Certificates of Compliance under the RMA

The Auckland Unitary Plan will be publicly notified later this year. It will make some significant changes to the current planning regime, to provide for the city’s growth over the next 30 years.

A draft plan was released earlier this year for consultation purposes. That document had no legal status, but it provided valuable information regarding the likely contents of the legally effective proposed plan which will be notified in due course.

Some of the changes which are likely to be included in the proposed Unitary Plan will impose requirements for resource consents for uses and activities which do not currently require consents. For example, changes to or demolition of buildings within the proposed heritage overlays (for pre-1944 buildings), and newly scheduled heritage buildings, will require resource consents.

Similarly, activities within new or extended Special Ecological Areas, to protect areas of significant indigenous vegetation or habitats of indigenous fauna, are likely to require consent once the proposed plan is notified.

A current ability to carry out activities without requiring a resource consent can be retained through obtaining a Certificate of Compliance under section 139 of the RMA. This certificate of compliance relates to an activity which is not already established, but which can be carried out under the current plan without obtaining a resource consent. It is aimed at protecting a current ability to carry out a particular use against any change in the district plan after the date on which the certificate was applied for.

Therefore, if there is a particular use which could currently be carried out on a property without a resource consent, but the draft plan has indicated that a resource consent is likely to be required for that use under the Unitary Plan, consideration should be given to applying for a certificate of compliance.

The relevant date for assessment is the date on which the application is lodged with the Council. It is essential that the application is lodged before the notification of the proposed Unitary Plan, if the effect of that plan will be to require resource consent for the activity. Issue of the certificate may take place after notification of the proposed plan, provided that the application was lodged before notification.

In order to obtain a certificate, all that is required is to prove that a particular specified use is able to be carried out, under the current planning regime, without a resource consent.

There is no need to show what the effects of the activity will be, or that such effects are environmentally acceptable. It is only necessary to show that the specified activity does not require a resource consent, either because it is a defined permitted activity, or because there are no rules in the plan which would prevent it occurring.

An application for a certificate of compliance will not be notified by the Council, and no person is entitled to make a submission in relation to it. If the specified use is one which may be carried out without a resource consent, then the Council must grant the application and issue the certificate. It has no discretion to refuse.

Once a certificate of compliance has been issued, it is deemed to be a resource consent. It enables activities which would otherwise be in breach of the plan to be carried out.

The Council said earlier this year that it expects to notify the proposed Unitary Plan in September of this year. It is not currently specifying a date for notification, and given the large amount of feedback received on the draft plan, it may be that notification takes place later than September. However, any applications for certificates of compliance should be made as soon as possible, to avoid being caught by the notified proposed plan.

This article was prepared by ADLS’s Environmental Law Committee. For further information, please contact a member of the Committee: Matthew Casey QC, Helen Andrews, Peter Fuller, Stuart Ryan, Grant Hewison, David McGregor, Marija Batistich, Kenneth Palmer, John Burns, or Margo Perpick.

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