24 November 2005

Central Plains Water given requiring authority status

Minister for the Environment, David Benson-Pope, has today granted Canterbury irrigation company Central Plains Water Ltd the status of requiring authority.

The Minister is satisfied that Central Plains Water has passed the criteria in the Resource Management Act to become a requiring authority.

“I would like to emphasise that this decision is just the first step of a very thorough process. It does not mean that Central Plains Water now has the permission to go ahead with their irrigation project,” said the Minister.

Mr Benson-Pope says the technical decision he has made goes to whether Central Plains Water would act responsibly and should be allowed to apply for the appropriate approvals to set up an irrigation network. His decision-making did not consider the merits of the irrigation project itself.

Before Central Plains Water can start implementing their project, they still need to apply for permission from Environment Canterbury and Selwyn District Council. The councils will assess the project on its impacts on the community and the environment under the Resource Management Act.

A requiring authority has the ability to apply to local councils to set aside land that it needs to set up infrastructure such as road, rail, energy or water. It can also apply to the Minister of Land Information to use the ability to acquire land.

There are more than 120 network utility operators who have been granted requiring authority status since 1991 including four irrigation companies – Barrhill Chertsey Irrigation Limited, South Canterbury Waterways Limited, Doubtless Bay Water Supply Company Limited and North Otago Water Harvesting and Irrigation Company Limited.

The irrigation scheme that Central Plains Water proposes is based on the concept of ‘water harvesting’. If consented, it will take water from intake races on the Rakaia and Waimakariri Rivers during periods of high flow. The water will then flow through open canals to a reservoir in the Waianiwaniwa Valley where it will be stored until it is needed for irrigation.

Background Information:

Requiring authority approval, designation and land acquisition processes

Introduction
Central Plains Water Limited (CPWL) has successfully applied to the Minister for the Environment for the status of requiring authority. In this paper you will find information on the process CPWL undertook to become a requiring authority. You will also read about the next steps that CPWL can take now that they have been granted this status. These next steps are the process for designating land and the process around the acquisition of land.

The fact that CPWL has been granted the status of requiring authority does not automatically mean that they can go ahead with their project. This decision simply allows them to apply for the approvals needed to set up an irrigation scheme.

For more information on requiring authorities and designations please visit the website of the Ministry for the Environment, www.mfe.govt.nz.

Requiring Authority Approval

Why do we need a requiring authority?
Infrastructure of all sorts plays an important part in New Zealand’s society. Roads, electricity networks, telephone networks or underground pipelines for the transportation of gas – we couldn’t do without them.

To achieve efficient and effective infrastructure networks, Government or a network utility operator may need to make use of private land, for investigation or to build on. The status of requiring authority provides tools to get access to land that is needed.

Who is a requiring authority?
Ministers of the Crown and local authorities are automatically requiring authorities under the Resource Management Act. Network utility operators can apply to the Minister for the Environment to become a requiring authority.

What is a network utility operator?
Network utility operators are defined in the Resource Management Act as a person who undertakes or proposes to undertake the distribution of water, gas, petroleum, geothermal energy, telecommunications, electricity, water (including irrigation), wastewater, and the construction and operation of roads, railway lines, and airports (including approach surfaces).

CPWL falls within the definition of a network utility operator, as it intends to distribute water for irrigation purposes.

What are the powers of a requiring authority?
Requiring authorities have four powers:
- They can apply to the local authority to designate land
- They can undertake works in an emergency and get resource consents after the work has been done
- They can apply to the Minister of Land Information to use the compulsory acquisition powers in the Public Works Act 1981
- They can go on to private land (after giving notice) to undertake investigations under the Public Works Act 1981.

What does the Minister consider when he decides on applications for requiring authority status?
The Minister must be satisfied that:
- the applicant is a network utility operator;
- approval is appropriate for the purposes of carrying on the network utility operation; and
- the applicant is likely to carry out all the responsibilities (including financial responsibilities) of a requiring authority and will give proper regard to the interests of those affected and to the interests of the environment.

Does the Minister have to consult with the public before he decides on the application?
No. The decision on whether an applicant passes the three tests set out above is made by the Minister for the Environment. There is no public participation process for considering the approval of requiring authorities.

Is CPWL the first private company to be granted the status of requiring authority?
No. There are about 120 existing network utility operators with the status of requiring authority. The majority of these are private companies. Examples include Shell New Zealand, Vodafone New Zealand, Transpower New Zealand Ltd and Auckland International Airport Limited.

Four irrigation companies have already gained requiring authority status. These include Barrhill Chertsey Irrigation Limited, South Canterbury Waterways Limited, Doubtless Bay Water Supply Company Limited and North Otago Water Harvesting and Irrigation Company Limited.

Designation Process

Now that the requiring authority status has been granted, CPWL can apply to Selwyn District Council to designate land. This document contains a diagram that outlines the total process around designations.

What is a designation?
A designation is a provision in a district plan that gives notice to the community that a requiring authority intends to use land in the future for a particular work or project. Once a site is designated for a particular purpose, the requiring authority is able to:

- proceed with the specific work on the site as if it was permitted by the district plan
- control activities that occur on the site, to prevent the landowner doing anything that would compromise the future work. This is the case even if the requiring authority does not own the site
- apply to the Minister of Land Information to compulsorily purchase or lease all or part of the land under the Public Works Act 1981; and
- enter private land to undertake investigations (after giving notice).

While a designation gives a requiring authority 'permission' under the district plan, the requiring authority must still obtain any regional council resource consents - including diverting water, discharges to air, water and land and earthworks.

What happens when there is a request for a designation?

A request for a designation is called a notice of requirement. Before a requiring authority can submit a notice of requirement for a designation to a local council, it must carefully assess the environmental effects and any possible alternatives. Once a notice of requirement is submitted, the Council will then publicly advertise the notice of requirement and call for submissions.

Everyone can make a submission and present their views to a hearings committee of the Council. If there is a potential (or perceived) conflict of interest councils will often appoint independent commissioner(s) to make the decision.

Who makes the decision whether to approve a designation request?

The Council (or independent commissioner/s) will make a recommendation about whether to approve or decline a designation request. The requiring authority will then issue the decision, which must be distributed to all submitters by the local authority. If the decision is confirmed, the land becomes designated. Any submitter or the Council can appeal the decision of the requiring authority to the Environment Court. The decision of the Court is final, unless there is a challenge to the High Court on points of law.

Outline Plan Approval

Depending on the detail of the designation request, requiring authorities may have to submit an ‘outline plan’ to a local authority when they are about to commence work. This may be required if certain detailed information was not available at the time of the hearing into the notice of requirement. This usually relates to building and earthwork details, landscaping and other mitigation measures. The territorial authority does not need to seek public comment on an outline plan, but the requiring authority can choose to consult on its outline plan.

How long will Central Plains Water Limited take to implement their plans?

If the company is successful in gaining designations for their proposed works, the company states that it could take up to three years to construct and commission the scheme.

The consideration of notices of requirement for designations can take several months and longer if there are appeals to the Environment Court.

Prior to lodging the designation application, a significant amount of time will be spent by the company preparing the application. It has to prepare detailed construction plans and provide information on environmental effects.

Who pays for this designation process cost and what costs are involved?

The costs of preparing the designation request are paid for by the requiring authority. The territorial authority will be able to recoup the costs of processing the designation request from the requiring authority. These costs include notifying the request, assessing the environmental impacts of the proposal and running the submissions and hearing process. Submitters can present their own evidence at the hearing without incurring any legal or professional fee costs.

Any appeals to the Environment Court are met by individual appellants. This usually involves a lodgement fee and meeting the costs of their legal and expert witnesses (if required).

Land Acquisition Processes

How can a requiring authority acquire land along the designated route?
If a requiring authority needs to buy land, it will negotiate with landowners who own land along the designated route. These negotiations may also include the use of easements and other private agreements. They can be undertaken at any stage, however most acquisitions are likely to be undertaken when the company knows with a degree of certainty that the proposal is likely to go ahead. This will depend on when the designation is confirmed and whether any regional council resource consents are approved.

In many cases, a requiring authority does not own the land that they need for their project. Where land is subject to a designation, the landowner may apply for an order obliging the requiring authority to purchase or lease all or part of the land. In general terms, this is done where the owner is unable to sell the land at a market value because of the designation or the owner cannot reasonably use the land.

What happens if the parties cannot reach agreement?

A requiring authority does not have the right to compulsorily acquire land. Rather, it gives it the right to apply to the Minister of Land Information for approval to use the Public Works Act 1981 to acquire land. If a requiring authority applies to the Minister of Land Information and if this application is approved, the Public Works Act 1981 sets out a detailed process that must be followed before land can be compulsorily acquired. This includes appeal rights to the Environment Court.

ENDS

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