TE RŪNANGA O NGĀTI AWA & ORS v BAY OF PLENTY REGIONAL COUNCIL & ORS [2022] NZCA 598

TE RŪNANGA O NGĀTI AWA & ORS v BAY OF PLENTY REGIONAL COUNCIL & ORS [2022]NZCA 598 [2 December 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA48/2021[2022] NZCA 598BETWEEN TE RŪNANGA O NGĀTI AWAAppellantAND BAY OF PLENTY REGIONAL COUNCILFirst RespondentAND CRESWELL NZ LIMITEDSecond RespondentCA49/2021BETWEEN SUSTAINABLE OTAKIRIINCORPORATEDAppellantAND WHAKATĀNE DISTRICT COUNCILFirst RespondentAND CRESWELL NZ LIMITEDSecond RespondentCA60/2021BETWEEN NGĀTI PIKIAO ENVIRONMENTALSOCIETY INCORPORATEDAppellantAND BAY OF PLENTY REGIONAL COUNCILFirst RespondentAND CRESWELL NZ LIMITEDSecond RespondentCA61/2021BETWEEN TE RŪNANGA O NGĀI TE RANGI IWITRUSTAppellantAND BAY OF PLENTY REGIONAL COUNCILFirst RespondentAND CRESWELL NZ LIMITEDSecond RespondentHearing: 9-10 March 2022Court: Cooper, Goddard and Dobson JJCounsel: H K Irwin-Easthope and K J Tarawhiti for Appellant inCA48/2021D M Salmon KC for Appellant in CA49/2021R B Enright and R G Haazen for Appellants in CA60/2021 andCA61/2021M H Hill and R M Boyte for First Respondent in CA48/2021,CA60/2021 and CA61/2021A M B Green and M S Jones for First Respondent in CA49/2021J B M Smith KC, D G Randal and E L Bennett for SecondRespondent in CA48/2021, CA49/2021, CA60/2021 andCA61/2021Judgment: 2 December 2022 at 9.00 amJUDGMENT OF THE COURTA The questions of law are answered at [193] of this judgment.B The appeals are dismissed.C Te Rūnanga o Ngāti Awa must pay costs to the Bay of Plenty RegionalCouncil for a standard appeal on a band A basis and usual disbursements.D Sustainable Otakiri Inc must pay costs to the Whakatāne District Council fora standard appeal on a band A basis and usual disbursements.E Te Rūnanga o Ngāti Awa and Sustainable Otakiri Inc must pay costs toCreswell NZ Ltd, on their respective appeals, for a standard appeal on aband A basis and usual disbursements. We certify for two counsel.F We make no order for costs in respect of the appeals brought byNgāti Pikiao Environmental Society Inc and Te Rūnanga o Ngāi Te RangiIwi Trust.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)Table of ContentsPara NoIntroductionThe proposalThe partiesResource consents requiredRegional Council consentsDistrict Council consentsQuestion 1The Environment Court decisionThe High Court judgmentSubmissions on appealAnalysisQuestion 2Question 3The Environment Court decisionThe High Court judgmentSubmissions on appealAnalysisQuestion 4The Environment Court decisionThe High Court judgmentSubmissions on appealAnalysisQuestion 5The Environment Court decisionThe High Court judgmentSubmissions on appealAnalysisResult[1][7][13][17][17][20][23][25][29][36][49][67][80][82][89][96][106][113][117][122][125][139][158][163][168][169][176][193]Introduction[1] These four appeals on questions of law under s 308 of theResource Management Act 1991 (RMA) arise out of a proposal made byCreswell NZ Ltd (Creswell) to expand an existing spring water extraction and bottlingoperation near Ōtākiri in the Bay of Plenty.[2] Creswell's proposal required a range of resource consents from the Bay ofPlenty Regional Council (Regional Council) and the Whakatāne District Council(District Council). The necessary consents were granted after a joint hearing beforetwo independent Commissioners appointed by the Councils. Appeals were filed in theEnvironment Court, which by a majority upheld the grants of consent, subject toconditions.1 Two appeals were then filed in the High Court under s 299 of the RMA,which were heard by Gault J in July 2020. He dismissed the appeals.2 The presentappeals are from the High Court judgment pursuant to leave granted by this Courtunder s 308 of the RMA.3[3] An indication of the ambit of the appeals may be demonstrated by setting outthe questions of law that we have to answer. They are:4(a) Question 1: Did the High Court err in finding that theEnvironment Court was correct to conclude that the effects on theenvironment of end use (that is, export and use of plastic bottles) werebeyond the scope of consideration in relation to Creswell's applicationfor consents to take water, and those relating to land use activities?(b) Question 2: Did the High Court err in finding that theEnvironment Court did not need to seek further evidence, or declineCreswell's application for consent, in circumstances where the Courthad evidence as to the scale of the bottling operation but no evidenceas to the scale of adverse effects of plastic bottles being discarded?(c) Question 3: Did the High Court err in finding that theEnvironment Court did not need to have recourse to pt 2 of the RMAand, in particular:1 Te Rūnanga O Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019)21 ELRNZ 539 [Environment Court decision].2 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC 3388, [2021] NZRMA76 [High Court judgment].3 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2021] NZCA 354 [Leave judgment].4 The questions were set out in two judgments of this Court delivered on 29 July 2021 and9 September 2021, respectively granting leave to appeal and amending the first of the questions:Leave judgment, above n 3, at [4]; and Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council[2021] NZCA 452 at [20].(i) that the relevant planning instruments provided adequatecoverage of the provisions of pt 2;5 and(ii) that an assessment of sustainability by itself was sufficientto address relevant cultural effects, so that no further referenceto pt 2 was needed in that context?6(d) Did the High Court err in finding that the Environment Court correctlydetermined that the activity status of Creswell's proposal was adiscretionary "rural processing activity", rather than a non-complying"industrial activity" including "manufacturing", under the terms of theWhakatāne District Plan?(e) Did the High Court err in finding that the Environment Court correctlyclassified Creswell's proposal as an expansion of an existing use ofland, and therefore a discretionary activity under s 127 of the RMA,rather than as a new activity falling for consideration as anon-complying activity under s 88 of that Act?[4] Leave had originally been sought in respect of 15 separate questions of law,but was granted only in respect of the five set out above. One question that wasexpressly rejected sought to raise an issue about the fact that the Environment Court,in an approach upheld by the High Court on appeal, preferred the evidence of an expertcalled by Creswell about issues of tikanga relevant to the proposal to the evidence ontikanga called by Te Rūnanga o Ngāti Awa. At the leave stage, this Court consideredthe issue was effectively foreclosed by what was said by Elias CJ in Takamore vClarke, to the effect that what constitutes Māori custom or tikanga in a particular caseis a question of fact for expert evidence, or for reference to the Māori Appellate Courtin an appropriate case.7 Consequently, this Court declined to grant leave "on the5 See High Court judgment, above n 2, at [178] and [188].6 See Environment Court decision, above n 1, at [104]–[107].7 Leave judgment, above n 3, at [5(2)], citing Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR733 at [95].challenges to the correctness of the preferred evidence as regards the tikanga effectsof the proposal".8[5] We note that a majority of the Supreme Court in Ellis v R has since endorsed acontextual approach to the appropriate method of ascertaining tikanga.9Glazebrook and Williams JJ both questioned the appropriateness of referring toproving tikanga as a question of fact or evidence: while in some cases it would beappropriate to call experts to give evidence about the relevant tikanga and how itshould apply, in others, that would not be necessary.10 In the present case,the Environment Court did hear evidence called by the parties concerning therelevant tikanga.[6] In the following sections of this judgment, we:(a) describe the proposal;(b) describe the parties;(c) explain the resource consents required to authorise the proposal;(d) summarise the decisions of the Environment Court and the High Court;(e) address the submissions of the parties; and(f) resolve the questions of law presented.The proposal[7] The proposal is to expand an existing water bottling plant on land situated at57 Johnson Road, Ōtākiri in the Whakatāne District of the Bay of Plenty.11 The land8 At [5(2)].9 Ellis v R [2022] NZSC 114.10 At [123] and [125] per Glazebrook J, [181] per Winkelmann CJ and [273] per Williams J.11 We base this description of the proposal on that given by the Environment Court and theHigh Court: see Environment Court decision, above n 1, at [14]–[24]; and High Court judgment,above n 2, at [8]–[15].contains a kiwifruit orchard and an existing water bottling plant, which commencedoperation in 1994 and is now owned and operated by Otakiri Springs Ltd.[8] The existing activities on the land rely on a water right granted in 1979 to takewater for kiwifruit irrigation from a 230 m-deep bore. The water right was modifiedin 1991, when the Regional Council allowed water to be taken for horticultureirrigation (158 m3/day), frost protection (1,580 m3/day) and commercial bottling(1,200 m3/day). The current total allowable take of water is 327,000 m3/year.The landowners at the time, James and Donald Robertson, also obtained land useconsent from the District Council in 1991 to establish the water bottling plant on theland. The Robertsons are the directors and shareholders of Otakiri Springs Ltd.[9] Creswell entered into an agreement in 2016 for the sale and purchase of theland and the water bottling and distribution business, subject to obtaining the consentsit needs to implement the proposal and which are the subject of these appeals.It intends to establish a new purpose-built production plant alongside the existingplant. A new building, 16,800 m2 in area, would be constructed. A truck unloadingcanopy and container loading area would be constructed next to the new building.[10] Implementing the proposal would increase the maximum bottling capacity ofthe existing plant from 8,000 to 10,000 bottles per hour. In addition, the new buildingwould house two new high-speed bottling lines, each producing 72,000 bottlesper hour. The new building would also contain a plastic bottle manufacturing plant.Bottle manufacture, water bottling and warehousing activities would take place onsite24 hours per day, seven days a week.[11] Consent was sought for a maximum daily water take of 5,000 m3, reflectingthe capacity of the bottling operation. The maximum annual volume of water soughtto be extracted is 1.1 million m3. Daily figures are expected to fluctuate between1,000 m3 and 5,000 m3, with an average of 3,000 m3. The water would be extractedfrom a new 228 m-deep bore, which was drilled in 2017. The existing bore would beretained to provide a back-up water supply for the plant. Both bores draw water fromthe Ōtākiri aquifer in the Awaiti Canal groundwater catchment, which is in theTarawera water management area.[12] Water would be placed in both plastic and glass bottles, ranging in capacityfrom 350 ml to 2,000 ml. The product would be marketed locally and overseas aspremium New Zealand artesian bottled water, under the Otariki Springs brand.The parties[13] Creswell is a wholly owned subsidiary of Nongfu Spring Company Ltd,a company incorporated under the laws of the People's Republic of China.12It operates a large-scale water bottling and distribution business in that country.[14] Te Rūnanga o Ngāti Awa is the post-settlement governance entity and theiwi authority for the purposes of the RMA for Ngāti Awa. It is comprised of 22 hapūrepresentatives, who are elected by their hapū every three years. Ngāti Awa is an iwiof the Mataatua waka, whose rohe is in the Eastern Bay of Plenty.13[15] Ngāti Pikiao Environmental Society Inc is an iwi authority of Ngāti Pikiao.The Environment Court granted it status under s 274 of the RMA to become a party tothe proceedings. Te Rūnanga o Ngāi Te Rangi Iwi Trust is an iwi authority ofNgāi Te Rangi. Like Ngāti Awa, Ngāi Te Rangi is an iwi of the Mataatua waka.Ngāti Pikiao Environmental Society Inc and Te Rūnanga o Ngāi Te Rangi Iwi Trustare both appellants who were granted leave to appeal in respect of Question 314and were both represented at the hearing in this Court by Mr Enright in support ofNgāti Awa's stance that the consents granted by the Regional Council should havebeen declined.[16] Sustainable Otakiri Inc (Sustainable Otakiri) was formed in July 2018 byresidents living near the Ōtākiri Springs water bottling plant following the release ofthe Commissioners' decision to grant consent to the expansion of the plant.Members of Sustainable Otakiri include submitters at the original council hearing whohave continued their opposition under the umbrella of Sustainable Otakiri.12 We base this description of the parties on that given by the Environment Court and the High Court:see Environment Court decision, above n 1, at [2] and [7]–[8]; and High Court judgment,above n 2, at [6] and [18]–[22].13 For convenience, from this point we will refer to Te Rūnanga o Ngāti Awa as Ngāti Awa.14 Leave judgment, above n 3, at [5(1)(iii)].Resource consents requiredRegional Council consents[17] The proposal required consent from the Regional Council to take water for thewater bottling operation, to undertake earthworks, to discharge stormwater and treatedprocess wastewater, and to discharge treated sanitary wastewater to land.15 Althougha challenge was mounted to the grant of all these consents, Ngāti Awa only pursued anappeal against the consent to take water.[18] The consent applications made to the Regional Council had to be consideredunder s 104 of the RMA, which relevantly provides:104 Consideration of applications(1) When considering an application for a resource consent and anysubmissions received, the consent authority must, subject to Part 2 andsection 77M, have regard to—(a) any actual and potential effects on the environment ofallowing the activity; and(ab) any measure proposed or agreed to by the applicant for thepurpose of ensuring positive effects on the environment tooffset or compensate for any adverse effects on theenvironment that will or may result from allowing theactivity; and(b) any relevant provisions of—(i) a national environmental standard:(ii) other regulations:(iii) a national policy statement:(iv) a New Zealand coastal policy statement:(v) a regional policy statement or proposed regionalpolicy statement:(vi) a plan or proposed plan; and(c) any other matter the consent authority considers relevant andreasonably necessary to determine the application.15 We base this description of the consents required and the framework under which they fell to beassessed on that given by the Environment Court and the High Court: see Environment Courtdecision, above n 1, at [3]–[4] and [26]–[28]; and High Court judgment, above n 2, at [16].[19] Pursuant to s 104(1)(b)(v) and (vi), the applications fell to be assessed underthe Bay of Plenty Regional Policy Statement (RPS), which became operative in 2014,and the Bay of Plenty Regional Natural Resources Plan (RNRP) made in 2017.The RNRP was an amalgamation of regional plans including the Regional Water andLand Plan of 2008 and the Regional Plan for the Tarawera River Catchment 2004.Other relevant parts of the RNRP deal with Kaitiakitanga (ch 3) and Water Quality andAllocation (ch 7). Proposed Plan Change 9 (PPC9), another planning instrument,would amend ch 7 in what the Environment Court described as "the first step in atwo-stage approach to give effect to" the National Water Policy Statement onFreshwater Management 2014 (amended in 2017) (NPSFM) in the Bay of Plenty.16District Council consents[20] Creswell also relevantly sought consent from the District Council under s 127of the RMA to vary the conditions applying to the existing land use consent to allowthe expansion of the water bottling plant and construction of the facilities proposed.It considered that the proposal could be authorised as a variation of the consentoriginally granted in 1991, and as such it was unnecessary to make an application fora new consent under s 88 of the RMA. Section 127 provides:127 Change or cancellation of consent condition on application byconsent holder(1) The holder of a resource consent may apply to a consent authority fora change or cancellation of a condition of the consent, subject to thefollowing:(a) the holder of a subdivision consent must apply under thissection for a change or cancellation of the consent before thedeposit of the survey plan (and must apply under section 221for a variation or cancellation of a consent notice after thedeposit of the survey plan); and(b) no holder of any consent may apply for a change orcancellation of a condition on the duration of the consent.16 Environment Court decision, above n 1, at [28].(3) Sections 88 to 121 apply, with all necessary modifications, as if—(a) the application were an application for a resource consent fora discretionary activity; and(b) the references to a resource consent and to the activity werereferences only to the change or cancellation of a conditionand the effects of the change or cancellation respectively.(4) For the purposes of determining who is adversely affected by thechange or cancellation, the consent authority must consider,in particular, every person who—(a) made a submission on the original application; and(b) may be affected by the change or cancellation.[21] The District Council accepted the application could be considered under s 127.The Environment Court agreed, concluding that the proposal was for the expansion ofan existing activity, and the character of the adverse effects that would be generatedwould be the same as for the existing activity, although their intensity wouldincrease.17 The High Court agreed.18 Whether it was right to do so is the subject ofQuestion 5.[22] We now turn to the decisions of the Courts below, and the submissions ofthe parties, structured by the questions we have to decide.Question 1[23] The first question is:19Did the High Court err in finding that the Environment Court was correctto conclude that the effects on the environment of end use (i.e. export and useof plastic bottles) were beyond the scope of consideration in relation to[Creswell's] application for consents to take water, and those relating toland use activities?17 At [252].18 High Court judgment, above n 2, at [258]–[261].19 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council, above n 4, at [20].[24] This question raises the issue of whether the effects on the environment as aconsequence of the export and use of plastic bottles should have been taken intoaccount in the assessment of the Regional Council and District Council consents.The Environment Court decision[25] Before the Environment Court, Ngāti Awa argued the fact that the water to betaken was to be placed in plastic bottles and exported overseas was a relevantconsideration in the assessment of the consent to take water. The Regional Counciland Creswell submitted to the contrary.[26] The Court began its analysis by acknowledging increasing concerns about theuse of plastic in packaging and containers and the significant volumes of long-lastingplastic waste in the environment.20 The Court dealt with the relevance of the end useof the water in a section of its judgment headed "Jurisdictional overview". It framedits discussion of relevance by reference to s 104(1)(a) of the RMA. After reviewingvarious decisions about the proper scope of considerations on applications forresource consent, the Court held it was obliged to have regard to the consequentialeffects of granting the consents sought within the ambit of the RMA and subject tolimits of nexus and remoteness.21 It concluded that:[66] the end uses of putting the water in plastic bottles and exportingthe bottled water are matters which go beyond the scope of consideration ofan application for resource consent to take water from the aquifer unders 104(1)(a) of the RMA.[27] The Court noted that the RNRP comprehensively addressed issues relevant tothe taking of water from aquifers, and there was no assertion that the RNRP had been20 Environment Court decision, above n 1, at [40].21 At [43]–[59], referring to Gilmore v National Water and Soil Conservation Authority (1982)8 NZTPA 298 (HC); Annan v National Water and Soil Conservation Authority (1980) 7 NZTPA417 (PT); Metekingi pp Atihau-Whanganui Incorporation and Others v Rangitikei-WanganuiRegional Water Board and Another [1975] 2 NZLR 150 (SC); Keam v Minister of Works andDevelopment [1982] 1 NZLR 319 (CA); Beadle v Minister of Corrections EnvC WellingtonA074/02, 8 April 2002; Lee v Auckland City Council [1995] NZRMA 241 (PT); Ngāti RauhotoLand Rights Committee v Waikato Regional Council (1997) 3 ELRNZ 32 (EnvC); Cayford vWaikato Regional Council EnvC Auckland A127/98, 23 October 1998; Aquamarine Ltd vSouthland R C (1996) 2 ELRNZ 361 (EnvC); Royal Forest and Bird Protection Society ofNew Zealand Inc v Buller Coal Ltd [2012] NZHC 2156, [2012] NZRMA 552; and West CoastENT Inc v Buller Coal Ltd [2013] NZSC 87, [2014] 1 NZLR 32 [Buller Coal].prepared other than competently in relation to that activity.22 But the end uses of thewater, putting it in plastic bottles and exporting it for consumption by people outsideNew Zealand, were "ancillary activities which are not controlled under the [RNRP]".23Further, there was no suggestion that control of those activities came within the ambitof the functions of regional councils under s 30 of the RMA. The Court continued:24We are not aware of any direct control of such activities by other legislationand accordingly proceed on the basis that such activities are lawful. Whilesuch end uses are foreseeable, and while the effects on the environment ofusing plastic bottles and exporting water may well be adverse, refusingconsent to the taking of water in this case will have no effect on all otherinstances where plastic bottles are used in New Zealand or where water isexported, whether in its natural form or as a component of other exports.[28] Finally, the Court considered that while in this case the water would not betaken if it could not be bottled, and the proposed volume of water to be taken reflectedthe fact that the water was to be exported, an appeal in relation to a particularapplication for resource consent to take water could not effectively prohibit either theuse of plastic bottles or the export of bottled water. Such controls required directlegislative intervention at a national level.25The High Court judgment[29] In the High Court, the Judge considered there was a nexus between thewater take and the export of bottled water.26 He rejected the submission made onbehalf of Creswell that the effects of exporting water were too remote from,or insufficiently connected to, the activity of extracting it from the ground "at leastwhen those effects are cultural effects occurring in New Zealand".27 He also said:[142] I do not favour a legal proposition of general application that theeffects of exporting water are too remote or otherwise beyond the scope ofconsideration in any application for resource consent to take water.22 At [63].23 At [64].24 At [64].25 At [65]. We note here that some doubt was entertained by the High Court as to whether theEnvironment Court's discussion of end use was related solely to the Regional Council consents orwas intended to extend to the District Council consents. In the end, the High Court Judgeconsidered that the Environment Court had in fact addressed the end use issue in relation to boththe Regional Council and District Council consents: High Court judgment, above n 2, at [51]–[54]. Nothing turns on that issue now.26 High Court judgment, above n 2, at [140].27 At [141].Remoteness is an issue of fact and degree and I do not consider it is capableof such a statement of law in the abstract. [30] The Judge held the Environment Court's conclusion, that exporting bottledwater was beyond the scope of consideration in an application for resource consentto take water, "went too far".28[31] The Judge accepted that the use of plastic bottles was lawful and not the subjectof specific regulatory control under the RMA or otherwise. The impacts of concernwere the disposal of the bottles after use.29 Insofar as the bottles were discardedhaving been used overseas, the effects would be too remote and outside the scope ofthe RMA.30 In terms of domestic disposal, the Judge considered it was not inevitablethat every plastic bottle would be discarded, and recycling might reduce the relevantconsequential effects together with proper disposal at facilities in New Zealand.Moreover, it was significant that operating a landfill to accept plastic waste required aresource consent, as it meant those consequential effects could be taken into accountseparately under the RMA.31[32] The Judge also considered that discarding plastic bottles would be unlawfuland the responsibility of the person disposing of them under the Litter Act 1979.In this sense, discarding the bottles could be independent from the grant of the consentto take water. Notwithstanding that, the fact that an action was unlawful and primarilythe responsibility of another person did not necessarily preclude "nexus" between theconsent and the discarding of the bottles.32[33] The Judge further considered that the adverse effects of discardingplastic bottles were not direct effects of allowing the activity of taking water. Instead,they were "downstream effects", which would normally only be considered if therelevant activity were not subject to regulation under the RMA.3328 At [142].29 At [148].30 At [149].31 At [150].32 At [151].33 At [153].[34] Drawing the various threads together, the Judge concluded it was reasonablyforeseeable (if not inevitable) that some plastic bottles would be discarded. While theadverse effects of discarding plastic bottles were not necessarily intangible, litteringwas a downstream effect which was prohibited. Although there was evidence aboutthe scale of the bottling operation, there was no evidence as to the scale of adverseeffects of plastic bottles from the operation being discarded. This meant that, as amatter of fact and degree, the adverse effects of consumers discarding plastic bottleswere too indirect or remote to require further consideration in Creswell's application.34[35] Consequently, the Judge held the Environment Court did not err in concludingthat the effects on the environment of using plastic bottles were beyond the scope ofconsideration in assessing the application.35Submissions on appealThe appellants[36] Ms Irwin-Easthope, for Ngāti Awa, submitted that the consequential effects ofthe export and disposal of plastic bottles have a sufficient nexus with the applicationfor resource consent to merit consideration under s 104(1)(a) of the RMA.She submitted that the end use effects of the proposal are appropriately assessed underthe RMA, particularly because they are not otherwise regulated.[37] Ms Irwin-Easthope addressed the Supreme Court's decision in West Coast ENTInc v Buller Coal Ltd (Buller Coal), the leading decision on consequential effects.36She submitted the Supreme Court held that whether end uses or "consequentialeffects" of allowing an activity are relevant under s 104(1) is a matter of nexus andremoteness. In Buller Coal, it was held that the words "actual and potential effects onthe environment" in s 104(1)(a) did not extend to the impact on climate change of thedischarge into air of greenhouse gases resulting indirectly from that activity.37Ms Irwin-Easthope argued Buller Coal could be distinguished: that case engageds 104E of the RMA, which provides that in considering an application for a34 At [156].35 At [157].36 Buller Coal, above n 21.37 At [172] per McGrath, William Young and Glazebrook JJ.discharge permit or coastal permit to do something that would otherwise contraveness 15 or 15B of the RMA relating to the discharge into air of greenhouse gases,a consent authority must not have regard to the effects of such a discharge onclimate change. She argued that the majority in Buller Coal had been much influencedby s 104E, and relied on observations in the dissenting judgment of Elias CJ.[38] Ms Irwin-Easthope referred in particular to Elias CJ's observations that:38[74] Section 104(1)(a) is concerned with the "actual and potential effectson the environment of allowing the activity", including future and cumulativeeffects, regardless of their scale. The "environment" is defined to include"ecosystems". That includes the single ecosystem which makes thephenomenon of global climate change possible. Small contributions whichaccumulate with other contributions in such an ecosystem have been treatedas "effects" within the scope of [ss] 104(1)(a) and 3 of the [RMA] in decisionsof the Environment Court. [39] Ms Irwin-Easthope also referred to what Elias CJ said on the issue of"remoteness". The Chief Justice had described s 104E as allowing an exception wherethe use of renewable energy permitted a reduction in the discharge of greenhouse gasesinto air, either absolutely or relatively. The Chief Justice considered the exceptionindicated that such effects were not treated by the legislation as "too remote" to be ofconcern to decision makers. She said:39[88] The exception also confirms the approach taken under ss 5 and 104of the [RMA] which recognises that the merits of a proposal must be assessedby taking into account matters that detract from the benefits claimed.The exercise in assessing "sustainable management" is otherwise one-sided.[40] Ms Irwin-Easthope also relied on the Environment Court decision ofProtect Aotea v Auckland Council, in which the Court decided whether theconsideration of applications for resource consent to carry out dredging in theWaitematā Navigation Channel could properly include the effects of dumping dredgedmaterial outside the coastal marine area but within New Zealand's exclusive economiczone.40 The Court concluded there was no real foundation on the evidence for anargument that the dredging and dumping activities did not have a "clear causal38 Footnotes omitted.39 Footnote omitted.40 Protect Aotea v Auckland Council [2021] NZEnvC 140.relationship in terms of both nexus and remoteness".41 This was on the basis that"without dredging, there would be no dumping; and without the ability to dump,dredging would not occur".42 Therefore the consequential effects of allowing thedredging activity necessarily included the effects of disposal of the dredged material.[41] In the present case, Ms Irwin-Easthope noted the Environment Court acceptedthat the water would not be taken if it could not be bottled, and the proposed volumeof water would not be taken if it could not be exported. She said the Court hadtherefore accepted that there was a nexus between the water take and its end use.Yet the Court failed to consider the end use of the activity in its assessment of theenvironmental effects. On this basis Ms Irwin-Easthope submitted that both theEnvironment Court and the High Court were in error and had unnecessarily restrictedconsideration of the end use of plastic bottles.[42] Ms Irwin-Easthope also argued that the High Court wrongly constrained itsassessment of nexus and remoteness to the issue of the disposal or discarding ofplastic bottles. She said the Court should have instead considered the production anduse of plastic more broadly, and the impact that has on the environment. This wasimportant because concerns raised by the case did not solely relate to issues concerningthe disposal of plastic bottles after use; other concerns included the impact of that onNgāti Awa's ability to be kaitiaki of the wai in the Ōtākiri aquifer.The respondents[43] Mr Smith KC, for Creswell, argued that the question raised was not really aquestion of law. He submitted that neither the Environment Court nor the High Courthad misdirected themselves in law: they had stated and considered the appropriateprinciples, and Ngāti Awa's real complaint was as to the application of thoseprinciples. Mr Smith argued that did not amount to an error of law, relying on thejudgments of the Supreme Court in Bryson v Three Foot Six Ltd andVodafone New Zealand Ltd v Telecom New Zealand Ltd.4341 At [59].42 At [59].43 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721; and Vodafone New ZealandLtd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153.[44] Mr Smith submitted the Environment Court had correctly stated that there mustbe a causal relationship between allowing the activity (that is, carrying out the activityitself) and the effect complained of. He contended the only effects that can beconsidered are those which directly result from exercising the consent or followinevitably from it. It cannot be the case that the independent activity of recyclingplastic amounts to a relevant consequential effect. Neither can the independentactivity of putting plastic waste in a landfill or other approved disposal facility. If anyadverse effects could be demonstrated, the activities giving rise to those effects wouldeither take place at authorised facilities in New Zealand, which would be subject to anindependent assessment under the RMA, or overseas and so beyond the properjurisdiction of the New Zealand courts.[45] Mr Smith also submitted that concerns in respect of the inappropriatediscarding of plastic bottles are too remote to be taken into account as that activitywould occur at the "bottom end of the retail chain" as a consequence of the actions of"multitudes of individuals". Further, the fact that the random discarding of plasticbottles in New Zealand would breach the Litter Act should be seen as interrupting thecausal connection between the creation of the product and the effect of its misuse.In fact, Mr Smith argued, whether the discarding of the bottles is unlawful or not, it isstill a consequence of an action by a third party, and not by the creator of the productin question.[46] Mr Smith further submitted that even if a consent authority attempted to controlthe type of packaging used by one producer of goods such as Creswell, there wouldbe substantial questions about the "tangibility" of any reduction in adverse effects thatmight arise. He submitted that issues concerning packaging are complex, and not suchas can be effectively regulated through consenting processes. If they are to becontrolled, that would be done more appropriately through governmental regulations.[47] For all these reasons, Mr Smith submitted that neither the Environment Courtnor the High Court erred in law.[48] Ms Hill, for the Regional Council, made similar arguments. She emphasisedthat although the Environment Court had reached a jurisdictional conclusion that therewas no scope to consider the export of the water, it had proceeded to consider thecultural effects of export, which it had resolved on the evidence as a matter of fact,as the High Court acknowledged. Ms Hill submitted the High Court had properlyapplied the relevant principles of nexus and remoteness, and its decision containedno error.Analysis[49] No party sought to argue in favour of the Environment Court's proposition thatit was not relevant to take the end use of the water into account in assessing the adverseeffects of the proposal, notwithstanding the absence of relevant controls or assessmentcriteria in the RNRP or other planning instruments directed to that issue. For thatreason, we proceed on the basis that end use is a permissible consideration. That is,for the purpose of having regard to the actual and potential effects of allowing theactivity, as required by s 104(1)(a) of the RMA, it is relevant to consider the end useof putting the water taken into bottles, many of which would be made of plastic, manyof which would be exported and all of which would be disposed of (whether inNew Zealand or overseas) once the water is consumed.[50] However, the end use is to be considered in accordance with the approachcontemplated by the Supreme Court in Buller Coal.44 That means that it is firstnecessary to define what can appropriately be said to be the relevant effects of grantingconsent to take water, and whether subjecting those effects to controls under the RMAwould have a tangible effect.[51] The first of those issues gives rise to questions of remoteness. In Buller Coal,where an application for resource consent to mine coal was opposed on the basis ofthe adverse environmental effects of coal burning, the Supreme Court observed thatthere would always have been scope for argument that the climate change effects reliedon "were too remote from the activities for which consents were sought to fall withinthe scope of s 104(1)(a)".45 The Court illustrated this approach by reference to theEnvironment Court decision of Taranaki Energy Watch Inc v Taranaki Regional44 Buller Coal, above n 21.45 At [117].Council, in which consents were sought for facilities needed to extract natural gasfrom under the seabed off Taranaki and the discharge of contaminants into the air.46The Environment Court held that the environmental effects of the end use of the energypotential of the gas produced were too remote to be taken into account in decidingthe applications, since the end users' activities would either be within the permittedbaseline or, if larger in scale, would require separate consents.47[52] The Supreme Court also referred to another decision of the Environment Court,Beadle v Minister of Corrections, where resource consents were sought to authorisethe construction of a new prison.48 These included consents for earthworks and forworks affecting a stream running through the site. The Environment Court held thatin deciding the applications it could have regard to issues raised by submitters tendingto establish adverse environmental effects of the prison that should be offset againstthe positive effects claimed by the Minister of Corrections.49 It said:[91] we hold that in deciding the resource consent applications we areable to have regard to the intended end-use of a corrections facility, and anyconsequential effects on the environment that might have, if not too uncertainor remote. But we will also need to bear in mind the nature of the consentssought, to avoid turning proceedings about earthworks and streamworks intoappeals about use of land for the facility.[53] The Environment Court had earlier in its decision surveyed relevant authoritiesto articulate a general approach to determining what should be regarded as relevantconsequential effects. It held that regard should be had to consequential effects"if they are environmental effects for which there is no other forum, but with limits ofnexus and remoteness".50 Consequential effects might be "too slightly connected tothe consent sought, and too remote", and the weight to be placed on them must be amatter for the decision maker.51 The Supreme Court regarded Beadle as showing thatthe relevance of a consequential effect will be a matter of fact and degree.5246 At [117], citing Taranaki Energy Watch Inc v Taranaki Regional Council EnvC AucklandW039/03, 16 June 2003.47 Taranaki Energy Watch Inc v Taranaki Regional Council, above n 46, at [84].48 Buller Coal, above n 21, at [119], citing Beadle v Minister of Corrections, above n 21.49 Beadle v Minister of Corrections, above n 21, at [90].50 At [88].51 At [88].52 Buller Coal, above n 21, at [119].[54] In addition to the kinds of considerations discussed in Buller Coal and Beadle,we think it is helpful to consider the issue of nexus and remoteness through the lensof the case law about the legitimate scope of conditions imposed on the grant ofresource consents. The authority to impose conditions is s 108 of the RMA.The power is broadly stated in s 108(1), but has always been regarded as subject tolimits, often stated by reference to the House of Lords decision of Newbury DistrictCouncil v Secretary of State for the Environment.53 In general terms sufficient forpresent purposes, the rule is that a condition must be fairly and reasonably related tothe subject matter of the consent.54[55] The starting point here is that the consent required from the Regional Councilwas a consent to take water. No consent was required to place the water intoplastic bottles, but such placement was plainly intended. It follows that the placementof the water into plastic bottles was a consequential effect. It is also clear, as theEnvironment Court had found, that the volume of water sought to be taken meant thata substantial amount of the water would be exported overseas. Leaving aside for thetime being the impact of the export of the water on the mauri of the wai and onNgāti Awa as kaitiaki, the question then is whether the fact that the plastic bottleswould be disposed of after use is a relevant consideration, or one that is too remote.[56] There are five main conceptual difficulties with bringing plastic bottle disposalinto the range of relevant consequential effects. The first is that the disposal is notsomething that would be authorised by the resource consent or for which anypermission is needed under the RMA. The placing of water into plastic bottles of itselfrequires no consent, neither does the export of the bottles. The activity ofwater bottling takes place in a societal context where plastic bottles are pervasivelyused to contain a great variety of liquids with a multitude of uses, whether forconsumption or in various commercial and domestic applications. They are availablein the wholesale and retail market. They are manufactured in New Zealand orimported from overseas. In New Zealand, manufacture typically occurs in a zonewhere manufacturing is a permitted activity. Sales typically occur at premises where53 Newbury District Council v Secretary of State for the Environment [1981] AC 578 (HL),considered in Housing New Zealand Ltd v Waitākere City Council [2001] 1 NZLR 340 (HC).54 At 599 per Viscount Dilhorne, 608 per Lord Fraser, 618 per Lord Scarman and 627 per Lord Lane.wholesale and/or retail activity is permitted. It is inconceivable that the RMA canproperly be applied to require consideration of the disposal of plastic bottles in respectof every product placed and sold in a plastic bottle or other plastic container. To takea different approach in this case would be to use the occasion of a resource consentapplication to impose obligations in respect of a single proposal that would not beapplied to numerous other commercial and industrial activities using plastic bottles.[57] Second, disposal is not the action of the holder of the resource consent, but ofpersons who have purchased the bottled water. Obviously, the holder of the consentcannot control the actions of those persons. And it would not be right to suggest thatthe holder of a consent for bottling water should nominally be regarded as responsiblefor the unlawful or problematic disposal of plastic bottles by third parties. We mentionhere an argument advanced by Sustainable Otakiri. Mr Salmon submitted that the"unlawful" disposal of plastic bottles cannot be ignored, since it is inevitable. He drewa comparison with the inevitability of some drivers speeding on roads, suggesting itwould be foolish to ignore that fact and set aside the risks to life of drivers exceedingthe speed limit. Such a non-contextual analogy is not helpful. Nor does it advancethe appellant's argument. An application for resource consent to manufacturemotor vehicles would not obviously lend itself to assessment on the basis of thenumber of persons who might die as a result of the unlawful use of the cars.That would be too remote to be considered as an effect of granting the application.[58] Third, insofar as disposal occurs in New Zealand, it will typically occurlawfully either in accordance with a roadside recycling scheme or at an authorisedcollection point and ultimately be received by those involved (typicallylocal authorities or their agents) in the management of established facilities such asrefuse stations and landfills. Those facilities would be operating in accordance withany necessary consents under the RMA or other relevant regulatory controls.Alternatively, if the disposal is by discarding the plastic bottles into the environment,that would be a breach of the Litter Act. But in that situation, the fact of legislativecontrol in another statute tends against the suggestion that the issue should becontrolled under the RMA.[59] Fourth, where disposal occurs overseas, it might or might not be by means ofrecycling schemes or other lawful collection and disposal methods. But we considerthat disposal of plastic bottles in foreign jurisdictions, whether lawful or unlawful,is too remote to be taken into account by a consent authority acting under the RMA inNew Zealand.[60] Fifth, and relatedly, even if the fact of export could be taken into account,it would be impossible to quantify its effects, or assess the impact of lawful andunlawful disposal of plastic bottles in foreign jurisdictions. And a condition thatattempts to control the disposal of plastic overseas could not be justified as fairly andreasonably related to a consent to take water.[61] The above combination of difficulties satisfies us that issues concerning thedisposal of plastic bottles are too remote for consideration in the context of theapplication to take water in this case.[62] Issues of "tangibility" also support that conclusion. That issue was referred toin Buller Coal.55 The Supreme Court considered it would be difficult, and probablyimpossible, to show that the proposed burning of the coal would have any perceptibleeffect on climate change.56[63] As the appellants submit, there is increasing concern about the harmful effectsof plastic in the environment. The definition of "effect" in s 3 of the RMA includes,in para (d), "any cumulative effect which arises over time or in combination with othereffects", and that is "regardless of the scale" of the effect. So, an effect which is smallin scale can properly be considered under s 104(1)(a) of the RMA where it arises incombination with other effects. But to be relevant, the effect must still be an effect ofallowing the activity.57 Here, it would need to be said that the plastic bottles producedby the proposed activities that are discarded in the environment would produce adeleterious effect in combination with the discarding of plastic that already occurs inNew Zealand and elsewhere arising from other activities.55 Buller Coal, above n 21, at [121]–[127].56 At [122(b)].57 Queenstown Lakes District Council v Hawthorn Estate Ltd [2006] NZRMA 424 (CA) at [83].[64] By parity of reasoning with Buller Coal, the widespread and worldwide use ofplastic means that any attempt to control its use in the setting of an individualapplication for resource consent needs to be justified by evidence tending to establishthat there would be a tangible impact of doing so. That impact cannot be inferred inits absence. The parties now wishing to advance the argument that this impact shouldhave been considered in the present case called no such evidence.58 This is a furtherreason for affirming the reasoning of the Courts below.[65] The focus of Ngāti Awa's argument on this question was on theRegional Council consents, and in particular the consent to take water.Sustainable Otakiri adopted Ngāti Awa's argument, adding that the effects of plasticin the environment would have an even more direct connection to the District Councilconsents because of the proposed production of the plastic bottles onsite. However,that does not overcome the issues we have already addressed in relation to theargument advanced for Ngāti Awa. The same reasoning applies in relation to theDistrict Council consents.[66] For all these reasons, Question 1 must be answered no.Question 2[67] The second question is:59Did the High Court err in finding that the Environment Court did not needto seek further evidence, or decline [Creswell's] application for consent,in circumstances where the Court had evidence as to the scale of the bottlingoperation but no evidence as to the scale o[f] adverse effects of plastic bottlesbeing discarded?[68] This question is premised on the idea that evidence about the extent ofplastic bottles being discarded was relevant to the decision to grant consent.The conclusion to Question 1 effectively compels a negative answer for Question 2:if the High Court did not err in concluding that the export and end use of plastic bottleswere not relevant considerations in relation to the application for resource consent58 They argue in fact that the Environment Court should itself have called the evidence, an argumentwe address in relation to Question 2.59 Leave judgment, above n 3, at [4].to take water, it cannot have been an error not to seek further evidence as to the scaleof adverse effects of plastic bottles being discarded, or decline the application inits absence.[69] Consistently with this, Ms Irwin-Easthope submitted that if the effects ofland use were relevant to the consideration of the application, then theEnvironment Court had erred in not seeking further evidence as to the effects of theend use of export and use of plastic bottles, or by not declining the application due toinadequate information.[70] It should be noted that, as Mr Smith pointed out for Creswell, no party beforethe Environment Court suggested that evidence should have been called about thescale of adverse effects of plastic bottles being discarded. Plastic waste was not in factraised as a relevant consideration at any stage prior to the Environment Court hearing.[71] Mr Smith also pointed out that the argument presented in the High Court wasbased on the fact that one of the Environment Court members, CommissionerKernohan, raised the issue of his own motion. Ngāti Awa's focus in theEnvironment Court was on the cultural effects of the export of the water, as opposedto the adverse effects of plastic on the environment. No party called evidence on theadverse effects of discarding plastic, and none sought that the hearing be adjournedfor such evidence to be obtained.[72] In the High Court, Gault J was prepared to accept that as a matter of law theeffects of disposal of plastic bottles would not always be too remote to warrantconsideration, but noted that issue was not raised by those opposing the application atthe Environment Court hearing. He considered that, in those circumstances,the Environment Court was not obliged to seek further evidence or dismiss theapplication on the basis of inadequate information.60[73] Ms Irwin-Easthope argued in this Court that the Environment Court had a dutyto seek evidence on the issue once it had been raised by one of its members, basingthat submission on the fact that the Environment Court has an inquisitorial role.60 High Court judgment, above n 2, at [157].She supported this proposition by reference to Universal College of Learning vWhanganui District Council, in which the Environment Court observed:61Although many proceedings before the Court take the form of a contest,the fact is that the Environment Court process is an amalgamation of bothinquisitorial and adversarial processes driven by the imperative of sustainablemanagement contained in [s 5 of the] RMA [74] Ms Irwin-Easthope noted that the Environment Court also referred to ss 269(1)and 276(1)(a) of the RMA, which enable the Court to regulate its own process andreceive anything in evidence that it considers appropriate to receive.[75] We accept that if the Environment Court considers that an issue of significanceto the disposition of a case before it should be the subject of further evidence, it couldask the parties before it to call evidence on the issue or, if it thought it appropriate,make arrangements itself in an exceptional case for such evidence to be obtained.[76] In the present case, one member of the Court considered that the end use of theplastic bottles was relevant to the assessment of the application, and that is clear fromthe dissenting judgment he delivered.62 But the fact that an issue was raised by onemember of the Court cannot be said to give rise to a duty on the part of other membersto require the issue to be the subject of evidence. As is apparent from theEnvironment Court decision, it was not a view the majority shared. Given that theyhad a contrary view, they were entitled to act on it.[77] Except in cases where it is clear that an issue should have been the subject ofevidence, we do not consider the Environment Court is obliged to procure evidenceon it. Where evidence of this type has not been called, often the most appropriatecourse for the Court to follow would be to decide the case on the basis that the evidencewas not available, with appropriate consequences for the disposition of the proceedingbefore it.[78] Although the Court is able to adopt an inquisitorial approach, we consider thatits primary duty in an appeal concerning whether a resource consent should have been61 Universal College of Learning v Whanganui District Council EnvC Wellington W065/09,17 August 2009 at [27].62 See Environment Court decision, above n 1, at [322]–[347] per Commissioner Kernohan.granted or declined is to consider the issues raised by the parties and the evidence theyhave called, and apply the relevant statutory provisions in the RMA. Any otherapproach would be likely to lead to increased uncertainty, cost and delays. We addthat although the nature of the Environment Court's jurisdiction and obligations underpt 2 of the RMA will often require a more flexible approach than that which would befollowed in civil litigation in the District Court or High Court, a party to proceedingsbefore the Environment Court should ensure it calls relevant evidence to support theissues it wishes to raise. An approach that relies on the Court itself to seek the evidenceis not to be encouraged and is unlikely to succeed.[79] It will be apparent from the discussion of Question 1 that we do not regardthis case as one where the Environment Court was obliged to obtain further evidence.Question 2 is answered no.Question 3[80] The third question is:63Did the High Court err in finding that the Environment Court did not need tohave recourse to pt 2 of the [RMA] and, in particular (i) that the relevantplanning instruments provided adequate coverage of the provisions of pt 2,and (ii) that an assessment of sustainability by itself was sufficient to addressrelevant cultural effects, so that no further reference to pt 2 was needed in thatcontext[?][81] The phrasing of the third question reflects what was said about the role of pt 2of the RMA in Environmental Defence Society Inc v The New Zealand King SalmonCo Ltd (King Salmon),64 which this Court applied in the context of applications forresource consent in RJ Davidson Family Trust v Marlborough District Council(RJ Davidson).65 The argument for Ngāti Awa is that the relevant planninginstruments did not adequately reflect the provisions of pt 2 and consequently theEnvironment Court should not have concluded that resort to pt 2 was unnecessary.63 Leave judgment, above n 3, at [4] (footnotes omitted).64 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38,[2014] 1 NZLR 593 [King Salmon].65 RJ Davidson Family Trust v Marlborough District Council [2018] NZCA 316, [2018] 3 NZLR283 [RJ Davidson].It is also said that an assessment of "sustainability" was insufficient to address relevantcultural effects, so that further reference to pt 2 was needed in that context.The Environment Court decision[82] These arguments need to be addressed in the context the Environment Courthad found, on the basis of expert evidence before it, that the proposed water take andthe volumes and rates applied for would have negligible adverse effects on the sourceof the water.66 The Court noted that Ngāti Awa had not contested the conclusions ofwater experts regarding the biophysical effects of the water take, nor had it calledevidence describing the adverse metaphysical effects, such as those on the mauri ofthe aquifer.67 The evidence it called from Dr Hōhepa Mason and Te Kei Wilson Meritohad focused on the irrevocable loss of the mauri of the water resulting from its bottlingand export overseas: Ngāti Awa's case was that the bottling and export of the waterwould adversely affect the mauri of the water and its role as kaitiaki of it.68[83] However, the Court found against Ngāti Awa on this aspect. It preferred theevidence that was called by Creswell from Hemana Eruera Manuera (himself aNgāti Awa kaumātua and tikanga advisor) who had, as the Court noted, expressedno concerns about the potential for adverse effects on te mauri o te wai, on the basisof his understanding that the water resource would not be depleted by the water take.69The Court explained his view that:70 when water is extracted it carries mauri with it, but as it is replenished byrainfall the mauri is restored as it returns to its original source. For water thatmoves away from its source, in this case through bottling and export, the mauriof the water moves within it. Where the water is consumed by a living personthe mauri of that person is enriched by te mauri o te wai, irrespective ofwhether that consumption is local, outside the region or anywhere overseas.Mauri wai and mauri tangata (mankind) are linked and when all things returnto Papatūānuku the cycle of mauri continues. It is from this understanding oftikanga that Mr [Manuera] advised that there will be no adverse effects onte mauri o te wai from the Creswell proposal, either from the extraction fromthe aquifer or from the subsequent bottling and export of that water.66 Environment Court decision, above n 1, at [319].67 At [134].68 At [71] and [134]. Dr Mason and Mr Merito were both members of Ngāti Awa's TikangaAdvisory Group, Te Kāhui Kaumātua o Ngāti Awa rōpū.69 At [74] and [103].70 At [74].[84] The Court concluded there was no evidence of a coherent, widely held beliefwithin Ngāti Awa as to the adverse metaphysical effects of taking water for bottlingand export.71 With specific reference to the export of the water, the Court sawno reason why, if the taking of the water was sustainable, its export would not be.72[85] The Court noted that Ngāti Awa had framed the appeal as being about te maurio te wai. It quoted the explanation of "mauri" in the RPS:73The essential life force, energy or principle that tangata whenua believe existsin all things in the natural world, including people. Tangata whenua believeit is the vital essence or life force by which all things cohere in nature. WhenMauri is absent there is no life. When Mauri is degraded or absent,tangata whenua believe this can mean that they have been remiss in theirkaitiakitanga responsibilities and this affects their relationship with the atua(Māori gods). Mauri can also be imbued within manmade or physical objects.[86] The Court recorded its understanding that mana and mauri were closely linked,and adopted the approach that if the mauri of a resource were adversely affected,its mana must also be adversely affected.74[87] The relevant regional planning framework was provided by the RPS, RNRPand NPSFM.75 The Court concluded that issues relating to the taking of water werecomprehensively addressed in the RNRP, and it had heard no argument that the RNRPhad been prepared other than competently on that aspect.76 The Court also concludedthat issues concerning the efficient use and development of natural and physicalresources (one of the matters that consent authorities must have particular regard tounder s 7(b) of the RMA) were fully provided for in the regional planninginstruments.77[88] The Court also noted that at a conference of experts prior to the hearing it hadbeen agreed that the regional plans provided adequate coverage of ss 6(e), 7(a) and 871 At [100].72 At [107]. As we noted at [4] above, this Court rejected at an interlocutory stage the raising ofwhat was held to be a factual determination on this issue, for the purposes of a second appeal ona question of law: Leave judgment, above n 3, at [5(2)].73 At [115]. The Court also referred to a definition of "mauri" in the RNRP: at [116].74 At [117].75 We referred to the documents represented by these abbreviations at [19] above.76 Environment Court decision, above n 1, at [63].77 At [167].of the RMA.78 These key provisions in pt 2 of the RMA provide respectively that therelationship of Māori with water (among other things) is a matter of nationalimportance; that consent authorities must have particular regard to kaitiakitanga; andthat the principles of the Treaty of Waitangi/Te Tiriti o Waitangi must be taken intoaccount. The Court concluded:[169] Again, we have considered the matter of adequacy of the regionalplans in providing for tangata whenua values and tikanga to be assessed,finding that such consideration is fully provided for. There is no need forrecourse to pt 2 matters to address tikanga concerns.[170] We find that any recourse to assessing this application directly underpt 2 of the RMA would not add any value to our decision-making in theseproceedings. This is consistent with the approach taken by theCourt of Appeal in RJ Davidson.79The High Court judgment[89] These conclusions were challenged in the High Court on the basis that theEnvironment Court had failed to consider the effects of end use. The Judge recordeda submission by counsel for Ngāti Awa that the second stage of giving effect to theNPSFM was to set limits for water quantity and quality, and involve tangata whenuaand the community in a consultation process. Counsel had submitted that it was a"risky precedent" to consider that a process only halfway through was complete so asto avoid the need to refer to pt 2.80 The Judge also noted that it was common groundthat PPC9 had been withdrawn by the time of the hearing in the High Court, but heldthat the withdrawal was irrelevant to the Environment Court's prior assessment.81[90] The Judge quoted the relevant provisions of the NPSFM:82Preamble78 At [168].79 RJ Davidson, above n 65.80 High Court judgment, above n 2, at [166].81 At [167].82 At [170]. The Environment Court had quoted more extensively from this provision includingstatements that upholding te mana o te wai would acknowledge and protect te mauri o te wai, andthat recognition of te mana o te wai was intended to place the health and well-being of freshwaterbodies at the forefront of discussions and decisions about freshwater: Environment Court decision,above n 1, at [114]–[117].The Treaty of Waitangi/Te Tiriti o Waitangi is the underlying foundation ofthe Crown–iwi/hapū relationship with regard to freshwater resources.Addressing tangata whenua values and interests across all of the well-beings,and including the involvement of iwi and hapū in the overall management offresh water, are key to giving effect to the Treaty of Waitangi.This national policy statement recognises Te Mana o te Wai and sets outobjectives and policies that direct local government to manage water in anintegrated and sustainable way, while providing for economic growth withinset water quantity and quality limits. The national policy statement is afirst step to improve freshwater management at a national level.Iwi and hapū have a kinship relationship with the natural environment,including fresh water, through shared whakapapa This preamble may assist the interpretation of the national policy statement.National significance of fresh water and Te Mana o te WaiThe matter of national significance to which this national policy statementapplies is the management of fresh water through a framework that considersand recognises Te Mana o te Wai as an integral part of freshwater[management].The health and well-being of our freshwater bodies is vital for the health andwell-being of our land, our resources (including fisheries, flora and fauna) andour communities.Te Mana o te Wai is the integrated and holistic well-being of a freshwaterbody.AA. Te Mana o te WaiObjective AA1To consider and recognise Te Mana o te Wai in the management of fresh water.Policy AA1By every regional council making or changing regional policy statements andplans to consider and recognise Te Mana o te Wai, noting that:a) te Mana o te Wai recognises the connection between water and thebroader environment — Te Hauora o te Taiao (the health of theenvironment), Te Hauora o te Wai (the health of the waterbody) andTe Hauora o te Tangata (the health of the people); andb) values identified through engagement and discussion with thecommunity, including tangata whenua, must inform the setting offreshwater objectives and limits.[91] The Judge next referred to relevant provisions in pt 2 (Issues and objectives)of the RPS, concerning Te Tiriti o Waitangi/Treaty of Waitangi principles, recognitionof tino rangatiratanga and the degradation of mauri.83 Relevantly, para 2.6.7 provides:There needs to be better interpretation by resource management decisionmakers of the effects activities and development have on mauri. Mauri inrelation to water means life and the living. It has the capacity to generate,regenerate and uphold creation. Because of this, all living things in the waterand its environs, are dependent on its mauri for their well-being andsustenance. Hence, each water type is seen as a taonga and is sacred due tothe potential prosperity it can give to Māori associated with it. The mauri ofeach waterway is a separate entity and cannot be mixed with the mauri ofanother. There are clearly effects on mauri caused by water pollution,agricultural spray, fertilizer run-off and effluent discharges.[92] The Judge then referred to pt 3 (Policies and methods) of the RPS, concerningiwi resource management, and quoted:84Policy IW 3B: Recognising the Treaty in the exercise of functions andpowers under the ActExercise the functions and powers of local authorities in a manner that:(a) Takes into account the principles of the Treaty of Waitangi;(b) Recognises that the principles of the Treaty will continue to evolveand be defined;(c) Promotes awareness and understanding of councils' obligations underthe Act regarding the principles of the Treaty, tikanga Māori andkaupapa Māori, among council decision makers, staff and thecommunity;(d) Recognises that tangata whenua, as indigenous peoples, have rightsprotected by the Treaty and that consequently the Act accords iwi astatus distinct from that of interest groups and members of the public;and(e) Recognises the right of each iwi to define their own preferences forthe sustainable management of natural and physical resources, wherethis is not inconsistent with the Act.83 High Court judgment, above n 2, at [171].84 At [172].ExplanationThe Act requires all persons exercising functions and powers under it inrelation to managing the use, development, and protection of natural andphysical resources, to take into account the principles of the Treaty of Waitangi(Te Tiriti o Waitangi). The Treaty is a living instrument and its principlescontinue to be defined — by the Courts, including the Environment Court, andthe Waitangi Tribunal. Policy statements and plans should arise out of and besensitive to the partnership principle of the Treaty. The objectives to beachieved should be such that both partners identify with them.Policy statements and plans can be a way of expressing what we hold incommon.The Treaty of Waitangi (Te Tiriti o Waitangi) established the specialrelationship between the Māori people and the Crown. The Treaty providedfor the exchange of kāwanatanga (governance or government) for theprotection of rangatiratanga.[93] The Judge also set out a relevant extract from the Mataatua Declaration onWater, which counsel for Ngāti Awa had relied on and submitted reflected Ngāti Awa'skaitiaki role:85WE THE TRIBES OF MATAATUA WAKA recognise that:I Water is of vital importance in sustaining the life principle of allhuman beings in the past, for the present and in the future.III It is the sacred duty of present generations to ensure that water qualityand quantity is available to sustain the lives of future generations ofthe peoples of Aotearoa.IV the indigenous peoples of the land have rights based on the Treatyof Waitangi and on aboriginal title to the use of their waters in theirtribal regions.V the people of Mātaatua recognise the need to share our water andto so manage it for the long term benefit of all peoples.WE THE TRIBES OF MATAATUA WAKA also recognise that as goodcitizens of the land and in exercising our rights under the common law and thedoctrine of aboriginal title, through the Treaty of Waitangi and under theDeclaration on the Rights of Indigenous Peoples we have a responsibility toshare our water and to so manage rights of access, use and conservation forthe long term benefit of all peoples residing in these our islands.85 At [173]–[174].[94] The Judge held that the Environment Court had clearly been aware of the keyneed in the NPSFM to consider and recognise te mana o te wai. He noted also theEnvironment Court's conclusion that the regional planning instruments required theRegional Council to recognise, have regard to and take into account kaitiakitanga andthe principles of Te Tiriti o Waitangi/the Treaty of Waitangi.86[95] The Judge agreed with the Environment Court that the RNRP addressed issuesconcerning water take comprehensively. He held the Environment Court had correctlyconcluded that the regional plans provided adequate coverage of the matters in ss 6(e),7(a) and 8 of the RMA for kaitiakitanga, tangata whenua values and tikanga. The factthat PPC9 was the first part of a two-stage process did not mean there was any gap inthe regional planning framework, since the planning documents themselves requiredconsideration of the principles of the Treaty of Waitangi.87 After discussingKing Salmon and RJ Davidson, the Judge concluded that in the circumstances therehad been no need for separate reference to pt 2 of the RMA, including s 8.88Submissions on appealThe appellants[96] Ngāti Awa challenges the High Court's conclusion that the relevant planningframework provided adequate coverage of the matters in ss 6(e), 7(a) and 8, includingin particular recognising and providing for the relationship of Māori with water.Ms Irwin-Easthope submitted that the High Court did not undertake its ownassessment of the planning framework to assess whether it provided adequatecoverage of pt 2 and had instead placed emphasis on the evidence of the planningwitnesses.[97] Ms Irwin-Easthope emphasised what she saw as unique aspects of the case,which she submitted meant reversion to pt 2 was necessary: that the planningframework is subject to change, that water bottling activities do not regularly comebefore the courts, and that Creswell's proposal is for an activity not contemplated by86 At [175].87 At [178].88 At [188].the planning framework and will have serious effects on the environment andNgāti Awa's ability to exercise their tikanga and kawa, including their role as kaitiaki.Partly because it is in a state of flux, Ms Irwin-Easthope submitted the planningframework was deficient in its coverage of the matters provided for in ss 6(e), 7(a)and 8, particularly when considering the principles expressed in the MataatuaDeclaration, tino rangatiratanga (a principle encompassed by s 8) and the importanceof te wai, the taonga at issue to Māori. Ms Irwin-Easthope said these deficiencies gaverise to the need to refer to and apply pt 2, in accordance with the statement inMcGuire v Hastings District Council that ss 6(e), 7(a) and 8 contain "strong directions,to be borne in mind at every stage of the planning process".89[98] Ms Irwin-Easthope also submitted that in the circumstances of this case anassessment of sustainability was not sufficient for the purposes of addressing culturaleffects, particularly in relation to s 8. She contended the Environment Court and theHigh Court had wrongly conflated sustainability with biophysical matters and hadfailed to consider metaphysical effects in determining whether reversion to pt 2 wasnecessary. She suggested this was an error similar to that made by thedecision-making committee of the Environmental Protection Authority inTrans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board.90In that case, William Young and Ellen France JJ held that the committee had noteffectively grappled with the true effect of the proposal for the iwi parties and theirconcern that they would be unable to exercise their kaitiakitanga to protect the mauriof the marine environment.91 It was said that the committee needed to "indicate anunderstanding of the nature and extent of the relevant interests, both physical andspiritual, and to identify the relevant principles of kaitiakitanga said to apply".92[99] Similar submissions were made by Mr Enright on behalf of Ngāti PikiaoEnvironmental Society Inc and Te Rūnanga o Ngāi Te Rangi Iwi Trust. In relation tothe first part of Question 3, Mr Enright emphasised that PPC9, one of the regionalplanning instruments the Environment Court had considered, had been subject to89 McGuire v Hastings District Council [2000] UKPC 43, [2002] 2 NZLR 577 at [21].90 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127,[2021] 1 NZLR 801.91 At [160].92 At [161].appeals and has since been withdrawn. Mr Enright submitted the fact that a relevantplanning instrument is undergoing the statutory procedures required to make itoperative under the RMA and might therefore be subject to change means that directresort to pt 2 was necessary. He made the general point that it cannot be assumed thata plan change will promote sustainable management and the various component partsof ss 6, 7 and 8 when its provisions might be changed in further processes.[100] As to the second part of Question 3, Mr Enright emphasised the statements inKing Salmon and McGuire about the mandatory nature of Treaty of Waitangiconsiderations for decision making under the RMA.93 He submitted that pt 2 was amandatory consideration for the proposal and the Environment Court had erred infinding there was no need to consider it directly.The respondents[101] For Creswell, Mr Smith submitted that, based on the Environment Court'sfactual findings that the Ōtākiri aquifer is an abundant, renewable source of water,Creswell's proposed water take will have no adverse effects on the aquifer in a physicalor metaphysical sense. In terms of the latter, Ngāti Awa's case that the export of thewater would adversely affect its mauri and ability to exercise its kaitiaki role wasrejected by the Environment Court, which had preferred the evidence of Mr Manueraand found that the export would not, as a matter of the tikanga of Ngāti Awa,have adverse effects justifying the refusal of consent.[102] Mr Smith also submitted that there was no basis in the relevant regionalplanning instruments for Creswell's application to be refused. There is no regionalpolicy or rule that purports to regulate the export of water. There is no suggestion thatthe relevant plans had been prepared incompetently and the planning witnesses beforethe Environment Court agreed that the plans had provided adequate coverage ofss 6(e), 7(a) and 8. This was reflected in the joint witness statement of the experts,including Bridget Robson, whom Ngāti Awa had called. Ms Robson had also agreedthat the regional planning framework provided comprehensive provisions regarding93 Referring to King Salmon, above n 64, at [88]; and McGuire v Hastings District Council,above n 89, at [21].kaitiakitanga. Mr Smith submitted there is no basis to question the conclusionsreached by the Environment Court and the High Court that these issues wereadequately dealt with in the planning instruments. He pointed out that Ngāti Awa hadalso not identified what would have been achieved if direct recourse to pt 2 were had.[103] Mr Smith further submitted that it was wrong to suggest the High Court hadfound that an assessment of sustainability was by itself sufficient to address relevantcultural effects. He submitted that the High Court had not in fact made such a finding.Rather, the Environment Court had determined that Creswell's proposed water takewould not compromise the sustainability or mauri of the aquifer, a finding that wasnot in issue in the High Court. But the Environment Court had not failed to deal withthe actual issue raised before it, about the effect of bottling and export on Ngāti Awa'stikanga. As to that it had made a factual finding on the evidence before it. So, thefactual premise of the second part of Question 3 was wrong.[104] For the Regional Council, Ms Hill noted that the relevant provisions of theRNRP, which provide guidance on addressing the matters in ss 6(e), 7(a) and 8, werenot affected by PPC9. The subsequent withdrawal of PPC9 should not have affectedthe comprehensive provisions of the RNRP that had been referred to and applied bythe Environment Court and the High Court. Contrary to Ngāti Awa's submissions,while the High Court noted that all the planning witnesses agreed that the regionalplanning instruments dealt comprehensively with relevant pt 2 matters includingkaitiakitanga, the High Court undertook its own assessment. In doing so, it hadidentified the relevant provisions which directly referred to te mana o te wai andTe Tiriti o Waitangi principles, including recognition of tino rangatiratanga and thedegradation of mauri. The Court was entitled to rely on the provisions that werereferred to it by counsel and in the evidence, and to review and apply those provisions.After doing so, the High Court properly concluded that the regional planningframework provided adequate coverage of the matters referred to.[105] Ms Hill also submitted that neither Ms Irwin-Easthope nor Mr Enright hadclearly explained how making direct reference to pt 2 would have resulted in adifferent outcome or explained what additional guidance or direction pt 2 would haveprovided in relation to cultural effects beyond the matters covered by the planningframework. Ms Hill contended the High Court was alert to the fact that an additionalassessment carried out under pt 2 would not have materially affected the outcome ofthis case. And, as with Mr Smith, Ms Hill rejected the suggestion that theEnvironment Court had carried out an assessment limited to sustainability.Analysis[106] King Salmon involved an application for changes to the Marlborough SoundsResource Management Plan.94 The Supreme Court held that the comprehensive natureof the New Zealand Coastal Policy Statement (NZCPS) meant there was no need forthe decision makers to make reference to and apply the provisions of pt 2 of the RMA:in principle, by giving effect to the NZCPS, the decision makers were necessarilyacting "in accordance with" pt 2 in any event.95[107] In RJ Davidson, this Court explained that the consideration of applications forresource consent under s 104 of the RMA required a different approach.96Discussing s 104(1), we said:[47] we are satisfied that the position of the words "subject to Part 2"near the outset and preceding the list of matters to which the consent authorityis required to have regard, clearly show that a consent authority must haveregard to the provisions of pt 2 when it is appropriate to do so.[108] This Court also acknowledged that there will be cases where reference to pt 2will not add anything of value. We said:[74] It may be, of course, that a fair appraisal of the policies means theappropriate response to an application is obvious, it effectively presents itself.Other cases will be more difficult. If it is clear that a plan has been preparedhaving regard to pt 2 and with a coherent set of policies designed to achieveclear environmental outcomes, the result of a genuine process that has regardto those policies in accordance with s 104(1) should be to implement thosepolicies in evaluating a resource consent application. Reference to pt 2 in sucha case would likely not add anything. It could not justify an outcome contraryto the thrust of the policies. Equally, if it appears the plan has not beenprepared in a manner that appropriately reflects the provisions of pt 2, that willbe a case where the consent authority will be required to give emphasis to pt 2.[75] If a plan has been competently prepared under the Act it may bethat in many cases the consent authority will feel assured in taking the view94 King Salmon, above n 64.95 At [85].96 RJ Davidson, above n 65, at [47].that there is no need to refer to pt 2 because doing so would not add anythingto the evaluative exercise. Absent such assurance, or if in doubt, it will beappropriate and necessary to do so. That is the implication of the words"subject to Part 2" in s 104(1), the statement of the Act's purpose in s 5, andthe mandatory, albeit general, language of ss 6, 7 and 8.[109] We have already set out many of the relevant extracts from the planningdocuments to which the High Court referred, at [90]–[92] above, and we do not repeatthem here. We observe that they reflect an apparently comprehensive set of provisionsdealing with issues relevant to the relationship of Māori with water, te mana o te waiand relevant Te Tiriti o Waitangi/Treaty of Waitangi principles. The latter includeprovisions recognising tino rangatiratanga and the degradation of mauri. The planningdocuments refer extensively to both the biophysical and metaphysical dimensions ofactivities relating to water. The appellants assert an error as a result of the Courts notreferring in addition to pt 2, but we are left unclear as to what that might have addedto the analysis carried out by reference to the planning documents. This was a case inwhich, in accordance with what was said in RJ Davidson, the Environment Courtcould properly conclude that nothing would be added by direct reference to pt 2.And in this respect, it is not a significant point to say that the planning frameworkmight later change if what remained and was referred to dealt comprehensively withthe issues affecting the wai from both a biophysical and a metaphysical perspective.[110] We consider in the circumstances that this was a case in which theEnvironment Court was entitled to feel "assured in taking the view that there isno need to refer to pt 2 because doing so would not add anything to the evaluativeexercise".97 We acknowledge that in cases involving issues of concern to Māori aboutthe commercial exploitation of water for bottling and sale there may well be risks inadopting that approach in some contexts. However the combination of circumstancesthat allowed the approach to be adopted here was the comprehensive nature of theprovisions in the RNRP, and the arguments and evidence presented to theEnvironment Court for and against the proposal which framed the issues the Court hadto decide. No party identified any relevant consideration addressed in the submissionsor evidence that did not come within the RNRP, but would come within pt 2.Against that backdrop, it was not the responsibility of the Environment Court97 At [75].to embark on a free-wheeling examination of pt 2 to see if something had possiblybeen omitted from consideration in the RNRP.[111] We think it is clear that the Environment Court had dealt directly with the casethat was presented to it and the same is true of the High Court in considering thematters which were the subject of argument there. Ms Irwin-Easthope referred to thepossibility that the planning framework might later change to reflect the concerns nowexpressed about the use of water for bottling and export. While that might be true,it cannot be a significant point when the case presented in opposition to Creswell'sproposal was answered on the evidence that the bottling and export of the water wouldnot affect the aquifer, or the mauri of the wai. The Environment Court was entitled toaccept this evidence and it has not been explained how reference to pt 2 might haveresulted in a different outcome. We do not consider the Environment Court's approachin relation to this question is open to legal challenge on the grounds argued.[112] For these reasons, we answer Question 3 no.Question 4[113] The fourth question is:98Did the High Court err in finding that the Environment Court correctlydetermined that the activity status of [Creswell's] proposal was a discretionary"rural processing activity", rather than a non-complying "industrial activity"including "manufacturing", under the terms of the Whakat[ā]ne District Plan?[114] This question raises the issue of the status of the proposal under theWhakatāne District Plan. The issue arose because of an argument that the proposalwas for an activity class referred to in the District Plan as "[i]ndustrial includingmanufacturing activities" and accordingly required a new resource consent as suchactivities are non-complying in the Rural Plains Zone, where the subject land issituated. The Environment Court rejected that argument. It concluded the proposalwas a "rural processing activity", a discretionary activity in the Zone.9998 Leave judgment, above n 3, at [4].99 Environment Court decision, above n 1, at [228].[115] The District Plan defines a "rural processing activity" as "an operation thatprocesses, assembles, packs and stores products from primary productive use".The expression "primary productive use" is also defined: rural land use activities that rely on the productive capacity of land or havea functional need for a rural location such as agriculture, pastoral farming,dairying, poultry farming, pig farming, horticulture, forestry, quarrying andmining.The expression "rural land use activity" is not itself defined.[116] There is a definition of "industrial activity" in the District Plan, on whichMr Salmon relied, as noted at [131] below:Industrial activity means;a. the production of goods by manufacturing, processing (including themilling or processing of timber), assembling or packaging;b. dismantling, servicing, testing, repairing, cleaning, painting, storage,and/or warehousing of any materials, goods or products (whethernatural or man-made), vehicles or equipment, andc. depots (excluding rural processing activities and rural contractordepots), engineering workshops, panel beaters, spray painters.The Environment Court decision[117] The Environment Court framed the issue as whether the proposal was for an"industrial activity" or a "rural processing activity".100 After discussing the definitionsof those terms, the Court held the essential difference between them was that an"industrial activity" can involve any type of material, good or product but a"rural processing activity" must have as its starting point a product from a"primary productive use". Such a use must either rely on the productive capacity ofland or have a functional need for a rural location.101[118] The Court concluded there was a functional need for the proposal to be locatedon the site. It also considered that the extraction of water from an aquifer is a form ofprimary production akin to mining or quarrying. While it might be possible to take100 At [216].101 At [219].water from a number of locations, there could be no certainty that other suitablesupplies of water could be located. It accepted evidence before it that there was a:102 demonstrated functional need for the activity applied for to occur at theŌtākiri Springs site given the assurance of access to the resource in this areaand the requirements for marketing that resource.This conclusion was apparently buttressed by the existence of other water bottlingactivities in the vicinity, including those of Antipodes and Oravida.103 The Court alsoreferred to the fact that a bore across the road from the subject site was being used forthe purposes of municipal supply and noted there were no other water bottling plantsin the Whakatāne District.104[119] The Court also held that the primary resource was the water, which would beunchanged by any process or other form of manufacture. The water taken would bestored in containers, which would be removed from the site. The principal activitywas the extraction of the water. Activities within the bottling plant, such as theblow-moulding of plastic bottles as containers for the water and the packaging of thebottles on pallets for transport, were industrial activities as defined in the District Plan,but were ancillary to the principal activity in the sense that without the extraction ofthe water, those activities would not occur.105[120] The Court was also of the view that the subsequent packaging of the water intobottles and the transport of the bottles from the site was within the scope of a"rural processing activity". The Court considered that providing for a processingactivity close to an identified resource served an operational need for that activityconsistent with the nature of a "rural processing activity". Undertaking such anoperation on the site was both "efficient and consistent" with other rural processingactivities, both in terms of the nature of the activity and the scale of buildingsassociated with such facilities.106102 At [225].103 At [225].104 At [209].105 At [226].106 At [227].[121] For these reasons, the Court concluded that if the proposal were to be assessedas a new activity, it should be assessed as a "rural processing activity" andconsequently as a discretionary activity under the District Plan.107The High Court judgment[122] The High Court agreed that water extraction has a functional need for arural location, so the proposal was for a "primary productive use".108 The Judgerejected a submission made by counsel for Sustainable Otakiri that the bottlingoperation could occur offsite, rather than at source. This meant that the water bottlingactivity fell within the definition of a "rural processing activity". However, even if itoccurred offsite, that would not preclude it from being "an operation that processes"water from the "primary productive use" because the extraction of water was itself aland use.109[123] The Judge noted Sustainable Otakiri's argument that the new blow-mouldingoperation involved the manufacture of plastic bottles, bringing it within the definitionof "industrial activity", with the consequence that a non-complying activity consentwas required.110 However, he agreed with the Environment Court's view that theessential difference between an "industrial activity" and a "rural processing activity"was that the former could involve any type of material, good or product whereas thelatter must have as a starting point a product from a "primary productive use".111While blow-moulding of plastic bottles was a form of manufacturing, the Judgeconsidered the Environment Court was right to regard it as "ancillary".112 The primaryresource was the water and the principal activity was the extraction of the water.The Judge continued:113The blow moulding is a small part of the primary activity serving asubordinate but supportive function — part of the packaging process. As itwas explained, the blow moulding involves inflating (expanding) pre-madeplastic bottle moulds. Even acknowledging the scale of bottling, I considerthe ancillary blow moulding does not make the principal activity an107 At [228].108 High Court judgment, above n 2, at [235].109 At [236].110 At [237].111 At [238].112 At [244].113 At [244].industrial activity rather than a rural processing activity. Similarly, storageand transportation are ancillary activities. Acknowledging the overlapbetween the two activity definitions, I agree with the majority that theprincipal activity should be assessed as a rural processing activity.The ancillary activities do not take away from the single overall activity.[124] The Judge also rejected an argument that blow-moulding required a separateindustrial activity consent.114 He was satisfied that the whole proposal involved a"rural processing activity". He accepted the Environment Court's conclusion thatwhat was proposed was a single activity primarily involving the taking of water withinan ancillary bottling and packaging operation.115Submissions on appealSustainable Otakiri[125] The principal argument advanced by Sustainable Otakiri was that to be a"rural processing activity" there must be a product from a "primary productive use"that is processed, packed or stored. Mr Salmon submitted that a "primary productiveuse" can only arise from a rural land use activity. He submitted that although"rural land use" is not defined, the concept cannot be so wide as to mean any"land use" occurring in a rural zone. To avoid redundancy and to have meaning,"rural" must describe the "nature" of the land use, rather than its location or zoning.[126] Mr Salmon submitted, on the basis that the land use activity is an industrialbottle manufacturing, filling, packing and distribution operation, there is nothingqualifying it as a "rural land use". He noted that if the use of the bore for the takingof water is a land use activity, there is nothing about the taking of water that is uniquely"rural" in nature. Bores can be placed and operated wherever water is needed and ableto be found. Similarly, water bottling plants are found in both rural and industrialzones. The argument is that if there is no "rural land use" then the activity cannot bea "primary productive use", and there cannot be a "rural processing activity".114 At [245].115 At [247].[127] Mr Salmon also argued that for the bottling of water to be a "rural processingactivity" the use of the bore to extract the water must be the "primary productive use",to provide the product of "water" to be processed or packed.[128] Alternatively, if the use of the bore to extract water is the relevant activity,Mr Salmon argued that the use of water for bottling does not rely on the"productive capacity" of the land. While water can be applied to generateproductivity, the bottling of water itself is not productive. On this basis, water bottlingdoes not rely on the land's "productive capacity" and therefore cannot be a"primary productive use". Otherwise framed, the argument is that the productivecapacity of the land relies on water extraction rather than the other way round.[129] In terms of whether there is a functional need for a rural location, Mr Salmonargued that in order for the proposed activity to qualify it should be of the same or asimilar nature to the specific examples of "primary productive use" given in thedefinition. Mr Salmon noted that all farming, horticultural and forestry activities,as well as mining activities, require water, often obtained through a bore. So far asmining is concerned, that activity is specifically addressed in the RNRP and shouldnot be used as a "crutch" to resolve the activity status or activity categorisation ofwater bottling. The extraction of water enables all the listed primary productive uses,rather than being a "primary productive use" itself. Mr Salmon suggested thealternative approach would undermine the protection of the productive capacity ofversatile land, a District Plan policy designed to give effect to the RPS.[130] In summary, Mr Salmon submitted that an industrial bottle manufacturing,filling, packing and distribution operation requiring the use of a bore cannot be saidto have a functional need for a rural location. Industrial bottle manufacturing canoccur offsite. As for the bottling operation itself, while it is understandable that formarketing purposes the water must be bottled at source to qualify as "spring water",that is a commercial or operational constraint, rather than a functional one.[131] Another strand of Sustainable Otakiri's argument was reliance on the definitionof "industrial activity". Mr Salmon submitted that because the proposal fell readilywithin the definition, and industrial activities are not provided for in theRural Plains Zone, non-complying activity consent was required.[132] Finally, and alternatively, even if the principal activity were "rural processing",Mr Salmon submitted a consent to a non-complying activity would still be requiredbecause of the inclusion of the industrial bottle manufacturing activity in the proposal.That could not be regarded as ancillary but, even if it were so regarded,a non-complying activity consent would still be required in accordance with theprinciples established in cases where several kinds of resource consent were necessaryfor proposals that have been "bundled". The concept of "bundling" was succinctlydescribed by the Environment Court in Protect Aotea, in which Chief EnvironmentCourt Judge Kirkpatrick, sitting alone, said:116Bundling[17] Bundling, in the context of resource management in New Zealand,refers to applications for two or more resource consents being consideredtogether. Beyond the procedural requirements to hear related matters together,it denotes a practice of how to assess the class or status of the bundledactivities overall. Where the activities involved are of different classes interms of s 87A of the [RMA] and any relevant regulation, nationalenvironmental standard or plan rule, the applicable class for the bundledapplication may be the most stringent class. For example, if a proposalinvolves some activities which are classed as discretionary and some asnon-complying, the whole proposal may be assessed as non-complying.The respondents[133] For the District Council, Mr Green submitted that the proposal was for a"rural processing activity". The "product" was bottled mineral water, and the land useis the extraction of artesian water, involving the use of an existing structure or bore.The activity has a functional need for a rural location because of its dependence on theartesian water resource at the site, affording the activity its status as a "rural land use".The definition of "primary productive use" should not be read to sever the use fromits functional location. Mr Green also contended that the bottling plant is an ancillaryactivity. While the blow-moulding equipment means that manufacturing would takeplace onsite, that is rudimentary in nature, and for the purpose of efficiency rather thanthe creation of new products.116 Protect Aotea v Auckland Council, above n 40 (footnote omitted).[134] For Creswell, Mr Smith also submitted that both the Environment Court andthe High Court had correctly concluded the proposal was for a "rural processingactivity". He submitted that extracting water is a "primary productive use". The keydistinction between "primary productive use" and "industrial activity" was that theformer must rely on the productive capacity of land, or have a functional need for arural location. Here, the proposal is for a "rural land use activity" because it is to userural land on which the existing bore is located. Alternatively, if "rural land useactivity" relates to land use activities that are "'rural' in nature", the extraction of waterfrom an underground aquifer is no different conceptually from mining or quarryingmineral resources, which are expressly provided for in the District Plan as examplesof a "primary productive use". Because the District Plan contemplates that quarryingand mining will be rural activities in cases where the resource quarried or mined isfound in a rural location, there is no basis for taking a different approach to theextraction of water.[135] Mr Smith also submitted that the High Court was correct to uphold the findingof the Environment Court that the processing of water extracted at the site was theresult of land use activities. These included activities relating to operating the boresand conveying water to the bottling plant for processing. The proposal is to use landin the sense of operating a bore to extract water and conveying water to the plant forprocessing, followed by the associated activities of processing, assembly, packing,storage and freight. Mr Smith emphasised that the two deep bores at the site enabledaccess to an extremely productive aquifer containing high-quality mineral water.Water taken from the bores is the end product, rather than enabling the production ofsomething else.[136] Mr Smith also emphasised that there was no evidence before theEnvironment Court of any suitable alternative source of water that would allow theproposal to be located other than in a rural location or indeed at any site other than thesubject site. He noted the concession of Sustainable Otakiri that the taking of the waterwas "logically dictated by where the water is located".[137] Mr Smith was critical of Sustainable Otakiri's description of theblow-moulding part of the operation as involving "bottle manufacturing and filling".He submitted that the proper characterisation of that part of the activity was"water bottling". Plastic "pre-forms" in the shape of test tubes are to be manufacturedoffsite and transported onsite: the proposal does not involve bringing to the site fullyinflated plastic bottles. Rather, the pre-forms will be inflated by "blow-moulding" intothe finished bottle shapes, and then filled. While inflating the plastic pre-forms mightbe seen as a very rudimentary form of manufacturing, the end product is not the bottles,but bottled water. Mr Smith drew a parallel with similar activity at a dairy factory,or the erection of flat-packed cardboard boxes or moulding cardboard casing forpacking fruit. He submitted the blow-moulding activity is properly seen as part of theoverall water bottling "operation", intrinsically linked with the "processing","assembling" and "packing" of water as contemplated by the definition of"rural processing activity".[138] Mr Smith further argued that the High Court correctly held that activitiesancillary and forming part of the "rural processing activity" did not need to obtain aseparate consent, because a "rural processing activity" could properly extend to everypart of the operation involved in the primary activity of extracting water for bottling.The High Court had correctly concluded that blow-moulding did not require a separateindustrial activity consent. As a consequence, no error of law was made by theHigh Court or the Environment Court.Analysis[139] Creswell applied to the District Council to change conditions attached to anexisting consent granted in 1991 to establish a mineral water bottling plant onthe land.117 It was a condition of consent that the site be developed generally inaccordance with the application and plans submitted to the District Council.There were restrictions on operating hours: the activities authorised could not takeplace after 10 pm. Another condition required that there be regular monitoring of117 The 1991 consent refers to a "mineral bottling plant", but it is clear from the consent documentread as a whole that this is a typographical error and that consent was given "to establish a plantfor bottling mineral water from a bore on site".the activity, and that the District Council be informed when there was any"major expansion or updating of plant and machinery".118[140] The application made under s 127 of the RMA and accompanying material didnot expressly identify which of the conditions Creswell sought to change. Clearly,however, the condition requiring development to be generally in accordance with theapplication and plans would need to be altered. As to the limitation on operating hours,an Operational Summary submitted with the application stated that what wasdescribed as "manufacturing" and "warehousing" would take place 24 hours a day,seven days a week.[141] We deal with the question of whether s 127 was appropriately used as thevehicle for what amounted to a substantial change and intensification of the activitiestaking place on the site in answering Question 5; we proceed to deal with the presentquestion on the basis that s 127 was properly invoked.[142] A second appeal on a question of law is not an appropriate vehicle to questionconclusions that are essentially factual in nature. As this Court noted inCentrepoint Community Growth Trust v Takapuna City Council (Centrepoint),to decide whether an activity falls within a term defined in a district plan, it isnecessary to consider the defined term and its essential characteristics.119The second step is to find the facts, the third to decide whether they fall within thedefined term. The first step is generally considered to be a question of law, althoughit may be a question of fact where the words used in the definition are ordinary wordsin everyday use. The second step obviously involves factual findings. The third isalso a question of fact, although the conclusion can be attacked in law if it isunreasonable in the sense that no court "acquainted with the ordinary use of language118 It is not clear on the face of the 1991 consent why the District Council would be informed abouta major expansion rather than noting that a further application for resource consent would benecessary. In any event, as Creswell obviously accepts, nothing in the 1991 consent could detractfrom obligations arising under the RMA.119 Centrepoint Community Growth Trust v Takapuna City Council [1985] 1 NZLR 702 (CA) at 706[Centrepoint].could reasonably reach that conclusion", or if the court applied a wrong legal test inreaching its determination.120[143] This accords with what was said more recently by the Supreme Court in thedifferent context of appeals on questions of law arising under theEmployment Relations Act 2000 in Bryson v Three Foot Six Ltd.121 After noting thatquestions concerning whether a person is employed under a contract of employmentinvolved questions of fact, the Supreme Court held that an appealable question of lawcould nevertheless arise if the court misinterpreted what the statute said about thelegal concept of a contract of service.122 The Court continued:123[25] An appeal cannot, however, be said to be on a question of law wherethe fact-finding Court has merely applied law which it has correctlyunderstood to the facts of an individual case. It is for the Court to weigh therelevant facts in the light of the applicable law. Provided that the Court hasnot overlooked any relevant matter or taken account of some matter which isirrelevant to the proper application of the law, the conclusion is a matter forthe fact-finding Court, unless it is clearly insupportable.[26] An ultimate conclusion of a fact-finding body can sometimes be soinsupportable — so clearly untenable — as to amount to an error of law:proper application of the law requires a different answer. That will be theposition only in the rare case in which there has been, in the well-known wordsof Lord Radcliffe in Edwards v Bairstow, a state of affairs "in which there isno evidence to support the determination" or "one in which the evidence isinconsistent with and contradictory of the determination" or "one in which thetrue and only reasonable conclusion contradicts the determination". [144] In these terms, the only possible error of law that could arise here is whetherthe interpretation of the definitions of "rural processing activity" and"primary productive use" adopted in the Courts below was incorrect. For the reasonsthat follow, we have not been persuaded that it was.[145] We described the essential aspects of the proposal at [7]–[12] above.The question for present purposes is whether the Courts below were correct120 At 706. Centrepoint discussed the meaning of an ordinance in a district plan made under theTown and Country Planning Act 1977, which limited appeals from the then Planning Tribunal toquestions of law. There is no reason to adopt a different approach to appeals under the RMA,which are similarly limited to questions of law: see Resource Management Act, s 308(1); andCriminal Procedure Act 2011, sub-pt 8.121 Bryson v Three Foot Six Ltd, above n 43.122 At [23]–[24].123 Footnote omitted.to determine that the proposal was for a "rural processing activity" falling to beassessed as a discretionary activity in terms of the District Plan.[146] We set out the relevant definitions bearing on this question at [115]–[116]above. The starting point is the definition of "rural processing activity". That is"an operation that processes, assembles, packs and stores products from primaryproductive use". A preliminary observation that may be made is the definitioncontemplates an "operation" that embraces different activities, provided it involves"products from primary productive use". The products may be processed, assembled,packed and stored. It is clear that an "operation" may involve one or more of thoseactivities. We also consider that the word "operation" is sufficiently broad to embraceactivities other than those specifically listed in the definition, as part of the overallactivity, provided they are carried out in relation to the "product".[147] Sometimes where a land use consists of a number of separate elements theremay be difficulties in assessing whether it falls within a category defined by thedistrict plan. But this is not such a case. As observed by this Court in Centrepoint,the proper characterisation of an activity consisting of a number of different elementsis a question of fact and degree.124 The Court referred to two possible approaches.First, it may be possible to identify a single main purpose of the use of land, to whichother activities are incidental or ancillary. Alternatively, the use may consist of avariety of activities in respect of which it is not possible to say that any one isincidental or ancillary to the other.125 We consider it is possible in the present caseto identify an overall proposed activity of which all the individual elements form part:in our view the single main purpose of the land use is the extraction and bottling ofwater. It does not matter that both extraction and bottling are involved, and it wouldbe artificial to separate them. The use of the word "operation" is apt to cover anactivity that embraces a number of elements. It does so explicitly in the definitionitself by instancing processing, assembly, packing and storing.124 Centrepoint, above n 119, at 708.125 At 708, citing Burdle v Secretary of State for the Environment [1972] 1 WLR 1207 (QB) at 1212.[148] In the present case, water would be extracted pursuant to the consent to takewater. The land use activities that are necessary for the extraction can properly be seenas part of the overall "operation" and covered by the District Plan.[149] Alternatively, the land use activities that are necessary for the extraction mayproperly be regarded as ancillary to the operation. The District Plan defines"ancillary" as: small and minor in scale in relation to, and incidental to, the primaryactivity and serving a subordinate but supportive function to the primaryactivity. An activity that is of a scale, character or intensity that is consideredindependent of the princip[al] activity is not ancillary.[150] We consider the High Court was correct to consider the blow-moulding ofplastic bottles was "ancillary" in terms of the above definition. In this context too,the fact that ancillary activities are not specifically referred to in the definition of"rural processing activity" is of no moment, because of the breadth of the definitionand in particular the word "operation". We think that must cover everything that isinvolved in processing, assembling, packing and storing products, including formingup the packaging used to contain the product. This is all part of the "operation".[151] It is possible to harbour some doubt about whether the word "product" can beappropriately applied to water if the definition of a "rural processing activity" wasconsidered on its own. In this respect, as noted at [127] above, one ofSustainable Otakiri's arguments was that the water itself must be produced from a"primary productive use". However, we think that approach breaks down whenreference is made to the definition of "primary productive use", set out at [115] above.An activity will be within the definition if it is a "rural land use activity" that relies onthe productive capacity of land or has a functional need for a rural location.The definition has to be construed having regard to the use of the words "such as" andthe examples which follow. Two implications of this are that:(a) The examples given are not intended to state exhaustively whichrural land use activities may be said to rely on the productive capacityof the land or have a functional need for a rural location.(b) The category of such rural activities extends to those which areextractive in nature, such as quarrying and mining.There is no obvious reason for treating the extraction of water from a rural location bythe use of bores as an activity of a different kind. In all three cases (quarrying, miningand extracting water) something occurring naturally in, on or under the land isextracted. The Environment Court had found that the extraction of water from anaquifer is a form of primary production akin to mining or quarrying.126The High Court agreed.127 We have not been persuaded this conclusion is incorrect asa matter of law.[152] The activity in this case relies both on the productive capacity of the land andhas a functional need for a rural location because that is where the water is found.The Environment Court had found, on the evidence before it, that the requirement of"functional need" was established. This was essentially a determination of fact.We do not see the District Plan as requiring that the particular rural location be theonly place where the resource is found, and there is no need in our view for that to beaddressed or established for the purposes of Creswell's application.[153] Sustainable Otakiri contended that the extraction of water is not in itself aland use. That may be so if the taking of water is considered in the narrowest possibleway. However, "use" is relevantly defined in s 2(1)(a)(i) of the RMA as including,for the purposes of s 9, using "a structure or part of a structure in, on, under, or overland". This definition of use would extend to all the activities taking place on the landthat are necessary for the purposes of the extraction of the water (including theoperation of the bores) and the placement of it in bottles. All this requireshuman agency, and that agency will be a land use activity.[154] Because we have concluded the proposal falls within the definition of"rural processing activity", it does not matter that some aspects of it might also fallwithin the definition of "industrial activity" (but for the requirement that a"rural processing activity" must involve a product from a "primary productive use").126 Environment Court decision, above n 1, at [225].127 High Court judgment, above n 2, at [235].We think it clear that the District Plan does not intend to exclude activities in the natureof industrial activities from the ambit of rural processing activities, provided they takeplace as part of an operation that qualifies as a "rural processing activity".Both industrial and rural processing activities (through the definition of "primaryproductive use") can include, for example, processing, assembling and packaging.[155] Our analysis means that no issues arise about the "bundling" of activities.The expression is used to refer to cases where a proposal involves activities whichrequire a number of different consents that have a different status under the relevantdistrict plan. In such cases the overall activity may be classified in the most "stringent"category, to borrow Judge Kirkpatrick's term in Protect Aotea.128 However, on ourapproach the proposal as a whole falls within the discretionary activity category of a"rural processing activity".[156] Consequently, we think a "rural processing activity" extends to the processingand storage of water, that being a product derived from a "primary productive use".We conclude that the activities proposed by Creswell are all within the defineddiscretionary activity of a "rural processing activity".[157] Accordingly, Question 4 must be answered no.Question 5[158] The fifth question is:129Did the High Court err in finding that the Environment Court correctlyclassified [Creswell's] proposal as an expansion of an existing use of land, andtherefore a discretionary activity under s 127 of the [RMA], rather than as anew activity falling for consideration as a non-complying activity under s 88of that Act?[159] Sustainable Otakiri seeks to challenge the fact that the proposal was advancedby Creswell and processed by the District Council as an application under s 127 of theRMA. Because of s 127(3)(a), dealing with the application in that way meant that it128 Protect Aotea v Auckland Council, above n 40, at [17].129 Leave judgment, above n 3, at [4].was to be treated as an application for a resource consent for a discretionary activityregardless of the proposal's activity status under the District Plan.[160] Sustainable Otakiri submits that the application should have been consideredas an application for resource consent for a new activity under s 88 of the RMA. If thatapproach had been followed, consent for a non-complying activity would have beenrequired. Such applications must meet more stringent statutory tests than applicationsfor discretionary activities.[161] Because of the answer given to Question 4, this issue is of academic interestonly, since if s 127 had been incorrectly invoked, the Environment Court hadconsidered the proposal as a discretionary activity in any event, as required bys 127(3)(a).130[162] The discussion that follows is best understood in the context of the wording ofs 127, which we set out again for ease of reference:127 Change or cancellation of consent condition on application byconsent holder(1) The holder of a resource consent may apply to a consent authority fora change or cancellation of a condition of the consent, subject to thefollowing:(a) the holder of a subdivision consent must apply under thissection for a change or cancellation of the consent before thedeposit of the survey plan (and must apply under section 221for a variation or cancellation of a consent notice after thedeposit of the survey plan); and(b) no holder of any consent may apply for a change orcancellation of a condition on the duration of the consent.(3) Sections 88 to 121 apply, with all necessary modifications, as if—(a) the application were an application for a resource consent fora discretionary activity; and130 There is no suggestion that the Environment Court's consideration of the matters relevant to theassessment of whether discretionary activity consent should have been granted were affected bylegal error, other than in relation to the plastic issues addressed in Question 1.(b) the references to a resource consent and to the activity werereferences only to the change or cancellation of a conditionand the effects of the change or cancellation respectively.(4) For the purposes of determining who is adversely affected by thechange or cancellation, the consent authority must consider, inparticular, every person who—(a) made a submission on the original application; and(b) may be affected by the change or cancellation.The Environment Court decision[163] The Environment Court was satisfied that the proposal was for the same typeof activity, namely water bottling as authorised by the existing consent, and that theproposal would have the same types of effects on the environment. The substantialexpansion of the activity would result in an increase in the scale of adverse effects,but the varied conditions of consent proffered by Creswell and imposed by theDistrict Council would acceptably manage those adverse effects. In thecircumstances, the Court was of the view that processing the application under s 127was appropriate and consistent with its provisions.131[164] The Court rejected arguments advanced by Sustainable Otakiri that dealingwith the application under s 127 gave Creswell an advantage by providing a"head start" in how adverse effects would be considered, and because if a newapplication had been made, it would have had to be assessed as an industrial activity,a non-complying activity in the Rural Plains Zone.[165] The Court rejected the first argument on the basis that under s 127(3)(b) thefocus is on the change to the existing conditions and the effects of that change.The Court considered that would involve the same starting point for assessment unders 104(1)(a) of the RMA that would apply to any new applications for consent.The effects of the existing water bottling activity would be part of the existingenvironment within which any new proposal for expansion would be assessed.Consequently, no advantage had been gained by Creswell and a full assessment of the131 Environment Court decision, above n 1, at [252].adverse effects of the expansion had in fact been carried out in the assessment of theenvironmental effects accompanying the application.132 In addition, as theinformation requirements for applications made under ss 104 and 127 were the same,and the relevant information necessary for assessment had been provided,no advantage had been gained by Creswell applying under s 127.133[166] In terms of the second argument concerning the activity status of the proposal,the Court repeated its view that the proposal was for a "rural processing activity" underthe District Plan. Consequently, even if a resource consent application had been madefor a new activity, discretionary activity consent would have been required.134[167] The Court concluded that Creswell's proposal had been appropriatelyprocessed as a variation to existing consent conditions under s 127.135 It expressed itsconclusion as follows:[252] The evidence before us confirms that the proposed project is for thesame type of activity (water bottling) as authorised by the existing consent,with the same types of adverse effects. The substantial expansion of theactivity proposed would result in a corresponding increase in the scale ofadverse effects. The varied conditions of consent proffered by Creswell andimposed by the Council are designed to manage these adverse effects toacceptable levels. We consider that the application under s 127 was anappropriate pathway for Creswell to pursue, consistent with the provisions ofthat section and the criteria established by case law.The High Court judgment[168] The High Court endorsed the Environment Court's approach. The Judgeconsidered the proposal involved the same activity for which consent had originallybeen granted in 1991. He repeated his conclusion that the proposal did not require anon-complying activity consent but rather consent as a discretionary activity.136132 At [253]–[254].133 At [256].134 At [255].135 At [257].136 High Court judgment, above n 2, at [258]–[259].Submissions on appealSustainable Otariki[169] Sustainable Otakiri began its argument on this question by referring tothis Court's decision in Body Corporate 97010 v Auckland City Council.137 Althoughs 127 in the form it took when that case was decided has subsequently been amended,Mr Salmon submitted the obligation of the consent authority to direct its attention tothe effects of the change or cancellation of the condition(s) remained. He emphasisedthat s 127 should not be available for a change in the activity, as opposed to a changein a condition to which the activity is subject.[170] In the present case, the activity originally authorised was the establishment ofa mineral water bottling plant. Mr Salmon contrasted that with the proposal forindustrial blow-moulding facilities, two new high-speed bottling lines, a newtwo-storey building to house those activities, three new cooling towers, and a newcontainer and transport depot allowing for storage and movement of containers: suchactivities had not previously taken place on the site. Mr Salmon particularlyemphasised the new building, which would be 16,800 m2 in area. He submitted thatthe new industrial blow-moulding activity, which would require steam boilers,cooling towers and a chimney stack, amounted to an entirely new activity on the site.[171] Mr Salmon submitted that the High Court was wrong to endorse theEnvironment Court's approach. The substantial increase in the scale of the proposedactivities meant there would be a change in the nature of the activity, with the resultthat s 127 was not available and a fresh application under s 88 was required.[172] Mr Salmon illustrated this argument using parallels in the form of expansionof a corner dairy into a supermarket, a boutique retail shop into a shopping centre,a bed and breakfast into a hotel or indeed any number of small-scale activitieschanging into something which was beyond any contemplation at the time the originalconsent was granted. While s 127(1) allows an application for a change or cancellationof conditions of consent, here two conditions were proposed to be deleted and replaced137 Body Corporate 97010 v Auckland City Council [2000] 3 NZLR 513 (CA).with 20 new conditions.138 Mr Salmon submitted that the failure to separately identifyand require consent for all the activities had resulted in errors of assessment, and afailure to properly assess the effects against the detailed provisions of the District Plan.The respondents[173] The respondents submitted that the approach of the Courts below was correct.Counsel submitted that the pre-existing land use consent enabled water bottling to takeplace on the site. The Environment Court had correctly held that there wereno boundaries in s 127 on the "jurisdiction for its application". Whether s 127 can berelied on turns simply on whether there is an existing resource consent for what is inessence the same activity, namely water bottling, that is to continue into the future.Consequently s 127 was available and there was no need for Creswell to apply forresource consent to a new activity.[174] The respondents also submitted that the proposal involves an activity which isessentially the same as the existing activity at the site, on a larger scale. There wouldbe essentially the same production process involving the extraction of water,conveying it to the plant, bottling, packaging and loading containers onto trucks forremoval from the site for export. There would be additional conditions reflecting thelarger-scale operation. The new activities claimed by Sustainable Otakiri are allassociated with water bottling and, in the case of the blow-moulding of plastic bottles,simply a reflection of advances in technology.[175] For Creswell, Mr Smith emphasised the Environment Court concluded that theenvironmental effects associated with the change of conditions would be of the samenature as those of the current activity. Although they would be at a greater scale insome respects, they would remain "no more than minor". The fact that an approvedvariation of conditions might result in increased adverse effects is inherent in thestatutory requirement to consider the effects of the change. There was no authority for138 In fact, as finally consented to by the Environment Court, none of the original conditions remainand 69 new conditions have been imposed: see Te Rūnanga o Ngāti Awa v Bay of Plenty RegionalCouncil [2020] NZEnvC 89.Sustainable Otakiri's proposition that the consequences of a change of condition mightresult in a change of such significance that it cannot be said the activity is the same.Analysis[176] Section 127 as it currently reads is significantly different from the form it tookprior to amendment in 2003. As enacted, s 127(1) provided that the holder of aresource consent could apply to vary its conditions (other than as to its duration) either:(a) at any time specified for that purpose in the consent; or(b) regardless of such specification, at any time provided that a "change incircumstances" had caused the condition "to become inappropriate orunnecessary".[177] Section 127(3) of the RMA provided that certain provisions applicable toapplications for resource consent would apply to applications under subs (1) as thoughthe application were for a resource consent, but provided that s 93 (which related towhen public notification of consent applications was required) would not apply if theconsent authority was satisfied:(a) that either—(i) the adverse effect of the activity (other than on a person whoseapproval had been obtained under para (b)) would continue tobe minor; or(ii) the degree of the adverse effect (other than on a person whoseapproval had been obtained under para (b)) would likely beunchanged or would decrease; and(b) that written approval had been obtained from every person (includingsubmitters on the original application who might be affected) whomight be adversely affected, unless it would be unreasonable to obtainevery such approval.[178] Subsection (4) provided that the exception in subs (3) as to public notificationwould apply regardless of whether notification was required by a plan or proposedplan and the type of activity regulated in the relevant resource consent.[179] That position changed in 2003 following the enactment of theResource Management Amendment Act 2003 (the 2003 Amendment). Section 53 ofthat Act replaced s 127(1) of the RMA, providing that the holder of a resource consentcould apply to vary its conditions (other than as to its duration), omitting conditions(a) and (b) at [176] above.139 It also replaced subs (3), providing that provisionsapplicable to applications for resource consent would apply to applications undersubs (1) as though the application were for a discretionary activity.140 Finally,the 2003 Amendment replaced subs (4), providing that the local authority must,when determining who is adversely affected by the change or cancellation, considerin particular every person who made a submission on the original application and whomay be affected by the change or cancellation.141[180] The explanatory note to the Bill that became the 2003 Amendment records thatthe amendments to s 127 were aimed at "allow[ing] consent holders greater flexibilityto apply for a change of consent conditions".142 Little else is immediately evidentfrom the parliamentary materials.[181] The 2003 Amendment appears to have been strongly influenced by theResource Management Amendment Bill 1999, which had been introduced in an earlierparliamentary session (the 1999 Amendment Bill).143 Referring to this,the explanatory note to the Bill which became the 2003 Amendment records that:144The Bill is virtually identical to the Report of the Local Government andEnvironment Committee on the Resource Management Amendment Bill(313–2).139 Resource Management Amendment Act 2003, s 53(1).140 Section 53(2).141 Section 53(2).142 Resource Management Amendment Bill (No 2) 2003 (39–1) (explanatory note) [Explanatory note2003] at 12.143 Resource Management Amendment Bill (No 2) 1999 (313–1).144 Explanatory note 2003, above n 142, at 1. The explanatory note also states that the Billincorporated only two substantive changes to the 1999 Amendment Bill as reported on by theSelect Committee, both of which were in the 1999 Amendment Bill as introduced: at 1–2.Neither is relevant for present purposes.[182] The 1999 Amendment Bill was not progressed following the report of theSelect Committee that considered it.145 However, importantly for present purposes,cl 48 of the 1999 Amendment Bill substantially mirrored s 53 of the 2003 Amendment.Given the influence that the 1999 Amendment Bill clearly had on the2003 Amendment, it is helpful to examine some of its explanatory materialsto understand the intent behind those changes.[183] In particular, the Select Committee noted:146Clause 48 amends section 127(1) of the [RMA] to remove the need for thereto be a change in circumstances before a consent holder can apply for a changein consent conditions. The limitation on not being able to apply to change acondition relating to the duration of the consent is retained. The applicationis treated as an application for a discretionary activity for the purposes ofprocessing the application.At present, if a resource consent does not explicitly allow conditions to bereviewed, the consent holder has to show that there has been a change incircumstances that has caused a consent condition to become inappropriate orunnecessary before the condition can be changed or cancelled. The test isconsidered unnecessary as practical experience may mean a condition isunsuitable. The process to be followed is the same as a new consent, althoughthe only matter under review is the condition that is to be changed.We recommend that clause 48 be modified to clarify that only the change orcancellation of a consent condition is considered, not the whole consent.We also recommend the insertion of a new subsection (3A) in proposed newsection 127, which reflects the current requirement for consent authorities,when determining who is adversely affected and should be consulted,to consider submitters on the original application. We support the provisionfor an application for a change or cancellation of a consent condition to betreated as a discretionary activity.[184] Subsection (3A) referred to in the ultimate paragraph above is identical to whatis now s 127(4) of the RMA, as introduced by the 2003 Amendment Act.Further changes to s 127 were made in Amendment Acts enacted in 2005,147 2009148and 2011149, but these are not relevant for present purposes.145 Resource Management Amendment Bill (No 2) 2003 (39–2) (select committee report) at 1.146 Resource Management Amendment Bill 1999 (313–2) (select committee report)[Select Committee report 1999] at 49.147 Resource Management Amendment Act 2005, s 70.148 Resource Management (Simplifying and Streamlining) Amendment Act 2009, s 150.149 Resource Management Amendment Act (No 2) 2011, s 34.[185] The Select Committee report indicates that the legislative intention wasto enable conditions to be changed without the need to show that there had been achange in circumstances that caused a consent condition to become inappropriate orunnecessary. The report recognised that "practical experience" might mean that acondition originally imposed was unsuitable.150 The focus shifted from assessing theeffect of changed circumstances to assessing how suitable the condition was in relationto the activity the condition was intended to limit, as a result of the changedcircumstances. Removal of the requirement to demonstrate the condition had becomeinappropriate or unnecessary was seen as enabling a fresh look at the suitability of thecondition in the context of an application for discretionary activity consent.[186] However, s 127 was not intended to authorise an application for resourceconsent to a new activity. Rather it was to authorise an application to change or cancelconditions attached to the activity for which consent was originally granted. So, if thecondition were cancelled that activity could continue, no longer subject to thatcondition. And if the condition were changed, that activity could continue subject toa new condition or conditions. In the case of either change or cancellation, the activitythat continued would need to be the same activity for which consent was originallygranted.[187] We do not consider that Parliament intended s 127 to be used to authorise acompletely new activity under the guise of changing the conditions to which theoriginal activity was subject. We think the "activity" that continues subject to achanged condition must be the same activity that was taking place subject to thecancelled condition. In our view, it is not appropriate to treat "activity" in this contextas if it embraces an activity which might be described as the same "kind" of activity.We think in effect that is the approach the Environment Court took, and the High Courtendorsed, and we do not think it is right.[188] We consider our view accords with the genesis of the 2003 Amendment in thereform contemplated in 1999, although not proceeded with then. The legislativehistory does not sit comfortably with the use of the section to introduce a substantially150 Select Committee report 1999, above n 146, at 49.modified activity with an entirely new suite of conditions, as has been foundacceptable in the present case. It is of course correct in one sense to say the kind ofactivity is the same, but the increased intensity and scale of the activity compared withthat for which consent was originally granted is discordant with the idea that all thatis being changed are the conditions of consent.[189] This conclusion is supported by the consideration that there is no need for suchan expansive view of s 127, having regard to the structure and scheme of the RMA.Anyone wanting to apply for consent to a new activity may do so under s 88. Thereis no need for s 127 to function as a kind of alternative vehicle for obtainingresource consent for what is for all intents and purposes a different activity to that forwhich consent was originally granted.[190] Activities are authorised by resource consents granted under s 104. They maybe subject to conditions imposed under s 108. An activity is not the same concept asthe conditions to which it is made subject. This was a distinction made by this Courtin Body Corporate 97010 v Auckland City Council, observing that it is "preferableto define the activity which was permitted by a resource consent, distinguishing it fromthe conditions attaching to that activity".151[191] We think the problem with the approach that found favour withthe Environment Court and the High Court in this case lies with the nature of theprincipal condition that had to be changed — the condition requiring that the site bedeveloped "generally in accordance with the application and plans submitted".Creswell used s 127 in effect to obtain consent for a new activity by seeking to changethe "application and plans". We do not consider that is an approach contemplated bys 127. It is not just a question of scale and degree, although the very significantdifference in scale and intensity underlines the fact that the activity is significantlydifferent. On the view we take, it is the fact that the activity originally consented towill essentially be replaced. The conditions will be substantially changed, but theywill control what is really a new activity.151 Body Corporate 97010 v Auckland City Council, above n 137, at [46].[192] For these reasons, we conclude that Question 5 should be answered yes.But the consequence of that does not mean that Sustainable Otakiri's appeal should beallowed. That is because:(a) The Environment Court, in accordance with s 127(3)(a), treated theproposal as one that required consent as a discretionary activity.(b) Our conclusion that s 127 should not have been used means thatdiscretionary activity consent was required for a "rural processingactivity".(c) The Environment Court assessed the proposal on that basis in anyevent.Result[193] The questions set out at [3] above are all answered no, with the exception ofQuestion 5, which is answered yes.[194] The appeals are dismissed.[195] Ngāti Awa must pay costs to the Regional Council for a standard appeal on aband A basis and usual disbursements.[196] Sustainable Otakiri must pay costs to the District Council for a standard appealon a band A basis and usual disbursements.[197] Ngāti Awa and Sustainable Otakiri must pay costs to Creswell, on theirrespective appeals, for a standard appeal on a band A basis and usual disbursements.We certify for two counsel.[198] We make no order for costs in respect of the appeals brought byNgāti Pikiao Environmental Society Inc and Te Rūnanga o Ngāi Te Rangi Iwi Trust,whose role at the hearing was very much limited to supporting Ngāti Awa andSustainable Otakiri.Solicitors:Whāia Legal, Wellington for Appellant in CA48/2021Linwood Law Ltd, Christchurch for Appellant in CA49/2021Te Pono Legal Ltd, Rotorua for Appellants in CA60/2021 and CA61/2021CooneyLeesMorgan, Tauranga for First Respondent in CA48/2021, CA60/2021 and CA61/2021Brookfields Lawyers, Auckland for First Respondent in CA49/2021Buddle Findlay, Wellington for Second Respondent in CA48/2021, CA49/2021, CA60/2021 andCA61/2021