Bundling permitted activities

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Bundling permitted activities

Bundling permitted activities

Wednesday 1 April, 2020

The High Court recently considered whether permitted activities can be bundled with more restrictive activities in a resource consent application. Marlborough District Council v Zindia Limited^{^[1]} was an appeal by the Council against a decision by the Environment Court to cancel an abatement notice issued against the respondent, Zindia.

The abatement notice directed Zindia to cease its commercial forestry operations on the basis that its land use consent did not expressly authorise commercial forestry harvesting; rather it merely permitted earthworks and other specified activities. The Council interpreted the Plan as treating the cutting and removal of trees as a permitted activity under a “vegetation clearance rule” which the Environment Court found was a “strained and unnecessary construction”; rather, the cutting down and removal of trees was clearly within the meaning of “commercial forestry”, classed as a restricted discretionary activity.

The Environment Court held that where one aspect of the bundle of interrelated land uses is classed as a permitted activity, and others are classed as discretionary, the most restrictive activity classification is applied to them all. The Council appealed to the High Court.

Bundling is not appropriate for permitted activities

The High Court stated that bundling was a well-established approach in the consideration and determination of resource consent applications. Where closely related activities had different activity classes, the most restrictive classification would apply to all of them. However, while the Court found that the Environment Court did not err in finding that bundling could apply to a permitted activity where the applicant consented to the bundling, it was preferable to avoid the term bundling when discussing permitted activities because:

Bundling can only occur when a resource consent application comprising multiple activities is submitted. Permitted activities do not require a resource consent.
Bundling proceeds on the basis of the most restrictive activity. Permitted activities are the most permissive of activities under the RMA and these activities would necessarily be excluded from the proposed resource consent if bundled with any other class of activities.
If consent is not granted for a proposed bundle of activities, the applicant can still engage in the permitted activities provided the criteria for each permitted activity is satisfied.
A local authority is only permitted to refuse consent on the basis of matters over which it retains control. It does not retain control over permitted activities in the same way it does for activities that require a resource consent.

Conclusion

The High Court confirmed the long-established principle that it is not appropriate to bundle permitted activities when determining resource consent applications, as permitted activities can occur as of right.

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[1] Marlborough District Council v Zindia Limited [2019] NZHC 2765.