Different kinds of argument for applying property law to resource consents

Abstract

Two recent Court of Appeal cases present an opportunity for making progress in unravelling some of the puzzles about the extent to which the holder of a Resource Management Act resource consent, such as a water permit, holds property rights. These problems are not unique to the RMA or to New Zealand, and everywhere they involve a difficult interweaving of private law and public law. There is no generally accepted body of law for ascertaining whether the attributes of property ownership attach to permits granted under statutes: B Barton, “Property Rights Created under Statute in Common Law Legal Systems” in A McHarg and others (eds) Property and the Law in Energy and Natural Resources (Oxford University Press, Oxford, 2010) 80–99. But a useful distinction can be drawn between two different purposes to which property arguments can be put, and it provides a basis on which to reconcile two recent cases, Hampton v Canterbury Regional Council (Environment Canterbury) [2015] NZCA 509, and Greenshell New Zealand Ltd (in rec) v Kennedy Bay Mussel Co (NZ) Ltd [2015] NZCA 374, [2016] 2 NZLR 44.