Section 106 provides the ability for councils to refuse subdivision applications and the discretion to grant a subdivision consent, subject to conditions, in certain circumstances. These circumstances are where:
- the land, or any structure on the land, is or is likely to be subject to material damage by hazards
- any subsequent use of the land is likely to accelerate, worsen or result in material damage to the land, other land or structures through hazards
- the subdivision has not been designed to give legal and physical access to each newly created allotment.
Section 106 is an exception to s87A(2), which otherwise requires that consent authorities must grant a resource consent for a controlled activity.
This section recognises that not all hazard-prone land can be easily identified at the time of plan preparation. The council may become aware of potential risks only at the time of detailed site analysis for a subdivision application. This provision provides a council with the discretion to be able to allow the subdivision of hazard-prone land if the applicant can demonstrate that they can adequately address any adverse environmental effects.
There are potential legal liability issues for both the council and an applicant or developer surrounding the subdivision of hazard-prone land that should be addressed both at the time of plan preparation and during resource consent assessment.
