Does it matter that water from a community scheme is used to wash dairy sheds? Yes, it turns out. David Williams reports
Courts have been loathe to link consents with the environmental effects of their use.
For example, the Supreme Court, in what’s known as the Buller Coal decision, ruled the climate-heating effects of coal-burning couldn’t be considered when granting mining consents.
Similarly, the High Court binned an appeal to a water bottling plant based on the use and discarding of plastic bottles. (That decision now sits in the Court of Appeal.)
However, a new High Court judgment, released yesterday, confirms it was appropriate for the Environment Court to factor in potential contamination of groundwater from dairy sheds when considering the term of a water consent.
Environmental law experts aren’t getting carried away.
Anna Sintenie, a senior researcher at the Environmental Law Initiative, says the decision is very much focused on the term of the consent.
“There is a clear statement that the end use of a water permit is relevant, and that’s probably helpful.”
Nelson barrister Sally Gepp, president of the Association for Resource Management Practitioners, zeroes in on the High Court’s recognition of Te Mana o Te Wai, a Government policy which requires councils to prioritise the health and wellbeing of waterways.
The concept, introduced in 2017, was reframed in 2020 when the new National Policy Statement for Freshwater became law.
Gepp says: “It is clear, and unsurprising, that the fundamental concept of Te Mana o Te Wai, which recognises the connection between water and the broader environment and makes the health of freshwater the top priority, influenced the court’s decision.”
Councils and other water users are still grappling with the concept, she says.
Photo: itravelNZ/Flickr/Creative Commons
The cascade of court appeals was sparked by the Otago Regional Council’s decision to grant the Clutha District Council a 25-year replacement consent to take water from the Clutha/Mata-Au River for its existing Bruce community scheme.
While the regional council wanted to give the scheme secure water supply, it said a shorter period than the 35 years requested was necessary over doubts a contingent supply was needed for “possible future growth and expansion”, and with changes looming to the river’s flow regime.
Clutha’s council appealed to the Environment Court. (The original consent had a 20-year life.)
As Environment Judge Jane Borthwick delved deeper into the case she realised not all the end uses were identified in the consent application. What had been portrayed as a community drinking supply – its “predominant” use for stock and potable water supply – was in fact devoting almost a third of its water to dairy sheds.
“It was our impression all witnesses overlooked (or paid insufficient attention to) the scheme’s wider purposes,” the November 2020 Environment Court decision said.
Both councils were criticised: the district council for not providing a robust assessment of effects on the river’s ecology and surface flow; and the regional council for being oblivious to all the scheme’s uses.
Without this information, the court said, the regional council risked undermining its fundamental job of managing the region’s natural and physical resources in an integrated way.
Another important factor in Borthwick’s judgment was Otago’s planning regime being in a state of flux, between the existing district plan and the new one, expected to be operative by the end of 2025.
Clutha council’s High Court appeal, claiming seven errors of law and 15 questions of law, was emphatically rejected by Justice Gerald Nation’s decision, released yesterday.
(A High Court appeal is only allowed on points of law.)
“The use of water from the scheme was more than inevitable or foreseeable. It was already happening.” – Justice Gerald Nation
The district council argued the potential or actual effects of water use was “too remote and lacking in a sufficient nexus” to the water take to be relevant to a consent term.
The Environment Court made an error by going beyond the scope of issues raised, the council said. It was up to the regional council to police potential contamination from farming.
The regional council, meanwhile, contended the Environment Court was allowed, under the Resource Management Act, to consider actual and potential adverse effects, and nothing in the consent, notice of appeal or the regional plan prevented it.
In fact, knowing water from the Clutha council’s scheme was being used for dairy shed wash, the court “could not ignore the effects of that use”.
“The use of water from the scheme was more than inevitable or foreseeable,” Justice Nation wrote. “It was already happening. Up to 30 percent of water supplied to the scheme was being used for dairy shed wash. That use of the water was as much a reality as the use of water for human consumption, as part of a potable water supply.”
The scheme supplied urban and rural properties, including 28 dairy farms. Under Otago’s land and water plan, priority is given to water used for human consumption. But in this scheme less than 20 percent was used for drinking water.
Some important context here. An independent review of the regional council in 2019 found its freshwater planning system was inadequate. To that end, Environment Minister David Parker referred recent plan changes to the Environment Court, because of their national significance, to plug the gaps. Plan Change 7, which became operative last month, sets the regime for dealing with expired water consents.
Councils are required to “give effect to” the National Policy Statement for Freshwater Management (NPSFM), putting the health and wellbeing of freshwater bodies at the forefront of decisions. And under the RMA, the Environment Court is charged with promoting the “sustainable management of natural and physical resources”.
The High Court judgment said: “The way in which the Environment Court had regard to the potential contamination from dairy shed wash appropriately recognised the purposes and scheme of the RMA and the NPSFM.”
Many of the claimed errors, argued by the Clutha council, depended on the answer to that question: Could the Environment Court regard the end use of water? When Justice Nation decided that was appropriate, they failed.
Too piecemeal
Plan Change 8 to Otago’s water plan – another fast-tracked by David Parker – will improve minimum standards for animal waste storage, and how it is applied to land. It will bring the region into line with good practice across the country. (Hearings have been held this week.)
Yet, the Environment Court lamented, none of the witnesses mentioned the plan change.
Borthwick raised relevant aspects of the plan change, including what the High Court called its “concern over disaggregation of resource management and the importance of the need for integrated management of resources for the benefit of the environment”.
In some quarters, there’s a presumption water permits should be for 35 years, the maximum allowable by law, when there’s significant investment in infrastructure. Not so, Justice Nation’s judgment says – the default is five years.
“There is no basis to suggest the presumption should be that a take consent will be granted for 35 years unless there is good reason to depart from that.”
Borthwick’s judgment, from November 2020, said the court wasn’t satisfied “the risk of potentially significant adverse effects arising from this activity may be adequately managed through review conditions”.
In any case, such conditions – to constrain the supply of new water to farms with an up-to-date environment management plan – don’t deal with “present day risks”.
Another consideration for a shorter consent term was a policy in the Kāi Tahu Ki Otago Natural Resources Management Plan to oppose water-take permits granted for 35 years.
When Parker referred Plan Change 7 to the Environment Court, he noted widespread public concern in water management across Otago. A failure to change the plan had the potential to result in “significant and irreversible changes”, he noted.
Therefore, bad plans can harm the environment. And so can councils that don’t fully consider the effects of consents, the courts recognise.
