Poles apart: Court of Appeal rejects efforts to replace lines looming over marae

Saturday, 5 February 2022

The power lines pass over Ariki Park, home to the Rangataua Rugby and Sports Club, in the Tauranga suburb of Maungatapu. The red-roofed Maungatapu Marae can be seen off to the left.

Transpower could be forced back to the drawing board after moves to replace power lines over a Tauranga marae were denied by the Court of Appeal.

The company were seeking to appeal a High Court ruling from May, which had overturned a previous Environment Court decision to grant consents on plans to replace the lines.

But the Court of Appeal denied Transpower’s latest application on Friday, with Justice Stephen Kós and Justice Mark Cooper finding the appeal did not meet the necessary threshold of general importance.

The power lines, installed by the Ministry of Works in the late 1950s, stretch across Rangataua Bay. They have long been a source of contention for the Maungatapu Marae Trustees of Ngāti Hē – the landowners of the rohe in which the Opopoti marae lies.

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Consents were granted by the Tauranga City Council and Bay of Plenty Regional Council in 2018 to replace the current power lines. However, the Tauranga Environmental Protection Society challenged those consents on behalf of Marae trustees – who opposed the new plans, which included the erection of a large power pole near the marae.

The Environment Court initially upheld consents. However, last May, Justice Matthew Palmer ruled in the High Court that the replacement plan for the power lines is not in line with “Ngāti Hē’s rangatiratanga, guaranteed to them by Article Two of the Treaty of Waitangi” and remitted the consent application.

It was this decision that Transpower appealed.

However, Transpower’s case hinged on whether their appeal “involves a matter of general or public importance, or a miscarriage of justice may have occurred or may occur unless the appeal is heard.”

Transpower framed 12 questions of law as part of their argument, but the Court of Appeal considered the first two questions as “essentially” the same; can the High Court lawfully overturn the Environment Court’s factual findings as an error of law? This question was not deemed to meet the threshold of general importance.

“It does not justify consideration by this court,” reads the ruling.

The following 10 questions were considered moot by the rejection of the first two and the appeal application was denied, with Transpower having to pay the respondents’ costs.

Tauranga Environmental Protection Society chairman Peter McArthur said he and his team were “delighted” with the decision.

He was particularly happy for the trustees of the Maungatapu Marae and the people of Ngāti Hē.

He also paid tribute to the late Tai Taikato, the former trustee chairman, who fought for relocation of the powerlines away from the marae up until his death in March 2020.

“We are delighted for him and all of those who dipped into their pockets to fund this fight against the poor decisions originally made by both Tauranga City Council and Bay of Plenty Regional Council.”

“They both need to review their commitment to the quality of the built environment in Tauranga and their legal obligations to consider the rights of all parties in accordance with the Resource Management Act.”

Bay of Plenty Regional Council consents manager Reuben Fraser said the council was considering the Court of Appeal’s decision.

“Resource consents help us to sustainably manage and protect our environment and assessing both the environment and community’s needs are top priorities in the consent application process,” he said.

“We look forward to reviewing the implications of this decision further over the coming days.”

Tauranga City Council environmental planning manager Dan Smith says they were also considering the implications. He said consenting of infrastructure in areas of outstanding natural and cultural significance was a “complicated RMA matter”.

“TCC supports hapū aspirations to look for alternative ways to facilitate power transmission that has less impact on areas of significance to the hapū, especially Te Ariki Pā, Maungatapu Marae and Te Tāhuna o Rangataua,” says Dan.

“However, TCC also needs to better understand how it can manage infrastructure that may impact on Tauranga Harbour.”

A spokesperson for Transpower said they only received the decision on Friday morning and would “be taking some time to consider the findings”

“We look forward to further discussion with local iwi, hāpu and the wider community in the near future.”

Tauranga Environmental Protection Society secretary Antoon Moonen said Transpower had never reached out to the Maungatapu Marae trustees.

“Transpower are not and have never talked to the Maungatapu Marae trustees who have the title on the land.

“TEPS has approached Transpower with written authorisation from the Maungatapu Marae trustees to open discussions, but Transpower have not availed themselves to this opportunity.

'Why is Transpower not talking to the Maungatapu Marae Trustees?'

- SunLive