By: N/A
Published: 3/03/2013
Recent litigation has seen the High Court provide a timely reminder to consent authorities about the scope of their obligations when processing applications for Certificates of Compliance. As the decisions show, these obligations, if left unfulfilled, can result in costly, time consuming judicial review proceedings to the eventual detriment of applicants, consent authorities and affected third parties.

Section 139 of the RMA provides that a consent authority, on request, must issue a Certificate of Compliance ("CoC") if the activity can be done lawfully on the site without resource consent and the appropriate fee is paid. A CoC provides an absolute assurance that a consent authority is satisfied that an activity is permitted under the relevant planning instruments.

A CoC is treated like a resource consent. If there is a change to a District or City Plan which reclassifies an activity from permitted to one that requires a resource consent, a CoC holder may rely on the CoC to continue the activity without having to obtain a resource consent.  A CoC also provides certainty that an activity which complies with a rule in a Regional Plan is permitted. However, if that permitted activity rule changes to a rule that requires a resource consent, the CoC only provides a limited degree of protection and the holder must apply for a resource consent within 6 months of that rule becoming operative if they want to continue the activity.  While there is no requirement to obtain a CoC before undertaking a permitted activity, a CoC preserves the status of the activity in question. That is, a CoC generally protects an applicant against a subsequent change to either a District or City Plan which may require them to then obtain a resource consent.  However, this general protection only applies to District and City Plans. Where there are changes to a rule in a Regional Plan, a CoC holder is required to apply for resource consent within six months of the change becoming operative if they wish to continue to undertake the relevant activity. 

Given their value, information requirements for obtaining a CoC can be demanding. An applicant must provide a consent authority with all the necessary information to demonstrate that a CoC can be issued. If there is insufficient information available to demonstrate that the activity can be done lawfully on the site without resource consent then a CoC cannot be issued.

Two decisions issued by the High Court last year reinforce this position. That is, section 139 requires consent authorities to be wholly satisfied that a proposal can be undertaken legally without a resource consent before issuing a CoC.

The first decision, Turners & Growers Horticulture Limited v Far North District Council, concerned a CoC which confirmed that the establishment of a waste transfer station on land neighbouring Turners & Growers was a permitted activity1.  Turners & Growers were successful in having the CoC set aside. The Court determined that the Council did not have sufficient information before it to make a reasonable assessment of the application. This finding was based on the fact that the Council relied on a "bald assertion" from the applicant that its proposal did not require an air discharge consent. The applicant stated in its application that the Regional Council had confirmed no discharge permit was required. This assertion was not confirmed in writing or by any other particulars such as the time the confirmation was given, on which date, or who gave it.

The Court found that the District Council should have sought more information from the applicant. This would have allowed it to make a reliable assessment of the application. Instead, the failure to seek more information meant that the Council's subsequent reliance on the limited information provided by the applicant had the effect of making its decision unreasonable. The CoC was set aside.

In the second decision, Royal Forest & Bird Protection Society of New Zealand Inc. v Waitaki District Council, Forest & Bird were successful in having a CoC granted to corporate farmers quashed2.  The CoC certified several farming related activities on the property, a high country farm. The CoC contained a condition that the Council accepted that the activities were permitted provided certain District Plan standards were complied with, including the indigenous vegetation clearance standards.

Forest & Bird argued that the Council did not have sufficient information to enable it to be satisfied that the particular indigenous vegetation clearance rules could be complied with. On this basis, it was argued that the Council could not properly assess whether the proposed activities were in fact permitted.

The Court examined the wording of s 139, and the principles developed by corresponding authorities, before satisfying itself that the Council had acted unlawfully by granting the CoC. In particular, the Court noted the nature and scale of the proposed activities and the amount of indigenous vegetation on the site. It was held that the Council was required to do "more than just rely on the bare assertion of the applicant" that the relevant standards would not be breached. Instead, the Council needed to properly satisfy itself in terms of the scope of what the proposed activities actually involved in order to attain the necessary information. The Court emphasised that a Council should not overcome the deficiency of having insufficient information by inserting a condition in a CoC, commenting that the utility of a CoC becomes meaningless unless Councils are required to positively assess whether rules will be breached by specific activities.

The Court understood that on occasion applications for CoCs can place significant resourcing demands on consent authorities. However, the Court also noted that both the scheme of s 139 and the RMA recognises this potential for strain. Indeed, the RMA provides mechanisms for consent authorities to seek further information from an applicant, extend time limits for processing, and to charge an applicant for the actual and reasonable costs of processing a CoC application. These mechanisms purport to shift some of the burden back to an applicant.

Read together, the Turner & Growers and Forest & Bird decisions do more than outline that local bodies cannot rely on 'bare' or 'bald' assertions. They provide a timely reminder to consent authorities of their obligations when considering applications for CoCs. It follows that upon receiving an application for a CoC, a consent authority must satisfy itself as to the nature and scale of the activities contained within the application. This is of fundamental importance. If this is not satisfied then the consent authority must show diligence and exercise the appropriate mechanisms afforded by RMA to request further information from the applicant. Only once the consent authority is satisfied as to the nature and scale of the proposal should it then go on to consider and assess the application against the applicable rules of the relevant planning instruments. A failure to undertake these steps, as evidenced in Turner & Growers and Forest & Bird, can result in resource draining judicial review proceedings. A costly exercise for consent authorities, ratepayers, applicants, and affected third parties.

Given the nature of CoC applications, affected third parties have no right to participate in the decision making process. Their interests are only protected by consent authorities ensuring that their decision making processes are robust. Affected third parties are as reliant as an applicant on a consent authority undertaking its decision making in a careful and considered manner. While CoC applications have the potential to place a significant strain on a consent authority's human resources, the mechanisms available under the Act do provide protection for the consent authority, provided they have undertaken their decision making in a carefully considered and robust manner, and have been provided with a well drafted application properly supported by evidence.


[1] Turners & Growers Horticulture Limited v Far North District Council [2012] NZHC 1142.
[2] Royal Forest & Bird Protection Society of New Zealand Inc. v Waitaki District Council [2012] NZHC 2096.







 

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