This article summarises the law on when a consent lapses under the Resource Management Act 1991 (RMA), and considers a recent decision on lapse concerning coastal permits in the Marlborough Sounds.
Under the RMA (s125) a resource consent lapses if it is not given effect to by the date specified in the consent, or if no date is specified, 5 years after the consent commences (3 years for aquaculture activities in the coastal marine area).
A longer lapse period may be granted where there is something about the proposal that warrants it. For example, in a case involving a significant tidal energy generation project, the Court granted a 10-year lapse period for coastal permits due to the project’s large scale, national importance and the staged nature of the project.[1]
A consent holder can apply to the council for an extension of the lapse period (under s125(1A)(b) of the RMA). In considering an extension application the council must take into account:
1). whether substantial progress has been made, and continues to be made, towards giving effect to the consent; and
2). whether the applicant has obtained written approval from persons who may be adversely affected by the granting of the extension; and
3). the effect of the extension on the objectives and policies of any plan or proposed plan.
If the council decides not to grant the extension, the consent holder can object under ss 357A and 357C of the RMA and has a further right of appeal under s358.
The overarching statutory purpose of the lapsing regime in s125 is that resource consents should not subsist for lengthy periods of time without being put into effect, because the context can change significantly in that time.
A subdivision consent is given effect to when the survey plan is approved by the council under s 223. However, under s 224(h) the survey plan will lapse if it is not subsequently deposited within three years of the plans being approved.
For other resource consents, lapsing arises when a consent holder does not take sufficient steps towards giving effect to the activity authorised under a consent before it expires. In Friends of Nelson Haven and Tasman Bay Inc v Marlborough District Council the Environment Court discussed the key legal principles that apply when considering whether a consent is ‘given effect to’. In summary:[2]
a). The test requires a factual inquiry. It is not an evaluation of whether a consent should or should not lapse;
b). ‘Given effect to’ does not necessarily require that the consented work be fully completed or operational. It depends on the facts in any case. The following questions may assist:
- What is the nature of the activity authorised by the consent?
- Why has it not been completed?
- Why has it been discontinued?
- Was the discontinuance voluntary and justified?
c). The fact that no physical works have been undertaken is not necessarily fatal – the facts have to be looked at in each case.
In Biodiversity Defence Society Inc v Solid Energy New Zealand Ltd[3] Solid Energy had a number of consents to operate a coal mine. The High Court considered whether some of the resource consents had lapsed because various authorised works had not been completed (and some not even commenced). The High Court (upholding the Environment Court decision) found that the consents had not lapsed because by its nature, coal mining requires a suite of consents. Once consent was granted, much planning work was necessary and significant progress had been made on that planning work as well as physical works being undertaken, such as the construction of roads. Considering the consents collectively, they had been given effect to and not lapsed under s125.
By comparison, in Friends v MDC, Treble Tree Holdings Limited sought coastal permits to farm sponges and mussels at three sites at Treble Tree Point, Waitata Reach, Pelorus Sound. All three sites previously had coastal permits for the same activities. The issue was whether those permits were still valid. If they were, the applications would be for renewal consents which are controlled activities under the Marlborough Sounds Resource Management Plan.[4] However, if the consents had lapsed then the applications would be for non-complying activities under the MSRMP.[5]
The High Court concluded that all three previous consents had not been given effect to within the lapse periods, and had therefore lapsed.
For the northern farm site, the key issue was when the previous coastal permit had commenced (and therefore the dates from which the lapse period was calculated).[6] At the time the previous consent commenced, Treble Trees was also required to obtain a fishing permit for the marine farm under the Fisheries Act 1983 (FA). Treble Trees argued that the consent did not commence until it held both the coastal permit and the fishing permit under the FA.
The Court did not accept this. It found that the coastal permit commenced on the date of the Environment Court consent order. From that date, Treble Trees had a reasonable time window within which to apply for the fisheries permit.[7]
On the evidence, the Court found that nothing relevant was done, either physically or in fulfilment of consent conditions, to give effect to the consent before it lapsed.
For other two sites (southern and middle) the issue was whether consents were given effect to before their lapse date. Treble Trees argued that the physical presence on site of anchor blocks (installed under an earlier historic consent) and preparatory work undertaken to get sponge experiments started, were sufficient to avoid lapse.
The Court did not accept this. It examined the consents and related evidence and concluded that Treble Trees chose not to do anything to enjoy the consents for commercial reasons. Further, Treble Trees could have applied for an extended lapse period which would have allowed it longer to give effect to the consent. A consent holder concerned about commercial factors would take that contingency measure.
This decision reinforces that the applicant’s personal and financial circumstance or the financial viability of a proposal are not relevant to a determination of whether a consent has been given effect to.
As such, it is best to consider at the outset of an application whether a longer lapse period should be applied for. Consent holders must also be aware of the lapse period within which their consent is to be given effect to. If there is a risk of a lapse, then an application for extension will need to be made. The only other alternative is for the application to be relodged.
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[1] Cress Energy Kaipara Ltd v Northland RC [2011] NZEnvC26, [2011] NZRMA420.
[2] Friends of Nelson Haven and Tasman Bay Inc v Marlborough DC [2018] NZEnvC61 at [17].
[3] Biodiversity Defence Society Inc v Solid Energy New Zealand Ltd [2013] NZHC 3283 – refer also to the Environment Court decision in Biodiversity Defence Society Inc v Solid Energy New Zealand Ltd [2013] NZEnvC 195.
[4] Under Rule 35.2.5 which includes as a ‘controlled activity’ marine farms authorised by a current marine farm lease or licence applied for prior to 1 August 1996.
[5] The most restrictive activity class.
[6] Under s116 of the RMA.
[7] Under s150G(3) of the RMA if a fisheries permit had been applied for before the coastal permit lapsed under s125 then the coastal permit was deemed not to have lapsed.
