Allowing for insignificant breaches of a District Plan

Resource Management

A common cause of frustration for land owners is when effects of their activities that are insignificant require resource consent because they breach a rule in a plan to a minor degree.
The changes to the Resource Management Act (RMA) on 18 October 2017 include an attempt to recognise this and give consenting authorities some discretion where an activity will only marginally or temporarily breach a rule in a plan.

In order to benefit from this change and be deemed a permitted activity, a proposed activity must:

  1. But for the marginal or temporary non-compliance, be a permitted activity;

  2. Have no adverse environmental effects that would be greater than would have been present in the absence of the activity;

  3. Have no effects on a person that are minor or greater; and

  4. Be considered by the consent authority (at its discretion) to be a permitted activity.

An application is not made for a deemed permitted activity.  Rather the usual application for a resource consent is made.  The change is that if the consenting authority, in assessing the application, determines that the activity will result in only a marginal or temporary non-compliance, it can issue a notice permitting the activity.  Whether or not a consenting authority will issue a notice is entirely at the authorities discretion, however as with any other discretionary power, Judicial Review is a possibility, even if a remote one in the circumstances.

While notices can be issued by a consent authority after it has received an application for a resource consent, they can also be issued on the consent authority’s own initiative.  It is unclear what “on its own initiative” means.  It might imply a situation where, pre-application, an authority becomes aware that a proposed activity complies with the above requirements and sees no point in requiring a consent be applied for.

Temporary (i.e. transient) effects include the following:

  • Glare;

  • Signage;

  • Traffic;

  • Noise; or

  • Odour.

Some examples of marginal (i.e. ongoing but not significant) effects might include:

  • Site coverage which marginally exceeds the maximum allowance under a plan;

  • Infringing a boundary rule (e.g. setback rules) where the boundary is with public land including roads; or

  • A minor height infringement.

Any notices issued must be in writing, and include: a description of the activity that is to occur; details of the site where it will take place; and, the authority’s reasons for approving the activity including the information it based its decision on.  Notices last up to 5 years or until the deemed permitted activity is given effect to.

But will authorities actually use this new power?  The amount of work that an authority will have to do to be certain that the above criteria are met before issuing a notice may be similar to what is required for some “normal” resource consent applications. 

On cost, the 2017 changes also gave authorities the ability to charge resource consent applicants a fee where a notice is issued instead.  How this is recovered is up to the authority but is likely to be recovered from the deposit paid by the applicant at the resource consent application stage, with the balance, if any, refunded when the notice is issued.

It appears that the changes to the RMA in this area were intended to provide authorities with an opportunity to bypass the consenting process and get applications processed quickly in order to avoid backlogs, which the incidence of such minor applications has allegedly contributed to over recent years.  However this fails to recognise that the issuing of a notice, for a marginal or temporary non-compliance, will require very similar time and effort of an authority that processing a resource consent application would.

There is also the question of plan integrity which would need to be considered should the authority be seen to be making arbitrary decisions.  The alternative is for authorities to exercise their discretion to simply not issue such notices, and to instead continue to rely on applications going through the usual resource consent process.

So, while at face value permitting marginally non-compliant activities may sound like a good idea, our impression is that few, if any, authorities will see this as a good option due to the issues it raises and, consequently, the actual exercise of this power will be rare.

Finally, this change to the RMA was part of an amendment package promoted and passed by the previous National-led government.  The change of government in late 2017 may mean further changes still and could see some of the more recent changes that were not supported by the current coalition partners repealed.  Whether that will occur and what further changes might be made to the RMA is unclear, though it is safe to suggest that the RMA could continue to be in a state of flux for some time to come.  But, in the interim, the changes enacted in 2017 are in force and may be utilised in appropriate circumstances.

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