Dear Canterbury Regional Council,

Kia ora,

I am seeking clarification on how Environment Canterbury is interpreting and applying the Canterbury Land and Water Regional Plan, particularly with respect to the status of water takes in the Selwyn Te Waihora sub-region.

Relevant Provisions from the Canterbury Land and Water Regional Plan:

Rule 11.5.33 states:
The taking and using of surface water from a river, lake or wetland or groundwater within the Selwyn Te Waihora sub-region, including all areas within the Little Rakaia Combined Surface and Groundwater Allocation Zone, is a restricted discretionary activity, provided the following conditions are met:
1. The proposed take, in combination with all existing resource consented takes, does not result in any exceedance of any of the allocation limits in Tables 11(e), 11(f), and 11(g).

Rule 11.5.37 further clarifies:
The taking and use of surface water or groundwater in these zones that does not meet Conditions 1, 2, 3, or 5 of Rule 11.5.33 is a prohibited activity.

This seems unambiguous; where allocation limits have already been exceeded, any new water take should be classified as prohibited and therefore not consent-able under the Canterbury Land and Water Regional Plan.

Interpretation of Rules and Legal Status
Section 2.3 of the Canterbury Land and Water Regional Plan (“How the Plan Works”) states that:
• The rules have the force and effect of regulations, meaning they are legally binding.
• An activity needs to comply with all relevant rules in the Plan, unless the rule itself states otherwise.
• Activities classified as prohibited are “not appropriate in any circumstance,” and no resource consent application may be made for such an activity.

Policy 11.4.24 Prohibit the allocation of surface or groundwater which may either singularly or cumulatively result in the allocation limits within Tables 11(e), 11(f) or 11(g) being exceeded

Further, under the Resource Management Act 1991:
84 Local authorities to observe their own policy statements and plans
(1) While a policy statement or a plan is operative, the regional council or territorial authority concerned, and every consent authority, shall observe and, to the extent of its authority, enforce the observance of the policy statement or plan.
(2) No purported grant of a resource consent, and no waiver or sufferance or departure from a policy statement or plan, whether written or otherwise, shall, unless authorised by this Act, have effect in so far as it is contrary to subsection (1).

Questions
1. Why is Environment Canterbury granting consents for water takes in zones where the plan classifies such activities as prohibited due to exceeded allocation limits?
2. How many such consents have been granted in over-allocated zones?
3. What is the legal status of those consents?
4. Has ECan obtained legal advice to support the granting of such consents, and if so, is that advice available for public scrutiny?

These questions are raised to better understand how ECan is interpreting its obligations under the RMA, particularly in the face of ongoing community concern around over-allocation and water resource sustainability.

I would appreciate a detailed response.

Yours faithfully,

Barbara

Dear LGOIMA,

Thank you for your response of 20 August. Unfortunately, the response is factually incorrect.

Your statement was:
“The starting rule is 11.5.33. Activities are required to comply with (among other conditions) condition 1 or 2 of that rule to not be considered as prohibited activities under Rule 11.5.37.”

This contains several errors:
a) There is no “starting rule”. Section 2.3 of the Plan is clear: “An activity needs to comply with all relevant rules in the Plan, unless the rule itself states otherwise.”
b) Nowhere in Rule 11.5.33 does it state that Rule 11.5.37 does not apply when condition 1 or 2 are met.
c) The wording of Rule 11.5.37 is contrary to the LGOIMA response:
11.5.37: The taking that does not meet Condition 1 or 2 of Rule 11.5.33 is a prohibited activity.

Accordingly, your explanation does not align with the plain wording of the Plan.

Questions for Clarification
We request that you reconsider the LGOIMA and respond to the following, noting that they are not answered in your prior reply:
1. Why does Rule 11.5.37 not apply to applications in over-allocated zones? (This question is not whether the activity complies with Rule 11.5.33.)
2. How can Condition 1 of Rule 11.5.33 be met in over-allocated zones?

Policy Alignment
We agree that there are specific rules and policies, and that Rule 11.5.37 gives effect to Policy 11.4.24. However, Rule 11.5.33 is contrary to Policy 11.4.24 and does not implement it, which is inconsistent with Section 2.3 of the Plan and with section 67(1)(c) of the RMA (“the rules in the Plan implement the policies”).

As written, if any of Conditions 1, 2, 3, or 5 of Rule 11.5.33 are not met, the activity is prohibited by Rule 11.5.37. There is no exclusion of Rule 11.5.37 in either Rule 11.5.37 or Rule 11.5.33. Therefore, if Condition 1 is not met, the activity is prohibited.

Paul Hulse has already stressed to us how important it is that the Rules be applied as written. The only way consents in over-allocated zones are not prohibited is if Policy 11.4.24, Rule 11.5.37, and the explicit instructions in the Canterbury Land and Water Regional Plan are set aside.
On what grounds is this occurring? Is ECan simply choosing not to implement its own Plan?

Regards,

Barbara

Excerpts: Canterbury Land and Water Regional Plan:

Rule 11.5.37 The taking and use of surface water from a river, lake or wetland or groundwater within the Selwyn Te Waihora sub-region and including all areas within the Little Rakaia Combined Surface and Groundwater Allocation Zone that does not meet Conditions 1, 2, 3, or 5 of Rule 11.5.33 is a prohibited activity.

Policy 11.4.24 Prohibit the allocation of surface or groundwater which may either singularly or cumulatively result in the allocation limits within Tables 11(e), 11(f) or 11(g) being exceeded.

Dear LGOIMA,

for clarification

We are seeking records or examples that demonstrate how Condition 1 of Rule 11.5.33 can be met in over-allocated zones.

We are seeking examples where both 11.5.37 and 11.5.33 have been considered ( as required by the plan)
If possible please provide the number of grants that have not, vs the number that have.

Pleas read these in context with the previous requests, and please explain the response, the was contrary to the plan. i.e. "starting point" vs “An activity needs to comply with all relevant rules in the Plan, unless the rule itself states otherwise.”

Yours sincerely,

Barbara