New Statutory requirements for consent conditions

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New Statutory requirements for consent conditions

New Statutory requirements for consent conditions

Thursday 23 November, 2017

Section 108AA of the Resource Management Act 1991 (“the RMA”) was inserted as part of the recent resource legislation amendments and came into effect on 18 October 2017. The new section introduces restrictions which limit the scope of conditions that may be imposed on a resource consent, in addition to the requirements of sections 108 and 220.

Previously, consent authorities had wide discretion to implement conditions they considered appropriate under section 108 of the RMA. In the absence of a statutory limit on the nature of conditions that could be imposed, it was left to the Courts to define parameters. The Newbury test requires that to be valid, a condition must:

Be for a resource management purpose, not for an ulterior one;
Fairly and reasonably relate to the development authorised by the consent to which the condition is attached;
Not be so unreasonable that a reasonable planning authority, duly appreciating its statutory duties, could not have approved it; and
Not involve an unlawful delegation of the consent authority’s duties.

The Supreme Court provided further guidance with regard to the second limb of the test in Waitakere City Council v Estate Homes Limited [2006] NZSC 112 holding that a condition need not be essential for the development’s purpose. Rather, there must be a ‘logical connection’ between the proposed development and a condition of consent. Further, this connection does not have to relate to the effects of the proposed development.

Under the new provision, a consent authority can only include a condition on a resource consent if:

The applicant agrees; or
The condition is directly connected to an adverse effect of the activity on the environment and/or an applicable district or regional rule or environmental standard; or
The condition relates to administrative matters that are essential for the efficient implementation of the relevant resource consent.

Section 108AA provides greater certainty with the introduction of statutory limits on the nature of conditions that can be imposed and may be characterised as a refinement to the approach under Newbury. The specific requirement that the condition be directly connected to an adverse effect of the activity on the environment is a change to the approach in Waitakere but nevertheless provides greater certainty for applicants and consent authorities alike as to the scope of conditions which may be imposed. The inclusion of s108AA(a) essentially codifies the well-known Augiers principle whereby an applicant can offer up a conditions which may otherwise be considered “unreasonable” (or unlawful). We will watch with interest for the issue of any caselaw on section 108AA and provide a report in subsequent issues of this brief.

Please contact Bridget Parham if you want to learn more about the issues discussed in this article.