The AICL/NTF Appeal on HWP Resource Consents




In August 2013 HWP was granted nine resource consents to take, store and use water for irrigation in the Hurunui District. Shortly after, these were appealed by Amuri Irrigation Company Limited (AICL) - the company providing the existing irrigation between the Waiau and Hurunui Rivers.


The appeal stemmed from new nutrient allocation rules proposed under the recently operative HWRRP. The AICL appeal was primarily related to nutrient loads that had been allocated to HWP in its consents> The appeal also included concerns about HWP's consented water intake from the Hurunui River South Branch, that was close to the AICL intake, just below the Mandamus confluence with the Hurunui River.


Ngäi Tahu Forest Estates, a wholly-owned subsidiary of Ngäi Tahu Property, in November 2013, joined the appeal to protect access to nutrients for their Balmoral Forest property that was being cleared in preparation for intensified farming.


The initial Environment Court mediation process moved to direct negotiation between HWP and the appellants, and the mediator asked them to continue discussions with a view to reaching a negotiated settlement. 


By late 2014 all parties, including ECan, had reached agreement on methods to manage nutrients within the HWP Command Area and also across the catchment. This included agreement on a set of proposed changes to HWP's consent conditions that would satisfy the appeal. 


On 10 February, 2015 AICL and NTFE as the appellants, HWP and ECan, unanimously signed a memorandum to the Environment Court detailing the terms of the proposed consent condition changes and requesting that the Appeals be considered settled.


It was anticipated that a Court order would follow to resolve the appeal and effectively un-encumber HWP's nine Resource Consents.


However, this was not to be. The Environment Court proceeded to ask a succession of questions of the parties on various topics including the wording of the consents and some more fundamental matters in relation to the Hurunui and Waiau River Regional Plan. These were each, in turn, answered in a timely manner and with agreement between all four parties.


During July AICL confirmed to HWP their intention to withdraw their Appeal as their concerns regarding HWP's consents were set to be resolved following their successful application for a Consent to Change Land Use.
On 7 August AICL sent a Memorandum to the Court withdrawing their appeal. NTFE then advised the Court that they would not seek to take over the Appeal.  Unusually, the Environment Court advised that it considered the withdrawal to be invalid. The matter was heard on 07 September and the judge’s decision, issued on 18 September, upheld the court’s position that the AICL withdrawal was invalid. The Environment Court Judge then requested the Solicitor-General appoint an Amicus Curiae to assist the Court. 
Over the course of the day-long hearing on 7 September, the Court's Amicus Curiae and legal counsels for HWP, AICL and ECan presented submissions. All presented compelling argument that AICL did not required leave of the Court to withdraw and that there had been no abuse of process. There was optimism among the concerned gallery that this might indeed mark the end of the process. The judge reserved his decision for a period of two weeks. 
On 18 September the decision was minuted. It was unexpectedly unfavourable, stating that the AICL withdrawal was invalid, as it had required leave of the Court and, that there had been an abuse of process. The Environment Court set a date of 14th October for a judicial conference as the first step in an on-going process.


HWP and ECan filed an application to the High Court to appeal the Environment Court decision and were granted a priority hearing date of 28 October 2015 and the parties awaited the decision.   


On 08 December 2015, the High Court issued its ruling in favour of HWP and ECan, finding that the withdrawal by AICL, of its appeal was valid, over-ruling the Environment Court decision and declaring the appeal terminated.


Ten days later, on 18 December 2015, ECan issued the nine consents that were originally granted on 05 August 2013, along with the consent to change land use for farming, applied for in late 2014.