When is a resource consent “granted"?
When is a resource consent “granted"?
Tuesday 15 June, 2021
When the status of an activity changes from controlled to discretionary, or discretionary to non-complying, the date that a local authority granted resource consent can be important in determining existing use rights. In a recent High Court case, the Court had to decide whether a consent had begun on the date it was granted or on the day it commenced.
Background
This was an unsuccessful appeal from an Environment Court decision which held that the word “granted” in a rule of the Mackenzie District Plan meant that the permit must both have been granted and commenced, consistent with section 116 of the Resource Management Act 1991. The effect of this decision meant that a permit has only been granted if the time for lodging appeals has expired, and no appeals have been lodged, or the Environment Court has determined the appeals.
The appellant argued that the consent was granted on the day that the consent authority granted it (May 2012), not on the day that it commenced (October 2016). The appellant wanted to undertake agricultural conversion, which, due to a plan change, would either be a controlled activity or discretionary activity, depending on the date that its water permit had been granted.
Environment Court decision
The Court stated that the issue was one of statutory interpretation: whether “granted” in the rule meant granted by the Regional Council or had the wider meaning of granted and commenced. As the Court could not determine the correct interpretation from the rule, it had considered the broader context of the rule and its purpose. The Environment Court considered that its interpretation should take account of the importance placed on protecting outstanding natural landscape values, as the purpose of the plan change was to provide greater protection of the landscape values of the Mackenzie Basin from inappropriate development.
High Court decision
The High Court pointed out that the appellant had the burden of showing that the Environment Court’s interpretation of “granted” was incorrect and held that it had failed to do so. The Environment Court’s interpretation was an available meaning of the word, both on the text and in the broader context, therefore the High Court declined to substitute its own view.
Conclusion
Although it may seem unfair to the appellant to have gone through the process of obtaining a water use permit that it could not use, as the Council pointed out, a decision that “granted” simply meant granted would have resulted in the activity being a controlled activity based on water permits where there was an unresolved appeal before the Environment Court. However, this case is a timely reminder to local authorities of how precise language in rule changes can avoid costly litigation later.
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