Lapsed consent, waiver and time limit extension powers
Lapsed consent, waiver and time limit extension powers
Monday 7 December, 2020
The recent decision of the Environment Court, Sidwell v Thames-Coromandel District Council [2020] NZEnvC 124, considered the application of sections 37 and 37A of the Resource Management Act 1991 (“RMA”) in the context of resource consents which have lapsed.
In this case, a property owner (“Sidwell”) had obtained a subdivision consent from Thames-Coromandel District Council (“the Council”) to enable him to subdivide his property into three lots. Sidwell undertook extensive site works to implement his intended development, including retaining walls, benches, and other earthworks, as well as installing services. However, he overlooked the requirement to submit a survey plan of the subdivision to TCDC for approval under s 223 of the RMA within the 5-year period after the consent commenced. Consequently, the consent lapsed in accordance with s 125 of the RMA. Nevertheless, Sidwell considered that TCDC was able to consider and grant a waiver under sections 37 and 37A of the RMA that would effectively revive the consent. Based on legal advice, TCDC informed Sidwell that it did not have such jurisdiction and that he must instead reapply for the subdivision consent if he wanted to proceed with the development.
Sidwell sought a declaration explaining and confirming the existence and extent of the discretionary power of a council under section 37 to extend the time limit of a resource consent whether or not the time period has expired, and whether this clause provides the Council with the power to waive and extend the time limits expressed under section 125.
Section 37 provides that a local authority may extend a time period specified in the RMA whether or not the time period has expired. In making its decision the authority must take into account the interests of any person who may be directly affected by the extension or waiver, the interests of the community in achieving adequate assessment of the effects of a proposal and its duty under section 21 to avoid unreasonable delay.
The Court considered that the meaning of an enactment is to be ascertained from its text and in light of its purpose, which involves considering section 125 and sections 37 and 37A in their immediate context, in light of the ordinary meaning of their words and, if need be, with recourse to the wider RMA context. Reference can be made to legislative history where necessary to do so, such as to assist to overcome uncertainty and ambiguity as to the meaning of a provision.
Starting with section 125, the Court stated that it is readily capable of being read as a self-contained regime for lapsing and that there is no need to have recourse to section 37. If section 37 did apply, there would be significant overlap between the processes for the consideration of lapse extension applications in section 125(1A) and those for time limit extension applications in section 37A. Further, a comparison of the criteria in s 125(1A) and s 37A show they are designed for different purposes, with section 125(1A) focused on the justification for and resource management implications of extending the life of a resource consent by a lapse extension, whereas the criteria in section 37A are not focused on any resource consent but on natural justice and due process matters pertaining to resource management processes, including the rights and interest of participants in those processes.
Additionally, if section 37 were to apply to a lapse extension application, it would be uncertain how this would bear upon the discretion available to a consent authority under section 125(1A)(b). Section 125 provides no limits as to how long a lapse extension would be granted for. However, if the “time period” in section 37 and 37A was to be read to include the lapse period for a consent, section 37A would potentially impose limits on how long a lapse extension would be granted for due to section 37A stating the time period may only be extended for a time not exceeding twice the maximum time period specified in the relevant provision.
The Court considered that by Sidwell’s interpretation, it would effectively mean that a subdivision consent that had lapsed could be brought back to life and that this would be a very significant gloss on the RMA’s highly prescriptive regime for resource consents. The Court therefore agreed with TCDC that it had no jurisdiction to entertain an application by Sidwell to extend the lapse period of his former consent. His only available recourse was to apply for a new consent.
The outcome
The Court confirmed that once a resource consent has lapsed under s125 of the RMA there is no means for it to be revived, and a new application for consent will be required.
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