Drafting consent conditions
There are a number of important legal principles and good practice guidelines to remember when drafting conditions. The critical considerations can be divided into high level legal principles and best practice guidelines.
Six Principles
There are six key principles that should be adhered to when developing consent conditions. Conditions must be:
1) Within a council’s powers under the RMA – Any condition must be constructed under the general powers of ss108(1) and 220, and within the scope of the matters prescribed by the consent activity type, such as restricted discretionary activities as specified in the relevant plan or proposed plan (s77B).
2) For a resource management purpose – Any condition should relate to either avoiding, remedying or mitigating any adverse environmental effects associated with the activity, or providing information about the effects of the activity. A condition should not be imposed to address an issue unrelated to the proposed activity or to rectify an information shortfall that should have been clarified before a decision was made on an application.
3) Certain – Consent conditions must be certain so the consent holder, the council and any layperson viewing the consent have no doubt about what is required by the conditions and the obligations the consent holder has. It is important conditions are drafted in plain English and can be readily interpreted and understood by council officers monitoring the consents and subsequent consent holders.
4) Relevant to the subject matter of the consent – A condition should fairly and reasonably relate to the activity for which consent has been granted. For instance, a land use condition should relate to a land use consent and may not be appropriately imposed on a subdivision consent. However, s220(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 future structure on the subdivided land.
5) Fair, reasonable and practical – Any consent condition should be fair and reasonable and must be able to be complied with. A condition must not frustrate the exercise of the consent. There is little point imposing a condition that so severely hampers the development that it renders the decision to grant the application ineffective.
6) Exclusively between the consent holder and the consent authority – A condition cannot require the agreement or compliance of third parties, or infringe on a third party’s legal rights. Also, a consent cannot be affected by the condition of a subsequent resource consent, because a resource consent is a legal right (Dart River Safaris v Kemp, AP600/00). However, a consent applicant is able to propose a condition that limits, or even requires the surrender of, a consent held by that applicant. A condition volunteered by an applicant that would otherwise be ultra vires for the council to impose is known as an Augier condition. Such conditions can be prefaced with a clause that clarifies their origin, for example, “As volunteered by the applicant …”. A consent can have a condition that imposes a restriction based on the exercise of another consent. For example, for some types of consents the following clause may be applicable “This consent shall not be exercised concurrently with consent ABC080001”.
