Supreme Court has dismissed Cloud Ocean’s appeal that would have allowed it to change the use of its consents from wool scouring to water bottling.
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Cloud Ocean Water consent judicial review
Find out about Aotearoa Water Action’s (AWA) application for judicial review of our decisions relating to the granting of consents for Cloud Ocean Water Limited (Cloud Ocean) and Rapaki Natural Resources Limited (Rapaki) to carry out water bottling activities at plants previously used for other industrial activities.
Current status: The consent was set aside by the Court of Appeal in July 2022, a decision upheld by the Supreme Court in November 2023. A draft plan change is underway to address the unintended consequences of this ruling.
What has been reviewed
AWA sought a judicial review after we granted non-notified consents to Cloud Ocean and Rapaki, allowing existing consents to take water to be used for water bottling instead of at a meat works and wool scour.
An independent commissioner acting for us granted Cloud Ocean consent to take water from a deeper bore, within its existing allocation.
AWA argued that the applications were for new water, effectively for a prohibited activity in the fully allocated Christchurch-West Melton zone, and that the applications should have been declined.
Key dates
July 2020 - High Court
- The High Court upheld the grant of the consents.
- The Court found no reviewable error in the way we dealt with the applications. It confirmed that we were correct in considering the existing consents to take water as separate from authorisations to use that water, and that a standalone "use" consent for water bottling could be relied on to authorise the use of water taken under another water permit.
- AWA appealed this decision.
July 2022 - Court of Appeal
- The Court of Appeal found that we could not grant a resource consent that was limited to the use of the water for bottling purposes separately from the authorisation to take the water to be used for that purpose, overturning the High Court decision. This meant the consents granted to the two water bottling companies were not lawfully granted and resulted in the consents being set aside.
August 2022 - Appeals
We decided we would not seek leave to appeal the Court of Appeal decision to the Supreme Court.
- This was because the outcome of the Court of Appeal decision was certainty about how the rules around water “take” and “use” should be applied, which allows us to proceed confidently when considering resource consent applications.
- A “take” authorises how much water can be removed from any water body (surface water bodies like rivers, or from groundwater/aquifers), while a “use” authorises the purpose for which water is used, such as irrigation, water bottling or hydro-electricity generation.
- While the Resource Management Act allows take and use to be separated, the Canterbury Land and Water Regional Plan (LWRP) does not, so further litigation was unnecessary.
- Consents granted under the former (at that time, lawful) approach remain valid unless a Court issues a decision to set them aside. We can’t revoke any of these consents because the law doesn’t allow us to do that.
November 2023 - Supreme Court
While we decided not to seek leave to appeal to the Supreme Court, Cloud Ocean did so.
- The Court dismissed the company’s appeal that would have allowed it to change the use of its consents from wool scouring to water bottling.
- The Supreme Court upheld the Court of Appeal’s decision that we needed to consider both “take” and “use” together under the LWRP.
Read the Supreme Court decision (PDF file, 430KB)
News story - November 2023: Water-bottling consent decision before Supreme Court.
Plan Change 8 - proposed changes to the LWRP
We have drafted a proposed targeted change to the LWRP to provide greater clarity for consent holders/applicants to take and use water, or to request a change in how it can be used.
These changes are to enable decision-making in light of the Court of Appeal decision as confirmed by the Supreme Court. This decision has implications for the way development and infrastructure plans must manage stormwater.
Draft Plan change 8 aims to create a pathway for key infrastructure works that intercept groundwater to be able to apply for consent, even in fully allocated zones.
On 27 November 2024, Councillors voted to seek clarity from the Minister for the Environment on a pathway to notify Plan Change 8 before 2026, following legislation delaying freshwater planning instruments until 2026 or further national direction.
News story: Canterbury Regional Policy Statement paused.