Court grants Northland power company Top Energy easements over land for lines upgrade

Top Energy has secured easements over private land for long-overdue lines upgrade from Kerikeri to Kaitaia. Photo / Supplied

Top Energy can go ahead with plans for a $40 million line upgrade from Kerikeri to Kaitaia after the Court of Appeal ruled in favour of the company being granted easements over private land.

About 12,000 customers in and around Kaitaia are served by an "at risk" single, half-century-old 110kV line through often-mountainous central Far North land from Kaikohe to Kaitaia.

The proposed lines route would affect about 96 properties, over most of which the company was able to secure easements.

However, agreement could not be reached over a 7km of stretch, known as the Mangakaretu section belonging to Dorothy and Shane Dromgool, Alan and Jennifer Poulton, and Newman Farms, which would run between Wiroa and Kaeo.

Top Energy applied to the then Minister for Land Information to have easements over their properties acquired or taken under the Resource Management Act (RMA). The applications were granted which resulted in the landowners taking the matter to the Environment Court.

In July 2018, that court ruled in the minister's favour which set the scene for compulsory acquisition under the Public Works Act.

The court proceeded on the basis the RMA did not contain an explicit requirement that the minister took into account any particular matters when granting the easements but rather her decision was "fully discretionary".

The landowners appealed the decision to the High Court and won.

They argued— and the court accepted— that the minister's discretion was not unfettered.

The minister then challenged the High Court ruling in the Court of Appeal and in a recent decision the latter set aside the previous judgment and remitted the matter back to the Environment Court to finalise the terms of the easements.

"There is no suggestion that anyone was misled by the nature of the works or the need for the acquisition of easements along the intended route. There is no error of law," the Court of Appeal ruled.

Dorothy Dromgool said her lawyers were studying the ruling and have yet to determine whether to file an appeal in the Supreme Court.

Top Energy told earlier court proceedings the delays in starting the new line had forced it to spend $12 million over the past 18 months on 14 back-up diesel generators in Kaitaia, Taipa, Omanaia and Pukenui.

These provided crucial power back-up should the existing Kaikohe to Kaitaia line fail and for regular maintenance work.

"Some parts of the line are particularly vulnerable. Between 2013 and 2017 there were nine outages which reflected a loss of power for over 40 hours to substantial parts of the network.

"The estimated economic impact on the Far North economy of those outages is over $13 million," Top Energy chief executive Russell Shaw told the Environment Court.