Summary
Aotearoa Water Action Incorporated (AWA) successfully challenged Canterbury Regional Council’s decision to grant resource consents to Rapaki and Cloud Ocean to take and use water, in addition to subsequent consents granted in reliance on the decision.
Background
Resource consents were historically granted to take and use water for a freezing works and wool scour. These consents were later transferred to Rapaki and Cloud Ocean. Both companies sought to take water in reliance on these historical rights, but with a different purpose of bottling and selling the water.
Canterbury Regional Council granted the modified use consents to the companies through a non-notified process under the Resource Management Act 1991 (RMA). The Council considered it appropriate to change the use to which the water could be put, in reliance on the existing rights to take the water.
The “take” aspect of a consent determines from which source a person may extract water, and what quantity may be taken. The “use” aspect dictates the purpose the extracted water may be utilised for.
Once the new use consents were granted to Rapaki and Cloud Ocean, they were amalgamated with the existing take records. As the consents were not appropriately dealt with under the ordinary provisions, the Council instead processed the applications as discretionary activities under a “catch-all” provision in the regional plan.
AWA, an environmental group formed to oppose the consents, applied for judicial review. The High Court dismissed the case, and held the consents were lawfully granted. AWA appealed the decision.
In December 2018, the High Court held that commercial water bottling was not within the scope of the resource consents transferred to Rapaki and Cloud Ocean. This decision was not appealed.
The Case
The issue on appeal was whether it was lawful for the Council to grant consents for the water bottling activities.
Is water bottling a use of water under the RMA?
AWA argued the water was not “water” for the purposes of the RMA from the point it was extracted from the ground. This meant the Council could not grant a consent for the activity of water bottling, as it would not be a use contemplated by the RMA.
The Court disagreed, and held that while the water is not water for the purposes of the RMA while in the pipes, it becomes water again when it leaves the pipe to be bottled. This meant the bottling process was a use of water under the RMA, and the Council was entitled to provide a consent for such a purpose.
Must applications for take and use be considered together?
The Court of Appeal agreed with the High Court that the ability to grant a resource consent to use water was not limited to a collective “take and use” consent under the RMA. Despite this, many of the relevant considerations under the regional plan anticipated take and use to be considered as one activity. As an example, the Council was obliged to consider whether the amount of water to be taken must be reasonable for the proposed use.
For this reason, the Council did not have the ability to grant a resource consent limited to the use of the water for bottling purposes and separate from the authorisation to take water. It was necessary under the regional plan for both the take and use to be considered together. The Court held the consents granted to Rapaki and Cloud Ocean failed to achieve this, and were not lawfully granted. By extension, any subsequent authorisations which amalgamated the consents with existing water take consents were also unlawful.
Result
The Court allowed the appeal and set aside the High Court decision.
The Crown’s consents to Rapaki and Cloud Ocean were deemed unlawful and were set aside.
For further information, please contact Director Brigitte Morten
