Resource consents and processes

 When is a resource consent required?

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The environmental impacts of activities are primarily controlled by the Resource Management Act through the requirement to apply for resource consents as well as through any conditions for permitted activities included in the relevant regional or district plan.

A resource consent provides permission to carry out an activity that would otherwise contravene section 9, 11, 12, 13, 14, 15, 15A or 15B of the Resource Management Act, so long as it complies with any conditions attached to the consent.

The Resource Management Act classifies activities into six primary categories: permitted, controlled, restricted discretionary, discretionary, non-complying and prohibited. 769  In addition, there is a 'protected customary right' category applying to activities, uses or practices established in accordance with the requirements under the Marine and Coastal Area (Takutai Moana) Act 2011.

These different categories determine aspects such as whether a resource consent is required before carrying out the activity, what will be considered when making a decision on a resource consent application and whether a resource consent must, may or may not be granted.

Rules in regional and district plans determine within which category an activity falls.

Permitted activity

A permitted activity can be carried out without the need for a resource consent so long as it complies with any requirements, conditions and permissions specified in the Resource Management Act, in any regulations, and in any applicable plans or proposed plans. A building permit will usually still be required if the activity is a building. 771

Controlled activity

A controlled activity requires a resource consent before it can be carried out. The consent authority must grant consent for a controlled activity, unless: 772

  • The activity is likely to have adverse effects that are more than minor on the exercise of a protected customary right and no exception applies 773
  • The consent relates to a subdivision on land which is likely to suffer material damage from erosion, falling debris, subsidence, slippage, or inundation from any source, or if there is insufficient legal and physical access to each proposed allotment to be created by a subdivision. 774
  • The consent authority can impose conditions on the consent, but only for those matters over which the council has reserved control in the relevant plan or over which control is reserved in national environmental standards.  The activity must also comply with any requirements, conditions and permissions specified in the Resource Management Act, regulations or relevant plan. 775

Restricted discretionary activity 

A restricted discretionary activity requires a resource consent before it can be carried out. The consent authority can exercise discretion as to whether or not to grant consent, and to impose conditions, but only in respect of those matters over which it has restricted its discretion in the plan or over which discretion is restricted in national environmental standards or other regulations. 776  The activity must also comply with any requirements, conditions and permissions specified in the Resource Management Act, regulations or relevant plan. 847

Discretionary activity

A discretionary activity requires a resource consent before it can be carried out. The consent authority can exercise full discretion as to whether or not to grant consent and as to what conditions to impose on the consent if granted. 777  An activity is discretionary if: 778

  • The plan identifies it as discretionary
  • A resource consent is required for the activity but the plan fails to classify it as controlled, restricted discretionary, discretionary or non-complying
  • The activity is described as prohibited by a rule in a proposed plan which is not yet operative

A discretionary activity must also comply with any requirements, conditions and permissions specified in the Resource Management Act, regulations or relevant plan. 779

Non-complying activity

A non-complying activity requires a resource consent before it can be carried out. A resource consent can be granted for a non-complying activity, but first the applicant must establish that the adverse effects of the activity on the environment will be minor or that the activity will not be contrary to the objectives of the relevant plan or proposed plan (the ‘threshold test’). Any effect on a person who has given written approval to the application will not be considered. In addition, the consent authority may disregard an adverse effect of the proposed activity if the plan permits an activity with that effect (the 'permitted baseline' test). 780

If the threshold test is met, the consent authority can exercise full discretion as to whether or not to grant consent and as to what conditions to impose on the consent if granted. 781  A non-complying activity must also comply with any requirements, conditions and permissions specified in the Resource Management Act, regulations or relevant plan. 782

Non-complying activity status is a way for a council to signal that activities will be subject to a greater degree of scrutiny and indicates to the community areas where some activities are unlikely to be appropriate. 783

Prohibited activity

A prohibited activity may not be carried out. In addition, no resource consent can be sought or granted to authorise the activity. 784  Parties wishing to carry out a prohibited activity must apply for a change to the plan to reclassify the activity.

An activity does not need to be forbidden outright, with no contemplation of any change or exception, before prohibited activity status is appropriate. Prohibited activity status may be appropriate where the council wishes to take a precautionary approach in light of insufficient information. 785  However, if the council has sufficient information to undertake an evaluation of an activity when preparing a plan it should not impose prohibited activity status in order to defer undertaking that assessment until a specific application is lodged. 786

Restricted coastal activity

Policy 29 of the New Zealand Coastal Policy Statement 2010 provides that the Minister of Conservation does not require any activity to be specified as a restricted coastal activity in a regional coastal plan. Local authorities have been directed to amend documents necessary to give effect to this policy as soon as practicable, without using the process in Schedule 1. Most, if not all, local authorities have now removed restricted coastal activities.

Protected customary right

The Marine and Coastal Area (Takutai Moana) Act 2011 defines a protected customary right as a right that: 787

a)      has been exercised since 1840; and
b)      continues to be exercised in a particular part of the common marine and coastal area in accordance with tikanga by the applicant group, whether it continues to be exercised in exactly the same or a similar way, or evolves over time; and
c)       is not extinguished as a matter of law.

A protected customary right relating to a specified part of the common marine and coastal area may be recognised by an agreement between the protected customary right group and the responsible Minister on behalf of the Crown or an order of the High Court.

Protected customary rights can be carried out without a resource consent irrespective of any restrictions under the Resource Management Act. However, they must be carried out in accordance with tikanga, any terms specified in the order or agreement and any controls imposed by the Minister of Conservation. 788

  1. Section 87A Resource Management Act 1991

  2. Section 87A Resource Management Act 1991

  3. Section 87A Resource Management Act 1991

  4. Section 55 Marine and Coastal Area (Takutai Moana) Act 2011

  5. Sections106 Resource Management Act 1991

  6. Section 87A Resource Management Act 1991

  7. Section 104C Resource Management Act 1991

  8. Section 104B Resource Management Act 1991

  9. Section 87B Resource Management Act 1991

  10. Section 87A Resource Management Act 1991

  11. Section 104D Resource Management Act 1991

  12.  Section 87A Resource Management Act 1991

  13. Section 87A Resource Management Act 1991

  14. Mighty River Power Ltd v Porirua City Council [2012] NZEnvC 213.

  15. Section 87A Resource Management Act 1991

  16. Coromandel Watchdog of Hauraki Inc v Chief Executive of the Ministry of Economic Development [2008] 1 NZLR 562.

  17. Coromandel Watchdog of Hauraki Inc v Chief Executive of the Ministry of Economic Development [2008] 1 NZLR 562.

  18. Section 51 Marine and Coastal Area (Takutai Moana) Act 2011

  19. Section 52 Marine and Coastal Area (Takutai Moana) Act 2011

  20. Section 87A Resource Management Act 1991

Last updated at 9:36AM on January 8, 2015