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Effect of New or Changed Plan Provisions on Existing Resource Consents - Tue, 21 February 2017

Does the holder of an unimplemented resource consent require a new consent if a new or changed plan provision comes into effect?

With hearings for the Queenstown Lakes Proposed District Plan (PDP) currently taking place, and a number of new provisions taking effect, landowners may well be asking themselves whether having applied for and received resource consent, but not yet carried out the particular activity, they then need to re-apply for consents if the new provisions change the status of the activity.

The recent case of Arapata Trust Ltd v Auckland Council [2016] NZEnvC 236 has addressed that issue and concluded that a consent holder who has not yet carried out the consented activity does not have to re-apply if that activity is affected by the plan change.

The case involved Arapata Trust Ltd (“the trust”) who in October 2015 received resource consent to refurbish and upgrade their commercial building. However before construction took place they were informed by Council in September 2016 that a new consent was required due to the new provisions in the Auckland Unitary Plan. The Trust brought proceedings before the Environment Court seeking a declaration that they could continue with construction under their initial resource consent.

The Court considered the relationship between provisions in the Resource Management Act relating to policy statements and plans, and those relating to resource consents. It acknowledged that s 104 holds that consideration must be given to the relevant planning document. It also noted that resource consents were a means of exempting applicants from particular rules. However it concluded that ultimately a land use resource consent was a consent to “use the land in a particular way” rather than being a mechanism “merely to contravene rules”. Thus it did not matter that the rule had changed; the consent to use the land had already been granted.

The Court also pointed out issues of retrospectivity – if applicants had to re-apply for consent following changes to planning documents it would mean they would be bound by laws that did not exist at the time the application was made. This is contrary to an important rule of law as set out in s 7 of the Interpretation Act 1999.

In the end the Court ruled that Council had erred in their view that a further consent was required, and held that once consent is granted for an activity, applicants can carry out the activity regardless of whether provisions change the status of that activity.

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