Aotearoa Water Action Inc v Canterbury Regional Council
[2020] NZHC 1625
•8 July 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2018-409-000121
[2020] NZHC 1625
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER OF
an application for review
BETWEEN
AOTEAROA WATER ACTION INCORPORATED
Applicant
AND
CANTERBURY REGIONAL COUNCIL
First Respondent
AND
CLOUD OCEAN WATER LIMITED
Second Respondent
AND
RAPAKI NATURAL RESOURCES LIMITED
Third Respondent
AND
NGĀI TŪĀHURIRI RŪNANGA
Non-Party
Hearing: 9 December 2019 Appearances:
P Steven QC and R E Robilliard for the Applicant P Maw and L F de Latour for the First Respondent
W McCartney and N Eilenberg for the Second Respondent E J Chapman and E Taffs for the Third Respondent
J M Appleyard for the Ngāi Tūāhuriri Rūnanga
Judgment:
8 July 2020
JUDGMENT OF NATION J
AOTEAROA WATER ACTION INC v CANTERBURY REGIONAL COUNCIL [2020] NZHC 1625 [8 July 2020]
Contents
The role of the High Court in judicial review proceedings 11
Rapaki consent process 19
Cloud Ocean consent process 40
Cloud Ocean deep bore application 55
Subsequent changes to a Rapaki consent 66
The judicial review application 68
A preliminary issue – the form of the documents 69
A preliminary issue – a claimed concession by the Council on the hearing
of the preliminary question 81
The Council’s treatment of the applications as for a change of use and not
for a combined take and use consent 87
The challenge to the amalgamation process 134
The Council’s processing of the applications as applications for consent to a discretionary activity 155
Claimed failure by Council to appropriately consider effects on environment
and adverse effects of Cloud Ocean’s proposed water bottling activity 167
Claimed Council error in the way the Council considered existing take
consents in deciding not to notify the applications 188
Other grounds for challenging the notification decisions on the applications 229
The Ngāi Tūāhuriri Rūnanga’s interest in the proceeding 260
Summary of all conclusions in judgment 293
Result 304
Costs 306
[1] The Primary Producers Cooperative Society Ltd and later Silver Fern Farms Ltd previously operated a freezing works at Belfast. In doing so, they held a resource consent to take groundwater from five bores for industrial use (the five bore consent). They held a further resource consent “to take and use groundwater” from three different bores (the three bore consent).
[2] Rapaki Natural Resources Ltd (Rapaki) was intending to engage in commercial water bottling and acquired the resource consents from Silver Fern Farms in 2016.
[3] Kaputone Wool Scour (1994) Ltd held a resource consent to take and use water from a bore at Belfast for industrial use (the wool scour consent). In April and May 2017, that resource consent was transferred first to Canterbury Land Resources Ltd and then to Cloud Ocean Water Ltd (Cloud Ocean). Cloud Ocean also wanted to use water taken under the consent for commercial bottling.
[4] Under s 136(2)(a) Resource Management Act 1991 (RMA), the resource consents were transferred from the original consent holders to Rapaki and Cloud Ocean through Rapaki and Cloud Ocean acquiring the sites to which the consents related.
[5] In 2017, Rapaki made application to the Canterbury Regional Council (the Council) to allow water taken under the five bore and three bore consents to be used for commercial bottling.
[6] On 8 August 2017, the Council, under the RMA, allowed the Rapaki applications to be made without notification and permitted water taken under the original consents to be used for bottling.
[7] In November 2017, Cloud Ocean made an application to the Council to allow the water taken under that consent to be used for water bottling purposes. On 21 December 2017, the Council decided that neither public nor limited notification of the application was required and granted the application.
[8] The effect of these decisions is that water, which could originally be taken for a meat processing facility and a wool scour, can now be used for commercial bottling.
[9] Aotearoa Water Action Incorporated (the Group) was incorporated to challenge the granting of consents to Rapaki and Cloud Ocean. A witness for the Group says it also has the purpose of acting “to protect New Zealand’s fresh water resource” and the Group’s focus has been on “water sovereignty” and the growth of the water bottling interest in New Zealand.
[10] In these judicial review proceedings, the Group challenges the process by which Rapaki and Cloud Ocean acquired the resource consents, giving them the right to take and use water for commercial bottling purposes.
The role of the High Court in judicial review proceedings
[11] The function of the High Court, in the context of notification decisions under the RMA, has been stated in similar terms in a number of cases, succinctly by the High Court in 2013:1
It is not the function of the Court on an application for review to substitute its own decision for that of the consent authority. Nor, will the court assess the merits of the resource consent application or the decision on notification. The inquiry the Court undertakes on an application for review is confined to whether or not the consent authority exceeded its limited jurisdiction conferred by the Act. In practice the Court generally restricts its review to whether the Council as decision maker followed proper procedures, whether all relevant and no irrelevant considerations were taken into account, and whether the decision was manifestly reasonable. The Court has a discretion whether or not to grant relief even if it is persuaded that there is a reviewable error.
(citations omitted)
[12] The Court notes the particular focus of the Group’s concerns and the interest of Ngāi Tūāhuriri Rūnanga in the proceedings which the Court recognised in granting them leave to appear as an intervener.
1 Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZHC 1163, [2013] NZRMA 442 at [40]; Upheld on appeal in Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZCA 665, [2013] NZRMA 73.
[13] In these judicial review proceedings, the Court is not being asked to determine, and cannot determine, whether it is right for New Zealand water to be bottled and sold overseas. In determining a preliminary question, Churchman J pointed out the original consents were granted under the Water and Soil Conservation Act 1967. Section 21(3) of that schedule prevented the taking of natural water for export from New Zealand without the prior written consent of the relevant Minister. That Act has been repealed. The RMA contains no such statutory restraint. These proceedings concern consents granted under the RMA.2
[14] In appearing as intervener, Ngāi Tūāhuriri Rūnanga was permitted to put before the Court an affidavit of Associate Professor Rawiri Te Maire Tau. Dr Tau is the upoko (head) of the Ngāi Tūāhuriri Hapū and a highly qualified academic who has published extensively on environmental matters and tribal traditions. In his affidavit, Dr Tau commented that the Crown secured sovereignty in the South Island in 1848 with the Canterbury Deed of Purchase but said the Crown did not purchase water. However, he acknowledged “the degree to which Crown sovereignty extends to water may be a matter for discussion elsewhere”.
[15] In these proceedings, the Court is not determining whether Ngāi Tūāhuriri Rūnanga has rights to the water which is the subject of the relevant consents.
[16] In the Canterbury Land and Water Regional Plan (Regional Plan), the Council stated the available water, in the zone from which water is taken under the relevant consents, is fully allocated. That allocation includes the water which is now available to Rapaki and Cloud Ocean through existing water take consents transferred to them administratively through a process which is not challenged in these proceedings.
2 In Te Runanga o Ngati Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, 21 ELRNZ 539, the Environment Court was considering appeals against the grant of a variation of consents to take water to enable the expansion of an existing water extraction and bottling operation in the Bay of Plenty. The Court referred to growing public concern and increasing political debate about the issues relating to commercial interests, particularly foreign-owned companies exporting high- quality fresh water from New Zealand without having to pay royalties or other charges to do so. There was also increasing concern about the use of plastics and packaging and containers, and ongoing public discussion about the rights and interests of Māori separate from or beyond the issues that arise from consideration of Part 2 of the RMA. The Environment Court held they were not matters which could be considered in dealing with the resource consent applications with which they were concerned in that case.
[17] This Court is not concerned with the merits of the Council’s decisions. There was however no dispute as to one aspect of the environmental context for the Council’s decisions. I set that out by way of information.
[18] Dr Davie, Chief Scientist at the Council, gave uncontested evidence as to the water assessed to be flowing through the Christchurch aquifers, 369 million cubic metres per year. Of that, 152 million cubic metres per year is allocated for use by people living and industries based in Christchurch. Of that, 82 million cubic metres per year is allocated to the Christchurch City Council for distribution to households and small businesses. Of that allocation, the Christchurch City Council currently uses approximately 70 per cent of its allocated water. It was his evidence that, based on average water usage figures, without allocating any more water, Christchurch could accommodate 17 per cent population rise. If average water use was 300 litres per person per day, little more than the current average use of water by Auckland residents, Christchurch population could rise by 76 per cent without requiring any further allocation. Of the 70 million cubic metres per year available for commercial businesses, not all is used. Per year, 10 million cubic metres is allocated for water bottling. This is 2.7 per cent of the water in the Christchurch aquifers.
Rapaki consent process
[19] The five bore consent acquired by Rapaki, CRC172245, was for “a take of water for industrial use”. The three bore consent, CRC172118, was for “take and use of water”.
[20] On 13 July 2017, Rapaki made an application to the Council to “change conditions of water permits CRC172245 and CRC172118 to allow the use of water for bottling purposes”.
[21] The Council officers considered the change sought was for a use beyond the scope of the uses for which the consents had originally been granted. Council officers decided each of the two existing consents held by Rapaki effectively comprised two authorisations on a single document, that is an authorisation for the take of water and a separate authorisation for the use of water. Officers considered the change sought related to the use of the water and not the take, so the proposed use of water could be
considered independently from a “take” of water. They decided this was an application for a change for use of water for which there was an already consented take consent. A new consent number CRC180728 was allocated for the application for consent to a changed use of water from the five bore take and CRC180729 for the application for a changed use for water taken under the three bore consent
[22] A Council officer, Mr Smith, prepared s 42A reports on the applications dated 31 July 2017. Separate reports were prepared for each consent but, in essence, they were the same. The reports indicated that, in each case, the new use consent would be amalgamated with the existing take and use consent, resulting in one new consent to take and use water. In anticipation of that second step, a number was allocated for the process by which each new use consent would be amalgamated with the existing take consents. The reports included assessments as to relevant matters and concluded with a recommendation for the hearing panel.
[23] The change of use application was assessed in terms of the Regional Plan as a discretionary activity.
[24] Mr Smith agreed with Rapaki that, assessed against relevant purposes of the RMA, the proposed change of conditions would result in “a very high level of water use”, and a reduction in contaminant being discharged into the environment.
[25] On an assessment against the Regional Plan, Mr Smith agreed the plan focuses on the take and efficiency of the take and is not concerned with the type or nature of the final use of water. Mr Smith noted, under the original consents, water had been taken from the Christchurch aquifer system, used in the meat processing works processes and then discharged originally to the Waimakariri River and more recently via the Christchurch City Council wastewater network to Bexley. The previous use had thus been fully consumptive in not returning water to the groundwater system. With the proposed change of use, there would no longer be a discharge of the contaminated water associated with the current consent and the effects on the aquifer would be no greater than those previously allowed by the original five bore consent. Mr Smith agreed that no person would be affected by the change.
[26] Mr Smith assessed the application against RMA sch 4 requirements. Mr Smith advised, based on the present use allowed by existing consents, the change to bottling would not result in further adverse effects.
[27]Mr Smith turned to and considered RMA sch 4 matters:
(a) the effects on the neighbourhood and, where relevant, the wider community, including any social, economic or cultural effects - the change would have a positive effect due to the creation of additional jobs and would allow for infrastructure development;
(b) any effect on the locality, including any landscape and visual effects – none would result;
(c) any effect on ecosystems - overall, the proposal would result in less discharge of river contaminant;
(d) the change in conditions would not result in any effect on natural and physical resources having aesthetic, recreational, scientific, historical, spiritual or cultural value, or other special value for present or future generations;
(e) the change would not result in discharge of contaminants into the environment; and
(f) the change would not result in any risk to the neighbourhood, the wider community or the environment through natural hazards or the use of hazardous substances or hazardous installations.
[28] Mr Smith agreed there were several benefits to the change and, considering the activities permitted under the existing consent, no additional adverse effects were likely to occur.
[29] Mr Smith then made a recommendation as to notification under ss 95A and 95B RMA. He referred to “the assessment of adverse effects undertaken above” and said that indicated adverse effects on the environment would be no more than minor.
He stated public notification was not required by a national environment standard or rule in the plan. He noted there were unlikely to be any adverse effects on any person and there was no affected protected customary rights group or affected customary marine title group. Limited notification of the application was therefore not required.
[30] Mr Smith then considered the substantive application under s 104(1)(a)-(c) RMA. In summary, in accordance with s 5 RMA, he considered that any adverse effects resulting from the change would be no more than minor.
[31] The report recommended granting the applications but with the addition of an annual volume condition based on the original consented takes, the imposition of water metering conditions, and for the consent to be issued for the same duration as the original consent (until 1 July 2032).
[32] The report also recommended the amalgamation of the new consent with the existing take consent.
[33] The Council’s delegated decision-making panel comprised Paul Hopwood, Principal Consent Advisor and Phillip Burge, Planning Manager. The panel’s decision was dated 8 August 2017.
[34] In its decision as to notification, the panel addressed matters required of it under s 95A RMA. They concluded the two applications for the water bottling use and two applications to amalgamate the new consent with the existing consents could be decided without notification.
[35] In the introduction to its decision, the panel noted the new use permits would be combined with the existing take and use consents resulting in new consents to be issued for the take and use of water for bottling.
[36] The panel briefly summarised the assessment and recommendation in the s 42 reports and noted the report writer had concluded the effects of the change of use would be less than minor.
[37] The panel then separately considered the substantive application with reference to s 104. There, they noted that, as discussed above, “we consider the effects of the proposal are less than minor”, the activity was consistent with the policies of the relevant Regional Plan and they considered it would achieve the purpose of the RMA. Their decision was to grant the resource applications with the conditions recommended in the s 42 report and for a duration consistent with the original take and use consents.
[38] Through the delegated decision-making panel, the Council decided to grant the two applications, CRC180728 and CRC180729, for the use of water for commercial bottling. The Council allocated CRC180311 for the amalgamation of the original five bore take and use consent CRC172245 and the changed use consent CRC180728. On the same date, through CRC180312, it decided to amalgamate the original three bore take and use consent CRC172118 with the changed use consent in CRC180729.
[39] As a result, Rapaki had resource consents CRC180311 and CRC 180312 permitting it to take water from the five bore and three bore sites for commercial bottling operations.
Cloud Ocean consent process
[40] The consent Cloud Ocean acquired by transfer, CRC175895 (the wool scour consent), authorised the taking of groundwater for industrial use at Station Road, Belfast. On 30 November 2017, Cloud Ocean filed an application for a water permit allowing the water taken under CRC175895 to be used for commercial bottling purposes. The standard form used was headed “to take and use groundwater” and specified the use of the water taken with the consent was for “bottling”. The rest of the form was completed with little information about the nature and effects of the take other than by reference to what was permitted with the existing consent. With the application was detailed information, expressly stating the application was for “a water permit to allow the water taken under CRC175895 to be used for bottling purposes”. In a section headed “Background” it was stated “[t]his application is for a permit to allow water taken under CRC175895 to be used for commercial water bottling”.
[41] The original water permit and subsequent renewal allowed water to be taken and used for industrial purposes. The Council processed the application on the basis an application for resource consent is considered part of a resulting authorisation. So, the original application had set the scope of the wool scour consent.
[42]On its application form, Cloud Ocean said:
The proposed use for bottling is considered to be outside the scope of the original application therefore this application of [sic] a new water permit has been lodged. For the ease of administration, we request that this permit be amalgamated with CRC 175895.
[43] The application was dealt with in the same way as the Rapaki application. It was treated as an application to use water distinct from an application for consent to take water. The number CRC182812 was allocated for the change of use application. The number CRC182813 was allocated for the amalgamation process by which the terms of a new change of use consent could be attached to the original wool scour consent.
[44] A Council officer (Mr Botha) completed a detailed s 42A report dated 21 December 2017 on the application. The assessments made in that report were particular to the application and the site to which it related. The report recorded the Council had contacted four different parties about the proposal on 4 December 2017, including the Ngāi Tūāhuriri Rūnanga. The parties were requested to respond by 11 December 2017. The only party to respond was the Christchurch City Council.
[45] The actual and potential effects from the change of use were assessed similarly to the way they were with the Rapaki application. In this report, there was a section under the heading “potential adverse effects of the take on Tangata Whenua values”. Mr Botha noted that Ngāi Tūāhuriri Rūnanga had not responded to the contact the Council had made with them on 4 December 2017. Mr Botha however identified the Mahaanui Iwi Management Plan 2013 (Iwi Management Plan) was the Iwi management plan for the Ngāi Tūāhuriri Rūnanga and said he had assessed the proposal against the relevant policies. He advised:
As there will be no additional effects on the aquifer, other groundwater users and the wider environment beyond what was previously authorised through the existing take consent CRC175895 due to the extraction rate and return period volume remaining the same … I consider the proposal to be consistent with the relevant policies of the plan.
As such, I consider that the proposal will have no additional adverse effects on Tangata Whenua values beyond what was previously authorised through the existing take consent CRC175895.
[46] As with the Rapaki application, Mr Botha advised that neither public nor limited notification of the application was required and the application should be granted with certain conditions including conditions as to the rate and volume of the take, monitoring and potential for review.
[47] The application was assessed against RMA sch 4 requirements, the compliance history, national policy statement, national environmental standards and Regional Plan.
[48] On 15 December 2017, a solicitor, Mr Richardson of Linwood Law, emailed the Council advising that the firm acted for “certain parties” who had instructed the firm to raise concerns about Cloud Ocean’s application. It is apparent from Ms Gladding’s affidavit that Linwood Law had received instructions from what is now the applicant in these proceedings. The letter detailed various concerns. A number of these are reflected in these proceedings in the way the Group challenges the Council’s decision-making process. Mr Richardson concluded by stating that failure to properly address the adequacy of the application or the issue of notification would be likely to result in judicial review.
[49] Dr Burge was the delegated decision-maker for the Cloud Ocean application. His decision granting the application on a non-notified basis was made on 21 December 2017.
[50] Dr Burge referenced the report of Mr Botha. He also expressly responded to the issues raised by Mr Richardson. He explained why, in his view, it was appropriate to deal with the application as only a use application, separate from the original and continuing take, regardless of the fact the original take and use consent had not been utilised for a number of years. He referenced concerns raised by Mr Richardson and
other members of the public via customer queries and comments in the media as to concerns about the cumulative effects of the take on the aquifer in the context of climate change.
[51] Dr Burge concluded the effects of the consented take form part of the existing (consented) environment and were outside what should be examined in regard to the proposed change in the use of water. He thus confirmed the application was to be processed and considered as a new water permit to use water. He also recorded, for ease of administration, if the new use permit was granted, it would be immediately amalgamated and issued as a combined take and use consent, resulting in a single consent document. He adopted the conclusions reached by Mr Botha in his report.
[52]Dr Burge concluded that neither public nor limited notification was required.
[53] Dr Burge then proceeded to the substantive decision under s 104 RMA. He agreed with the assessments made by Mr Botha. Overall, he considered the effects of the proposed activity were no more than minor. The proposal was consistent with the relevant provisions of the planning documents and would, subject to conditions, achieve the purpose of the RMA.
[54] Resource consent CRC 182812 was then issued for the consented change of use. CRC182813 was the number adopted for the potential amalgamation process. On 21 December 2017, under that number, the Council recorded that water taken under the original wool scour consent and under CRC182812 could now be used for commercial bottling operations.
Cloud Ocean deep bore application
[55] Cloud Ocean had previously obtained a land use consent to drill a new bore at 20 Station Road, Belfast, the same 2.3 hectare site to which applications CRC182812 and CRC182813 related. The application, granted on 1 August 2017, permitted a bore to be drilled to 186 metres deep. The consent did not authorise the taking of water from this bore. Cloud Ocean sought to vary CRC182813 (the new amalgamated consent) to allow the consented volume of water to be taken from the 33.1 metre deep bore which was the subject of CRC182813, or the newer 186 metre deep bore.
[56] On 8 October 2018, Cloud Ocean lodged an application to achieve this. The Council did not consider the application included the information required under sch 4 RMA. The application was returned to Cloud Ocean. A new application was lodged on 23 October 2018 accompanied by a more detailed application document and associated assessment of environmental effects. It was accepted as a proposed variation to CRC182813.
[57] The Council concluded that, because water moves between layers, there would be no change in the overall rates or volumes to be extracted from the relevant Christchurch West Melton groundwater allocation zone under the proposed change. Accordingly, the Council considered the proposed activity was within the scope of the existing “take consent”. The effects of taking water from a greater depth could be appropriately assessed and considered within the discretion available through s 127 RMA on the basis the application was, in effect, for a change in conditions.
[58] The Council’s process and consideration of the application were detailed first in a s 42A report of a planner, Mr Eden, and then the subsequent decision of an independent hearings Commissioner, Mr Richard Fowler QC.
[59]Mr Eden concluded:
There will be no change cumulative effects, stream depletion and the wider environment outside that currently authorised by CRC182813 due to the abstraction rate and volumes remaining the same. Effects on surrounding groundwater users have furthermore been considered as less than minor.
I consider that the effect of the change of conditions proposed will be less than minor on Nga Rūnanga and Tangata Whenua values.
[60] Mr Eden expressly commented on the matters the Council had to consider in deciding whether there should be public notification or limited notification. He recommended that neither public nor limited notification was required.
[61] Mr Eden then considered the substantive application in terms of s 104 RMA. He recommended the granting of the application with certain conditions.
[62] The decision as to notification and the substantive application itself was ultimately made by the Commissioner. In a detailed decision of 12 December 2018, Mr Fowler concluded neither public nor limited notification was required. He particularly considered whether, by reason of the public interest in the application, there were special circumstances that necessitated public notification. He referred to relevant case law and concluded special circumstances did not exist to warrant public notification under step 4 of s 95A.3
[63] In considering the actual and potential effects of the change, the Commissioner emphasised that the application did not seek to change the extraction rates and volumes or the use for which the water was to be extracted. The change was the addition of a second bore to a much greater depth. It was the actual and potential effects of this change he addressed. He addressed matters in much the same way as Mr Eden and concluded:
I found that for the purposes of the notification decision the actual and potential adverse effects of the application to change the conditions will be less than minor. I have also found that there are no special circumstances within the meaning of ss. 95A or 95B that should trigger either public or limited notification.
[64] He said his conclusions in this regard were directly applicable to the substantive decision and said:
As I already discussed, in my view the only issues of any real controversy are those associated with the fact of the addition of a second and deeper bore and any question of cross connection/contamination or different drawn down effects from reaching into a deeper aquifer depth. However the evidence is that if there are any such adverse effects, they are less than minor. Although the risk of incurring them is nil or minimal on a precautionary approach, their unlikelihood can be further buttressed with conditions as to [certain matters].
[65] He concluded, the application of the statutory criteria directed that the application for a change of resource consent condition should be granted with conditions as to the matters he had referred to in his decision.
3 Peninsula Watchdog Group (Inc) v Minister of Energy [1996] 2 NZLR 529 (CA) at 536; Bayley v Manukau City Council [1999] 1 NZLR 568 (CA); Fullers Group Ltd v Auckland Regional Council [1999] NZRMA 439 (CA) at [33]; Murray v Whakatane District Council [1999] 3 NZLR 276, [1997] NZRMA 433 (HC); Urban Auckland v Auckland Council [2015] NZHC 1382, [2015] NZRMA 235 at [137]; Associated Churches of Christ Church Extension and Property Trust Board v Auckland Council [2014] NZHC 3405, [2015] NZRMA 113 at [70]; McGuire v Hastings District Council [2000] 1 NZLR 679 (CA).
Subsequent changes to a Rapaki consent
[66] On 14 February 2018, the amalgamated consent granted to Rapaki to take and use water from the five bore consent was terminated following a partial transfer of the water permit to Cloud Ocean. Two new consents were created to allocate the same volume of water: CRC183763 to Cloud Ocean to take 200,000 cubic metres water/year from a bore for commercial bottling and CRC183761 to Rapaki to take 5,117,780 cubic meters water/year for commercial bottling.
[67] There is no challenge to the process by which these new consents were created. If the Group are successful in their challenges to the grant of consent CRC180311 for the five bore consents, these subsequent consents will also fall over.
The judicial review application
[68] Through counsel’s submissions and its pleadings, the Group challenged the validity of the Council’s decisions both as to notification and substantively as to the grant of consents on four main bases:
1. The failure of the Council to treat the applications as being for new take and use consents for water bottling and thus for a prohibited activity in terms of the Regional Plan.
2. The adoption of an unlawful process through the way the Council amalgamated the consents for the new use with the previously granted take consents.
3. A failure to make the required effects assessment undertaken at each stage of the decision-making process through only assessing the effects of the takes for the new purpose of water bottling against the effects of the previously granted takes.
4. In assessing effects on the environment for the purposes of s 95A(8) or s 95A(2)(a) on the basis the previously consented activities and the effects
of those activities were to be considered as part of the environment against which the effects of the relevant new activity were to be assessed.4
A preliminary issue – the form of the documents
[69] For the Group, Ms Steven QC pointed out there was inconsistency in the way documents connected with the Council’s processes were worded.
[70] Ms Steven submitted the form of these documents showed the Council had always intended to deal with the various applications on the basis they would be for a new take and use consent. The Group’s position was, because they should have been treated as applications for a new take, pursuant to the Regional Plan the applications would have been for a prohibited activity.
[71]Rapaki’s application dated 13 July 2017 was made on a Council form headed:
CON570: CHANGE OR CANCEL A CONDITION OF A
RESOURCE CONSENT
[72] The resource consents issued to Rapaki approving the change of use for water taken under the five bore and three bore consents referred to grants of “[a] water permit (s 14) to use water”.
[73] Following amalgamation, the resource consents referred to grants of “[a] water permit (s 14) … to take and use water”.
[74] Cloud Ocean’s application for consent to a change of use of the wool scour consent was on a Council form headed:
CON200: APPLICATION FOR RESOURCE CONSENT
TO TAKE AND USE GROUNDWATER
4 Section 95A(8) is the current notification provision section. The previous notification provision section was s 95A(2)(a) which was amended in 2017 by s 137 Resource Legislation Amendment Act 2017. Section 95A(2)(a) was operative at the time Rapaki made its applications. In substance, the two sections are the same.
[75]The notification and substantive decisions on that application were headed:
CRC182812
Application for Change in Conditions
by Cloud Ocean Water Limited
for a Water Permit (s14) to to [sic] change condition in CRC175895 – to take groundwater at or about map reference M35:808-510 for industrial use
[76]The amalgamation decision was recorded in a notification decision headed:
CRC182813
Application for New Consent
by Cloud Ocean Water Limited
for a Water Permit (s14) to to [sic] take & use groundwater
[77] The amalgamated consents were then recorded in a document headed “Resource consent CRC182813”. This recorded a grant to Cloud Ocean Water Ltd of “a water permit (s 14) to take and use groundwater”.
[78] As submitted for the defendants, in the RMA context, substance prevails over form. In Sutton v Moule, the Court of Appeal was concerned with whether a consent granted by the Auckland City Council to use Mr Moule’s property as real estate offices was beyond the scope of Mr Moule’s application and therefore ultra vires.5 Thomas J, for the Court of Appeal, stated “the application was prepared by Mr Moule himself, no doubt without regard to legal niceties, and the substance or gist of his application is what must count”. 6
[79] It is clear from the record of the Council’s processes, the particular s 42A reports and the non-notification and substantive decisions that Council officers and decision-makers characterised the applications not on the basis of any particular heading that was used but on all the information included with the various applications. It is also apparent, from the detail in the documents recording their decisions, they were granting consent for a change of use of water taken under existing
5 Sutton v Moule (1992) 2 NZRMA 41 (CA).
6 At 47. That same approach was adopted by the Court of Appeal in Central Plains Water Trust v Ngai Tahu Properties Ltd [2008] NZCA 71, [2008] NZRMA 200, in considering whether Central Plains’ application for a water take consent was ready for notification under the RMA when no application for a use consent had been filed. Also by Randerson J in the High Court in Body Corporate 970101 v Auckland City Council (2000) 6 ELRNZ 183 (HC) at [73], when discussing whether a Council should consider an application as one for a change in conditions to an existing consent or as an application for a whole new consent.
water permits. The amalgamated taking and change of use consents were recorded only after the Council had approved the change of use which they decided was what Rapaki and Cloud Ocean had sought with the relevant applications.
[80] I must decide whether the way the Council processed the various applications was lawful in terms of the RMA. That is however to be determined by looking at the substance of all that happened rather than the wording on particular documents.
A preliminary issue – a claimed concession by the Council on the hearing of the preliminary question
[81] Cloud Ocean pleaded that the prior consents to Kaputone and Silver Fern Farms, with their reference to industrial use and take and use (without further qualification), enabled the take of water for commercial bottling so, even if the current consents being challenged are invalid, the prior consents authorised the taking of that water for commercial bottling. The Court was asked to determine, as a preliminary question, if that contention was correct.
[82] The High Court disagreed.7 Churchman J held, when considering the scope of a consent, the Court was entitled to consider the purpose for which the water was to be used with the original consent. The scope of the consent was to be ascertained by looking at the application and supporting documents. On that basis, the Court held commercial water bottling was not within the scope of the original consents transferred to Rapaki and Cloud Ocean.
[83] Ms Steven submitted the Council had appeared to acknowledge at the hearing of the preliminary issue that, on an application as to the take or use of water, both the take and the use would be inextricably linked.
7 Aotearoa Water Action Inc v Canterbury Regional Council [2018] NZHC 3240, [2019] NZRMA 316 at [129].
[84] Mr Maw, for the Council, said Churchman J had correctly noted the Council’s position when he said:8
The CRC conceded that it would not usually be open to an applicant for a resource consent to apply for a water permit to take water with no proposed purpose or use and acknowledged that the need for both the “take” and “use” of water to be authorised in terms of s 14.
The submissions acknowledged that the Court, in this case, did not need to consider the necessity for a separate take and use permits [sic] as the answer to this question did not go to the declaration sought by the applicant, but acknowledged its significance to the substantive proceedings.
(citation omitted)
[85] I accept the submission that there is nothing in the preliminary decision to suggest the Council conceded that a separate use permit could not be granted or that the Court was then deciding that question. In its preliminary determination, the Court did not rule the intended use of the water limited the Council’s ability to grant consent for it to be taken for any other purpose. In a general sense, with its declarations, the Court decided only that the scope of the particular consents was limited by the documents accompanying the applications specifying the use for which the take had been sought.
[86] On that basis, the High Court decided water bottling was not within the scope of the original consents. The Court did not need to decide and did not decide whether a separate use permit could be granted in connection with an already granted take.9 That issue is for determination in this judgment.
The Council’s treatment of the applications as for a change of use and not for a combined take and use consent
[87]The Group sought declarations that:
(a) a use of water for commercial bottling is not a “use” in a s 14 sense but is the purpose for which water is “taken” (under a s 14 permit); and
8 At [68]-[69].
9 At [69].
(b) it was beyond the powers of the Council to issue a separate s 14 water permit for a “use” of water without a “take” of the water intended to be used for the stated use (or purpose).
[88] The Council sought a declaration that “a standalone ‘use’ consent for water bottling can be relied upon to authorise the use of water taken under another water permit for the purpose of s 14 of the RMA”.
[89] The Council had processed the relevant resource consent applications as applications for a change of use attached to existing consents. The Council therefore made both the notification and substantive decisions on the basis they related to a discretionary activity. The Group submitted, because the original use was integral to the existing takes, there had to be a fresh application for a take of water. Fresh applications were prohibited by the Regional Plan. Section 87A(6) did not allow an applicant to seek, or the Council to grant, a consent for an activity described in a regional plan as a prohibited activity.
[90] As referred to earlier, Cloud Ocean’s application was initially expressed as an application for take and use. However, it was clear from the accompanying documents that it was an application for only a change of use. As it did when an application was headed as if it was an application for a change in conditions, the Council was required to take a substance over form approach.10
[91] In each instance, Council officers and ultimately the decision-makers concluded these were not applications for the underlying base activity because no change was sought as to the original take. The Council however decided the applications did seek a change to the base activity insofar as the use of the water for which consents had originally been granted was to be changed in a substantial way. They accordingly decided the applications should be processed under s 88 RMA but as applications for a change of use consent, not a take consent. Whether it was lawful for them to do so depends on whether an application could be made for a change of use separate from the original take.
10 Sutton v Moule, above n 5.
[92]For the Group, Ms Steven submitted:
(a) The gravamen of the Group’s (remaining) concern is that ECan has enabled Cloud Ocean and Rapaki to use water allocated under the Existing Take Consents for commercial water bottling following a convoluted and unlawful process. In terms of the available procedures in Part 6 of the Resource Management Act 1991 (RMA), the Existing Take Consents could not be changed to allow the water to be used for the different purpose of water bottling; only a new application for a take consent could (in theory) achieve that outcome.
(b) A change in the use of water authorised by the Existing Take Consents could not be sought because the ‘use’ component of the Existing Take Consents was the purpose for which the water was allowed to be taken; this purpose (or use) was integrally linked with and related to the authorised taking.
(c) Standalone ‘use’ consents could not be granted where they were proposed to be exercised in conjunction with the Existing Take Consents, as the authorised use of the water under those consents could not be severed from the terms of the ‘take’ permits, and replaced with a new use of that water.
(d) ECan had no jurisdiction to assess a ‘take’ of the new use of the water as it was functus in relation to the Existing Take Consents; and there were no new take applications before it. Nor could an application for a new take be sought as under the relevant regional plan, it is a prohibited activity.
(e) Although Cloud Ocean did lodge an application for a new ‘take and use’ consent, it was not treated as such by ECan. ECan granted the companies new standalone use consents for water bottling. These were ‘amalgamated’ (a ‘copy and paste’ exercise) with the Existing Take Consents, and new ‘take and use’ consents for water bottling were then issued (ECan processing officers refer to them as ‘amalgamating applications/consents’).
(f) A standalone ‘use’ consent could not be sought and ‘attached’ to the Existing Take Consents as the use is the purpose for which water is to be taken and cannot be severed from the allocation that was granted. A proposed use of water is inextricably linked to the take of water, and vice- versa; a use of water cannot be approved on its own absent a permission to take it.
[93] Ms Steven submitted the issue before the Court has never been of much relevance because an applicant for a water permit has always had to provide information as to the end use of a water resource so the full range of foreseeable effects from the take can be assessed in the consenting process.
[94] The Council relies on what it says is the plain meaning of s 14 RMA. It provides:
14 Restrictions relating to water
(1)No person may take, use, dam, or divert any open coastal water, or take or use any heat or energy from any open coastal water, in a manner that contravenes a national environmental standard or a regional rule unless the activity—
(a) is expressly allowed by a resource consent; or
(b) is an activity allowed by section 20A.
(2)No person may take, use, dam, or divert any of the following, unless the taking, using, damming, or diverting is allowed by subsection (3):
(a) water other than open coastal water; or
(b) heat or energy from water other than open coastal water; or
(c) heat or energy from the material surrounding geothermal water.
(3)A person is not prohibited by subsection (2) from taking, using, damming, or diverting any water, heat, or energy if—
(a) the taking, using, damming, or diverting is expressly allowed by a national environmental standard, a rule in a regional plan as well as a rule in a proposed regional plan for the same region (if there is one), or a resource consent; …
(b) in the case of fresh water, the water, heat, or energy is required to be taken or used for—
(i)an individual’s reasonable domestic needs; or
(ii)the reasonable needs of a person’s animals for drinking water,—
and the taking or use does not, or is not likely to, have an adverse effect on the environment; or
(c) in the case of geothermal water, the water, heat, or energy is taken or used in accordance with tikanga Maori for the communal benefit of the tangata whenua of the area and does not have an adverse effect on the environment; or
(d) in the case of coastal water (other than open coastal water), the water, heat, or energy is required for an individual’s reasonable domestic or recreational needs and the taking, use, or diversion does not, or is not likely to, have an adverse effect on the environment; or
(e) the water is required to be taken or used for emergency or training purposes in accordance with section 48 of the Fire and Emergency New Zealand Act 2017.
[95] Mr Chapman for Rapaki submitted, the words “take” and “use” are not used conjunctively in s 14(2). They are separated by a comma but the word “or” is used before diverting in a way that indicates the words “using” and “damming” could also have been introduced by the word “or”.
[96] As submitted by Mr Maw for the Council, the key issue can be expressed as whether the interpretation of s 14(2)(a) should be read as “take or use or dam or divert” or “take and use or dam or divert”. In other words, does s 14 separately regulate the “take” of water from the “use” of water, or must the take and use always be regulated together.
[97] In Northland Milk Vendors Association v Northern Milk Ltd, Cooke P said “the Courts can in a sense fill gaps in an Act but only in order to make the Act work as Parliament must have intended”.11
[98] Referring to this, in Central Plains Water Trust v Ngai Tahu Properties Ltd, the Court of Appeal noted “Judicial legislation in terms of Northern Milk should be kept to the minimum reasonably necessary to decide the case”.12
[99] It was submitted for the Council, and I accept, the interpretation should be approached as for any other statutory provision, ascertaining the meaning from its text and in the light of its purpose, with regard to the context in which the words are used.
[100] In s 14(3)(b), in the context of the prohibition against taking, using, damming, or diverting of water, the legislation refers to taking or using in a disjunctive sense. In s 14(3), geothermal water refers to water being “taken or used” disjunctively. Section 14(3)(e) refers to a particular situation where water has “to be taken or used for fire and emergency purposes.13
11 Northland Milk Vendors Association v Northern Milk Ltd [1988] 1 NZLR 530 (CA) at 538.
12 Northland Milk Vendors Association v Northern Milk Ltd, referred to by the Court of Appeal in
Central Plains Water Trust v Ngai Tahu Properties Ltd, above n 6, at [79].
13 Emphasis added.
[101] Section 30 sets out the functions regional councils have under the RMA. Relevantly, s 30 includes
30 Functions of regional councils under this Act
(1)Every regional council shall have the following functions for the purpose of giving effect to this Act in its region:
(a)the establishment, implementation, and review of objectives, policies, and methods to achieve integrated management of the natural and physical resources of the region:
(b)the preparation of objectives and policies in relation to any actual or potential effects of the use, development, or protection of land which are of regional significance:
(ba) the establishment, implementation, and review of objectives, policies, and methods to ensure that there is sufficient development capacity in relation to housing and business land to meet the expected demands of the region:
(c)the control of the use of land for the purpose of—
(i)soil conservation:
(ii)the maintenance and enhancement of the quality of water in water bodies and coastal water:
(iii)the maintenance of the quantity of water in water bodies and coastal water:
(iiia) the maintenance and enhancement of ecosystems in water bodies and coastal water:
(iv)the avoidance or mitigation of natural hazards:
(v)[Repealed]
(ca) the investigation of land for the purposes of identifying and monitoring contaminated land:
(d)in respect of any coastal marine area in the region, the control (in conjunction with the Minister of Conservation) of—
(i)land and associated natural and physical resources:
(ii)the occupation of space in, and the extraction of sand, shingle, shell, or other natural material from, the coastal marine area, to the extent that it is within the common marine and coastal area:
(iii)the taking, use, damming, and diversion of water:
(iv)discharges of contaminants into or onto land, air, or water and discharges of water into water:
(iva) the dumping and incineration of waste or other matter and the dumping of ships, aircraft, and offshore installations:
(v)any actual or potential effects of the use, development, or protection of land, including the avoidance or mitigation of natural hazards:
(vi)the emission of noise and the mitigation of the effects of noise:
(vii)activities in relation to the surface of water:
(e)the control of the taking, use, damming, and diversion of water, and the control of the quantity, level, and flow of water in any water body, including—
(i)the setting of any maximum or minimum levels or flows of water:
(ii)the control of the range, or rate of change, of levels or flows of water:
(iii)the control of the taking or use of geothermal energy:
(f)the control of discharges of contaminants into or onto land, air, or water and discharges of water into water:
(fa) if appropriate, the establishment of rules in a regional plan to allocate any of the following:
(i)the taking or use of water (other than open coastal water):
(ii)the taking or use of heat or energy from water (other than open coastal water):
(iii)the taking or use of heat or energy from the material surrounding geothermal water:
(iv)the capacity of air or water to assimilate a discharge of a contaminant:
(fb) if appropriate, and in conjunction with the Minister of Conservation,—
(i)the establishment of rules in a regional coastal plan to allocate the taking or use of heat or energy from open coastal water:
(ii)the establishment of a rule in a regional coastal plan to allocate space in a coastal marine area under Part 7A:
…
(4)A rule to allocate a natural resource established by a regional council in a plan under subsection (1)(fa) or (fb) may allocate the resource in any way, subject to the following:
(a)the rule may not, during the term of an existing resource consent, allocate the amount of a resource that has already been allocated to the consent; and
(b)nothing in paragraph (a) affects section 68(7); and
(c)the rule may allocate the resource in anticipation of the expiry of existing consents; and
(d)in allocating the resource in anticipation of the expiry of existing consents, the rule may—
(i)allocate all of the resource used for an activity to the same type of activity; or
(ii)allocate some of the resource used for an activity to the same type of activity and the rest of the resource to any other type of activity or no type of activity; and
(e)the rule may allocate the resource among competing types of activities; and
(f)the rule may allocate water, or heat or energy from water, as long as the allocation does not affect the activities authorised by section 14(3)(b) to (e).
[102] Section 30(1)(fa) gives the Council the function, if appropriate, of establishing rules in a regional plan to allocate the taking or use of water, the taking or use of heat or energy from water and the taking or use of heat or energy from the material surrounding geothermal water.14
[103] Section 30(4)(d) allows a council to allocate a natural resource, such as water, used for a particular activity to be used for another activity, to have rules dealing with the use separate from the take of water.
[104] I accept the Council’s submission that there is nothing on the face of ss 14 and 30 which suggests the ability to grant a resource consent to “use water” is in any way limited so that a use permit can only ever be granted as a “take and use”.
14 Emphasis added.
[105] As was submitted for the Council, I accept there is some recognition in case law that the take and use of water are separate activities in respect of which separate issues can arise under the RMA.
[106] In Central Plains, in 2001 predecessors of Central Plains made application to the Council for resource consent to take water from both the Waimakariri River and the Rakaia River. The purpose of the application was to pave the way for further planning and subsequent applications for use of the water to irrigate 60,000 hectares. The Council told the applicant that the take application was notifiable but notification and hearing would not proceed until its contemplated use applications were filed. No use applications were filed until November 2005.
[107] In January and June/July 2005, Ngai Tahu Properties Ltd applied for a resource consent to take and use water from the Waimakariri River to irrigate a 5,659 hectare property.
[108] The 2001, Central Plains application was, in form, confined to taking water and did not purport to give full details of the use applications that were to follow.
[109] On 14 June 2005, Central Plains lodged a further application to take water at the same rate from a new proposed location further up the river. The Council decided to deal with that application as an amendment to the original application rather than a new application. The Council noted additional applications were required and the application would be deferred until they were lodged. Further applications for resource consent were lodged on 24 November 2005.
[110] The Court of Appeal noted the Central Plains application, although formally confined to taking water, and then with effect only from the date of operation of later use applications, set out its purpose substantially and not evasively.15 The Court considered it was an application which, although recognising the need for subsequent use applications, as filed, could not be rejected as a nullity that would, under the later s 88(3), have been rejected as incomplete.16
15 Central Plains Water Trust v Ngai Tahu Properties Ltd, above n 6, at [76].
16 At [80].
[111] I accept the submission of Ms Steven that the judgment of the Court of Appeal in Central Plains is not authority for the proposition that a council can consider an application for a take separate from the intended use of the water which the take relates to. The case is however authority for the proposition that separate applications can be made for a take or use of water.
[112] In the High Court however, Randerson J had upheld the Environment Court’s decision that the issue of priority was to be determined by which application was first ready for public notification and that position had not been reached until both the take and use applications had been submitted to the Council. In agreeing, Randerson J said:17
Of course, as the Environment Court has observed, there will be applications where it is unnecessary or inappropriate to consider all resource consents together but, in the present case I accept the unchallenged view of the Environment Court that it would be artificial to separate the water take application from applications relating to the end use of the water.
[113] I infer from that statement that both the Environment Court and Randerson J had recognised that, in terms of the RMA, it was not mandatory for applications for take and use resource consents to always be considered together.
[114] In P & E Ltd v Canterbury Regional Council, the Environment Court, in a procedural decision, had to determine what resource consents were required under the RMA relating to P & E’s proposal to take water for irrigation of paddocks on an adjoining farm.18 P & E’s original application had included applications to divert, take and use water from the Cass River and to undertake works within the bed of the river to facilitate the diversion of water. The Court noted:19
During the hearing P & E, through counsel, withdrew the application to "use" water under section 14 RMA. It later acknowledged that in its view - shared by the CRC - a use consent under section 14 is still required (although it did not say what for precisely). It appears that the purpose of withdrawing the "use" application was to withdraw from the hearing any issues about the downstream effects of use of the water for irrigation. Counsel for Forest and Bird was rather critical of the withdrawal for that reason. However, developers prefer to obtain consents incrementally if they can, if only to reduce costs, so we accept P & E's action was reasonable.
[290] It cannot be said, based on the information available to the Council and which is now available to me, there was no reasonable basis for the Council’s decision as to the effect of the proposed use on cultural values for future generations and that there was no affected protected customary rights group who would have been entitled to notification on a limited notification basis.
[291] In a decision released in December 2019, Te Runanga o Ngati Awa v Bay of Plenty Regional Council, the Environment Court discussed the tikanga effects of commercial extraction of water from aquifers for bottling and export.63 The Court first set out the conflicting evidence called by the resource consent applicant and the Rūnanga. Importantly, it noted the consensus between the experts that:64
…all water is a taonga for Ngāti Awa and that no special distinction is made between water in its different contexts and forms, whether in an aquifer, a surface waterbody, river or lake.
However, the Environment Court there decided, after hearing contested expert evidence, that the commercial bottling of water was not culturally offensive to the local Iwi.65
63 Te Runanga o Ngati Awa v Bay of Plenty Regional Council, above n 2.
64 At [84].
65 In reaching that view, the Environment Court said at [97]: “No evidence was adduced to reconcile the asserted requirement for the return of the bottled water to Papatuanuku, at least within Aotearoa, in order for its mauri to be retained, with circumstances where other commodities heavily reliant on water from within the rohe, such as milk, meat and horticultural commodities are exported to all parts of the world. We understand that Ngāti Awa commercial enterprises hold consents for greater volumes and rates of take of water than that proposed by Creswell, taken from highly sensitive and culturally significant surface water resources such as the Tarawera and Rangitikei Rivers. We were not provided with any explanation as to the nature of any loss of mauri in these circumstances or how kaitiakitanga is exercised.”
[292] For all these reasons, I conclude there was nothing unlawful or unreasonable in the Council’s consideration of the cultural effects of the proposed activity from a tangata whenua perspective in reaching its decisions both as to notification and substantively. Had I found there was anything defective in the Council’s process, I would not, on that basis, have exercised the Court’s discretion to grant relief under s 16 Judicial Review Procedure Act 2016. I accept the submission made for the Council that it would be inequitable for the Court to grant relief based on a claim that was not included within the pleadings and given the delays that occurred before the Rūnanga raised its concerns.
Summary of all conclusions in judgment
[293] The Regional Council granted consent to Rapaki and Cloud Ocean to use water previously taken for a freezing works and a wool scour to be used for commercial bottling. In these judicial review proceedings, the Court is required to consider whether the process by which the Council granted those consents was lawful. Provided there was a reasonable basis for the Council’s decisions, the Court is not otherwise concerned with the merits of those decisions.
[294] The Court was not being asked to determine whether the use of water for commercial bottling and export is in the national interest or otherwise desirable. The Court was not asked to consider what rights, if any, local Iwi might have to the water as tangata whenua.
[295] The Council proceeded on the basis the right to take water, in accordance with the original consents, had been transferred to the existing consent holders Rapaki and Cloud Ocean. The transfers were not under challenge. Through those consents, they had the right to take water to the full extent authorised by such consents. The Council processed the Rapaki and Cloud Ocean applications as being for consent to a change in use of such water. The Council therefore did not deal with the applications as being for a consent to take the water.
[296] The Court holds that, in accordance with relevant provisions of the RMA, the Council could lawfully deal with the applications as it did. With these applications
being only for a change in use, the Council was not required to, and did not consider, the environmental effects of such takes. There was no error in this.
[297] The Council was correct in processing the application as being for approval of a discretionary activity.
[298] Once the Council had authorised the changes of use as applied for, it amalgamated the change of use consents with the original take consents so there was one new consent for both the original take and the new permitted use of water from that take. This was an administrative step taken to achieve efficiency. It did not alter the rights Rapaki and Cloud Ocean had acquired by a transfer to them of the original water take consents and the new use consents which had been granted with the further applications.
[299] The amalgamation steps taken by the Council were lawful. The way the Council dealt with the applications was transparent. The Council’s officers concerned had honestly made an assessment as to how to process the applications in accordance with the RMA. There was no evidential basis for the Group to suggest the processes adopted by the Council were contrived to avoid the applications having to be considered as applications for consent to a prohibited activity.
[300] In assessing the effects on the environment of the use of the water for commercial bottling, the Council was lawfully required to accept that the extraction of water from the relevant aquifer, to the full extent permitted by the previously granted consents, was already part of that environment.
[301] The Council appropriately considered whether the effects on the environment of the proposed water bottling activity would be no more than minor in deciding whether public notification of the applications was required. The Council had appropriately considered whether the effects of the proposed activity on persons affected by the proposed use would be “less than minor” in determining that limited notification of the applications was not required. There was no error in the process by which the Council decided notification of the applications was not required.
[302] The Council appropriately considered all relevant matters and did not have regard to any irrelevant matter when deciding whether notification of the applications was required and in granting consent for the changed use.
[303] There was no error in the way the Council considered and dealt with the interests of tangata whenua, namely the Ngāi Tūāhuriri Rūnanga’s interest in the issues the Council had to consider. Had there been an error in this regard, that would not have been grounds for the Court to review the Council’s decision given Ngāi Tūāhuriri Rūnanga was not a party to these proceedings and had significantly delayed seeking to be heard in them.
Result
[304] There was no reviewable error in the way the Council dealt with the resource consent applications. The Group’s application for relief under the Judicial Review Procedure Act 2016 and its application for the specific declaration set out in its statement of claim are denied.
[305] As sought by the Council, the Court makes a declaration that standalone “use” consent for water bottling can be relied upon to authorise the use of water taken under another water permit for the purpose of s 14 RMA.
Costs
[306] My tentative view is that all respondents are entitled to costs. If agreement is not reached over costs, the following directions are to apply:
(a) a memorandum as to costs is to be filed for the Council by 7 August 2020;
(b) memoranda are to be filed by Cloud Ocean and Rapaki by 21 August 2020;
(c) a memorandum is to be filed for the Group by 11 September 2020; and
(d) any memorandum in reply from the Council, Cloud Ocean and Rapaki are to be filed by 25 September 2020.
[307] The memoranda are to be no longer than five pages. I will determine any costs issues on the papers.
Solicitors:
P Steven QC, Barrister, Christchurch Linwood Law, Christchurch
Wynn Williams, Christchurch Carson Fox Law, Auckland Duncan Cotterill, Christchurch Chapman Tripp, Christchurch.
This judgment was delivered by me on 8 July 2020 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: 8 July 2020
8
5
1