A rubbish decision? Supreme Court opens door for waste “effects” to be considered under RMA

In a three-two split, the Supreme Court’s most recent decision under the Resource Management Act 1991 (RMA) has confirmed that the disposal of plastic bottles can be a relevant “effect” on the environment in resource management decision-making.

While there is much to take away from this important 108-page judgment, the court’s findings on the types of effects that can be considered in future resource consenting and planning processes will have wide implications.

Expansion proposal: Ōtākiri Springs bottling capacity increases 330-fold

Ōtākiri Springs Ltd sought to expand their existing spring water extraction and bottling operation in rural Whakatāne. The expansion would increase mineral water bottling capacity from 1.9 million litres per annum to 580 million litres per annum – a 330-fold increase.

Consents were sought from the Bay of Plenty Regional Council (a water permit to draw an increased volume of water from the Ōtākiri aquifer) and the Whakatāne District Council (a land use consent to build and operate the expanded bottling plant, which could produce “blow moulded” plastic bottles at a rate of 72,000 plastic bottles per hour). These consents were granted.

The proposal was controversial.  It was opposed by Sustainable Ōtākiri Inc (representing local interests) and Te Rūnanga o Ngāti Awa (TRONA, representing the local iwi). Both parties brought unsuccessful appeals in the Environment Court, High Court and Court of Appeal seeking to overturn the consents (Sustainable Ōtākiri’s appeal focused on the land use consent and Te Rūnanga o Ngāti Awa’s appeal focused on the water permit). Two final appeals were heard together in the Supreme Court in November 2023.

Five key issues considered by the Supreme Court

(a) the scope of “effects” issue: whether potential effects on the environment of end user disposal of plastic bottles (primarily offshore) is a relevant “effect” under the RMA;

(b) the scope of appeal issue: whether the plastics disposal issue was properly before the Environment Court and able to be challenged by way of further appeal;

(c) the activity status issue: whether under the Whakatāne District Plan, the proposal is a discretionary “rural processing activity” or a non-complying “industrial activity”;

(d) te mauri o te wai effects issue: whether the Environment Court properly considered the tikanga evidence called by TRONA as to the end use aspect of its opposition to the proposal; and

(e) the Part 2 issue: whether Māori-focused objectives, policies and rules in the applicable policy statements and plans were deficient, such that the Environment Court should have considered Part 2 of the RMA directly.

After nearly two years of deliberation, the Supreme Court majority (Justices Ellen France, Williams and Kos) dismissed the appeals. The dissenting minority (Chief Justice Winkelman and Justice Glazebrook ) would have allowed the appeals and remitted the proposal for reconsideration by the Environment Court.

Supreme Court finding: waste disposal effects can be relevant

At its simplest, the Court found that plastic bottle disposal can be a relevant effect for the purposes of s 104(1)(a) of the RMA. However, whether plastic bottle disposal is relevant in a particular case is a question of fact and degree. The Court held that “there is nothing to suggest the environmental effects of plastic bottle disposal are irrelevant in principle; the real question is whether these effects are relevant in fact”.

The Court was unconvinced by the arguments that the effects of plastic bottle disposal cannot be considered because they are too indirect (e.g. rely on the actions of third parties disposing of empty plastic bottles) or too remote (e.g. plastic bottles are disposed of in different countries).

Relying on the UK Supreme Court case of Finch, the Court noted it would be illogical to exclude effects on the basis they rely on the actions of third parties if it is clear on the facts that the consequent action will invariably be taken (i.e. disposal of plastic bottle). The Court also referred to the very broad definition of “environment” under the RMA, which does not suggest that effects on the environment were limited to the environment of New Zealand.

Despite a reluctance to exclude that species of effect, on the facts of the case the Supreme Court concluded there was insufficient evidence before the Environment Court to make an assessment as to the potential effects of plastic bottle disposal. Therefore, the Court was not satisfied that the Environment Court should have to reconsider this question.

Implications for future resource management decisions

The Supreme Court’s decision is not only relevant to blow moulders and water bottlers – the decision will have wide implications for the entire resource management framework. Previously, effects generated by third parties or effects that may occur outside of a council’s region or district, or even offshore, have been considered too indirect or too remote to be considered. The Supreme Court’s decision washes that away.

For an export nation participating in a globalised economy, businesses and councils (as regulators) will likely face novel arguments about waste and other effects from resource management decisions.  There will certainly be room for argument whether “downstream”, third-party or international effects should be assessed as part of future resource management decisions.

However, the Blueprint for Resource Management Reform – the system that is shortly intended to replace the RMA – has been deliberately designed to narrow the reach of New Zealand’s environmental framework and limit the types of “effects” that can be considered. With draft legislation expected imminently, it may be that any consequences of the Supreme Court’s decision are short-lived.

If you need assistance on complex resource consenting or planning issues, please contact Wynn Williams’ specialist Environment and Local Government Team.

Kate Woods, Special Counsel – Wynn Williams Environment & Planning team

Tracey Ellis, Solicitor – Wynn Williams Environment & Planning team