It can be really frustrating when planning rules change- you may not even know about the change at the time. Something that was permitted and didn’t need resource consent now does. In some cases though, you may not need a resource consent, even if the district plan rules have changed. One reason for this is if existing use rights apply. In this blog we have a look at existing use rights in planning terms.
What are existing use rights?
Existing use rights in planning terms are managed via sections 10 and 20 of the Resource Management Act (RMA). Section 10 relates to district plan rules (which are the most extensively used), and section 20 relates to regional plan rules.
Section 10 RMA
Existing use rights can apply in cases where district plan rules change, and an activity (which could include an activity being undertaken on the land, the location or scale of a building etc) is no longer permitted by the district plan rules. In these cases, you need to be able to demonstrate:
the use was lawfully established before the rule became operative or the proposed plan was notified. Often this would be established by a building consent or permit. You need to have very clear information that can accurately confirm when and how the land use was established.
the effects of the use are the same or similar in character, intensity and scale.
The activity also can’t have stopped for 12 months or more after the new rule became operative or the proposed plan was notified. Existing use rights under section 10 do not apply to:
reconstruction, alteration of, or extension to, any building that increases the degree to which the building fails to comply with any rule in a plan or proposed plan
use of land controlled for the purposes specified in s30(1)(c)
restrictions of use of the coastal marine area under s12
restrictions on uses of lake and river beds under s13.
Section 20 RMA
Existing use rights in relation to regional plan rules are quite different to district plan rules. This is reflective of the different issues the two plan types are managing. Section 20A of the RMA provides that any existing activity that was formerly a permitted activity under a regional plan, (or could have been lawfully carried out without a resource consent as a result of a rule in a proposed plan), may continue until the plan becomes operative if the factors in sections 20A(1)(a) to (c) are present.
Activities that were permitted, or were lawfully carried on without a resource consent, but which become “controlled”, “discretionary” or “non-complying” activities because of the new regional plan rule, may be continued for a limited period in the circumstances defined in section 20A(2RMA).
An application for a resource consent must be made within six months of the rule becoming operative. Where an application for resource consent has been lodged, the activity can continue until such time as the final decision on it’s made.
Section 20A basically gives someone more time to comply with the new regional plan rules, or get resource consent.
Existing Use Certificate
There can sometimes be uncertainty about existing use rights applying under section 10 RMA, or you may want formal confirmation from the Council that existing use rights apply. In these cases, you can apply for an Existing Use Certificate, under section 139A of the RMA. You will need to provide detailed information about the site, when the activity was established, provide evidence of this date, detail the character, intensity and scale of the activity and assess the district plan rules that applied at the time. Usually a Planner would assist you with this.
While these types of applications aren’t common, they can be a useful tool to provide certainty.
Think existing use rights apply?
We can’t emphasise enough how important it is to do your homework; don’t assume that anything was legally established. Do your own investigations and confirm. Existing use rights can be complicated to confirm; advice from a Planner can be money well spent, especially in the due diligence phase if you’re buying a property.
If you need advice on existing use rights, get in contact with our friendly, knowledgeable team. You can contact us on hello@planningplus.co.nz or 09 427 9966.
Disclaimer
As with all our blogs, the information detailed here is general in nature and meant as a preliminary guide only. This should not be substituted for your own investigations or use of your own professional’s. Planning Plus is not liable for any errors or omissions.
© Planning Plus Ltd 2023