The RMA provides for the continuation of lawful existing uses within certain parameters when there is a change in planning rules through “existing use rights”. An existing use right does not prevail over statutory duties, such as the duty to avoid, remedy or mitigate any adverse effects on the environment of an activity. 576
District plans vs regional plans
In general existing use rights which apply to activities that contravene a district plan continue indefinitely provided the requirements continue to be met (the exception is activities on the surface of lakes and rivers). In contrast, existing use rights which apply to activities that contravene a regional plan continue only until the plan becomes operative or pending finalisation of a resource consent.
Existing uses which contravene a district plan
Section 10 confers a right to continue existing land uses which would contravene a rule in a district plan or proposed plan where: 577
- The land use was lawfully established before the rule became operative or the proposed plan was notified, and
- The effects of the land use are the same or similar in character, intensity, and scale to those which existed before the rule became operative or the proposed plan was notified, and
- The land use was not discontinued for a continuous period of more than 12 months after the rule in the plan became operative or the proposed plan was notified. 578
Section 10B confers an existing use right in relation to certain building works or uses of a building where a building consent was lawfully issued in accordance with the Building Act 2004, before the rule in a district plan or proposed district plan which would be contravened took legal effect. However, the right to proceed may not apply if the building consent is amended substantively, or has lapsed, or a code compliance certificate is not issued within the specified period (generally two years of the rule taking effect).
Section 10A confers a more limited existing use right in respect of the surface of water in lakes and rivers. Where under a new operative plan or under a rule in a proposed plan, and existing lawful use of the surface of water in a lake or river requires resource consent, an application must be made for consent within six months of the relevant rule becoming operative. The activities may continue until the application has been decided and any appeals determined.
Existing uses which contravene a regional plan
Under section 20A(1) an activity may continue until a rule in a regional plan becomes operative if:
- An activity requires resource consent as a result of a rule in a proposed regional plan taking legal effect in accordance with section 86B, and
- Before the rule took legal effect, the activity was a permitted activity and was lawfully established, and
- The effects of the activity are the same or similar in character, intensity, and scale to the effects that existed before the rule took legal effect, and
- The activity has not been discontinued for a continuous period of more than six months since the rule took legal effect
Under section 20A(2) an activity may continue after a rule becomes operative if:
- An activity requires resource consent as a result of a rule in a regional plan becoming operative, and
- Before the rule became operative, the activity was a permitted activity and was lawfully established, and
- The effects of the activity are the same or similar in character, intensity, and scale to the effects that existed before the rule became operative, and
- The person carrying on the activity applied for a resource consent within six months of the rule becoming operative and the application has not been decided or any appeals have not been determined.
Onus of proof
The party who asserts the existence of an existing use right carries the onus of establishing the existence of an existing use right. The standard of proof to be satisfied which must be satisfied is the ‘balance of probabilities’ or ‘more likely than not’. 579
Are the effects the same or similar?
The Resource Management Act provides for existing uses to change over time and does not require the effects of the activity to be the same in all respects as that originally lawfully established. 580 In that regard, it is important to note that the issue is not whether the activity itself is the same or similar, but rather whether the effects of the activity are the same or similar. 581
Assessing whether the effects of an activity are the ‘same or similar in character, intensity and scale’ requires comparison between the effects of the activity at the point immediately before notification of the new rule and the effects of the activity arising after notification. 582
Has the activity been discontinued?
As set out above, an existing use right may be lost if the activity is discontinued for a continuous period specified. That being said, an existing use does not need to take place continuously. For example, an activity which occurs annually may be the subject of existing use rights even though it does not occur throughout the year. 583 Existing uses are to be assessed on the basis of a normal year round operation, not the point in the operational cycle existing on the day the new rule takes effect. 584 In that regard the Environment Court has noted that care must be taken when applying the discontinuity test to seasonal activities (such as fruit picking) as the absence of such an activity at a time of year when none would normally be carried on anyway is not evidence of the activity having been discontinued. 585
Existing use certificates
A person who has the benefit of an existing use entitlement may apply to the relevant consent authority for the issue of an existing use certificate. The person must describe the use or activity, and specify the character, intensity and scale of the use or activity. The consent authority may require the applicant to provide further information. There is no requirement for public notice or a hearing. If the consent authority is satisfied that the use or activity qualifies, it must issue the certificate within 20 working days. The certificate is treated as an appropriate resource consent. 586
Brookers Resource Management, section 10
Section 10 Resource Management Act 1991
Alternatively an application may be made to the territorial authority within 2 years of the activity first being discontinued and the territorial authority may grant an extension upon being satisfied that the extension will not be contrary to the objectives and policies of the district plan and approval has been obtained from every person who may be adversely affected.
Re an Application by Willoakes Holdings Ltd (Planning Tribunal C056/95, 8 September 1995)
Kapiti DC v Otaki Cold Storage Ltd (NZEnvC W019/02, 14 June 2002)
Rodney DC v Eyres Eco-Park Ltd  NZRMA 320 (CA).
Springs Promotions Ltd v Springs Stadium Residents Assn Inc  1 NZLR 846
Rodney DC v Eyres Eco-Park Ltd  NZRMA 320
Wairoa Coolstores (1994) Ltd v Western Bay of Plenty District Council (NZEnvC A16/98, 26 February 1998)
Section 139A Resource Management Act 1991
Last updated at 9:27AM on January 8, 2015