Recommending the duration and lapse period

Abstract

Sections 123 to 126 of the Resource Management Act 1991 (RMA) deal with determining the duration and lapse periods of resource consent applications and the cancellation of consents. This guidance note explains these sections of the RMA and provides advice on determining the duration of consent, whether consent has lapsed and cancelling consent.

This note does not cover cancelling consents when enforcement action has taken place and the Environment Court has ordered a review of the consent (s132(4)). Refer to the RMA Enforcement Manual, and in particular the Mandatory directives and Imposing penalties sections, for more information.

Guidance note

Duration of consent

Section 123 sets out the duration period of resource consents. Except as provided for in s125 (lapsing of consents), the following durations apply:

coastal permit or land-use consents for reclamations that contravene s13 and any other land-use or subdivision consent - unlimited duration unless otherwise specified in the consent
other coastal permits or any other land use that contravenes s13 - five years from the date of commencement of the consent (s116) if not specified, and not exceeding 35 years if a duration time is specified.

Decisions on the term of a consent need to be carefully considered and should be made in writing. For notified consents these decisions must be included in the decision report and must outline the reasons for deciding on a shorter term than requested in the application or set in legislation (s113(1)(b)).

Exercise of resource consent while applying for new resource consent

When resource consent is due to expire and a consent holder applies for a new consent for the same activity, s124 allows a consent holder to continue to exercise their existing consent until a new consent is granted or declined and all appeals determined if:

the new application is lodged at least six months before the expiry of the existing consent, or
the new application is lodged between three and six months before the expiry of the existing resource consent and the council agrees to the applicant continuing to exercise their original consent.

Sections 124A to 124C outline how the council must consider new applications under s124 if other consent applications are received to use the same natural resource as the existing consent holder. These provisions relate to new applications from either the existing consent holder or other persons.

Section 124B gives priority to the existing consent holder to have their new consent application determined ahead of anyone else competing for the same resource. In determining the new application, the council must consider all relevant provisions of the RMA and whether the existing consent holder:

uses the resource efficiently, and
uses industry good practice, and
has been served with an enforcement order that was not later cancelled or has been convicted for an offence under s338.

Section 124C relates to competing applications by persons who are not existing consent holders. This section also gives priority to the existing consent holder. Such applications need to be made at least three months before the expiry of the existing consent. When such applications are received, the council must hold the application without processing it and notify the existing consent holder that the application has been received and that they may make an application for a new consent.

If the existing consent holder does make a new application within the three month time frame before the consent expiring, the council must hold the other resource consent application until the application by the existing consent holder and any subsequent appeal has been determined. If the consent is granted, then the application by the other person lapses.

If the existing consent holder advises in writing that they do not wish to make a new application or they do not make a new application at least three months before the expiry of the consent, the council can then process the other application. However, any consent granted can not be fully exercised until the expiry of the existing consent.

Section 124 generally applies to water and discharge permits which have a maximum duration of 35 years.

Lapsing of consent

Section 125 provides that if a resource consent is not given effect to within five years of the date of its commencement, or any other time as specified, it automatically lapses.

Under s125 a consent holder may apply for an extension to the lapse period before the lapse date expires. In deciding a s125 application the council must consider:

if substantial progress has been made towards giving effect to the consent and continues to be made, and
if the applicant has obtained the written approval of every person who may be adversely affected by the granting of the extension, and
the effect of the extension on the objectives and policies of any plan or proposed plan.

A consent holder can object to any decision made by the council to extend the lapse period of a consent (ss357A and 357C to 358).

A subdivision consent is given effect to when the survey plan is approved by the council pursuant to s223, however, under s224 the survey plan will lapse if it is not subsequently deposited within three years of the plans being approved. Section 224 requires the survey plan to be deposited under Part 10 by the Registrar-General of Land.

Section 125 is also subject to s150 which applies to coastal permits issued from 1 June 1995 to 1 August 2003 for occupation of the coastal marine area for aquaculture or aquaculture related activities. Section 150G(3) states that a coastal permit that has lapsed under s125 before 1 August 2003 is deemed not to have lapsed if, before lapsing, the permit holder applied for a permit over the same area.

If an application is for a large development that is staged or could take some time to progress, it is wise to make the applicant aware that they are able to request a longer lapse period for consideration by the council.

A resource consent should clearly state the consent duration (if not unlimited) and the lapse period. Even if the standard five year lapse period applies, the consent holder should be reminded of this in their consent.

Refer to the Example: Section 125 report (MS Word, 38 KB) for guidance on compiling a s125 report.

If a consent will lapse soon or is deemed to have lapsed, it is best practice for the council to inform the applicant in writing in advance or as soon as possible after the lapsing. When informing the applicant of the lapsing of the application, the council should also inform the applicant of how the consent can be re-lodged if they wish to continue with the application.

Cancellation of consent

Section 126 allows a council to cancel a resource consent if it has been exercised in the past but has not been exercised during the preceding five years. If a council decides to take this action then it must serve written notice on the consent holder.

A council may not cancel a consent if the consent expressly allows for an activity to be suspended for a period greater than five years. The consent holder can apply to have their notice revoked as long as the application is made within three months of receiving the notice of cancellation. The council can then decide to revoke the notice and state a period after which a new notice may be served. In deciding whether to revoke a notice or not the council needs to consider:

whether the applicant has obtained the approval of persons that might be adversely affected by the revocation of the notice, and
the effect of the revocation of the notice on the objectives and policies of any plan or proposed plan.

A consent holder can object to any decision made by the council to cancel a consent (ss357A and 357C to 358).

As mentioned in the abstract of this note, this note does not cover cancelling consents when enforcement action has taken place and the Environment Court has ordered a review of the consent (s132(4)). Refer to the RMA Enforcement Manual, and in particular the Mandatory directives and Imposing penalties sections, for more information.

Forms and checklists

Example: Section 125 report (MS Word 38KB)

Case law

Huntly Quarries Ltd v Waikato Regional Council A010/2008 -The Waikato Regional Council granted a number of consents to Huntly Quarries to continue and expand their operations, which were granted with a term of 25 years. Huntly Quarries appealed requesting a term of 35 years, the maximum permitted by s123(d). The Environment Court allowed the appeal. The decision was made on the basis that:

the consent conditions would effectively manage the environmental effects over the term of the consent (while there have been instances of non-compliance in the past the applicant has demonstrated commitment to operate in accordance with the consent conditions)
the receiving environment is not sensitive and is being managed to avoid adversely affecting the local community
the applicant is entitled to reasonable certainty and security which should be reflected in the term of the consents.

Royal Forest and Bird Protection Society of New Zealand Inc v Waikato Regional Council [2007] NZRMA 439 - Appeal by Royal Forest and Bird Protection Society to reduce the 20 year term of consent granted for the removal of mangrove seedlings from Whangamata Harbour foreshore to three years. The Court held that reducing the duration of the consent as a means of influencing public authorities to take action on related environmental issues is not appropriate. The duration of consent should be determined primarily by sound resource management practice and the RMA purpose. No identified adverse effect is likely to increase or vary over a 20 year term to warrant reduction to three years. However, a relevant planning instrument could become operative before the 20 year term and be hindered by it, so a 12 year consent term was imposed.

PVL Proteins Limited v Auckland Regional Council EnvC A61/2001 - Successful appeal by PVL against a decision of the Auckland Regional Council to disallow an objection against a 10 year consent term to discharge contaminants to air. PVL sought a consent term of 35 years. The Court determined that PVL should have the security of consent for a longer duration and that their technology was the best practicable option, was located in an appropriate zone, and the environmental effects were rare and transitory.

Steiner v Wharfe EnvC W61/2000 - The appellant applied for a continuation of their consent under s124 to extract aggregate. An applicant may apply for a new consent which is of a greater scale than their original consent. However, s124 does not allow the greater scale of activity to begin when the application is lodged. The greater scale activity may only begin when the application for the activity is granted.

Hastings v Auckland Regional Council EnvC A129/2000 - Provides guidance as to the meaning of 'lapse'.

Collins v Timaru District Council C044/92 - A resource consent can not be cancelled before it being exercised.

Relevant publications

Your Guide to the Resource Management Act: An essential reference for people affected by or interested in the RMA
Published by Ministry for the Environment - August 2006
This guide presents a simple explanation of the RMA legislation, the processes it has established, and how people can use it to pursue their interests.

Getting in On the Act
Published by Ministry for the Environment - Updated November 2009
A short, simple guide on how the RMA works and how it might affect users.

Resource consent durations and reviews
Published by Ministry for the Environment - September 2000
The purpose of this document is to provide information on current council practice and identify areas where there is potential to improve practice.

Relevant website

The following website may be of assistance:

The Auckland Regional Council website has information for applicants on how long a resource consent may last, what happens if the applicant doesn't use the resource consent, whether the applicant can surrender their resource consent, and whether the resource consent can be transferred to another person. See Auckland Regional Council's Now you have resource consent.

Current challenges in practice

Deciding on the term of a consent

Deciding on the term of a consent when it is not considered appropriate to set a term of 35 years for discharge permits or an unlimited term for other consents can be challenging. There has to be sound reasons for setting a term that is less than the maximum 35 years. It is not simply a matter of plucking a number out of 'thin air'. Careful consideration should be given as to why a shorter term is appropriate.

To deal with this issue councils may want to take a standard approach to certain types of consents and make the general public aware that such consents will generally have shorter durations for specific reasons. However, care should be taken with this approach to ensure that each case is considered appropriately against the standard duration selected.

Determining if a consent has lapsed or has been given effect to

Often it is difficult to determine if a consent has been given effect to or not and consequently if it has lapsed. This is particularly the case when only a small portion of work has been undertaken to give effect to the consent or if no physical work has been undertaken because of background circumstances. In such cases it is important to ensure the consent holder has provided the council with sufficient information to determine what work has been undertaken, either on the ground or in planning and designing the activity. No proof of activity occurring would generally give a strong indication that the consent has lapsed.

Plans not being deposited within three years after s223

Section 224(h) requires that a survey plan shall be deposited no more than three years after the grant of the s223 certificate. Where consent holders fail to deposit the plans in time, it is common for councils to be asked to re-issue the s223 certificate. Technically, the consent has lapsed (s125(2)) and therefore a s223 certificate cannot be issued and a new subdivision consent is required. It is good practice to remind consent holders of all relevant time frames and perhaps automatically generate a reminder letter two and a half years after issuing the s223 certificate.

Acknowledgements

This guidance note was prepared in 2004

Minor updates to this guidance note were made in November 2009 by Rebecca Scannell of Hill Young Cooper Limited and Greg Lee of Beca and peer reviewed by the Ministry for the Environment.

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