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Resource Consent Changes - Marginal Infringements

By Penny Anson

Changes to the Resource Management Act (“RMA”) mean consent will no longer be required for some activities with marginal or temporary non-compliances. 

These changes, in effect from 18 October, give councils the discretion to treat an activity with a marginal or temporary non-compliance as if it were ‘permitted’, the intent being to remove the current consent requirement for those activities which generate effects which cannot be distinguished from the effects of permitted activities.

A key question then is: what is a “marginal” or “temporary” non-compliance? Neither term is defined in the legislation, however, the exercise of this new discretion will be guided by new section 87BB of the RMA. Under this section, an activity may be permitted:

  • If the activity would be permitted except for a marginal or temporary non-compliance with the requirements, conditions and permissions specified in the RMA, regulations (including any national environmental standard) or any plan or proposed plan; 
  • If any adverse environmental effects of the activity are no different in character, intensity or scale than they would be in the absence of the marginal or temporary non-compliance; and
  • If any adverse effects of the activity on a person are less than minor.

If all of the above criteria are met, then the consent authority (in its discretion) may give notice in writing to the person proposing to undertake the activity that the activity is deemed permitted.

Conditions cannot be imposed on the notice (but advice notes may be used) and the notice lapses after five years unless the activity permitted by the notice is given effect to. 

Unlike ‘boundary activities’ (which we covered in an earlier blog), you cannot apply for a consent exemption for a marginal or temporary non-compliance (council must return your application), however, council may on its own initiative treat a proposal as exempt.  As such, the change is likely to be of most use when planning infringements are identified at building consent stage. 

The accepted planning practice of bundling applies. Therefore, councils will not unbundle a proposal when an activity contains elements which could be deemed permitted and other elements that require consent.

The Ministry for the Environment has confirmed that deemed permitted activities will not form part of the statutory "permitted baseline" (as they are not permitted by a rule in a plan).

Given the absence of definitions for “marginal” and “temporary”, the requirement for environmental effects to be “no different in character, intensity or scale” and the potential for judicial review, we expect this new discretionary power will be used sparely and with care.

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