The Finite Supply of Water

Water Easements

Throughout New Zealand there are thousands of water easements that create a legal right for one or more landowners to take water from a source on another landowner’s property and to convey it to their own property. Many of these easements have been in place for years, often decades. As such, they were put in place in a different time and well before some of the issues now facing us.

 The use of water from sources on private land for domestic and stock watering has always been a right that did not need a resource consent. Its use for irrigation, however, has required a consent.

 These days, consents are more difficult to obtain. In some areas of the country, there are moratoriums on the issue of new consents; these are being issued for shorter periods or with more conditions attached. In several regions, water is regarded as an ‘over-allocated resource.’

 Easements

To take and use water for irrigation two things are often required – an easement to get water from its source, and a resource consent to use that water.

 Some easements contain restrictions on the use to which water can be put; a typical restriction is ‘domestic or stock use only.’

 For those people with no such restriction, problems can arise where different users of the same source apply for new or renewed water consents. The owner of the land on which the water source is situated could find themselves competing against an adjoining owner who has an easement right relating to the same source for what is now regarded as a finite and increasingly scarce resource.

 Another issue arises where more users than originally intended have the right to take water from the same source.

 Explaining the problem

A typical example is where a large farm may have been subdivided and the water source was on only one of the blocks. Usually in that situation, the property that didn’t have the water source would, as part of the subdivision process, have been granted a water easement to take water from the source on the other block.

 Where one or other of the blocks is further subdivided, particularly for a lifestyle subdivision, the number of users of that particular source of supply can increase substantially. The landowner on whose land the supply is situated may have little or no control over this.

 Once again, historical easements didn’t tend to limit the number of users, it simply gave one party the right to take water from another. As a matter of law, when a ‘dominant’ tenement, that is the party with the right to take and convey water from other land is subdivided, then the right to take and convey goes with the other titles that are created out of the original title.

 Both of the above issues can be addressed when new easements are created. The first can be dealt with by either limiting the amount of water that the dominant tenement can take, or to put an order of priority of the right to take water or apply for resource consent. In the second instance, there can be a restriction on the number of users that the dominant tenement can supply.

 As you can see, both the above situations are relatively easy to address on the creation of new easements — but what of the 50, 60 or 100-year-old easement?

Read the full issue here