Information on deemed permitted marginal or temporary activities.
Previously any activity that breached a rule in a district plan or a national environment standard required a resource consent, regardless of the scale of the environmental effects of the infringement.
The Resource Management Act 1991 was amended on 18 October 2017 to insert new section 87BB, which provides a discretionary power for the Council to treat an activity as permitted if there is only a ‘marginal or temporary’ rule breach. Details on this power are provided below.
The marginal or temporary non-compliance process
The criteria for deciding whether to provide an exemption, as set out in section 87BB, includes:
- The activity would be a permitted activity except for a marginal or temporary non-compliance with the requirements, conditions and permissions specified in the Resource Management Act 1991, regulations (including any national environmental standard) or any plan or proposed plan for that area.
- Any adverse environmental effects of the activity are no different in character, intensity or scale than they would be in the absence of the marginal or temporary non-compliance.
- Any adverse effects of the activity on a person are less than minor.
If these criteria are met, the Council has the discretion to provide written notice to the person that their activity is permitted.
The written notice must include a description of the activity, details of the site, and the Council’s reasons for deciding the activity is permitted.
The written notice lapses in five years if it has not been given effect to. A marginal or temporary non-compliance is not eligible for a certificate of compliance under section 139 of the Resource Management Act 1991.
If the criteria in section 87BB cannot be met, or the Council decides not to grant a written notice, then a resource consent will be required or the proposal will need to be amended to comply.
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