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Background information on resource consents and consent conditions

Resource consents (section 2 in the Guide)

The Establishment of a landfill under the Resource Management Act 1991 may require a number of consents from both the relevant regional council and territorial authority. These are likely to include:

  • Regional Council or Unitary Authority
    Discharge Permits - Discharge of contaminants to land, air or water
    Water Permit - the taking, use, damming or diverting of water
    Land-use consent - excavation or filling of land, install bores or culverts
    Coastal permit - if the site is in the coastal marine area
  • District or City Council
    Landuse consent - use of the land for the purposes of a landfill
    Subdivision consent - this may be necessary if the project involves any creation of new allotments, amalgamation of titles, vesting of roads or reserves, or partition of the land into different ownerships.

Issues of note for consents include:

  • Duration of consent - Section 123 of the Resource Management Act 1991 deals with the duration of consent. Subdivision or landuse consents are of unlimited duration, other consents default is 5 years, maximum 35 years.
  • Transfer of consents - Sections 134-7 of the Resource Management Act 1991 deal with the transfer of consents. Most consents relate to a specific site, written notice is required to transfer to another 'person'.
  • Lapsing of consents - Section 125 of the Resource Management Act 1991 deals with the lapse of consents. A resource consent lapses after 2 years unless the conditions state otherwise, it has been given effect to or an application has been made to extend the period.
  • Best practicable option - Section 108 of the Resource Management Act 1991 refers to best practicable option i.e. the best method for preventing or minimising the adverse effects on the environment considering the nature of the discharge, the financial implications and the current state of technical knowledge.

Resource consent conditions (section 3 in the Guide)

Resource consents may be granted with or without conditions. Conditions are generally broken down into the following:

  • Compliance or limit conditions e.g. maximum suspended sediment concentration
  • Design conditions e.g. thickness of landfill liner
  • Operational or process conditions e.g. hours of operation
  • Monitoring conditions e.g. monitoring locations, frequency of sampling
  • Contingency conditions e.g. cease stormwater discharge if leachate is detected
  • Reporting conditions e.g. report annual refuse tonnage
  • Bond/financial conditions - should specify the amount and the circumstances under which it may be used to ensure compliance with the conditions of consent.
  • Mitigation conditions e.g. requirement for riparian planting
  • Review conditions e.g. review of monitoring conditions following baseline monitoring
  • General conditions - common to a number of different consents e.g. qualifications of operating personnel, peer review panel
  • Standard conditions e.g. access to site, administrative charges

Schedules can be attached to consents to incorporate:

  • information reference in more than one consent condition
  • general conditions e.g. landfill management plan, peer review

Landfills are developments that take place over a long period of time. It is therefore necessary to make provision in consents for change and review of conditions. Section 5 of the guide provides more detail.

Enforceability of consent conditions (section 3.3 in the Guide)

General legal principles

A condition must be:

  • For a reasonable resource management purpose - avoid, remedy or mitigate adverse effects on the environment, monitoring
  • Relate to the activity authorised by the consent
  • Not be unreasonable i.e. would a 'reasonable' consent authority have imposed a condition of this type.

Other considerations

Conditions should also:

  • Be straightforward and easily interpreted, using plain language so that a lay person can understand them.
  • Be written with specificity, clarity and accuracy of expression. If a condition is clear and measurable it is possible to determine readily whether or not a condition is being complied with.
  • Be consistent with other legislation
  • Require compliance by the consent holder only

Consent conditions cannot impose conditions relating to future consent applications.

Most landfill consent applications will include a draft management plan. Preparation and approval of a management plan after consent has been obtained is a mechanism for providing information on how the consent holder will comply with the conditions of the consent.

Agreed consent conditions

It is generally best practice to circulate conditions to submitters prior to the resource consent hearing. There is no obligation on the consent authority to use agreed conditions.

The doctrine of augier estoppel enables a consent authority to impose a condition that may be ultra vires at the specific request of the applicant and in reliance on the binding undertaking of the applicant not to challenge the validity of that condition.

Last updated: 17 September 2007