Recommending the duration and lapse period

Abstract

Sections 123, 124, 125 and 126 of the Resource Management Act 1991 deal with determining the duration and lapsing periods of resource consent applications and the cancellation of consents. This Guidance Note explains these sections of the Act and provides advice on determining the duration of consent, whether a consent has lapsed or not and consent cancellation.

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Guidance note

• Duration of consent
• Recommending the duration of a consent

Duration of consent

Section 123 of the Resource Management Act (RMA) sets out the duration of consents. Except as provided for in section 125 (lapsing of consents), the following durations apply:

• Coastal permit or land use consents for reclamations (contravene section 13) - unlimited duration unless otherwise specified in the consent.
• Any other land use or a subdivision consent - unlimited duration unless otherwise specified in the consent.
• Other coastal permits or any other land use contravening section 13 - 5 years if not specified, and not exceeding 35 years if a duration time is specified.
• Any other resource consent - 5 years if not specified, and not exceeding 35 years.

Section 124 also allows a consent holder to:

• Apply for a new consent for the same activity as the current one no later than 6 months before the expiry of the original consent (note that the consent holder may continue to operate under the original consent until the application for the new consent and any appeals have been determined); or
• Apply for a new consent for the same period beginning 6 months before and ending 3 months before the expiry of the original resource consent (note that at the discretion of the consent authority the consent holder may continue to operate under the original consent until the application for the new consent and any appeals have been determined).

Note that, section 124 will mainly apply to the holders of water and discharge permits which can not be granted for more than 35 years.

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Recommending the duration of a consent

Lapsing of consent

Section 125 provides that if a resource consent is not given effect to within 5 years of the date of its commencement, or any other time as specified, it automatically lapses.

See Example: Section 125 report (MS Word 38KB) for guidance on compiling a Section 125 report.

Under Section 125 a consent holder may apply for an extension to the lapse period before the lapse date expires. In order to allow a new consent to issue the consent authority must consider:

• If substantial progress has been made towards giving effect to the consent;
• If the applicant has obtained the written approval from every person who may be adversely affected by the granting of the extension; and
• What will is the effect of the extension on the objectives and policies of any plan or proposed plan.

A subdivision consent is given effect to when the survey plan is submitted pursuant to section 223, but will then lapse if the survey plan is not deposited in accordance with section 224. Section 224 requires the survey plan to be deposited under the Land Transfer Act 1952 or with the Registrar no later than 3 years after the survey plan was signed and sealed by the consent authority.

Cancellation of consent

Section 126 of the Act allows a consent authority to cancel a resource consent if it has been exercised in the past but has not been exercised during the preceding 5 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 longer period than 5 years. Alternatively, if an application is made within 3 months of receiving the notice of cancellation from the consent holder to revoke the notice, then the consent authority can revoke the notice and state a period after which a new notice may be served after taking into account:

1. whether the applicant has obtained from any parties that might be affected by the revocation of the notice; and
2. the effect of the revocation of the notice on the objectives and policies of any plan or proposed plan.

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Forms and checklists

Example: Section 125 report (MS Word 38KB)

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Case law

Body Corporate 970101 v Auckland City Council [2000] NZRMA 529 (CA) and subsequent associated cases - the scope of section 127 and when it applies; reasons why planning consent should not subsist without being given effect; consideration of what is substantial progress; section 125 is concerned with the adverse effects of the extension of time to give effect to the activity.

PVL Proteins Limited v Auckland Regional Council EnvC A061/2001 - the term and conditions of consent should serve the purpose of the Act.

Steiner v Wharfe EnvC W61/2000 – An applicant for a new consent may apply for a consent on a greater scale than the original. However, section 124 does not authorise the original activity to go beyond what is allowed by the original consent in the meantime.

Hastings v Auckland Regional Council EnvC A129/2000 – provides guidance as to the meaning of 'lapse'.

Collins v Timaru District Council C44/92 - A resource consent cannot be cancelled if it has not been exercised.

Re Auckland CC A127/05 - s125(1), as amended, applies to all resource consents which did not specify as a condition of consent a lapsing date and were valid resource consents at 1 August 2003.

Art Deco Soc (Auckland) Inc v Auckland CC [2006] NZRMA 49 (HC) - existing resource consents gain the benefit of the 2003 amendment to the RMA which extends the statutory lapse period of resource consents from two to five years.

Royal Forest and Bird Protection Society of New Zealand Inc v Waikato RC [2007] NZRMA 439 - reducing the duration of the consent as a means of influencing public authorities to take action on related environmental issues is not appropriate. The duration of consent should be determined primarily by sound resource management practice and the RMA purpose.

Huntly Quarries Ltd v Waikato RC A10/08 - summarises the factors relevant to term of consent, based on the leading decision of PVL Proteins.

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Relevant publications

Getting in On the Act
Published by Ministry for the Environment - June 2006
A short, simple guide on how the Resource Management Act works and how it might affect users.

Resource consent durations and reviews: A study of regional council and unitary authority practice under the Resource Management Act 1991
Published by Ministry for the Environment - September 2000
The purpose of this document is to provide information on current council practice and identify areas where there is potential to improve practice.

Your Guide to the Resource Management Act: An essential reference for people affected by or interested in the RMA
Published by Ministry for the Environment - August 2006
This guide for the public presents a simple explanation of the RMA legislation, the processes it has established, and how people can use it to pursue their interests.

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Relevant websites

The following are a selection of websites that may be of assistance and are relevant to this guidance note:

The Auckland Regional Council website has information for the applicant on how long a resource consent may last, what happens if the applicant doesn't use the resource consent, whether the applicant can surrender their resource consent and whether the resource consent can be transferred to another person. Go to Auckland Regional Council's Now that you have your consent.

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Current challenges in practice

Deciding on the term of a consent

Deciding on the term of a consent when it is not considered appropriate to set a term of 35 years for discharge permits or an unlimited term for other consents can be demanding. When there is good reason for not allowing a full term duration then there has to be a good reason for setting the different term. It is not simply a matter of plucking a number out of 'thin air'. Careful consideration should be given as to why a shorter term is appropriate with it being clearly rationalised. To deal with this issue Councils may want to take a standard approach to certain types of consents and make the general public aware that such consents will generally have shorter durations for specific reasons. Care should be taken though to ensure that each case is considered appropriately against the standard duration selected.

Determining if a consent has lapsed or has been given effect to

Often it is difficult to determine if a consent has been given effect to or not and consequently if it has lapsed. This is particularly the case when only a small portion of work has been undertaken in order to give effect to the consent or if no physical work has been undertaken because of background circumstances. In such cases it is important to ensure that the consent holder has provided the Council with sufficient information to determine what work has been undertaken, either on the ground or in planning and designing the activity. No proof of activity occurring can give a strong indication that the consent has lapsed.