Adam Young is a Law Clerk at Franks Ogilvie. He joined the firm in September 2023 and is studying towards an LLB/BA, majoring in History and Public Policy.
Prior to working at Franks Ogilvie, Adam worked as a Research and Drafting Advisor for the New Zealand Free Speech Union, running much of the back-end work of the organisation. He also briefly interned for a Member of Parliament in 2020.
Adam is passionate about democratic participation and building a robust civil society. Outside his work and studies, he enjoys getting out into the various tracks and DOC huts in the Wellington region.
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
New Zealand is home to thousands of community and interest groups that get together for a common purpose. These range from local sports clubs to trade representative bodies and public advocacy groups, and can operate on a local or national level. Formal incorporation allows groups to carry out their objectives and insulates individual members from liability for the group’s obligations.
Incorporating a new society is straightforward but there are stumbling blocks that can catch people out, particularly when you’re in a hurry to get a new group up and running. What’s more, the 2022 rewrite of the Incorporated Societies Act has substantially changed the requirements and obligations of societies.
Here are Franks Ogilvie’s top eight tips for starting a new society:
1. Decide what the society’s purposes are - This should be a bullet point summary of the reasons why your society exists and might include things like promoting sport, hosting tournaments, representing a particular group or raising awareness of a particular cause.
2. Make sure your constitution works for you - The Incorporated Society’s website contains a list of the minimum requirements for a constitution but it should also be drafted in a way that’s easy to give effect to in real life. For example it should provide for the easy appointment of an inaugural committee to get things up and running before the first annual general meeting.
3. Understand your obligations as an officer of your society- Under the new Incorporated Societies Act 2022, societies and their officers have increased responsibilities and duties. To help you understand these new obligations, check out our guide here.
4. Choose your inaugural officers - These will often be the people who form the society. Your society is required to have at least three officers to form your society’s committee. We suggest keeping the number of your founding officers to three, otherwise it’s more difficult to set up things like bank accounts.
5. Design your member register - This can be a simple Excel spreadsheet that lists the name, contact details, and joining date of each member, alongside other information prescribed by the regulations (if any). The law requires all societies to maintain a register of members and this is much easier to do if you start before incorporation.
6. Make sure you have at least 10 members - This seems like an obvious one, but you must have and maintain at least 10 members to be registered as an incorporated society. They must give their written consent to be a member of your society. Remember, a company or other incorporated society can be a member in their own right, and they count for three of the 10. Make sure a duly authorised representative signs.
7. Get a RealMe account - Anyone can incorporate a society online using their RealMe account. Hopefully, at least one of your officers will already have one. Applying online is much quicker than doing it via post and it means that you can respond to any issues much sooner.
8. Prepare for your first AGM- once registered, your incorporated society must hold an annual general meeting of members. This must be within six month of your ‘balance date’, but need not be in your society’s first calendar year. In effect, this gives you 18 months to hold your first AGM from the date of your incorporation.
For further assistance on incorporation, please contact Director Brigitte Morten
