Many activities for which resource consents are sought involve both permitted and non-permitted components. An application for resource consent is typically sought for any non-permitted components of a proposal, on the understanding that any permitted components may be carried out as-of-right. However, difficulties may arise where:
the permitted components of an activity can only be carried out once a non-permitted component has occurred
an applicant wants to safeguard their ability to carry out the permitted components of the overall activity, through a CoC.
Key principles for hybrid activities
There are three key principles derived from Environment Court cases that may provide guidance to practitioners on hybrid activities:
Resource consent cannot be granted for the permitted components of a hybrid activity.
The permitted components of a hybrid activity form part of the overall activity and must be considered as part of the resource consent application for the non-permitted components.
To obtain a CoC, a specific application for a CoC is required, independent of the resource consent application.
What is unclear as a result of Housing New Zealand v Auckland City Council(W74/2007) and the subsequent Minute issued by the Court, is whether a CoC can be issued for the permitted components of a hybrid activity, if those components are interwoven with those that require resource consent, or, whether the permitted components must be divisible from the non-permitted components.
This could be a particularly pertinent issue if applying to the EPA for a CoC in relation to permitted aspects of a larger proposal. In such instances it is advisable to seek legal advice on this issue and to discuss with the EPA prior to lodging.
Benefits of taking a hybrid activity approach
An applicant may consider making separate applications for resource consent and a CoC where a proposal includes both permitted and non-permitted components. However, before lodging the applications, the applicant should consider whether it is a situation where it is possible to apply for a CoC for the permitted aspects and whether there are any benefits derived from separating the components. Benefits to the applicant may arise when:
There is an upcoming plan change or other matter that would affect activity status that in turn may mean permitted components are no longer permitted and the applicant seeks to safeguard the permitted components of the activity.
There is some advantage in having a deemed resource consent in place for the permitted components (e.g. it may be regarded as a 'value add' to any prospective purchasers of the land).
Separating out minor permitted matters which are able to be considered alone can allow the focus to be centred on the key issues of the proposal. For example, for a proposal of national significance lodged with the EPA, people resources (including the board of inquiry and the Court) can use their time and consideration to focus on the key matters critical to the decision.
Lodging hybrid activity applications
If an applicant chooses to apply for resource consent and a CoC, then two separate applications need to be made:
an application for a CoC for the permitted components
an application for a resource consent (which will include a description of those components which are permitted and the components which require resource consent).
There is no form for a CoC application in the RMA regulations. Several councils, however, have developed their own version of an application form which details what to include with a CoC application. The CoC application should refer to the application for resource consent.
The application for resource consent should incorporate all aspects of the proposal, including the permitted components covered by the CoC application. A standard resource consent application form is provided in the RMA Regulations and most council’s have developed their own form.
Processing the applications
While any CoC application solely addresses any permitted components of the hybrid activity, the permitted components must still form part of the overall activity for which resource consent is being sought. Therefore, the permitted components must be addressed in the assessment of environmental effects submitted with the resource consent application. The permitted components must also form part of the overall consideration of the resource consent application.
Under ss95D(b), 95E(2)(a) and 104(2), any adverse effects arising from the permitted components of the hybrid activity may be disregarded when considering an application (known as the permitted baseline test). Whether effects arising from those permitted components are disregarded or not is not pre-determined by the issue or decline of the CoC.
The processing of each application is independent and the time frames are likely to diverge. For example, further information may be required to progress the resource consent application but not the CoC. The processing of the resource consent cannot hold up the CoC application.
Implementation of certificates of compliance
It is important when issuing a CoC for a hybrid activity that any implications are made clear. What is unclear as a result of the Housing New Zealand v Auckland City Council (W74/2007) and the subsequent Minute issued by the Court, is whether permitted activities of a CoC can be exercised before non-permitted components (that require a resource consent) are given effect to, or, if they can occur if the permitted components are divisible from the non-permitted components. Legal advice may be required on this issue. The council could include advice on implications in a covering letter to the applicant (but it cannot impose any conditions on the CoC relating to this).
Council compliance staff should also be made aware of what the CoC relates to, to avoid any confusion during inspections.
The permitted component may not be able to be implemented until resource consent is granted. This should be made clear to the applicant.