Conditions of a resource consent

Abstract

Sections 108, 127-133 and 220-221 of the Resource Management Act 1991 deal with the imposition, change or cancellation and review of resource consent conditions. Conditions imposed on resource consents are fundamental to ensuring that possible adverse environmental effects of an activity are avoided, remedied or mitigated. As a consequence, the drafting of resource consent conditions is extremely important. This Guidance Note provides information about the drafting of conditions, their implementation, their review and changes to or cancellations of them.

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Guidance note

• Conditions of consent
• Drafting conditions of consent
• Using standard conditions
• Financial contributions and bond conditions
• Consent notices
• Conditions relating to future management plans
• Review conditions
• Change or cancellation of a condition
• Minor corrections of resource consents
• Monitoring conditions of consent
• Advice notes

Conditions of consent

Section 108 of the Act allows consent authorities to impose conditions on resource consents. Conditions are usually standards, restrictions or prohibitions listed in a consent following the written decision to grant the consent. They may include the provision of:

• Cash
• Land
• Works
• Services
• A bond.

They may, for example, relate to:

• The design or appearance of structures
• Landscaping
• Hours of operation
• The layout of a site.

Imposing conditions of consent that are effective and enforceable is essential to the operation or development of the activity and in ensuring that any adverse effects on the environment are minimised. Getting the conditions right is essential.

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Drafting conditions of consent

There are a number of important things to remember when drafting conditions. Of the utmost importance is that the conditions need to be easy to understand and enforceable. Ideally conditions should be understood by a layperson without any resource management planning experience.

There are five principles that provide a sound basis for developing conditions of consent. These are that conditions should be:

• Within a council's powers under the Act. Any condition must be constructed under the general powers of section 108(1) of the Act.
• For a resource management purpose. Any condition placed on a consent must relate to either avoiding, remedying or mitigating any adverse environmental effects associated with the activity. A condition cannot be imposed for any ulterior reason. Conditions should not be used to address deficiencies in the application. Conditions that do not meet this test may be unlawful.
• Certain. Consent conditions should be certain so that they are workable for both the consent holder and the consent authority. It is important that conditions are drafted in a way that they will stand the test of time and are able to be interpreted and understood by subsequent council officers monitoring the consents and subsequent holders of the consent. Only when a condition is certain can the consent holder, the local authority and any parties be sure of what is required by the conditions and the obligations the consent holder has.
• Relevant to the subject matter of the consent. A condition should fairly and reasonably be related to the activity for which consent has been granted. For instance a land use condition must relate to a land use consent and cannot be imposed on a subdivision consent. However, section 220(1)(c) does allow limited conditions on a subdivision consent, in relation to bulk, height, location or foundations, or height of floor levels of any structure on the subdivided land.
• Fair, reasonable and practical. Any condition of consent should fair and reasonable and be able to be practically imposed. There is little point imposing a condition that so severely hampers the development that it renders the decision to approve the application ineffective.
• Exclusively between the applicant and the council A condition can not require the agreement or compliance of third parties, or infringe on a third parties legal rights. Also, a consent must not be infringed upon by the condition of a subsequent resource consent, as a resource consent is a legal right.

The Ministry for the Environment's publication Effective and enforceable consent conditions provides a guide to drafting conditions under the RMA.

The following are good practice tips for drafting conditions of consent:

• Discuss any proposed conditions with the applicant prior to including them in the officer report, or the final decision. This may help to prevent objections to the conditions. Many councils require the applicant's endorsement to draft conditions before the decision is made.
• Write conditions in plain English and so they can be understood by a layperson.
• Check that any conditions proposed do not impose restrictions on other specific statutory procedures or provisions of other legislation.
• Check that any conditions will not override the statutory ability to apply for a resource consent in the future.
• Check that any condition does not require the compliance of a third party.

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Using standard conditions

Standard conditions can be useful where a council processes a significant number of applications for a similar activity, with similar effects and environmental context. However, they should be used with caution and viewed as a starting point from which appropriate conditions for the individual consent can be drafted (see Arnott v North Shore City Council (A001/2000)).

Standard conditions can:

• Be efficient;
• Provide consistency and certainty for applicants;
• Assist in the mitigation of potential and actual adverse effects on the environment; and
• Be fair to each applicant.

There is a risk that standard conditions may be imposed without relevance to the particular environmental effects that the condition is meant to be avoiding, remedying, or mitigating.

A council officer should think carefully before imposing a standard condition and whether it is strictly applicable to the proposed activity. If there are any concerns about whether a condition is appropriate then it is wise to have draft conditions peer reviewed and circulated to the applicant for their comments. This may avoid objections being lodged to the decision at a later date.

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Financial contributions and bond conditions

Financial contributions

Under section 108(2)(a) of the Act financial contribution conditions can be imposed for the purpose of recovering the costs of providing infrastructure for development and to provide for the recreational needs of the community. They are used to compensate increased development in an area and provide upgraded or additional servicing. Councils must specifically use these monies for the purposes they are intended for.

Financial contributions are either authorised under proposed or operative plans or under the Local Government Act through Long Term Council Community Plans (LTCCP). These contributions either require a contribution of money or land, or can be a combination of the two. Such conditions cannot be imposed if the proposed or operative plan or LTCCP does not specify that a contribution can be taken. In some cases financial contributions can be taken on subdivision when the land has already been developed on (see Housing New Zealand Limited v Waitakere City Council) (Unreported Judgment HC Auckland, AP41-SW00)).

Councils should ensure that the wording of any financial contribution conditions are legally reviewed prior to them being imposed on a resource consent. This will help to avoid challenge. It can also be helpful to show the calculation of a contribution as an advice note to the consent holder on the consent decision so they can clearly see how the contribution was arrived at.

Bonds

Section 108(2)(b) allows conditions of consent which require a bond to be entered into with the consent authority. Bonds can then be registered against the certificate of title of the land to which the activity relates. Section 108A specifies that a bond may be given to ensure the performance of any one or more conditions of a resource consent and it may continue to be in force after the expiry of the consent in order to secure the ongoing performance of conditions relating to long-term effects. For example a bond may be required for landfill activities where the effects of the landfill will still occur after it is filled and rehabilitated. In addition, section 222 provides for a bond to be entered into for a subdivision consent condition without a condition under section 108(2)(b).

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Consent notices

Where a condition of subdivision consent is required to be enforced on a continuing basis after the subdivision has been completed, a council can issue a consent notice to be registered by the consent holder against any new Certificate of Title that is affected by the condition. For example, the Council may require that a mitigating planting belt remain on the subject land to protect the amenity values of adjoining land. The need to register a consent notice should form part of the condition. For example a consent notice condition could read as follows:

'The existing shelterbelt located in Area A shown on the survey plan, shall be retained at a height no less than 3 metres. This condition shall be imposed by way of a consent notice registered against the Certificate of Title for Lot 1 of the subdivision of Lot 2 DP 8889.'

A consent notice template is provided - see Example: Consent notice (MS Word 25KB).

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Conditions relating to future management plans

Large-scale projects often require further refinement of management techniques and operations once the consent for the development is granted. They also may operate under a formalised management plan. There are likely to be several situations where drafting a management plan prior to the hearing is difficult. In such situations it may be appropriate to impose a condition of consent that requires a management plan to be supplied at a later date.

The Court has determined that a future management plan can be required by a condition of consent where the management plan provides detailed information as to how the consent holder will comply with other conditions to the consent (see Wood v West Coast Regional Council (C127/99)).

An example management plan condition is:

'The consent shall be exercised in accordance with a management plan prepared by the applicant. The management plan shall include, but is not limited to the following:

1. Reporting and auditing;
2. Complaints handling and reporting procedure
3. All measures that will be undertaken to mitigate potential dust effects to achieve compliance with condition 4 of this consent.'

Avoid imposing conditions that reserves a council's discretion to accept or decline a management plan.

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Review conditions

A review condition is an effective and efficient way of providing a consent holder with a consent term that provides certainty, while allowing a council the flexibility to review the exercise of the consent and address any significant adverse effects that might arise during the exercise of the consent.

An example of a review condition is:

'The Consent Authority may once per year, on any of the last five working days of either May or November, serve notice of its intention to review the conditions of this consent for the purpose of dealing with any adverse effect on the environment which may arise from the exercise of the consent and which it is appropriate to deal with at a later stage.'

Section 128 of the RMA specifies three broad grounds on which a consent authority may review the conditions of consent:

1. The most common basis for review will either be where there is provision for review in a consent (section 128 (1)(a)) or through the operation of regional rules relating to water, coastal and discharge permits to enable the levels, flows, rates or standards set by a regional rule to be met (section 128 (1)(b)). Also, in the case of water, coastal or discharge permits a review may take place when relevant national environmental standards have been made under section 43 (section 128 (1)(ba)). Section 128 (1)(c) provides for a review if it is found that an application contained inaccuracies that materially influenced the decision made on the application even when there is not a review condition on the consent.

2. A review can be undertaken under section 128(1)(a) on the basis of any adverse effects arising in the future from the exercise of the consent. However, the review condition itself must specify the time for review, the purpose of the review and what environmental effect the review relates to. A condition stating that the consent is subject to review 'at any time that the Council considers appropriate' is inadequate. Applicants have a legitimate requirement for certainty, so review conditions should only be used where the actual adverse effect in question or the degree of effect cannot be foreseen, although the type of effect can be specified with some certainty. It should not be used to materially alter the consent's nature and be used sparingly.

Before imposing a review condition the consent authority needs to consider if:

• The effect is unknown/ uncertain
• More information should have been requested
• The consent should be refused because of the unknown/ uncertain effects that might arise.

3. A review condition can specify how often and when review of conditions may occur. If conditions relating to the change of the regional plan are to be attached to a consent, that plan should have:

• Included rules relating to the matters in section 128(1)(b); and
• Stated that the rules affect the exercise of existing resource consents for activities that contravene the rule (refer to sections 68(7) and 130(5)-(7) of the RMA).

What happens when a council decides to review a condition?

If a Council decides to review a condition then it must serve notice of the intended review on the consent holder. This notice should:

• State the reasons for the review
• State which condition/s are being reviewed
• Specify the information which the consent authority took into account in making its decision to review the consent (unless the notice is given under section 128(1)(a) or (ba))
• Invite the consent holder to propose new consent conditions within 20 working days of service of the notice, (this is not compulsory).

The notice must advise the consent holder by whom a charge is payable under section 36(1)(cb) of the fact that a charge is payable, and of the estimated amount of the charge.

What is the process if a review proceeds?

The process for reviewing a condition is much the same as the process that applies to resource consent applications (sections 96 to 102 apply) albeit that the actual consent holder takes the position of the 'applicant' and the notice for review is in effect the 'application'. Note however that this process is not applicable to coastal permits for restricted coastal activities.

Sections 93 to 94C also apply to this process as if the review of the condition/s was an application for a discretionary activity taking into account the effects of the change of conditions only. They can be considered on a notified/limited notified/non-notified basis. Remember it is only the conditions that are being reviewed not the entire consent or all effects outside those associated with the review. This applies whether the notification is required by a plan or proposed plan or the review relates to a resource consent in respect of any status activity.

When reviewing the conditions of consent the consent authority:

1. Must have regard to the matters in section 104 and whether the activity will continue to be viable after the condition is changed
2. May have regard to the manner in which the consent has been used.

The consent authority must apply sections 106 to 116 with respect to notifying the review, setting any new conditions, and making a decision. Sections 120 and 121 also apply in relation to the lodgement of any appeals against a review decision. This condition review process flow diagram shows the process that a review of a condition proceeds through.

If a council reviews a resource consent under section 128(1)(c) (which relates to reviewing consent conditions because of inaccurate information being supplied at the time the consent was originally applied for), and it was found that inaccuracies did occur that materially affected the decision made, plus significant adverse effects on the environment have occurred as a result of the exercise of the consent, then the council may cancel the consent.

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Change or cancellation of a condition

Section 127 of the Act allows a consent holder to apply for a change or cancellation of a condition of consent other than any condition that relates to the duration of the consent. In relation to subdivision consents, an application under section127 can only be made before the survey plan is deposited. After the deposit of a survey plan, application must be made under section 221 for any variation or cancellation of a consent notice. Sections 88 to 121 and 127(4) to 132 apply to any application for a variation or cancellation to a consent notice.

For these types of applications sections 88 to 121 apply as if the application was an application for resource consent for a discretionary activity. As part of processing these types of applications a council must, in determining if there are any adversely affected parties, consider every person who made a submission on the original application and may be affected by the change or cancellation. Under section 127 only the change to the condition can be considered. It does not provide for the reconsideration of the entire application. See:

• Example: Change of condition application form (MS Word 85KB)
• Example: Section 127 report (MS Word 35KB).

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Minor corrections of resource consents

Section 133A allows a consent authority to issue an amended consent that corrects minor mistakes or defects in the consent (including the conditions) within 15 working days of the date that consent is granted.

Monitoring conditions of consent

Ability to monitor the conditions imposed

It is important to ensure that the conditions of a consent can be effectively monitored. However, how much monitoring is required should reflect the level of risk of adverse effects. Refer to Guidance on resource consents, compliance and complaints monitoring.

It is good practice for council planners to talk to council compliance staff prior to the imposition of conditions. This can lessen the possibilities of imposing requirements on applicants that may be unnecessary or unreasonable, and of conditions being worded ambiguously. It is a good way of testing how the condition might be interpreted.

Monitoring conditions should be specific to what is required to be monitored and specify the type of reporting or recording that the consent authority would expect to have provided to it as part of this monitoring. There is no point having monitoring undertaken by the applicant if there is no requirement to forward the records of it to the Council.

If the consent authority intends to impose a requirement for self-monitoring on an applicant, the applicant should be made aware of this requirement before the consent is issued.

The Council and the applicant may also agree at the time of monitoring, that the applicant will provide evidence that certain conditions have been complied with.

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Advice notes

It is common practice to place advice notes on consents. They provide a useful customer service, in that they can remind consent holders of other standards and requirements related to the consent and of obligations as a consequence of the consent. For instance they can advise about:

• Matters of relevance under the Building Act 2004
• The need to obtain other consents and permits
• Any specific activities that the consent is not issued for but may have been discussed during the processing of the consent
• The ability to object or appeal the decision
• The lapse period of the consent
• Any other obligations the consent holder may have as a consequence of holding the consent.

Where advice notes are consistently provided on consent decisions that are the same to all consent holders, make up a booklet that sets all these things out and simply refer to it in the advice notes. The council may decide to have a booklet about consent monitoring and charges and then a leaflet about rights of appeal.

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Forms and Checklists

Example: Change of condition application form (MS Word 85KB)

Example: Consent notice (MS Word 25KB)

Example: Section 127 report (MS Word 35KB)

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Case law

Brown v Central Otago District Council C56/97, 2 NZED 430 – where the appeal only relates to a condition of consent then the Court cannot alter the actual decision made on the application.

Wood v West Coast Regional and Buller District Councils (C127/99) – a condition is valid if it is for a resource management purpose; fairly and reasonably relating to the consent granted and is reasonable. This decision also provides discussion on imposing conditions for future management plans associated with an activity.

Brookes v Queenstown Lakes District Council (C81/94) – conditions should fairly and reasonably relate to the development authorised by the consent to which the condition is attached.

New Zealand Post Limited v Moore 1992 1 NZRMA 213 – this case provides discussion on the matters that should be considered when drafting conditions of consent.

Housing New Zealand Limited v Waitakere City Council unreported judgment, HC Auckland, AP41-SW00 – under the Local Government Act 1974 reserve contributions can be imposed on subdivision consents when the subdivision itself does not create additional demand.

Waikato District Council v Transit (A150/98) – conditions should not impose a restriction on a specific statutory procedure or provision.

Upper Clutha Environment Society Inc v Queenstown Lakes District Council (C112/98) – this decision specifically relates to subdivision but provides good discussion regarding conditions that cannot override the statutory ability to apply for a resource consent in the future.

Arnott v North Shore City Council (A1/2000) – consent conditions should give adequate recognition to the particular circumstances of each case (re standard conditions).

Mackay v North Shore City Council W 146/95 – a condition cannot require the agreement or compliance of third parties or infringe on their legal rights.

Dart River Safaris Ltd v Kemp [2000] NZRMA 440 and [2001] NZRMA 433 - conditions should have a resource management purpose and be reasonable.

Parkbrook Holdings Limited v Auckland City Council EnvC A4/2001 – application of the permitted baseline test in relation to consideration of change of condition.

Kuku Mara Partnership ( Forsyth Bay) v Marlborough District Council EnvC W25/2002 – a condition of review cannot require the complete removal of structures and processes, but it can reduce the scale.

New Zealand Rail Limited v Marlborough District Council C36/93 (PT) and [1994] NZRMA 70 (HC) – review conditions must be specific as to the time when review must take place and for what purpose and be relevant to the specific consent.

McBride v Westland DC C097/05 - it is possible for a council to impose conditions that mirror requirements of other authorities, in this case the Civil Aviation Authority, provided they do not take on jurisdiction the council does not have, or derogate from the requirements of the other authority.

Rodney DC v Fisherton [2005] NZRMA 514 (CA) - resource consent conditions relating to the substitution of a replacement bond cannot override the specified terms of a registered bond.

Transit NZ v Southland DC C042/06 - it is inappropriate to use financial contributions for an ulterior purpose, in this case by seeking to extract full costs for a roading improvement from a single developer to remedy an existing deficiency in the state highway network.

JF Investments v Queenstown Lakes DC C048/06 - enhancement to the environment, by off-site work or a covenant offered as environmental compensation, can be considered relevant under s104(1)(i) and imposed as conditions of consent.

Upper Clutha Environmental Soc Inc v Queenstown Lakes DC W088/06 - covenants in perpetuity can be an appropriate and more secure means of mitigating effects than could be achieved through RMA controls alone.

Waitakere CC v Estate Homes [2007] NZRMA 137 (SC) - the application of common law principles in the planning context does not require a greater connection between the proposed development and conditions of consent beyond that they must be: logically connected to the development; not unrelated to it; and not relating to external or ulterior concerns. There is no requirement under s108 (2) for a causal connection.

Morgan v Whangarei DC [2008] NZRMA 113 (HC) - conditions which territorial authorities attach to subdivision consents are not limited to what s220(1) specifies. Within the sustainable management context of the RMA, a territorial authority is not prevented from imposing a condition which runs with the land.

Big River Paradise Limited v Congreve [2008] NZCA 78 - a restrictive covenant seeking to prevent the development of more than three dwellings on a rural area of land was upheld. The proposal involving the creation of leasehold interests for a term of less than 30 years was an unsuccessful attempt to develop the site without falling within the definition of "subdivision of land" in the RMA (note the Supreme Court has upheld this decision.)

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Relevant publications

Odour Emissions Standards Established under the Resource Management Act 1991 for Moa Point Treatment Plant, Wellington (PDF 307 KB)
Published by Parliamentary Commissioner for the Environment - November 2004
This investigation looks into the "discernable odour at or beyond the site boundary" emission standard set for the Moa Point Treatment Plant. The report arises from a long history of complaints from the community, and requests from the Wellington Wastewater Community Liaison Group for the Parliamentary Commissioner for the Environment assistance in solving the problem. The report covers the events leading up to the designation for the Plant, and the granting of air discharge consents. The report is relevant to resource management practitioners as it stresses the importance of both integrated resource management and preparing consistent and realistic wording for designations and resource consents so that they are enforceable and do not raise community expectations.

Guide to Landfill Consent Conditions
Published by Ministry for the Environment - May 2001
These guidelines provide assistance for consent authorities and those applying for resource consents (or changes to resource consents) for the development, operation or aftercare of landfill sites.

Effective and enforceable consent conditions
Published by Ministry for the Environment - June 2001
This is a guide to drafting resource consent conditions under the RMA 1991. The guide discusses how a well-drafted resource consent condition should be effective and enforceable so it will be consistent with its statutory purpose of promoting the sustainable management of natural and physical resources. The guide contains an explanation of the principles relating to the validity and scope of conditions, a checklist of considerations, a discussion on putting the preceding principles into practice, and examples of relevant case law.

Side Agreements in the Resource Management Consent Process: Implications for Environmental Management
Published by Parliamentary Commissioner for the Environment - January 1998
This investigation examines the environmental implications of agreements made between resource consent applicants and persons having the status of 'affected persons' under the RMA. By enabling applicants to circumvent statutory requirements e.g. public notification, side agreements may result in activities receiving consent without a proper assessment of environmental effects.

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Related guidance notes

Monitoring and enforcing resource consents

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Current challenges in practice

Determining when a condition of consent is required

When considering granting a resource consent it is often difficult to determine whether the extent of the adverse effects require a condition of consent to ensure that effects are minimised, remedied or mitigated. Some applications contain sufficient detail and mitigation measures themselves that are clearly stated and a simple condition of consent to ensure that the application is complied with will suffice. However, sometimes specific conditions are easier to monitor and enforce than a more general condition. In other cases though there may be some level of doubt as to the efficiency of the mitigation proposed in the application making it difficult for the decision maker to determine whether or not a condition is warranted. In such cases it would be wise to either request further clarification from the applicant or circulate draft conditions for any feedback. After all, it is important that conditions are relevant and workable, not to mention enforceable.

Deciding when to circulate draft conditions and when to make a final decision

Circulating draft conditions to the applicant can be a helpful process if the setting of appropriate conditions will potentially be contentious. However, a process and timeframes should be set for this so that the timeframes of the Act can still be complied with.

Alternatively the timeframes could be extended under section 37 while the final conditions are agreed to. This option may be preferred by the applicant rather than the more time consuming and costly option of resolving issues through the objection process. Difficulties may arise if the parties cannot agree to the wording of the final conditions. In these circumstances the Council needs to determine when no further dialogue will be entered into and make the applicant aware that a decision will be issued based on the last draft of conditions. The applicant should be made aware of their rights to object.

Drafting clear and easy to understand enforceable conditions

Drafting clear, easy to understand and enforceable conditions is sometimes challenging. This is particularly the case when applications involve technical and complex information. Less experienced planners can find this part of processing an application the most time consuming and taxing. The guidance provided above provides some assistance to drafting conditions and it may be beneficial to provide in-house training and regular refresher training on the drafting of conditions for staff. Having a sound set of standard conditions can also assist when used in the right context.