A consent authority issues a certificate of compliance under
section 139 of the Resource Management Act 1991 ("RMA")
to confirm that an activity can be done lawfully in a particular
location without a resource consent (i.e as a permitted activity).
A certificate of compliance is treated as a resource consent and
provides certainty to a resource user that their activity does not
require a resource consent.
Why use a certificate of compliance?
The main purpose of a certificate of compliance is to obtain a
consent authority's (i.e, the local council) confirmation that
a prospective activity, once established, will not require resource
consent. There is also a practice of applying for a certificate of
compliance for existing activities, to confirm they may operate
lawfully without resource consent and are also protected from
future (not yet notified) changes to a plan. A certificate of
compliance may provide certainty to developers or investors who are
hesitant about the cost of RMA processes and seek to ensure their
investment is protected in light of changing planning
Is it easy to get a certificate of compliance?
The onus of proof is on an applicant to satisfy the consent
authority that a proposal complies with the rules in the relevant
plan in every respect. Essentially, if the consent authority is
satisfied that the activity is permitted in every respect, it must
issue the certificate. There is no discretion on the part of the
consent authority to decline an application once compliance has
The notification provisions in the RMA do not apply so it is
only the consent authority who decides whether a certificate is
issued or not. The consent authority is not required to consult,
publicly notify or request prior consent from affected parties when
issuing certificates of compliance.
Recent case law has acknowledged the difficulty with
"effects-based" plans, particularly with non-static rules
which have ongoing application and manage or control activities by
reference to a changing or fluctuating natural or physical
environment; for example, noise conditions measured at the nearest
residence, or a rule limiting gravel extraction to a certain point
above the groundwater level. Compliance with these types of rules
and conditions is dependent on a changing receiving
In the first example, compliance would become more onerous as
more residents moved into the area and built closer to the noisy
activity. In the latter example, difficulties arise in knowing how
much gravel resource may be extracted against ever-changing
In these two situations, the High Court and the Environment
Court respectively, have held that a certificate of compliance does
not protect a user from changes in the environment if the rule in
the plan is framed to allow for changing circumstances. This comes
down to a matter of interpretation and illustrates how a plan's
rules may require ongoing compliance notwithstanding changing
circumstances beyond the control of those undertaking the existing
activity. Although a certificate of compliance is treated as a
deemed resource consent, it remains subject to applicable rules in
the plan and effectively 'imports' those conditions into
the certificate itself.
As a result, certificate of compliance holders should be aware
that activities may remain subject to these types of conditions and
rules, especially if the surrounding environment is changing and
affects the way an activity operates. This is an interesting and
potentially significant development in the law relating to
certificates of compliance and may have implications on those with
existing certificates of compliance. The change will also mean that
careful consideration should be given to the benefits of obtaining
a certificate of compliance in circumstances where the rule
complied with is 'non-static'.
Interestingly, the Court of Appeal has just granted leave to
appeal the decision relating to whether the holder of a certificate
of compliance must continue to abide by the increasingly onerous
District Plan noise limitations as a result of changing
circumstances in the surrounding environment. The result of this
appeal may alter the law as it applies to certificates of
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.
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