Transpower New Zealand’s refusal to consent to construction not unreasonable
Complaint about refusal of Transpower New Zealand Ltd to allow building on property over which it had easement—Transpower refused consent—Ombudsman found its actions not unreasonable
The complainants purchased a property from Housing New Zealand, which had granted an easement to Transpower on a section of the property. The complainants wanted to build a second structure on the site, and the district council approved construction if consent could be obtained from all neighbours and Transpower.
A Transpower official visited the site, noted that there were transmission lines crossing the end of the section and told the owners they would need to obtain an engineer’s report on safety issues. They therefore commissioned a report at a cost of $2000. The engineer’s report stated that there were no safety issues. However, Transpower refused consent for the new dwelling, despite having no assets on the property; not maintaining the land in any way; paying none of the rates; and ignoring the report findings.
A complaint was made to the Ombudsman, who formed a provisional opinion that Transpower was not acting unreasonably. This was because the contract stated that the property owners only had the right to use the easement property if it did not interfere with the rights of Transpower. The easement was there to protect and access transmission lines and Transpower was concerned that building a structure underneath could detrimentally affect its access and could cause risks related to electrical flashover and line breakages. The Ombudsman concluded that Transpower was not treating the complainants differently to the neighbours (who did not have easements) and agreed with Transpower that the engineer’s report was limited to an analysis of whether the dwelling would be at a safe distance from the transmission lines. It had not considered access or line breakage issues.
Following the inquiries made by the Ombudsman, Transpower offered to reimburse the cost of the report to the complainants. In all the circumstances, the Ombudsman was unable to conclude that Transpower had acted unreasonably.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.