Resource consents and processes

 When is a resource consent required?

The environmental impacts of activities are primarily controlled by the Resource Management Act through the requirement to apply for resource consents as well as through any conditions for permitted activities included in the relevant regional or district plan.

A resource consent provides permission to carry out an activity that would otherwise contravene section 9, 11, 12, 13, 14, 15, 15A or 15B of the Resource Management Act, so long as it complies with any conditions attached to the consent.

The Resource Management Act classifies activities into six primary categories: permitted, controlled, restricted discretionary, discretionary, non-complying and prohibited. ⁷⁶⁹  In addition, there is a 'protected customary right' category applying to activities, uses or practices established in accordance with the requirements under the Marine and Coastal Area (Takutai Moana) Act 2011.

These different categories determine aspects such as whether a resource consent is required before carrying out the activity, what will be considered when making a decision on a resource consent application and whether a resource consent must, may or may not be granted.

Rules in regional and district plans determine within which category an activity falls.

Permitted activity

A permitted activity can be carried out without the need for a resource consent so long as it complies with any requirements, conditions and permissions specified in the Resource Management Act, in any regulations, and in any applicable plans or proposed plans. A building permit will usually still be required if the activity is a building. ⁷⁷¹

Controlled activity

A controlled activity requires a resource consent before it can be carried out. The consent authority must grant consent for a controlled activity, unless: ⁷⁷²

• The activity is likely to have adverse effects that are more than minor on the exercise of a protected customary right and no exception applies ⁷⁷³
• For a subdivision consent there is significant risk from natural hazards, or there is insufficient legal and physical access to each proposed allotment to be created by a subdivision. ⁷⁷⁴
• The consent authority can impose conditions on the consent, but only for those matters over which the council has reserved control in the relevant plan or over which control is reserved in national environmental standards.  The activity must also comply with any requirements, conditions and permissions specified in the Resource Management Act, regulations or relevant plan. ⁷⁷⁵

Restricted discretionary activity 

A restricted discretionary activity requires a resource consent before it can be carried out. The consent authority can exercise discretion as to whether or not to grant consent, and to impose conditions, but only in respect of those matters over which it has restricted its discretion in the plan or over which discretion is restricted in national environmental standards or other regulations. ⁷⁷⁶  The activity must also comply with any requirements, conditions and permissions specified in the Resource Management Act, regulations or relevant plan. ⁸⁴⁷

Discretionary activity

A discretionary activity requires a resource consent before it can be carried out. The consent authority can exercise full discretion as to whether or not to grant consent and as to what conditions to impose on the consent if granted. ⁷⁷⁷  An activity is discretionary if: ⁷⁷⁸

• The plan identifies it as discretionary
• A resource consent is required for the activity but the plan fails to classify it as controlled, restricted discretionary, discretionary or non-complying
• The activity is described as prohibited by a rule in a proposed plan which is not yet operative

A discretionary activity must also comply with any requirements, conditions and permissions specified in the Resource Management Act, regulations or relevant plan. ⁷⁷⁹

Non-complying activity

A non-complying activity requires a resource consent before it can be carried out. A resource consent can be granted for a non-complying activity, but first the applicant must establish that the adverse effects of the activity on the environment will be minor or that the activity will not be contrary to the objectives of the relevant plan or proposed plan (the ‘threshold test’). Any effect on a person who has given written approval to the application will not be considered. In addition, the consent authority may disregard an adverse effect of the proposed activity if the plan permits an activity with that effect (the 'permitted baseline' test). ⁷⁸⁰

If the threshold test is met, the consent authority can exercise full discretion as to whether or not to grant consent and as to what conditions to impose on the consent if granted. ⁷⁸¹  A non-complying activity must also comply with any requirements, conditions and permissions specified in the Resource Management Act, regulations or relevant plan. ⁷⁸²

Non-complying activity status is a way for a council to signal that activities will be subject to a greater degree of scrutiny and indicates to the community areas where some activities are unlikely to be appropriate. ⁷⁸³

Prohibited activity

A prohibited activity may not be carried out. In addition, no resource consent can be sought or granted to authorise the activity. ⁷⁸⁴  Parties wishing to carry out a prohibited activity must apply for a change to the plan to reclassify the activity.

An activity does not need to be forbidden outright, with no contemplation of any change or exception, before prohibited activity status is appropriate. Prohibited activity status may be appropriate where the council wishes to take a precautionary approach in light of insufficient information. ⁷⁸⁵  However, if the council has sufficient information to undertake an evaluation of an activity when preparing a plan it should not impose prohibited activity status in order to defer undertaking that assessment until a specific application is lodged. ⁷⁸⁶

Restricted coastal activity

Policy 29 of the New Zealand Coastal Policy Statement 2010 provides that the Minister of Conservation does not require any activity to be specified as a restricted coastal activity in a regional coastal plan. Local authorities have been directed to amend documents necessary to give effect to this policy as soon as practicable, without using the process in Schedule 1. Most, if not all, local authorities have now removed restricted coastal activities.

Protected customary right

The Marine and Coastal Area (Takutai Moana) Act 2011 defines a protected customary right as a right that: ⁷⁸⁷

a)      has been exercised since 1840; and
b)      continues to be exercised in a particular part of the common marine and coastal area in accordance with tikanga by the applicant group, whether it continues to be exercised in exactly the same or a similar way, or evolves over time; and
c)       is not extinguished as a matter of law.

A protected customary right relating to a specified part of the common marine and coastal area may be recognised by an agreement between the protected customary right group and the responsible Minister on behalf of the Crown or an order of the High Court.

Protected customary rights can be carried out without a resource consent irrespective of any restrictions under the Resource Management Act. However, they must be carried out in accordance with tikanga, any terms specified in the order or agreement and any controls imposed by the Minister of Conservation. ⁷⁸⁸

Fast track applications and boundary activites

An application for resource consent qualifies as a fast-track application if:

• The application is for an activity that is a controlled activity (but no other activity) under a district plan (other than a subdivision); and

• The application includes an electronic address for service. ⁵¹⁴⁹

A boundary activity is an activity that needs resource consent because of application of one or more boundary rules (a rule controlling the distance between a structures and a boundary or the dimensions of a structure in relation to a boundary) but no other district rules and no infringed boundary is a public boundary.

A special resource consent process applies to each. 

Resource consent exemptions

The Resource Management Act provides exemptions from the requirement to obtain resource consent for boundary activities and marginal or temporary rule breaches. 

Boundary activities are activities that only require resource consent due to the infringement of one or more boundary rules and no infringed boundary is a public boundary. Boundary rules are district rules relating to the distance between a structure and a property boundary, or the dimensions of a structure in relation to its distance from a boundary (e.g. yard setbacks and recession planes). Boundary activities are permitted activities if written approval is obtained from each owner of an allotment with an infringed boundary. You must provide the following:

• A description of the activity
• A plan of the site and proposed activity
• The full name and address of each owner of the site
• The full name and address of each owner of an allotment with an infringed boundary

The council must confirm that the activity is a permitted activity, or not, within 10 working days. A boundary activity exemption lapses if it is not used within 5 years. ⁴⁵¹²

With regards to marginal or temporary breaches, councils have a discretionary power to treat an activity as permitted if:

• The activity would be permitted, except for a marginal or temporary non-compliance with the RMA requirements; and
• Any adverse environmental effects of the activity are no different in character, intensity, or scale than they would be if there was no non-compliance; and
• Any adverse effects of the activity on a person are less than minor.

It is likely this process will be used at the building consent stage where marginal or temporary planning infringements are identified, or when a resource consent application is received that meets the requirements set out above. ⁴⁵¹³

Last updated at 9:51AM on August 23, 2021