Recommending the duration and lapse period
Sections 123 to 126 of the Resource Management Act 1991 (RMA) deal with determining the duration and lapse periods of resource consent applications and the cancellation of consents. This guidance note explains these sections of the RMA and provides advice on determining the duration of consent, whether consent has lapsed and cancelling consent.
This note does not cover cancelling consents when enforcement action has taken place and the Environment Court has ordered a review of the consent (s132(4)).
Duration of consent
Sections 123 and 123A set out the duration period of resource consents. Except as provided for in s125 (lapsing of consents), the following durations apply:
- coastal permit or land-use consents for reclamations that contravene s13 and any other land-use or subdivision consent - unlimited duration unless otherwise specified in the consent
- other coastal permits or any other land use that contravenes s13 - five years from the date of commencement of the consent (s116) if not specified, and not exceeding 35 years if a duration time is specified.
- coastal permits for aquaculture activities must have a duration of no less than 20 years from the date of commencement of the consent unless the applicant has requested a shorter period or a shorter period is required to ensure that adverse effects are adequately managed. The duration for such a consent must also not exceed 35 years.
Decisions on the term of a consent need to be carefully considered and should be made in writing. For notified consents these decisions must be included in the decision report and must outline the reasons for deciding on a shorter term than requested in the application or set in legislation (s113(1)(b)).
Exercise of resource consent while applying for new resource consent
When resource consent is due to expire and a consent holder applies for a new consent for the same activity, s124 allows a consent holder to continue to exercise their existing consent until a new consent is granted or declined and all appeals determined if:
- the new application is lodged at least six months before the expiry of the existing consent, or
- the new application is lodged between three and six months before the expiry of the existing resource consent and the council agrees to the applicant continuing to exercise their original consent.
Sections 124A to 124C outline how the council must consider new applications under s124 if other consent applications are received to use the same natural resource as the existing consent holder. The provisions of sections 124A to 124C relate to new applications from either the existing consent holder or other persons.
Section 124 does not apply to an application to which section 165ZH applies. Section 165ZH applies to processing applications for existing coastal permit holders in relation to aquaculture activities.
Section 124B gives priority to the existing consent holder to have their new consent application determined ahead of anyone else competing for the same resource. In determining the new application, the council must consider all relevant provisions of the RMA and whether the existing consent holder:
- uses the resource efficiently, and
- uses industry good practice, and
- has been served with an enforcement order that was not later cancelled or has been convicted for an offence under s338.
Section 124C relates to competing applications by persons who are not existing consent holders. This section also gives priority to the existing consent holder. Such applications need to be made at least three months before the expiry of the existing consent. When such applications are received, the council must hold the application without processing it and notify the existing consent holder that the application has been received and that they may make an application for a new consent.
If the existing consent holder does make a new application within the three month time frame before the consent expiring, the council must hold the other resource consent application until the application by the existing consent holder and any subsequent appeal has been determined. If the consent is granted, the application by the other person lapses.
If the existing consent holder advises in writing they do not wish to make a new application or they do not make a new application at least three months before the expiry of the consent, the council can then process the other application. However, any consent granted cannot be fully exercised until the expiry of the existing consent.
Section 124 generally applies to water and discharge permits which have a maximum duration of 35 years.
Lapsing of consent
Section 125 provides that if a resource consent is not given effect to within five years of the date of its commencement, or any other time as specified, it automatically lapses. The exception is coastal permits for aquaculture activities in the coastal marine area, which lapse after three years.
Under s125(1A)(b) a consent holder may apply for an extension to the lapse period before the lapse date expires. In deciding a s125 application the council must consider:
- if substantial progress has been made towards giving effect to the consent and continues to be made, and
- if the applicant has obtained the written approval of every person who may be adversely affected by the granting of the extension, and
- the effect of the extension on the objectives and policies of any plan or proposed plan.
A consent holder can object to any decision made by the council to extend the lapse period of a consent (ss357A and 357C to 358).
A subdivision consent is given effect to when the survey plan is approved by the council pursuant to s223, however, under s224 the survey plan will lapse if it is not subsequently deposited within three years of the plans being approved. Section 224 requires the survey plan to be deposited under Part 10 by the Registrar-General of Land.
Section 125 is also subject to s150G which applies to coastal permits issued from 1 June 1995 to 1 August 2003 for occupation of the coastal marine area for aquaculture or aquaculture related activities. Section 150G(3) states that a coastal permit that has lapsed under s125 before 1 August 2003 is deemed not to have lapsed if, before lapsing, the permit holder applied for a permit over the same area.
If an application is for a large development that is staged or could take some time to progress, it is wise to make the applicant aware that they are able to request a longer lapse period for consideration by the council.
A resource consent should clearly state the consent duration (if not unlimited) and the lapse period. Even if the standard five year lapse period applies, the consent holder should be reminded of this in their consent.
If a consent will lapse soon or is deemed to have lapsed, it is best practice for the council to inform the applicant in writing in advance or as soon as possible after the lapsing. When informing the applicant of the lapsing of the application, the council should also inform the applicant of how the consent can be re-lodged if they wish to continue with the application.
Cancellation of consent
Section 126 allows a council to cancel a resource consent if it has been exercised in the past but has not been exercised during the preceding five years. If a council decides to take this action then it must serve written notice on the consent holder.
A council may not cancel a consent if the consent expressly allows for an activity to be suspended for a period greater than five years. The consent holder can apply to have their notice revoked as long as the application is made within three months of receiving the notice of cancellation. The council can then decide to revoke the notice and state a period after which a new notice may be served. In deciding whether to revoke a notice or not the council needs to consider:
- whether the applicant has obtained the approval of persons that might be adversely affected by the revocation of the notice, and
- the effect of the revocation of the notice on the objectives and policies of any plan or proposed plan.
A consent holder can object to any decision made by the council to cancel a consent (ss357A and 357C to 358).
As mentioned in the abstract of this note, this note does not cover cancelling consents when enforcement action has taken place and the Environment Court has ordered a review of the consent (s132(4)).