Environmental / Resource Management
Sidwell v Thames-Coromandel District Council [2020] NZEnvC 124
The Environment Court has recently considered an application for a declaration seeking confirmation that a Council may use its power under section 37 of the RMA to waive and extend the time limits expressed under section 125 of the RMA for the lapse date of resource consents.
Subdivision not submitted within 5 years
The applicant had previously held consent to subdivide his property into three lots and had undertaken extensive site works to implement the development. However, the survey plan was not lodged within the five-year timeframe prescribed by section 125. Section 125(2) provides that a subdivision consent is “given effect to” when a survey plan in respect of the subdivision has been submitted to the territorial authority under section 223. Therefore, the extensive site works were irrelevant to the question of whether the consent had been given effect to before it had lapsed. Section 125(1A) provides a right to apply for an extension to the lapse date “before the consent lapses” with a right of objection to the territorial authority's decision on that application. However, no such application was made.
The applicant accepted that the lapse had occurred but argued that a waiver could be granted to a late application so as to enable a lapse extension, despite the fact that the consent had already lapsed. He argued that section 37(1)(a) specifies that a time period can be extended whether or not it has expired.
The view taken by the Court
The Court disagreed. It considered section 125 relatively clear on its face and readily capable of being read as a self-contained regime for lapsing. There is no need to have recourse to section 37. Were section 37 to apply, there would be significant overlap between the processes for consideration of lapse extension applications in section 125(1A) and those for time limit extension applications in section 37A.
The Court also based its conclusions on the fact that the criteria in section 125(1A) pertaining to a lapse date extension application and those in section 37A waivers and extensions are designed for different purposes. The section 125(1A) criteria are focussed on:
- The jurisdiction for and RMA implications of extending the life of a resource consent, including progress towards giving effect to the consent;
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Whether the applicant has obtained the appropriate approvals from those who might be affected by the extension; and
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The effect of the granting of the lapse extension on the plan’s objectives and policies.
On the other hand, section 37A is not focussed on a resource consent but on natural justice and due process.
The Court also reasoned that:
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If a subdivision that had lapsed could be brought back to life, that would be a very significant gloss on the RMA’s highly prescriptive regime for resource consents, including that a consent is a form of authority for the purposes of section 11 of that Act. It is expected that the Legislature would be clear as to whether a resource consent can simply be revived by application once it had lapsed.
- Section 37 is not available as supported by the relevant legislative history. The RMA has always included provision for lapsing of consent, but where it previously expressly provided for an application for extension within three months of the lapse date and included the ability to use section 37, the current version has no such express provision (and also provides for a lapse period of five years as opposed to the previous two years).
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With reference to the observations of the Court of Appeal in Body Corporate 97010 v Auckland City Council [2000] 3 NZLR 513, the policy importance of section 125 is that consents should not subsist for lengthy periods of time, in part because physical and social environments change and knowledge progresses. On that basis, section 125 means what it says.
The decision
The Court concluded that the Council was functus officio in this aspect of its consent authority responsibilities and therefore had no jurisdiction to entertain the application by the applicant to posthumously revive the consent.
Ultimately, the Court also declined to make any alternative declaration, e.g. that section 37 is not available to extend a lapse date once it has passed, on the basis that the matter has been considered in its particular context and the Court ought to resist making a declaration that could have unintended consequences for parties not before the Court.
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