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32

VI Marine Energy

A          Introduction

New Zealand’s development of various forms of marine energy to produce renewable electricity and reduce greenhouse gas emissions is still in its infancy. With advancing technology, New Zealand is geographically well placed to be home to such developments. However, the way New Zealand has dealt with the contentious issue of the marine and coastal area acts as a prima facie disincentive to marine technology. It is argued that as marine developments in customary marine title areas would be considered to be deemed accommodated infrastructure that such development should not be obstructed. This issue interrelates with concerns about public access including navigation and fishing. Other adverse environmental effects include effects on landscape, coastal processes, fish, marine mammals, and cultural interests which will need to be addressed using an adaptive management framework. The development of marine energy in New Zealand will, no doubt, see further litigation as competing interests seek to protect or harness the power of the oceans.
B          History of Marine Energy in New Zealand
Energy from oceans can be converted to electricity in a multitude of ways.1
There are eight principal marine sources which include energy derived from waves (open ocean swells and breaking waves), tides (tidal rise / fall and currents), heat (change in temperature between deep and shallow water), osmotic processes (change in salt concentrations), marine biomass farming and offshore winds. The latter four are not currently commercially viable in New Zealand.  Energy derived from waves in the open ocean include point absorber devices and attenuators, while energy derived from breaking waves includes oscillating water columns and overtopping devices. Energy from tides can be extracted through barrages or turbines. Nevertheless, turbines take different forms with horizontal axis turbines (analogous to a wind turbine working underwater), shrouded turbines (a hydro turbine which accelerates natural flow), open ring turbines (a hydro turbine with a large hole in the middle), and vertical axis turbines (analogous to vertical wind turbines no longer under development).

 

Although New Zealand has one of the best wave energy resources in the world with only limited opportunities for tidal energy,2

tidal energy is currently taking the lead due to advances in technology. In July 2006, Crest Energy submitted resource consent applications for a 200 extended array of turbines on the seabed of Kaipara Harbour.3In July 2007, Neptune Power submitted resource consents for a single tidal turbine near Karori Rip in the Cook Strait. After reviewing their plans, Neptune Power “unveiled plans to deploy 900 MW of tidal stream devices of Cape Terawhiti by 2021” which involved consent to install a single prototype.4In 2006, Wave Energy Technology developed a point absorber wave prototype off Pegasus Bay near Christchurch.5

Energy Pacifica is pursuing tidal energy in the Tory Channel with applications for resource consent and plans to install ten turbines up to 1.2 MW each.6Chatham Islands Marine Energy Ltd has applied for resource consents for shore-based wave power at Point Durham in the Chatham Islands to supply the islands with nearly half of the electricity for the island.7

In addition, Tangaroa Energy Rakia Amps Ltd seeks to take advantage of the eastern waters of Stewart Island with wave energy.8This has all been encouraged by the $8 million Marine Energy Development Fund administered by the Energy Efficiency and Conservation Authority. As yet, only Crest Energy’s marine energy development in Kaipara Harbour has been consented by the Environment Court with interim and final decisions.9

C         Nuclear Power
As a side note, development of an electricity source at Kaipara Harbour and Baring Head to feed Auckland and Wellington respectively are not new. A 1964 report stated in reference to nuclear power that “this means of power generation must be introduced in New Zealand.”10

With the discovery of the Maui gas field in 1969, nuclear power became delayed.11Even so, the New Zealand Atomic Energy Committee identified several sites around Kaipara Harbour for development.12

In 1976, a Royal Commission of Inquiry into Nuclear Power Generation was established. That year, Campaign for Non-Nuclear Futures presented Parliament with a petition with 333,088 signatures calling for an entirely non-nuclear future including nuclear power.13

The Commission concluded in 1978 that “[i]f New Zealand wants more electricity… some environmental impacts will have to be paid.”14New Zealand must maintain and update “its knowledge of nuclear power generation… so that it is… qualified to avail itself of the nuclear option” but at that time nuclear power was uneconomic.15
Today, nuclear power in New Zealand would face considerable public opposition. As a starting point, Ministerial consent would be needed for the importation of nuclear fuels into New Zealand and hence nuclear power is not considered any further.16
D         Ownership of the Coastal Marine Area
Even though sea water is incapable of ownership due to its nature at common law, ownership of land in the coastal marine area is contentious. In Attorney-General v Ngati Apa, the Court of Appeal found that Maori aboriginal title to the foreshore and seabed had not been extinguished by the Crown in its acquisition of sovereignty or through statutes.17The Foreshore and Seabed Act 2004 (FSA 2004) resulted with s 13 vesting the “full legal and beneficial ownership of the public foreshore and seabed” in the Crown to be “held by the Crown as its absolute property.”18
This created territorial customary rights and customary rights orders but these proved impossible to obtain due to the thresholds required for acquisition and no rights were granted.19
The Act was subjected to extensive scrutiny with the Waitangi Tribunal reporting that the Act was in breach of the Treaty of Waitangi.20
With a change of government and a Ministerial Review Panel, the subsequent Marine and Coastal Area (Tukutai Moana) Act 2011 provides in s 11 that “[n]either the Crown nor any other person owns, or is capable of owning, the common marine and coastal area, as in existence from time to time after the commencement of this Act.”21More problematically, in s 18, “any structure that is… fixed to, or under or over, any part of the common marine and coastal area… is to be regarded as personal property and not as land or as an interest in land.”22Awkwardly, s 60 stipulates that customary marine title “provides an interest in land” although such an interest is not created for a protected customary right.23
To answer this anomaly, it is appropriate to go back to the statutes. The “coastal marine area” is defined in the RMA 1991 as including the foreshore, seabed, coastal water, and the air space above the water. This area is bounded by the mean high water springs and goes out to the 12 mile territorial sea.24
The “marine and coastal area” under the MCAA 2011 is defined similarly but expressly does not include water in order to avoid the recognition of Maori customary title to water because as seen previously water at common law is incapable of ownership until capture.25The “common marine and coastal area” is defined in the MCAA 2011 as the marine and coastal area other than specified freehold land, any land owned by the Crown such as a conservation area, national park or reserve.26Section 12(1)(b) of the RMA 1991 provides that no person may in the coastal marine area “[e]rect, reconstruct, place, alter, extend, remove, or demolish any structure or any part of a structure that is fixed in, on, under, or over any foreshore or seabed.”27Structure is defined in the RMA 1991 as anything essentially that “is fixed to land.”28The MCAA 2011 prompts that any structure does not become land because there is to be no ownership of the common coastal marine area. It also states that the “marine and coastal area” is not land but includes “subsoil, bedrock, and any other matter.”29Clearly, the common marine and coastal area includes land to which structures can be affixed. Such structures are declared personal property despite affixation as real property.30In a customary rights title area, there is the creation of “deemed accommodated activities.”31Such an activity includes infrastructure that is owned, operated or carried out, for present purposes, by a network utility operator32and / or an electricity generator.33Such “deemed accommodated activities” must involve “the construction or operation of any proposed infrastructure that… cannot practicably be constructed or operated in any location other than within a customary marine title area.”34It is required to be essential for “national social or economic well-being” or “[regional] social or economic well-being.”35
Such infrastructure must be agreed in principle by the group that holds customary marine title or is classified by the Minister for Land Information as a deemed accommodated activity subject to all necessary consents being obtained.36A comprehensive procedure means that before any applications for resource consents are lodged, the Minister for Land Information is to be provided with detailed information about the proposal.37If there is sufficient information to proceed, the Minister will enter into negotiations with the customary marine title group to “identify appropriate compensation.”38If the proposed infrastructure becomes a “deemed accommodated activity”, the Minister must publish in the Gazette relevant details.39The creation of interests in land for customary marine title areas but not structures is perplexing. Freehold land, conservation areas, national parks or reserves do have an owner so any structure thereon would become real property. Nevertheless, it is probable that any structure in the customary marine title area does not create an interest in land even though the customary marine title itself creates an interest in land. The definition of customary marine title area is “part of the common marine and coastal area where a customary marine title order applies.”40As seen, structures are “personal property” in the common marine and coastal area. While it has been argued that “Crown ownership is a vestige of a feudal past”,41it is arguable that the creation of an interest in land for customary marine titles (despite its explicit exception) appears prima facie inconsistent with the proposition that there is to be no ownership of the common marine and coastal area. It is doubtful whether the legislature has heeded the warning that structures should be “free from complex legal technicalities.”42
 

1          Conflicts over Resource

 
When Crest Energy sought consent to install and operate electricity generating turbines in Kaipara Harbour, Environs Holdings (a subsidiary of Te Uri o Hau Settlement Trust) sought a stay of the proceedings pending the outcome of an application filed under the FSA 2004.43This application sought recognition of territorial customary rights over the foreshore and seabed of Kaipara Harbour. The Environment Court declined the stay because Environs Holdings “did not need to rely on” any determination under the FSA 2004 in order to give evidence in the Environment Court as to Maori relationship with the area.44It was explained that resource consents do not grant proprietary rights. The process for establishing such rights was conceded as lengthy which would “create an unreasonable and prejudicial delay for Crest Energy.”45The Court also averred that Environs Holdings knew that a hearing was to take place before the Environment Court but waited four months before applying for a stay.46This was upheld in the High Court as “[i]t is not appropriate to afford status to a group seeking a territorial customary rights order that it does not possess.”47

Majurey and Whata submit that “should this situation arise again[,] the outcome may very well be different given the [MCAA 2011].”48

Respectfully, such reasoning does not withstand scrutiny. Certainly the MCAA 2011 introduced a new regime. However, firstly, there is nothing in the MCAA 2011 which halts legal proceedings because of customary recognition applications. The closest provision is s 62 of the MCAA 2011 which stipulates that a person who applies for a resource consent must, if an applicant group have applied for recognition of customary marine title, notify the applicant group and seek the views of the applicant group but that is all. Secondly, although s 122(5) of the RMA 1991 creates what appear to be proprietary rights for coastal activities as occupation,49

resource consents are still not concerned with ownership.50

Thirdly, logically an applicant group must have applied for customary recognition before a resource consent application is made in order to establish priority. This would be consistent with (although distinguishable from) priority being created on a “first-in-first-served” basis as established in the aquaculture case of Fleetwing Farms Ltd v Marlborough District Council.51This is different from Environs Holdings because the resource consents were applied for before the customary recognition application. Fourthly, provisions relating to unreasonable delay still exist.52

Environs Holdings waited four months before applying for a stay after knowing that resource consent applications was going to an Environment Court hearing. For these reasons, if the situation arose again the facts would have to be critically different in order for any sustainable outcome to be different.

 

Although ownership is contentious, the MCAA 2011 encourages the use of the marine and coastal area for all New Zealanders.53This philosophy is in harmony with the RMA 1991.54Under the RMA 1991, the New Zealand Coastal Policy Statement 2010 (NZCPS 2010) forms the pinnacle of coastal management in New Zealand.55This is complemented with a web of regional policy statements, regional coastal plans, regional plans and district plans. The NZCPS 2010 renders the status of restricted coastal activity obsolete with the mere requirement for a coastal permit by the regional council if required.56Importantly for the development of marine energy, the NZCPS 2010 recognises the “potential for renewable marine energy to contribute to meeting the energy needs of future generations.”57

 

E          Assessment of Environmental Effects of Marine Energy

1          Adaptive Management

 

The development of marine energy requires an adaptive management framework due to the sensitivity of the coastal environment. Adaptive management is an experimental approach to management through learning by doing.58

This provides for an extensive baseline knowledge from which a proposal is entered into stages and which there is an oscillation between monitoring and evaluation. If, for instance, the precautionary principle was taken to its extreme, “innovative or pioneering projects might never receive consent. That is not the law.”59After two years of baseline monitoring, three turbines are to be deployed in Crest Energy Kaipara Limited v Northland Regional Council (No. 2) (Crest Energy No.2) followed by another 17, 20, 40, and then 120 to bring the total number of turbines to 200.60Deployment of a subsequent stage would be subject to the approval of the Northland Regional Council following reviews which included public notification, submissions and hearings in line with s 128 to s 133A of the RMA 1991.61This was conceded as a response to the Court’s uncertainties in the evidence previously presented.62

 

2          Navigation and Fishing

 

Marine energy investors need the security that infrastructure is not compromised. In Crest Energy (No. 1), it was noted that navigation exclusion zones will usually be required to be imposed by a harbour master.63The harbour master would agree to alternative safe navigation channels. If a navigation exclusion zone is imposed “all vessels other than the consent holder’s maintenance vessels would be prohibited from entering these restricted areas.”64

The Submarine Cables and Pipelines Protection Act 1996 is also relevant. It can create a designated area to generally prevent all fishing as well as diving activities and anchoring of ships in the area to protect submarine cables.65

In terms of the adverse environmental effect on safety, appropriate “use of visual and sound signals on [a] servicing barge when low visibility circumstances dictated” will avoid collision with other boats.66While Crest did not seek exclusive occupation under the RMA 1991,67the Court explained that the coastal permit together with the navigation exclusion zone would restrict use of the area.68Although maintenance of public access to and along the coastal marine area was cited, the Court found “public access to this remote and wild area is very limited” already.69

 

3          Sediment and Scouring

 

Marine energy devices traditionally involve permanent structures being placed in moving water which can create changes to the hydrodynamic environment through sediment built up or scouring.70Scouring is likely to be limited to areas immediately around and underneath marine energy devices. The presence of a permanent structure on the seabed may also create water turbulence. The Court in Crest Energy (No. 1) accepted that “the proposed development generally was unlikely to have significant effects on coastal processes.”71

Crest Energy Kaipara Limited v Northland Regional Council [2011] NZEnvC 26 at 31.

4          Visual Impact

 

Although Crest Energy’s proposal is submerged, other marine energy technology may require an above surface visual manifestation as is required for wave energy proposals. The RMA 1991 attempts to preserve the natural character of the coastal environment72as well as the protection of outstanding natural features and landscapes.73

In Pigeon Bay Aquaculture Ltd v Canterbury Regional Council with marine farms applications, it was held that while obviously the buoys and structures would detract from the naturalness of the seascape and landscape, the marine farms were part of a broader working landscape which was not pristine.74In that case “the potential effects of the marine farms on the values of the coastal environment both on sea and on land [were] minor” and thereby accordingly appropriate.75By contrast, in an outstanding natural landscape adding an “unnatural element to the water surface” will usually create a more than minor adverse visual environmental effect.76

5          Fish

 

The adverse environmental effect of marine energy on fish is uncertain. Evidence was presented that fish would be able to detect and avoid turbines due to highly developed sensory systems.77Relevant migratory species included orca, rig, school shark, grey mullet and snapper.78As there was high underwater noise due to the entrance to Kaipara Harbour, an expert postulated that there “would be no hearing hazard, behavioural issue or communication making from turbine noise for sea life.”79The 35 dB increase was contested as significant.80Ultimately, the Court found that they had “no reliable evidence to assess [mammal or fish] response to the turbine noise” and affirmed adaptive management.81

Nonetheless with resource consent conditions which involved underwater cameras, sound recordings, tagging as well as setnet, driftnet, beach seine, otter trawl and beam trawl methods in order to detect fish, staged development allowed for extensive monitoring.82

6          Dolphins

 

Extensive evidence was led about the effect on Maui’s dolphin. Maui’s dolphin is listed internationally as critically endangered with only about 100 still in existence.83The Department of Conservation has put in place a Marine Mammal Sanctuary to protect Maui’s dolphin which includes Kaipara Harbour.84Evidence was that Maui’s dolphins visit the harbour infrequently and that the enclosed blades and large central opening would not be an obstacle for Maui’s dolphin.85The Court accepted that “the death of one Maui’s dolphin would be one too many.”86All things considered, the court reasoned that a two year baseline monitoring regime was appropriate as well as the fine tuning of ongoing monitoring which included porpoise detection devices and a series of aerial surveys over the area.87

 

7          Antifoulant and Biosecurity

 

Antifoulant and biosecurity are matters not raised in the decisions in Crest Energy but forms part of the resource consent conditions. Bio-fouling is the accumulation of sessile biota on the marine energy equipment.88No fouling is generally expected given high currents and the moving parts of marine energy equipment but such fouling can occur on anchors and mooring cables. The resource consent conditions specify that where antifoulant chemicals are used, this shall be confined to the disc / vane of each turbine, inside the collar, and inside any venturi attached (a device designed to enhance the natural flow).89In addition, a Biosecurity Management Plan is required to avoid the introduction of unwanted or risk species by vessels, marine turbines or ancillary equipment such as cables.90

 

8          Maori

 

The Maori cultural dimension will often be present in marine energy developments. Section 59 of the Te Uri o Hau Settlement Act 2002 acknowledged the cultural, spiritual, historic and traditional association of Te Uri o Hau with the Kaipara Harbour. Therein, the Crown acknowledged that the historical loss of control over the land impeded the ability of Maori to exercise control over their taonga and waahi tapu and to maintain spiritual connections with their ancestral lands. Mention was made of a taniwha, Pokopoko, who guards Kaipara Harbour entrance.91Maori were also distressed that shifting sands would uncover koiwi (human remains).92The Environment Court noted that Crest Energy proposed a Kaipara Harbour Environmental Trust to fund “environmental restoration in and around Kaipara Harbour” which would “address aspects of cultural offence deriving from biological and physical degradation of past land and water management practices.”93Ultimately, Maori cultural concerns were held to be “adequately and appropriately addressed.”94

E          Conclusion

 

Marine energy in New Zealand as a way of producing renewable electricity and reducing greenhouse gas emissions is awakening. With advancing technology, New Zealand has not been shy to experiment. However, the everlasting debate over interests in the marine and coastal area would seem to act be a disincentive to such technology. It is submitted that marine energy developments in customary marine title areas would be considered as deemed accommodated infrastructure which should allow for the development of such technology. Public access to the marine and coastal area is central to the debates and marine development restricts navigation and fishing. There are other environmental effects such as on landscape, coastal processes, fish, marine mammals, and cultural interests but these will, at least initially, be protected through an adaptive management framework. It is becoming apparent that competing interests in the marine and coastal area are divided between those who seek to protect and those who seek to harness the power of the ocean.

 

 

VII Conclusion to Renewable Energy

 

Drawing the threads of renewable energy together, it is seen that renewable energy is at the forefront of New Zealand’s attempts to reduce greenhouse gas emissions. The New Zealand Government’s target for renewable electricity generation is being faithfully upheld. New Zealand’s existing wealth of renewable resources and use for electricity generation has created a precedent for greater optimisation. In addition to greenhouse gas reductions from the utilisation of renewable resources, renewable energy allows diversification, security of supply and reductions in transmission losses. New Zealand has adopted a no ownership (res communes) model to the ownership of resources integrated with usufruct rights which can create tensions associated with land ownership. The application of this principle in the context of the RMA 1991 means that there is friction between the Act’s purpose of sustainable management and adherence to “first-in-first-served” principle of resource allocation. Resource conflicts further highlight that limits to renewable resources are being found. The adverse environmental effects of the use of renewable resources for electricity generation are numerous but are not insurmountable. Maori cultural concerns form an integrated perspective to these environmental effects. The heart of such concerns whether through water, geothermal, wind and marine renewable resources is sustainability.

 

 

  1. [1] Power Projects Limited “Development of Marine Energy in New Zealand” (30 June 2008) <www.eeca.govt.nz>. []
  2. Glen Wright and David Leary “Marine Energy” [2011] NZLJ 227 at 227. []
  3. Power Projects Limited, above n 551, at 59.

    []

  4. At 59. []
  5. At 59-60. []
  6. Wright and Leary, above 552, at 227.

    []

  7. At 227.)Community Leisure Management Ltd has sought deployment of three turbines to take advantage of the tidal flows of Hobson Bay. ((Energy Efficiency and Conservation Authority “Marine Energy Deployment Fund” (2012) <www.eeca.govt.nz>. []
  8. EECA “Marine Energy Deployment Fund”, above n 558.

    []

  9. Crest Energy Kaipara Limited v Northland Regional Council EnvC Auckland A 132/2009, 22 December 2009; Crest Energy Kaipara Limited v Northland Regional Council [2011] NZEnvC 26 []
  10. [1] Rebecca Priestley “Nuclear New Zealand: New Zealand’s Nuclear and Radiation History to 1987” (Phd Thesis, University of Canterbury, 2010) at 239; See also: Andrew McEwan Nuclear New Zealand? Sorting Fact from Fiction (Hazard Press Ltd, Christchurch, 2004).

    []

  11. Priestley, above n 561, at 241.

    []

  12. At 242. []
  13. At 253.

    []

  14. Thaddeus McCarthy “Royal Commission of Inquiry on Nuclear Power Generation in New Zealand” [1978] VII AJHR H 4 at 41.
    []
  15. At 45. []
  16. Atomic Energy Act 1945, s 7; See also: International Energy Agreement Act 1976; New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act 1987; Nuclear-Test-Ban Act 1999; Radiation Protection Act 1965; and Terrorism Suppression Act 2002.
    []
  17. Attorney-General v Ngati Apa [2003] 3 NZLR 643 (CA). []
  18. Foreshore and Seabed Act 2004, s 13. []
  19. Richard Boast and Robert Makgill Marine and Coastal Area Act – Demystifying the Hype (New Zealand Law Society, Wellington, 2011) at 15; See generally: Daniel Kalderimis and Marcelo Rodriguez Ferrere “The Marine and Coastal Area” [2011] NZLJ 116; Nin Tomas “Maori Land Law: The Coastal Marine [Area] (Takutai Moana) 2011” [2011] 2 NZ L Rev 381.
    []
  20. Waitangi Tribunal Report on the Crown’s Foreshore and Seabed Policy (Wai 1071, 2004) at 127.
    []
  21. Marine and Coastal (Takutai Moana) Act 2011 [MCAA 2011], s11.
    []
  22. MCAA 2011, s 18. []
  23. MCAA 2011, s 52. []
  24. RMA 1991, s 2. []
  25. Richard Boast and Robert Makgill Marine and Coastal Area Act – Demystifying the Hype (New Zealand Law Society, Wellington, 2011) at 34.
    []
  26. MCAA 2011, s 9. []
  27. RMA 1991, s 12(1)(b) . []
  28. RMA 1991, s 2. []
  29. MCAA 2011, s 9. []
  30. Lockwood Buildings v Trustbank Canterbury [1995] 1 NZLR 22 (CA) at 28. []
  31. MCAA 2011, s 65. []
  32. RMA 1991, s 166. []
  33. Electricity Act 1992, s 2. []
  34. MCAA 2011, s 65(1)(a)(ii). []
  35. MCAA 2011, s 65(1)(a)(iii). []
  36. MCAA 2011, s 65(1)(a)(iv).
    []
  37. MCAA 2011, sch 2. []
  38. MCAA 2011, sch 2, cl 6. []
  39. MCAA 2011, sch 2, cl 11. []
  40. MCAA 2011, s 9. []
  41. Richard Boast and Robert Makgill Marine and Coastal Area Act – Demystifying the Hype (New Zealand Law Society, Wellington, 2011) at 39 []
  42. Taihakurei Edward Durie, Richard Boast and Hana O’Regan Report of the Ministerial Review Panel: Ministerial Review of the Foreshore and Seabed Act 2004 (vol.1, 2009) at 159 []
  43. Environs Holdings Limited v Northland Regional Council EnvC Auckland A 34/2009, 23 April 2009 []
  44. At [9]. []
  45. At [11]. []
  46. At [14]. []
  47. Environs Holdings Limited v The Environment Court at Auckland [2009] NZRMA 340 at [26]. []
  48. Nolan, above n 49, at 931. []
  49. Robert Makgill “Public Property and Private Use Rights: Exclusive Occupation of the Coastal Marine Area of New Zealand” in Klaus Bosselmann and Vernon Tava (ed) Water Rights and Sustainability (vol. 3, New Zealand Centre for Environmental Law Monograph Series, Auckland, 2011).
    []
  50. Marlborough District Council v Valuer-General [2008] 1 NZLR 690 (HC) at [37].

    []

  51. Fleetwing Farms Ltd v Marlborough District Council [1997] 3 NZLR 257 (CA).

    []

  52. RMA 1991, s 21. []
  53. MCAA 2011, ss 4 and 11. []
  54. RMA 1991, s 122(1). []
  55. Nolan, above n 49, at 324. []
  56. Department of Conservation, above n 14, at Policy 29. []
  57. Department of Conservation, above n 14, at Policy 6(2)(a). []
  58. Golden Bay Marine Farmers v Tasman District Council EnvC Wellington W 19/03, 27 March 2003 at 78-79.

    []

  59. Crest Energy Kaipara Limited v Northland Regional Council [2011] NZEnvC 26 at [21].

    []

  60. At [19.7]. []
  61. At [19.1]. []
  62. This was conceded as a response to the Court’s uncertainties in the evidence previously presented. ((Crest Energy Kaipara Limited v Northland Regional Council EnvC Auckland A 132/2009, 22 December 2009 at [206 []
  63. Local Government Act 1974, pt 39A. []
  64. Crest Energy Kaipara Limited v Northland Regional Council EnvC Auckland A 132/2009, 22 December 2009 at [79]. []
  65. Submarine Cables and Pipelines Protection Act 1996, s 12.

    []

  66. Crest Energy Kaipara Limited v Northland Regional Council EnvC Auckland A 132/2009, 22 December 2009 at [87].

    []

  67. At [77]. ((At [77]. []
  68. At [83]. []
  69. At [210]; RMA 1991, s 6(d). []
  70. Aotearoa Wave and Tidal Energy Association “Environmental Impacts of Marine Energy Converters” (7 November 2008) <www.awatea.org.nz> at 32.

    []

  71. At [89]. []
  72. RMA 1991, s 6(a).

    []

  73. RMA 1991, s 6(b). []
  74. Pigeon Bay Aquaculture Ltd v Canterbury Regional Council [1999] NZRMA 209 (EnvC) at [61].

    []

  75. At [64]. []
  76. Browning v Marlborough District Council EnvC Wellington W20/97, 10 March 1997 at 7. []
  77. Crest Energy Kaipara Limited v Northland Regional Council EnvC Auckland A 132/2009, 22 December 2009 at [104].

    []

  78. At [106]. []
  79. At [125]. []
  80. At [139]. []
  81. At [145]-[146]. []
  82. Crest Energy Kaipara Limited v Northland Regional Council [2011] NZEnvC 26 at 87-88.

    []

  83. Crest Energy Kaipara Limited v Northland Regional Council EnvC Auckland A 132/2009, 22 December 2009 at [149]-[150]. []
  84. At [151]. []
  85. At [154]. []
  86. At [164]-[165]. []
  87. At [168]; Crest Energy Kaipara Limited v Northland Regional Council [2011] NZEnvC 26 at 84. []
  88. Aotearoa Wave and Tidal Energy Association, above n 621, at 33. []
  89. Crest Energy Kaipara Limited v Northland Regional Council [2011] NZEnvC 26 at 41-42. []
  90. At 40-41. []
  91. At [191]. []
  92. At [191]. []
  93. At [203]. []
  94. At [214] . []