Existing use rights

Section 10 of the RMA allows land to be used in a way that contravenes a District Plan(external link) rule, or proposed rule, if: 

• The use was lawfully established before the rule came into legal effect. ‘Lawfully established’ means that when the activity started or the building was built, it was permitted by planning rules; and

• The effects of the use are the same or similar in character, intensity and scale to those which existed before the new rule came into effect.

 Existing use rights don’t apply if:

• A building is changed in a way that increases the extent of non-compliance with any District Plan rules; or

• If the existing use has been discontinued for more than 12 months at any time since the activity was in breach of a rule in the District Plan.

If the existing use has been discontinued for more than 12 months, you can apply to the Council within two years of the activity ceasing to extend it.

Approval is needed from anyone who might be affected by the extension. In considering the application, the Council needs to be satisfied that the effect of the extension is not contrary to the current objectives and policies of the District Plan.

Please note that the government intends to revoke and replace the RMA, and the new legislation may change the existing use rights provisions.

Facts and evidence are needed to establish existing use rights.

Sources of information that can help confirm lawful establishment and continuity of an activity or development can include: information from the property file, consent documents, rating information, photographs, company accounts and records, correspondence, legal agreements and contracts, and records from public departments.

If it is likely that existing use rights apply, there is the option of applying for an Existing Use Certificate [PDF, 150 KB] to confirm this.

Existing use rights can sometimes be checked as part of the Project Information Memorandum planning assessment when applying for a building consent. 

A resource consent(external link) is a formal approval needed when a building or activity does not meet the rules in the District Plan or where the Plan states that resource consent is required for a particular activity.

A resource consent allows you to build or use your land in accordance with the conditions of the consent, and you do not have to comply with all the rules in the District Plan.

The Section 10 requirements for existing use rights don’t apply to activities or buildings that were established via a resource consent. The activity can be undertaken or the building reconstructed at any time in accordance with the resource consent.

If existing use rights don’t apply, or there isn’t enough information to confirm this, and you can’t rely on an existing resource consent, then the activity or development needs to comply with the District Plan rules, or a resource consent will be needed.

In some cases an application for resource consent can be quicker and less costly to process than an application for an Existing Use Certificate.

Existing use rights relate only to the Resource Management Act and the rules in the District Plan.

They don’t remove a property owner’s obligation to obtain other consents or approvals that may be required, such as building consent, resource consent from Environment Canterbury, or liquor license.

They also don’t change the operator’s other duties under the RMA, such as the duty to avoid unreasonable noise (section 16), the duty to avoid, remedy or mitigate adverse effects (section 17), or the obligation to reduce excessive noise to a reasonable level (section 327).