AOTEAROA WATER ACTION INCORPORATED v CANTERBURY REGIONAL COUNCIL [2022] NZCA 325

AOTEAROA WATER ACTION INCORPORATED v CANTERBURY REGIONAL COUNCIL [2022] NZCA325 [20 July 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA430/2020[2022] NZCA 325BETWEEN AOTEAROA WATER ACTIONINCORPORATEDAppellantAND CANTERBURY REGIONAL COUNCILFirst RespondentAND CLOUD OCEAN WATER LIMITEDSecond RespondentAND RAPAKI NATURAL RESOURCESLIMITEDThird RespondentAND NGĀI TŪĀHURIRI RŪNANGAIntervenerHearing: 17 and 23 August 2021Court: Kós P, Cooper and Brown JJCounsel: J D K Gardner-Hopkins for AppellantP A C Maw and L F de Latour for First RespondentW A McCartney for Second RespondentE J Chapman for Third RespondentJ M Appleyard and R E Robilliard for IntervenerJudgment: 20 July 2022 at 10.30 amJUDGMENT OF THE COURTA The appeal is allowed and the decision of the High Court is set aside.B The Council's decisions granting consents CRC180728 and CRC180729 toRapaki and CRC182812 to Cloud Ocean are set aside, with the furtherconsequences set out at [132] below.C The Council must pay AWA's costs calculated for a standard appeal inband A, together with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)Table of ContentsPara NoIntroductionFactual narrativeOverviewThe Rapaki consentsThe five bore consentThe three bore consentSection 127 applicationAn application to use waterProcessing the applicationsThe Cloud Ocean consentsThe deep bore consentAotearoa Water Action IncThe Regional PlanFirst issue — is water bottling a use of water?Second issue — must applications for take and use be consideredtogether?AnalysisResult[1][10][10][11][12][16][20][26][29][41][64][72][76][86][98][110][135]Introduction[1] Under s 14(2) of the Resource Management Act 1991 (the RMA) no personmay "take, use, dam, or divert" water (other than open coastal water) "unless thetaking, using, damming, or diverting is allowed by subsection (3)." Under subs (3)(a)the taking, using, damming, or diverting may be expressly allowed by nationalenvironmental standards, rules in a regional plan or proposed regional plan, orresource consents.[2] In this case resource consents were historically granted to take and use waterfor the purposes of a freezing works and a wool scour, respectively. Those consentswere subsequently transferred to Rapaki Natural Resources Ltd (Rapaki) andCloud Ocean Water Ltd (Cloud Ocean), pursuant to s 136(2)(a) of the RMA.Both Rapaki and Cloud Ocean now seek to take water in reliance on the rightspreviously granted, not for the purposes of the freezing works and wool scour, but forthe purposes of bottling the water and selling it.[3] In a non-notified process the Canterbury Regional Council (the Council)granted consents for this to occur. The applications for the consents were advanced asapplications to change the use to which the water could be put, and the Councilconsidered it was appropriate to proceed in that way, in reliance on the existing rightsto take the water. Once the consents to use the water for bottling were granted, thenew "use" consents were amalgamated with the existing "take" consents and theCouncil's records were altered in an administrative process to show that Rapaki andCloud Ocean had consents to take and use water for bottling purposes.[4] Aotearoa Water Action Inc (AWA) is an environmental advocacy groupinitially formed to oppose the present consents.1 It commenced an application forreview in the High Court challenging the grant of the consents. Nation J held that theCouncil had acted lawfully in granting the consents and doing so on a non-notifiedbasis.2 AWA now appeals.[5] The principal issue raised by AWA's appeal is whether it was lawful for theCouncil to grant consent for the water bottling activities without granting new consentsin each case to take the water. As framed by Mr Gardner-Hopkins, who appeared inthis Court as counsel for AWA, the broad question is whether a consent to "use" water1 We give further details concerning Aotearoa Water Action Inc at [72]–[74].2 Aotearoa Water Action Inc v Canterbury Regional Council [2020] NZHC 1625, [2020] NZRMA580 [High Court judgment].under s 14 of the RMA can be sought and granted without an associated application totake water for the same use. He submits applications for "take" and "use" must beconsidered together. That is an issue which has not previously been directly addressedby this Court. The issue arises because here the take consents relied on were grantedfor different purposes. There are contextual aspects of the question in terms of theCouncil's Land and Water Regional Plan (LWRP) and the particular circumstances ofthis case which make it necessary to give a more detailed account of the factual setting,to which we will shortly turn. Underlying the argument is the fact that in the relevantcatchment the water has been fully allocated (save for group or community supply andnon-consumptive taking) and a new application to take water would, for this reason,be prohibited under the LWRP.[6] Another issue raised by the appeal is whether the activity of water bottlingactually involves the "use" of water under s 14 of the RMA. AWA contends it doesnot; under s 14(2) a water bottling consent can only be for the "take" of water for theparticular purpose of water bottling and once the water is taken for that purpose andput into a pipe or network of pipes it is no longer "water" as defined in the RMA.We address other arguments raised by AWA below.[7] AWA's position on the appeal is broadly supported by Te Ngāi TūāhuririRūnanga Inc (the Rūnanga), a party given leave to intervene in the High Court, againstthe opposition of Ocean Cloud and Rapaki.3 In that Court, the Rūnanga were allowedto make written submissions and provide an affidavit from Associate ProfessorRawiri Te Maire Tau. Dr Tau addressed the perspective of the Rūnanga as the bodyholding mana whenua over the land and water relevant to the proceeding. In thisCourt, we heard from Ms Appleyard on behalf of the Rūnanga. She argued that inprocessing the application the Council had failed to have regard to, or had inadequateinformation to consider, effects on cultural values arising from the water bottlingactivity.[8] The respondents oppose the appeal. They argue the High Court's judgmentshould be upheld and the appeal dismissed.3 Aotearoa Water Action Inc v Canterbury Regional Council [2019] NZHC 3187, [2020] 2 NZLR359.[9] We note that the High Court determined as a preliminary question thatcommercial water bottling was not within the scope of the resource consentstransferred to Rapaki and Cloud Ocean.4 There was no appeal from that decision.Factual narrativeOverview[10] Rapaki and Cloud Ocean became the holders of the relevant resource consentsfor the take and use of water pursuant to s 136(2)(a) of the RMA as a result of acquiringthe sites for which the consents were granted. In view of some of the arguments onappeal it is necessary to set out the complicated history of the consents.The Rapaki consents[11] There were two consents, referred to in the evidence as the "five bore consent"and the "three bore consent", because they enabled water to be taken from respectivelyfive and three separate bores.The five bore consent[12] The five bore consent was originally a water permit granted by the Councilunder s 21(3) of the Water and Soil Conservation Act 1967 to Canterbury Frozen MeatCo Ltd. It was referred to in the Council's records as CRC900359.5 The term of theconsent was from 2 November 1990 to 30 April 1997. It was a consent to take up to14,512 cubic metres of water per day at a maximum of 238 litres per second from thefive bores "for meat processing purposes", in "connection with" land at "Belfast Road,Belfast".[13] That consent was replaced by CRC971556 granted under what was then s 105of the RMA to Primary Producers Co-Operative Society Ltd to take water from thefive bores "for industrial use". Its term was from 28 November 1997 to 1 July 2032.4 Aotearoa Water Action Inc v Canterbury Regional Council [2018] NZHC 3240, [2019] NZRMA316 at [148].5 The Council assigns resource consents a unqiue six figure number with the prefix CRC.This consent specified particular rates of extraction and volume-limits in respect ofeach of the five bores.[14] A notice of transfer of this resource consent to Rapaki under s 136 of the RMAwas provided to the Council on 6 September 2016. The Council form used providedfor a "full transfer" of the consent.[15] On receipt of the transfer, the Council issued a new consent, CRC172245, on16 September 2016. It authorised the take of groundwater from the five bores forindustrial use, subject to the same rates of extraction and volumes as had applied underCRC971556. The consent was to apply from 7 September 2016 and expire on 1 July2032.The three bore consent[16] The three bore consent was also granted under the Water and Soil ConservationAct, and commenced on 13 March 1969. The actual permit was not in evidence, buta summary of what was referred to as NCY700281F was provided, referring to theconsent location as cnr Blakes Road and Belfast Rd, Belfast. The permit was to "takefrom two 150mm bores and one 100mm bore for operation of freezing works andprocessing of its products". No limits as to volume or extraction rate were stated, andthere were no conditions.[17] Subsequently, on 30 November 2001, Primary Producers Co-OperativeSociety Ltd was granted consent CRC012609, to "take and use groundwater" from thethree bores at a rate not to exceed 70 litres per second. The consent was to expire on31 August 2035. It is relevant to note that the conditions imposed included thefollowing:2) An investigation of the efficiency of water use arising from theexercise of this consent over a period of one year commencing 1 June2002, shall be carried out. The consent holder shall provide a copy ofthe investigation results to Environment Canterbury by 1st September2003.The investigation shall: monitor total water use and total production;identify the types of use; measure the proportion of water in each typeof use; identify those areas where there is potential to reduce waterconsumption and the means of achieving the reduction.3) The consent holder shall take all reasonable steps to implement thosewater conservation measures identified in condition (2).[18] According to the evidence of Dr Philip Burge, the Council's Principal ConsentsAdvisor, this consent was transferred under s 136 of the RMA to Silver Fern Farms Ltdon 12 November 2015 (retaining the same CRC number), and then transferred again,on 20 November 2015, to Silver Fern Farms Management Ltd with the referenceCRC163841. A notice of transfer to Rapaki under s 136 of the RMA was received bythe Council on 6 September 2016. Once again, this was a full transfer of the consent,"[t]o take and use groundwater from three bores", at 66 Belfast Road, Belfast.[19] On 9 September 2016, the consent was reissued under a new numberCRC172118. It granted Rapaki a permit to take and use groundwater at66 Belfast Road from the three bores at a rate of up to 70 litres per second, for a termexpiring on 31 August 2035. The conditions that were previously attached toCRC012609, including conditions 2 and 3 quoted above, were repeated.Section 127 application[20] Section 127 of the RMA enables the holder of a resource consent to apply to aconsent authority for a change or cancellation of a condition of the consent. Theprovisions of the RMA relevant to resource consent applications6 apply to anapplication under s 127 as if it were an application for a resource consent for adiscretionary activity.7[21] On 13 July 2017, Rapaki submitted an application to the Council under s 127to "change or cancel a condition of a resource consent" in relation to both the five andthree bore consents. The application stated that it sought a "[c]hange of conditions ofCRC172245 and CRC172118 to allow the use of water for bottling purposes."The application stated that the change in use would result in a "very high efficiency ofuse of water", and that the overall proposal would result in a "reduction in contaminantbeing discharged to the environment". Rapaki asserted in the application that therewere no relevant policies in the LWRP. It then said:6 Sections 88–121.7 Section 127(3)(a).It appears that the LWRP does not concern itself with the use of water rather[it requires] that the volume of water taken is reasonable for the intended use(policy 5.65). As the take is already consented this is not applicable.[22] An assessment of environmental effects was included with the application.That assessment recorded:Water taken under permit CRC172245 and CRC172118 is currently consentedto be used for industrial use in this process water is taken from theChristchurch aquifer and discharged to the Bexley treatment plant /Waimakariri.The effect of the take is therefore fully consumptive on the Christchurchaquifers – i.e. no water is returned to the groundwater system through thecurrently consent[ed] process.Under the proposed bottling scenario, the take of water will remain with somewash-down water going to the Aquifer via the [Christchurch City Council]system.An imp[ortant] consideration is that this proposal will result in there no longerbeing a discharge of polluted water as associated with the current consenteduse.[23] The assessment concluded:In conclusion the effects of the change in use will have no additional negativeeffects, but will result in several positives. These include:• A very high level of water use efficiency. There will be very littlewastage of the water taken.• An improvement in environmental impact as polluted waterassociated with the existing consented use will no longer bedischarged to the Bexley treatment ponds.• The creation of jobs.• Investment in the Christchurch economy.[24] On 19 July 2017, the consent planning business support team at the Councilcontacted the Rūnanga as an interested party, by sending an email to the address onfile for the Rūnanga which was associated with Ms Amy Beran. The email noted thatthe subject site of the proposal was in a "silent file" area: an area identified as requiringspecial protection as a result of the presence of significant wāhi tapu (sacred places)or wāhi taonga (treasured possessions). A copy of the relevant application documentsand the location of the proposal were hyperlinked in the email. The Rūnanga wasrequested to respond by 26 July 2017, but no response was received. Consequently,Council officers concluded that the Rūnanga had no specific concerns about theproposal.[25] Given the unusual nature of the application, Council officers and in-housecounsel discussed how it should be processed. As explained in the affidavit of theDr Burge, three different options were considered:(a) not processing the application at all on the basis that commercial waterbottling fell within the scope of the "industrial use" permitted by theexisting five and three bore consents;(b) processing the application as one for a change of conditions, in the formin which it had been submitted; or(c) processing the application as an application for a new use of water, thetake of which had already been authorised by CRC172245 andCRC172118.An application to use water[26] Ultimately, the Council decided the application should be processed as anapplication for a new use, influenced by the wording in s 14 of the RMA. That sectionprovides:814 Restrictions relating to water(2) No person may take, use, dam, or divert any of the following, unlessthe taking, using, damming, or diverting is allowed by subsection (3):(a) water other than open coastal water [27] Council officers concluded that the separate references to "take" and "use"meant that a new use of water could be considered independently from a "take" ofwater, provided the relevant RMA considerations were taken into account. Because8 Emphasis added.the "take" component of the original five and three bore consents had previously beenexercised, Council officers considered the taking of the water formed part of theexisting environment against which the new use applications would be assessed.[28] The Council decided to treat the application as if it sought two consents, to usethe water taken under CRC172245 and CRC172118 respectively. Two new CRCnumbers were allocated to the applications: CRC180728 and CRC180729respectively.Processing the applications[29] Two reports dated 31 July 2017 were prepared under s 42A of the RMA by theCouncil's Principal Consent Planner, Mr Matt Smith, in relation to each application.In both cases, Mr Smith concluded that the "proposed use for bottling is outside thescope of the original application". Accordingly, the applications were treated asapplications for new water permits to use water under s 88 of the RMA. Mr Smithstated that in each case, the new use consent would be amalgamated with the existingconsent, resulting in one consent to "take and use" water. As the LWRP related onlyto the take and use of water, Mr Smith recorded that the activity was classified underthe "catch-all" provision in r 5.6 as a discretionary activity.9[30] Mr Smith agreed, in relation to both applications, with Rapaki's assessmentthat the proposed change in use would result in a highly efficient use of water and thatthe overall proposal would result in a reduction in contaminant discharged into theenvironment. He also agreed that there were no relevant policies in the LWRP relatingto use, and that no person would be affected by the change. He agreed with theconclusions in the assessment of environmental impacts submitted by Rapaki, andnoted his view that there would be "several benefits" to the change in use. In light ofthe activities allowed under the existing consents, he considered that "no additionaladverse effects [were] likely to occur".[31] Mr Smith concluded that neither public nor limited notification was requiredand recommended that the applications be processed on a non-notified basis.9 We refer in more detail to the relevant Land and Water Regional Plan (LWRP) provisions below.He recommended that the proposed consents expire on the same date as their existingcounterparts, and that they be subject to certain conditions including the installationof a water meter and recording device and a process for reviewing the conditions ofconsent.[32] A delegated decision-making panel consisting of Mr Paul Hopwood,Principal Consent Advisor, and Dr Burge dealt with both new use applications and thecorresponding amalgamations in a decision dated 8 August 2017.[33] The panel agreed with Mr Smith's assessment that public notification was notrequired under s 95A of the RMA because, among other things, the effects of theproposed use on the environment would be no more than minor and there were nospecial circumstances that required the application to be publicly notified. Althoughthe panel noted the "public interest in water bottling and allocation of water", they didnot consider that factor alone amounted to a sufficient basis to require publicnotification. As to limited notification under s 95B, the panel agreed that there were"no adverse effects on any person" nor any affected protected customary rights groups.[34] After considering Mr Smith's recommendations, the panel granted thesubstantive applications on the conditions outlined by Mr Smith. This resulted in thegrant of two new consents "[t]o use water" taken from the five and three bores:CRC180728 and CRC180729 respectively.[35] Those consents were then amalgamated with the original "take and use"consents for the five and three bores, and new consents were issued on 11 August2017. In relation to the five bores, CRC180311 granted a water permit "to take anduse water" (the amalgamated five bore consent). Similarly, CRC180312 granted awater permit to "[t]o take & use water" from the three bores (the amalgamated threebore consent). In both cases, the terms of the new amalgamated consents providedthat "[w]ater shall only be used for commercial bottling operations".[36] Both of the consents granted on 11 August 2017 were very brief. CRC180728granted Rapaki a water permit "[t]o use water" at Belfast Road and Factory Road,Belfast. It had a commencement date of 11 August 2017, and an expiry date of1 July 2032. It included a further statement that it was "subject to the followingconditions":In addition to uses listed under CRC172245, water taken under CRC172245may also be used for commercial bottling operations.[37] CRC180729 was in similar terms, relating to CRC172118. Once again, it hada commencement date of 11 August 2017, and there was a slightly later expiry date of31 August 2035. And it contained the following "conditions": 10In addition to uses listed under CRC172118, water taken under CRC172245[sic] may also be used for commercial bottling operations.[38] The amalgamation of the new consents to use with the existing consentsCRC172245 and CRC172118 under CRC180311 and CRC180312 was anadministrative step which Dr Burge acknowledged had no formal basis in the RMA.He explained:Since the RMA came into force, large numbers of water permits have beenobtained on a piecemeal basis as the social and economic requirements ofconsent holders have changed. These consents have been obtained either vianew applications (where there was water available) and/or by the transfer ofexisting consents.Transfers of water permits have occurred either as an administrative transferon sale and purchase of a property (i.e. under section 136(1) or section136(2)(a) of the RMA), or via a site-to-site transfer (section 136(2)(b) of theRMA). This often results in a complicated web of overlapping andcross-referenced consent documents, which are confusing to administer, bothfor Council officers and consent holders.The 'amalgamation' of resource consents is therefore undertaken in someinstances in order to simplify the administrative burden for all parties.In regard to these specific consents, the 'amalgamation' of the Rapaki (andCloud Ocean) consents was undertaken as a separate decision following theprocessing, consideration (under the relevant RMA matters as outlined in thes42A and decision reports) and granting of the standalone 'use' permits.Should the decision to 'amalgamate' the original Rapaki (and Cloud Ocean)consents and the standalone 'use' permits be considered unlawful (but thegranting of the separate use permits not unlawful), the consent holders wouldtherefore revert to using the non-amalgamated consents.10 The reference to CRC172245 here must be a mistake; what was intended must have been to referto CRC172118.[39] On 14 February 2018 the amalgamated five bore consent was partiallytransferred to Cloud Ocean, under CRC183763. A new water permit was issued toRapaki, CRC183761, described as "partial transfer CRC180311 – to take and usewater" for a term commencing on 14 February 2018 and expiring on 1 July 2032. Itauthorised Rapaki "to take and use" a combined total of 5,117,780 cubic metres ofwater annually from the same bores specified in CRC180311. That figure reflectedthe total water allocated to Rapaki under CRC180311 (a maximum of 5,317,780 cubicmetres per year), less the maximum of 200,000 cubic metres per year which wereallocated to Cloud Ocean concurrently (in relation to one of the bores specified inCRC180311) under CRC183763. The water could "only be used for commercialbottling operations".[40] Although CRC183761 and CRC183763 are not directly challenged in thejudicial review proceedings, a successful challenge to CRC180311 (the five boreamalgamated consent) resulting in it being set aside would also defeat any subsequentconsents issued in reliance on it.The Cloud Ocean consents[41] On 1 May 1997, the Council granted to Kaputone Woolscour Ltd a waterpermit to take groundwater at Station Road, Belfast for "industrial use". The consent,CRC971084 in the Council's records, was to expire on 30 April 2032, and specified avolume not exceeding 4,320 cubic metres per day.[42] A notice of transfer to Canterbury Land Resources Ltd under s 136 of the RMAwas received by the Council on 11 April 2017. The transfer was a "full transfer" ofCRC971084. The Council reissued the consent to Canterbury Land Resources Ltdunder CRC175585. A subsequent notice of transfer from Canterbury Land ResourcesLtd to Cloud Ocean was provided to the Council in April 2017, confirmed byCloud Ocean in a notice given on 9 May 2017. The Council then reissued the consentto Cloud Ocean on 15 May 2017, under CRC175895. It remained a consent to takewater for industrial use, with the same limit of 4,320 cubic metres per day.[43] On 30 November 2017, Cloud Ocean made an application to the Council foranother resource consent. It was submitted in the form of an "Application forResource Consent to Take and Use Groundwater" under s 88 of the RMA, and sought"[a] water permit to allow the water taken under CRC175895 to be used for bottlingpurposes". The application stated that as the proposed use for water bottling wasconsidered to be outside the scope of the original application, the application had beenlodged as an application for a new permit to use water. For ease of administration,Cloud Ocean requested that the new water permit be amalgamated with the existingconsent.[44] Cloud Ocean stated the proposed new use sought to achieve the purposes ofthe RMA by promoting a "very high efficiency of use of water", and a reduction incontaminants being discharged into the environment.11 An assessment ofenvironmental effects was included with the application. Cloud Ocean stated thatwater taken under the existing consent was "currently consented" to be used for woolscour purposes, under which water would be taken from the Christchurch aquifer andwastewater discharged to the Christchurch City Council wastewater system.In contrast, using the consent for water bottling activities would "result in there nolonger being a discharge of contaminants related to the wool scour activities".In terms of sch 4, cl 6(1) of the RMA, Cloud Ocean stated the proposed change in use:(a) would not result in a significant adverse effect on the environment;(b) did not involve the use of hazardous substances or installations;(c) resulted only in "positive" effects that did not require mitigation;(d) would not affect any person, and therefore no consultation had beenundertaken;(e) did not require any special monitoring; and(f) would not have adverse effects that were more than minor on theexercise of a protected customary right.11 Resource Management Act, s 7(b) and (f).[45] As with Rapaki's application, the application submitted by Cloud Ocean statedthat there would be "positive effects" including a high level of water use efficiency,improved environmental impacts and the creation of employment and investment inthe Christchurch economy. The assessment stated:In conclusion, the effects of including the ability for water taken underCRC175895 to be used for bottling will have no additional negative effects,but will result in several positives.[46] Council officers assessed the Cloud Ocean application in the same manner asthe Rapaki applications. A detailed report was prepared by Mr Carlo Botha unders 42A of the RMA, dated 21 December 2017. It dealt with two applications:CRC182812, an application for a water permit to use water for commercial waterbottling; and CRC182813, an application to amalgamate CRC182812 with the existingwool scour consent.[47] Mr Botha agreed with Cloud Ocean's assessment that no persons would beadversely affected by the applications. He noted that the Council had contactedthe Rūnanga, the Christchurch City Council, the North Canterbury District HealthBoard and Fish and Game New Zealand as interested parties on 4 December 2017,requesting that any response be received by 11 December 2017. The contact addressused for the Rūnanga was the same as that which had been used on 19 July 2017 inrelation to the Rapaki applications. The only response received was from theChristchurch City Council, which was disregarded as it related to a different bore.12[48] Although Cloud Ocean had not provided a description of the affectedenvironment with its application, Mr Botha noted that, among other matters, thesubject site was located within the Christchurch/West Melton Groundwater AllocationZone (as defined by the planning maps in the LWRP) in which the water was fullyallocated. Mr Botha also noted that the subject site was located within a silent filearea but was not within a "Statutory Acknowledgment Area or Rūnanga SensitiveArea".12 This was BX24/1577 for which consent was granted on 1 August 2017. The process of obtainingconsent for that bore and Cloud Ocean's subsequent application to take and use water from it arediscussed below at [64].[49] As to potential adverse effects on the environment and aquifer, Mr Botha notedthat Cloud Ocean had stated that the proposed new use would be "fully consumptive",and would not, unlike a wool scour, result in the discharge of contaminated water.On that basis, Mr Botha concluded that the "effects on the aquifer due to the changein use will be no greater than those allowed by the existing water permit".[50] Mr Botha then turned to whether there would be any adverse effects ontangata whenua values. He noted that the relevant site was situated within the rohe ofthe Rūnanga and within a silent file area. However, although the Rūnanga had beenapproached for comment on 4 December 2017, no response to that request had beenreceived. Mr Botha recorded that he had assessed the proposal against the relevantpolicies contained in the Manaanui Iwi Management Plan: the iwi management planfor the Rūnanga. Because there would be no effects on the aquifer, other groundwaterusers and the wider environment additional to those already authorised pursuant toCRC175895, Mr Botha concluded that the proposal for the new use was consistentwith the relevant policies in the Iwi Management Plan. Accordingly, he concludedthat the proposal would have no additional adverse effects on tangata whenua valuesbeyond what had been previously authorised.[51] He also agreed with Cloud Ocean that the change in use would have a numberof positive effects, including a high level of water efficiency, an improvement inenvironmental impact due to contaminants not being discharged, the creation ofemployment and investment in the Christchurch economy.[52] Turning to public notification under s 95A of the RMA, Mr Botha noted thatthe application had been "subject to extreme public scrutiny", including a petition torescind the existing consent on the basis of climate change and public sentiment. Asa result of that opposition, Mr Botha gave consideration whether special circumstancesexisted that would require the application to be notified. He concluded that whilepublic interest was a factor it was not in itself sufficient to constitute "specialcircumstances" requiring notification.13 He concluded that notification would notprovide additional information that might inform the substantive decision. That was13 Citing Murray v Whakatāne District Council [1999] 3 NZLR 276 (HC).because the public scrutiny and debate focused mainly on the take of water (as opposedto its use) and the take was part of the existing "consented environment" and wouldremain in place even if Cloud Ocean's application for a new use was declined.[53] After concluding there were no affected persons required to be notified unders 95B, Mr Botha recommended that the application be decided on a non-notified basis.He recommended that the substantive application should be granted, with certainconditions relating to the rate and volume of the water, monitoring and a process forreview of the consent conditions.[54] A decision on notification and the substantive Cloud Ocean application wasmade by Dr Burge as delegated decision-maker on 21 December 2017. Dr Burgenoted that opposition had been voiced by members of the public, and that a letter hadbeen received by the Council on 15 December 2017 from Mr Peter Richardson, asolicitor of Linwood Law, on behalf of "certain parties" that had instructed the firm inrespect of their concerns with the application. The "interested parties" to whomMr Richardson referred would later become AWA. In his letter, Mr Richardsoncanvased various concerns about Cloud Ocean's application and the Council'streatment of it, including the alleged incompleteness of Cloud Ocean's application interms of sch 4 of the RMA, the Council's separation of the "take" and "use" of theoriginal consent, and the fact the wool scour consent was not being utilised and thusshould not be treated as part of the existing environment[55] Dr Burge dealt with those concerns as a "preliminary matter". Whileacknowledging the issues raised by Mr Richardson, he stated: exercised consents (and granted consents that are likely to be exercised)form part of the existing environment in terms of considering furtherapplications under the RMA. I consider that the fact that the take is alreadyconsented needs to be taken into consideration when processing thisapplication for a change in the use of that water.[56] Dr Burge noted that as the holder of CRC175895, Cloud Ocean was entitledto re-establish the wool scour "at its full rate of take" without requiring any furtherconsideration by the Council. Although acknowledging Mr Richardson's statementthat Cloud Ocean had shown no indication of doing so, Dr Burge noted that "the factremains that if the consent holder chose to do so, they could and the Council wouldhave no grounds to prevent that". He concluded:Having given consideration to the matters above, I conclude that the effects ofthe take form part of the existing (consented) environment, and are outside ofwhat should be examined in regard to the proposed change in the use of water.The application has therefore been processed and considered as a new waterpermit to use water (CRC182812).[57] Turning to the question of notification, Dr Burge agreed with Mr Botha'sassessment of the adverse environmental effects in the s 42A report and adopted hisconclusions. Dr Burge also accepted Mr Botha's assessment that the activity shouldbe classified as a discretionary activity under r 5.6 of the LWRP.[58] Dr Burge recorded that in addition to the matters discussed by Mr Botha in hiss 42A report, there had also been "some public concern about the effect of increasednumbers of plastic bottles" on the environment. Dr Burge noted that he had consideredwhether conditions could be imposed to address that issue. Given the number ofintervening parties involved prior to the ultimate disposal of a plastic bottle, Dr Burgewas of the view that it was difficult to see how imposing a condition related to the enddisposal could reasonably be considered "'directly' connected to the 'activity'" asrequired by s 108AA of the RMA. He noted that if Cloud Ocean were held responsiblefor the disposal of plastic bottles, that line of reasoning could equally be applied to allactivities related to the use of water which involved plastic packaging in the endproduct. Were consent holders held responsible for the actions of "significantlyremoved" third parties, that would effectively shut down most industries that requiredplastic packaging on the basis of the actions of a third party.[59] Dr Burge concluded:While I consider that the proliferation of plastic bottles in the environment isan issue, it arises due to inappropriate disposal of those bottles by the end user.It is unreasonable to prevent applicants from obtaining a consent for anactivity on the basis that third parties outside their control might dispose ofthe packaging (in this case plastic bottles) inappropriately. This would be anunreasonable expectation for any party who wished to make use of a naturalor physical resource, not just water bottles.[60] He then turned to whether there were "special circumstances" requiring publicnotification. Like Mr Botha, Dr Burge concluded that notification would not provideadditional information that might inform the substantive decision, and thus publicnotification on the basis of special circumstances was not required. He also agreedwith Mr Botha's reasoning on limited notification under s 95B and concluded that theapplication should proceed on a non-notified basis.[61] Dr Burge adopted Mr Botha's discussion of the matters in s 104 of the RMAin terms of the substantive decision. He concluded that as the effects of the change inuse would be no more than minor and the proposal was consistent with the relevantprovisions in the planning documents, the proposal would (subject to conditions)achieve the purposes of the RMA. Dr Burge therefore granted the applications withthe conditions recommended by Mr Botha and for a period consistent withCRC175895, the original wool scour consent.[62] Consent CRC182812 was then issued, commencing on 22 December 2017. Itgranted consent to what it described as an "Application for Change in Conditions",and stated it was to "change condition in CRC175895 - to take groundwater forindustrial use." The consent was granted in these terms:Water taken under CRC175895, may also be used for commercial waterbottling operations as consented by CRC182813.It was granted for the period to 30 April 2032.[63] CRC182813 (the amalgamated Cloud Ocean consent), was issuedconcurrently, commencing on 21 December 2017. It granted a consent to "take & usegroundwater" with a volume not exceeding 4,320 cubic metres per day, and 1,576,800cubic metres annually. Condition 3 provided that "[w]ater shall only be used forcommercial water bottling operations".The deep bore consent[64] On 11 July 2017, Clemence Drilling Contractors Ltd had submitted anapplication for a resource consent on behalf of Cloud Ocean "to construct a bore" onthe same site as the wool scour consent. The application was granted on 1 August2017, resulting in consent CRC180265, authorising Cloud Ocean "to install a bore"(the deep bore consent). A 186 metre deep bore was drilled pursuant to that consent.As the deep bore consent did not authorise the take of water, on 23 October 2018Cloud Ocean applied for a variation of its amalgamated consent to enable water to betaken from the original 33.1 metre deep bore or the new 186 metre deep bore.[65] The Council accepted the application could appropriately be processed as anapplication to change the conditions of CRC182813 (the Cloud Ocean amalgamatedconsent) pursuant to s 127 of the RMA.[66] Mr Jason Eden prepared a s 42A officer's report dated 3 December 2018.While stating that he agreed with Cloud Ocean's assessment that there would be noparties affected by the proposal, for "completeness" he addressed the concerns raisedby a number of interested parties who had been informed of the consent applicationby the Council. These parties relevantly included the Rūnanga, on behalf of which aresponse had been provided by Mahaanui Kurataiao Ltd on 28 November 2019, andAWA. The Rūnanga opposed both the application and the existing activity.They recorded that they considered themselves an affected party. Mr Eden also notedthat a further response had been received from Dr Te Marie Tau, outlining theRūnanga's concerns with water bottling. However, Mr Eden stated that he did notconsider that issue could be assessed because they did not arise from the application;the effects to be assessed were "restricted to those arising from the proposed change".[67] The concerns expressed by the Rūnanga were addressed by Mr Eden in hisassessment of actual and potential effects. He stated:It is my view that the concerns held by Ngā Rūnanga relate more to effectsthat were required to be considered for the grant of the original consent, as theconcerns raise[d] relate primarily to the allocation and the use of the water.Those matters are not in my view effects which arise from the change ofconditions proposed.Acknowledging the concerns raised by Mahaanui Kuratai[a]o Ltd andDr Te Maire Tau, as the application is for a change of conditions, the scope ofeffects able to be considered are those that arise directly from the changesought.I have concluded that there will be no change in cumulative effects, streamdepletion and the wider environment outside that currently authorised byCRC182813 due to the abstraction rate and volumes remaining the same.Effects on surrounding groundwater users have furthermore been consideredas less than minor.I consider that effect of the change of conditions proposed will be less thanminor on Ngā Rūnanga and [t]angata [w]henua values.[68] As to AWA's opposition, Mr Eden concluded that as AWA did not own boresor land within the vicinity of the proposed take, it was not an "affected party" for thepurposes of the application for a change of conditions.[69] After considering the relevant policies in the Canterbury Regional PolicyStatement 2013 and rules in the LWRP, Mr Eden turned to the issue of notification.He considered no special circumstances existed that would require the application tobe publicly notified. Nor did he consider limited notification was required pursuantto s 95B of the RMA. Mr Eden recommended that the application be granted on anon-notified basis.[70] Both notification and the substantive application were considered in a decisionof an Independent Hearings Commissioner, Richard Fowler QC, dated 12 December2018. Mr Fowler agreed with Mr Eden's recommendation that the application shouldbe granted on a non-notified basis, subject to conditions.[71] As Dr Burge acknowledged, if CRC182813 (the amalgamated Cloud Oceanconsent) were quashed the subsequent variation enabling water to be taken from thedeeper bore would also fall away, with the result that Cloud Ocean would be requiredto reapply for a variation of the "pre-amalgamation water permit" (CRC175895) toenable water to be taken from the deeper bore. There is no direct attack onCRC182813 in the present proceeding.Aotearoa Water Action Inc[72] AWA was incorporated on 5 February 2018 for the purpose of challenging theconsents granted to Rapaki and Cloud Ocean. A member of AWA, Nicolette Gladding,explains how AWA has the wider purpose of "protect[ing] New Zealand's freshwaterresource[s]" and has focused on "water sovereignty" and, in particular, the growth ofthe water bottling industry in New Zealand. AWA is concerned to ensure there issufficient water to meet increasing domestic needs resulting from climate change andpopulation growth. It is also concerned about the effects of increased numbers ofplastic bottles in the environment.[73] Ms Gladding states that AWA first became aware of the consents sought byCloud Ocean in May 2017, and initially all communications with Council officerswere made in the context of the Cloud Ocean proposal. In the course of thatcorrespondence, AWA became aware of the Rapaki consents.[74] On 30 January 2018, before the application for judicial review was filed,counsel for AWA, Ms Steven QC, wrote to both Rapaki and Cloud Ocean in the sameform. In her letters to both companies, Ms Steven stated that the consents purportingto allow the "take and use" of water for bottling purposes would be challenged byjudicial review, and that "[a]ny works undertaken by you in furtherance ofimplementing those consents is now at your own risk". A statement of claim was filedin the High Court at Christchurch on 5 March 2018.[75] In addition to this summary of the process that was followed it is necessary tosay something about the Regional Plan provisions relevant to the process followed bythe Council.The Regional Plan[76] Dr Burge noted that the Council's previous Regional Plan, called theNatural Resources Regional Plan, clearly distinguished between rules regulating thetake of water, and those regulating the use of water. The current plan, the CanterburyLWRP, replaced the Natural Resources Regional Plan and contains specific ruleswhich control the "taking or use of water", and other rules that control the "taking anduse of water".[77] Rule 5.120 refers to:The taking of water from groundwater for the purpose of de-watering forcarrying out excavation, construction, maintenance and geotechnical testingand the associated use and discharge of that water [78] There are two rules concerning water in canals and water storage facilities.Rule 5.121 controls the "taking or use of water from irrigation or hydroelectric canalsor water storage facilities" providing that it is a permitted activity if certain conditionsare met. Rule 5.122 provides that if the conditions are not met, then the "taking oruse" of the water is a discretionary activity.[79] Rule 5.123 is about the "taking and use of surface water from a river or lake".That is a restricted discretionary activity provided certain conditions are met.The Council has restricted the exercise of its discretion to a number of matters, asfollows:1A. The rate, volume and timing of the take; and1. The actual or potential adverse environmental effects on water quality,including whether the activity, in combination with all other activities,will alter the water quality allocation status of the relevant catchment;and2. Whether the amount of water to be taken and used is reasonable forthe proposed use. In assessing reasonable use for irrigation purposes,the [Council] will consider the matters set out in Schedule 10; and3. For water used for irrigation, the management of water allocation andresulting nutrient discharges on individual farms; and4. The potential effects on groundwater recharge where the groundwaterallocation zone is fully or over allocated as set out in Sections 6 to 15;and5. The availability and practicality of using alternative supplies of water;and6. The effects the take has on any other authorised takes or diversions;and7. The potential to frustrate or prevent the attainment of the regionalnetwork for water harvest, storage and distribution, shown on theRegional Concept diagram in Schedule 16; and8. The reduction in the rate of take in times of low flow and restrictionsto prevent the flow from reducing to zero as set out in policies to thisPlan; and9. Whether and how fish are prevented from entering the water intake;and10. The provisions of any relevant Water Conservation Order; and11. The proximity and actual or potential adverse environmental effectsof water use on any significant indigenous biodiversity and adjacentdry land habitats; and12. Where the proposed take is the replacement of a lawfully establishedtake affected by the provisions of Section 124-124C of the RMA andis from an over-allocated surface water catchment, the reduction in therate of take and volume limits to enable reduction of the over-allocation; and13. Where the water is to be used for irrigation, the preparation andimplementation of a Farm Environment Plan in accordance withSchedule 7 that demonstrates that the water is being used efficiently.[80] Rules 5.124 and 5.125 then provide as follows:5.124 The taking and use of surface water from a river or lake that does notmeet one or more of the conditions of Rule 5.123, excluding condition1, is a non-complying activity.5.125 The taking and use of surface water from a river or lake that does notmeet condition 1 in Rule 5.123 is a prohibited activity.[81] Rule 5.125C is a special rule dealing with hydroelectricity generationassociated with particular named schemes. This rule refers to the "take and use ofwater."[82] Rule 5.126 is about the "non-consumptive taking and use of water from a lake,river or artificial watercourse and discharge of the same water" to the same source.That is established as a restricted discretionary activity, provided certain conditionsare met. Where the conditions are not met, the non-consumptive taking and use of thewater is a non-complying activity pursuant to r 5.127.[83] Rule 5.128 provides that the "taking and use of groundwater is a restricteddiscretionary activity" provided certain conditions are met. It is this rule that is mostrelevant in the present case. The conditions are as follows:1. The take is from within a Groundwater Allocation Zone on thePlanning Maps; and2. Unless the proposed take is the replacement of a lawfully establishedtake affected by the provisions of section 124-124C of the RMA, forstream depleting groundwater takes, the take, in addition to allexisting consented surface water takes, does not result in anyexceedance of any environmental flow and allocation limits set inSections 6 to 15 for that surface waterbody in accordance withSchedule 9; and3. Unless the proposed take is the replacement of a lawfully establishedtake affected by the provisions of section 124-124C of the RMA, theseasonal or annual volume of the groundwater take, in addition to allexisting consented takes, as determined by the method in Schedule 13does not exceed the groundwater allocation limits for the relevantGroundwater Allocation Zone in Sections 6 to 15; and4. Unless the proposed take is the replacement of a lawfully establishedtake affected by the provisions of sections 124-124C of the RMA, thebore interference effects on any groundwater abstraction other than anabstraction by or on behalf of the applicant are acceptable, asdetermined in accordance with Schedule 12.The exercise of discretion is restricted to the following matters:1A. The rate, volume and timing of the take; and1. Whether the amount of water to be taken and used is reasonable forthe proposed use. In assessing reasonable use for irrigation purposes,the [Council] will consider the matters set out in Schedule 10; and2. The availability and practicality of using alternative supplies of water;and3. The maximum rate of take, including the capacity of the bore or borefield to achieve that rate, and the rate required to service any irrigationsystem; and4. The actual or potential adverse environmental effects on surface waterresources if the groundwater take is within a surface water catchmentwhere the surface water allocation limit, as set out in Sections 6 to 15is fully or over allocated; and5. Unless the proposed take is the replacement of a lawfully establishedtake affected by the provisions of sections 124-124C of the RMA, theactual or potential adverse environmental effects the take has on anyother authorised takes, including interference effects as set out inSchedule 12; and6. For stream depleting groundwater takes, the matters of discretionunder Rule 5.123; and7. Whether salt-water intrusion into the aquifer or landward movementof the salt water/fresh water interface is prevented; and8. The proximity and actual or potential adverse environmental effectsof water use to any significant indigenous biodiversity and adjacentdryland habitats; and9. The protection of groundwater sources, including the prevention ofbackflow of water or contaminants; and10. Where the proposed take is the replacement of a lawfully establishedtake affected by the provisions of Section 124-124C of the RMA andis from an over-allocated groundwater allocation zone, the reductionin the rate of take and volume limits to enable reduction of the over-allocation; and11. Where the water is being used for irrigation, the preparation andimplementation of a Farm Environment Plan in accordance withSchedule 7 that demonstrates that the water is being used efficiently.[84] Rules 5.129 and 5.130 provide as follows:5.129 The taking and use of groundwater that does not meet one or more ofconditions 1 or 4 in Rule 5.128 is a non-complying activity.5.130 The taking and use of groundwater that does not meet one or more ofconditions 2 or 3 in Rule 5.128 is a prohibited activity.[85] The Council considered that neither the Rapaki nor the Cloud Ocean consentswere appropriately dealt with under any of the provisions above, including r 5.128.Rather, the Council processed the applications as discretionary activities under r 5.6,which provides as follows:Any activity that—(a) would contravene sections 13(1), 14(2), s14(3) or s15(1) of the RMA;and(b) is not a recovery activity; and(c) is not classified by this Plan as any other of the classes of activitylisted in section 87A of the RMA— is a discretionary activity.First issue — is water bottling a use of water?[86] It is logical to deal with this issue first: if the argument made byMr Gardner-Hopkins is correct, the consequence would be that the Council could notgrant a consent for the activity of water bottling, since that would not be a usecontemplated by s 14 of the RMA.[87] In order to place the argument in context it is appropriate first to set out s 14 ofthe RMA. It provides as follows:14 Restrictions relating to water(1) No person may take, use, dam, or divert any open coastal water, ortake or use any heat or energy from any open coastal water, in amanner that contravenes a national environmental standard or aregional rule unless the activity—(a) is expressly allowed by a resource consent; or(b) is an activity allowed by section 20A.(2) No person may take, use, dam, or divert any of the following, unlessthe taking, using, damming, or diverting is allowed by subsection (3):(a) water other than open coastal water; or(b) heat or energy from water other than open coastal water; or(c) heat or energy from the material surrounding geothermalwater.(3) A person is not prohibited by subsection (2) from taking, using,damming, or diverting any water, heat, or energy if—(a) the taking, using, damming, or diverting is expressly allowedby a national environmental standard, a rule in a regional planas well as a rule in a proposed regional plan for the sameregion (if there is one), or a resource consent; or(b) in the case of fresh water, the water, heat, or energy is requiredto be taken or used for—(i) an individual's reasonable domestic needs; or(ii) the reasonable needs of a person's animals fordrinking water,—and the taking or use does not, or is not likely to, have anadverse effect on the environment; or(c) in the case of geothermal water, the water, heat, or energy istaken or used in accordance with tikanga Maori for thecommunal benefit of the tangata whenua of the area and doesnot have an adverse effect on the environment; or(d) in the case of coastal water (other than open coastal water),the water, heat, or energy is required for an individual'sreasonable domestic or recreational needs and the taking, use,or diversion does not, or is not likely to, have an adverse effecton the environment; or(e) the water is required to be taken or used for emergency ortraining purposes in accordance with section 48 of the Fireand Emergency New Zealand Act 2017.[88] It is also necessary to note the definition of "water" in s 2 of the RMA:water—(a) means water in all its physical forms whether flowing or not andwhether over or under the ground:(b) includes fresh water, coastal water, and geothermal water:(c) does not include water in any form while in any pipe, tank, or cistern[89] Mr Gardner-Hopkins submits that in this case the proposals in each caseinvolve water being taken from the ground, pumped to the bottling site in pipes and,after a filtering process, placed into water bottles. He argues that, once taken from theground at the outset of this process, the water is no longer within the definition,because it is in a pipe and para (c) of the definition excludes it. Mr Gardner-Hopkinsclaimed that, the bottles in which it is placed are within the concept of tank or cistern,and consequently not water at that point either. It follows that the water is not waterthat can be the subject of a resource consent under s 14(3)(a) since the prohibition insubs (2) would not apply. The Council was not entitled to grant consent for a separatewater bottling use, and then seek to amalgamate it with the existing "take and useconsents" for the freezing works and wool scour. The argument is that any newconsent would have had to be for a fresh take for an activity comprising the combinedtaking of water for the purpose of water bottling. And that consent could not havebeen granted, because of the fact that water in the catchment is fully allocated and thatwould be prohibited under the LWRP.[90] For the Council, Mr Maw noted that this issue had not been directly addressedin the High Court, nor raised in the grounds of appeal. He submitted the argumentrelied on an artificial distinction between water bottling and other activities in whichwater was piped, such as irrigation. It was not appropriate to treat the bottles in whichthe water was placed as equivalent to tanks or cisterns, because that would be contraryto the dictionary definitions of those terms.[91] We have not been persuaded by Mr Gardner-Hopkins' argument on this point.We consider the relevant statutory provisions are to be construed on the basis that thewater, once taken from the ground, is not water while it remains in the pipe. Once itleaves the pipe it is water again, for the purposes of the statute. We do not accept thata bottle is to be regarded as a tank or cistern for the purposes of the definition.[92] The definition of "water" is an important provision in the RMA, because it iscentral to the provisions controlling not only the taking and use of water (s 14), butalso those controlling the discharge of contaminants into water, whether directly orindirectly (s 15(1)(a) and (b)), and the discharge in the coastal marine area of harmfulsubstances from ships or offshore installations (s 15B). The controls set out in theseprovisions are matched by the allocation of functions to regional councils unders 30(1)(e) and (f) of the Act, and the obligations in respect of regional policystatements and plans set out in pt 5, subpt 3 of the Act. The definition appears to havebeen carefully drafted to ensure that it is appropriate for the various contexts in whichit has to be applied under the Act.[93] The first thing to notice about the definition of water is that it is intended to bebroadly inclusive. By virtue of para (a) it extends to water in all its physical forms,and "whether flowing or not" and "whether over or under the ground". The terms"fresh water", "coastal water" and "geothermal water" are specifically included bypara (b). These kinds of water are referred to in other specific provisions of the RMA,and have their own definitions in s 2. Possibly, without the reference to them inpara (b) there might have been doubt about whether they were within the concept of"water in all its physical forms", but any such doubt is removed by the specific wordsof para (b). In the circumstances we see para (b) as expressly including kinds of waterthat would have been included under para (a) in any event.[94] After these broad statements of what is included in the definition of water, para(c) of the definition then creates an exclusion. It is for water (as has been broadlydefined) "while in any pipe, tank, or cistern". The natural and ordinary meaning ofthis provision is that for the period in which the water is in a pipe (or tank or cistern)it is no longer water. But once it is no longer in the pipe (or tank or cistern), it is nolonger excluded.[95] We think it would be a strained use of language to describe water placed in abottle as having been placed in a tank or cistern. According to the New Zealand OxfordDictionary, a "tank" is "a large receptacle or storage chamber usu[ally] for liquid orgas".14 A "cistern" is defined as "a tank for storing water, esp[ecially] one in a roofspace supplying taps or as part of a flushing toilet".15 These words are not synonymouswith bottle, which is defined as "a container, usu[ally] of glass or plastic and with anarrow neck, for storing liquid".16[96] We do not think it matters in this case that the water is placed in a containeronce it leaves the pipe, and so will not have a direct effect on the environment oncethat happens. While many uses of water result in a discharge into the environment,discharges are dealt with under s 15(1) of the Act; it is not possible to limit the ordinarymeaning of "use" on the basis that the water is used for the purpose of bottling and notdischarged.[97] In the circumstances we conclude that when water leaves the pipe and entersthe bottle, that amounts to a use of water covered by the prohibition in s 14(2) of theRMA, unless s 14(3) applies.Second issue — must applications for take and use be considered together?[98] Mr Gardner-Hopkins submitted that the primary issue is whether the Councilhad the ability to grant a resource consent to "use" water for bottling purposes,separately to the authorisation to take the water so used. He argued that under theLWRP both take and use are to be considered together and because the water in therelevant catchment has been fully allocated any new application for consent to "takeand use" would be prohibited.[99] The High Court held that there was nothing on the face of ss 14 or 30 of theRMA which suggested the ability to grant a resource consent to "use" water was in14 Graeme Kennedy and Tony Deverson (eds) The New Zealand Oxford Dictionary(Oxford University Press, Melbourne, 2008) at 1147.15 At 200.16 At 127.any way limited with the effect that a use permit could only ever be granted as part ofa "take and use" consent.17[100] We have earlier set out s 14. Section 30 sets out the functions of regionalcouncils, to be exercised for the purpose of giving effect to the RMA. One of thefunctions set out in subs (1)(e) is:(e) the control of the taking, use, damming, and diversion of water, andthe control of the quantity, level, and flow of water in any water body,including—(i) the setting of any maximum or minimum levels or flows ofwater:(ii) the control of the range, or rate of change, of levels or flowsof water:(iii) the control of the taking or use of geothermal energy:[101] The Judge considered that it was implicit in the drafting of both ss 14 and 30that there could be a consent for either use or take separately. He found support forthis view in this Court's judgment in Central Plains Water Trust v Ngāi TahuProperties which he treated as authority for the proposition that separate applicationscould be made for the take or use of water.18 The Judge also referred to a decision ofthe Environment Court in P & E Ltd v Canterbury Regional Council, noting that Courthad not considered it unusual for applications for consent to use water to be dealt withseparately from a hearing "over the application for a take".19[102] He also observed that some provisions in the LWRP dealt with taking and useof water conjunctively, others referred to the taking or use "disjunctively". He rejectedan argument put to him on behalf of AWA that use of the water for commercial bottlingwas not a use in the sense referred to in s 14 or other relevant sections of the RMA,but was instead simply the "purpose of the take".20 He considered the suggestedinterpretation was at odds with the terms of the original consents and noted that, in thedecision on the preliminary question, the High Court had found that the scope of the17 High Court judgment, above n 2, at [104].18 At [111], referring to Central Plains Water Trust v Ngāi Tahu Properties [2008] NZCA 71, [2008]NZRMA 200.19 At [114]–[115], referring to P & E Ltd v Canterbury Regional Council [2015] NZEnvC 106 at [9].20 At [122]–[131].use for which the takes had originally been granted was limited by the use for whichthe consents had originally been sought: for a meat processing plant in the case of theRapaki consents, and a wool scour in the case of the Cloud Ocean consent.21 Hedetermined that the use of water now proposed for commercial bottling was a use ofwater in terms of s 14, and able to be the subject of an application for consent "to achange of use".22[103] He concluded:[132] I have thus concluded that s 14 is to be interpreted in accordance withwhat appears to be its plain meaning. Section 14 permits a council to consideran application for a change of use from an already consented take withoutrequiring it to be treated as an application for both a take and use consent.[133] There was no error in the Council processing the applications asapplications for approval of a change in the use of water from alreadyconsented takes without having to consider whether it should also approvethose takes.[104] Mr Gardner-Hopkins accepted that there could be separate applications forconsent to use water and to take water, and that s 14 did not always require thoseapplications to be sought together or at the same time. However, he argued that in thecircumstances of this case take and use were necessarily to be considered togetherpartly because the original take consents had been granted for a particular purpose andthe new purpose now proposed could not be considered on its own without freshconsideration of whether a take was appropriate.[105] He submitted that the existing take had been granted for a very specificpurpose, and it would be against the policy of the RMA for that take to be relied on orutilised for a different purpose. The volumes for which consent was originally grantedhad been considered and granted with the particular purpose in mind. So too, thebenefits of that take, what the water would be utilised for, and how much water wasneeded for that particular purpose were all integral to the grant of the consent.He maintained that where a new activity is proposed, consent should be sought forboth the take and the use together so that the consent authority can consider whetherthe take is appropriate as well as the use in terms of any efficient use of that take or21 At [123], referring to Aotearoa Water Action Inc v Canterbury Regional Council, above n 4.22 At [131].any other effects of the use arising. In the present case, there should have been a freshapplication for a take and use so that both were able to be considered together.The problem arising from the fact that water in the existing catchment was fullyallocated with the result that no further take consent could be granted could beovercome by surrender of the existing take consent. Alternatively, application couldbe made for a new take and use consent, but on the basis that if it were granted theearlier consent would be surrendered, or the two would simply not be exercisedtogether.[106] For the council, Mr Maw supported the reasoning in the High Court judgment.He submitted that s 14 of the Act referred disjunctively to "take, use, dam, or divert"and submitted there was nothing on the face of the section to suggest that it should beread as regulating "take and use" together as opposed to damming or diverting, whichare regulated as separate activities. He submitted a plain reading which incorporates"or" between each of the words in the section is consistent with the balance of thesection and argued that there was no reason why a "take and use" of water could onlybe dealt with together, but damming or diverting water could be separately authorised.He emphasised the difference between a water permit and a land use consent, becausea water permit is "allocative" in nature. He submitted the RMA regulates theallocation of water on a first in, first served basis and the water allocated toCloud Ocean and Rapaki could not be reallocated to anyone else for the term of theexisting consents which he submitted was the effect of s 30(4) of the RMA.He submitted that this Court's judgment in Central Plains Water Trust v Synlait Ltdwas consistent with the idea that "take" and "use" can be separately regulated.23[107] Mr Maw derives support from the provisions of the RMA dealing with thetransfer of water permits. He referred in particular to s 136(2)(b) which provides thatthe holder of a water permit granted other than for damming or diverting water maytransfer the whole or any part of the holder's interest in the permit "to another personon another site, or to another site, if both sites are in the same catchment aquifer,or geothermal field" where the transfer "is expressly allowed by a regional plan" or"has been approved by the consent authority that granted the permit on an application23 Central Plains Water Trust v Synlait Ltd [2009] NZCA 609, [2010] 2 NZLR 363.under subsection (4)". Such an application is to be considered as if it were anapplication for resource consent.24 Mr Maw maintained that this provision wouldenable a new use to be ascribed to an allocation of water, without affecting the priorityof the allocation. He argued that the ability to transfer the permit recognised theexistence of the allocation although the use on a new site would not be within thescope of the existing permit. Thus the Act would apparently allow an allocation ofwater to be used for a different purpose on a different site, subject to an assessment ofthe effects.[108] Mr Maw accepted that the transfer provisions do not deal with the situationwhere water allocated to a site is to be used for a different purpose at the same site,noting that the Act allowed the transfer of the whole permit as an "administrative postbox exercise" under s 136(3). But he contended that the Council here had adoptedwhat he described as an "'elegant' solution" to enable allocated water to be used for anew purpose, whilst ensuring that all of the effects of that new use were assessed.He argued that a holistic consideration of take and use was only required when therewas both a proposal for a new take and a new use; a different approach such as thatadopted by the Council was appropriate where the existing take was relied on.He argued that none of the authorities relied on by AWA established that, where acomponent of a proposed activity is already authorised, it is unlawful to grant a furtherresource consent for new, unauthorised components relying on the existing consent.In circumstances such as the present, granting a new use permit would still enable allrelevant effects of the use to be considered and he argued that the Council could controlthe effects of the new use through its power to impose conditions. In that way thescale of the new use could be limited to what was appropriate.[109] Mr Maw also rejected criticisms of the amalgamation process which theCouncil had adopted. He submitted that the amalgamation did not alter the rightsconveyed by the consents and the Council's decision had made it clear that what wasgranted was an additional use in reliance on the existing allocation.24 Section 136(4)(b).Analysis[110] We do not consider that the High Court erred in its interpretation of s 14 of theRMA. In particular, the prohibition in s 14(2) that "[n]o person may take, use, dam,or divert" treats each of those activities disjunctively. There is no reason, given thedrafting, to treat "take" as necessarily combined with "use", any more than there is totreat "take" as necessarily linked to "dam" or "divert". All of the activities are subjectto the same prohibition unless authorised by subs (3).[111] Again, the drafting of s 14(3) relates to each of the activities individually.Thus a person will not be prohibited from taking, using, damming or diverting water.The statute does not require a linkage between any one or more of those actions.[112] The High Court also based its reasoning on the provisions of s 30(1)(e) of theRMA which, as noted above, relevantly provide for functions controlling activities inrelation to water. Once again, it is the individual actions that are referred to, namely"taking, use, damming, and diversion of water".[113] But it does not necessarily follow from the drafting of ss 14 and 30 that theCouncil is able to grant a separate consent for a use and a separate consent for a take.Whether or not that is possible will in our view depend on the terms of theregional plan and the controls it contains in relation to water. In this case, the LWRPas has been seen refers variously to "taking or use" and "taking and use". We considerthe different wording is important and must have been intended. Thus, where theexpression used is "taking or use of water" the plan contemplates that there might bean activity involving one or the other or both. Where the expression used is "takingand use" the intent appears to be that the activity will involve both.[114] Consistently with that r 5.128 is preceded by a heading, namely "Take and Use[of] Groundwater". The opening words of r 5.128 itself provide "[t]he taking and useof groundwater is a restricted discretionary activity ".25 The use of this singular "is"suggests that "taking and use" is to be regarded as one activity.25 Emphasis added.[115] We acknowledge that the conditions on restricted discretionary activity statusthat immediately follow provide particular requirements in relation to the take of thewater. Thus, under condition 1, the take must be from within a groundwater allocationzone on the planning maps. Where condition 2 applies the take must in addition to allexisting consented surface water takes "not result in any exceedance of anyenvironmental flow and allocation limits set [out] ". Condition 3 contains a similarrestriction to ensure that the "seasonal or annual volume of the groundwater take, inaddition to all existing consented takes, as determined by the method in Schedule 13does not exceed the groundwater allocation limits for the relevant GroundwaterAllocation Zone ". Again, condition 4 contains a condition concerning "boreinterference effects" once more related to the take.[116] While the conditions do not relate to the use of groundwater, they are expressedas conditions relating to the "taking and use of groundwater" at the outset of the rule,and do not detract from the proposition that it is the taking and use which togetherconstitute the restricted discretionary activity. The drafting in effect amounts to anexpansive definition of the "take" component of the "taking and using" activity.It does not indicate that each may be consented to separately.[117] That conclusion is underlined when reference is made to the matters to whichthe Council has restricted the exercise of its discretion, which then follow. These arethe matters which the Council will take into account when deciding whether or not togrant consent to the defined restricted discretionary activity. Significantly, as set outabove, these include:1. Whether the amount of water to be taken and used is reasonable forthe proposed use. In assessing reasonable use for irrigation purposes,the [Council] will consider the matters set out in Schedule 10 [118] We consider this creates a direct linkage between take and use. The amount ofthe take has to be assessed to see whether it is reasonable for the proposed use.The question of what is reasonable in an area where the water is fully allocated isobviously intended as a control mechanism to ensure that no water is taken beyondwhat is appropriate for the proposed use. If the take is treated as an activity separateto the use, it is unclear how the reasonableness criterion could be applied. Where theuse is, as here, water bottling and the proposal is to bottle all of the available waterunder the existing take consent, it is unclear how the amount of water bottled could becontrolled. We say that because on the approach of the Council, Rapaki andCloud Ocean the consented volumes of the take are a given. That is a consequence ofseparating out the take and use components of the proposed activity. In our view thatsubverts the evident intent of r 5.128 read as a whole.[119] Similar reasoning is prompted by other discretionary considerations set out inthe rule, namely the "availability and practicality of using alternative supplies ofwater". It is clear this is intended to involve a consideration of whether an alternativesupply of water is available for the proposed use of the water. That cannot begenuinely considered if the water take is not before the Council when considering the"use" component of the application: it would necessarily be an irrelevantconsideration, because the applicant can say that it already has a consented supply.Other discretionary considerations, dealing with the maximum rate of take andpotential adverse effects on other authorised takes would also be otiose where there isreliance on a pre-existing use consent. We do not think it is a satisfactory answer tosay that these matters must be assumed to be satisfactory because there is an existingconsent. In our view the intent of the rule is that all relevant matters will be able to beconsidered in relation to the application for consent and use.[120] It can be seen that consistent with r 5.128, the wording of rr 5.129 and 5.130,quoted above, also treats taking and use as one activity. This is significant in the caseof r 5.128, because the non-complying activity status it creates is where the "takingand use of groundwater" does not meet either or both of conditions 1 and 4 in r 5.128.Those conditions both relate to the water take. Yet, the non-complying activity statusarises for both the taking and use. And again, in the case of r 5.130, the prohibitedactivity status arises where there is a failure to meet one or both of conditions 2 and 3in r 5.128. While the conditions referred to are those relating to location of the takeand groundwater allocation limits, the drafting of r 5.130 is not restricted to the takeaspect of the activity.[121] If separate consents were possible for taking and using, the drafting couldreadily have left the "use" aspect out of both rr 5.129 and 5.130. The provisions couldhave each provided that the taking of water that does not meet the relevant conditionsis non-complying and prohibited. If the plan had contemplated separate consents forthe taking and use necessary for one activity, that would surely have been the approachadopted. But it consistently treats both together.[122] By contrast to these rules, the drafting of other rules in the LWRP uses theexpression "taking or use". This is the case with rr 5.121 and 5.122 (concerning thetaking or use of water from irrigation or hydroelectric canals or water storagefacilities). We see no reason to conclude that the difference in wording is notintentional.[123] We see our approach as consistent with s 30(1)(e) of the RMA. While thatprovision enables regional councils to control the taking, use, damming and diversionof water, there is nothing in the drafting that prevents a regional council fromexercising control by treating taking and use as matters which are linked for thepurposes of its regional plan. There is also nothing in s 30(4) which suggests adifferent outcome. The thrust of that subsection is apparent from its opening words,providing that a rule in a regional plan allocating a natural resource may allocate theresource in any way subject to various qualifications then set out. There is nothing inthe subsection which could found an argument that the regional council may not havea rule that regulates take and use together.[124] The High Court was influenced by this Court's decision inCentral Plains Water Trust v Ngāi Tahu Properties.26 In that case, predecessors of theCentral Plains had made an application in 2001 for consent to take water from theWaimakariri and Rakaia rivers which it intended to use to irrigate an area of some60,000 hectares. Its application explained the purpose for which the water was to beused, but did not seek consent for the use at that stage. Subsequently, Ngāi TahuProperties Ltd made an application both to take water from Waimakariri River and touse it for irrigation purposes, over an area of 5,659 hectares. Central Plains thenlodged a further application, to take water from a new proposed location further up theRiver. The Council treated this as an amendment to the original application rather thana new application. But the Central Plains application was placed on hold because the26 Central Plains Water Trust v Ngāi Tahu Properties, above n 18.Council considered it was not ready for notification in the absence of the applicationfor consent to use the water.[125] The question arose as to which application should be considered as havingpriority for the allocation of the water. The Environment Court decided that the issuewas to be determined on the basis of which application was first in a form appropriatefor notification.27 The High Court endorsed that view.28 Randerson J considered thatwhile there could be applications where it was unnecessary or inappropriate toconsider all resource consent applications together, in the case before theEnvironment Court, it was correct to conclude it would be artificial to separate thewater take from the applications relating to the end use of the water.29 That meant theCouncil had been correct to place the Central Plains application on hold. In thosecircumstances, Ngāi Tahu's application should have priority, because it was in a formin which it could be publicly notified.30[126] This Court, by a majority, took a different view. It held that the Central Plainsapplication contained sufficient information as to the intended use of the water toenable a proper consideration of the application to take water, even though theapplication for consent to the use of the water had not been made.31 This meant thatCentral Plains should not lose priority for the allocation of the water to the Ngāi Tahuapplication, even though the latter had applied for both consents in one application.The essential basis of the judgment is encapsulated in the following paragraph:[80] It is sufficient to record my answer to question (a): An application forresource consent to take water which is not disqualified by unreasonable delayand which, although recognising the need for subsequent use applicationscould not as filed be rejected as a nullity, takes priority over an applicationwhich relates to the same resource and which, although complete in itself, wasfiled later by a party with knowledge of the earlier application [127] The decision is about priority between different applications, and thecircumstances in which an incomplete application may lose priority to a later one. It isnot a decision which says anything about whether or not applications separately made27 Re Ngāi Tahu Property Ltd EnvC Christchurch C104/06, 21 August 2006.28 Central Plains Water Trust v Ngāi Tahu Properties Ltd (2006) 13 ELRNZ 63 (HC).29 At [40].30 At [69].31 Central Plains Water Trust v Ngāi Tahu Properties, above n 18, at [70]–[71] and [76].in respect of the same overall activity can properly be considered separately.32As Nation J recognised, the case is not authority for the proposition that a council mayconsider an application for consent to take water separately from an application to usethe water which is to be taken, although he did see it as authorising the making ofseparate applications for the take and use of water.33[128] While that might theoretically be correct these observations are not decisive inthe current context. Here, for the reasons we have given, the LWRP creates oneactivity, namely the taking and use of water. Both elements require consent under theRMA but here it must be remembered that the relevant consent provisions of that Actare those in pt 6, not s 14. Under s 87, a resource consent is relevantly defined as aconsent, among other things, to do something that "otherwise would contravenesection 14 (in this Act called a water permit)".34 Section 87A then deals with classesof activities, describing successively permitted, controlled, restricted discretionary,discretionary, non-complying and prohibited activities.[129] If reference is then made to s 14(2), it may be seen that it operates as aproscription against the taking and use (among other things) of water, unless it isallowed by subs (3); and subs (3) contemplates those activities being expresslyallowed by certain standards and rules made under the RMA "or a resource consent".Here, the necessary resource consent was a consent to take and use water, because thatis the activity that the rule contemplates. We do not consider it can be legitimate toproceed on the basis that the plan contemplated stand-alone take and use consentsgiven the drafting of the relevant rules.[130] We note that the Council proceeded on the basis that because there was no rulespecifically governing a stand-alone use of water, the application was properlyconsidered by the Council under what Dr Burge described as the "catch-all" r 5.6 as adiscretionary activity. We have quoted that rule above. We consider that was a wrongapproach in the present context. Because the LWRP provides in r 5.128 for the taking32 We think the same can be said of Central Plains Water Trust v Synlait Ltd, above n 22, to whichwe were referred by Mr Maw.33 High Court judgment, above n 2, at [111]. He noted at [112] Randerson J's observations in CentralPlains Water Trust v Ngāi Tahu Properties Ltd, above n 28, at [40] that it may not always benecessary for applications for take and use to be considered together.34 Section 87(d). The emphasis is in the Act.and use of groundwater as a restricted discretionary activity, and goes on to providethat the taking and use of groundwater that does not meet one or more of the conditionsis either non-complying (r 5.129) or prohibited (r 5.130), we do not consider it wasopen to the Council to consider a stand-alone application for consent for only one ofthose elements. If it could do that in respect of a use consent, why not a take consent?[131] If both elements can be separately considered it is difficult to see how the plancan be administered in a way that preserves its integrity. For example, it is clear thatunder r 5.129, an application to take water that does not comply with condition 4 ofr 5.128 should be considered as an application for a non-complying activity.However, under the Council's reasoning it would be said that because the LWRP dealsonly with take and use together, an application for consent restricted to a take onlywould be a discretionary activity, because it would not be classified by the plan as anyof the other classes of activity listed in s 87A of the RMA. This approach simply doesnot work given the pattern of drafting adopted in the LWRP, which plainlycontemplates both take and use being considered together.[132] For these reasons we have concluded that the Council did not have the abilityto grant a resource consent limited to the use of the water for bottling purposesseparately to the authorisation to take the water to be used for that purpose. Under theLWRP it was necessary to consider both take and use together. These conclusionsmean that consents CRC180728 and CRC180729 granted to Rapaki and CRC182812granted to Cloud Ocean were not lawfully granted. It follows that consents grantedsubsequently (amalgamating those consents with the existing water take consents) thatwere contingent on the grant of those consents were also unlawful. That result followsfrom the infirmity of consents CRC180728, CRC180729 and CRC182812, rather thanthe process of amalgamation and reissue subsequently adopted by the Council.We consider those were legitimate administrative steps, but they were dependent onthe lawfulness of the consents treated in that way.[133] This means that the appeal must be allowed and the decisions of the Councilgranting the impugned consents set aside.[134] Having reached that conclusion it is unnecessary for us to go on to consider theother issues raised about the impact of selling water in plastic bottles (raised by AWAand the Rūnanga) and the adverse effects on cultural values arising from the waterbottling activity (raised by the Rūnanga). Nor is it now relevant to consider whetherthe Council's decisions to deal with the applications without requiring notification orlimited notification were also unlawful.Result[135] The appeal is allowed and the decision of the High Court is set aside.[136] The Council's decisions granting consents CRC180728 and CRC180729 toRapaki and CRC182812 to Cloud Ocean are set aside, with the further consequencesset out in [132] above.[137] AWA is entitled to costs. We direct that the Council must pay AWA's costscalculated for a standard appeal in band A, together with usual disbursements. Notingthat the submissions of the other parties were of limited scope and that the Rūnangawas an intervener we consider it appropriate for other costs to lie where they fall.Solicitors:Linwood Law, Christchurch for AppellantWynn Williams, Christchurch for First RespondentCarson Fox Legal, Auckland for Second RespondentDuncan Cotterill, Christchurch for Third RespondentChapman Tripp, Christchurch for Intervener