Why did the Court of Appeal quash consents for water bottling? David Williams delves into the decision
It boiled down to these words: take and use.
Court of Appeal Justices Mark Cooper, Brendan Brown and Stephen Kós were considering consents granted by Canterbury’s regional council, ECan, for water bottling.
Two companies – Cloud Ocean Water, a Blenheim-based company with Chinese owners, and Rapaki Natural Resources, now ultimately owned by Wellington commercial property investor Markus Dunajtschik – bought land at Belfast, a suburb about 10km north of Christchurch’s centre.
Water takes attached to the properties were for a freezing works and a wool scour. In 2017, Cloud Ocean and Rapaki applied for a change of use to water bottling.
ECan said the “takes” were part of what it called the existing “consented environment”, which led it to consider the water “use” in isolation.
The council granted consents, involving billions of litres of water a year, without public notification. (In addition, Cloud Ocean, whose water bottling operation has been mothballed, was allowed to drill a new, 186-metre-deep bore.)
Opposition sprang up.
Environmental advocacy group Aotearoa Water Action, established in February 2018 to challenge the water bottling consents, sought a judicial review, which was rejected by the High Court in 2020.
AWA appealed, which led to Wednesday’s Court of Appeal decision.
The principal argument was this: Can a new use be divorced from a previous approval to take water for a different use?
Surely, AWA argued in court, take and use need to be considered together.
Acronyms and jargon
Planning seems an arcane world circled by acronyms and jargon, with rules, objectives, and policies rarely discussed outside of council hearings and courts. Technical language is crammed into weighty documents very few people read.
However, the language in those documents is important and deliberate, and, as we’re about to discover, can lead to serious, real-world consequences.
ECan staff decided the applications from Cloud Ocean and Rapaki were for a new use, and were separate from the water take.
Once granted, the new consents were amalgamated with existing consents, to create a single approval for “take and use”.
ECan consents manager Phil Burge said in 2017 the council’s concern was the amount of water used and any environmental effects, not what the water was used for.
Commercial bottling was an industrial use, the council said, and therefore permitted under the existing water-take consents.
In the rejection of AWA’s judicial review in 2020, High Court Justice Gerald Nation said there was nothing in the Resource Management Act (RMA) limiting ECan from considering water uses and takes in isolation.
In the Court of Appeal, AWA argued only when take and use are considered together can the consent authority determine if a take is appropriate – especially when, in this case, the catchment was fully allocated. (This creates a potential problem if a new consent application is deemed necessary.)
At the hearing, ECan’s lawyer Philip Maw, an environment and planning specialist, argued a more holistic consideration is only required if both the take and use are new.
He acknowledged provisions for transferring consents don’t deal with a situation in which water allocated to a specific site is to be used for a different purpose.
The council’s solution was “elegant”, he said, allowing the existing take to be relied upon while ensuring effects of the new use were properly assessed. The council could control the effects through consent conditions.
“The amount of the take has to be assessed to see whether it is reasonable for the proposed use.” – Court of Appeal decision
The Appeal Court judges agreed with Justice Nation that the RMA allows takes and uses to be considered separately. The key, however, lies with ECan’s regional plan and the water controls contained within it.
The Land and Water Regional Plan consistently treats the taking and use of water together, melding them into a single activity – language the Court of Appeal decision says “is important and must have been intended”.
The most relevant rule says the “taking and use of groundwater is a restricted discretionary activity”. One of the discretionary considerations is whether the amount of water “to be taken and used is reasonable”. (If conditions aren’t met, a consent is either non-complying or prohibited.)
“We consider this creates a direct linkage between take and use. The amount of the take has to be assessed to see whether it is reasonable for the proposed use.
“The question of what is reasonable in an area where the water is fully allocated is obviously intended as a control mechanism to ensure that no water is taken beyond what is appropriate for the proposed use.
“If the take is treated as an activity separate to the use, it is unclear how the reasonableness criterion could be applied.”
When water-take volumes are a given – because they’re based on a pre-existing consent – the rule’s intent is subverted, the court said.
Other discretionary considerations include alternative water supplies, the maximum rate of take, and potential adverse effects on other authorised takes. These, too, are made irrelevant by separating water takes.
“We do not think it is a satisfactory answer to say that these matters must be assumed to be satisfactory because there is an existing consent. In our view the intent of the rule is that all relevant matters will be able to be considered in relation to the application for consent and use.”
ECan was wrong to consider the water use consents for water bottling under a “catch-all” rule, the decision said. The “impugned” consents must be set aside.
An important aside here is the support, broadly speaking, for AWA’s appeal by Te Ngāi Tūāhuriri Rūnanga. It joined the Court of Appeal action as an intervenor.
ECan identified the Rapaki and Cloud Ocean sites as so-called “silent file” areas – in need of special protection because of significant wāhi tapu (sacred places) or wāhi taonga (treasured possessions).
Ngāi Tūāhuriri Upoko Te Maire Tau told Stuff in 2020 the rūnanga wanted Canterbury’s fresh water to be protected for future generations, not harmed through the extraction and commodification of the resource.
Because AWA’s appeal succeeded at an earlier stage, the court didn’t need to consider the effects of water bottling on cultural values – or if ECan’s notification decisions were lawful.
In a statement, Cloud Ocean director Feng Liang said the company needed time to consider the “disappointing” Court of Appeal decision.
“The decision is potentially precedent-setting – as the court says itself in its judgment – and this will need to be thought through.”
Rapaki couldn’t be reached for comment.
ECan’s chief executive Stefanie Rixecker said in a statement: “This is evidently a significant decision which will have implications well beyond water bottling. We now need to take the time to consider what those implications may be, particularly in terms of our consents processing.”
AWA spokesperson Peter Richardson, a commercial and property lawyer, was cagey when asked by Newsroom to comment on what the Court of Appeal decision reveals about who is, or isn’t, doing their job.
“I think it’s all there in the decision so you just need to go to the decision. The court hasn’t pointed fingers or anything, it’s just said they got the process wrong.”
The group’s energy and resources have been focused on the water bottling appeal.
“If this doesn’t go any further then that’ll free us up to get involved in some other stuff,” Richardson says.
“We’ll need to see what shakes out from that [decision], and what ECan’s next step is, but we’ll continue to do what we can to protect our water. That’s the bottom line.”
