The Resource Consent Approval Process and the Use of Consent Conditions

 

Introduction

  1. The following paragraphs are intended to be a guide to conditions, with a particular focus on conditions which address noise. The management of the effects of noise is not straightforward and it hoped that this section of the web site can provide assistance in the development of effective conditions.
  2. Essentially a resource consent may be granted on any condition that the consent authority considers appropriate (section 108 of the Resource Management Act 1991 (RMA). Resource consents are granted by a consent authority (part of a local authority delegated power under the RMA to grant resource consents) subject to a range of conditions. Conditions apply standards, terms, restrictions or prohibitions.
  3. Conditions are enforceable. This means that a local authority will check to see if condition is being complied with. The RMA contains many enforcement powers to address non-compliance.

Section 108

  1. Sections 108(2) to (4) set out particular matters that may be addressed in conditions as follows:
    • financial contributions, bonds, requirement that services or works be provided and covenants;
    • requirements specific to certain activities which require consent (discharge, subdivision, reclamation, coastal discharges or occupation);
    • to provide information to the consent holder regarding the exercise of the consent which may include monitoring and reporting information derived from measurements, samples, surveys, investigations etc.
  1. The Courts have held that section 108 enables consent authorities to impose a wide range of conditions to promote the purpose and principles of the RMA provided that the conditions are not contrary to the matters listed in section 108(2) and (3). Effectively the consent authority has the power to impose any condition that is considered appropriate in the circumstances (Fletcher Challenge Forest Ltd v Whakatane District Council, EnvC A093/99 and Carter Holt Harvey Ltd v Te Runanaga o Tuwharetoa ki Kawerau [2003] 2 NZLR 349).

Limits on the power to impose conditions

  1. It is important to note that this discretion is subject to some basic qualifying principles as follows:
    1. that the condition fairly and reasonably relates to the purposes and principles of the RMA and relevant planning instruments;
    2. that the condition fairly and reasonably relates to the development or activity proposed and is not imposed to achieve some ulterior objective;
    3. that the condition is one that a reasonable consent authority (duly informed) might choose to impose. (Fletcher Challenge Forest, as per above at p5).
  1. These three mattes are commonly referred to as the ‘Newbury Tests’ as they are based on a 1980 House of Lords (UK) decision. In New Zealand, the Courts apply the Newbury Tests to conditions but also must consider whether the conditions are appropriate to achieve the purpose of the RMA.
  1. In addition to the Newbury Tests the Courts have also held conditions to be invalid if:
    1. It is outside the power of the consent authority. This means that the consent authority did not have the power under the RMA to impose the condition and therefore it is ‘ultra vires’);
    2. It involves a delegation of the local authority’s duties;
    3. It is uncertain – that is it cannot reasonably be given any meaning;
    4. Is unenforceable (for example the condition requires a third party to do something);
    5. Would nullify or frustrate the grant of consent.
  1. The Quality Planning web site sets out six key principles which need to be adhered to when drafting conditions as follows:¹
    1. Within a council’s powers under the RMA
    2. For a resource management purpose
    3. Certain – Consent conditions must be certain so the consent holder, the council and any layperson viewing the consent have no doubt about what is required by the conditions and the obligations the consent holder has. It is important conditions are drafted in plain English and can be readily interpreted and understood by council officers monitoring the consents and subsequent consent holders
    4. Relevant to the subject matter of the consent
    5. Fair, reasonable and practical
    6. Exclusively between the consent holder and the consent authority.

Common problems or issues with conditions

  1. As highlighted above, conditions are not straightforward. Some common problems or issues with conditions are as follows:
    • Condition lacks a documented (and sound) purpose: a key thing to remember when addressing a condition – either as an applicant or someone seeking to impose a condition (local authority planner or a submitter to the resource consent process) – is what is the purpose of the condition? As outlined above, documenting the underlying purpose or intent of the condition is very useful in ensuring that it the consent condition is valid and effective. For example, the documented purpose of a consent condition might be that a proposed new house near an existing motorway must be quiet enough to sleep in and conditions can then be directed to this purpose.
    • Wording of the condition lacks precision: a condition must be clear and precise in what it expected. Ambiguous or vague wording has the potential to make a condition meaningless and cause contention between parties resulting in legal battles. For example, a Leq noise limit (averaged noise limit) should include the time period it is to be averaged over.
    • Detail not there: the purpose of the condition needs to be tied to clear objectives that are carefully spelt out and references made in sufficient detail. For example, if an approval is required of a particular plan related to a part of stage of the development, the condition needs to refer to the matters that the plan needs to address, who the plan is to be prepared by (if appropriate relevant qualifications), when the plan is to be submitted by and to whom, who is to review and approve of the plan (position of the relevant officer), the timeframes involved and what happens if the plan is not satisfactory. It is also important to set out the version of plans or documents relied upon in the condition and also be specific about locations (if need be refer to a map defining the area subject to the condition).
    • Conditions are not consistent: all the conditions of the grant of consent need to work together to make sense as one integrated package. Problems occur when one condition is inconsistent with another condition (or conditions) as this can be the source of contention between parties. Conditions need to be cross-referenced and checked for internal consistency.
    • Future obligations are not clear: conditions can ‘fall over’ when they fail to be specific about an ongoing obligation on the consent holder to ensure that effects of the development are managed over the duration of the consent. For many noise generating activities, such as a quarry or dog boarding kennels for example, the conditions of consent will restrict the activity from any expansion (for example hours of operations or number of kennels). Other conditions may require a noise specialist to measure noise levels once the activity is established to determine whether the noise generated by the activity is consistent with what was predicted in the resource consent application.

Discussions with the consent authority prior to applying for consent

  1. When a resource consent application is being prepared, it can be useful to encourage informal discussions between the prospective applicant and the consent authority. A few practical tips:
    • Approach the Council’s duty planner. The planner can forward specific queries to other officers, particularly Environmental Health Officers in the context of noise matters.
    • Discussions with relevant officers can assist in the design of a project and can be very useful in assisting with the development of conditions.
    • Accurate notes should be kept of all pre-application meetings with Council planners and these notes may be included as an appendix in the application.

Standard conditions

  1. The consent authority will have developed a set of standard conditions which apply depending on the nature of the resource consent. These conditions can be of great benefit in ensuring the consistency of decisions and speeding up the processing of planning applications. Nevertheless, it is very important to ensure that each condition is assessed in relation to the specific project and whether the condition is appropriate in the circumstances.

Durability of consent conditions

  1. Conditions are important in that they can apply indefinitely. For a land use consent, the conditions will bind any successors in title as land use consents ‘run with the land’ unless expressly stated otherwise. (There is an exception however for activities occurring in the beds or lakes or rivers.) The other three types of resource consents which are referred to as permits (coastal, water and discharge permits) do not run with the land and a transfer from the consent holder to another person needs to be approved by the consent authority.

Examples of conditions addressing the effects of noise

  1. Conditions addressing noise can be imposed to:
  • Address the effects of noise generating activities such as dog boarding kennels, wind turbines in windfarms, child care centres and the like on surrounding land use activities (particularly residential activity). These conditions are often based on what peoples’ reasonable expectations for noise levels in residential areas are likely to be. Generally, for noise emitting activities, conditions will set noise level standards which relate to hours of operation. For example:
    • The activity shall not exceed the following noise limits:
      • Within the notional boundary of all neighbouring properties
      • Monday to Saturday 6.00 am to 6.00 pm 45 dBA Leq
      • Sundays and Public Holidays 6.00 am to 6.00 pm 40 dBA Leq
      • At all other times 35 dBA Leq
      • Maximum at all times 70 dBA Lmax.
    • Address issues raised by the ‘reverse sensitivity’ of competing land use activities: Reverse sensitivity can be explained as a situation where people are ‘coming to’ a noisy area and wish to use the land in a way that may be incompatible with other land users. For example, a proposal to construct an apartment complex adjacent to a port area with or a rural residential subdivision near to a quarry operation. In these situations, conditions would be imposed on the new land use activity (apartment building or dwelling) regarding building location, screening, insulation of dwellings for sound proofing etc. For example:
      • All habitable rooms in each building used for noise-sensitive activities where the building line of the building is within 40m of the nearest edge of the [xxx] Road carriageway shall be protected from carriageway noise by ensuring the building is designed and constructed to meet an indoor design sound level of 35dBA Leq(24hr) in bedrooms and 40dBA Leq(24hr) in all other habitable rooms. .

Checklist for conditions

  1. The following table may serve as a useful checklist in the drafting of conditions:
Purpose ⇒ What is the condition designed to achieve?
⇒ Is this a sound purpose connected to the proposal?
⇒ Does the condition meet the objective of this purpose?
Scope ⇒ Is the obligation imposed in the condition within the power of the consent holder to achieve and within the powers of the local authority?
⇒ Ensure that the obligation does not delegate the local authority’s duties.
Plans ⇒ Are all plans are correctly referenced?
Relying on specialists ⇒ Do any of the condition require specialist input?
⇒ If so, do the conditions spell out the relevant qualifications and experience required of the specialist?
⇒ Has the condition built-in a check to ensure that the specialist work is being completed by the correct person(s)?
⇒ Is it necessary for a condition to peer review this work?
Internal consistency ⇒ Do the conditions impose obligations that are consistent with one another?
Clear ⇒ Are the conditions written in a way that person not familiar with the application could understand what is required?
⇒ Are there any words that are vague or ambiguous?
Monitoring ⇒ Is the obligation able to be monitored to ensure compliance?
⇒ How will monitoring be undertaken?
⇒ Is it practicable and reasonable to monitor?
⇒ Who needs to undertake the monitoring?
⇒ If there is a specialist who needs to undertake the monitoring, specify the necessary qualifications and methods.

 

Checklist for received specialist acoustic documentation:

  1. A local authority should have good robust systems in place to check the qualifications, competence and integrity of the private sector acoustic engineers it relies upon and the scope of the documentation it receives from them. For example, there is little point in receiving documentation that:
    • does not cover the entire building or relevant area of assessment;
    • attempts to limit the scope of the engineer’s liability;
    • is signed by an engineer that is not independent of the developer/builder;
    • does not show the engineer’s tertiary qualifications in acoustics (and when they were awarded)
    • is from an engineer that is not competent and qualified to proffer the opinion;
    • is from an engineer that does not hold insurance or holds inadequate insurance;
    • has a signature on it that cannot be readily identified; and
    • is from a limited liability company.
  1. In addition, a Council should consider carefully whether the author of any supplied documentation statement is someone who is able to address long term liabilities in the event that the statement is found to be inaccurate.

¹ http://www.qualityplanning.org.nz/index.php/consents/conditions (Date accessed 25 May 2016).