Supreme Court rejects use of repurposed consents for water bottling

Photo: File image / Getty
Photo: File image / Getty
The Supreme Court has reinforced a ruling that old water consents cannot be repurposed for water bottling.

Companies Cloud Ocean Water and Rapaki Natural Resources have been allowed to extract billions of litres of water each year from Christchurch's aquifers using a decades-old consent granted for industrial use.

The consents were originally granted with land intended for a wool scour and freezing works, and were extended to the water bottling companies after they bought the properties.

Last year, the Court of Appeal ruled Environment Canterbury did not lawfully grant those consents that allowed for a change of water use in 2017.

It overturned a High Court ruling in 2019, that found the process by which the consents were granted by the regional council, was lawful.

Aotearoa Water Action (AWA) had challenged the consents from the beginning and chairperson Peter Richardson said after six years of court action and four hearings, it was thrilled with the decision.

"We feel fantastic about it. It is a great relief the Supreme Court has upheld the Court of Appeal decision, and we feel vindicated in our decision originally to bring proceedings."

The ruling meant the 'take' and 'use' of groundwater water had to be considered together when granting consents, rather than separately.

Addressing concerns raised by ECan about the difficulty a consent holder would face if they wanted to repurpose water in a fully allocated catchment, the Supreme Court noted, "the solution is for the take and use consent to be surrendered and a new take and use consent to be sought".

Richardson said while the court's decision could mean reduced flexibility for individual consent holders wanting to change the use of water, it "strikes a blow against the view that a water right may be treated as a private property right to water".

"It's helpful in signalling generally that communities are prepared to hold the line against these sorts of activities that really have minimal, if any, benefit for New Zealand, but have potentially quite significant, environmental, economic and cultural effects."

A spokesperson for Cloud Ocean said the decision was disappointing, and the company needed time to review and consider next steps. It was considering its options in response to the decision of the Supreme Court, following its appeal.

ECan director of operations Stephen Hall said it was pleased to have certainty on the matter.

"The Court of Appeal's decision forced a sudden change of direction for us in how we consider consent applications to change the use of water.

"This latest decision from the Supreme Court now confirms our current practice which is to consider both take and use of water together when processing consent applications."

It will have broader implications for the approval of public and private activities that intercept groundwater, like housing developments, wetland projects and new roads, with resources consents for some such projects currently on hold due to the court action.

A Christchurch City Council spokesperson said staff had not yet read the decision or evaluated what it would mean for the council.