Save Environmentally Endangered Soil and Water incorporated (SEESAW) v Fulton Hogan Limited
[2025] NZHC 1764
•1 July 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2024-409-277
[2025] NZHC 1764
UNDER the Judicial Review Procedures Act 2016 and Part 30 of the High Court Rules 2016 IN THE MATTER
of an application for judicial review
BETWEEN
SAVE ENVIRONMENTALLY
ENDANGERED SOIL AND WATER INCORPORATED
Applicant
AND
FULTON HOGAN LIMITED
First Respondent
CANTERBURY REGIONAL COUNCIL
Second Respondent
Hearing: 17-18 March 2025 Appearances:
DAC Bullock for the Applicant
AC Limmer KC and SA Chidgey for the First Respondent PAC Maw for the Second Respondent
Judgment:
1 July 2025
JUDGMENT OF FITZGERALD J
This judgment was delivered by me on 1 July 2025 at 10.00am, pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
………………….……………
Solicitors: Lee Salmon Long, Auckland
Tavendale & Partners, Christchurch Wynn Williams, Christchurch
To: A Limmer KC, Christchurch
SAVE ENVIRONMENTALLY ENDANGERED SOIL AND WATER INC v FULTON HOGAN LTD [2025] NZHC 1764 [1 July 2025]
Introduction [1]
Relevant planning legislation and rules [9]
Resource Management Act 1991 [9]
The LWRP – introduction and Section 5 [14]
The LWRP – Section 11 [21]
Factual background [27]
Fulton Hogan’s purchase of the quarry site [27]
Fulton Hogan applies for consent [32]
The consenting process [35]
Fulton Hogan commences development of the Quarry [42]
The Court of Appeal in Cloud Ocean [44]
The Supreme Court in Cloud Ocean [48]
SEESAW is incorporated [50]
Issue 1: Did the Council have power to grant the use-only consent? [52]
Introduction and Supreme Court decision in Cloud Ocean [52]
Section 11 of the LWRP – text and scheme [63]
Section 11 – broader context and history [71]
Does res judicata, issue estoppel, or abuse of process disentitle SEESAW to
relief? [88]
Res judicata [89]
Estoppel [101]
Abuse of process [103]
Should the Court exercise its discretion to refuse to grant relief? [109]
Applicable principles [109]
Why Fulton Hogan says I should decline to set aside the use-only consent [113] Delay and prejudice to Fulton Hogan [114] Result and costs [139]
Introduction
[1] In 2017, the first respondent (Fulton Hogan) purchased a large tract of land in Canterbury on which it proposed to build a quarry. As a result of purchasing the land, Fulton Hogan also acquired a resource consent which permitted the taking of groundwater from the land and using it for irrigation. However, Fulton Hogan needed to use the water for activities associated with the proposed quarry, and in particular, dust suppression. It accordingly applied to the second respondent (the Council) to change the conditions of the original “take and use” consent, to use the water for activities associated with quarrying.
[2] In 2022, and after a lengthy and public consenting process, the Council granted Fulton Hogan a “use-only” consent, permitting it to use the water taken under the original “take and use” consent for quarrying purposes.
[3] The applicant (SEESAW) now applies for judicial review of the Council’s decision to grant the use-only consent. The consent was granted pursuant to r 5.6 of the Canterbury Land and Water Regional Plan (LWRP). SEESAW says that the grant of the consent was unlawful because the Council had no power under the LWRP to grant a use-only consent, which had the effect of changing the permitted use of water taken pursuant to the original take and use consent.
[4] Important context to SEESAW’s application for judicial review is what I will refer to as the “Cloud Ocean” litigation, culminating in the Supreme Court’s decision in November 2023 in Cloud Ocean Water Ltd v Aotearoa Water Action Inc.1 SEESAW says that the Supreme Court’s decision is binding on me and confirms that the Council has no power under the LWRP to grant a use-only consent. SEESAW accordingly says that the Supreme Court’s decision is the beginning and end of the present application for review.
[5] Fulton Hogan denies that the Council’s grant of the use-only consent was unlawful. It says that I am not bound by the Supreme Court’s decision in Cloud Ocean,
1 Cloud Ocean Water Ltd v Aotearoa Water Action Inc [2023] NZSC 153, [2023] 1 NZLR 474 [Cloud Ocean (SC)].
given the planning rules in issue in that case are different to those engaged here. It says that properly interpreted, the relevant rules in the LWRP confer upon the Council the power to grant a use-only consent.
[6] Fulton Hogan also pleads affirmative defences, and says that even if SEESAW’s ground for judicial review is made out, the Court should decline to exercise its discretion to grant relief. It advances defences of res judicata, estoppel and abuse of process. It emphasises that the grant of the use-only consent followed a lengthy and public consultation process, including appeal proceedings in the Environment Court; that at least four members of SEESAW were involved in that earlier consenting process and did not raise any issue as to the legality of a use-only consent; that the environmental effects of the consent were fully considered in the earlier planning processes; and that there has been unreasonable delay in SEESAW commencing these proceedings. Fulton Hogan says that it has placed significant reliance on the consent since it was granted, including the development of the quarry in relation to which the consent – which permits the use of groundwater for dust suppression – is crucial. In these circumstances, Fulton Hogan says that relief should be declined.
[7]The issues for determination are accordingly:
(a) First, did the Council have the power to grant the use-only consent to Fulton Hogan? This turns on whether the taking and using of groundwater under the relevant rules of the LWRP must be regulated together, or whether a take of groundwater, and the use of groundwater, can be regulated separately.
(b) Second, if the Council did not have the power to grant the use-only consent, should the Court nevertheless decline to grant relief in the particular circumstances of this case?
[8]The balance of this judgment is structured as follows:
(a) I first summarise the relevant resource management and planning legislation and rules.
(b) I then set out the factual background to the granting of the consent and this application for judicial review.
(c) I then address the two key issues for determination as set out at [7] above.
Relevant planning legislation and rules
Resource Management Act 1991
[9] The starting point is the Resource Management Act 1991 (RMA). Section 14 of the RMA deals with restrictions relating to water. The relevant provisions are subs
(2) and (3) which provide:
(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; or
…
(Emphasis added)
[10] Section 30 of the RMA sets out the functions of regional councils, to be exercised for the purpose of giving effect to the RMA. Section 30 relevantly provides:
(1) Every regional council shall have the following functions for the purpose of giving effect to this Act in its region:
…
(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:
…
(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:
…
(Emphasis added)
[11] In the Cloud Ocean litigation, the Court of Appeal held that nothing in ss 14 or 30 of the RMA prevents a regional council from regulating the “take” and the “use” of water separately.2 On appeal, the Supreme Court observed that this conclusion was based on a concession by the applicant in that case, with the same concession being made in that Court. The Supreme Court accordingly proceeded on the basis that ss 14 and 30 of the RMA do not require that the take and use of groundwater is considered
2 Aotearoa Water Action Incorporated v Canterbury Regional Council [2022] NZCA 325, [2022] 3 NZLR 918 at [110]–[112] [Cloud Ocean (CA)].
together as a “single package”. 3 The Court nevertheless expressed some disquiet as to whether the RMA does contemplate disaggregation of existing take and use consents into component parts, stating:4
Our concern is that the effective disaggregation that took place in this case allowed Cloud Ocean to essentially “bank” the allocation of groundwater under the take aspect of the take and use consent it acquired. This “take bank” could be seen as an assertion of a property right in the water to which the take consent applies, subject only to the need to obtain consent from ECan as to the use to which the water was to be put. This seems to us to be at odds with the effects-focus of the RMA.
[12] Despite this, and given the Supreme Court did not interfere with the Court of Appeal’s findings on the effect of ss 14 and 30 of the RMA, I am bound by that Court’s conclusion that those provisions of the RMA do permit a regional council to regulate the take and use of water separately.
[13] Before leaving the RMA, it is necessary to mention one other section, s 127. This provides that the holder of a resource consent may apply to a consent authority for a change to, or cancellation of, a condition of a consent in certain conditions. I mention this as Fulton Hogan’s application to use groundwater in its quarrying operations was originally framed as an application under s 127 to change the conditions of the original take and use consent which it acquired, effectively to change the use aspect from irrigation to uses associated with quarrying. I address Fulton Hogan’s application further below, at [32] to [34].
The LWRP – introduction and Section 5
[14] Turning to the LWRP itself, the plan comprises the following overall framework:
(a) two introductory sections (Sections 1 and 2);
3 Cloud Ocean (SC), above n 1, at [31].
4 At [34].
(b) three sections containing objectives, policies, and rules that apply across the whole of the Canterbury region (Sections 3, 4 and 5 respectively); and
(c) ten sub-regional sections that contain policies and rules which are specific to the catchments and groundwater allocation zones covered by each section.
[15] Where the LWRP contains rules on the same subject matter in both the region- wide and sub-regional sections, the more specific sub-regional provisions prevail.5 Section 2 of the LWRP also explains that the policies and rules in the sub-regional sections are intended to implement the region-wide objectives, in the most appropriate way for the specific catchment or catchments covered by that regional sub-section.6
[16] As noted earlier, the use-only consent in this case was granted pursuant to r 5.6 of the LWRP. Rule 5.6 falls within Section 5 of the LWRP which, as noted, applies region wide.7 It deals with activities not otherwise regulated by the LWRP and provides as follows:
5.6 Any activity that —
(a) would contravene sections 13(1), 14(2), s14(3) or s15(1) of the RMA; and
(b) is not a recovery activity; and
(c) is not classified by this Plan as any other of the classes of activity listed in section 87A of the RMA
— is a discretionary activity.
[17] Rule 5.6 was described by the Supreme Court in the Cloud Ocean litigation as a “catch-all rule”.8
5 Canterbury Land and Water Regional Plan (LWRP), “Section 2 How the Plan Works & Definitions”.
6 LWRP, “Section 2 How the Plan Works & Definitions”.
7 The use-only consent in the Cloud Ocean litigation was also granted pursuant to r 5.6.
8 Cloud Ocean (SC) at [37].
[18] Rule 5.128 is a rule within Section 5 of the LWRP which specifically addresses the taking and use of groundwater. It appears in Section 5 under the activity heading “Take and Use of Groundwater” and provides:
5.128 The taking and use of groundwater is a restricted discretionary activity, provided the following conditions are met:
1. The take is from within a Groundwater Allocation Zone on the Planning Maps; and
2. Unless the proposed take is the replacement of a lawfully established take affected by the provisions of section 124-124C of the RMA, for stream depleting groundwater takes, the take, in addition to all existing consented surface water takes, does not result in any exceedance of any environmental flow and allocation limits set in Sections 6 to 15 for that surface waterbody in accordance with Schedule 9; and
3. Unless the proposed take is the replacement of a lawfully established take affected by the provisions of section 124-124C of the RMA, the seasonal or annual volume of the groundwater take, in addition to all existing consented takes, as determined by the method in Schedule 13 does not exceed the groundwater allocation limits for the relevant Groundwater Allocation Zone in Sections 6 to 15; and
4. Unless the proposed take is the replacement of a lawfully established take affected by the provisions of sections 124- 124C of the RMA, the bore interference effects on any groundwater abstraction other than an abstraction by or on behalf of the applicant are acceptable, as determined in accordance with Schedule 12.
[19] Also relevant are rr 5.129 and 5.130, also in Section 5, which provide as follows:
5.129 The taking and use of groundwater that does not meet one or more of conditions 1 and 4 in rule 5.128 is a non-complying activity.
5.130 The taking and use of groundwater that does not meet one or more of conditions 2 and 3 in rule 5.128 is a prohibited activity.
[20] It follows from r 5.130 that where a Groundwater Allocation Zone is fully allocated or over-allocated, “the taking and use of groundwater” is prohibited.
The LWRP – Section 11
[21] The property on which Fulton Hogan’s quarry is located falls within the Selwyn Te Waihora sub-region, to which Section 11 of the LWRP applies. Section 11 contains specific rules relating to the taking and using of groundwater which are similar to, though drafted a little differently from, the region-wide rules in Section 5. There is no dispute that Section 11’s rules on the taking and using groundwater in the Selwyn Te Waihora sub-region take precedence over the equivalent rules in Section 5.
[22] Rule 11.5.33 is found in Section 11 of the LWRP under the activity heading “Taking and Using Surface Water and Groundwater”. It is essentially the equivalent of region-wide r 5.128 (though also addresses surface water), and provides as follows:
11.5.33 The taking and using of surface water from a river, lake or wetland or groundwater within the Selwyn Te Waihora sub-region and including all areas within the Little Rakaia Combined Surface and Groundwater Allocation Zone is a restricted discretionary activity, provided the following conditions are met:
1. The proposed take in combination with all existing resource consented takes, does not result in any exceedance of any of the allocation limits in Table 11(e), 11(f) and 11(g); or
2. The proposed take is the replacement of a lawfully established surface water or groundwater take for which an application to continue the activity has been made under s124 of the RMA and there is no increase in the proposed rate of take or annual volume; and
3. A surface water take or a groundwater take with a direct or high degree of stream depletion effect greater than 5 L/s determined in accordance with Schedule 9, complies with the minimum flow and restriction regime in Tables 11(c) and 11(d); and
4. Unless it is associated with the artificial opening of a hāpua, lagoon or coastal lake to the sea, the take is not from a wetland or hāpua; and
5. For the renewal of an existing irrigation take the annual volume and maximum rate of take has been calculated in accordance with Schedule 10; and
6. For other takes, despite Policy 4.50(b)(i), an amount of water that is reasonable and demonstrates efficient use of water for the particular end use; and
7. The take is not a surface water or groundwater take with a direct or high degree of stream depletion effect greater than 5 L/s, determined in accordance with Schedule 9, within the Waikekewai Creek and Taumutu Creek catchments; and
8. The bore interference effects are acceptable, as determined in accordance with Schedule 12. …
(restricted discretionary factors omitted)
[23]Rule 11.5.36, effectively the equivalent of region-wide r 5.129, provides:
11.5.36 The taking and use of surface water from a river, lake or wetland or groundwater within the Selwyn Te Waihora sub-region and including all areas within the Little Rakaia Combined Surface and Groundwater Allocation Zone that does not meet Conditions 4, 6, 7 or 8 of Rule 11.5.33 or does not comply with Rule 11.5.34 is a non-complying activity.
[24]Rule 11.5.37, the equivalent of region-wide r 5.130, provides:
11.5.37 The taking and use of surface water from a river, lake or wetland or groundwater within the Selwyn Te Waihora sub-region and including all areas within the Little Rakaia Combined Surface and Groundwater Allocation Zone that does not meet Conditions 1, 2, 3, or 5 of Rule 11.5.33 is a prohibited activity.
[25] It is not in dispute that the Selwyn Te Waihora sub-region Groundwater Allocation Zone within which Fulton Hogan’s quarry is located is significantly over- allocated (and will be for some time). This means that any new “take and use” of groundwater in that sub-region would exceed the allocation limits and would therefore be a prohibited activity.9
[26] I was also referred to various objectives and policies in the LWRP, as well as the history of Section 11 being drafted and coming into effect. It is more helpful if I address these matters when discussing Fulton Hogan’s argument that the Supreme Court’s findings on the groundwater rules in Section 5 of the LWRP do not automatically apply to the equivalent rules in Section 11.
9 Expert evidence filed on behalf of Fulton Hogan is to the effect that the relevant Selwyn Te Waihora Groundwater Allocation Zone is 121 per cent over-allocated, being one of the largest over-allocations within Canterbury.
Factual background
Fulton Hogan’s purchase of the quarry site
[27] As noted earlier, the consent in issue in this case is associated with the use of groundwater at a newly developed Fulton Hogan quarry, the “Roydon Quarry” (the Quarry).
[28] The Quarry is located on 170 hectares of land between central Christchurch and Rolleston (the Site). The Quarry has been established to extract and process premium grade alluvial aggregate for the greater Christchurch area. The aggregate produced will be suitable for New Zealand Transport Agency and Council product specifications for projects such as motorways, roading, and residential and commercial development. The Quarry commenced operations in March 2025. It contains an estimated 30 million cubic metres of aggregate and has a life expectancy of 45 years.
[29] Prior to its development by Fulton Hogan, the Site comprised two properties, one being the Roydon Stud (approximately 65 hectares) and the other being bare land (approximately 105 hectares). The owner of the Roydon Stud had a consent to take and use groundwater for irrigation (CRC010516), while the bare land did not have any consent to take or use groundwater.
[30] Fulton Hogan purchased the Site in 2017. As a consequence, consent CRC010516 was transferred to it and became CRC182422, commencing on 6 November 2017 and expiring on 1 July 2032. I will refer to this consent as the “original take and use consent”.
[31] Water is a necessary component of various aspects of the Quarry’s operations. Mr Donald Chittock, Fulton Hogan’s New Zealand Quarries Environment and Sustainability Manager, says that for the most part, Fulton Hogan will use water at the Quarry for dust control purposes.
Fulton Hogan applies for consent
[32] In November 2018, Fulton Hogan applied for consent to use groundwater for activities associated with its planned quarry. As originally made, the application was framed on two alternative bases:
To take water for aggregate washing and dust suppression Or
To change the conditions of existing water permit CRC18422 to allow the take of water for aggregate washing and dust suppression.
[33] It does not appear the first aspect of the application (to take water for aggregate washing and dust suppression) was pursued, presumably because such an activity was a prohibited activity pursuant to r 11.5.37 of the LWRP.10 The application to change the conditions of the original take and use consent was made pursuant to s 127 of the RMA (discussed at [13] above). There was some disagreement between Fulton Hogan and the Council as to whether the proposed change in the use of the water could in fact be dealt with under s 127 of the RMA.
[34] In the event, the application was pursued as an application for a new use-only consent, though I accept Fulton Hogan’s submission that it never formally abandoned its application pursuant to s 127. The Council received legal advice in 2019 (which was shared during the hearing process of Fulton Hogan’s application) that s 14 of the RMA did permit the Council to regulate the “take” and “use” of water separately. The advice stated that given a new “take and use” consent would be prohibited (given the relevant Groundwater Allocation Zone was already over-allocated), “the only way that an application can be processed in order to allow water taken under CRC182422 to be used for the additional uses sought by [Fulton Hogan] is for a new use permit to be granted by the Council”. The legal advice also noted that the Council was at that time involved in High Court proceedings “that will consider this particular issue and whether it is lawful for a regional council to process a new ‘use’ permit to authorise a change in use under an existing recourse consent to take and use groundwater”. It
10 See at [24] above.
noted that the High Court hearing was set down for 9 and 10 December 2019. This was a reference to the first instance hearing in the Cloud Ocean litigation.
The consenting process
[35] Fulton Hogan did not dispute that its application ought to be publicly notified, and the application was ultimately considered by a Hearing Panel comprising two hearing commissioners. In its opening submissions to the Panel, Fulton Hogan stated that it “concurred with the Regional Council’s view that section 14 [of the RMA] enables a grant of a new ‘use’ permit”. Accordingly, and importantly for matters discussed later in this judgment, all parties proceeded on the basis that the Council did have the power to grant a use-only consent, and that that was the appropriate way to proceed.
[36] Relevant to matters considered later in this judgment, it is not in dispute that four of SEESAW’s members made submissions to the Hearing Panel during the original consenting process. This included Mr William Woods and Ms Davina Penny, both of whom are or were officers of SEESAW. SEESAW itself was not involved in the consenting process, given it was not formed until 26 April 2024 (following the Supreme Court’s decision in the Cloud Ocean litigation).
[37] The Hearing Panel’s Joint Decision Report was released in April 2020. It noted that the original take and use consent did not include a maximum annual volume to be abstracted, but that the LWRP required the amount of water taken to be reasonable for the intended use. A joint expert witness statement had been prepared on that issue, and concluded that the proposed annual volume of water to be taken and used by Fulton Hogan, constituting 0.06 per cent of the water currently allocated by resource consents within the relevant Groundwater Allocation Zone, would be a little less than what would have been able to be taken under the original take and use consent. The Hearing Panel’s Report concluded that such volumes were reasonable for the intended use.
[38] Following the Hearing Panel’s Report, the Council granted Fulton Hogan a suite of consents in relation to the Quarry, including a new use-only consent to use
water (taken under the original take and use consent) for quarrying purposes – consent CRC192414.
[39] Between 21 and 29 June 2020, various parties lodged appeals with the Environment Court. The appellants were Fulton Hogan itself,11 the Yaldhurst Rural Residents Association, and a Mr Bain.12 Mr Woods filed a notice pursuant to s 274 of the RMA and became a party to Mr Bain’s appeal.
[40] Part way through the Environment Court proceedings, the High Court’s decision in the Cloud Ocean litigation was released (on 8 July 2020).13 The High Court concluded that it was lawful for the Council to have granted the use-only consent in that case.
[41] All appeals to the Environment Court were ultimately resolved by consent orders made by that Court on 3 November 2021, following a court assisted mediation. As a result, consent CRC192414 came into effect, for a duration of 35 years. Amended conditions of consent (attached to the Environment Court’s consent orders) included condition 28, which addresses what would occur in 2032, when the original take and use consent (CRC182422) expired: 14
Should the ability to take water authorised under Water Permit CRC 182422 cease at any time in accordance with Condition 2(c) of CRC182422, the consent holder must cease quarry activities until such time when water can be taken again, or if necessary, undertake alternative dust suppression such as
utilising water stored on site (i.e. water tanks or similar vessels), and/or using
chemical dust suppressants.
(Emphasis added)
Fulton Hogan commences development of the Quarry
[42] Having secured the consents necessary to develop the Quarry, Fulton Hogan commenced works on the Quarry. In late 2021 and the first half of 2022, this included significantly upgrading surrounding road infrastructure, constructing a four-arm roundabout, and the development of a large bund around the Quarry perimeter.
11 Fulton Hogan appealed against some of the conditions of the Quarry consents.
12 Mr Bain appealed against the granting of the use-only groundwater consent.
13 Aotearoa Water Action Incorporated v Canterbury Regional Council [2020] NZHC 1625.
14 The underlined text being added as a result of the mediation process.
[43] In March 2022, Fulton Hogan applied to the Council to change some of the conditions of the Quarry consents (those changes are not relevant for present purposes). Its application was granted and the full suite of Quarry consents was re- issued on 30 June 2022. The use-only groundwater consent, CRC192414, was renumbered and became CRC224108, granted for a duration until 3 November 2056. It is this latter consent which is challenged in the present proceedings. However, it is accepted by SEESAW that when considering matters such as delay and Fulton Hogan’s reliance on the consent, the appropriate point in time is 3 November 2021, namely when the original use-only consent (CRC192414) came into effect.
The Court of Appeal in Cloud Ocean
[44] An important development occurred in July 2022. The Court of Appeal delivered its decision in the Cloud Ocean litigation, overturning the High Court and finding that the grant of the use-only consent in that case was unlawful. It is not in dispute that Fulton Hogan was aware of this development.
[45] Following release of the Court of Appeal’s decision, on 19 August 2022 the Council issued a “Technical Advice Note”, setting out its position in light of the Court’s decision. It is apparent from the Advice Note that the Council had granted a number of use-only consents under s 5.6 of the LWRP, though there is no evidence before me as to how many. The Advice Note stated:15
The LWRP envisions some situations where there is a take of water, but no associated use (or vice versa). These situations are addressed through provision of specific “take or use” rules (e.g. rules 5.121 (permitted) and 5.122 (discretionary) for the take or use of water from irrigation or hydroelectric canals, or from water storage facilities) to enable these activities to occur. Over the last decade of implementing the LWRP however, there have been applications lodged for other activities that appeared to also fit into a “take or use” classification (as they appeared to only require consent for either a take or use), but which did not appear to be managed under the existing rules. This has included applications for:
·Stand-alone takes of water where there is no use (but typically with an associated discharge e.g. for:
oStormwater treatment wetlands intercepting high groundwater levels;
15 Emphasis in original.
oOn-going removal of ‘nuisance’ high groundwater levels (e.g. impacting on basements or other infrastructure);
·Stand-alone uses of water associated with existing (already consented) takes e.g.:
oSame purpose, expansion of scope: expand existing uses while relying on existing consents to take and use water e.g. adding additional irrigation areas to existing irrigation consents within the allocation limit on that consent;
oDifferent purpose, new use activity: change uses of water e.g. from irrigation to quarry dust suppression;
oadd extra uses (often to regularise activities such as unconsented dairy shed and stockwater takes that are occurring) – within the allocation limits on an existing water take and use (albeit for another purpose) consent;
· Miscellaneous situations, e.g.:
oWhere catchment plans have interacted with the LWRP to provide situations where catchment plan applied solely to the
take of water (e.g. WRRP), and LWRP solely to the use of
water;
oCross-jurisdictional situations where water was taken and used from another region subject to that region’s plan requirements (e.g. West Coast) but was then used in Canterbury (e.g. Kiwirail Otira rail tunnel cleaning consents).
[46] The Advice Note went on to state that the Council had no power to revisit or cancel the grant of consents granted prior to the Court of Appeal’s decision, and that consents so granted “are considered lawful unless they are specifically challenged, and decisions on those consents quashed by the Court…”. The Advice Note conveyed the Council’s evident view that the approach adopted by the Court of Appeal in the Cloud Ocean litigation applied, not only to the region-wide rules in Section 5 of the LWRP (being the LWRP rules engaged in Cloud Ocean), but also to the equivalent rules in the sub-regional sections:
Where an activity to take and/or use water is to be consented under the LWRP and is not managed under an activity specific rule (e.g. for community supply, dewatering etc.), it must be considered under the general “take and use” rules (i.e. rules 5.123 – 5.125 in the LWRP for takes and uses of surface water; 5.128
– 5.132 in the LWRP for takes and uses of groundwater, or a relevant sub- regional rule where it prevails over the regional-wide rules).
(Emphasis added)
[47] It is not in dispute that Fulton Hogan was aware of the Advice Note at the time it was issued.
The Supreme Court in Cloud Ocean
[48] On 17 November 2022, the Supreme Court granted leave to appeal against the Court of Appeal’s decision in Cloud Ocean.16
[49] On 20 November 2023, the Supreme Court delivered its judgment in the Cloud Ocean litigation. It unanimously upheld the Court of Appeal’s decision, finding the that the grant of the use-only consent in that case under r 5.6 of the LWRP was unlawful.
SEESAW is incorporated
[50] SEESAW was incorporated on 26 April 2024. Its Constitution provides that its purpose is as follows:
The primary purposes of the Society are to — to advocate for the protection, preservation, and enhancement of the New Zealand’s endangered, at risk, or otherwise important soil and water resources, including through advocacy, litigation, and other initiatives to safeguard New Zealand’s precious soil and water ecosystems from degradation, contamination, and misuse. The Society is also committed to actively engaging with policymakers, stakeholders, and the public to raise awareness about the critical importance of our water and soil resources and to advocate for policy reforms that prioritize their conservation and sustainable management. The Society intends to hold accountable those who pose threats to the integrity of New Zealand’s soil and water environments and to ensure strict compliance with environmental regulations and proper process.
[51] Over the period 1 May 2024 to 21 May 2024, counsel for SEESAW and Fulton Hogan exchanged correspondence over what SEESAW alleged to be the illegality of the grant of the use-only consent to Fulton Hogan. SEESAW commenced these proceedings on 24 May 2024.
16 Cloud Ocean Water Ltd v Aotearoa Water Action Incorporated [2022] NZSC 133.
Issue 1: Did the Council have power to grant the use-only consent?
Introduction and Supreme Court decision in Cloud Ocean
[52] The essential question is whether, properly interpreted, the relevant rules of the LWRP, and particular, those found in Section 11, require the “take and use” of groundwater to be assessed and regulated as a single package, or whether the “take” and “use” of groundwater can be assessed and regulated separately.
[53] In answering this question, it is helpful first to examine the Supreme Court’s reasoning in the Cloud Ocean litigation given, as noted earlier, SEESAW says that the Court’s decision is determinative of the interpretation issue in this case. Before doing so, however, I address one argument made by Ms Limmer KC, counsel for Fulton Hogan, which she says highlights that this case and that in Cloud Ocean are very different, and is a basis upon which to distinguish the outcome in that case.
[54] Ms Limmer argues that this is not a “straightforward” case of stare decisis. Rather, she emphasises that this case involves judicial review of a resource consent obtained through a fully notified, vigorously contested, and high-profile three-year resource consenting process. She notes that the submissions process involved more than 450 submissions being filed, much expert evidence as to the environmental effects of the proposed use-only consent, twelve days of hearings before the Hearing Panel and subsequent appeals to the Environment Court, followed by six days of court- assisted mediation. Ms Limmer emphasises that the consents in issue in the Cloud Ocean litigation were non-notified, and granted a matter of months prior to the applications for judicial review being made.
[55] However, a similar argument was raised, and discounted, by the Supreme Court in Cloud Ocean:
[59] Ms Limmer argued there was no impediment to ECan considering a use-only application and assessing its impact on the environment. Treating the existing take as fully consumed for the purpose of this assessment is orthodox, she argued. We do not see that as advancing Cloud Ocean’s case, however. It simply says an effective consideration of a use-only application could be made. But it begs the question as to whether the LWRP permits this.
[56] The same observations apply here. Effective, detailed, and vigorous consideration of an application for a use-only consent can be carried out, evidenced by what happened in the consenting process in this case. But like in Cloud Ocean, it begs the question as to whether the LWRP permits use-only consents. If SEESAW is right that the LWRP does not permit the Council to grant a use-only consent, then the detailed consenting process in this case mis-fired from the outset. To put the point another way, a detailed and lengthy consenting process cannot undo the absence of a power to grant a use-only consent.
[57] Turning then to the Supreme Court’s reasoning in Cloud Ocean, the Court first set out the issue before it, and the broader context to the outcome of the litigation. It is helpful to set it out in full:
[1] This appeal addresses issues arising when a resource consent to take and use groundwater is transferred to a new owner who wishes to use the allocated water for a different purpose from the use permitted under the consent. It involves interpretation of the provisions of the Canterbury Land and Water Regional Plan (LWRP). We will deal with this in some detail later, but in essence the issue before us is whether the LWRP allows the take and use consent in question to be decoupled and a new use consent to be granted independently, or whether a new take and use consent is required.
[2] The issues are important because they potentially impact the ability of transferees of resource consents in the Canterbury region to access the water allowed to be taken under the consent and apply it to a new use. This may have particular importance in cases where the groundwater resource is fully allocated or over-allocated.
(Emphasis added)
[58] The Cloud Ocean case concerned two ‘use-only’ consents granted by the Council under r 5.6 of the LWRP to use water for water bottling operations, which were to be used alongside existing ‘take and use’ consents for a defunct wool scour and a defunct freezing works. Because the catchment in that case was fully allocated, it was not possible for the water bottling operations to apply for fresh consents to “take and use” water under r 5.128 of the LWRP.
[59] The Supreme Court held that r 5.6 of the LWRP did not permit the granting of use-only consents and that the take and use of groundwater needed to be considered
together, as required under r 5.128.17 The Supreme Court held that “there is nothing in the LWRP that suggests the drafters envisaged that take and use consents would be divisible into separate ‘take’ and ‘use’ consents”.18
[60] The Court referred other rules in the LWRP which refer to “take or use” and variations of “take and use”, stating that while none were relevant to the appeal in that case, they provided support for the Court of Appeal’s view that the drafters of the LWRP chose carefully between “take or use” and “take and use”.19 For example, the Supreme Court pointed to rr 5.121–5.122 which refer to “taking or use” of groundwater, rather than “taking and use”, stating that they supported the proposition that the use of “take and use” in the LWRP was carefully chosen and deliberate.20
[61] As noted in the discussion of the RMA provisions set out at [11] to [13] above, the Supreme Court expressed some disquiet about the Court of Appeal’s conclusion that s 14 of the RMA permits regional councils to grant use-only water consents. That same concern carried through into the Court’s consideration of r 5.128 (set out at [18] above). The Court stated:
[57] In granting the original consent to Kaputone, the decision-maker would have proceeded on the basis that the use of the water for the wool scour was a use of the water that justified the consent to take it for that use. We see the proposition that the “take” aspect can be effectively banked and used to found a different use application as problematic. The fact that r 5.128 addresses take and use of water in a way that contemplates only the consideration of take and use together indicates against it.
[58] While r 5.6 filles a gap where the LWRP does not classify an activity, the LWRP does classify the use activity in relation to groundwater, but in a context where it requires it to be considered as a component of an aggregated “take and use” activity. It does not provide for the possibility of a consent to take and use water for an activity that has been discontinued to morph into a consent to take for an as yet unspecified use, pending an application for a new use for the water taken.
[62] As in this case, the Supreme Court was also taken by the parties to various objectives and policies of the LWRP, with each party arguing that those objectives and policies supported its interpretation of the Section 5 groundwater rules. However, the
17 Cloud Ocean (SC), above n 1, at [77].
18 At [77(d)].
19 At [44].
20 At [72] and [77(e)].
majority of the Court concluded that the objectives and policies did not provide much assistance on the interpretation issue, observing that the approach taken by the Council in that case, and the approach adopted by the Court of Appeal, “are both amenable to an argument that they give effect to particular objectives and policies while also being inconsistent with others.”21
Section 11 of the LWRP – text and scheme
[63] Turning then to the interpretation of the relevant groundwater rules in Section 11 of the LWRP, Mr Bullock, counsel for SEESAW, submits the Supreme Court’s decision in Cloud Ocean is determinative on this point.22 He says that where the LWRP governs “take and use” of groundwater, it is not permissible to circumvent those fules by resorting to “use only” applications and consents. Mr Bullock contends it is of no moment that this case involves r 5.6 and rr 11.5.33 and 11.5.37, instead of r 5.6 and rr 5.128 and 5.130 (as in Cloud Ocean). He argues that the words and policy concerns are the same. To this point, he says that any small variations in grammatical tense have no bearing.
[64] Ms Limmer contests that Cloud Ocean can be applied so directly. She argues that the Supreme Court’s conclusions were confined to the rules in Section 5 of the LWRP, and have no application to the rules in Section 11. She accepts that the Supreme Court’s judgment held that the deliberately conjunctive phrase “take and use” in r 5.128 meant a “take” could not be disaggregated from the “use”. She argues, however, that it was r 5.128 that drove that outcome, not r 5.6, being the only LWRP rule in common between Cloud Ocean and the present case.
[65] While different rules in the LWRP were in issue in the Cloud Ocean litigation, I am not persuaded that the text and scheme of Section 11 drives a different conclusion to that reached by the Court of Appeal and Supreme Court in relation to Section 5. There are certainly some drafting differences between rr 5.128 and 11.5.33, as shown in the table attached to this judgment. However, the same concepts of “take and use”, “taking and use”, and “taking and using” groundwater is seen across both rr 5.128 and
21 At [67].
22 Cloud Ocean (SC).
11.5.33. There is rightly no suggestion that minor grammatical differences, such as “use” (r 5.128) and “using” (r 11.5.33), alter the interpretation. Further, and like in Section 5, Section 11 includes or incorporates rules which govern both the “taking or using” of water and the “taking and using” of water.23 As the Court of Appeal and Supreme Court said in Cloud Ocean, that distinct wording is important and is to be taken as intended.24 For example, rr 5.121 and 5.122 (both of which apply in the Selwyn Te Waihora sub-region) relate to irrigation and hydroelectric canals, and refer to the “taking or use” of water, the Supreme Court observing that those contexts contemplate that use of water could occur without taking it.25
[66] In addition, like the opening words of r 5.128, the opening words of r 11.5.33 provide that the “taking and use of … groundwater…is a restricted discretionary activity…26 As the Court of Appeal observed in Cloud Ocean, this supports an interpretation that the activity in question is a single combined activity, not two separate activities.
[67] Allied to this is the point made by the Supreme Court in Cloud Ocean, namely that the fact that a “take” application requires a “use” to be identified, and for the effects of the take and use to be assessed together, means that assessing use-only, without having the ability to assess take as well, is less than optimal.27 Assessing take and use together is evident in both r 5.1.28 and r 11.5.33, where the exercise of the Council’s discretion under those rules is to assess whether the amount of water to be “taken and used” (not “taken or used”) is reasonable for the proposed use. The Court of Appeal in Cloud Ocean observed that this factor creates a direct linkage between take and use, and “if the take is treated as an activity separate to the use, it is unclear how the reasonableness criterion could be applied.”28 As flagged earlier, the Court also noted that under an approach which separates out the “take” and the “use”, the
23 Rules 5.121 and 5.122, both of which refer to “taking or use” of water from irrigation or hydroelectric canals, apply to the Selwyn Te Waihora sub-region, not being modified or overridden by any specific Section 11 rules. Like rr 5.133, r 11.5.38 uses both “take and use” and “take or use”. Like r 5.134, rr 11.5.39, 11.5.40 and 11.5.41 refer to “take or use”.
24 Cloud Ocean (CA), above n 2, at [113] and [122]; and Cloud Ocean (SC), above n 1, at [44].
25 Cloud Ocean (SC), above n 1, at [71].
26 Emphasis added; see Cloud Ocean (CA), above n 2, at [114]; and Cloud Ocean (SC), above n 1, at [70].
27 Cloud Ocean (SC), above n 1, at [69].
28 Cloud Ocean (CA), above n 2, at [118].
consented volumes of the “take” are “a given … which subverts the evident intent of r 5.128 read as whole”.29 These concerns apply equally to r 11.5.33, and further support the conclusion that the relevant activity to be assessed under Section 11 is the combined “take and use” of groundwater.
[68] As an aside, I note that in the consenting process which occurred in this case, the volume of water to be taken for use at Fulton Hogan’s quarry was the subject of extensive submissions, expert evidence, a joint witness statement and, ultimately, volumetric limits imposed as a condition of the consent. Fulton Hogan emphasises that this limit is slightly less than the permitted volume of water that can be taken under the original take and use consent. Rather than support this aspect of its case, however, the fact that the volume of water to be taken and used at the Quarry was the subject of detailed assessment highlights the intertwined nature of the take and use of groundwater, and that it is optimal for its take and use to be assessed together. On Fulton Hogan’s interpretation of r 11.5.33, it could presumably have “banked” the allocated volume under the original take and use consent and sought to confine the Council’s assessment to the use of that water.
[69] Further, and while not a determinative point, it seems odd that if use-only consents are permitted under Section 11 (particularly given the applicable sub-region contains two of the most over-allocated Groundwater Allocation Zones in the Canterbury region), resort must be had to a catch-all rule in the region-wide section to grant such a consent. The Supreme Court made a similar point in Cloud Ocean, stating:30
…if it were intended that applications for take-only, use-only or take and use were all to be permitted, this could also have been addressed specifically.
[70] Finally, in Cloud Ocean, the Supreme Court acknowledged the practical issue that arises if take and use of groundwater are to be regulated together, namely that in a fully allocated or over-allocated Groundwater Allocation Zone, r 5.130 (or r 11.5.37 in this case) would apply and the proposed take and use would be a prohibited activity. The Supreme Court identified a “solution” to this practical issue, namely for the
29 At [118].
30 Cloud Ocean (SC), above n 1, at [52].
existing take and use consent to be surrendered and a new take and use to be sought.31 It observed that this “appears to be an appropriate way of avoiding the application of r 5.130.”32 While that might be possible in a fully allocated Groundwater Allocation Zone, such a solution is unlikely to be available in an over-allocated zone. Ms Limmer highlights this as another difference between this case and that in Cloud Ocean. However, I do not see the absence of this solution as material, or sufficiently material, to drive a different interpretation of Section 11’s rules on the take and use of groundwater to that adopted in Cloud Ocean. Ultimately, an interpretation should not be adopted simply to avoid the application of a clear rule in a planning document. Rule 11.5.37 is clear in its terms, and like r 5.130, is plainly one of the key mechanisms under the LWRP aimed at reducing over-allocation over time.
Section 11 – broader context and history
[71] To this point, therefore, I do not see anything in the text or scheme of Section 11 which causes me to adopt a different interpretation of Section 11’s groundwater rules to that reached in the Cloud Ocean litigation. However, Ms Limmer advanced three further contextual arguments which she said distinguish Section 11 from Section 5, and permit (and indeed require) a different interpretation to be adopted:
(a) the nature and history of Section 11;
(b) the state of over-allocation in the Selwyn Te Waihora sub-region; and
(c) the mechanisms expressly adopted in Section 11 to address over- allocation.
[72] As to the nature and history of Section 11, Ms Limmer notes that Section 11 was developed some two years after Section 5 had been notified and came into effect, and followed a much more lengthy and detailed process. She notes that Section 11
31 At [74].
32 At [74].
relies on the region-wide objectives of Section 3 of the LWRP, but that its policies are additional to those in Section 4.
[73] Ms Limmer emphasises that s 32 of the RMA requires every planning proposal (which includes the development of Section 11) to be accompanied by an evaluation of the costs, benefits, efficiency and effectiveness of the proposal. She refers to the evidence of Mr Ensor, an experienced planner, who explains the process which led to the notification of Section 11. Mr Ensor notes that prior to the LWRP, water abstraction in Canterbury was subject to the objectives, policies and rules of the Natural Resources Regional Plan (NRRP), which had separate rules dealing with the “take” and “use” of groundwater. Mr Ensor states that it was possible under the NRRP to apply for a resource consent to use water only. He suggests that the development of Section 5 of the LWRP was urgent, and unlike the development of Section 11, “did not enable a deep investigation of catchment specific issues and solutions”. Ms Limmer refers in particular to Mr Ensor’s evidence that he found nothing in the “Zone Implementation Plan (ZIP) Addendum” (the basis for the development of Section 11) which indicates that a cost/benefit analysis of prohibiting use-only consents had been carried out, despite the directive in s 32 of the RMA. On this basis, Ms Limmer submits that the absence of such a cost/benefit analysis tells strongly against there being a drafting intention that uses of groundwater cannot be dealt with under Section 11 independently of takes.
[74] I do not consider any material guidance can be drawn from the suggested absence of a cost/benefit analysis. As far as I was directed in relation to these historical materials, there is no discussion at all of use-only consents. The absence of any such discussion, rather than supporting the interpretation advanced on behalf of Fulton Hogan, arguably cuts across such an interpretation. Had use-only consents been intended, especially in over-allocated Groundwater Allocation Zones, one might expect to see discussion of the pros and cons of such consents.
[75] This is particularly so given what was addressed in the ZIP Addendum, including the following:33
In water allocation zones where new takes are prohibited, water transfers offer people the only chance of accessing new or additional water other than through purchase of property with existing water permits. Water transfers also provide the opportunity for people to access additional water for temporary need, such as to grow a more water-demanding crop.
Water transfers increase the risk that more water in total will be used as some people may transfer ‘unused’ water, that is, water that they would never use. Should this occur in the Rakaia-Selwyn and Selwyn-Waimakariri water allocation zones then the cumulative impact of water takes on lowland stream flows would increase. …
[76] The commentary goes on to address ways of addressing or mitigating these identified risks.
[77] The first paragraph from the above extract suggests that if a new “take” is prohibited, then the only option to access water is through a water transfer. There is no discussion of applying for a “use-only” consent, leveraging off an existing “take and use” consent. Further, the second paragraph highlights that those developing Section 11 were alive to the risk of existing water takes being “banked” (as discussed at [11] and [61] above). Given the same mischief flows from use-only consents, it is surprising that if such consents were envisaged by those developing Section 11, there was no discussion of how that same mischief might be controlled or addressed.
[78] I therefore do not consider the fact that the materials leading to the development of Section 11 did not expressly address use-only consents says anything particular about whether such consents are permitted under Section 11, and if anything, tends to point against such an interpretation.
[79] As to the state of over-allocation, Ms Limmer emphasises that the Selwyn Te Waihora sub-region is host to two of the most volumetrically over-allocated groundwater zones in Canterbury. She submits that a number of Section 11’s policies and rules acknowledge this state of affairs, but equally reflect an apparent concern to
33 At 14.
maintain agility and flexibility around changes in water use. Ms Limmer refers in this context to objectives 3.5, 3.9, 3.10 and 3.11, and to policies 4.65 and 4.67.
[80] These matters were also considered by the Supreme Court in Cloud Ocean, the majority accepting that they indicate “an intention to allow for adaption to changing circumstances”, though none “…is of such clarity as to compel the interpretation [the appellant] contends for” in that case.34 Ms Limmer submits that in the context of two of the most volumetrically overallocated groundwater zones, these objectives and policies would be frustrated if use-only consents were not permitted. However, that was precisely the same argument made in the Supreme Court in Cloud Ocean, the submission being that frustration of these objectives and policies “would be particularly so where the water subject to the consent was over-allocated and a new take and use consent may not then be possible”.35 As noted, the Supreme Court did not consider such matters assisted in the interpretation of Section 5, and I am similarly unpersuaded that they say anything much about the interpretation of Section 11.
[81] Ms Limmer further submits that an example of Section 11’s flexibility around changes in water use is r 11.5.38, which requires 50 per cent of the allocated water to be surrendered upon transfer, except where “the transferred water is to be used for a community water supply”, or “the transferred water is used, or will following transfer be used, for an industrial or trade process and result in a neutral or positive water balance”.36 She says that this further demonstrates an underlying understanding that the use of water can change.
[82] Mr Bullock disputes that r 11.3.58 permits a change in use on transfer, submitting that the exception regarding industrial uses reflects transfers between such uses. It is not necessary for me to come to any concluded view about this, however, because even if Ms Limmer’s approach is correct, it is arguable that the presence of provisions such as this, which envisage changing uses of water in very specific circumstances, is inconsistent with wholesale changes in use being implemented via a region-wide catch-all rule.
34 Cloud Ocean (SC), above n 1, at [61].
35 At [61].
36 Emphasis added.
[83] In addition, while Ms Limmer is correct that some of the objectives and policies which govern Section 11 indicate an intention to allow for adaption to changing circumstances, it is equally the case that other objectives and policies are aimed at reducing over-allocation over time, which is achieved by requiring the take and use of water to be considered as an aggregate activity, and where such an activity is prohibited in over-allocated zones. For example, Mr Bullock referred me to the introductory section of the LWRP, where it notes that “where abstractions or discharges are over-allocated alternative management techniques are needed, and any over-allocation has to be phased out within a defined timeframe”.37 Similarly, Section
2.6 expressly requires sub-regional plans to include rules “to address over-allocation”. Building on this, Policy 11.4.24 “[prohibits] the allocation of surface or groundwater which may either singularly or cumulatively result in the allocation limits … being exceeded”.
[84] As to the mechanisms for controlling and reducing over-allocation over time, Ms Limmer submits that Section 11 contains express policies for doing so, namely the prohibition of the allocation of groundwater where to do so would exceed the relevant allocation limits, ensuring renewed consents are based on reasonable use calculations, and restricting the volume of water able to be transferred between users. She argues that it is notable that Section 11 does not rely on preventing new uses of water as a means of reducing the incidence and extent of over-allocation.
[85] However, this begs the question of the proper interpretation of Section 11’s rules on the take and use of groundwater. On the basis that “take and use” of groundwater within the Selwyn Te Waihora sub-region is to be regulated together (unless a specific “take or use” rule applies), then Section 11 does rely on preventing new use-only consents as a means of tackling the over-allocation problem.
[86] Standing back, and despite Ms Limmer’s comprehensive submissions, none of these contextual matters causes me to reach a different conclusion on the proper interpretation of the groundwater rules in Section 11 to that adopted in the Cloud Ocean litigation in relation to Section 5. Like Section 5, Section 11 classifies the use
37 LWRP, at 1.2.6 (emphasis added).
of groundwater in a context where it requires it to be considered part of an aggregated take and use activity under r 11.5.33. It follows that r 5.6 (which applies when the LWRP does not classify an activity) is not an available mechanism to grant a use-only groundwater consent in the Selwyn Te Waihora sub-region. It follows that the Council’s grant of the use-only consent to Fulton Hogan was unlawful.
[87] Having reached this conclusion, I now turn to address Fulton Hogan’s submission that I should nevertheless decline to grant relief in this case.
Does res judicata, issue estoppel, or abuse of process disentitle SEESAW to relief?
[88] Fulton Hogan advances affirmative defences of res judicata, issue estoppel,38 and abuse of process. Given any of these doctrines, if made out, would mandate relief being declined, I deal with them first, before turning to the broader discretion whether to grant relief.
Res judicata
[89]For res judicata to be invoked, the first decision must:39
(a) be “judicial in the relevant sense”;
(b) have been delivered;
(c) be from a tribunal that has jurisdiction over the parties and the subject matter;
(d)be final;
(e)have been decided on the merits;
(f) have determined a question raised in the later litigation; and
38 The pleading also included cause of action estoppel, but this was not addressed in Fulton Hogan’s submissions at the hearing. I accordingly do not address it separately, but note that it is highly unlikely that any different outcome would be reached under that doctrine to that arrived at under issue estoppel in any event.
39 White v The Attorney General of New Zealand [2021] NZCA 479 at [21].
(g) be one that involved the same parties (or their privies) as in the later litigation.
[90] Ms Limmer contends that given the public and detailed consenting process leading to the grant of the use-only consent in this case, SEESAW should be prevented from relitigating a matter that has already been conclusively determined.40
[91] As a preliminary point, Mr Bullock submits there was no judicial decision that could found the doctrine of res judicata, and rather the Environment Court appeal was resolved at mediation by a consent memorandum of the parties. In response, Ms Limmer refers to the following passage from the authors of Spencer Bower and Handley:41
A judgment (or order) by consent is a res judicata. The court is discharged from the duty of investigating or further investigating the matter and does not pronounce a judicial opinion; but at the request of the parties it gives judicial sanction and coercive authority to an agreement which, except by statute, could not otherwise operate as a bar. A consent judgment that does not require the approval of the court does not involve any exercise of judicial power. Judgments, orders and awards by consent are as efficacious as those pronounced after a contest in creating cause of action estoppels and merging the cause of action sued on.
[92] I accordingly proceed on the basis that the Environment Court’s consent orders could provide the foundation for res judicata.
[93] The claim of res judicata nevertheless fails for more fundamental reasons. Ms Limmer submits that the question of whether to grant or decline the use-only consent was at issue through the entirety of the consenting process. But whether a use-only consent ought to be granted is not the right question for the purposes of the res judicata argument. The real question is whether the Hearings Panel42 or the
40 Referring to Walker v Nelson District Court [2018] NZHC 1967 citing Dotcom v District Court at North Shore [2017] NZHC 3158 at [25]-[26] and Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804 at [28].
41 Patrick Keane Spencer Bower and Handley: Res Judicata (6th ed, LexisNexis, United Kingdom, 2014) at [2.16], footnotes omitted.
42 Assuming for present purposes, though without deciding, that decisions of the Hearings Panel convened under the statutory authority of the RMA are “judicial” in the relevant sense.
Environment Court determined the question raised in this proceeding, namely whether the Council had the power to grant a use-only consent, and if so, it did so on the merits.
[94] A fair reading of the earlier consenting process highlights that whether the Council had the power to grant a use-only consent was not put in issue, let alone decided on the merits, by either the Hearings Panel or the Environment Court. As noted at [35] above, both the Council and Fulton Hogan proceeded on the basis that the Council did have the power to grant a use-only consent.43 Consistent with this, the Hearing Panel’s Final Joint Report recorded that “[w]e understand that it has been agreed between Fulton Hogan and [the Council] that the use of [water allocated under the original take and use consent] for dust suppression and other ancillary activities within the proposed quarry is better authorised by a new use consent, rather than a change to the conditions of the [original take and use consent.]” Ms Limmer nevertheless referred me to aspects of the evidence to suggest that “the effects of issuing the water use permit and the lawfulness of issuing a use-only permit were specifically put in issue by parties independent of both the Council and Fulton Hogan.” The first aspect of this submission is certainly correct. There was extensive submission and evidence on the effects of the proposed use-only consent. But the closest the submissions arguably got to any issue about the power to grant such a consent was the submission of a Mr Seddon-Smith, which included the following:
The applicant was well aware of the conditions of the use of water being strictly and explicitly limited to agricultural purposes on purchasing this site. Whilst existing use rights must be respected under the RMA, this is not an application for existing use, rather it is an application for a new and very different use and the existence of a permit for one use does not imply the requirement to grant a permit for another.
Where water is overallocated as in this case, the only sustainable option available is to decline new use permits for large scale activities. There is simply not enough water to be used for this purpose.
(Emphasis added)
[95] This falls far short of expressly putting in issue whether the Council had the power under Section 11 of the LWRP to grant a use-only consent.
43 Including on the basis of legal advice provided to the Hearing Panel at the time, though that advice was directed to whether the power to grant a use-only consent existed under s 14 of the RMA, and did not address the groundwater rules of Sections 5 or 11 of the LWRP.
[96] Ms Limmer further contends that the fact a use-only consent was granted inherently incorporates a decision that the power to grant such a consent existed. But for the reasons just explained, there was not in fact any issue arising for determination on that question, and thus no decision to that effect. An inherent (though incorrect) assumption as to the power to grant a certain type of consent does not, in my view, provide a proper foundation for res judicata, particularly given application of the rule has the effect of preventing a party from bringing what would otherwise be proper proceedings before a court. Finally, and as an aside, I note that no suggestion of res judicata or related doctrines were raised in the Cloud Ocean litigation, despite the granting of a use-only consent in that case also being founded on the (incorrect) assumption that the power to do so existed.
[97] Standing back, in White v Attorney General, the Court of Appeal referred to the following extract from Lord Blackburn’s judgment in Lockyer v Ferryman as the rationale for res judicata:44
The object of the rule of res judicata is always put on two grounds – the one public policy, that it is in the interests of the State that there should be an end of litigation, and the other, the hardship on the individual, that he should be vexed twice for the same cause.
[98]Neither of these objects are triggered in this case.
[99] It is also debateable as to whether other requirements of res judicata are made out, including whether any earlier decision on the Council’s power to grant a use-only consent (if made) was one that involved the same parties or their privies as in this litigation. SEESAW did not exist at the time of the consenting process. Ms Penny and Mr Woods each made submissions in the Hearings Panel process, and Mr Woods was a party to the Environment Court proceeding. But it is not clear whether SEESAW is either or both of Ms Penny and Mr Woods’ privy. 45 Ms Limmer submits that
44 White v The Attorney-General of New Zealand [2021], above n 39, at [22] citing Lockyer v Ferryman (1877) 2 App Cas 519 (HL) at 530.
45 In Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWCA Civ 924, at [32], the Court of Appeal for England and Wales described the principles for guiding whether or not a person is a privy to a party in earlier proceedings as follows: “…a court which has the task of assessing whether there is privity of interest between a new party and a party to previous proceedings needs to examine
(a) the extent to which the new party had an interest in the subject matter of the previous action;
(b) the extent to which the new party can be said to be, in reality, the party to the original proceedings by reason of his relationship with that party; and (c) against this background to ask
Ms Penny and Mr Woods, as current or former officers of SEESAW, are SEESAW’s “beating heart”. Nevertheless, as Mr Bullock notes, Ms Penny and Mr Woods were involved in the earlier consenting process in their capacities as private citizens. There is no evidence they were acting for or on behalf of any others with concerns about the Quarry, or the use of groundwater at the Quarry. SEESAW is a separate legal entity acting under its constitution and in the interests of all its 15 members. I have some doubt as to whether SEESAW would be considered Ms Penny or Mr Woods’ privy in these circumstances. However, given my conclusion on other key elements of res judicata, it is not necessary for me to reach any concluded view on this aspect of the doctrine.
[100]The claim of res judicata accordingly fails.
Estoppel
[101] Fulton Hogan also contends that issue estoppel applies, because an issue that is central or fundamental to these proceedings has already been finally determined in a previous proceeding.46 Ms Limmer says the issue of “the lawfulness of issuing a use-only permit” was specifically decided in the earlier consenting process.
[102] I do not accept that argument, for the same reasons given in relation to the claim of res judicata. Whether the use-only consent should be granted was the central issue for determination in the Hearings Panel process and the Environment Court appeal. In neither process was the power or jurisdiction of the Council to grant such a consent a live issue for determination. Like res judicata, the claim of issue estoppel must also fail.
whether it is just that the new party should be bound by the outcome of the previous litigation” (emphasis added). This passage was cited with approval by this Court in McGougan v DePuy International Ltd [2016] NZHC 3170 at [56] and [58], a case relied on by Fulton Hogan to suggest that the necessary privy exists in this case. However, in McGougan, Collins J found (at [62]) that parties in the earlier litigation were “acting not only on their own behalf but, in reality, on behalf of” a broader group of persons, that broader group then seeking to bring subsequent proceedings on the same issue.
46 Referring to LMCHB Ltd (formerly L&M Coal Holdings Ltd) v Buller Coal [2023] 2 NZHC 633 at [125].
Abuse of process
[103] In the alternative, Fulton Hogan relies on the rule in Henderson v Henderson, as summarised by the Court of Appeal in Anura Ltd v Sealegs International Ltd:47
… raising a claim or defence may amount to an abuse of process if the claim or defence should have been raised in the earlier proceeding… Determining whether the claim or defence should have been raised in the earlier proceeding, so as to make the raising of it in a later proceeding an abuse of process, involves a broad merits-based judgment that takes account of all circumstances. The underlying purpose is to encourage finality in litigation and avoid the oppression of subjecting a party unnecessarily to successive actions or defences.
[104] Ms Limmer submits that SEESAW’s action has the appearance of “another attempt to have the Quarry stopped.” She states that the earlier consenting process was highly publicised, that anyone could have submitted to the Hearings Panel or been a party to the Environment Court appeal, such that those who did not challenge the consent in those prior forums should not be allowed to bring their claim now. She submits that Mr Woods and Ms Penny have been fervent opponents of the Quarry, and Fulton Hogan is not aware of any other use-only consents being singled out for challenge.
[105] But putting aside doctrines such as res judicata and issue estoppel, and of course claims liable to being struck out as frivolous or vexatious, there is nothing inherently wrong or improper in a party bringing a challenge to a consent, including one that was publicly notified, particularly where the challenge has been found to be well-made. I appreciate that it must be frustrating for Fulton Hogan to have this challenge made after the lengthy and detailed consenting process, but that is beside the point.
[106] In the context of a suggested abuse of process, the question is whether the lawfulness of a use-only consent should have been raised by a privy of SEESAW in the consenting process, such that it would be an abuse of the Court’s process for that issue to be litigated now by SEESAW.
47 Anura Ltd (formerly Orion Marine Ltd) v Sealegs International Ltd [2024] NZCA 538 at [52] citing Henderson v Henderson (1843) 3 Hare 100 67 ER 313 (Ch).
[107] In my view, the present proceedings fall well short of an abuse of process. As already noted, both the Council and Fulton Hogan proceeded on the basis that the Council had the power to grant a use-only consent. It is understandable in those circumstances why no private submitters squarely raised the issue of whether such a power existed. That is further reinforced by the fact that, part way through the consenting process, the High Court delivered its judgment in Cloud Ocean, concluding that such a power did exist.
[108]Abuse of process is accordingly not made out.
Should the Court exercise its discretion to refuse to grant relief?
Applicable principles
[109] In the present case, SEESAW seeks both a declaration that the decision to grant the use-only consent was unlawful and, importantly, an order setting aside the Council’s decision and thus the use-only consent itself. Mr Bullock submits both forms of relief are the natural corollary from what has transpired, and are particularly important when the type of error made is, in his submission, fundamentally grave.
[110] A useful starting point is the Supreme Court’s observation in Ririnui v Lancorp Farming Ltd that “…although relief in judicial review is discretionary, courts today will generally consider it appropriate to grant some form of relief where they find reviewable error.”48 In this context, Mr Bullock referred me to an extract from Judicial Review: A New Zealand Perspective, in which the author records that “…if a Tribunal has exceeded its jurisdiction by entering upon a matter over which it has no jurisdiction, then a remedy must be granted”.49
[111] To the extent this suggests that where there is jurisdictional error no discretion on relief exists, I respectfully disagree. However, I accept the thrust of Mr Bullock’s submission, namely that the seriousness of the error involved can and often will be relevant to the exercise of the discretion, for example where the relevant decision
48 Ririnui v Lancorp Farming Limited [2016] NZSC 62, [2016] 1 NZLR 1056 at [112].
49 Graham Taylor, Judicial Review: A New Zealand Perspective (4th Ed, LexisNexis, Wellington 2018) at 198 [5.42].
maker had no power to make the decision in question, versus a relatively minor procedural defect in the decision-making process. As the Court of Appeal stated in Middledorp v Avondale Jockey Club Inc:50
The more fundamental the defect in the decision that is challenged, the more likely it is that relief will be granted. … The factors that may justify a decision to decline relief depend to a significant extent on the nature of the relief sought. If an applicant seeks an order setting aside a decision, delay is likely to be a significant factor, especially where steps have been taken in reliance on the decision. But delay in and of itself is unlikely to be a good reason to decline to grant a declaration recording the lack of authority for the decision, in the absence of any prejudice caused by that delay.
[112] While Fulton Hogan asks the Court to decline both the making of the declaration sought and to set aside the decision to grant the use-only consent, the focus of its submissions was the latter. That focus was correct in my view, as this is an appropriate case in which a declaration ought to be made. The error made by the Council was fundamental, in terms of making a decision that it had no power to make. There is no suggested prejudice to Fulton Hogan from the making of a declaration.
Why Fulton Hogan says I should decline to set aside the use-only consent
[113] Ms Limmer relies on the following matters in support of her submission that I should decline to set aside the Council’s decision to grant the use-only consent:
(a) that the consent (along with the other Quarry consents) was publicly notified, publicly contested, appealed to the Environment Court, mediated with the Environment Court’s assistance, and finally granted three years after application;
(b) SEESAW’s alleged delay in challenging the consent;
(c) suggested prejudice to Fulton Hogan and other third parties;
(d) little or no prejudice to SEESAW or to the environment generally were the consent to remain in effect; and
50 Middeldorp v Avondale Jockey Club Inc [2020] NZCA 13 at [43].
(e) Fulton Hogan and SEESAW’s respective conduct.
Delay and prejudice to Fulton Hogan
[114] It is convenient to deal first with the question of delay, and what is said to be the resulting prejudice to Fulton Hogan. These factors are at the heart of the argument as to whether the decision to grant the use-only consent ought to be set aside.
[115] Ms Limmer submits that that Fulton Hogan’s position has clearly been affected by the passing of time.51 She refers to several authorities where a delay of a matter of months was held to be significant in the context of granting relief.52 She highlights that two and a half years passed before SEESAW challenged the use-only consent, despite the fact the activities of the Quarry were well known in the community for a long time before that.
[116] As to the authorities to which I was referred, I do not find comparisons of delay periods in other cases particularly helpful. Each case is very fact specific. Ultimately, a broad evaluation must be carried out. As summarised in Judicial Review: A New Zealand Perspective:53
The yardstick of reasonableness [of any delay] is not susceptible of a rule based approach but depends on a number of factors including the length of the delay, the reasons for it, the effect of the delay on third parties or on public administration, and any legislative indication of a special need for promptness. Both the seriousness and effects of the illegality are relevant … every case will depend on the individual mix of relevant factors. Of them, the effect of delay on third parties is likely to be critical.
[117] Importantly in my view, Fulton Hogan was on notice as of 20 July 2022 (the date of the Court of Appeal’s judgment in Cloud Ocean) that its use-only consent was amenable to being set aside in judicial review proceedings, if brought. It no doubt drew some comfort from the Council’s Technical Advice Note issued on 19 August 2022. Nevertheless, despite being comforted that the Council itself would take no
51 Speargrass Holdings Ltd v Queenstown Lakes District Council [2018] NZHC 1009, (2018) 20 ELRNZ 645 at [201].
52 Mills v Far North District Council [2018] NZHC 2082, (2018); Vining v Nelson City Council [2000] ELHNZ 472 (HC) at [41]; and Skyline Enterprises Ltd v Queenstown Lakes District Council (2009) 16 ELRNZ 31 (HC).
53 Taylor, above n 49, at [5.36].
action, it remained the position that Fulton Hogan was on notice from this point about the susceptibility of the consent.
[118] Ms Limmer argues that it was entirely reasonable for Fulton Hogan to continue relying on the use-only consent after the Court of Appeal’s decision in Cloud Ocean, including because:
(a) the use-only consent had no link to rr 5.128 and 5.130, which were the dominant and decisive rules in that litigation;
(b) that the Fulton Hogan situation was entirely different to that in Cloud Ocean, including the fulsome consenting process;
(c) the Technical Advice Note communicated the Council’s views;
(d) that Fulton Hogan was taking public steps in the development of the Quarry; and
(e) despite some ongoing community interest and opposition to the Quarry, Fulton Hogan received no indication following release of the Court of Appeal decision in Cloud Ocean that anyone thought the use-only consent was defective.
[119] But these points only take Fulton Hogan so far. Taking the last point first, it is not a question of receiving “no indication” that anyone thought the use-only consent was defective following the release of the Court of Appeal’s decision, given there was a real prospect that the consent was defective because of that decision. Further, and for the reasons outlined in the earlier sections of this judgment, I consider the suggested distinction between the rules in issue in this case and those in issue in Cloud Ocean to be somewhat illusory. Indeed, the Council was clearly of the view that the Court of Appeal’s decision applied equally to the sub-regional rules, given its observation in the Technical Advice Note set out at [45] above.
[120] There is no doubt that following the Court of Appeal’s decision in Cloud Ocean, Fulton Hogan continued to develop the Quarry. There was a passage of some 22 months between that decision and SEESAW’s letter before action sent on 1 May 2024. In the interim, however, I consider it a reasonable inference that Fulton Hogan would have been aware that the Supreme Court had granted leave to appeal in Cloud Ocean (on 17 November 2022), and then was no doubt aware of the Supreme Court’s judgment issued on 20 November 2023. There is no evidence to suggest otherwise. SEESAW was formed reasonably promptly after the Supreme Court’s judgment.
[121] In all these circumstances, I do not consider that delay in and of itself is a proper ground to decline to exercise my discretion to set aside the decision to grant the use-only consent. I do not consider it can be said that SEESAW has “slept on its rights”, or even if one looks past the incorporated entity to at least four of its members (including two of its officers) who were involved in the earlier consenting process, that there was unreasonable delay which would warrant relief being declined. It was not unreasonable, in my view, for a community group such as SEESAW to await the outcome of the Supreme Court appeal in the Cloud Ocean litigation.
[122] Nevertheless, the fact of delay might take on a different complexion if there was real consequential prejudice to Fulton Hogan, which ultimately outweighs the nature of the illegality in this case, and that since July 2022, it has been relying on a consent which it was or ought to have been aware was susceptible to review.
[123] There is no doubt that the use-only consent is of importance to Fulton Hogan and its quarrying operations. Water is, at least presently, crucial to dust suppression at the Quarry. Nevertheless, the evidence advanced on behalf of Fulton Hogan falls well short of suggesting that the Quarry would have to close down were the use-only consent to be set aside. Ms Limmer was quite properly upfront about this, and confirmed that Fulton Hogan did not argue that this would be the case. Rather, Mr Chittock’s evidence is that Fulton Hogan has sought to minimise its reliance on water to the greatest extent it can anyway, explaining that Fulton Hogan has designed the Quarry, and will operate the Quarry, in a way that reduces the need for dust mitigation by limiting the potential for dust emissions. He also explains that a
sustainability and design approach has been applied in the plant design at the Quarry, to reduce dust generation from the crushing and screening plant.
[124] Mr Chittock says that if the use-only consent is set aside, Fulton Hogan would “explore all options in an attempt to maintain a viable quarrying operation at Roydon”. Those options would likely include seeking water transfer from another active legally consented industrial/quarry consent, trucking water in from a lawfully established commercial water source in the Selwyn district, greater use of dust suppressants, and operating the site taking the permitted amount of water per day at the property absent a consent (which is admittedly far too small for Fulton Hogan’s present purposes).
[125] He says, however, that each of these options has its own limitations and complexities, though does not suggest that they would be impossible. In particular, the prospect of the transfer of existing water consents (even with the volume reduced by 50 per cent as required by r 11.5.37 of the LWRP) is not excluded altogether. Mr Chittock also states that “trucking water in is expensive and while potentially feasible over shorter terms as a contingency method, as a long-term proposition it is unlikely to be a commercially viable source of water for the scale of the operation currently designed and constructed”. But he does not give any indication as to what he means by over “shorter terms” (versus a longer term proposition). I mentioned this in the context of the Quarry consents extending to 2056, versus the original take and use consent expiring in 2032.
[126] Mr Chittock goes on to say that “in reality it is likely Fulton Hogan would need to reduce the scale of the operation if [the use-only consent] is set aside and potentially modify its nature to an extraction only quarry — at least in the interim”. Again, his evidence is couched in relatively high level and speculative terms. No details are given as to the extent of any scaling back, or how long any such “interim” arrangement might last.
[127] In terms of financial outlay, there is no doubt that Fulton Hogan has expended significant sums on developing the Quarry. However, the relevance of this is somewhat diminished by the fact that, as noted, there is no suggestion that if the use- only consent is set aside, the Quarry would shut down. Rather, as also just noted, it is
“likely” that Fulton Hogan would need to reduce the scale of the operation and “potentially modify” the nature of the Quarry “at least in the interim”. Further, the financial information before the Court suggests that by the end of May 2022, less than two months before the Court of Appeal’s judgment in Cloud Ocean, only 18 per cent of the Quarry’s build capital budget was contractually committed, and by the time of that Court’s decision, only about three per cent of the budget had been spent.54 It is relevant in my view, that these financial decisions and steps in relation to the Quarry were taken when Fulton Hogan was on notice of the vulnerability of the use-only consent.
[128] Allied to this is what I consider to be a relatively important factor, namely that the original take and use consent expires in 2032, despite the new use-only consent running until 2056. Mr Chittock is quite transparent that Fulton Hogan is alive to the possibility that the original take and use consent will not be renewed in 2032:
The existing water take for Roydon Quarry (CRC182422) expires in November 2032. Fulton Hogan is therefore aware it cannot rely on having water beyond this date. Because of this Fulton Hogan is actively working towards reducing its reliance on the water permit. However Fulton Hogan is not at a point yet where it can let the permit go. It hopes to arrive at that point one day and maybe even before the permit expires, but it is not there yet.
[129] Ms Limmer also confirmed that Fulton Hogan is not waiting until the original take and use consent expires to explore alternative water supplies. Accordingly, while this aspect of Mr Chittock’s evidence is again couched in fairly high-level terms, it seems clear that Fulton Hogan is already actively working to reduce its reliance on the use-only consent. If the use-only consent is set aside, this work will no doubt need to be accelerated, potentially in conjunction with one or more of the alternative options that Mr Chittock discusses and which are summarised at [124] above.
[130] As observed in the authorities and commentary referred to earlier, prejudice to third parties as a result of any delay in bringing a judicial review proceeding can be an important factor when considering relief. Based on the evidence before me, however, I am not satisfied that there is any qualifying prejudice to third parties (that is, parties
54 Fulton Hogan’s evidence does not address the steps, if any, it took to review the position once the Court of Appeal decision had been released, or upon release of the Council’s Technical Advice Note.
other than Fulton Hogan) were the use-only consent to be set aside. Mr Chittock states that:
If we are unable to continue with the project then both Fulton Hogan and our contracting parties are likely to suffer substantial loss. This is likely to have flow-on effects for their businesses and people, their supply chains in the wider community.
[131]He goes on to state:
If the quarry build was to be terminated prior to completed and was unable to operate, the implications would include the local communities that Roydon Quarry would not be able to service or provide aggregates. Over 60% of the demand for aggregates locally is to supply public funded infrastructure (eg roads, motorways, housing, commercial construction).
[132] However, as noted, Fulton Hogan does not suggest that if the use-only consent is set aside, the Quarry would be unable to operate. Rather, Mr Chittock’s evidence is that it would likely need to reduce the scale of its operation and potentially modify its nature, at least in the interim.
[133] Moreover, the overall tenor of Mr Chittock’s evidence is that significant protections have been put in place in its contractual arrangements with third parties, to address the possibility that Fulton Hogan might not be able to fully perform its obligations under those contracts. No details are given, nor any evidence adduced from third party contractors, but if anything, Mr Chittock’s evidence suggests that third party contractors will be financially protected from any reduction in Fulton Hogan’s ability to perform its contractual obligations.
[134] Turning to prejudice to the environment, declining to grant relief would permit Fulton Hogan to continue to take water from a significantly over-allocated Groundwater Allocation Zone for several more years, pursuant to “combined” take and use consents where the use-only aspect has been found to be unlawful. Nevertheless, the effects of the use-only consent were fully considered during the public consenting process, and the annual volumetric limit permitted to be taken is a very small proportion only of the water currently allocated within the relevant Groundwater Allocation Zone. This arguably weighs in favour of exercising my
discretion against granting relief. I am also satisfied that Fulton Hogan conducted itself throughout the consenting process properly and in good faith.
[135] Turning finally to SEESAW’s conduct, Fulton Hogan seeks to characterise the application for judicial review as an improper vehicle to give disgruntled opponents to the Quarry another opportunity to prevent it from operating. While the evidence suggests that SEESAW has purposes broader than simply opposition to the Quarry, I consider it a fair inference that several of SEESAW’s members, including some of its officers, are plainly not in favour of the Quarry and would like to see it shut down. But that is some way removed from conduct which ought to disentitle SEESAW to relief. Many successful applications for judicial review are brought by similar “watchdog” environmental community groups. There is nothing wrong or sinister in some members of the community not favouring activities such as quarrying. Ultimately, I see the argument about SEESAW’s true purpose, and whether it is directed solely at the Quarry, as something of a red herring.
[136] In addition, given the limited resources available to community organisations like SEESAW, I do not consider there to be anything improper in those who were involved in forming SEESAW awaiting the Supreme Court’s decision before embarking on the reasonably significant step of commencing judicial review proceedings in the High Court. Had the Supreme Court upheld the High Court’s decision in Cloud Ocean, there would have been no basis to suggest the use-only consent was unlawful.
[137] Standing back and taking all of these factors into account, I have concluded that it is appropriate to grant the relief sought by SEESAW, including setting aside the Council’s decision to grant the use-only consent. Key factors operating in combination which lead me to this conclusion are the nature of the Council’s error; that Fulton Hogan was on notice as of the Court of Appeal’s decision in Cloud Ocean that its use-only consent was vulnerable; that there is no suggestion that the Quarry will cease to operate if the use-only consent is set aside; and that Fulton Hogan was going to have to confront the prospect of having no groundwater allocation in the reasonably near future in any event.
[138] I record, however, that I have some sympathy with the position in which Fulton Hogan now finds itself. This is particularly so given the detailed and public consenting process that took place, including full consideration of the effects of the use-only consent on the environment. In these circumstances, I consider it is appropriate that the effect of my decision to set aside the consent is deferred for a short time, to enable Fulton Hogan to continue what I expect will have been ongoing consideration of its next steps in the event SEESAW’s application was successful. The setting aside of the Council’s decision to grant the use-only consent will accordingly take effect as of 1 October 2025, being three months after the date of delivery of this judgment.
Result and costs
[139] I have concluded that the Council did not have the power under Section 11 or r 5.6 of the LWRP to grant consent CRC224108. In those circumstances:
(a) I make a declaration to that effect.
(b) Subject to (c) below, the Council’s decision to grant consent CRC224108 is set aside.
(c) The setting aside of the Council’s decision to grant consent CRC22408 takes effect from 1 October 2025.55
[140] SEESAW has been successful on its application for judicial review, and in the ordinary course ought to be awarded costs. If the parties cannot agree costs, SEESAW is to file a costs memorandum within 15 working days of the date of this judgment, and Fulton Hogan is to file a response within a further 10 working days. No memorandum (excluding schedules of costs) is to be longer than five pages in length. Subject to needing to hear further from counsel, I will thereafter determine costs on the papers.
Fitzgerald J
55 See [138] above.
SCHEDULE
| Rule 5.128 | Rule 11.5.33 |
| The taking and use of groundwater is a restricted discretionary activity, provided the following conditions are met: 1. The take is from within a Groundwater Allocation Zone on the Planning Maps; and 2. Unless the proposed take is the replacement of a lawfully established take affected by the provisions of section 124-124C of the RMA, for stream depleting groundwater takes, the take, in addition to all existing consented surface water takes, does not result in any exceedance of any environmental flow and allocation limits set in Sections 6 to 15 for that surface waterbody in accordance with Schedule 9; and 3. Unless the proposed take is the replacement of a lawfully established take affected by the provisions of section 124-124C of the RMA, the seasonal or annual volume of the groundwater take, in addition to all existing consented takes, as determined by the method in Schedule 13 does not exceed the groundwater allocation limits for the relevant Groundwater Allocation Zone in Sections 6 to 15; and 4. Unless the proposed take is the replacement of a lawfully established take affected by the provisions of sections 124-124C of the RMA, the bore interference effects on any groundwater abstraction other than an abstraction by or on behalf of the applicant are acceptable, as determined in accordance with Schedule 12. | The taking and using of surface water from a river, lake or wetland or groundwater within the Selwyn Te Waihora sub-region and including all areas within the Little Rakaia Combined Surface and Groundwater Allocation Zone is a restricted discretionary activity, provided the following conditions are met: 1. The proposed take in combination with all existing resource consented takes, does not result in any exceedance of any of the allocation limits in Table 11(e), 11(f) and 11(g); or 2. The proposed take is the replacement of a lawfully established surface water or groundwater take for which an application to continue the activity has been made under s 124 of the RMA and there is no increase in the proposed rate of take or annual volume; and 3. A surface water take or a groundwater take with a direct or high degree of stream depletion effect greater than 5 L/s determined in accordance with Schedule 9, complies with the minimum flow and restriction regime in Tables 11(c) and 11(d); and 4. Unless it is associated with the artificial opening of a hāpua, lagoon or coastal lake to the sea, the take is not from a wetland or hāpua; and 5. For the renewal of an existing irrigation take the annual volume and maximum rate of take has been calculated in accordance with Schedule 10; and 6. For other takes, despite Policy 4.50(b)(i), an amount of water that is reasonable and demonstrates efficient use of water for the particular end use; and 7. The take is not a surface water or groundwater take with a direct or high degree of stream depletion effect greater than 5 L/s, determined in accordance with Schedule 9, within the Waikekewai Creek and Taumutu Creek catchments; and 8. The bore interference effects are acceptable, as determined in accordance with Schedule 12. |
0
15
1