From principles to practice
Basic principles
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.
Plain English
Check whether:
- your language is 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).
- you have chosen plain English. For example, when requiring a house extension to be painted the same as the house, say “the same as” rather than “congruent”.
- a layperson can understand the condition. Get someone who isn't a planner to see whether they can understand it. Remember that any person under section 316(1) of the RMA can bring proceedings to enforce compliance with a consent and its conditions. And a consent holder is often a layperson without planning experience.
Financial contribution conditions
Check that the amount you are seeking:
- can be justified in terms of the purpose of the contribution
- is calculated according to the formula in the operative plan
- is fair, reasonable and necessary in terms of the provisions of the plan
- is subject to a financial contribution condition authorised in the operative plan.
Future management plans
Check that the management plan condition:
- supplements the other conditions by detailing the ways in which the consent holder will comply with certain conditions
- details only those day to day operating procedures that will make sure that the consent holder can comply with the condition
- is not written so that in effect the management plan is an additional condition determined after the hearing.
Check that you have not reserved your discretion to accept or decline the management plan.
Advice notes
Check that your conditions:
- do not relate to the Building Act or building consents
- do not relate to compliance with other legislation
- do relate to avoiding, remedying and mitigating possible adverse effects of the activity.
It is good practice to have a separate section called Advice Notes, or to include the advice notes in the covering letter to a decision rather than in the report or consent conditions section.
Standard conditions
Check that your standard conditions are:
- effective, enforceable and fair
- appropriate for the consent applied for
- relevant to mitigating the effects of the proposal.
Reminder
- Conditions cannot have the effect of negating or frustrating the consent granted.
- Conditions should not address deficiencies in the application.
- Conditions that simply restate the existing statutory or bylaw obligations and conditions whose performance is beyond the consent holder’s ability or control are meaningless and unnecessary.
Check that your conditions:
- can be performed by the consent holder
- specify the compliance time, any review time and have only approval or certification remaining
- are related to the application documents and resource consent documents
- identify any plans which are the basis for the condition
- contain the required level of compliance with the plans – whether general or specific
- satisfy the statutory powers and requirements relevant to the application and the type of consent (in particular sections 104, 105, 106, 107, 108, 116, 123, 128, 134, 220)
- have appropriate timeframes for carrying out the conditions, for example landscaping, fencing, and roading
- are for an appropriate duration. Does there need to be a condition specifying a different lapsing period from the standard two years under section 125?
- specify the time in which the condition will be reviewed and that the council may undertake the relevant review rather than will undertake it (see Queenstown Adventure Park (1993) Ltd v. Queenstown Lakes District Council s(C 96/94))
- specify the technical standards in full unless the standards are specified in a statutorily recognised document such as a New Zealand Standard
- clearly state what is intended so that an ordinary person understands what is meant and required, without there being any ambiguity or inconsistency
- are justified by the plan, especially when considering imposing a financial contribution condition
- are fair and reasonable, and that you can justify the amount of the financial contribution imposed
- are fair and unambiguous.
