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Can the end use of an activity be considered in a resource consent application?

Can the end use of an activity be considered in a resource consent application?

Can the end use of an activity be considered in a resource consent application?

Thursday 18 March, 2021

Iwi and environmental groups recently challenged a decision of the Environment Court majority concerning the end use of plastic bottles from a water extraction and bottling plant. The appellants also sought to join one another’s appeals in the High Court, for which they required standing.

The background

In Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC 3388, the High Court considered whether there had been material errors in the judgement of the Environment Court. Our article on that decision can be read at this link, but to recap, the Environment Court majority upheld the decisions made by two consenting authorities on multiple resource consent applications. It also concluded that there was not any scope to consider the effects of exporting water and the end use of plastic bottles, which Te Rūnanga o Ngāti Awa (TRONA) and Sustainable Otakiri Incorporated (SOI) appealed.

What did the High Court find?

An appellant court’s role is very different to a fact-finding court i.e., the Environment Court. The High Court only has jurisdiction to consider the same evidence presented in the lower court proceedings and determine whether there have been material errors in that judgement.

Issue 1: Is there a causal link between plastic bottles and water takes?

The High Court noted that decision-makers (consenting authorities and the Environment Court on appeal) must consider the effects of activities within the scope of the resource consent application. They simply cannot take into account any effect that may or may not result from the activity. Instead, there must be a real nexus or a causal relationship between the activity and the effect.

The High Court then affirmed the Environment Court majority’s findings, which were:

  • It is too remote to include the end use of plastic bottles for a water take activity;
  • The lower court had fully considered all the evidence before it, including cultural effects, in accordance with the law;
  • The primary land use activity was the water take, so water bottling was ancillary to that, as one could not bottle water without having first extracted it;
  • As such, the overall activity was rural under the district plan; and
  • It was correct to assess the land use application as a variation of the existing consent.

Issue 2: Section 127 vs Section 88: which process?

On the final point, the High Court agreed with the Environment Court majority that it is important not to apply the ‘envelope’ analogy too readily for every application under section 127 of the Resource Management Act, which is to vary (or cancel) existing consent conditions. Each variation should be assessed as a matter of fact and degree by comparing the effects of the proposed variation against the existing activity. In this case, the overall effects of the variation were no more than minor, so section 127 was held to be the correct statutory process.

What next?

As the appeal of the interim decision has now been determined, the parties will present an agreed set of resource consent conditions to the Environment Court so it may issue a final decision.

Advice

Consent authorities must ensure their assessment of an activity does not extend beyond the causal or fundamental connection between the proposed activity and an effect.

When assessing section 127 applications to vary existing conditions, consenting authorities should note that a proposed condition which varies the ‘footprint’ of an activity may not necessarily bar the consent holder from using the section 127 process. It some situations, such as this decision, a variation of a building’s footprint had the same effects or effects which were no more than minor, so section 127 was appropriate to follow. Under section 127, consenting authorities must examine the effects of the proposed variation against the effects of the original application; the unique facts and degree of effects will determine the outcome of each different application.