Conditions on a resource consent

Section 108 provides that a resource consent can be granted on any condition, including:

  • Making a financial contribution following the directions in the plan or proposed plan (although financial contributions are being phased out and cannot be used from April 2021); 955
  • Providing a performance bond;
  • Protecting, restoring and enhancing a natural or physical resource;
  • Entering into a covenant;
  • Adopting the best practicable option (if a discharge consent or coastal permit);
  • Measuring and monitoring impacts of the activity;
  • In respect of subdivision, a condition may require the provision of an esplanade reserve or esplanade strip;
  • In respect of a coastal permit to occupy the common marine and coastal area, a condition may specify any coastal occupation charge or detail the extent of exclusion of other persons; and
  • A requirement to supply the consent authority with information relating to the exercise of the resource consent.

Despite that, a consent authority can only include a condition in a resource consent if:

  • The applicant agrees to the condition; or
  • The condition is directly connected to an adverse effect of the activity on the environment or an applicable plan rule; or 
  • The condition relates to administrative matters that are essential for the efficient implementation of the consent. 

The courts have also confirmed a condition can only be imposed on a resource consent if it is: 955

  • For a resource management purpose and not for an ulterior purpose
  • Fairly and reasonably related to the proposed activity (a ‘logical connection’ and not related to external or ulterior concerns 956 )
  • Reasonable

In addition, section 108 requires that the consent authority considers the condition ‘appropriate’. This requires an assessment of whether the condition(s) are the most appropriate to achieve the purpose of the Resource Management Act. 957

A condition may be invalid if it:

  • Is unreasonable
  • Is ultra vires the powers of the local authority
  • Involves a delegation of the local authority’s duties
  • Is uncertain
  • Is unenforceable (e.g. relies on compliance by third parties where consent had not been obtained 958 )
  • Frustrates the consent (a condition of consent cannot negate the consent granted). However a condition that requires an applicant to carry out significant works whose expenditure calls the viability of the activity into question is not necessarily invalid and may be the price an applicant must bear. 959

If an invalid condition is fundamental or essential to the grant of the consent, the whole consent will likely fail. However, a condition can be severed, leaving the consent to stand, where the condition is trivial or unimportant. 960

A condition should not delegate judicial duties. However, if a condition merely requires an officer to exercise judgment as a certifier, rather than resolve a dispute as an arbitrator, they will be permissible. 961

Where an applicant gives a clear and unequivocal undertaking and, relying on that undertaking, the local authority grants consent subject to a condition in terms broad enough to embrace the undertaking, the applicant cannot say later that there is no power to require compliance with the undertaking. This is called an "Augier" condition. 962

  1. Section 114 Resource Management Act 1991

  2. Section 108(10) Resource Management Act 1991

  3. Newbury DC v Secretary of State for the Environment [1981] AC 578

  4. Waitakere City Council v Estate Homes Ltd [2007] 2 NZLR 149

  5. Cookie Muncher Charitable Trust v Christchurch City Council (NZEnvC W090/08, 22 December 2008)

  6. Dart River Safaris Ltd v Kemp [2000] NZRMA 440

  7. Kiwi Property Management Ltd v Hamilton City Council (2003) 9 ELRNZ 249

  8. Turner v Allison [1971] NZLR 833

  9. Olsen v Auckland City Council [1998] NZRMA 66

Last updated at 11:45AM on January 5, 2018