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Certificates of compliance

Abstract

This note provides guidance on preparing, processing and issuing Certificates of Compliance (CoC) under the Resource Management Act 1991 (RMA).

Specific guidance is also provided on dealing with proposals that involve both permitted and non-permitted components, known as hybrid activities.

This guidance note does not address existing use certificates under s139A.

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Guidance note

Introduction

Section 139 provides that a council, on request, must issue a CoC if the activity can be done lawfully on the site without a resource consent and the council fee is paid. Regional councils, territorial authorities and the Environmental Protection Authority (EPA) can issue CoCs. Each agency can only issue CoCs for matters for which they are responsible. Once issued, a CoC is deemed a resource consent under s139(10) of the RMA.

Where a proposal involves both permitted and non-permitted components (a 'hybrid activity'), a CoC can be issued for the permitted component, if it can be separated from the non-permitted components. An example of a hybrid activity could be a new transmission line, which is permitted within the road reserve, but is a discretionary activity within a certain zone.

Information requirements for CoCs are rigorous and the onus rests on an applicant to provide the council with full information to demonstrate that a CoC can be issued. If any element of non-compliance is identified, then a CoC can not be issued. While there is no set form under the RMA regulations, a request for a CoC should be in the form of an application to ensure adequate details are provided.

This note provides guidance and direction for practitioners on dealing with applications for CoCs.

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Overview of certificates of compliance

Information requirements for certificate of compliance applications

Pre-acceptance checks for applications for CoCs should follow the same process for resource consent applications. Refer to the Receipt of an application guidance note for more information.

The information requirements for a CoC are as rigorous as for a resource consent. However, in the case of a CoC, the onus is on the applicant to satisfy the decision-maker that a proposal complies with all of the relevant permitted activity rules, and to provide sufficient information to allow that conclusion to be reached.

A point-by-point analysis is required, covering all the relevant provisions of the applicable operative plan, any proposed plan(s) and any relevant national environmental standards.

A CoC can not be issued where a proposed plan has been notified and the proposal or activity is not a permitted activity, or could not be lawfully carried out without a resource consent under that plan.

An application for a CoC should include the following:

For examples, see:

Neylon Developments v Marlborough District Council (C18/2007) provides useful discussion of the information requirements related to a CoC application.

Requesting a certificate of compliance from the Environmental Protection Authority

A CoC can only be requested from the Environmental Protection Authority (EPA) if the proposal/activity relates to a proposal of national significance which has been referred to a board of inquiry or the Environment Court by the Minster for the Environment.

For example, there may be minor works that are part of a large nationally significant infrastructure project that can be separated out from the main proposal for which a CoC can be issued by the EPA (ie, minor earthworks that are a permitted activity in association with a transmission line). Refer to Certificates of compliance for hybrid activities for more information.

The applicant is not required to pay an administration charge to the EPA before the EPA issues a CoC. However, the EPA may recover "its actual and reasonable costs of dealing with the request from the person making the request" (s 139(13)). For more information on the EPA refer to the EPA website.

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Requesting further information

Section 139(4) allows a council to request further information from an applicant, if it is necessary to determine whether the proposal complies with the plan.

Section 139 does not specify a time frame for when requests for further information need to be made by the council in relation to an application for a CoC. Section 21 requires the council to do it as promptly as is reasonable in the circumstances (ie, to avoid unreasonable delay).

A CoC needs to be issued within 20 working days of receipt of the request by the council. If further information is requested, then the decision on the application does not need to be made until 20 working days after the information requested has been received (s139(6)(b)). As with resource consents, it is considered best practice for any further information request to be made within five working days of receiving an application for a CoC.

While there is no specified format for requesting further information, the guidance in the Requesting further information guidance note can be followed.

There are no formal procedures on how to deal with an application when the applicant refuses to give the information as there are for resource consent applications.  However, a council should not issue a CoC unless it is satisfied that the activity can be established lawfully in the particular location without a resource consent. If any element of non-compliance is found then a CoC can not be issued.

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Issuing a certificate of compliance

A CoC should contain the following information:

Advice notes can be included if necessary to provide further guidance or information to the CoC holder. Examples of advice notes that could be attached to CoCs include:

A covering letter to the CoC can be useful to explain any particular aspects of a CoC. Where used, a covering letter should state the date of issue and any relevant reference number.  

Because a CoC is a decision by the council that the proposal/activity complies with the plan fully (also see hybrid activities), some councils adopt a process where all CoCs are legally reviewed before they are issued. While this is not essential, and some councils have abandoned this practice, it is the council's decision whether or not this is done. However, legal advice may be sought depending on the complexity of the proposal or the rules, whether other CoCs have been issued in respect of the same rules, or there are any other circumstances particular to a proposal/activity.

A CoC must not be issued if the request for a CoC is made after a proposed plan is notified and the proposed activity could not be carried out lawfully without a resource consent under the proposed plan.

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Certificates of compliance and conditions

A CoC can not contain conditions, limitations or provisos of any kind. A CoC is to be treated as if it were a resource consent that contains the conditions specified in the plan or an applicable national environmental standard (s139(10)).

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Lapsing of a certificate of compliance

Section 139(7)(b)) requires that a CoC states that the particular proposal or activity was permitted, or could be lawfully carried out without a resource consent, on the date the request was received by the council. Effectively, the certificate acts as a 'snapshot' in time, confirming that an activity was permitted at the date the application was received by the council.

A CoC is deemed a resource consent and s125 applies (see s139(12)), meaning that a CoC lapses in the same manner as a resource consent. See the Recommending the duration and lapse period guidance note for more information.

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Appeal rights

The appeal provisions contained in ss120 and 121 of the RMA apply to CoCs. As CoCs are non-notified, this means only the applicant has a right of appeal. Any challenge by any other party can only be done by way of a High Court judicial review.

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Transfer of certificates of compliance

Sections 134, 135, 136 and 137 of the RMA relating to the transfer of resource consents also apply to CoCs (see s139(12)).

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Certificates of compliance and designated sites

Section 176(1)(b) of the RMA does not allow a third party to undertake any work on a designated site for works not associated with the designation unless the written consent of the requiring authority is obtained.

In such cases, a proposal is assessed against the provisions of a district plan, proposed plan or national environmental standard that apply to the site (sometimes called 'underlying zoning') and not the designation and any relevant conditions. The third party must obtain a resource consent where their proposal does not meet the underlying plan provisions.

A council can issue a CoC in relation to a designated site, where the applicant (third party) can demonstrate that the proposed works are:

Before implementing the CoC, however, the applicant will need to obtain the written approval of the requiring authority. This does not allow a council to issue a CoC confirming a proposal is consistent with the designation, as this is a different matter. Refer to the Notice of requirement and outline plans guidance note for more information.

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Certificates of compliance for hybrid activities

Many activities for which resource consents are sought involve both permitted and non-permitted components. An application for resource consent is typically sought for any non-permitted components of a proposal, on the understanding that any permitted components may be carried out as-of-right. However, difficulties may arise where:

Key principles for hybrid activities

There are three key principles derived from Environment Court cases that may provide guidance to practitioners on hybrid activities:

  1. A resource consent can not be granted for the permitted components of a hybrid activity.
  2. The permitted components of a hybrid activity form part of the overall activity and must be considered as part of the resource consent application for the non-permitted components.
  3. To obtain a CoC, a specific application for a CoC is required, independent of the resource consent application.

What is unclear as a result of Housing New Zealand v Auckland City Council(W74/2007) and the subsequent Minute issued by the Court, is whether a CoC can be issued for the permitted components of a hybrid activity, if those components are interwoven with those that require resource consent, or, whether the permitted components must be divisible from the non-permitted components.

This could be a particularly pertinent issue if applying to the EPA for a CoC in relation to permitted aspects of a larger proposal. In such instances it is advisable to seek legal advice on this issue and to discuss with the EPA prior to lodging.

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Benefits of taking a hybrid activity approach

An applicant may consider making separate applications for a resource consent and a CoC where a proposal includes both permitted and non-permitted components. However, before lodging the applications, the applicant should consider whether it is a situation where it is possible to apply for a CoC for the permitted aspects and whether there are any benefits derived from separating the components.  Benefits to the applicant may arise when:  

  1. There is an upcoming plan change or other matter that would affect activity status that in turn may mean permitted components are no longer permitted and the applicant seeks to safeguard the permitted components of the activity.
  2. There is some advantage in having a deemed resource consent in place for the permitted components (eg, it may be regarded as a 'value add' to any prospective purchasers of the land).
  3. Minor permitted matters which are able to be separated out and considered alone, allow the focus to be centred on the key issues of the proposal. For example, for a proposal of national significance lodged with the EPA, people resources (including the board of inquiry and the Court) can use their time and consideration to  focus on the key matters critical to the decision.

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Lodging hybrid activity applications

If an applicant chooses to apply for a resource consent and a CoC, then two separate applications need to be made:

There is no form for a CoC application in the RMA regulations. Several councils, however, have developed their own version of an application form which details what to include with a CoC application. Wellington City Council's CoC application form is a useful guide. The CoC application should refer to the application for resource consent.

The application for resource consent should incorporate all of the aspects proposal, including the permitted components covered by the CoC application. A standard resource consent application form is provided in the RMA Regulations and most councils have developed their own form. The EPA also has a resource consent application form available on their website.  

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Processing the applications

While any CoC application solely addresses any permitted components of the hybrid activity, the permitted components must still form part of the overall activity for which resource consent is being sought. Therefore, the permitted components must be addressed in the assessment of environmental effects submitted with the resource consent application. The permitted components must also form part of the overall consideration of the resource consent application.

Under s95D(b), 95E(2)(a) 104(2), any adverse effects arising from the permitted components of the hybrid activity may be disregarded when considering an application (known as the permitted baseline test). Whether effects arising from those permitted components are disregarded or not is not pre-determined by the issue or decline of the CoC. Refer to the To notify or not to notify? That is the question! guidance note for more information on assessing the permitted baseline.

The processing of each application is independent and the time frames are likely to diverge. For example, further information may be required to progress the resource consent application but not the CoC. The processing of the resource consent can not hold up the CoC application.

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 Implementation of certificates of compliance

It is important when issuing a CoC for a hybrid activity that any implications are made clear. What is unclear as a result of the Housing New Zealand v Auckland City Council (W74/2007) and the subsequent Minute issued by the Court, is whether permitted activities of a CoC can be exercised before non-permitted components (that require a resource consent) are given effect to, or, if they can occur if the permitted components are divisible from the non-permitted components. Legal advice may be required on this issue. The council could include advice on implications in a covering letter to the applicant (but it can not impose any conditions on the CoC relating to this).

Council compliance staff should also be made aware of what the CoC relates to, to avoid any confusion during inspections.

The permitted component may not be able to be implemented until a resource consent is granted. This should be made clear to the applicant.

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RMA provisions

Sections 120 to 121 - Appeals
Section 125 - Lapsing of consent
Sections 134, 135, 136 and 137 - Transfer of consents
Section 139 - Consent authorities and Environmental Protection Authority to issue certificates of compliance

Relevant case law

General case law relating to certificates of compliance

Neylon Developments Ltd v Marlborough DC [2007] C018/07 - In this case, the Court noted that if applicants wish to obtain a CoC they should take care to identify all activities for which resource consents are prima facie needed, and explain why they are not needed in the particular circumstances.

Central Hutt Residents Group Inc v Hutt [2003]CIV-2003-485-1395
- In this case the High Court noted the requirement for a council to address a particular proposal on the date of receipt. The council is not entitled to consider activities or proposals that are not the subject of the application. Rather, the council is limited to assessing compliance of the particular proposal.

Kelvin Grove Residents Assn Inc v Palmerston North CC [1999] NZRMA 497 - This case involved a judicial review to the issue of a CoC. The Court stated that a CoC is prospective in its effect, relating to an activity not already established, but for which a CoC is sought. A CoC, which assumes future compliance with the description of the activity in the application and the plans accompanying it, is aimed at protecting against a change in the district plan after the application for a CoC. The Court also noted that the clear legislative intent of s139 is that no property ownership, or other status, is required of an applicant for a CoC.

Pring v Wanganui DC [1999] 5 ELRNZ 464;  NZRMA 519 (CA) - In this appeal, the Court of Appeal observed that it will scrutinise a CoC under s139 "more carefully and with a less tolerant eye" than in the case of a decision which required weighing broad policy considerations and where there was less impact on the lives of individual citizens. The Court upheld the council's view that, because the activity complied with the rules in the transitional and proposed district plans, it was a permitted activity and the council was obliged to issue a CoC.

Long v Auckland City Council [1996] W028/96 - In this case, the High Court held that it did not matter that a CoC, having been sought before the proposed plan was notified, was not issued until after the proposed plan was notified, because what is certified is whether the proposal could lawfully be carried out without a resource consent "on the date of receipt of the request by the council". Therefore, what is essential is that the request for the CoC must be made before the notification of the proposed plan that would change the status of the activity. The High Court also held that once a CoC has been signed off, it is deemed to have legal effect from that point of time. It is not possible to later substitute different plans for those accompanying the CoC when it was issued.

Queenstown Casinos Ltd v Dunedin CC [1998] NZRMA 209 - In this appeal to the issue of a CoC, the High Court found that the application for the proposed activity was not appropriately detailed to enable the council to fully consider the application. The Court granted a declaration that the CoC issued by the council was invalid because it was not shown that the proposed activity complied with the relevant plans.

Case law relevant to hybrid activities

Southpark Corporation Limited v Auckland City Council (A111/2000)
- This case considered whether a CoC could be refused due to the effects of the non-permitted components of a proposal. The Court found the council had no discretion other than to issue a CoC, due to the language of s139 of the Act. However, the Court went on to hold that although a CoC was available for the areas in which an activity was permitted, the effects of those parts of the activity could still be taken into account when the council considered whether to grant consent for the non-permitted parts of the activity (ie, the effects of the whole activity remained available for consideration, notwithstanding that a CoC could be issued for part of it).

Brice v Wellington City Council (W38/2003) - In this case the Court found the council's decision to grant a resource consent did not implicitly grant consent for permitted components of the proposal.  To secure permitted components applicable at the time resource consent was applied for, a CoC should have been sought, which the council would have been obliged to grant.

Infinity Investment Group Holdings Limited v Queenstown Lakes District Council (C126/2003) - This case considered whether a granted subdivision consent included approval of residential building platforms. The Court found the consent application did not extend to the identification of permitted components of residential activity and that these could have been secured through a CoC at the time.

Housing New Zealand Corporation v Auckland City Council (W74/2007) - In this case the Court found that: it is not possible for a resource consent to be granted in respect of the permitted elements of a proposed activity; that the effects of permitted components should be considered alongside any non-permitted components; and that a CoC for permitted activities will not override the requirement to obtain a consent for the non-permitted aspects of a proposal. In response to a suggestion that the council would have declined an application for a CoC as some aspects of the overall activity required consent, the Court stated that a council can not refuse to grant a CoC no matter how interwoven it might be with the related resource consent.

A further Minute was issued by the Court in regard to an appeal to this finding to clarify that the reference to 'no matter how interwoven' only applied to the context of this specific case involving two distinctly separable activities.

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Related guidance notes

Acknowledgement and editorial comments

This guidance note was prepared by Clare Wooding of GHD Limited and was reviewed by:

This guidance note was published in March 2009. Minor updates to this guidance note were made in November 2009 by Greg Lee of Beca and MfE.