Introduction and legal basics
Consent conditions help manage adverse effects
A resource consent, with its conditions, is an opportunity to do something that would otherwise not be allowed.
Consent conditions are put in place to avoid, fix, or reduce the adverse environmental effects of an activity.
They let the applicant know what they have to do to carry out their consent and how it will be monitored.
This is why the conditions and the way they are written are so important.
What makes a good condition?
Conditions must be:
- within a council's powers under the Resource Management Act 1991 (RMA)
- for a resource management purpose
- certain
- relevant to the subject matter of the consent
- fair, reasonable and practical.
Section 108 allows consent conditions
Section 108 of the RMA allows consent authorities to impose conditions on a resource consent.
Consent conditions may require the applicant to provide:
- cash
- land
- works
- services
- a bond.
Conditions may relate to:
- the design or appearance of structures
- landscaping
- the site layout.
Subsection (1) confers a general power to impose any condition that “the consent authority considers appropriate”.
Subsection (2) lists the type of conditions that may be included with the resource consent.
The legal basics
Under sections 2 and 87 of the RMA, the term “resource consent” means a consent to do something that would otherwise contravene:
- sections 9 or 13 (land use consent)
- section 11 (subdivision consent)
- section 14 (water permit – other than in coastal marine area)
- section 15 (discharge permit other than in coastal marine area)
- sections 12, 14 and 15 (coastal permit – in the coastal marine area).
The term “resource consent” includes any conditions that are imposed on the consent.
Section 2 of the RMA defines “condition” as including “terms, standards, restrictions, and prohibitions”.
So what does section 108 really let you do?
Your power to impose conditions is limited by established legal principles and your obligation to consider certain matters and address certain procedures.
A note on subdivisions
The restriction on subdivision consents under section 108(2)(d) with respect to covenants should be noted. While the effect of section 108(1) is to give councils a wide power to impose conditions “where appropriate”, this is not unlimited.
Section 108(1) cannot be used by a consent authority to generally expand the power provided with respect to the specifically defined provisions of section 108(2).
Four types of activity
Permitted activity – an activity that is allowed without a resource consent if it complies with the provisions specified in the district plan. No further conditions can be placed on it.
Controlled activity – conditions can be placed on a controlled activity as long as they are matters which the consent authority has reserved control over in the district plan. Make sure the conditions only relate to matters that have been provided for in the district plan.
Discretionary (restricted) activity – conditions can be imposed on a discretionary (restricted) activity provided they are matters which the consent authority has reserved control in the district plan. Make sure the conditions only relate to matters that have been provided for in the district plan.
Discretionary (unrestricted) and non-complying activities – you may impose conditions designed to avoid, remedy or mitigate adverse effects on the environment from the proposal.
