222. Resource consent conditions are an essential tool for decision-makers to manage the environmental effects of activities. A considerable body of case law has established key principles that conditions must adhere to in order to be valid. However, the potential scope and nature of conditions, as set out sections 108 and 220 of the RMA, is verybroad.
223. The RMA does limit the scope of conditions, but also specifies that conditions may cover any matter. This contributes to uncertainty around the scope of conditions that can be imposed, which gives rise to confusion and litigation between councils and applicants. This also means that applicants are often unaware of the sorts of conditions that may be placed on their consent and the subsequent cost of compliance. In relation to housing affordability there is a need to ensure consent conditions contribute to, or at least are not a barrier to, improving the supply ofhousing.
224. The proposal is to limit the scope of consent conditions to reflect existing case law by requiring that consent conditions imposed by councils must be directly connected toeither:
· the provision which is breached by the proposed activityor
· the adverse effects of the proposed activity on the environmentor
· content that has been volunteered or agreed to by theapplicant.
225. This amendment will improve certainty by providing a legislative requirement for what are already well-established principles of common law. There are no policy trade-offs involved and there is little potential for unintended consequences. This provision is well-aligned with the Ministry’s objectives of delivering a user-focused system with appropriate scope and mix of protection, use and development ofresources.
226. The risks includethat:
· The Ministry does not hold any information as to whether there is actually a wide spread problem regarding ultra vires conditions being imposed or whether this is simply a perceived problem. As such this proposal may have minimal impact if the majority of conditions already meet the proposedcriteria.
· Conditions are often the factors that enable the granting of a resource consent. The changes may give consent authorities (and applicants) less flexibility to design consent conditions that achieve sustainable management and enable consent to begranted.
· Often conditions are offered by the applicant to address possible submitter concerns and to proactively offer broader community benefit. There has been public concern, particularly from councils, that limiting the scope of conditions may limit the flexibility and quality of decisions made. The proposal may result in a statutory block on such conditions which may give rise to statutory difficulties and losses for thecommunity.
227. No alternative options were considered for thisproposal.
228. Overall, the benefits of the proposal are considered to outweigh any potential risks. The proposal will codify best practice and provide greater certainty to resource consent applicants, as well as to consent authorities, on the scope of consentconditions.
