Information on deemed permitted boundary activities.
The Council must exempt ‘boundary activities’ from needing a resource consent if neighbour’s approval is provided.
Many district plan rules control the position or size of a structure in relation to the boundaries of the site where it is located (or proposed to be located). Adverse effects from infringements to these rules are generally localised, and affect the property sharing the boundary where the rule is breached (that is, the neighbour).
Previously any infringement of a district plan rule required a resource consent, even if the only effects of that breach were on a neighbouring property who had given their written approval. The effects on these persons would then be disregarded when considering the application.
The Resource Management Act 1991 was amended on 18 October 2017 to insert new section 87BA, which requires councils to treat boundary activities as permitted if written approval is given by the relevant neighbour(s), and certain information is supplied to the Council. Detail of this process is provided below.
Definitions related to boundary activities
Sections 87AAB(1) and (2) define certain terms as follows.
An activity is a ‘boundary activity’ if:
- resource consent is required due to the infringement of one or more ‘boundary rules’;
- no other district rules are infringed;
- no ‘infringed boundary’ is a ‘public boundary’.
A ‘boundary rule’ is a district rule relating to the distance between a structure and a property boundary (or boundaries), or the dimensions of a structure in relation to its distance from a boundary. Common examples include yard setbacks, height plane angles (sometimes known as ‘recession planes’ or ‘height in relation to boundary’ rules) or fence rules where these relate to the boundary. This definition excludes general land use rules that do not relate to a boundary (for example, overall building site coverage or maximum height restrictions).
For boundary activities, written approval is only needed from the owner of the property (or owners of the properties) with an ‘infringed boundary’, which is a boundary that the rule infringement applies to. In these cases, councils do not need to undertake a wider assessment to determine if any other people are affected.
The definition of ‘infringed boundary’ also means, if there is an infringement to a boundary rule:
- when measured from the corner point of an allotment, written approval is needed from the owners of every property with a boundary that intersects with the point of that corner;
- next to a ‘private way’ (defined in the RMA), written approval is required from the neighbour on the opposite side of that private way.
The definition of ‘private way’ in the Resource Management Act 1991 cross-refers to the definition in section 315 of the Local Government Act 1974 as follows:
Private way means any way or passage whatsoever over private land within a district, the right to use which is confined or intended to be confined to certain persons or classes of persons, and which is not thrown open or intended to be open to the use of the public generally; and includes any such way or passage as aforesaid which at the commencement of [Part 21 of the Local Government Act 1974] exists within any district.
A ‘public boundary’ is a boundary between an allotment and any road, river, lake, coast, esplanade reserve, esplanade strip, other reserve, or land owned by a council or by the Crown. Boundary exemptions cannot be granted for rule breaches that affect these boundaries.
The boundary activity process
If a person proposing to undertake a project identifies that it meets the definition of a boundary activity, they need to supply the Council with:
- a description of the activity;
- a plan (drawn to scale) of the site at which the activity is to occur, showing the height, shape, and location on the site of the proposed activity;
- the full name and address of each owner of the site;
- the full name and address of each owner of the allotment with an infringed boundary;
- written approval from each owner of an allotment with an infringed boundary, including their signatures on the plan.
If a person applies for a boundary activity exemption and the Council is satisfied that the activity is a boundary activity and all of the necessary information is provided, the Council must provide a written notice to the person, stating that the activity is permitted.
The Council has 10 working days to provide this notice. Unlike a resource consent application, the Council has no ability to request further information for boundary activity applications under section 92 of the Resource Management Act 1991. This means the 10-day ‘statutory clock’ cannot be stopped in this way, although timeframes may be extended under section 37 of the Resource Management Act 1991 (subject to the criteria set in section 37A).
A written notice for a boundary activity exemption lapses after five years if it has not yet been given effect to. If a boundary exemption has been granted by the Council, it is not eligible for a certificate of compliance under section 139 of the Resource Management Act 1991.
If a person applies for a boundary activity exemption but fails to provide the correct information, or the Council determines that other rules are infringed, then the activity does not qualify for a boundary activity exemption and the Council must return the information to the applicant. An application for a resource consent will then be required, or the proposal will need to be amended to comply.
If a person has applied for a resource consent, but the Council determines that the application actually includes all the necessary information to qualify as a boundary activity, then the Council must provide a boundary exemption and return the resource consent application.
Still didn't find what you were looking for?