A water rights fight, centred on Sir Russell Coutts’ property near Queenstown, is off to Environment Court. David Williams reports
Former NZX and MediaWorks boss Mark Weldon has appealed a decision granting water consents to a company associated with the country’s most successful America’s Cup sailor.
Sir Russell Coutts is a shareholder and director of BSTGT Ltd which, with the family trust of his neighbour Tony McQuilkin, applied for water consents from the Otago Regional Council for properties on the Crown Terrace, above Arrowtown.
The consents were to replace century-old “deemed permits”, harking back to Otago’s mining era, which are due to expire in October. The water takes are from three points on two creeks.
About 160 hectares of land is irrigated under the permits, including Coutts’ private golf course. Most of the water is funnelled, via a network of weirs, channels, pipes and water races to Coutts’ property, Barley Station.
A hearing was held in Queenstown last month, at which concerns were put by nearby residents. Criticisms included an incomplete and inadequate assessment of environmental effects, and concerns the water-takes would starve the creeks of their natural flows, reducing their life-supporting capacity. The rights of downstream users weren’t protected, many argued.
Independent commissioner Rob van Voorthuysen granted the consent, with conditions.
The Environment Court confirmed yesterday it had received one appeal, from Weldon, and provided a copy to Newsroom. Weldon couldn’t be contacted for comment.
Newsroom emailed Hilary Lennox, of Ahika, the planning consultant for BSTGT and the McQuilkin trust, but she didn’t respond by publication deadline.
Weldon’s 10-page appeal is written with the determination of an Olympic swimmer (which he was), and the grit of someone familiar with the cut and thrust of business in New York (where he lived for 10 years). It’s also a bit shouty, using all capital letters to signify the points of his appeal.
“THIS IS EXPLOITATION IN A CASEBOOK MANNER,” the appeal notice says at one point. It goes on to state granting takes of greater volumes than the water flowing in the creeks during a dry year, and possibly a normal year, is “GROSS EXPLOITATION”.
Fundamental points raised in the appeal include: Whether the effects of the water takes are minor; whether the takes are sustainable; and the appropriateness of a 15-year term.
The decision contains numerous errors, Weldon claims, including the number of stock animals on Barley Station. The consent process was flawed, he says, and investigations of the consent were “negligent”.
The appeal notice argues the law wasn’t applied appropriately by the commissioner, and the decision was contrary to the purposes of the Resource Management Act.
How could the effects of the consent be minor when it affects the drinking water of downstream residents, Weldon asks.
“A consent based on historical activity that is now illegal in such an ecosystem (mining) should not be the starting point for calculations,” the appeal notice says.
The document ebbs and flows from the general to the detailed.
At a high level, Weldon argues the creeks can not support the takes, because the maximum rates of take are greater than the mean annual flows of the Royal Burn and New Chums Creeks. This is, the appeal notice says, to the detriment of downstream users, and the environment.
At the granular level, Weldon says the consent should have been subject to an analysis under section 104D of the Resource Management Act, and, helpfully, he suggests some editing to clarify water volumes.
Weldon, who founded Terra Sancta Wines, also takes issue with the evidence preferred by Van Voorthuysen.
The commissioner also “ignored” evidence of illegal water takes from other streams. The appeal says an Otago Regional Council assessment of Barley Station’s water-use was wrong and used unreliable flow records, with evidence presented to the contrary.
Last month’s consent decision prefers the expert evidence for BSTGT and the McQuilkin trust over the “concrete analysis” of an expert engaged by the regional council, Weldon submits. He’s talking about Bryony Miller, a freshwater ecologist at consultancy E3 Scientific, engaged by the regional council, who criticised as inadequate a suggested 50-metre visible flow below the water takes.
Miller suggested a residual flow of 10 litres per second in the Royal Burn, as the 5 L/s offered by the applicants was, she said, insufficient to avoid adverse ecological effects. Van Voorthuysen preferred the evidence of Dr Dean Olsen, for the applicants, who said there was no technical basis for 10 L/s. (Equally, there’s no technical basis for 5 L/s, Weldon says.)
The commissioner concluded the takes “will have no more than minor adverse effects on the ecology and the hydrology of the watercourses, particularly due to the absence of fishery values, the residual flows below each point of take and the Royal Burn 5 L/s low flow abstraction cessation trigger offered by the applicant”.
Lennox, planner for BSTGT and the McQuilkin trust, said the flow wasn’t proposed to protect the health and wellbeing of the creek, rather it was to minimise effects on downstream users. Further protection of in-stream values was “unnecessary”, Lennox said, due to the perennial nature of the creek downstream of that point.
Olsen weighed in, saying the downstream habitat for macroinvertebrates – animals without backbones, mostly aquatic insects, visible to the naked eye – was poor and an increase in flow was unlikely to result in a tangible increase.
(Weldon’s notice of appeal says: “The health of the creek is a proxy for, and necessary for, the health of the downstream wetlands and water quality.”)
Matt Hickey, of Water Resource Management, for the applicants, said it would take one to two weeks for the Royal Burn to drop from 10 L/s to 5 L/s. Van Voorthuysen said adopting the higher figure of 10 L/s could result in an irrigation-take “ban” of up to two weeks “for no additional environmental benefit”. “I consider that to be disproportionately onerous.”
Van Voorthuysen’s decision allowed up to 89.5 L/s from three take points – two on the Royal Burn, and one on New Chums Creek. The total must not exceed 892,331 cubic metres a year, of which 38,989m³ was for irrigating Coutts’ golf course.
Weldon’s appeal says there’s an inconsistency here.
Previously, in justifying the seemingly outsized volume of consented takes, the commissioner’s decision said takes are pitched above average levels because water harvesting, into storage ponds, is done during periods of high flow or “freshes”. Using storage should enable minimum flows, Weldon reasons, “rather than deprive other residents of water”.
The appeal notice says dry seasons are becoming more frequent, so granting a consent for 15 years is high-risk.
(The applicants agreed if Otago’s water plan is changed to put a minimum flow on either creek, or the Arrow River, into which they flow, then a minimum flow could be imposed on the water takes.)
Relief sought in the appeal includes a reduction in the consent term from 15 to five years – or six as a maximum. Also, water-take volumes should be reduced, the notice says, and penalties should be identified for breaches of consent conditions.
It’s almost certain more people will join Weldon’s appeal.
Other wealthy neighbours who oppose the Coutts and McQuilkin water consent include Mark Ching, the part-owner of vehicle shipping firm Armacup, and Henrietta, Duchess of Bedford, whose net worth is estimated at $1 billion.
The Otago Regional Council has been under pressure for its mismanagement of water. Two years ago, Environment Minister David Parker tasked former Environment Court Judge Peter Skelton to investigate. His report found the council’s freshwater planning system was inadequate, and it wasn’t properly managing water takes and nutrient discharges.
A new council work programme for water management has been set but, earlier this month, the council’s head of science suggested it might not meet the first hurdle.
