Home
Loading

February 2009

Resource Consents: Important or Not?

Developing or subdividing property; and discharging, using or diverting water and waste are just some examples where a Resource Consent is required for actions you may wish to take in relation to your land or property.

Resource Consents are governed by the Resource Management Act 1991 ("RMA"). The purpose of the RMA is to promote the sustainable management of natural and physical resources. This involves managing the use, development and protection of resources while enabling individuals and communities to provide for their social, economic and cultural needs.

Do I need a Resource Consent?

Generally speaking, you need to lodge a Resource Consent application with the relevant Consent Authority (your local Council) for any activity that is not permitted under the local District or Regional Plan. Before undertaking any work, you will need to determine which of the five different categories your activity belongs to:

  • Permitted (which are allowed 'as of right' and do not require consent)
  • Controlled (where a Resource Consent is required, and may be subject to conditions that the Consent Authority imposes)
  • Discretionary (where a Resource Consent is required, and where the
  • Consent Authority has the discretion to refuse consent or impose any conditions)
  • Non-complying (where Resource Consent is required, but will only be granted if any adverse environmental effects are no more than "minor" and the activity is not contrary to the objectives of the relevant Plan.
  • Prohibited (for which no Resource Consent will be granted)

No Resource Consent? Avoid prosecution under the Resource Management Act 1991

Obtaining a Resource Consent can be complicated, especially if you are not familiar with the procedure. However, failing to do so can result in prosecution under section 338 of the RMA, and the Court may, inter alia, impose fines of up to $200,000.00 or a term of imprisonment not exceeding two years for more serious violations.

A recent Court decision highlights the importance of obtaining a Resource Consent before undertaking any work on your land.

The owner built a stopbank along 450m of its land on the bank of the Pelorus River without obtaining the necessary resource consent. The District Plan prevented the excavation or filling of land within the riparian management zones specified in the plan, whilst the damming or diversion of water was only permitted if Council was notified in writing prior to the commencement of any work and if the work did not adversely affect any other land. The owner was duly prosecuted by the Council and convicted on both counts, and the District Court imposed fines of $20,000.00.
While the High Court allowed the owner's appeal in part and referred the matter back to the District Court for rehearing, the Court emphasised that:

  • Offences against the RMA will result in a criminal conviction under the Crimes Act 1961 if the offender is found guilty;
  • Convictions for an "attempt" to commit an offence under the RMA can be prosecuted by virtue of section 72 of the Crimes Act 1961;
  • Sentences must be proven to be excessive before the Court will overturn them. In this case, the High Court held that the $20,000.00 fine was not excessive.

Conclusions

Always check if a Resource Consent is required.

If you are planning any activity relating to your land, water or other resources ensure that it is "permitted" or you have a valid Resource Consent before commencing any work. The risks of prosecution and the costs in terms of fines, fees and remedying any non-consented work are considerable, and altogether easily avoidable.

We strongly recommend that, if in doubt, always seek our advice first.