Resource consent processing changes - what's the story?

The Court of Appeal's decision on how we consider resource consent applications for water 'take' and 'use' has far-reaching implications for how we manage Canterbury's water.

"When it [direction change] comes through the courts, it can be a short, sharp shock – and that can be difficult to work through. But work through it we must – and we are doing just that with consent applicants to try and find a pathway that is both legal and protects the environment" – Dr Stefanie Rixecker, Chief Executive.

Environment Canterbury is responsible for protecting and improving outcomes for the environment. If an activity is unable to meet the criteria in our regional plans for using public resources, then a resource consent is required. Obtaining a resource consent allows an activity that would otherwise be illegal, to occur by allowing it subject to specific conditions. 

The consenting process is an essential part of managing the region’s environment sustainably, in line with regional plans that are developed with community input and direction.

In processing consent applications, we must follow current legislation, which is set out in a suite of national and regional planning frameworks including the Resource Management Act (RMA), National Policy Statements, National Environmental Standards, and regional and iwi management plans.

We must also respond to any changes in legislation or plans. These can arise in response to emerging resource management issues, court decisions or to give effect to changes in government policy such as the National Policy Statement for Essential freshwater.

Sometimes changes in direction can occur quite suddenly, and this has been the case for the recent Court of Appeal decisions on water-bottling. In this particular case, the ruling has impacted the way we are required to apply the Canterbury Land and Water Regional Plan rules around water 'take' and water 'use'.

Water 'take' is the amount of water that can be removed from a water body such as a river, lake, or groundwater, while 'use' is the purpose for removing it, such as for irrigation, water bottling or hydroelectricity generation.

Changes from Court of Appeal 'water bottling' decision

In July 2022, the Court of Appeal determined that, under Environment Canterbury's planning documents, we are required to consider the 'take' and 'use' of water together, when previously they had been considered separately.

While this case was brought by Aotearoa Water Action (AWA) against two water bottling companies specifically, it has wider-reaching consequences.

"The Court of Appeal decision has significant implications that reach well beyond the issue of water bottling," said Environment Canterbury Chief Executive Dr Stefanie Rixecker.

"And the effect of this ruling was immediate. Our staff have had to pivot to a new way of considering applications, and this has had a significant impact on some consent applicants. Which we know has caused frustration.

"We (Environment Canterbury and the applicants) have to abide by the court's decision. To not do so would be illegal.

"Usually when changes occur – such as through a plan development process - there is a lead-up, some time to socialise possible solutions and seek feedback. When it comes through the courts, it can be a short, sharp shock – and that can be difficult to work through. But work through it we must, and we are doing just that with applicants to try and find a pathway that is legal and protects the environment.

"Impacted applicants have worked with the Environment Canterbury team to amend their application so that they can be granted consent.

"But for a few resource consent applicants, it has been difficult to find solutions, particularly in situations where groundwater is intercepted for stormwater or other infrastructure. Where an interception is proposed, it is considered a 'take' from the groundwater and, in an overallocated zone, new takes are not permissible.

"We are continuing to work with applicants to find solutions that work within the current rules and the new direction from the Court of Appeal decision."

Next steps for applicants

Consent applicants impacted range from individuals to district and city councils in the region. In many cases, the applicant and Environment Canterbury team have found solutions that follow the rules and achieve the best outcome for the region's environment and its people.

We are aware this new direction is likely to cause delays and additional costs to applicants, especially during busy construction periods for example, and we will continue to work through proposals as efficiently as possible.

Any consents that were granted before the court decision remain valid. A Court review would be needed to decide otherwise.

As the regional council, we support development that improves environmental outcomes and promotes social and economic improvements. If our current planning framework (rules) is not fit-for-purpose we will engage with mana whenua and the community to review and update the planning framework.

This course of action takes time to run a due process of development and community input, and follow the legal plan change steps required of us. It will therefore be at least 18 months before any changes in the rules would be operative and the new rules would have full legal effect.

In the meantime

In mid-November, the Supreme Court granted leave to appeal the Court of Appeal's decision. While Environment Canterbury hasn't initiated the appeal, we will of course be following the proceedings next year with interest.