Conditions on a resource consent

A consent authority must not include a condition in a resource consent unless one of the following three scenarios applies: ⁵¹⁶⁰

• the applicant agrees to the condition
• the condition is directly connected to an adverse effect of the activity on the environment or an application district or regional rule or a national environmental standard. A rule or standard is considered to be applicable if it was one of the reasons consent was required.
• the condition relates to administrative matters that are essential ofr the efficient implementation of the relevant resource consent.

These requirements do not limit section 220 which sets out additional conditions that can be applied to subdivision consents to those in standard list of potential conditions in section 108 RMA, nor do they apply to the provision allowing inclusion of a condition requiring a financial contribution in section 108 of the RMA.

In addition to these statutory preconditions, the Courts have also confirmed a condition can only be imposed on a resource consent if it is:

• 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) ⁵¹⁶¹
• Reasonable

Provided the above preconditions are satisfied a resource consent can be granted on any condition that the consent authority considers appropriate.  Section 108 of the RMA then identifies a list of examples of potential conditions that a resource consent may include:

• Making a financial contribution following the directions in the plan or proposed plan; ⁹⁵⁵
• Providing a performance bond;
• Undertaking services or works including protecting, planting or replanting any tree or other vegetation and restoring and enhancing any natural or physical resource;
• Entering into a covenant;
• Adopting the best practicable option to prevent or minimise adverse effects from discharges;
• 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.

Other potential conditions specific to subdivision are provided in section 220 of the RMA.

The underlying purpose of the conditions of a resource consent is to manage environmental effects by setting outcomes, requirements or limits to that activity, and how they are to be achieved. ⁵¹⁶²

They should be clear certain and enforceable.

Conditions of consent may also provide for the preparation of management plans.  Management plans provide a way to identify what steps are to be taken to ensure that the outcomes/standards/limits in the consent conditions are achieved. ⁵¹⁶²   They are not a substitute conditions setting the standards necessary to ensure environmental effects are kept at an acceptable level.

Conditions should also specify how any changes to them or to management plans are to occur. ⁵¹⁶³   Update or change to conditions, in particular those setting limits to the activity, such as a contaminant discharge limit, cannot be done for any purpose or by an undefined methodology.  Certification should be prerequisite to implementing amendments to any management plan/consent.

 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  

Last updated at 2:08PM on August 26, 2021