The Supreme Court declined the appeal of water bottler Cloud Ocean Water against the decision of the Court of Appeal in Aotearoa Water Action Inc v Canterbury Regional Council. The Court found that the Canterbury Regional Council was not able to split a “take and use” resource consent, and combine a new “use-only” consent with the “take”portion of the old consent.
Two water bottling companies, Cloud Ocean Water and Southridge Holdings (formerly Rapaki Natural Resources Ltd) had acquired resources consents for the taking and use of water. However, these were from companies in the business of wool scouring and freezing works, and the “use” portion of these consents did not have water bottling within their scope. Cloud Ocean and Southridge applied to the Canterbury Regional Council (“ECan”) for new “use-only” consents for water bottling which were to be applied to their previously transferred consents, the “take” and “use” parts of the consents being decoupled.
The applications were granted, and Aotearoa Water Action (“AWA”) formed to oppose the consents. AWA unsuccessfully challenged the consents in the High Court, but were successful on appeal to the Court of Appeal. Cloud Ocean Water appealed this decision to the Supreme Court. In this appeal ECan took a neutral position, despite being the primary respondent at the High Court and Court of Appeal.
The question for the Supreme Court was whether ECan could decouple the “take” and “use” of a resource consent, and grant a new “use only”consent to be combined with the old “take” consent.
In absence of argument to the contrary, the Court proceeded on the basis that section 14 and 30 of the Resource Management Act (“RMA”) allowed for a new “use” of water to be considered independently from the “take” of water, provided relevant considerations were met. This does not require them to be separate, either. Still, the court expressed concern at the effect of the disaggregation, that companies like Cloud Ocean could hypothetically ‘bank’ the allocation of groundwater under the “take” portions of their consents. The Court was wary that this could be at odds with the effects-focus of the RMA.
Key to the Court’s decision was the wording of ECan’s Land and Water Regional Plan (“LWRP”),which governed the granting of consents. Cloud Ocean’s “use-only” consent application had been granted under rule 5.6, a ‘catch-all’ provision allowing discretionary consent of activities not otherwise covered in the LWRP. Rule5.128 of the LWRP however specifically covered the “take and use” of groundwater, which ECan had distinguished from a “use only” consent. The Court of Appeal found that it was incorrect for ECan to give consent under rule 5.6 as opposed to 5.128, and that that the “take and use” wording of 5.128 was a deliberate choice. The Supreme Court agreed with this conclusion.
Based on the above, the Supreme Court found that there was nothing in the LWRP that allowed for the “take” and “use” consents to be decoupled. ECan should have processed Cloud Water’s application under rule5.128, and made them justify both the take and use of their planned water bottling operation.
Result
Cloud Ocean’s appeal was dismissed, and the consenting process will have to begin again.
In their submissions, AWA had also supported the Court of Appeal’s judgement on the grounds that ECan should have considered the possibility of adverse effects to cultural values and tikanga from the water bottling activity. The Court noted that a judgement on that issue was unnecessary, as the consenting process had to be renewed regardless. The Court nonetheless made its expectation clear that tangata whenua would be consulted.
Justice Williams also issued his own judgement in concurrence, taking a broader view than the majority with a more purposive approach. In his concurrence, Williams assessed that even if rule 5.128 of the LWRP read as “take or use”, resource consent applications for the use of water would have to also justify their take, to manage the risks of inefficient use or over allocation.
For further information on this case or similar issues, please contact Director, Brigitte Morten
