The principles
Established legal principles govern your general power under section 108(1) of the RMA to impose conditions on a resource consent.
These principles were established by the English House of Lords in Newbury District Council v. Secretary of State for the Environment [1981] AC 578.
- Principle 1 – conditions must be for resource management purposes.
- Principle 2 – conditions must relate to the authorised development.
- Principle 3 – conditions must be reasonable.
Constraint:
- You can’t extend the nature or scope of an application with a condition.
- Consent conditions should not be used to address deficiencies in the application documentation.
- If you can’t determine all of the actual and potential effects of an action, you should ask for more information under section 92 of the RMA.
Principle 1: Conditions must be for resource management purposes
Consider the purpose of the condition and, in particular, how the condition can avoid, remedy, or mitigate any possible adverse environmental effects of the activity.
Case law
Judge Skelton noted in Wood v. West Coast Regional and Buller District Councils (C127/99) at page 11:
In accordance with one of the leading authorities on the subject of conditions Newbury District Council v. Secretary of State for the Environment, a condition is valid if it is for a resource management purpose; fairly and reasonably relates to the consent to be granted; and is reasonable… In this case the parties have redrafted the condition concerning a community trust in a way which we think fulfils the criteria for validity… It specifies the resource management purposes for which the trust is to be formed and the way in which it is to be formed.
Example – Charitable Community Trust
Charitable Community Trust
The consent holder shall establish a Northern Buller Community Charitable Trust (“the trust”). The trust deed shall include the resource management purposes and procedural requirements set out in this condition.
The resource management purposes of the trust are:
- to provide a forum for the provision of information about the operation of the West Coast Coal terminal, and
- to assist in providing for the social and/or economic and/or cultural welfare of the Northern Buller Community. The Northern Buller Community shall include all communities situated south of the Mokihinui River and north of the Orowaiti River.
Conditions that do not meet this test may be unlawful. An example of this might be the imposition of a condition requiring the applicant to provide access to a council reserve when the activity for which consent is sought has no impact on that reserve. Conditions requiring access agreements which are unrelated to the activity in question would also fall within this category. Such conditions would be considered ultra vires as they are not avoiding, remedying or mitigating adverse environmental effects. They relate to property matters that are outside the ambit of the RMA.
Principle 2: Conditions must relate to the authorised development
The condition must relate to the activity which consent has been applied for. You must be able to justify it in terms of the environmental effects of that activity.
Example – imposing a land use condition on a subdivision consent and vice versa
The Environment Court in Brookes v. Queenstown Lakes District Council (C81/94) had the following to say about this type of condition:
There is no need, as we understand from Mr Garland has been
the practice, to impose conditions on the subdivision consent relating
to dwellings. Indeed, not only is there no need to do that, but in
our view conditions such as those are unlawful. A consent to subdivide
is a separate and distinct consent from a consent to erect a dwelling.
The RMA makes this perfectly clear.
However, read this statement in conjunction with section 220(1)(c), which allows limited conditions to be imposed on a subdivision consent, in relation to bulk, height, location of foundations, or height of floor levels of any structure on the subdivided land.
Example – third party seeks condition not related to the development
In Jim Boyd Motors Ltd v. Auckland City Council (W145/96) the consent authority required the consent holder to provide additional street parking spaces even though these were likely to be used by other shops. Judge Treadwell held at page 2:
There is no requirement under the Resource Management Act
1991 or any of the relevant District Plans requiring any applicant
for a resource consent to provide car parking to rectify car parking
deficits for neighbouring properties. Quite apart from the fact that
I consider such a condition ultra vires, it would be grossly unfair
for a person to be forced to provide such a public amenity for the
benefit of others.
This is a clear example of where a third party sought a condition that did not relate to the development in question. The condition required an applicant to provide parking not only for its own proposed activity but also for the surrounding businesses which were not the subject of the application. This did not relate to the development authorised by the consent.
Principle 3: Conditions must be reasonable
To test whether a condition is reasonable, decide whether a reasonable planning authority duly carrying out its statutory duties would have approved it.
The Court would examine whether in the circumstances it considers that no reasonable consent authority could have imposed a condition of this type.
The test is objective and the Court judges the appropriateness or otherwise of the condition. However, the threshold for the Court overturning such conditions is high and it rarely does so on this basis.
Include relevant documents with the conditions
Conditions are interpreted on their face value and according to their plain meaning, or by referring to documents incorporated into the condition.
A recent High Court decision – Red Hill Properties Ltd v. Papakura District Council (unreported judgement, HC Auckland, M2242/98, Rodney Hansen J, 8 February 2000) – found that:
The changes to law and practice which have followed the passing of the Resource Management Act have invited a somewhat more flexible approach to the interpretation of resource consents.
But it is still good practice to expressly incorporate relevant documents into the conditions.
