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Existing Use Rights and The Christchurch Rebuild
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By: Amanda Douglas
Existing use rights under the Resource Management Act (RMA) have an important role to play in the Rebuild of Christchurch.
Many of Christchurch's buildings will need to be replaced. The older buildings were constructed under district planning rules which have now changed – particularly in the central city.
So, a replacement building which is exactly the same as the previous building on the site might be in breach of the current planning rules. On the face of it, a resource consent will be required for the replacement building.
However, the RMA protects existing lawful uses against changes in district planning rules. An activity which is in breach of current district planning rules may continue, provided that it was lawful at the time it was established.
An example is the height limit in the central city. Prior to the earthquakes, building heights of up to 80 metres (20 stories) were permitted in parts of the central city. Under the Central City Recovery Plan (CCRP), building heights in the central city core are restricted to 28 metres (7 stories).
Those buildings which were lawfully established at greater heights under the previous rules have existing use rights to continue. The existing buildings are allowed to breach the CCRP height limits. Plus, any replacement buildings are also allowed to breach the CCRP height limits, but they must not increase the level of non-compliance with the current rules.
Another example of where older buildings may breach current rules are front yard and side yard requirements. Many older buildings were built closer to their boundaries than is allowed under current planning rules. The replacement buildings will have to comply with current setback requirements unless existing use rights can be established, or a resource consent obtained.
Existing use rights expire if they are not used for 12 months. If a building which breaches the current planning rules was demolished more than 12 months ago, the existing use rights to rebuild it have expired. It will be necessary to comply with the current planning rules, or obtain a resource consent.
However, it is possible to extend the life of existing use rights by obtaining a certificate of existing use rights from the City Council. If the infringing building is still standing, or was demolished less than 12 months ago, the Council will issue a certificate to confirm the existing use rights.
The certificate has the same effect as a resource consent, so it may be given effect to for up to 5 years from the time it is issued. That extra time will be useful to cover delays in sorting out insurance claims and cover, finance and construction contracts and availability of builders.
To obtain a certificate of existing use rights, it is necessary to apply to the City Council and prove that the existing building was lawful at the time it was established. That generally requires searching back through the planning rules which were applicable at that time.
Even so, for many landowners it will be an easier process than obtaining a resource consent. An application for a certificate of existing use rights cannot be publicly notified. That means it is not open for any other person to make a submission on it, or appeal against it to the Environment Court. And the Council does not have a discretion about whether or not to issue the certificate, if it is proven that the existing building was lawfully established.
Another advantage of obtaining an existing use rights certificate is that it will make a property more attractive to potential purchasers. If an existing building is in breach of current rules, purchasers may be reluctant to rely upon existing use rights unless a certificate has been obtained.
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