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Is the end use of the activity a relevant consideration?

Is the end use of the activity a relevant consideration?

Is the end use of the activity a relevant consideration?

Wednesday 1 April, 2020

The Environment Court has recently considered whether, and to what extent, a consent authority may consider matters beyond the particular activity for which consent is sought and take into consideration the end use of whatever may be produced by the activity or the effects of other activities for which consent is not required.

In Te Runanga o Ngati Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, the Environment Court considered appeals against an application by Creswell NZ Limited for resource consents to expand its water extraction and bottling operation at Otakiri.  One of the issues considered by the Court was whether the end use of exporting water in plastic bottles results in relevant effects on the environment to which regard must be had in its assessment under s104 of the Resource Management Act 1991 “RMA”.

The Court referred to previous cases which have considered the end use of a proposed activity:

  1. In Gilmore v National Water and Soil Conservation Authority (1982) 8 NZTPA 298 the High Court held that the end use of electricity from the Clyde dam for a proposed aluminium smelter could be relevant to the Planning Tribunal’s assessment;
  2. In Beadle and Wihongi v Minister of Corrections (A74/2002) the Environment Court held that in considering resource consent applications for earthworks and streamworks, the Court could have regard to the intended end use of a corrections facility, and any consequential effects on the environment that might have, if not too uncertain or remote.
  3. In Cayford v Waikato Regional Council (A127/98) the Environment Court held that in considering resource consents to take water from the Waikato River the extent to which the water was to be treated and its suitability were not matters that were relevant or reasonably necessary to determining the application.
  4. In Aquamarine Ltd v Southland Regional Council (C79/96) the Environment Court held that the effects of tankers on the coastal marine area were reasonably foreseeable effects of allowing consent to take water from the surface of Deep Cove in Doubtful Sound and so were relevant considerations.
  5. In West Coast ENT Inc v Buller Coal Ltd ([2013] NZSC 87) the Supreme Court held that consideration of the actual and potential effects of extracting coal does not extend to the impact on climate change of the discharge into air of greenhouse gases that result indirectly from that activity.

Having regard to these cases, the Court concluded that it must have regard to the consequential effects of granting the resource consents sought within the ambit of the RMA and subject to limits of nexus and remoteness.  Nexus refers to the degree of connection between the activity and the effect, and remoteness refers to the proximity of such connection. These are matters of weight to be considered in each case.  The Court considered that there must be a causal relationship between allowing the activity and the effect:  if an effect would occur unchanged regardless of whether the activity was allowed or not, then such an effect would not be within the scope of s104(1)(a) (See paragraphs [59] to [66] of the decision).

In this case, the end uses of the water involved putting the water in plastic bottles, exporting the bottled water and consumption of it by people outside New Zealand.  The Court (by majority) found that (at [64]):

“While such end uses are foreseeable, and while the effects on the environment of using plastic bottles and exporting water may well be adverse, refusing consent to the taking of water in this case will have no effect on all other instances where plastic bottles are used in New Zealand or where water is exported, whether in its natural form or as a component of other exports. “

Consequently, the majority of the Court held that, in this case, the end use of putting the water in plastic bottles and exporting the bottled water are matters which go beyond the scope of consideration of an application for resource consent to take water from the aquifer under section 104(1)(a) RMA.

This case shows that any actual and potential effects of the end use of the activity can be a relevant consideration for the consent authority under section 104 of the RMA, but that the weight to be given to these effects will be a question of degree in each case, having regard to issues of nexus and remoteness.


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