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.
The key principles when developing consent conditions are that:
- the conditions must be within a council’s legal powers under the RMA.
- the conditions must be for a resource management purpose and relevant to the subject matter of the consent
- the consent conditions must be clear, reasonable, and readily interpreted 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 upon the consent holder. This includes how practical the condition is and also its enforceability.
- the consent conditions are exclusively between the consent holder and the consent authority – 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. For example, for some types of consents the following clause may be applicable “This consent shall not be exercised concurrently with consent ABC080001”.
Good Practice Guidelines
The following are good practice guidelines for drafting conditions of consent:
Process and outcomes
Communication with the Applicant
Communication on consent conditions should occur between the applicant and the reporting officer (or decision-maker) prior to the decision being finalised, even for relatively straightforward applications. This helps ensure there is no misunderstanding and reduces the likelihood of appeals or objections (ss120, 357 and 357A). Many councils adopt the approach of requesting the applicant’s written endorsement of draft recommended conditions (for non-notified applications) before the decision is made, even if this is not required. The applicant should be advised whether they have the right to object and/or appeal the final consent conditions. For information regarding appeal rights (which have changed as a result of RLAA17, please refer to <guidance>.
Consent conditions should be prepared in liaison with other council staff, even for relatively straightforward applications. For example, compliance monitoring staff should be involved in the development of monitoring conditions as they can advise on their relevance and workability.
Do conditions cover all effects?
The planning officer (or decision maker) needs to address whether all the significant adverse effects that may result from the exercise of the consent can be effectively avoided, remedied or mitigated by consent conditions. The relevant plan provisions are usually a good guide to the issues that need to be addressed and the effects that need to be managed by consent conditions. The Assessment of Environmental Effects (AEE) and any submissions will need to be thoroughly assessed. In addition, checking issues identified in similar consent processes, brainstorming and consulting with colleagues may assist in identifying and/or resolving issues.
Ensure that each condition is effective and efficient from the perspective of the affected resource, the consent holder, and the council . Also, is the condition the most cost effective method to achieve the result sought?
As far as is possible, ensure there is no conflict between conditions imposed on a separate consent or with another statutory requirement, for example, the Building Act. If a conflict is possible, ensure it is clear what takes priority (eg, “The development shall be in accordance with the provisions of Management Plan ABC dated XYZ... except where another condition of this consent must be complied with”).
Ensure no regard is given to any effects on a person who has given written approval (s104(3)(a)(ii)).
Limitations offered by an applicant at a resource consent hearing should also be incorporated as conditions. Any positive effects agreed to or proposed by the applicant to offset any adverse environmental effects should also be incorporated as conditions of consent.
Ensure there is a regular reassessment of standard and non-standard template conditions which are often imposed on consents. This should involve other council staff where appropriate, such as compliance/enforcement staff, to ensure that conditions can be effectively monitored and enforced where necessary.
- Write conditions in plain English so they can be understood by a lay person.
- Avoid archaic legal terms such as “pursuant to”, “herein”, “hereby”, etc.
- Where possible, avoid using complex or potentially confusing words or terms such as “not with standing”.
- Try to minimise the use of technical jargon.
- Keep sentences and paragraphs as short as possible.
- Use numbered not bulleted lists.
- Avoid double negatives.
- Use the active tense with clear mandatory verbs: “shall” or “must”.
- Be careful with punctuation. For example, the location of commas can completely change the meaning of a condition. Generally words in brackets can be ignored, so care is needed in their use.
- All relevant and appropriate further information including plans approved should be specifically referenced in conditions. Any references to external specifications or methods must only refer to readily available technical publications that meet normal consent condition requirements (ie, the technical document or relevant part must be clearly written as a set of mandatory requirements). Ideally conditions should refer to specific plans and specifications, and have those documents physically attached to the consent. However, if the amount of technical information is too extensive or physically too big to attach to the consent document, then it should be labelled and physically filed with the consent and referred to in a consent condition. If cross references to plans and specifications are so extensive that some aspect of them may have been superseded by other more specific conditions, then compliance certainty should be provided by using a clause such as “The development shall be in accordance with ... except where another condition of this consent must be complied with”.
- Conditions should not include reference to rules in plans because these may change during the duration of the consent.
- Ensure all conditions are able to be enforced. They must be as certain as possible and compliance must physically and technically be able to be achieved. Some terms may need to be defined to ensure there is no doubt about what a condition requires.
- Ensure there are no conditions that require the approval of another person, such as the council’s compliance manager, because such ‘secondary approvals’ are not lawful. Instead, either ensure that all requirements are resolved prior to the decision being made, or use a technical certification condition, such as requiring certification by a specifically qualified person that a detailed technical requirement such as a performance or design standard has been met. Such certification should generally be done by a qualified person acting for a consent holder.
- Specify the qualification/experience required for undertaking a critical task such as writing a technical report, supervising critical investigations or monitoring, or for certification. The phrase ‘suitably qualified and experienced person’ should not be used. Instead specific requirements can be defined for example, “any reference to a ‘senior qualified person’ shall mean a person with a post-graduate degree in environmental science, chemistry, biology, geology,(including a Chartered Professional Engineer (CPEng)) or similar field; or sufficient technical experience that is at least equivalent; and at least five years professional experience involving environmental quality investigations”.
- Where it is necessary to include a condition requiring a future management plan, the purpose of such a condition must only be to provide more information on how the consent holder will comply with other conditions of a resource consent. The outcome sought by a management plan should be specified. Before such a condition is used there should be a very high degree of confidence that compliance is achievable. A management plan should not be a substitute for clear performance or environmental standards.
- Monitoring and reporting conditions must specify exactly what must be done, how, and by when. Critical information requirements will usually have the greatest level of specificity and assurance. Matters may include:
- exact location details (GPS)
- time of day
- number of replicates
- compositing of samples
- chain of custody requirements
- laboratory accreditation
- detection/accuracy limits
- sample bottle standards
- methodology (for example, dissolved or total metal)
- minimum training or qualification requirements for the person who is collecting the samples or undertaking the measurements
- interpretation of results by a specifically qualified and experienced
- It may be appropriate for a technical standard for monitoring methodology to be incorporated into a condition and be referenced or attached to the consent notice as appropriate. Amalgamating reporting requirements into a regular report (such as an annual report) can have significant benefits for both the consent holder and the council. Monitoring and reporting conditions can be critical when consent is granted for a short term because of concerns about the actual or potential adverse effects. The information from that monitoring can be essential to assess the extent of any such adverse effects.
- Time frames should be specified for compliance with other conditions where appropriate. For example, “A noise survey in accordance with ANSXYZ is to be carried out at least 30 days prior to the commencement of any physical site works; Landscaping shall be carried out in accordance with attached Plan XYZ within six months of completion of ABC”, etc. There must not be any ‘gaps’ in the sequence of requirements (eg, requiring monitoring to be undertaken at a specific time, the results to be interpreted by a specifically qualified person, and those results provided to the council after a specified time).
- It is appropriate to refer to an appropriate council job title in a condition rather than just the council or the chief executive. For example, “The monitoring report specified in condition X shall be provided to the AB Council, Attention: Environmental Compliance Manager by 31 August each year.” Contact details can be useful in an advice note to highlight who to contact if the consent holder has any queries. However, unless a consent is for a very short term, it is not generally appropriate to provide any more specific individual contact information because of staff and organisational changes that can occur over the long term.
- Use advice notes if necessary to explain conditions or to highlight other important legal requirements.
- Ensure that conditions requiring a consent holder to “use all practicable methods to…” are only used for minor issues and only where more certain conditions (for example, a requirement to implement specific procedures, technical standards or plans) are not reasonable or appropriate.
- A condition must not affect the consent holder’s legal rights to apply for future resource consents or a change of conditions.
- When specifying environmental quality standards, if possible, use a numerical (eg, less than 50 milligrams per litre total suspended solids), rather than a narrative standard (eg, no conspicuous suspended solids). Unless there is established case law on the meaning of a narrative standard, there would generally be significant potential for debate about exactly what is required by a narrative environmental quality standard.
- If a condition refers to a third party, such as providing a copy of a report to a third party, ensure sufficient information is provided in the consent condition to ensure it provides certainty for the duration of the consent about the contact details.
- Resource consent conditions from different councils or separate consents from the same council that relate to the same development should not be inconsistent with each other. Joint council hearings of consent applications enhance the ability to coordinate decisions and conditions. It is generally preferable for a specific effect to be controlled in detail by the most specific consent. For example, a district council may be satisfied that dust effects relating to a development will be comprehensively addressed via regional council discharge permit conditions and not place any conditions relating to dust on the district council land use consent. If there are conditions relating to the same issue on both council’s consents they must not conflict with each other.
- Sometimes one issue such as contaminated soil management may be addressed by both district council and regional council land use consents but for separate effects, for example, onsite human health and groundwater quality management. Operational protocols may also be needed between councils to ensure that compliance monitoring is not duplicated.
- Where necessary, incorporate a glossary of definitions with the consent.