendant

Procedural Posture

Judicial Review and Private Law Claims (trespass/injurious Affection) / High Court Judgment (trial Concluded)

Legal Issues

  1. 1 Whether KCDC's certificates of compliance and consents for reconductoring were lawfully issued
  2. 2 Whether reconductoring benefited from existing use rights under s10 RMA
  3. 3 Whether the 2009 National Environmental Standards for Electricity Transmission Activities apply

Ratio Decidendi

Court held Waikanae certificates of compliance were invalid and Waikanae reconductoring is not protected by existing use rights; southern reconductoring consents were quashed by agreement but, on merits, southern works generally enjoy existing use rights under s10 except the span between poles 892–894 (Hindry) where reconductoring caused injurious affection and continuing trespass; EPR and EMF risks were not sufficient generally to defeat existing use rights except at Hindry playing field where risk and usage made effects material; s23 protected the remaining reconductoring works; Transpower ordered to apply for any required consents within three months.

Court Disposition

Court quashed multiple RMA certificates/consents, declared lack of existing use rights for Waikanae works and for the A-line span between poles 892–894, declared continuing trespass on Hindry land, protected other reconductoring by s23, and ordered Transpower to apply for any required consents within three months;...

Orders

  • Quash certificate of compliance dated 20 March 1998 (Waikanae Hyena reconductoring)
  • Quash extension of certificate dated 31 May 2000 (Waikanae)