Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council
[2020] NZHC 3388
•17 December 2020
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2020-463-7
[2020] NZHC 3388
UNDER the Resource Management Act 1991 IN THE MATTER
of an appeal under s 299 of the Resource Management Act 1991
BETWEEN
TE RŪNANGA O NGĀTI AWA
Appellant
AND
BAY OF PLENTY REGIONAL COUNCIL
Respondent
Continued …
Hearing: 27, 28, 29 and 30 July 2020 Appearances:
H Irwin-Easthope and K Tarawhiti for the Appellant in CIV-2020-463-7 and Interested Party in CIV-2020-463-10
J Gardner-Hopkins for the Appellant in CIV-2020-463-10 and First Interested Party in CIV-2020-463-7
M Hill for the First Respondent in both matters
A Green and M Jones for the Second Respondent in CIV-2020-463-10
D Randal, E Bennett and A Garland Duignan for the Applicant for Resource Consents in both matters
R Enright and R Haazan for the Second Interested Party in CIV-2020-463-7
J Pou for the Third Interested Party in CIV-2020-463-7
Judgment:
17 December 2020
JUDGMENT OF GAULT J
This judgment was delivered by me on 17 December 2020 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
…………………………………… Registrar/Deputy Registrar
TE RŪNANGA O NGĀTI AWA v BAY OF PLENTY REGIONAL COUNCIL [2020] NZHC 3388 [17
December 2020]
Continued …
AND CRESWELL NEW ZEALAND LIMITED
Applicant for Resource Consents
ANDSUSTAINABLE OTAKIRI INCORPORATED
First Interested Party
NGĀTI PIKIAO ENVIRONMENTAL
SOCIETY
Second Interested Party / Further AppellantTE RŪNANGA O NGAI TE RANGI IWI
TRUST
Third Interested Party / Further Appellant
CIV-2020-463-10
UNDER the Resource Management Act 1991
IN THE MATTER of an appeal under s 299 of the Resource
Management Act 1991
BETWEENSUSTAINABLE OTAKIRI INCORPORATED
Appellant
AND BAY OF PLENTY REGIONAL COUNCIL
First Respondent
WHAKATĀNE DISTRICT COUNCIL
Second Respondent
AND CRESWELL NEW ZEALAND LIMITED
Applicant for Resource Consents
AND TE RŪNANGA O NGĀTI AWA
Interested Party
TABLE OF CONTENTS
Introduction [1]
Factual background [3]
Creswell’s proposal [8]
Resource consent applications [16]
Appeals to Environment Court [18]
Environment Court decision [23]
End use [24]
Regional consents decision [25]
District consents decision [28]
Approach on appeal [29]
Grounds of appeal
Regional consents [32]
District consents [35]
Issues [36]
Section 301 standing [37]
Scope for SOI to raise end use in its appeal against District consents [48] Consideration of end use – legal principles [56] The Environment Court majority’s consideration of end use in its
Jurisdictional Overview [83]
Regional consent appeals
Consideration of end use for the Regional consents
Further scope issue [88]
The appellants in the Regional consent appeals [91]
Part 2 of the RMA [97]
Did the Environment Court majority err in excluding consideration
of the end use of the water take? [102]
Did the majority err in concluding that the Regional plan addressed
issues relating to the taking of water from aquifers comprehensively? [158] Did the majority err in declining to have recourse to Part 2 of the RMA? [179] Ngāti Pikiao’s rangatiratanga [189]
Conclusion in relation to end use for the Regional consents [205]
Materiality of any errors and relief relating to Regional consents [207]
District consent appeal
Consideration of end use for the District consents [211]
Did the majority conclude, and if so, was it correct to conclude, that it had no jurisdiction to consider the effects of plastic bottles when
assessing the effects of the activities regulated by the District Plan? [213] Did the Environment Court err in determining the activity status was a discretionary “rural processing activity” rather than a non-complying “industrial activity” including “manufacturing”?
The Environment Court majority’s decision on activity status [219]
Discussion [226]
Change of conditions v new consent [248]
Notification [262]
Materiality of any errors and relief relating to District consents [263]
Result [266]
Costs [267]
Introduction
[1] These appeals raise important issues as to the relevance of ‘end use’ in the consideration of effects in the resource consent process under the Resource Management Act 1991 (RMA) – in particular, the relevance of:
(a)the export of bottled water in terms of negative effects on te mauri o te wai and the ability of mana whenua to be kaitiaki, and
(b)the use of plastic bottles.
[2] The appeals concern a proposal to expand an existing spring water extraction and bottling operation near Otakiri. The appeals are against the interim decision of the Environment Court dated 10 December 2019 that applications by Creswell NZ Ltd (Creswell) relating to the taking of groundwater and to vary land use consent conditions can be granted with conditions.1
Factual background
[3] The property at 57 Johnson Road, Otakiri is a 6.27 hectare site located approximately three kilometres southwest of Otakiri and eight kilometres southwest of Edgecumbe in the Whakatāne District of the Bay of Plenty region. The Tarawera River is on the western boundary of the site and the Hallett Drain is on the eastern boundary. The local landscape is characterised by both pastoral and horticultural land uses, as well as several smaller rural-residential lifestyle properties. There is a relatively high level of domestication in this location compared with the western side of the Tarawera River.
[4] A groundwater right was granted in 1979 for kiwifruit irrigation from a 230 metre deep bore established on the site at that time. The water right was modified in 1991 by the Bay of Plenty Regional Council (Regional Council) to allow for a water take for horticulture irrigation (158 m3/day), frost protection (1,580 m3/day) and commercial bottling of water (1,200 m3/day). The current total allowable take of water
1 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019) 21 ELRNZ 539.
is 326,000 m3/year. Previous owners were also granted land use consent in 1991 to establish a water bottling plant at the site.
[5] A business called Kiwi Organics started bottling water on the site in 1994. It was sold to Robertson Industries Ltd in 1996 and on-sold to Otakiri Springs Ltd in 2000. Otakiri Springs Ltd is the current operator of the business.
[6] Creswell is a wholly owned subsidiary of Nongfu Spring Company Ltd, (a company incorporated according to the laws of the People’s Republic of China) which operates a large-scale water bottling and distribution business in China. In 2016 Creswell entered into an agreement to purchase the land and the water extraction and bottling operation at 57 Johnson Road, Otakiri, subject to consents being obtained to allow for expansion.
[7] A new bore was drilled in 2017. It is 228 metres deep. The two consented bores draw water from the Otakiri aquifer in the Awaiti Canal groundwater catchment, which is in the Tarawera Water Management Area. The site otherwise comprises the Otakiri Springs water bottling plant and a kiwifruit orchard.
Creswell’s proposal
[8] Creswell proposes to expand the existing water bottling plant with the construction of a new purpose built production plant alongside the existing plant, which is to be retained. A new 16,800 square metre building with a 12.9 metre high gabled roof running down to a maximum height of 9.4 metres is to be constructed. A truck unloading canopy and container loading area are to be established on the southern side of the new building.
[9] The existing bottling line is to be upgraded from its current maximum capacity of 8,000 bottles per hour to a maximum capacity of 10,000 bottles per hour. The new building will contain a plastic bottle blow moulding plant and two new high-speed bottling lines, each producing 72,000 bottles per hour.
[10] A 30-month construction programme is proposed, including upgrading of Johnson and Hallett Roads, site earthworks and equipment installation.
[11] Internal bottle blow moulding, water bottling and warehousing activity will operate 24 hours per day, seven days per week. No outside activity other than staff car movements is to take place between 10:00 pm and 7:00 am. Outdoor lighting will be required within the site. This will generally be left off with motion sensor activation outside of normal operational hours.
[12] The existing shelter belt that surrounds the site is to be retained and upgraded with replacement and additional planting to provide screening of the buildings. A 2.4 metre high noise barrier fence is to be erected on the southern and eastern side of the site and part of the western side.
[13] A peak daily take of 5,000 m3 of groundwater per day has been applied for, reflecting the capacity of the bottling operation. Daily water take is expected to fluctuate between 1,000 m3 and 5,000 m3/day with an average daily take of 3,000 m3/day. The maximum annual volume of water sought is 1.1 million m3.
[14] The water will be extracted from the new bore drilled in 2017. The bore drilled in 1979 is to be retained as a back-up supply for the plant.
[15] The bottles of water produced will range from 350ml to 2,000ml in both plastic and glass. The intention is to retain the Otakiri Springs brand, and to market it as a premium New Zealand artesian bottled water brand in New Zealand as well as globally.
Resource consent applications
[16] Creswell applied to the Regional Council and to the Whakatāne District Council (District Council) for various consents. The applications to the Regional Council were to take groundwater for the water bottling operation, undertake earthworks, discharge stormwater and treated process wastewater, and discharge treated sanitary wastewater to land. The application to the District Council was to vary the conditions applying to an existing land use consent to allow the expansion of the water bottling plant. New land use consents were also sought for earthworks adjacent to the Tarawera River stopbank and for soil disturbance on an identified contaminated site.
[17] The applications were heard and considered jointly by a panel of two independent Commissioners on behalf of both consent authorities. On 11 June 2019 the Commissioners granted the Regional applications for consent to take groundwater and other associated consents. The Commissioners also granted the District applications for the changes to consent conditions for the existing land use consent and for the new land use consents.
Appeals to Environment Court
[18] Various parties appealed to the Environment Court, including Te Rūnanga o Ngāti Awa (TRONA) and Sustainable Otakiri Incorporated (SOI). Other parties supported TRONA’s appeal in the Environment Court, including Ngāti Pikiao Environmental Society (NPES) and Te Rūnanga o Ngāi Te Rangi Iwi Trust (TRONIT).
[19] TRONA is the post-settlement governance entity, the mandated iwi organisation for the purposes of the Maori Fisheries Act 2004 and the iwi authority for the purposes of the RMA for Ngāti Awa. Ngāti Awa is made up of 22 hapū representatives, who are elected by their hapū every three years. The Ngāti Awa group also includes other groups and entities.
[20] NPES is a recognised iwi authority of Ngāti Pikiao iwi under the Affiliate Te Arawa Iwi and Hapu Claims Settlement Act 2008. The Environment Court granted NPES s 274 status relating (inter alia) to its Te Tiriti o Waitangi / Treaty of Waitangi rights in the Otakiri aquifer.2
[21]TRONIT is an iwi authority of Ngāi Te Rangi.
[22] SOI was formed in July 2018 by residents living near the Otakiri Springs water bottling plant following the release of the Commissioners’ decision to grant consents for the expansion of the plant. Members of SOI include submitters at the first instance council hearings who continued their opposition to the expansion of the water bottling plant through the appeal to the Environment Court by SOI as their successor.
2 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2018] NZEnvC 169.
Environment Court decision
[23] The Environment Court’s interim decision dated 10 December 2019 was a combined decision on both sets of appeals against the Regional and District consents. Judge Kirkpatrick and Commissioner Buchanan issued a majority decision. Commissioner Kernohan issued a minority decision. Insofar as they are relevant to the appeals in this Court, I outline briefly the majority’s conclusions at this stage.
End use
[24] Before addressing the different consents, the majority decision contained a section entitled Jurisdictional Overview, at the conclusion of which it stated:3
[66] We therefore consider that, in this case, the end uses of putting the water in plastic bottles and exporting the bottled water are matters which go beyond the scope of consideration of an application for resource consent to take water from the aquifer under s 104(1)(a) RMA.
Regional consents decision
[25] On the appeals against the Regional Council’s decision to grant the Regional consents, the primary issue was the adverse metaphysical effects resulting from the asserted loss of mauri from the water that is bottled and exported. The majority concluded:4
… there is no loss of mauri from the water as the water remains within the broad global concept of the water cycle and is returned to Papatūānuku irrespective of where it is used.
[26]The majority also found “that the project will not unreasonably prevent the
exercise of kaitiakitanga by Ngāti Awa in its rohe”.5
[27] The majority also concluded that the Regional planning framework addressed issues relating to the taking of water from aquifers comprehensively, and there was no need for recourse to Part 2 of the RMA.
3 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019) 21 ELRNZ 539.
4 At [156].
5 At [158].
District consents decision
[28] On SOI’s appeal against the District Council’s decision, the majority concluded that the proposal is a discretionary “rural processing activity” under the Whakatāne District Plan (District Plan) and was appropriately processed as a variation to existing land use consent conditions under s 127 of the RMA.6 The majority concluded that the adverse effects of the proposal can be mitigated to an acceptable level by the “implementation of a comprehensive suite of consent conditions”,7 with the exception of the effect of truck movements to and from the plant on 58 and 58A Johnson Road where effects may remain moderate after mitigation.8 The majority also concluded that any “[a]dverse effects on rural character and amenity are within appropriate ranges for a rural processing activity in this location”.9
Approach on appeal
[29] This Court’s approach on appeal from a decision of the Environment Court is not in dispute. Appeals such as this are limited to questions of law,10 where the role of the courts of general jurisdiction “is confined to correction of legal error”; “an appellate court whose jurisdiction is limited to matters of law is not authorised under that guise to make factual findings”.11 This was emphasised by the Supreme Court in Bryson v Three Foot Six Ltd, in the employment context where there is a similarly limited appellate jurisdiction. The Supreme Court stated:12
[25] An appeal cannot, however, be said to be on a question of law where the fact-finding Court has merely applied law which it has correctly understood to the facts of an individual case. It is for the Court to weigh the relevant facts in the light of the applicable law. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding Court, unless it is clearly insupportable.
6 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019) 21 ELRNZ 539 at [228], [234] and [320].
7 At [315].
8 At [320].
9 At [320].
10 Resource Management Act 1991, s 299(1).
11 Estate Homes Ltd v Waitakere City Council [2006] 2 NZLR 619 (CA) at [198] (overturned on appeal on other grounds, see Waitakere City Council v Estate Homes Ltd [2006] NZSC 112, [2007] 2 NZLR 149).
12 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.
[26] An ultimate conclusion of a fact-finding body can sometimes be so insupportable – so clearly untenable – as to amount to an error of law; proper application of the law requires a different answer. That will be the position only in the rare case in which there has been, in the well-known words of Lord Radcliffe in Edwards v Bairstow, a state of affairs “in which there is no evidence to support the determination” or “one in which the evidence is inconsistent with and contradictory of the determination” or “one in which the true and only reasonable conclusion contradicts the determination”.13 Lord Radcliffe preferred the last of these three phrases but he said that each propounded the same test…
[30] The early RMA decision of a Full Court of the High Court in Countdown Properties (Northlands) Ltd v Dunedin City Council is often cited as the leading RMA judgment in this context.14 It stated that this Court will interfere with decisions of the Planning Tribunal (now the Environment Court) only if it considers that the Tribunal:15
(a)applied a wrong legal test; or
(b)came to a conclusion without evidence or one to which, on evidence, it could not reasonably have come; or
(c)took into account matters which it should not have taken into account; or
(d)failed to take into account matters which it should have taken into account.
[31] The error of law must also be material to the decision under appeal for relief to be granted.16
Grounds of appeal
Regional consents
[32]TRONA’s appeal raises three main grounds:
13 Edwards v Bairstow [1956] AC 14 (HL) at 36. Lord Radcliffe was adopting dicta of the Lord President (Normand) in Inland Revenue v Fraser [1942] SC 493 at 497 and Lord Cooper in Inland Revenue Commissioners v Toll Property Co Ltd [1952] SC 387 at 393.
14 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC). See also Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271 (HC) at [28]-[32]; and Transpower New Zealand Ltd v Auckland Council [2017] NZHC 281 at [52]-[54].
15 Countdown Properties (Northlands) Ltd v Dunedin City Council at 153.
16 Manos v Waitakere City Council [1996] NZRMA 145 (CA) at 148; and SKP Inc v Auckland Council [2020] NZHC 1390, (2020) 21 ELRNZ 879 at [35].
(a)the Environment Court majority applied an erroneous approach to the consideration of ‘end use’ when assessing Creswell’s resource consent application pursuant to s 104 of the RMA;
(b)the majority erred in concluding that the planning framework addressed issues relating to the taking of water from aquifers comprehensively; and
(c)the majority failed to assess the application under Part 2 of the RMA.
[33] NPES endorses TRONA’s ‘end use’ grounds of appeal. In addition, it raises two other grounds in its further appeal:17
(a)the majority failed to consider relevant Treaty principles, such as rangatiratanga and protection of taonga; and
(b)the majority erred in failing to have recourse to s 8 of the RMA as a mandatory consideration.
[34] TRONIT also endorses TRONA’s grounds of appeal in its further appeal. In submissions it went somewhat further and said that the majority’s findings in relation to cultural effects were wrong and are relevant to its failure to have recourse to Part 2.
District consents
[35]SOI’s appeal raises three grounds:
(a)error in scope and/or jurisdiction, and/or failure to have regard to a relevant consideration relating to end use effects of bottling water in plastic and/or exporting that bottled water offsite/offshore;
17 Mr Enright did not pursue the argument that the Environment Court erred in its interpretation of the 2017 National Policy Statement on Freshwater Management relating to te mana o te wai.
(b)error in determining the activity status as a discretionary rural processing activity rather than a non-complying industrial activity, including a manufacturing activity; and
(c)error in determining the activity was an expansion of an existing activity falling for consideration as a discretionary activity under s 127 of the RMA rather than as a new activity falling for consideration as a non-complying activity under s 88.
Issues
[36] The combination of different resource consents, different appeals and the Environment Court majority’s approach to end use in its Jurisdictional Overview section of its decision makes the structure of this judgment a challenge. I consider the issues to be determined can be merged and addressed as follows.
Jurisdictional issues
(a)Do SOI and TRONA have standing to become a party to each other’s appeal under s 301 of the RMA?
(b)Is there scope for SOI to raise the issue of ‘end use’ in its appeal against the District consents?
Issues relating to the Regional consents
(c)Did the Environment Court majority err in excluding consideration of the end use of the water take?
(d)Did the majority err in concluding that the Regional plans addressed issues relating to the taking of water from aquifers comprehensively?
(e)Did the majority err in declining to have recourse to Part 2 of the RMA? In particular, did the majority err in failing to consider relevant Treaty principles under s 8? This includes reference to the evidence on behalf
of the mandated iwi authority and the planning documents in relation to the status of the mandated iwi authority.
(f)Were any errors of law material?
Issues relating to the District consents
(g)Did the majority conclude, and if so, was it correct to conclude, that it had no jurisdiction to consider the effects of plastic bottles when assessing the effects of the activities regulated by the District Plan?
(h)Did the Environment Court err in determining the activity status was a discretionary “rural processing activity” rather than a non-complying “industrial activity” including “manufacturing”?
(i)Did the Environment Court err in determining that the activity was an expansion of an existing activity falling for consideration as a discretionary activity under s 127 of the RMA rather than as a new activity falling for consideration as a non-complying activity under s 88?
(j)Should the application have been publicly notified?
(k)Were any errors of law material?
Section 301 standing
[37] The preliminary issue as to whether SOI and TRONA have standing to become a party to each other’s appeal under s 301 of the RMA was of concern to the respondents and Creswell given SOI’s wish to be heard in relation to the end use issue. This lost practical significance because standing was not determined as a preliminary issue, SOI limited its end use submissions to the plastic bottles issue arising in the District consents appeal and counsel were able to order their submissions by agreement (albeit the appeals in the two proceedings in this Court were heard sequentially rather than together).
[38] Nevertheless, the respondents maintained that as a matter of principle a person can only join an appeal in this Court if it was a party in the Environment Court. This principle of standing is reflected in s 301 which allows a “party to any proceedings or any person who appeared before the Environment Court” to give notice of intention to appear in this Court.18 This principle was not disputed by the appellants. Nor was the fact that SOI had filed an appeal against the Regional consents in the Environment Court, which TRONA joined, but SOI subsequently withdrew that appeal. Once SOI did so, it was no longer a party in relation to the Regional consents appeal in the Environment Court, and TRONA could no longer be a party to that appeal.
[39] But Mr Gardner-Hopkins, for SOI, submitted that SOI did appear before the Environment Court. He submitted that in part the appeals in the Environment Court were heard together, with Creswell opening on both appeals at the start and common witnesses were only called once. Ms Irwin-Easthope, for TRONA, adopted this submission. The transcript indicates that following Creswell’s evidence (except for its tikanga expert) the Regional Council opened and called its witnesses. On the third day and the fourth morning, the hearing took place at a marae beginning with Creswell’s expert, followed by Ms Vercoe (a s 274 party), TRONA’s case, Mr O’Brien (another s 274 party) before submissions for TRONIT and NPES. After the Court conducted a site visit, the hearing resumed at the courthouse with lay witnesses from SOI that afternoon and then the District Council’s case and SOI’s (remaining) case on the final day.
[40] Ms Hill, for the Regional Council, submitted that in the Environment Court the Regional and District consent appeals were separate proceedings and were essentially heard sequentially. She submitted that, as a matter of jurisdiction, on appeal from a decision of a local authority, the Environment Court has the same powers as the local authority,19 and it follows that the Environment Court when considering an appeal against a regional consent, would be ultra vires its powers to address matters relating to a consent granted by a district council, and vice versa.
18 Nothing turns on the distinction between a “party” or “person who appeared before the Environment Court”, which appears to be a hangover from the pre-2003 distinction between parties and those who could appear pursuant to s 274.
19 Resource Management Act 1991, s 290.
[41] Mr Green, for the District Council, submitted that the attempts by SOI and TRONA to utilise s 301 of the RMA to join each other’s appeals without standing were procedurally incorrect and inconsistent with the framework of the RMA for managing participation in appeals.
[42] In principle, as a matter of jurisdiction, I consider that the s 301 standing requirement to join an appeal in this Court is that the person appeared before the Environment Court in the proceeding relating to the same consent(s).
[43] Here, I accept the Environment Court adopted a flexible hearing procedure that to some extent combined the appeals, partly hearing them together and partly in sequence and issuing a combined judgment. The background was that the two consent authorities had recognised that the proposal required integrated consideration and had appointed hearing commissioners to make a joint decision. There were nevertheless two separate sets of appeals. The Environment Court said “the procedural requirements for the appeals [did] not result in a split in the consideration of the proposal”.20 Bundling the applications together was appropriate.
[44] Accepting that in the Environment Court the two appeals were, in part, heard together does not mean the parties to one appeal appeared in the other. Nor does the combined judgment. I see an analogy with the distinction between hearing proceedings together and consolidation. Only the latter formally merges the proceedings.
[45] I consider that s 301 does not enable parties in one Environment Court proceeding to become a party in an appeal in relation to the other Environment Court proceeding. Here, this applies to SOI and TRONA (and to the District Council, which also filed – but did not pursue – a notice of opposition claiming to be a s 301 party in the TRONA appeal).
[46] Therefore, SOI and TRONA do not have standing to become a party to each other’s appeal under s 301 of the RMA. They could have applied for leave to join the
20 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019) 21 ELRNZ 539 at [232].
other appeal instead of relying on s 301 but, as indicated, their wish to be heard was addressed in a practical way.
[47] I deal with the separate effect of the Environment Court’s combined judgment next.
Scope for SOI to raise end use in its appeal against District consents
[48] The second preliminary issue is one of scope – whether SOI can raise the issue of end use in its appeal against the District consents. This relates to the end use of plastic bottles. Mr Green submitted that the scope of SOI’s appeal is limited to its case as argued before the Environment Court and alleged errors of law arising. He submitted the end use effects of plastic water bottling did not form a part of SOI’s appeal or its case before the Environment Court. This is highlighted by the lack of evidence put before the Court on such effects, which were not topics identified for expert conferencing. Mr Green submitted it approaches an abuse of process for SOI now to seek to place the District Council in the position of respondent to these issues on appeal to this Court.
[49] Mr Gardner-Hopkins did not suggest that SOI had argued the end use effects of plastic water bottling in the Environment Court. He said that two SOI witnesses referred in passing to plastic bottles, but it was common ground that the issue of the impact of plastic bottles only emerged in the hearing – initiated it seems by Commissioner Kernohan. As Mr Randal, for Creswell, submitted, that may have been one of the reasons why the majority addressed it in a Jurisdictional Overview. Mr Randal accepted that I should address the alleged error in relation to the end use effects of plastic water bottling, but submitted the scope of SOI’s appeal to the Environment Court is relevant to the issue of relief.
[50] I accept Mr Green’s submission that the scope of SOI’s appeal is limited to its case as argued before the Environment Court and alleged errors of law arising. Here, the end use effects of plastic water bottling was not argued by SOI in the Environment Court. A party cannot ordinarily raise a new argument on appeal that was not pursued in the court below. If the majority had declined to address it on the basis it was not part of the appeal, the appellants could not have raised it on a further appeal absent
exceptional circumstances.21 But, as Mr Green acknowledged, a party can appeal in relation to an alleged error of law arising from the decision. If a court addresses an argument that was not raised, I consider that a party is not precluded from appealing against the court’s finding merely because it did not argue the point in the court below. That would deny an appeal where a court strays beyond the arguments presented to it.
[51] Here, the majority did address the relevance of the end use effects of plastic bottles, in its Jurisdictional Overview, and Mr Gardner-Hopkins submitted the issue was relevant to the District consents because the Environment Court majority had issued a single decision for both sets of appeals in which it addressed end use as a scope or jurisdiction issue relating to both Regional and District consent appeals.
[52] Whether SOI can pursue the alleged error relating to the end use effects of plastic bottles in its appeal against the District consents therefore depends on whether the alleged error arises from the Environment Court’s decision on the District consents appeal. This requires analysis of the majority’s combined judgment and the relationship between its Jurisdictional Overview and the subsequent District consent part of its judgment.
[53] The majority’s Jurisdictional Overview dealt with both end use issues; that is the use of plastic bottles and the export of bottled water.22 The majority then proceeded to address the Regional and District consents separately. The majority made no further reference to the effects of use of plastic bottles – either in the part of its judgment dealing with the Regional consents or the part dealing with the District condition variations and consents.
[54] Despite the final sentence of the Jurisdictional Overview referring only to the application for resource consent to take water from the aquifer, reading the Jurisdictional Overview as a whole I consider the majority was addressing end use in relation to both the District and Regional consents. The following indicators in the majority decision are more consistent with that conclusion: the opening reference in
21 Wymondley Against the Motorway Action Group Inc v Transit New Zealand [2004] NZRMA 162 (HC) at [10].
22 Quoted at [87] below.
the Jurisdictional Overview to both sets of applications;23 the subsequent statement when dealing with the District consents that the principal activity is the extraction of the water;24 and the fact that the sections dealing specifically with the District consents made no further reference to the effects of the use of plastic bottles. Given the combined nature of the majority’s Jurisdictional Overview section, and the lack of any subsequent reference to the effects of plastic bottles, I do not consider the alleged error as to the relevance of the end use effects of plastic bottles can be said to arise only in relation to the Regional consent appeals. For scope purposes, I consider that I should treat the alleged error of law relating to use of plastic bottles as arising from the Environment Court’s decision in relation to the District and Regional consents. SOI is not precluded from relying on the alleged error in relation to its appeal.
[55] Since the impact of plastic bottles was not part of SOI’s case before the Environment Court, if an error of law did arise it will still be necessary to consider what, if any, relief should be granted.
Consideration of end use – legal principles
[56] Before addressing the end use issues in relation to the consents, I deal with the legal principles relevant to consideration of end use in the context of resource consent decisions under the RMA. At least by the end of the hearing, the differences between the parties related more to the application of the legal principles by the Environment Court majority than to the principles themselves, but it remains necessary to address the relevant RMA provisions and authorities.
[57] The starting point is that, subject to Part 2 of the RMA (to which I will return), s 104(1)(a) requires a consent authority to have regard to “any actual and potential effects on the environment of allowing the activity”.
[58]“Effect” is defined broadly:25
In this Act, unless the context otherwise requires, the term effect … includes—
23 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019) 21 ELRNZ 539 at [32].
24 At [226].
25 Resource Management 1991, s 3.
(a)any positive or adverse effect; and
(b)any temporary or permanent effect; and
(c)any past, present, or future effect; and
(d)any cumulative effect which arises over time or in combination with other effects—
regardless of the scale, intensity, duration, or frequency of the effect, and also includes—
(e)any potential effect of high probability; and
(f)any potential effect of low probability which has a high potential impact.
[59]“Environment” is also broadly defined to include:26
(a)ecosystems and their constituent parts, including people and communities; and
(b)all natural and physical resources; and
(c)amenity values; and
(d)the social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) of this definition or which are affected by those matters.
[60]As indicated, the relevant effects are those “of allowing the activity”.
[61] Having considered the statutory context, the Environment Court’s majority judgment referred to Gilmore v National Water & Soil Conservation Authority, concerning the Clyde Dam, where Casey J held that the end use of electricity from the dam for a proposed aluminium smelter could be highly relevant.27 As the majority noted, this case was under the earlier Water and Soil Conservation Act 1967.28 It therefore does not address the issue in the current RMA statutory context.
26 Resource Management Act 1991, s 2.
27 Gilmore v National Water & Soil Conservation Authority (1982) 8 NZTPA 298 (HC).
28 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019) 21 ELRNZ 539 at [43]-[45].
[62] The majority said the Environment Court’s leading case on the consideration of end use under the RMA is Beadle v Minister of Corrections – the Ngawha Prison case – where the Environment Court said:29
[88] From reviewing all those cases, we discern a general thrust towards having regard to the consequential effects of granting resource consents, particularly if they are environmental effects for which there is no other forum, but with limits of nexus and remoteness. Of course the weight to be placed on them has to be case-specific. Lee’s case is a reminder that a decision-maker should not have regard to matters extraneous to the Act; Ngati Rauhoto that an appeal on one topic cannot be turned into an appeal on another; and Cayford that consequential effects may be too slightly connected to the consent sought, and too remote.
(footnotes omitted)
[63] In that case, the relevant end use effects in issue were the stigma of Ngawha Springs as a prison town, and risks of harm from escaping inmates. The Environment Court held:30
… that in deciding the resource consent applications we are able to have regard to the intended end-use of a corrections facility, and any consequential effects on the environment that might have, if not too uncertain or remote. But we will also need to bear in mind the nature of the consents sought, to avoid turning proceedings about earthworks and streamworks into appeals about use of land for the facility.
[64] Returning to the majority’s judgment in this case, it next considered the Environment Court decision in Cayford v Waikato Regional Council,31 which the majority said was of particular relevance.32 In Cayford, the Court was considering appeals against a consent to take and treat water from the Waikato River and pipe it to augment municipal supply in Auckland. The Court stated that “the language of s 104(1)(a) indicates that it is the effects on the environment of allowing the activity which are to be had in regard”.33 After reviewing other decisions, the Court said:34
… it may be discerned that regard is to be had to direct effects of exercising the resource consent which are inevitable or reasonably foreseeable, and also to effects of other activities that would inevitably follow from the granting of
29 Beadle v Minister of Corrections EnvC Wellington A074/2002, 8 April 2002.
30 At [91].
31 Cayford v Waikato Regional Council EnvC Auckland A127/98, 23 October 1998.
32 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019) 21 ELRNZ 539 at [47].
33 Cayford v Waikato Regional Council at 8.
34 At 10.
consent, but that regard is not to be had to effects which are independent of the activity authorised by the resource consent.
[65] In relation to the quality of the treated water and its suitability for various purposes, the Court in Cayford concluded that:35
Adverse effects are possible, but by no means inevitable, or even reasonably foreseeable; and they are independent of the activity of taking the water from the Waikato River. Following and applying the approach taken by the Planning Tribunal and the Environment Court in the decisions referred to, we find that potential effects of the use of the water to be taken due to contaminants in the water are not adverse effects on the environment of allowing the activity. We hold that section 104(1)(a) does not require a consent authority to have regard to them.
[66] The majority in this case also considered that Aquamarine Ltd v Southland Regional Council was particularly relevant.36 There, when assessing a proposal to export fresh water (coming from the tailrace of the Manapouri Power Station) from the surface of Deep Cove at Doubtful Sound, the Environment Court held that effects of the passage of tankers along Doubtful Sound and the potential for discharges into the costal marine area were reasonably foreseeable effects and so were relevant considerations.
[67] The majority then referred to the Buller Coal cases.37 Those cases involved s 104E, which prevents a consent authority from having regard to the effects of a discharge into air of greenhouse gases on climate change,38 but they nevertheless contain discussions of the issue of end use more generally. Section 104E was inserted on 2 March 2004 by s 7 of the Resource Management (Energy and Climate Change) Amendment Act 2004 (2004 Amendment Act).
[68] In Royal Forest and Bird Protection Soc of NZ Inc v Buller Coal Ltd in this Court, Whata J concluded that the assessment of effects under s 104(1)(a) in that case did not include consideration of the effects on climate change of the discharge of
35 Cayford v Waikato Regional Council EnvC Auckland A127/98, 23 October 1998 at 12.
36 Aquamarine Ltd v Southland Regional Council (1996) 2 ELRNZ 361 (EnvC) at 366-367.
37 Royal Forest and Bird Protection Soc of NZ Inc v Buller Coal Ltd [2012] NZHC 2156, (2012) 17 ELRNZ 220; and West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 87, [2014] 1 NZLR 32.
38 Section 104E is being repealed with effect from 2021; see Resource Management Amendment Act 2020, s 35.
greenhouse gases from the end use of coal. Aside from s 104E and the RMA’s regulation of discharges, Whata J’s reasons included focus on s 104(1)(a):39
… jurisdiction under s 104(l)(a) is expressed to be limited to assessing the actual and potential effects of “allowing the activity”, in this case coal extraction. Taken literally, industrial discharges of contaminants, including greenhouse gases to air caused by the end use of coal, will not be allowed by the grant of the land use consent. Those discharges will either need to be allowed by an environmental standard, a regional plan rule or by separate air discharge resource consent. The effects of those discharges in New Zealand therefore are presumptively irrelevant to the s 104(1)(a) assessment of the application to extract coal, unless that extraction involves a discharge.
(footnote omitted)
[69] Whata J then noted “that it is common for consent authorities to take into account the effects of downstream activities, for example increased vehicle traffic and associated pollution arising from allowing a development”, but “[t]his type of diffuse or non-point pollution is not normally amenable to regulation by way of air discharge consenting”.40
[70] In relation to overseas discharges, Whata J noted s 7(i) in relation to climate change and that an interpretation “that best secures sustainable management would presumptively favour, in the unusual circumstances of [that] case, assessment of those effects under s 104(l)(a)”,41 but then said:
[52] The short answer might be that such effects are simply too remote. But there is a more fundamental objection. The central question remains whether the discharges and their effects are subject to the jurisdiction of a local authority. The starting point must be s 15, as this section controls the need or otherwise to obtain consent. Given that s 15 cannot apply outside of New Zealand’s territorial boundary, there is no remit to require consent for overseas discharges…
[71] Before leaving overseas discharges, Whata J made an observation that Ms Irwin-Easthope relied on:
[54] It is apt to record that I am not suggesting that the effects of an activity, located within New Zealand, that extend beyond New Zealand’s territorial boundary are not capable of assessment. That is simply an issue of scale, not jurisdiction or justiciability.
39 Royal Forest and Bird Protection Soc of NZ Inc v Buller Coal Ltd [2012] NZHC 2156, (2012) 17 ELRNZ 220 at [42].
40 At [43].
41 At [51].
[72] In context, I consider this refers to effects of activities in New Zealand that extend beyond the territorial boundary but are not too remote.
[73] On appeal, the case went directly to the Supreme Court.42 The majority dismissed the appeal in a judgment given by William Young J. In the section of the judgment dealing with the position as it was prior to the 2004 Amendment Act, including s 104E, William Young J assessed the issue in light of the following considerations:43
(a)the climate change effects relied on would not result directly from the activity for which consent was sought (the mining of coal) but rather from consequential but independent activities (the burning of coal);
(b)the coal [was] to be burnt overseas; and
(c)the probable impossibility of showing perceptible climate change effects resulting from the burning of coal from a single mine.
[74] In relation to the first consideration of indirectness, William Young J referred to Whata J’s conclusion that the relevant effects are direct consequences of burning coal, rather than mining it, and stated:44
So there would always have been scope for argument that the climate change effects relied on by the appellant were too remote from the activities for which consents were sought to fall within the scope of s 104(1)(a).
[75] William Young J said the indirectness argument could be taken further in that case because mining was a restricted discretionary activity so the issue only arose in relation to ancillary activities such as roading. William Young J then said:
[119] We accept that effects on the environment of activities which are consequential on allowing the activity for which consent is sought have sometimes been taken into account by consent authorities. This is particularly so in respect of consequential activities which are not directly the subject of control under the RMA. But questions of fact and degree are likely to arise as is apparent from the judgment of the Environment Court in Beadle v Minister of Corrections.45
42 West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 87, [2014] 1 NZLR 32.
43 At [116].
44 At [117].
45 Beadle v Minister of Corrections EnvC Wellington A074/2002, 8 April 2002.
[76]As to the burning of coal overseas, William Young J said:
[120] The fact that the coal will be burnt overseas raises an issue which in a sense is a subset of the point just discussed. As to this, we simply note the remarks made by Whata J to which we have already referred at [111] and which would have been applicable to the situation as it was before the 2004 Amendment Act.
[77] In relation to the third consideration, tangibility, William Young J noted this is applicable to any climate argument.46 It would involve consideration of “whether restricting New Zealand’s coal output would make any appreciable difference to the worldwide use of coal” and, “in any event, it would be difficult, and probably impossible, to show that the burning of coal would have any perceptible effect on climate change”.47 William Young J noted these arguments had received some acceptance in New Zealand and Australia but have not always prevailed in overseas jurisdictions.48 He said that “resolution would have involved, inter alia, consideration of the s 3 definition of “effect” which includes ‘any cumulative effect which arises over time or in combination with other effects’”.49
[78] The Supreme Court was not required to determine the result as it would have been prior to the 2004 Amendment Act – the relevance was to ascertain the perception of the drafters in order to interpret the amendment. In that context, after having considered the amendment and a number of example consent scenarios, William Young J concluded:
[168] Given the examples we have provided, the most likely explanation for the form of the 2004 Amendment Act is that those responsible for its drafting assumed the climate change arguments could only be advanced in relation to rules and consents involving direct discharges. In other words, the drafters did not envision that those same arguments could be made in relation to rules and consents relating to activities which indirectly result in, or facilitate the discharge of greenhouse gases. For the reasons given, such an assumption would have been very reasonable.
[169] All the examples provided show that a literal interpretation of s 104(1)(a) would produce anomalous outcomes. In examples one, two and three, the literal approach would allow arguments which are off limits in relation to the issues to which they are most closely related (namely, discharges to air) to come in, by the backdoor, in respect of ancillary issues
46 West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 87, [2014] 1 NZLR 32 at [121].
47 At [122].
48 At [123].
49 At [124].
(such as land use, roading and the like). At least in relation to such circumstances, this would subvert the scheme of the legislation which leaves climate change effects to the national government and would thus deprive s 104E of practical effect.
…
[172] In light of the examples just discussed and our discussion of the scheme and purpose of the relevant provisions of the RMA and their legislative history, we are satisfied that in s 104(1)(a), the words “actual or potential effects on the environment” in relation to an activity which is under consideration by a local authority do not extend to the impact on climate change of the discharge into air of greenhouse gases that result indirectly from that activity.
[79] Elias CJ dissented. She considered there was nothing in s 104(1)(a) to exclude consideration of the effect of the end use of coal, that the effects were not too remote and that the issue of weight was a matter for the decision-maker.50
[80] Ms Irwin-Easthope submitted that the Supreme Court judgments were of particular assistance, noting that s 104E is to be repealed from 31 December 2021 following the recent enactment of the Resource Management Amendment Act 2020, and that the case involved an application for a declaration. While that procedure sought to address the scope of effects in advance of assessment of the consents, I do not consider it alters the substance of the scope issue in a way that distinguishes the legal approach.
[81] Returning to the Environment Court majority’s judgment in this case, having reviewed the authorities, the majority’s analysis of the legal principles stated:51
[59] Applying the guidance from those decisions, we must have regard to the consequential effects of granting the resource consents sought, or the amendments sought to conditions, within the ambit of the RMA and subject to limits of nexus and remoteness.
[60] The ambit of the RMA in the context of considering an application for resource consent under s 104(1)(a) requires consideration of an effect of allowing the activity. It does not extend as far as considering any effect on the environment which, given the broad inclusive definitions of those words, might be anything at all. There must be a causal relationship between allowing the activity and the effect: if an effect would occur unchanged regardless of whether the activity was allowed or not, then such an effect would not be
50 West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 87, [2014] 1 NZLR 32 at [72], [87] and [94].
51 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019) 21 ELRNZ 539.
within the scope of s 104(1)(a) of the RMA. If the extent or degree of such an effect would be altered by allowing or refusing the activity, then that effect would be relevant at least in terms of that change but its nexus and remoteness would need to be assessed.
[61] Nexus here refers to the degree of connection between the activity and the effect, while remoteness refers to the proximity of such connection, both being considered in terms of causal legal relationships rather than simply in physical terms. Experience indicates that these assessments are likely to be in terms of factors of degree rather than of absolute criteria and so be matters of weight rather than intrinsically dispositive of any decision. Matters that are de minimis are of course excluded.52
[62] The purpose and principles set out in pt 2 of the RMA are matters to which any consideration under s 104 is subject. The effect of being subject to pt 2 is that any conflict between that consideration and a provision in pt 2 must be resolved in favour of the latter provision.53 That does not make pt 2 a law unto itself: s 5 is not intended to be an operative provision under which particular planning decisions are made and the specific jurisdictional framework of the rest of the RMA and the policy framework of the planning documents under it are not to be circumvented by resort to pt 2 generally.54 In considering an application under s 104 of the RMA, there must be a fair appraisal of the relevant objectives and policies read as a whole. Reference to pt 2 should not result in the policy statement or plan provisions being considered only for the purpose of putting them on one side or otherwise subverted. If a plan has been competently prepared under the RMA, then there may be no need to refer to pt 2 because doing so will not add anything to the evaluative exercise, but if in doubt then such reference will be appropriate and necessary.55
[82] As indicated, there was ultimately little issue taken with this summary of the legal principles. Following my review of the authorities, I do not discern any error. Limitations of nexus and remoteness must apply when assessing which effects on the environment of allowing the activity are relevant under s 104(1). It was common ground that the two concepts of nexus and remoteness are separate albeit there is some overlap. The complexity lies in the application of these concepts of nexus and remoteness in a case such as this – which I will address in the context of the different Regional and District consents.
52 Bayley v Manukau City Council [1999] 1 NZLR 568 (CA) at 576; and Westfield (NZ) Ltd and Northcote Mainstreet Inc v North Shore City Council [2005] NZSC 17, [2005] 2 NZLR 597.
53 Environmental Defence Society Inc v Mangonui County Council [1989] 3 NZLR 257 (CA).
54 Environmental Defence Society v New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593 at [21]-[30], [84]-[91], [130] and [150]-[151].
55 RJ Davidson Family Trust v Marlborough District Council [2018] NZCA 316, [2018] 3 NZLR 283 at [71]-[76].
The Environment Court majority’s consideration of end use in its Jurisdictional Overview
[83] The majority’s decision, in its Jurisdictional Overview, addressed what it described as an issue:56
… as to the scope of the consideration required or allowed under s 104(1)(a) of the RMA in regard to any actual and potential effects on the environment of allowing the activities for which resource consents have been sought.
[84]The Environment Court described the issue as:57
… whether, and if so to what extent, a consent authority or, on appeal, the Court, should or may consider matters beyond the particular activity for which consent is sought and take into consideration the end use of whatever may be produced by that activity or the effects of other activities for which consent is not required.
[85] The majority referred to TRONA’s case against the water take (the application being “for too much water to be sold too far away”) and said that none of the other parties raised the issue of end use in their openings arguments. After referring to the responses for the Regional Council and Creswell, the majority said:
[40] The Court is aware that there is growing public concern and increasing political debate about the issues relating to commercial interests, particularly foreign-owned companies, exporting high quality freshwater from New Zealand without having to pay royalties or other charges to do so. There is also increasing concern about the use of plastics in packaging and containers, especially where such plastic products are designed to be for a single use and not recyclable, or where opportunities for and the practice of recycling are limited, leading to significant volumes of long-lasting waste. There is also an ongoing public discussion about the rights and interests of Māori in water separate from or beyond the issues that arise from consideration of pt 2 of the RMA although, as noted, counsel for the Rūnanga did not advance such matters in presenting her client's case before us. These matters all raise important issues, but the undoubted importance of these issues does not, by itself, confer jurisdiction on the Court.
[86] In considering whether the end use of exporting water in plastic bottles results in relevant effects on the environment to which regard should be had in these proceedings, the majority started with the definitions of the terms ‘environment’ and
56 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019) 21 ELRNZ 539 at [34].
57 At [34].
‘effect’ and then proceeded with its analysis of the legal principles (addressed above in the previous section of this judgment).
[87] When it came to applying those principles, the majority said in the concluding paragraphs of its Jurisdictional Overview:
[64] The end uses of the water, once taken, involve putting the water in plastic bottles, exporting the bottled water and consumption of it by people outside New Zealand. The end uses are ancillary activities which are not controlled under the regional plan. There is no suggestion that control of such activities comes within the ambit of the functions of the regional council under s 30 of the RMA. We are not aware of any direct control of such activities by other legislation and accordingly proceed on the basis that such activities are lawful. While such end uses are foreseeable, and while the effects on the environment of using plastic bottles and exporting water may well be adverse, refusing consent to the taking of water in this case will have no effect on all other instances where plastic bottles are used in New Zealand or where water is exported, whether in its natural form or as a component of other exports. We do not have specific evidence on the relative quantities involved, but as far as we understand the position, the scale of the proposed operation in this case would be a small component of the total bottling and export activities in New Zealand.
[65] For the purposes of our analysis we accept that the water would not be taken if it could not be bottled, and the proposed volume would not be taken if it could not be exported. Even on that basis, we do not think that on an appeal in relation to a particular proposal to take water we can, by our decision, effectively prohibit either using plastic bottles or exporting bottled water. Such controls would require direct legislative intervention at a national level.
[66] We therefore consider that, in this case, the end uses of putting the water in plastic bottles and exporting the bottled water are matters which go beyond the scope of consideration of an application for resource consent to take water from the aquifer under s 104(1)(a) of the RMA.
Regional consent appeals
Consideration of end use for the Regional consents
Further scope issue
[88] Although not pursued as a matter of jurisdiction or scope in the same way as the challenge to SOI’s right to raise the impact of plastic bottles in its appeal, Creswell and the Regional Council submitted that the impact of plastic bottles was not part of TRONA’s appeal to the Environment Court and only arose at the hearing through questioning of Commissioner Kernohan. They characterise the majority’s decision in
this respect as a response to Commissioner Kernohan’s minority view. Mr Randal submitted that the focus on plastic waste in the current appeals is opportunistic, and that counsel for TRONA seeks to place the onus for raising the issue on the Environment Court and then complain that the majority erred in not pursuing further lines of questioning. TRONA’s response was that when viewed through the lens of being a kaitiaki, the impact of plastic bottles affects the exercise of kaitiakitanga and is squarely a regional matter and was tested in the evidence through questioning of TRONA’s witnesses.
[89] As indicated above in relation to the scope of SOI’s appeal, the scope of appeal is limited to an appellant’s case as argued before the Environment Court and alleged errors of law arising. TRONA’s case clearly included tikanga effects – metaphysical effects on the mauri of the wai and, to some extent, the mana of the wai. I accept Ngāti Awa’s role as kaitiaki. But the impact of plastic bottles was not part of TRONA’s case as argued before the Environment Court, just as it was not part of SOI’s case. Even so, the alleged error of law arises from the majority’s decision in relation to the Regional appeals unless it could be said that reference to the impact of plastic bottles was only in relation to the District appeal. As concluded earlier, given the combined nature of the majority’s Jurisdictional Overview section and the lack of any subsequent reference to plastic bottles, I consider the alleged error as to the relevance of the effects of using plastic bottles arises in relation to both the District and Regional appeals. It is particularly evident that the issue arose in the Regional appeals as TRONA’s witnesses faced questions about the impact of plastic bottles at least from Commissioner Kernohan. I consider the alleged error of law relating to use of plastic bottles arises from the Environment Court’s decision in relation to the Regional consents. Therefore, the alleged errors of law concerning the impact of plastic bottles are not outside the scope of TRONA’s appeal.
[90] Since the impact of plastic bottles was not part of TRONA’s case, if an error of law did arise it will still be necessary to consider what, if any, relief should be granted.
The appellants in the Regional consent appeals
[91] It is now necessary to say something more about the appellants in the Regional consent appeals.
[92] It is common ground that TRONA, representing Ngāti Awa as kaitiakitanga, is the primary appellant in the Regional appeals. Ngāti Awa are an iwi of the Mataatua waka and are the primary kaitiaki of the relevant wai, taken from the Otakiri aquifer, within the Awaiti Canal catchment. The Mataatua Declaration supports Ngāti Awa’s relationship with the wai and the kaitiaki responsibility to protect it and share it with Aotearoa. It is not disputed that water is a taonga. Otakiri is an area of particular significance to the Ngāti Awa hapū of Te Tawera.
[93] NPES representing Ngāti Pikiao – Te Arawa waka – was granted s 274 status, as indicated, relating (inter alia) to its Te Tiriti o Waitangi / Treaty of Waitangi rights in the Otakiri aquifer. Ngāti Pikiao defers to Ngāti Awa but this does not detract from its Treaty rights. It adopts a layers of interest approach.58
[94]TRONIT representing Ngāi Te Rangi is also a member of Te Hono a Mataatua
– The Mataatua Assembly – and have a whakapapa that converges with that of Ngāti
Awa. The Mataatua is the waka that brought both iwi to Aotearoa.
[95] Whakapapa is a key starting point for the relationship between the iwi appellants and the aquifer.59
[96]Before turning to the specific grounds of appeal, I make two other points.
58 Ngāti Whātua Ōrākei Whai Maia Ltd v Auckland Council [2019] NZEnvc 184, (2019) 21 ELRNZ 447 at [73], ]74] and [84]. Allowing the appeal in part, this Court recently confirmed that the Environment Court may need to adjudicate on divergent iwi claims: Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768 at [67]-[74], [102], [112] and [135].
59 New Zealand Maori Council v Attorney-General [2013] NZSC 6, [2013] 3 NZLR 31 at [10], quoting Waitangi Tribunal The Stage 1 Report on the National Freshwater and Geothermal Resources Claim (Wai 2358, 2012) at [2.8.3(1)].
Part 2 of the RMA
[97] First, I refer to the relevant provisions of Part 2 of the RMA, which Ms Irwin- Easthope submitted are central to all of Ngāti Awa’s appeal grounds. Adopting Williams J’s extra-judicial description, she referred to them as “multi-dimensional Māori provisions” that operate as a safety net for Māori rights.60
[98] Ms Irwin-Easthope emphasised the requirements in Part 2 to take Māori issues into account, referring to ss 6(e), 7(a) and 8. Together with s 5, those provisions may be summarised by reference to the judgment of the Privy Council in McGuire v Hastings District Council:61
[21] Section 5(1) of the RMA declares that the purpose of the Act is to promote the sustainable management of natural and physical resources. But this does not mean that the Act is concerned only with economic considerations. Far from that, it contains many provisions about the protection of the environment, social and cultural wellbeing, heritage sites, and similar matters. The Act has a single broad purpose. Nonetheless, in achieving it, all the authorities concerned are bound by certain requirements and these include particular sensitivity to Māori issues. By s 6, in achieving the purpose of the Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for various matters of national importance, including “(e) The relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu [sacred places], and other taonga [treasures]”. By s 7 particular regard is to be had to a list of environmental factors, beginning with “(a) Kaitiakitanga [a defined term which may be summarised as guardianship of resources by the Māori people of the area]”. By s 8 the principles of the Treaty of Waitangi are to be taken into account. These are strong directions, to be borne in mind at every stage of the planning process. The Treaty of Waitangi guaranteed Māori the full exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties which they desired to retain…
[99] In Environmental Defence Society Inc v New Zealand King Salmon Co Ltd, the Supreme Court noted that the obligation in s 8 to have regard to the principles of
60 Joseph Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law” (2013) 21 Waikato L Rev 1 at 18.
61 McGuire v Hastings District Council [2002] 2 NZLR 577 (PC). See also Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593 at [25]- [27]; and Elizabeth Macpherson Indigenous Water Rights in Law and Regulation: Lessons from Comparative Experience (Cambridge University Press, Cambridge, 2019) at 108.
Te Tiriti o Waitangi / Treaty of Waitangi “will have procedural as well as substantive implications, which decision-makers must always have in mind”.62
[100] In summary, I acknowledge these provisions are strong directions, to be borne in mind at every stage of the process, and include both substantive and procedural requirements.
[101] Secondly, while I next address the grounds of appeal in turn, their interconnectedness makes it appropriate to review them together in a concluding section.
Did the Environment Court majority err in excluding consideration of the end use of the water take?
[102] TRONA’s first ground of appeal, endorsed by the further appellants, is that the majority applied an erroneous approach to the consideration of end use – closing its mind, meaning considering itself jurisdictionally constrained, and not properly considering the effects of end use. Ms Irwin-Easthope submitted that the majority erred in determining that both putting the water in plastic bottles and exporting the water were beyond scope.
[103] Before referring further to the submissions, I note this issue requires consideration of the majority’s conclusions as to end use in its Jurisdictional Overview,63 and the majority’s subsequent factual findings, in relation to each of the two end uses.
[104] Ms Irwin-Easthope emphasised that Creswell’s application is to take a vast quantity of water, 1.1 million m3 annually over the life of a 25 year consent. That water is to be put into 3.7 million bottles per day; that is, 1.3 billion bottles per year for 25 years. Despite the volume of water, in the Environment Court it was common ground that the physical effects of the water take would be no more than minor. TRONA’s case was that there would be metaphysical cultural effects on the mauri and
62 Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593 at [88].
63 Above at [87].
the mana of the wai. In essence, its case was that the application is “for too much water to be sold too far away” (as discussed above at [85]).
[105] In relation to the mana of the wai, Ms Irwin-Easthope indicated that TRONA was not putting ownership of water in issue – acknowledging the Environment Court does not have jurisdiction in relation to that – but she referred to s 8 in Part 2, which requires the principles of Te Tiriti o Waitangi / Treaty of Waitangi to be taken into account, which I will address below.
[106] Ms Irwin-Easthope, supported by Mr Enright and Ms Haazan for NPES and Mr Pou for TRONIT, submitted that the export component of the end use goes to both te mauri o te wai and the ability of Ngāti Awa to be kaitiaki. Ms Irwin-Easthope emphasised that TRONA was not seeking to relitigate the factual issues determined in the Environment Court, nor was the appeal about consultation. She acknowledged the majority considered te mauri o te wai – preferring the evidence of one tikanga expert over the others – and she focused on the issue of kaitiaki. She submitted the Environment Court was grappling with the tikanga effects of the water take but did not look at it through the lens of export given Creswell’s approach – it funnelled or narrowed its consideration of the effects of export by failing to consider the effects of export in New Zealand. She focused on the localised rather than overseas impact. Mr Pou endorsed this focus, and emphasised the issue related to extraction from this aquifer, not broadly to all export of water.
[107] Ms Irwin-Easthope also submitted that the majority’s jurisdiction or scope conclusion meant that it did not consider localised use. She submitted the majority was wrong to say that because there was some overseas use, its hands were tied. The evidence indicated that, while exported water will form a significant part of Creswell’s business, it is not the only part of its business and Creswell will still supply its water domestically within New Zealand.
[108] In addressing these submissions, it is necessary to separate those concerning the local effects of export of bottled water from the effects of local use. The former submission was that the majority’s scope conclusion meant it failed to consider the cultural effects in New Zealand of the export of bottled water, which depends on the
majority’s subsequent factual findings as well as the scope conclusion itself. The latter submission was that the majority did not address the effect of Creswell’s supply of water domestically within New Zealand, which relates to the effects of using plastic bottles as well as the cultural effects.
[109] I deal first with the export of bottled water given its focus in TRONA’s case in the Environment Court, whereas plastic bottles arose subsequently, as indicated.
[110] In relation to the cultural effects of export, Mr Randal submitted the majority’s conclusion that the effects are beyond scope must be read in the context of its (subsequent) factual findings. I do not accept that submission. I see nothing in the majority’s conclusions in the Jurisdictional Overview to suggest they are based on the subsequent factual findings. I consider the Jurisdictional Overview needs to be considered in its own right. But I accept that the majority’s subsequent factual findings are of central relevance to TRONA’s submission that the majority failed to consider the effects of export in New Zealand. It is therefore convenient to address those factual findings before coming back to the Jurisdictional Overview.
[111] In the Environment Court, TRONA’s case that Creswell’s proposal would negatively affect te mauri o te wai and the ability of Ngāti Awa to be kaitiaki was confirmed through the evidence of its kaumatua and tikanga experts Dr Hōhepa (Joe) Mason QSO and Mr Te Kei Merito QSM. In particular, they stated:
Creswell’s Proposal will erode te mauri o te wai. When the wai leaves our shores to be sold overseas its mauri for Ngāti Awa is lost. This effect is due to the amount of water being taken out of the system to then be bottled and sold (a lot of it overseas). Not enough water has the opportunity to re-enter the system as a whole. The Proposal is therefore able to be distinguished from other activities such as irrigation. Given the nature of the Proposal, the effects on te mauri o te wai are unable to be avoided.
[112] The Environment Court majority considered their evidence but preferred the evidence of another Ngāti Awa kaumatua and tikanga expert, Mr Hemama Eruera, who gave evidence for Creswell. As indicated, subsequent to its Jurisdictional Overview, the majority concluded:64
64 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019) 21 ELRNZ 539 at [156].
… that there is no loss of mauri from the water as the water remains within the broad global concept of the water cycle and is returned to Papatūānuku irrespective of where it is used.
[113] Also accepting the evidence of Mr Eruera, the majority further found that “the project will not unreasonably prevent the exercise of kaitiakitanga by Ngāti Awa in its rohe”.65
[114] The majority’s factual findings carried through to its conclusion in relation to the metaphysical effects of export:
[107] Considering the export of this water, we do not find any reason why, if the take is sustainable, the export would not be. Any use of the water, particularly a consumptive use, will have generally similar physical effects. For this aquifer, uses include a range of products, many of which are likely to be taken and consumed or otherwise used outside the district and the region. As noted in our jurisdictional overview, while there is public debate about export of water from New Zealand, there is no legal basis on which we can restrict that activity. In terms of the evidential basis on which we might refuse consent to the increased take because of its intended purpose for export, we do not see any sufficient connection in this case, either in terms of physical or metaphysical effects of export, for basically the same reasons as our assessment of the physical and metaphysical effects of the take.
[115] Ms Irwin-Easthope submitted that the first sentence narrowed the effects of the water take to a sustainability issue rather than an end use issue, with implications for the approach in relation to the planning framework and Part 2. Reading the paragraph as a whole, I do not agree. The first sentence is dealing with sustainability; that is, physical rather than metaphysical cultural effects.
[116] The majority also stated that TRONA did not advance any evidence as to the nature of any metaphysical effects, such as effects on the mauri of the aquifer – “[t]he evidence of Dr Mason and Mr Merito focused on the irrevocable loss of mauri from the water resulting from its bottling and export overseas”.66 As Ms Irwin- Easthope submitted, I understand the majority to mean there was no evidence as to the metaphysical effects on the mauri of the aquifer itself; that is, nothing specific to the aquifer.
65 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019) 21 ELRNZ 539 at [158].
66 At [134].
[117] I consider that, as Ms Hill submitted, the majority squarely considered the cultural effects of taking water and sending it overseas on the mauri of the wai. I accept that the majority’s finding that the project will not unreasonably prevent the exercise of kaitiakitanga by Ngāti Awa in its rohe was influenced by its legal conclusion. After accepting the evidence of Mr Eruera in relation to kaitiaki and concluding that the project will not unreasonably prevent the exercise of kaitiakitanga by Ngāti Awa in its rohe, the majority stated: “[a]s we have already found in relation to our jurisdiction, we cannot control the export of water from the rohe”.67
[118] Even so, I consider that the majority’s conclusions in relation to the cultural effects of exporting the water were justified based on its factual findings, irrespective of its conclusion that the effects of export were beyond scope. I therefore consider that, irrespective of the majority’s end use conclusion in the Jurisdictional Overview, the majority did consider the cultural effects of export. Given the nature of the effects
– metaphysical cultural effects on the iwi appellants – the majority was necessarily considering the effects in New Zealand. Further, the majority’s factual finding – that there is no loss of mauri from the water as the water remains within the broad global concept of the water cycle and is returned to Papatūānuku irrespective of where it is used – applies not only to exports but also to removal of water from the local area to other parts of New Zealand.
[119] Accordingly, the Environment Court majority did not err in excluding consideration of the cultural effects of export as an end use of the water take. Having considered the cultural effects and made the factual findings referred to, the legal conclusion in the Jurisdictional Overview that the effects of export were beyond scope was not material to the decision.
[120] Mr Pou went further than other counsel for the appellants and submitted that the majority’s findings in relation to cultural effects were wrong because the majority preferred the evidence of Mr Eruera over the evidence on behalf of the mandated iwi authority and misinterpreted the planning documents in relation to status of the
67 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019) 21 ELRNZ 539 at [158].
mandated iwi authority.68 He also submitted this was relevant to the majority’s failure to have recourse to Part 2. Mr Pou submitted that Mr Eruera’s evidence was not supported by the people of Ngāti Awa and was preferred by the majority because it accords with Western science. He submitted that Mr Eruera disagreed with the iwi authority – whose mandate is clear – so this is not a case where there is a conflict of evidence on behalf of the people of Ngāti Awa about their connection with a taonga. Referring to the recognition in the Bay of Plenty Regional Policy Statement (RPS) of the right of each iwi to define their own preferences for the sustainable management of natural and physical resources,69 Mr Pou emphasised this right is at iwi level. Mr Pou also submitted that, in terms of s 6(e), the majority recognised the connection with a taonga but did not provide for it.
[121] Mr Pou also questioned the translations of Māori spoken at the Environment Court hearing and submitted that people were talking past each other (he said this was not a criticism of the Court or the cross-examination but that, if the matter is referred back, the Environment Court needs to revisit the evidence, not just deal with the matter on the existing record).
[225] The majority also found that the packaging of the water into bottles and the transport of it from the site were within the scope of a rural processing activity. The majority concluded that if the application were to be assessed as a new activity,
141 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019) 21 ELRNZ 539 at [222].
142 At [225].
143 At [225].
144 At [226].
it should be assessed as a rural processing activity and therefore as a discretionary activity in the District Plan.
Discussion
[226] Mr Gardner-Hopkins submitted that the Environment Court majority erred in determining the activity status as a discretionary “rural processing activity” rather than a non-complying “industrial activity” including a “manufacturing activity”. He noted that Creswell’s description of the proposal did not seek to define the activity status given its approach of lodging the application as a s 127 variation, albeit recognising that excavation was a separate activity not considered in the original application which required separate consent.
[227] Mr Green and Mr Randal supported the majority’s decision that the proposal was a rural processing activity, not an industrial activity, under the District Plan.
[228] It was common ground that the approach to whether a proposal falls within the relevant term in a plan involves three stages, as explained by the Court of Appeal in Centrepoint Community Growth Trust v Takapuna City Council:145
(a)First, consider the term in question and decide on its essential characteristics, although in many instances that part of the exercise will be taken for granted because the expression is one in everyday use in planning language if not in ordinary speech. (This is generally recognised as a question of law, although where it involves ordinary English words it may be categorised as involving fact alone.)
(b)Secondly, find the facts.
(c)Thirdly, decide whether the facts fit the term in question. (This is a question of fact, but the conclusion can be attacked in law if the decision is unreasonable in the sense that no Tribunal acquainted with the ordinary use of language could reasonably reach that conclusion.)
145 Centrepoint Community Growth Trust v Takapuna City Council [1985] 1 NZLR 702 (CA) at 706.
[229] If there is a dispute about the meaning of the provision or provisions in the plan, it is appropriate to seek the plain meaning of the provision but not to undertake that exercise in a vacuum. Regard must be had to the immediate context, which would likely include the relevant objectives and policies.146
[230] Here, the dispute is more one of application than as to the meaning of the relevant definitions. In the District Plan, the two activity definitions are:
Industrial activity means
a.the production of goods by manufacturing, processing (including the milling or processing of timber), assembling or packaging;
b.dismantling, servicing, testing, repairing, cleaning, painting, storage, and/or warehousing of any materials, goods or products (whether natural or man-made), vehicles or equipment, and
c.depots (excluding rural processing activities and rural contractor depots), engineering workshops, panel beaters, spray painters.
…
Rural processing activity means an operation that processes, assembles, packs and stores products from primary productive use …
[231]Primary productive use is also defined:
Primary productive use means rural land use activities that rely on the productive capacity of land or have a functional need for a rural location such as agriculture, pastoral farming, dairying, poultry farming, pig farming, horticulture, forestry, quarrying and mining.
[232] In relation to the definition of “rural processing activity”, Mr Gardner-Hopkins submitted water extraction fails at the first hurdle as it is not “primary productive use”. That first requires a land use activity, whereas the water take is a Regional consent activity. He submitted it seems awkward to have that form the basis for an activity under the District Plan, and it is strained to describe the water take by turning the tap on as land “use”; it is not like farming or quarrying.
[233] I accept that the taking of water is an activity controlled under s 14 of the RMA, requiring a regional rather than district consent, but I do not consider that precludes
146 Powell v Dunedin City Council [2004] 3 NZLR 721 (CA) at [35], having earlier cited at [30]
J Rattray & Son Ltd v Christchurch City Council (1984) 10 NZTPA 59 (CA) at 61.
the extraction of artesian water from being a “land use” activity for the purposes of the definition of primary productive use in the District Plan. As the majority said, “use” is broadly defined in s 2, meaning among other things to “place” or “use a structure” in, on or under land or “drill” land, and the definition concludes with “any other use of land” which appears to be all-encompassing. While the drilling of the bore and the construction and operation of a well-head have already occurred following separate (regional) consents, I consider the process still involves land use, giving that term its plain and extended meaning. This interpretation is consistent with the purpose of the District Plan’s definitions identified by the majority, to provide a basis for analysis that is consistent with the relevant objectives and policies of the plan, to sustain the productive potential of rural land and to prevent the expansion of urban activities onto productive rural land while still enabling appropriate processing activities to occur where the resources to be processed are grown or found.
[234] In relation to the last limb of the definition of “primary productive use” (a functional need for a rural location such as … quarrying and mining), Mr Gardner- Hopkins resisted an analogy between water extraction and quarrying and mining in the definition of primary productive use on the basis that their inclusion in the extended definition is anomalous as they would fall within the definition anyway and mining is also dealt with differently in the District Plan.
[235] While I accept that mining is dealt with separately in the District Plan’s Activity Status Table, I agree with the majority that the water extraction has a functional need for a rural location. Hence, there is a primary productive use. I also consider that water extraction fits within the definition of a rural processing activity.
[236] It is also necessary to consider the other activities relied on by Mr Gardner- Hopkins: water bottling and blow moulding. In relation to water bottling, I do not accept Mr Gardner-Hopkins’ submission that the majority should have decided the bottling operation could occur offsite (rather than at source). Water bottling therefore also fits within the definition of a rural processing activity. Even if the water bottling could occur offsite, that would not preclude it from being “an operation that processes” water from the primary productive use given the conclusion that the extraction of water
is a land use. As the majority found, the primary resource is the water and principal activity is the extraction of the water.
[237] Mr Gardner-Hopkins emphasised that the new blow moulding operation involved the manufacturing of plastic bottles, bringing it within the “industrial activity” definition, and so requiring consent as a non-complying activity. He submitted that adopting a usual bundling approach, the overall activity should be treated as non-complying.
[238] It is necessary to assess the essential characteristics of the two activity definitions. The industrial activity definition includes “the production of goods by manufacturing, processing … assembling or packaging”. Rural processing activity means “an operation that processes, assembles, packs and stores products from primary productive use …”. As the majority identified, there is overlap between these definitions. An essential difference between the definitions of the two activities is that an industrial activity can involve any type of material, good or product but a rural processing activity must have as its starting point a product from a primary productive use, as the majority identified. Another difference is that the word “manufacturing” appears only in the definition of industrial activity, although there may also be overlap between manufacturing and processing.
[239] I accept that blow moulding involves a form of manufacturing. When describing the proposal, the majority said the new building will contain a “plastic bottle manufacturing plant”.147 As indicated, the majority also accepted that the blow moulding of plastic bottles as containers for the water and packaging the bottles on pellets for transport, are industrial activities within the range of the definition. Mr Randal rightly accepted that the blow moulding involves a basic form of manufacturing.
[240] Mr Randal submitted, however, that the blow moulding is “ancillary”, and subsumed within the main use, namely water bottling activity, and does not require separate consent. “Ancillary” is defined in the District Plan:
147 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019) 21 ELRNZ 539 at [18].
Ancillary means small and minor in scale in relation to, and incidental to, the primary activity and serving a subordinate but supportive function to the primary activity. An activity that is of scale, character or intensity that is considered independent of the principle (sic) activity is not ancillary.
[241] Mr Gardner-Hopkins submitted that the blow moulding is not “ancillary” and, even if it were, it still requires a separate resource consent as an industrial activity – characterising an activity as ancillary is not a “free pass” if it is industrial (unlike ancillary activities that are part of a defined activity, such as storage ancillary to commercial). He pointed to ancillary activities requiring consent in the Activity Status Table. He also referred to rule 3.3.2.5 of the District Plan in relation to activity status hierarchy, which states that “[i]f more than one activity status applies to an activity, the activity will be assessed overall under the more restrictive status”.
[242] Mr Randal submitted that the correct approach is to assess whether the proposal involves a single main use/activity, a composite use or two or more distinct uses, as indicated in Burdle v Secretary of State for the Environment148 and Centrepoint Community Growth Trust v Takapuna City Council.149
[243] As Mr Gardner-Hopkins submitted, Burdle and Centrepoint were not cases under the RMA. In the RMA context, it is of course necessary to assess the proposal by reference to the activities in the relevant planning documents. The approach in those cases is nevertheless helpful when characterising uses, but the question remains whether the activities require consent under the planning documents. As Mr Randal submitted, s 9 is permissive – in relation to district plans, it allows any use that is not prohibited or regulated in a district rule. The question is whether the land use contravenes a district rule. The relevant planning documents may require a resource consent to be obtained for every activity not specifically referred to in a district plan,150 or may specifically address the issue of ancillary activities, as the District Plan does here.
148 Burdle v Secretary of State for the Environment [1972] 1 WLR 1207 (QB) at 1212 and 1213.
149 Centrepoint Community Growth Trust v Takapuna City Council [1985] 1 NZLR 702 (CA) at 709.
150 Resource Management Act 1991, s 76(4)(e). See also Queenstown Lakes District Council v McAulay [1997] NZRMA 178 (HC).
[244] I do not consider the majority erred when concluding the blow moulding is “ancillary” in terms of the District Plan. As indicated, I agree with the majority that the primary resource is the water and the principal activity is the extraction of the water. The blow moulding is a small part of the primary activity serving a subordinate but supportive function – part of the packaging process. As it was explained, the blow moulding involves inflating (expanding) pre-made plastic bottle moulds. Even acknowledging the scale of bottling, I consider the ancillary blow moulding does not make the principal activity an industrial activity rather than a rural processing activity. Similarly, storage and transportation are ancillary activities. Acknowledging the overlap between the two activity definitions, I agree with the majority that the principal activity should be assessed as a rural processing activity. The ancillary activities do not take away from the single overall activity.
[245] The related and remaining issue is whether the blow moulding itself requires a separate industrial activity consent. As Mr Gardner-Hopkins submitted, the District Plan requires consent for some ancillary activities (such as some ancillary to farming). But the Activity Status Table does not provide for consent in the case of activities that are ancillary to rural processing, and I do not consider the effect of rule 3.3.2.5 of the District Plan is that all ancillary activities require separate consent.
[246] Mr Gardner-Hopkins also noted the new building was to be two-storey, with cooling towers, and the water bottling process involved water treatment, about which the majority was mistaken. Even so, I do not consider those components affect the characterisation of the water extraction and bottling operation as a rural processing activity.
[247] As Mr Randal submitted, the rural processing activity captures the whole proposal. I do not consider the majority erred in concluding “the proposal is for a single planning unit which primarily involves the taking of water with an ancillary bottling and packaging operation” and “that the activity, overall, is a rural processing activity”.151
151 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019) 21 ELRNZ 539 at [234].
Change of conditions v new consent
[248] The majority concluded that Creswell’s proposal was appropriately processed as a variation to existing land use consent conditions under s 127 of the RMA:
[252] The evidence before us confirms that the proposed project is for the same type of activity (water bottling) as authorised by the existing consent, with the same types of adverse effects. The substantial expansion of the activity proposed would result in a corresponding increase in the scale of adverse effects. The varied conditions of consent proffered by Creswell and imposed by the Council are designed to manage these adverse effects to acceptable levels. We consider that the application under s 127 was an appropriate pathway for Creswell to pursue, consistent with the provisions of that section and the criteria established by case law.
[249] Mr Gardner-Hopkins submitted the majority erred in determining that the activity was an expansion of an existing activity falling for consideration as a discretionary activity under s 127 of the RMA rather than as a new activity falling for consideration as a non-complying activity under s 88. He acknowledged this issue was less material than the activity status issue but nevertheless sought a determination. He emphasised that s 127 enables applications “for a change or cancellation of a condition of the consent”, not a change of activity. Here, the original four conditions were replaced wholesale by 69 new conditions.
[250]The original 1991 grant of consent and conditions were as follows:
THAT pursuant to Section 105 and after consideration of Section 104 Resource Management Act 1991, the Whakatane District Council grants consent to Robertson Farms to establish a mineral bottling plant on a property legally described as Lot 4 DPS 27652, situated at Johnson Road, Otakiri, subject to the following conditions:
(a)That the site be developed generally in accordance with the application and plans submitted to Council.
(b)That the bottling plant operate within the following hours:
Monday – Saturday 6:00am – 10:00 pm (excluding Sunday and Public Holidays).
(c)That the activity operate within the following noise levels:
(i) 7am - 7pm week days
and
) L95 40dBA 7am - 12 noon Saturdays ) L1055dBA (ii) 7pm - 7am weekdays
)
12 noon Saturday to 7am ) L1035dBA Monday, and including ) public holidays )
Noise levels are to be taken in accordance with NZS 6801:1977 and NZS 6802:1877.
(d)That the applicant undertake regular monitoring of the activity and inform Council when the following factors are carried out or exceeded:
-Any major expansion or updating of plant and machinery, or;
-Introduction of a second shift within the bottling plant, or;
-Number of staff employed within the bottling plant exceeding eight at any one time, or;
-Regularly more than four truck movements in any one day.
Note: The applicant is advised that carrying out or exceeding the factors listed in Condition 4 may require Council to review the conditions of this consent in relation to such matters as noise levels, hours of operation and the containment of any dust nuisance generated on Johnson Road, in accordance with Section 128 of the Resource Management Act 1991.
[251] As Mr Gardner-Hopkins submitted, the reference in the condition to any “major expansion or updating of plant and machinery”, requiring that Council be informed, cannot determine whether any expansion should proceed by way of a s 127 variation or a fresh consent under s 88.
[252]As the majority said:152
In considering the assessment of the appropriateness of using s 127 as opposed to making a fresh application under s 88, it is well-established that this is a question of fact and degree to be determined on a case-by-case basis.
152 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019) 21 ELRNZ 539 at [247].
[253] In this regard, the majority referred to Body Corporate 97010 v Auckland City Council,153 where Blanchard J delivered the judgment of the Court of Appeal, on appeal from a decision of Randerson J. Given Mr Gardner-Hopkins’ reliance on this case, I set out the relevant paragraphs of the judgment:
[36] In his judgment Randerson J said that whether an application is truly one for a variation or in reality seeks consent to an activity which is materially different in nature is a question of fact and degree to be determined in the circumstances of the case. Relevant considerations include a comparison between the activity for which the consent was originally granted and the nature of the activity if the variation were approved. The terms of the resource consent were to be considered as a whole. Artificial distinctions should not be drawn between the activity consented to and the conditions of consent: “The scope of the activity is not defined solely by the introductory language of the consent but is also delineated by the conditions which follow'' (para [73]). From none of this did we understand counsel for the appellant to dissent.
[37] Randerson J said that the consent authority should compare any differences in the adverse effects likely to follow from the varied purpose with those associated with the activity in its original form. Where there was a fundamentally different activity or one having materially different adverse effects a consent authority “may decide the better course is to treat the application as a new application” (para [74]), particularly where it is sought to expand or extend an activity with consequential increase in adverse effects…
…
[45] Section 127 permits an alteration to a condition but not an alteration to an activity. The question of what is an activity and what is a condition may not be clear-cut and will often, as the Judge recognised, be a matter of fact and degree. In differentiating between them the consent authority need not give a literal reading to the particular wording of the original consent. Mr Brabant pointed out to the Court that the exact wording may, as in this case, have been supplied by a planner who is not a lawyer and who has not really addressed the distinction.
[46] It is preferable to define the activity which was permitted by a resource consent, distinguishing it from the conditions attaching to that activity, rather than simply asking whether the character of the activity would be changed by the variation. An activity may have been approved at a relatively high level of generality which, subject to stipulated conditions, may be capable of being conducted in different ways…
…
[48] The approved activity in this case consisted of the use of a defined space (the original building envelope) for residential occupation in separate units or apartments. The exact shape and dimension of the units in which that activity could be carried on, including their number, was delimited by the
153 Body Corporate 97010 v Auckland City Council [2000] 3 NZLR 513 (CA).
conditions attaching to the approval of the activity. A change, for example, in the number of apartments is therefore merely a change to the conditions, so long as those apartments are to be constructed within the same overall space or envelope as was delineated by the original building plans. Accordingly the changes proposed in this case were changes to conditions within s 127 notwithstanding that a different (twin tower) building emerged. This did not of course mean that the applicant was free to seek under that section any necessary approval to re-position the building on the site or to change its use to something other than residential apartments. That would have involved a change in the activity, in the former example, as to such part of the site as was not approved by the original consent for the locating of the single tower building. But within the building envelope, changes could be made to the features and dimensions of the building and its component parts—apartments, parking spaces and common areas—including the creation of separate structures (if indeed the twin towers are to be viewed as such).
[254] By reference to Body Corporate 97010, Mr Gardner-Hopkins submitted that the majority was wrong to conclude that the proposal involved the same activity. He referred to the scale and extent of the changes – particularly the new blow moulding manufacturing operation but also the new water bottling plant building in a new location with a bigger footprint and container storage and movement. In addition, as indicated, he relied on the extent of the changes to the conditions.
[255] Mr Green relied on Water View Property Ltd v Gardner, where Associate Judge Bell referred to Body Corporate 97010 and said:154
A word of caution is necessary about the part of that paragraph [i.e. [48]] dealing with variations involving a land use outside the consent building envelope. It should not be applied too rigidly. Many such changes do not materially change effects on the environment and can be dealt with under s 127, as happens in practice. Even so, an increase in lots in a subdivision is more likely not to come within s 127, given the resulting intensification of development with associated increased effects on the environment.
[256] Although unstated, I expect the point being made in Water View Property Ltd reflects the statutory amendments to s 127 since the decisions in Body Corporate 97010. As the majority said in this case:
[242] This provision has been substantially modified over time. Prior to 2005, an application under s 127 could only be made at a time specified for that purpose in the consent or on the grounds that a change in circumstances had caused the condition to become unnecessary or inappropriate. Those restrictions were repealed by s 70 of the Resource Management Amendment Act 2005. There are now no boundaries in s 127 of the RMA on the jurisdiction for its application.
154 Water View Property Ltd v Gardner [2016] NZHC 2247, (2016) 18 NZCPR 440 at [45].
[243] Prior to 2003, s 127(3) and (4) included an exception stating that s 93 (which was the notification provision at that time) did not apply where the consent authority was satisfied that the adverse effects of the change would be minor and the written approval of original submitters and affected persons had been obtained. That exception was repealed by s 53 Resource Management Amendment Act 2003 and the current provisions were substituted in its place. While s 127(4) now requires particular consideration of every person who made a submission on the original application and may be affected by the change, that provision does not limit the application of ss 95 – 95G RMA and the decision whether and to whom an application under s 127 is to be notified must still be made under those provisions.
[244] Those amendments to s 127 mean that the statutory process to be followed in considering a proposal to change or cancel a consent condition is now essentially the same as that for a new application under ss 88 – 121.
[257] Even so, as already acknowledged, the approach remains a question of fact and degree to be determined in the circumstances of the case, as outlined in Body Corporate 97010. It is just that the difference may no longer be of such significance, for the reasons the majority identified in this case:
[182] It is true that if this proposal had been applied for as a new activity under s 88 of the RMA, then it could be declined in its entirety, so to that extent there is a difference between what can occur in relation to applications under s 88 and those under s 127. The difference is however more apparent than real: if this proposal had been made under s 88 and declined, the applicant would still hold the original consent, so its position would be no different to having an application under s 127 RMA declined. For practical purposes, therefore, the real assessment must be of the effects of expanding the water bottling operation whether the application is made under s 127 or s 88.
…
[245] The setting of the activity status as discretionary by s 127(3)(a) of the RMA (enacted by the 2003 amendment), where the activity might otherwise be a non-complying activity, appears to be the principal benefit to an applicant. Even so, the difference in activity status between discretionary and non- complying may not be of great significance where the activity already exists, because of the role that the existing environment plays in any assessment of effects. The context in which the consent authority must assess the degree of additional adverse effects of the activity on the environment and the extent to which such an activity may be contrary to the objectives and policies of the relevant plan will include consideration of that existing activity. In terms of any proposed change of conditions, the degree to which any adverse effects will increase or to which the proposal may be contrary to any relevant objectives and policies will still have to be considered in terms of s 104(1)(a) and (b)(v) for the purpose of the exercise of the discretion whether to grant consent or not under s 104B of the RMA.
[246] On the other hand, if the change in the adverse effects is sufficiently great and the relevant objectives and policies are sufficiently specific in identifying what may be contrary to them, then the particular restrictions for
non-complying activities in s 104D of the RMA could have the combined effect of preventing the grant of consent. It should not be generally assumed that all plans are sufficiently specific to give assurance that those restrictions can be rigorously applied.
[258] I have already addressed the argument that the proposal involved a new manufacturing activity requiring a non-complying activity consent, concluding that it is ancillary and does not change the overall activity or require a separate consent. It was not suggested there was any evidence of a different category of adverse effects.
[259] I have also concluded that the new two-storey building does not affect the characterisation of the bottling operation as a rural processing activity, which means that whether the application proceeded under ss 88 or 127, it required assessment on a discretionary basis. Accepting that it involved a move in floor plate, I do not consider the expanded bottling operation involved a change in activity in the same way that the approved activity in Body Corporate 97010 consisted of the use of a defined space (the original building envelope) for residential occupation in separate units or apartments. In this respect, as Mr Green submitted, the proposal is consistent with the existing consented activity – a water bottling plant.
[260] The scale of the effects did not change the essential activity, and it was not suggested the majority erred in its assessment of the effects of the expansion with the implementation of varied and more comprehensive consent conditions.
[261] I agree with the majority that the proposal was appropriately processed as a variation to existing land use consent conditions under s 127.
Notification
[262] Mr Gardner-Hopkins briefly raised the question of whether the application should have been publicly notified if the proper status was a non-complying industrial activity. That raises an issue as to whether the majority’s comment on the meaning of notification in s 2AA (including limited notification) is to be preferred over the Environment Court’s contrary decision in Maungaharuru-Tangitu Trust v Hawke’s
Bay Regional Council.155 I say comment because the majority noted that its “jurisdiction does not extend to include review of a consent authority’s decision about notification of an application under ss 95 – 95G RMA”.156 Mr Gardner-Hopkins did not abandon public notification but he did not pursue a ruling on the issue as he accepted the Environment Court has not bound itself in relation to whether the effects of non-complying activity require public notification. In any event, having found that a non-complying activity consent was not required, the issue does not arise.
Materiality of any errors and relief relating to District consents
[263] It was common ground that SOI had to succeed with both its activity status argument and its s 127 argument for its appeal to succeed. Mr Gardner-Hopkins acknowledged that if the application under s 88 remained for a discretionary (rural processing) activity, then an error in processing it under s 127 may not be material. I agree it would not be material given the statutory amendments. There would be no difference in assessing the proposal as an application for a new activity.
[264] On the other hand, if the s 127 approach is upheld, it would make no difference if the proposal were for an industrial activity because s 127 deems the activity to be discretionary rather than non-complying.
[265] Even if I had concluded the proposal required a non-complying industrial activity consent and that it was erroneously processed under s 127, I would likely have considered that erroneously processing it under s 127 was not material given the statutory amendments and the absence of evidence of any adverse effect relevant to such error. Only specific effects were in issue in the Environment Court and the majority concluded they were no more than minor except for moderate truck movement effects in relation to two properties.157 Such specific effects do not detract from an overall ‘no more than minor’ finding.158 It would be futile to remit the issue to the Environment Court for consideration.
155 Maungaharuru-Tangitu Trust v Hawke’s Bay Regional Council [2016] NZEnvC 232, [2017] NZRMA 147 at [200].
156 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019) 21 ELRNZ 539 at [240].
157 At [307] and [320].
158 SKP Inc v Auckland Council [2018] NZEnvC 81 at [49].
Result
[266]The appeals are dismissed.
Costs
[267] If costs cannot be agreed, any party seeking costs is to file and serve a memorandum within 20 working days; with memoranda in response within 10 working days thereafter. Memoranda are not to exceed three pages. I will deal with costs on the papers unless I require further assistance from counsel.
Gault J
Parties / Solicitors / Counsel:
Ms H Irwin-Easthope and Ms K Tarawhiti, Whāia Legal, Wellington Mr J Gardner-Hopkins, Barrister, Wellington
Ms M Hill, Cooney Lees Morgan, Tauranga
Mr A Green and Ms M Jones, Brookfields, Auckland
Mr D Randal, Ms E Bennett and Ms A Garland Duignan, Buddle Findlay, Wellington Mr R Enright, Barrister, Auckland
Ms R Haazen, Barrister, Wanaka
Mr R Allen (second interested party’s instructing solicitor), Richard Allen Law, Auckland Mr J Pou, Tu Pono Legal Ltd, Rotorua
Mr J N Gear
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