Existing use rights are a consideration in terms of a local authority's duty to enforce a plan. A person who proves an existing use right applies has the protections set out in sections 10, 10A and 20A of the RMA (whichever is relevant).
A question arises as to the relationship or differences between an existing use right and a transitional resource consent. The latter is a consent deemed to have been granted under the RMA, but actually granted under previous (specified) legislation in force immediately before the date the RMA commenced (section 383 and onwards).
After the commencement of the RMA, the activity approved by the original planning permission (and now deemed consent) may become subject to new requirements under a plan change. If so, it will be subject to those requirements unless it qualifies for existing use rights.
The case law on existing use rights is extensive; it should be referred to in some detail when considering whether such rights apply. This section provides only an outline. Note that when taking enforcement action, a local authority is not required to prove that an existing use right does not exist before proceeding. It is for the person responsible for the activity to satisfy the council, and the Court, of this. However, in practice a council may wish to provide an opportunity - with timeframes - for the person responsible for the activity, to produce relevant evidence that their activity qualifies for existing use rights (to save itself the costs of a wasted enforcement effort).
The appropriate test to apply when determining whether a use was lawfully established is, on the balance of probabilities. The onus is on the person seeking to establish that a use qualifies as an existing use, and to satisfy the Court that the character, intensity and scale of the activity have not changed to a greater extent than is allowed for under the Act.
Existing use rights for land use - s10 of the RMA
Section 10(1) of the RMA addresses existing use rights for land use. Under this section, land may be used in a manner that contravenes a rule in a district plan or proposed district plan if both:
- the use was lawfully established before the rule became operative or the proposed plan was notified
- the effects of the use are the same or similar in character, intensity and scale.
Section 10 of the RMA does not apply to activities that have been discontinued for a continuous period of more than 12 months 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.
Existing use rights on the surface of lakes and rivers - s10A
Section 10A of the RMA deals with existing use rights for activities on the surface of water in lakes and rivers. Where an activity was lawfully established before the rule in a plan became operative or the rule in the proposed plan was notified, and the activity now requires a resource consent, the activity may continue if both of the following criteria are met:
- the effects of the activity are the same or similar in character, intensity and scale
- the person carrying on the activity applies for a resource consent within six months of the rule in the plan becoming operative.
Where an application for resource consent has been lodged, the activity can continue until such time as a final decision on it is made.
Existing use rights in relation to proposed regional plan rules - s20A of the RMA
Section 20A of the RMA provides that any existing activity that was formerly a permitted activity, or that otherwise 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 as a result of a new rule in a regional plan, may be continued for a limited period in the circumstances defined in s20A(2).
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 is made.