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Lock it in – safeguarding permitted activities in resource consents: Marlborough District Council v Zindia

Home Insights Lock it in – safeguarding permitted activities in resource consents: Marlborough District Council v Zindia

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Contributed by: Daniel Minhinnick, Simon Pilkinton and Tom Atkins

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Published on: June 18, 2020

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Can permitted activities form part of a resource consent and enjoy protection from subsequent plan changes? The High Court has confirmed that they can. The High Court's discussion of how this can occur will be of interest to both existing consent holders and consent applicants alike.
 
The decision – Marlborough District Council v Zindia [2019] NZHC 2765 – involved enforcement action by Marlborough District Council that challenged Zindia's reliance on its existing land use consent to authorise forestry harvesting. Harvesting required consent under a new rule under the Proposed Marlborough Environment Plan.
 
Zindia was granted resource consent for preparatory works required to enable commercial forestry activities on Arapaoa Island in the Marlborough Sounds. At the time consent was granted, commercial forestry harvesting was a permitted activity under the Marlborough Sounds Management Plan. The Proposed Marlborough Environment Plan was subsequently notified. This included a rule making commercial forestry harvesting a restricted discretionary activity. When Zindia commenced harvesting, Marlborough District Council issued an abatement notice ordering the harvesting to cease, on the basis that Zindia did not have resource consent to breach the new rule relating to commercial forestry.
 
The Environment Court cancelled the abatement notice on appeal and the Council appealed that decision to the High Court. In considering whether Zindia could rely on its existing land use consents to undertake forestry harvesting, the High Court provided useful clarification on the law relating to permitted activities and when they fall within the scope of resource consents.

Scope of resource consents and permitted activities

The High Court confirmed that resource consent applications should be viewed holistically. The High Court also confirmed the established position that permitted aspects of a development proposal must be considered and assessed as part of resource consent applications (at least from a cumulative effects perspective). Importantly, the Court went on to confirm that individual activities forming part of an overall development that are permitted at the time consent is granted can therefore come within the scope of the original consent and continue to be authorised by it. That will provide protection for those activities from any subsequent new plan rules that would otherwise trigger consent requirements. However, this will depend on whether the permitted activity was expressly considered and its effects assessed as part of the application process.
 
In determining whether Zindia's existing land use consent authorised harvesting, the Court looked to the purpose of the consent, as described within the consent and its conditions, as well as the consent application and its supporting documents. The Court emphasised that only publicly available information should be considered in this assessment.
 
Ultimately, the High Court found that Zindia could not rely on its existing consent to authorise harvesting. The purpose of the consent, when considering Zindia's application documents, was for preparatory works for forestry harvesting, rather than harvesting itself. The Court highlighted the lack of consideration of harvesting effects in Zindia's application, and held that the conditions dealing with harvesting matters had been "tacked on" in response to community engagement, rather than forming part of the scope of the consent application itself.

"Bundling" permitted activities

In its discussion, the Court considered whether permitted activities can be "bundled" into a resource consent application. The Court found that it is common sense to consider multiple activities under a plan in a single resource consent application. Rather than applying separately for a certificate of compliance for permitted activities, applicants could include permitted activities alongside other activities in a resource consent application. The cumulative effects of the entire proposal, including the permitted aspects, should be considered, in addition to the specific effects of those activities requiring consent.
 
However, the Court held that this does not amount to "bundling" of permitted activities into an application. This is because permitted activities can be undertaken as of right, and ultimately are not within the jurisdiction of a consent authority to approve or decline through the resource consent process. This distinction should be made in applications that include permitted activities amongst the various activities being considered.

Comment

The decision highlights the ability to protect the permitted components of a proposal from subsequent rule changes that might otherwise trigger new consent requirements. To gain protection, the permitted components must be fully captured within the application, including an assessment of their effects in the AEE and (where appropriate) measures to mitigate those effects. While it may seem burdensome to assess permitted activities in any detail, given these can be undertaken as of right, doing so at the application stage can protect these aspects from potential issues arising from a subsequent plan change that introduces new consenting requirements.
 
Where a proposal is already consented and a new rule comes into effect introducing a new consenting requirement for a previously permitted activity, the High Court has now made it clear that the consent holder may not need to seek an additional consent for this activity. Depending on how the proposal was framed and assessed under the resource consent application, the consent holder may decide to proceed on the basis that the previously permitted activity is authorised under their existing consent. This will involve careful assessment of the application and supporting material. The consent holder does not necessarily have to seek the view of the relevant consent authority in undertaking this analysis (although it may be prudent to do so in certain circumstances).
 
In our view, the Zindia decision is particularly useful in the context of regional activities that become subject to a new consenting requirement. This is because the RMA's existing use rights provisions require that for previously permitted regional activities, consent must be obtained for that activity within six months of a new regional rule requiring consent becoming operative, even where the relevant activity has been lawfully established (potentially for many years). Following Zindia, this requirement to obtain a new consent may not arise in respect of previously permitted regional activities, provided those activities fall within the scope of an existing regional resource consent.
 
If only a small part of a proposal triggers consent requirements, the tendency has always been to focus the resource consent application narrowly on the specific matters requiring resource consent. However, there may now be situations where it is preferable to frame the consent application more widely to include the main permitted aspects within the scope of consents granted. This will require careful consideration as to whether this approach is appropriate for the particular proposal, keeping in mind there will be some risks to specifically raising the potential effects of the permitted aspects of the proposal. But in some cases it will be beneficial to adopt this approach to protect the main permitted aspects of a proposal, and avoid a situation such as what Zindia found itself faced with in this case, where its consent for preparatory works did not authorise the main forestry harvesting activity.

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