Other important considerations
Basic principles
When you are drafting conditions always consider:
- the purpose of the RMA
- the particular circumstances in which consent will be granted
- any special meanings or terms of the particular industry
- keeping the language clear and simple.
For case law on this point, see New Zealand Post Ltd v. Moore 1992 1 NZRMA 213; Walker v Queenstown Lakes District Council (W26/97).
Interpretation
Difficulty interpreting conditions is likely to result in difficulty complying with and subsequently enforcing the condition.
Conditions must be interpreted on their face value and according to their plain meaning, or by resort to documents expressly incorporated into the condition.
Write clear and specific conditions
The consent holder and the consent authority must both be clear about their obligations under the consent (Wood v. Selwyn District Council (C35/94)). And these obligations need to be understood by more than just the immediate consent officer and the applicant; they need to be interpreted and understood over time.
In Bitumix v. Mt Wellington Borough Council [1979] 2 NZLR 57, the High Court stated that specificity and clarity are the two tests of enforceability.
Make sure all parties are certain
When a condition is certain the consent holder, the local authority and any interested parties can be sure of what is required by the conditions and the obligations the consent holder has.
The Environment Court reinforced the need for certainty and clarity in Marchant v. Marlborough District Council (W22/97). Judge Kenderdine commented at page 14:
It is our conclusion that the nature of coastal permits, along with other resource consents which may be transferable, reinforce the need for resource consents under the Resource Management Act 1991 to be framed with certainty and clarity. Enforcement orders may be required to enforce their terms and conditions at some later stage and are part of the resource management process in this regard… Clarity in drafting consents is of prime importance. The permissive nature of the consent is to make the opportunity of undertaking an activity available. Further, the terms and conditions of a resource consent become mandatory only when the consent is exercised.
Example 1 – The dwelling house shall be painted in an “appropriate” colour.
It’s impossible for a consent authority to enforce this condition as it does not indicate the colour that is required.
Example 2 – The external treatment of the dwelling house shall reflect the natural surroundings within which it is located.
In a case where a condition similar to this was placed on a consent the owner complied by placing mirrors around the exterior of the house in order to comply and pass the final compliance inspection.
Financial contribution conditions can recover costs of infrastructure
Financial contribution conditions set out to recover the costs of providing infrastructure for development.
They can also provide for the recreational needs of the community as a result of increased development in the area.
Financial contribution conditions authorised by operative plan
If the plan is an operative plan under the First Schedule to the RMA, financial contribution conditions are allowed under the following circumstances:
- The condition will avoid, remedy or mitigate the adverse effects of the activity.
- The condition is authorised by an operative plan.
- The purpose of the contribution is specified in the plan.
- The level of contribution is determined by a formula described in the plan.
- The condition requires a contribution of money, land or a combination of the two.
Local Government Act applies if no operative plan
If there is no operative plan under the First Schedule to the RMA, the transitional provisions of the RMA allow for a financial contribution to be imposed under the strict parameters of the Local Government Act 1974.
The Local Government Act includes provision for:
- public utilities
- reserves
- roading
- development levies
- reserves contributions.
The High Court has recently held – in Housing New Zealand Ltd v. Waitakere City Council (unreported judgement, HC Auckland, AP41-SW00, Glazebrook J, 17 July 2000) – that reserve contribution conditions can be imposed on subdivision consents even when the subdivision itself does not create additional demand.
However, this will only be the case if the condition is imposed under the Local Government Act 1974 and not when there is an operative plan under the First Schedule to the RMA in place.
Conditions must not impede other laws
Conditions should not impose a restriction on a specific statutory procedure or provision. If a procedure is specifically provided for in other legislation, a consent authority cannot overrule that procedure by imposing a condition on a consent.
Case law
In Waikato District Council v. Transit (A150/98) Judge Whiting commented at paragraphs 28 and 32:
Clearly the general statute should not override the specific statute. The Public Works Act 1981 specifically provides for the method, which Transit currently adopts. The Resource Management Act is a general statute on resource management, which may also apply to the situation… In our view, condition 2 as originally drafted is inconsistent with Transit's and the Crown's right to dispose of the land under the provisions of the Public Works Act, and accordingly the Public Works Act prevails in the circumstances as the specific statute.
Reinforced by Building Act case
This comment is reinforced by the Building Act case, which deals with an application by Portmain Properties (No 7) Ltd [1998] NZRMA 56.
Conditions can be agreed in order for the consent to be approved
If an applicant agrees to do something in order for the consent to be granted, this becomes an agreed condition.
(See Augier v. Secretary of State for the Environment (1978) 38 P & CR 219 (QBD).)
This commonly happens at a consent application hearing.
If a submitter opposes the inclusion of an agreed condition the submitter can appeal that condition or decision to the Environment Court.
Agreed conditions must be relevant
Remember that conditions can only be imposed if they are relevant to the environmental effects of the activity.
There is no obligation to impose conditions that are agreed to between the applicant and submitters – these are private agreements.
Example of an agreed condition – money for car parking
If an applicant agrees to pay a financial contribution for car parking, it may be appropriate for the council to grant consent given that the applicant has paid money so the council can provide car parking to overcome any adverse effects of the proposal. This is an agreed condition.
Agreed conditions are only valid if they are included in the consent authority’s decision. (see A-G v. Codner [1973] 1 NZLR 545)
Future consent applications must not be affected by a condition
Conditions cannot override the statutory ability to apply for a resource consent in the future.
Case law
In Upper Clutha Environment Society Inc v. Queenstown Lakes District Council (C112/98) Judge Jackson commented at paragraph 7:
We accept that conditions can largely circumscribe future subdivision (eg by imposing minimum areas) but we do not believe they can bluntly prevent a subdivision consent being applied for and properly considered by the Council. Any restrictions forbidding subdivision are properly matters for a district plan or for a volunteered covenant by the subdivider.
Conditions can require a future management plan
Conditions can’t reserve the power to approve conditions outside the formal resource consent process.
Conditions must not unlawfully delegate or defer matters essential to the consent itself.
A condition must be enforceable and certain from the time the consent is granted.
It must also be scrutinised with other conditions to the consent. This includes the future approval of a management plan. (See Macraes Mining Co Ltd v. Waitaki District Council (C14/94); Turner v. Alison [1971] NZLR 833.)
Sometimes it’s difficult to draft a management plan before the hearing. In this situation, the Court has determined that a future management plan can be required by a condition to a consent where the management plan provides detailed information as to how the consent holder will comply with other conditions to the consent.
Judge Skelton noted in Wood v. West Coast Regional Council (C127/99) at page 11:
A management plan can be prepared pursuant to section 108(3) of the Act, but its purpose should be to provide the consent authority and anyone else who might be interested, with information about the way in which the consent holder intends to comply with the more specific controls or parameters laid down by the other conditions of a consent. So, for example, in the case of noise, specific noise control limits can be laid down but the way in which these are to be complied with is for the consent holder who can be required to provide a management plan.
Management plan example
- Dust
- The operation of the facility shall not create a dust nuisance beyond the boundary of the site. A dust nuisance is deemed to have occurred when there is visible evidence of suspended solids in the air.
- The applicant is to use all effective measures to ensure that dust is not tracked or otherwise taken off the site. The methods of controlling this shall be addressed in the management plan.
- Management plan
The consent shall be exercised in accordance with a management plan prepared by the applicant. The management plan shall include, but is not limited to, the following:- reporting and auditing
- complaints handling and reporting procedure
- all measures that will be undertaken to mitigate potential dust effects to achieve compliance with condition section 6 (a) and (b).
Standard conditions are a useful starting point
Many councils have standard conditions for the same types of activity for similar types of resource consent applications. Standard conditions often relate to:
- noise
- earthworks
- tree work
- subdivision consents.
Standard conditions can:
- be efficient
- provide consistency and certainty for applicants
- help mitigate the potential and actual adverse effects on the environment
- be fair to each applicant.
Standard conditions must be relevant
Standard conditions must be relevant to the activity applied for. They must relate to the environmental effects of that activity.
Case law
In Arnott v. North Shore City Council (A1/2000), His Honour Judge Whiting commented at page 7:
In our view a consent authority in exercising its discretion to impose conditions which are reasonable should approach this task by considering the particular circumstances of each application. The Council's approach in this case smacked overly of a standardised approach rather than giving adequate recognition to the particular circumstances of the case.
Advice notes are useful but are not consent conditions
Advice notes remind consent holders of other standards and requirements related to the consent and of their obligations under the consent.
They are often used to advise about the Building Act 1991 and other legislative requirements.
Advice notes commonly provide information on:
- the need to get other consents and permits
- the expiry date for the resource consent
- the obligation to have a copy of the consent on site at all times
- any other obligations the consent holder may have.
Don’t include issues relating to a building consent and compliance with the Building Act or any other legislation as conditions to the consent.
Advice notes are not enforceable and are not conditions of the consent.
Third party rights must not be affected
Consent conditions cannot require the agreement or compliance of a third party, or infringe their legal rights (see Mackay v. North Shore City Council W 146/95; Campbell v. Southland District Council W 114/94).
Consent conditions must not infringe on the rights of earlier resource consents, as recently held by the High Court in Dart River Safaris Ltd v. Kemp (unreported judgement, HC Wellington, AP600/2000, Panckhurst J, 15 June 2000):
DRSL has legal rights by virtue of its resource consent. I do not accept that such rights may be deprecated because they are not founded in land law. They remain rights which may not be denied or eroded by imposition of a condition on another person's resource consent.
