Existing use rights mean that many home owners required by the
Council to get a resource consent to rebuild can actually avoid
doing so if they comply with some key requirements.
Existing use rights mean that even if a house would need
resource consent to be built under today's rules, it may well
be possible to demolish and replace it without a resource consent
– not necessarily with exactly the same house - provided some
key requirements are met.
First, the house must have been lawfully established, meaning
that either it complied with the rules that applied when it was
built, or that the Council granted specific planning permission
(e.g. resource consent) at that time. If it was subsequently
changed in a way that made it unlawful under planning rules of the
day, this requirement is not met.
Second, the new house cannot breach the current Council rules by
more than the house it is replacing, or cause a much worse
environmental effect as a result. So, if a three story house
obtained planning permission when first built because it was
overheight, it cannot be replaced with a four storey house, but
only with one of the same height or less. The same would apply to
other controls like minimum distances from boundaries, site
coverage and sunlight/shading (recession plane).
Third, the site cannot sit vacant for more than a year between
the old house being removed and the new house being built. This
requirement is the most difficult, because it is not quite clear
whether a house that had to be removed immediately after the
earthquake for safety reasons, cannot be rebuilt under existing use
rights even if the only reason for that is that the insurance money
remains tied up. That seems very harsh, but the Resource Management
Act as it stands could be interpreted to mean that this is the
Councils should not be too quickly criticised for PIMs (project
information memorandums) that require resource consent in these
circumstances. The law says that it is up to the person wishing to
rely on existing use rights to raise the issue with the Council and
to provide it with the necessary proof. So where a person applies
for a PIM and makes no mention of existing use rights, a Council is
doing nothing unlawful by requiring a resource consent. That said,
some guidelines from Councils showing when they would accept that
existing use rights make resource consents unnecessary would be
very helpful and avoid a lot of unnecessary frustration. Those
could at the same time set out the Council's positions on sites
that have been vacant for more than a year for reasons beyond the
If you think you can rely on existing use rights, it would be
wise to make sure by checking with a properly qualified
professional. In many cases they will advise you to apply for what
is known as an existing use certificate, which is issued by the
Council and certifies that the reconstruction is lawful in the same
way as if it had a resource consent. In the interim don't take
everything the PIM says as gospel – get expert advice to be
Note: This article deals only with resource consents and not
building consents. Existing use rights cannot remove the need to
obtain a building consent before rebuilding.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Please briefly describe the main laws that govern real estate in your jurisdiction.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).