Counsel for Sustainable Otakiri says Whakatane District Council was wrong to class Creswell NZ's proposed expansion of the Otakiri bottling plant as a variation on existing consents.
James Gardener-Hopkins said it should instead be classed as industrial and be subject to a new consent and notification process.
Day three of the High Court hearing at Rotorua into an Environment Court decision last year to dismiss iwi and community appeals against the granting of council consents to allow internationally-owned company Creswell NZ to expand its plant at Otakiri focused on the district council's role.
Previous days have focused on the Bay of Plenty Regional Council's role.
The district council is responsible for consenting the building work while the regional council is responsible for consenting the water take.
Gardener-Hopkins said if the plant had been operating at its proposed expanded rate during the three-day High Court hearing, it would have produced 11 million plastic bottles at a rate of 154,000 bottles an hour.
The expanded plant will be capable of producing 1.35 billion plastic bottles a year, which would equate to 33.75 billion plastic bottles being produced over the 25-year life of its consent.
Gardener-Hopkins disagreed with Creswell NZ's counsel that the water take was minimal when compared to other bottling plants in New Zealand. Instead, he said it planned to take more than half of what all other bottling plants were taking.
He said all consented bottling plants in New Zealand together took 7300 cubic litres of water a day. However, Creswell was proposing to take 5000l a per day on its own.
Gardner-Hopkins said this was equivalent to two Olympic-sized swimming pools each day.
He said the district council should have considered the expansion of the plant to be an industrial use rather than a rural processing use, which was the current consent use. He said the expansion was industrial because the plastic bottles would be manufactured on site.
"If it is classed as rural processing then the primary use has to relate to primary production use," Gardener-Hopkins said.
"Going by the definition of primary production use, the water take is not a primary production use.
"Even if there is a need for the water to be bottled on site, it does not get over that first building block."
Gardener-Hopkins said regardless of whether some proposed activities were rural processing, the manufacturing of the bottles on site was an industrial activity and the district plan stated that consents should always be considered under the more stringently regulated activity, in this case the industrial activity.
He said it was not good enough for the council to consider the moulding of the plastic into bottles as rudimentary or minor manufacturing as it was still manufacturing, which was classed as an industrial activity.
"The non-complying industrial activity needs to be bundled in with the overall activity making the entire activity non-compliant," Gardener-Hopkins said.
If Creswell had to apply for an industrial consent, the matter would need to be publicly notified and the public could have submitted on the issue of the plastic bottles. He said the Environment Court also considered the blow-moulding manufacture of the plastic bottles to be industrial.
However, it considered the "principle" activity to be the water take.
In Gardener-Hopkins' opinion neither activity was "principle" as neither would happen without the other. He noted that to use section 127 to change a consent, as happened in this case, an applicant would need to be seeking to change a condition of the original consent, not the original consented activity.
He read aloud from the transcript of the Environment Court hearing in which counsel for the district council, Andrew Green, acknowledged to the commissioners that the manufacturing of bottles on site was a new activity.
"If it had been approached with rigour and acknowledging it was a new activity, the proper approach would have been to seek new consent.
"The form of the application does not determine how it is dealt with and the Environment Court and the council should have concluded that this was a new activity and could not be dealt with under the existing consent."
In short, he questioned whether the district council had followed the right process when deciding whether to grant the resource consent.
Gardener-Hopkins said there were other options the Environment Court could have chosen rather than dismiss the appeals outright.
"This is a 25-year consent; it could have considered a review of some type in the next five, 10 years to understand, over time, the effect of the plastic bottles.
"Technology and consumer attitudes can change over time. Technology can become better with biodegradable options available."
Gardener-Hopkins also disagreed with the Environment Court's decision that to rescind Creswell's resource consents would be unfair or disproportionate as water bottling is a common activity. He said attitudes towards certain activities changed over time and what might have been appropriate 10 or 15 years ago, when other consents were granted, might no longer be appropriate.
"In my submission this is an emerging issue and someone needs to be first."
Counsel for Whakatane District Council Andrew Green said the consent variation granted by the district council was the correct choice rather than issuing a new consent, and the Environment Court was also correct when it decided this.
Green said the original consent was for a bottling plant and this remained the fundamental activity at the site.
"It will be expanded but this doesn't change the fundamental nature of the activity," he said.
"While there will be rudimentary manufacturing, the fundamental activity remains water bottling."
Green said the original resource consent was granted in 1991, less than two months after the Resource Management Act came into force. The original resource consent was "rudimentary", however, conditions it laid out were still in place including matters relating to noise and hours of operation.
Green's speech was interrupted by those in the public gallery from Otakiri who complained of the "200 trucks" each day that would be travelling through their neighbourhood.
Counsel for Creswell NZ Dave Randal then gave his rebuttal to the earlier arguments made by Gardener-Hopkins.
Randal said the bottling plant had been well established for many years and the expansion was required to keep the plant viable. He said the jobs that the plant expansion would provide would help the community recover from the "disasters" of Whakaari/White Island and Covid-19.
Limited notification of the consent variation went to approximately 40 people. Those 40 people mostly made submissions regarding amenity values, he said.
"There will be a large new building, there will be disturbances during construction, there will be more trucks but expert evidence shows that the change in conditions will be of a small scale in stark contrast to the benefits such as employment."
Randal said the matter of the export of the water was legally independent of, remote from, and insufficiently connected to taking water from the ground.
"The same is true of the district plan, these appeals are opportunistic," he said.
Randal said the plastic waste was also independent of Creswell's use of the land.
"The adverse effects are not inevitable," he said.
"Pollution is the effect of the independent actions of independent actors and an unlawful one at that.
"Any effects of the end use in terms of plastic waste are too remote from, or insufficiently connected to taking water from the ground."
Randal said regulating waste was a complex matter that could not be considered on a case-by-case basis and was better managed by central government.
He also disagreed with Gardener-Hopkin's submission that Creswell would take significantly more than any other water bottling plant. He said not all bottling plants were metered and the amount of water consented for across the country far exceeded the figure provided.
Randal said the water Ngāti Awa used on its two farms was also far more than what Creswell would take for export. During his submission a woman muttered "they don't care as long as they get their money".
The hearing continues today.