What is a certificate of compliance?
- 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 requirements.
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 been established.
- 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 environment.
- 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 groundwater levels.
- 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 compliance.
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.