'Illegal' consents could have allowed water bottlers to 'jump consents queue'

Monday, 9 December 2019

Canterbury's regional council 'made up' a legal process that could have allowed businesses hoping to bottle and sell billions of litres of Christchurch's water to 'jump the queue' and rely on decades-old consents that were granted for industrial uses, a court heard.

Campaign group Aotearoa Water Action (AWA) claims Environment Canterbury (ECan) failed to follow proper processes when it gave permission to Cloud Ocean Water and Rapaki Natural Resources to take water from neighbouring bottling plants in Belfast.

The group's lawyer, Pru Steven QC, told a judicial review hearing on Monday that ECan had allowed an application for a new water take to be amalgamated with existing consents, thereby creating a new consent that gave the green light for water to be taken for commercial bottling.

Watched by AWA supporters and Rapaki owner Phillip Burmester from the public gallery, Steven argued ECan had followed a 'convoluted and unlawful process' in doing so, saying an amalgamation of consents is a 'made-up process'.

**READ MORE:

* Cloud Ocean delivers bad news to workers by email

* Cloud Ocean proposes mothballing Christchurch water bottling plant

* Environment Canterbury dealt court blow on water bottling consent call

* Decades-old consents should not be used to allow for water bottling, court hears

* Barrister to decide whether public gets say on Christchurch bottler's bore plans

* Public could have a say in bottling firm's bid to use deep bore

* The industries with a thirst for Christchurch's pure water**

AWA is taking action against all three groups at the High Court in Christchurch.

Cloud Ocean and Rapaki have permission to take 8.8 billion litres of water a year – the equivalent of more than 24 million litres a day – and because of the Government's position that no-one owns water companies can take and export water for negligible cost.

But in August Cloud Ocean announced it was considering mothballing its two production lines due to 'challenging market conditions' and financial constraints.

AWA won the first stage of its legal battle last year when a judge ruled the bottling companies could not rely on old industrial consents – granted about 20 years ago – for bottling.

The original consents at the Rapaki Natural Resources site were for use in meat processing, while those for the old Kaputone business – now the site of a Cloud Ocean bottling plant – were for scouring wool.

The judicial review argues ECan was wrong to amalgamate the old consents to create new ones, and the companies should have instead had to apply for fresh permission for water takes.

Outlining her argument before Justice Gerald Nation, Steven said ECan had effectively ignored the original use dictated by the consents and allowed a new use to be substituted – which she said constituted an illegal amalgamation of consents.

'They have reframed their process as an amalgamation, and a key part of our application is that it's completely made up,' she said. 'There is no process to amalgamate consents.

'It is just refashioning an existing consent from more than two decades ago that was granted for an entirely different use … it is a hybrid, unlawful process to get around the fact that an application for a new take couldn't be made.'

The move could have effectively allowed the companies to 'jump the queue by avoiding making a new application and just using an old consent and transferring it into a consent for an entirely different use', Steven said.

It was a 'contrived' process to get around the fact Cloud Ocean and Rapaki could not apply for a new take under the regional plan, she suggested.

Lawyers for ECan, Cloud Ocean, Rapaki and Ngāi Tūāhuriri will also present their cases during the two-day hearing.