Information requirements for certificate of compliance applications
Pre-acceptance checks for applications for CoCs should follow the same process for resource consent applications.
The information requirements for a CoC are as rigorous as they are for a resource consent. However, in the case of a CoC, the onus is on the applicant to satisfy the decision-maker that a proposal complies with all of the relevant permitted activity rules, and to provide sufficient information to allow that conclusion to be reached.
A point-by-point analysis is required, covering all the relevant provisions of the applicable operative plan, any proposed plan(s) and any relevant national environmental standards.
A CoC cannot be issued where:
A proposed plan has been notified, and
The activity could not be lawfully carried out without resource consent under that plan.
An application for a CoC should include the following:
a full description of the proposal - the level of detail required will depend upon the nature of the proposal and upon the particular rules that must be complied with
a description of the site where the proposal will be undertaken
a clear explanation of how the activity/proposal meets all the relevant provisions of the district or regional plan, and any relevant national environmental standard - an applicant may choose to present this information as a table listing each provision and showing the activity/proposal complies
copies of all necessary plans, details and calculations to enable the proposal to be checked for compliance with the district/regional plan
the required number of copies of the current computer register (title) for the application site(s)
the required deposit fee.
Requesting a certificate of compliance from the Environmental Protection Authority
A CoC can only be requested from the Environmental Protection Authority (EPA) if the proposal/activity relates to a proposal of national significance which has been referred to a board of inquiry or the Environment Court by the Minster for the Environment.
For example, there may be minor works that are part of a large nationally significant infrastructure project that can be separated out from the main proposal for which a CoC can be issued by the EPA (i.e. minor earthworks that are a permitted activity in association with a transmission line).
The applicant is not required to pay an administration charge to the EPA before the EPA considers a CoC. However, the EPA may recover "its actual and reasonable costs of dealing with the request from the person making the request" (s 139(13)). For more information on the EPA application process refer to the Resource Management Section of the EPA website .
Requesting further information
Section 139(4) allows an authority to request further information from an applicant, if it is necessary to determine whether the proposal complies with the plan.
Section 139 does not specify a time frame within which requests for further information need to be made by the authority in relation to an application for a CoC. Section 21 requires the authority to do it as promptly as is reasonable in the circumstances (i.e. to avoid unreasonable delay).
A CoC needs to be issued within 20 working days of receipt of the request by the council. If further information is requested, then the decision on the application does not need to be made until 20 working days after the information requested has been received (s139(6)(b)).
Unlike resource consents, there are no formal procedures about how to deal with an application when the applicant refuses to give the information. In practice it is likely the application for CoC will be refused if the information requested is not provided. However, an authority should not issue a CoC unless it is satisfied the activity can be established lawfully in the particular location without resource consent. If any element of non-compliance is found then a CoC cannot be issued.
Issuing a certificate of compliance
A CoC should contain the following information:
that it is issued pursuant to s139
the date the council received the application and the date any further information was requested and received
a detailed description of the proposal/activity - where required, clearly referencing the plans and any other information submitted by the applicant and used to make the determination
a description of the location of the proposal - refer to the address and legal description and any other relevant details
the relevant plan, proposed plan and national environmental standard provisions at the time the application for a CoC was lodged
a statement that the particular proposal or activity is permitted or could be carried out without a resource consent, as at the date on which the council received the request.
Advice notes can be included if necessary to provide further guidance or information to the CoC holder. Examples of advice notes that could be attached to CoCs include:
"This Certificate is deemed a resource consent under the RMA (section 139(10) of the RMA) and is issued subject to any conditions specified in the plan. It is issued without alteration."
"Section 125 of the RMA applies to this deemed resource consent (see section 139(12) of the RMA). Accordingly, this consent will lapse five years after the date of the commencement of this deemed consent unless, before the deemed consent lapses:
it is given effect to; or
an application is made to the council to extend the period of the deemed consent, and the council decides to grant an extension after taking into account the statutory considerations, set out in section 125(b) of the Resource Management Act 1991."
A covering letter to the CoC can be useful to explain any particular aspects of a CoC. Where used, a covering letter should state the date of issue and any relevant reference number.
Because a CoC is a decision by the council that the proposal/activity complies with the plan fully, some councils adopt a process where all CoCs are legally reviewed before they are issued. While this is not essential, and some councils have abandoned this practice, it is the council's decision whether or not this is done. Legal advice may be sought depending on the complexity of the proposal or the rules, whether other CoCs have been issued in respect of the same rules, or there are any other circumstances particular to a proposal/activity.
A CoC must not be issued if the request for a CoC is made after a proposed plan is notified and the proposed activity could not be carried out lawfully without resource consent under the proposed plan.
Certificates of compliance and conditions
A CoC cannot contain conditions, limitations or provisos of any kind. A CoC is to be treated as if it were a resource consent that contains the conditions specified in the plan or an applicable national environmental standard (s139(10)).
Lapsing of a certificate of compliance
Section 139(7)(b) requires that a CoC states that the particular proposal or activity was permitted, or could be lawfully carried out without a resource consent, on the date the request was received by the council. Effectively, the CoC acts as a 'snapshot' in time, confirming that an activity was permitted at the date the application was received by the council.
A CoC is deemed a resource consent and s125 applies (see s139(12)), meaning that a CoC lapses in the same manner as a resource consent.
The appeal provisions contained in ss120 and 121 apply to CoCs. As CoCs are non-notified, this means only the applicant has a right of appeal. Any challenge by any other party can only be carried out by way of a High Court judicial review.
Transfer of certificates of compliance
Sections 134, 135, 136 and 137 of the RMA relating to the transfer of resource consents also apply to CoCs (see s139(12)).
Certificates of compliance and designated sites
Section 176(1)(b) of the RMA does not allow a third party to undertake any work on a designated site for works not associated with the designation unless the written consent of the requiring authority is obtained.
In such cases, a proposal is assessed against the provisions of a district plan, proposed plan or national environmental standard that apply to the site (sometimes called 'underlying zoning') and not the designation and any relevant conditions. The third party must obtain resource consent where their proposal does not meet the underlying plan provisions.
A council can issue a CoC in relation to a designated site, where the applicant (third party) can demonstrate that the proposed works are:
not for the purpose of the designation
a permitted activity under the relevant plan
not requiring any resource consents.
Before implementing the CoC, however, the applicant will need to obtain the written approval of the requiring authority. This does not allow a council to issue a CoC confirming a proposal is consistent with the designation, as this is a different matter.