Simpson Grierson's Bill Loutit outlines when you should seek a resource consent and what's involved in getting it

By Bill Loutit*

As part of any due diligence when purchasing land you may have to obtain a resource consent if you wish to undertake something different on your land. This article outlines when a resource consent should be sought, the process for obtaining a consent, the expiration of consents and compliance.

When Resource Consent Should be Sought

How a parcel of land can be used is controlled at national, regional and district level through statements and plans prepared under the Resource Management Act 1991 (RMA). Territorial authorities (e.g. city or district councils) are primarily responsible for controlling land use and subdivisions, while regional councils are responsible for matters relating to water, geothermal energy, the discharge of contaminants into land, air and water and catchment functions. The relevant district and regional plans (or in some cases, Unitary Plan) therefore dictate what activities or development can take place on a particular piece of land and whether resource consent is required for any aspect of the proposed activity.

Typically the relevant district plan is a useful starting point for determining what can be done on a parcel of land. A district plan will enable you to ascertain what you can do on your land as of right – these are called 'permitted activities'.

How do I interpret a District Plan?

Generally, district plans use a zoning method to manage the effects of activities. The first step in determining what you can do on your land is therefore to identify your property and its zoning from the relevant planning maps. Once you have determined the applicable zone, then review the chapter(s) relating to that zone which will state the relevant rules.

District plans generally list the activities that can be undertaken on the land, in addition to rules governing building or development on the land. Examples of controls over development that are typical in a residential zone, for example, include maximum building height, distance from site boundary (yard controls) and height in relation to boundary. In commercial or business zones these development controls may also include restrictions on maximum floor area and street frontage controls.

For each proposed activity or development, relevant rules or standards will apply. Depending on the anticipated level of environmental effects, a proposed activity may or may not meet the required standards. If not, resource consent will be required.

In a regional or district plan an activity may be classified as permitted, controlled, discretionary, restricted discretionary, non-complying or prohibited. What can be done on the land with or without resource consent will depend on the activity status of the proposed activity. The various activity statuses are explained below:

Permitted:
Resource consent is not required but standards relating to the permitted activity contained in the relevant planning documents must be complied with.

Controlled:
Resource consent is required. The consent authority must grant resource consent but may impose conditions. The activity must comply with standards specified in the relevant planning documents. Conditions must relate to the matters over which the consent authority has reserved its control in the plan.

Restricted discretionary:
Resource consent is required. The consent authority may grant or decline consent. If granted, the consent authority can impose conditions provided they are within the control reserved by the authority in the plan.

Discretionary:
Resource consent is required. The consent authority may grant or decline consent. If granted, conditions may be imposed that relate to any resource management matter or purpose.

Non-complying:
Resource consent is required. The consent authority may only grant consent if either the adverse effects of the activity on the environment will be no more than minor or the application is for an activity that will not be contrary to the objectives and policies of any relevant plan (known as the gateway tests). The consent authority has discretion as to whether or not to grant the application if one of the threshold tests is met. If granted, the consent authority can impose conditions relating to any resource consent matter or purpose.

Prohibited:
No application can be made for the activity. The consent authority cannot grant consent for the activity.

How do I apply for resource consent?

Any person may apply to the relevant territorial authority for resource consent, provided the activity is not prohibited by the relevant plan. Notably, the applicant does not need to be the owner of the land, have an interest in the land, or a right to use the land. Rather, a prospective purchaser is entitled to apply for resource consents over land which they intend to buy – although obviously the landowner's approval is required before any resource consent can be implemented.

Meeting with the Council

If resource consent is required it can be useful for the applicant to request a pre-application meeting with the relevant council. The purpose of the meeting is to discuss the proposed activity and the relevant matters the council will consider when processing the application. Such meetings can be useful to identify any additional rules or provisions applying, and to confirm the activity status of the proposed activity.

This level of engagement with the council will also ensure that you are able to put your best foot forward when you lodge your application, as potential areas of contention will already have been discussed. It may involve more than one meeting as feedback is given and changes are made to the draft application.

Importantly, the advice of a council planning officer at pre-application meetings cannot purport to bind the council or necessarily be relied on as accurate. Despite this, having meetings is very useful. Depending on the nature of the resource consent application and its complexity, it can be invaluable to engage a planning consultant to assist with the application process, especially if the person has good relationships with council officers.

Engaging a planner (and other experts)

It is a good idea to engage a planner as early as possible in the process, as they have specific expertise in being able to craft applications to obtain as good a result as possible. You should meet with your planner and get them to take you through any areas of concern, and set out how the process is likely to run.

Your planner will be able to hone in on the potential effects of the proposed activity, and whether other experts may be required. Depending on the potential effects of the activity, you may need to engage other experts (such as cultural experts, risk experts, engineers etc) to prepare reports to accompany the application.

The application

There is a standard application form for a resource consent that must be completed (each council will have its application form available). An important part of the application is the assessment of environmental effects (AEE) which is required to cover the matters set out in schedule 4 of the RMA. The assessment needs to be specified in sufficient detail to satisfy the purpose for which it is required, and so the required detail will depend on the scale and significance of the activity and its effects.

The requirement for the AEE to address specific matters is subject to provisions in relevant policy statements. A planner will usually prepare an AEE. When considering "effects", a planner will need to have regard to:

1. Positive effects and adverse effects
2. Temporary effects and permanent effects
3. Past effects, current effects and future effects
4. Reverse sensitivity effects
5. Cumulative effects.

Upon receipt of an application the council will review the documentation provided to determine whether the application is sufficiently detailed and contains all required information. When the council is assessing the completeness of an application, they will mainly consider whether appropriate consents have been applied for, whether effects have been adequately identified and addressed in the AEE, the extent of the effects identified, and whether the extra information required by Schedule 4 has been provided.

If deemed to be incomplete, the consent authority will return the application. Once accepted, the council has the ability to request further information under section 92, which places the application on hold.

The relevant receiving environment against which an application for resource consent is assessed includes any unimplemented resource consents on the property or adjacent land where those consents are likely to be implemented. A consent authority must have regard to any actual or potential effects of the proposed activity on the environment. The "environment" is the state of affairs which a consent authority must determine and take into account when assessing the effects of an activity. The relevant matters the council must have regard to when considering an application for resource consent are set out in s 104 of the RMA. The activity status is also relevant to determining whether or not the matters are limited by the district plan.

Depending on the environmental effects of a proposed activity, a resource consent application will proceed on a non-notified, limited notified or publicly notified basis. A consent authority has 20 working days from when an application is lodged to decide whether an application should be publicly or limited notified.

A consent authority must publicly notify the application if the activity will, or is likely to have adverse effects on the environment that are more than minor, or, if special circumstances exist. However, when assessing whether the effects justify public notification, the effects on the site and adjacent sites are disregarded.

Where there are affected persons, the consent authority must give limited notification to those parties. The RMA specifies that where a person has given written approval to an application, the effects on that person are to be disregarded for the purposes of deciding whether to grant consent. Written approvals cannot be conditional.

Notification

If a resource consent application is publicly notified then any person may lodge a written submission within 20 working days from notification. If the application is subject to limited notification, any affected person (who receives notification of the application) may lodge a submission within the same timeframe.

If the application is notified and a hearing is held, the decision should be made within 15 working days after the end of the hearing. If no hearing is held, despite the application being notified, the decision must be given within 20 working days after the closing date for submissions on the application.

If the application is not notified, the council must give notice of the decision within 20 working days after the application is first lodged with the council. The council has the power to extend these timeframes in certain circumstances.

A council hearing will not always be held, but may be considered necessary if the applicant requests a hearing or if a submitter wants to be heard. If a hearing is held, the applicant usually goes first and people who have made submissions are able to be heard after the applicant's turn.

The hearing

The hearing will be before a panel of Councillors or Independent Commissioners. At least one council officer will be there to present the Officer's Report (which is the council's report on its view of the application and whether it should be refused or granted and on what basis). The applicant and submitters may have lawyers representing them, and may also have expert witnesses in attendance.

Publicly notified hearings must be completed within 75 working days from the closing date of submissions. A limited notified hearing will be completed within 45 working days from the closing date of submissions.

Once the Council has made its decision on the application, any person who made a submission may appeal the decision (to refuse or grant consent) to the Environment Court. Notice of an appeal must be made in the prescribed from, stating the reasons for the appeal and relief sought, and must be made within 15 working days of notice of the decision being made.

If an application is processed on a non-notified basis the only way to challenge the Council's decision is to seek judicial review of the notification decision in the High Court. The High Court's review will focus on the process undertaken by the Council and only intervene where, for example, the consent authority has acted unreasonably or irrationally, has taken or failed to take into account relevant matters, or made an error of law.

Once submissions are received it is worthwhile for an applicant to have discussions with the submitters to see if their concerns can be refined or in some cases completely resolved.

Expiration of Resource Consents

If a resource consent has not been given effect to, unless otherwise specified in the conditions of consent, it will lapse within 5 years of commencement. This recognises that changing circumstances may render approvals, conditions, restrictions and prohibitions in a resource consent inappropriate or unnecessary, if the consent is not put into effect within a reasonable time.

The Courts have considered what is required in order to give effect to a resource consent and while it needs to be assessed on a case by case basis depending on the facts, consideration of the work done to give effect to the consent is not limited to physical works. Non-physical works or preparatory works such as the preparation of management plans, letting of contracts and preliminary works is equally relevant.

The reason why the work has only reached a certain stage is also relevant.

Land use and subdivision consents are not personal to the consent holder and they attach to the land. If implemented, the resource consent will usually last for an indefinite period unless otherwise specified in the consent. Water and discharge permits can be granted by a regional council for a maximum period of 35 years.

Compliance

Councils have a responsibility to monitor consents and compliance after consents are granted.

This means that enforcement action can be taken against you if you breach a consent. Councils have a range of enforcement tools available to them, including excessive noise directions, infringement notices, abatement notices, enforcement orders (issued by the Environment Court) or prosecution.

For the most serious offences under the RMA, liability can result in imprisonment for a term not exceeding two years or a fine not exceeding $300,000 for a natural person. Notably prosecution is not limited to the person actually carrying out the illegal act. Landowners, consent holders and land developers can be prosecuted for the acts and omissions of agents, including contractors and sub-contractors.

Where an activity has been undertaken without resource consent it may be possible to apply for a retrospective resource consent. Although the application will be processed in the usual way, there is no guarantee that consent will be granted.

Familiarity with consent conditions should enable you to avoid breaching a resource consent, but if in doubt it would be prudent to discuss with a planning lawyer or other expert to ensure you can continue to abide by the consent conditions.

Summary

Councils are the key authority that determine what you are able to do on your land. Because of the important and essential role they play, it is useful to engage with the council throughout the resource consent application process. Early engagement with the relevant council will ensure that you receive useful information which will assist in preparing a quality resource consent application.

Involving an experienced planner will also ensure that you have someone with expertise to steer the process and to know when other experts also need to be engaged. An involved planner will be able to prepare an AEE that provides all the information the council needs.

It is possible that your application may go to a council hearing, giving submitters on your application the opportunity to be heard. With adequate preparation and a good working relationship with council, this should be a relatively straightforward process, with few surprises.

Ultimately, the relevant district plan and the RMA will dictate what you can do with your land. But engagement with the council can place you in a position to maximise the possibilities within the parameters that the district plan and RMA lay down.

*Bill Loutit heads the Resources and Infrastructure department at Simpson Grierson. He is a leading litigator and an expert in alternative dispute resolution in the administrative law, environmental, resource management and local government fields.