Decisions on Subdivisions - Section 106

This note has been updated for 2017 and 2020 amendments but not updated for best practice. 

Sections 106 and 220 have been amended by RLAA17 to broaden the range of natural hazards to be considered, to reflect the definition of ‘natural hazards’ in s2 and include a risk-based approach when considering subdivisions. This reflects the inclusion of “the management of significant risks from natural hazards” as a new matter of national importance under s6(h) of the Act.

Section 106 requires both the applicant, as part of their application with sufficient technical support, and councils to consider the following matters in deciding subdivision consent applications:

  • whether there is a significant risk from natural hazards; or
  • whether sufficient provision has been made for legal and physical access to each lot created by the subdivision.

Following consideration of these matters, a council can either refuse or grant the application subject to conditions. Conditions can only be imposed in order to avoid, remedy or mitigate effects from the above list and must be in accordance with s108. Section 108 is subject to new s108AA that limits the matters that consent conditions can cover to the following:

  • the applicant agrees to the condition;
  • the condition is directly connected to an adverse effect of the activity on the environment;
  • the condition is directly connected to an applicable district rule, regional rule, or national environmental standard; or
  • the condition relates to administrative matters that are essential for the efficient implementation of the relevant resource consent.

In this context, an ‘applicable rule’ means a rule that is the reason, or one of the reasons that resource consent is required for the activity. These limitations do not prevent:

  • consent authorities from refusing subdivision consent to manage risks of natural hazards (section 106) or other subdivision requirements (section 220)
  • regulations to determine the form or content of consent conditions.

The Marine and Coastal Area (Takutai Moana) Act 2011 and customary rights groups

These mechanisms include “protected customary rights” (PCRs) and “customary marine title” (CMT). Iwi, hapū and whānau can apply to have PCRs or CMT recognised either through High Court proceedings or by engaging directly with the Crown.

In accordance with s55(2) of the Marine and Coastal Area (Takutai Moana) Act 2011 (MCAA), a council must not grant an application for a resource consent (including a controlled activity) to be carried out in a protected customary rights area if the activity will have, or is likely to have, more than minor adverse effects on the exercise of the protected customary right, unless the protected customary rights group has given its written approval for the proposed activity, or the activity is one of the exceptions listed.

The exceptions are listed in s55(3) of the MCAA. In summary the activities that are exempt are:

  • coastal permits for existing aquaculture activities to continue to be carried out (as long as there is no increase in area or change in location)
  • applications for emergency activities under s330A of the RMA
  • applications for existing accommodated infrastructure (within the meaning of s63 of the MCAA)
  • applications for deemed accommodated activities (within the meaning of section 65(1)(b)(i) of the MCAA.

Schedule 1 of the MCAA outlines what needs to be considered when deciding whether a protected customary rights group is affected by an application. This list could also be used as the basis for a decision regarding whether or not the application would have effects that are more than minor on the exercise of the protected customary right.

If an applicant is applying for resource consent in the common marine and coastal area (see MACA section 9) you need to notify and seek the views of any group that has applied for recognition of CMT in that area in accordance with s62(3)(b).

The reason for this is that in the period before the Crown has determined whether an application for CMT is successful, MACA section 62 requires any applicant for resource consent to notify and seek the views of an applicant for CMT in the relevant area, before the resource application is lodged. Council requests that evidence of this is provided with these resource consent applications.

For more information on the MCAA and how it should be implemented by councils refer to the Ministry of Justice’s note Provisions for Protecting Customary Interests: Information for local government .