Varying or cancelling a consent notice

What this application is

Under section 221 of the Resource Management Act 1991, when a subdivision consent is granted with a condition that the subdividing owner and later owners must keep complying with after the survey plan is deposited, the territorial authority must issue a consent notice setting out that condition. This does not apply to a condition for which a bond is required or a completion certificate can be or has been issued. A consent notice can be registered against the title, and once registered it is a covenant running with the land that binds all later owners.^[1]

At any time after the survey plan is deposited, the owner may apply to the territorial authority to vary or cancel any condition in a consent notice, and the territorial authority may review a condition and vary or cancel it. Before the survey plan is deposited, the holder of the subdivision consent applies under section 127 instead. When a registered condition is varied or cancelled, the Registrar-General of Land notes this on the register and the title, and the condition then takes effect as varied or stops having effect.^[1][7]

An amalgamation condition is a subdivision consent condition that requires land to be held in a particular record of title. Under section 241, once it has been complied with, the parcels in that title cannot be disposed of separately or held under separate titles without the territorial authority's approval. The territorial authority may cancel such a condition in whole or in part at any time, before or after the survey plan is deposited, and the cancellation is then recorded.^[2]

Under section 243, when a subdivision consent is granted or a title is issued with a condition that specified easements be granted or reserved, those easements cannot be surrendered, merged or varied without the territorial authority's written consent. The territorial authority may revoke such a condition in whole or in part at any time, before or after the survey plan is deposited, and the cancellation is then recorded.^[3]

A record of this type in a council's list shows that a change was requested or that the council started a review, not that the change was made.^[1][8]

What neighbours can do

Auckland Council publishes a weekly list of resource consent applications lodged in the last 26 weeks, and its Regional Planning Helpdesk can give details about specific applications. Wellington City Council says resource consent applications are public information and anyone can ask it for a copy of a recent consent.^[9][10]

Section 221(3A) applies sections 88 to 121 of the Act to an application to vary or cancel a consent notice, so the Act's written approval, notification and submission provisions apply to it, with all necessary modifications. Sections 241 and 243 set out no notification or submission process for cancelling an amalgamation or easement condition.^[1][2][3]

An applicant may ask a neighbour for written approval. Wellington City Council says a neighbour does not have to give approval or a reason for refusing. Both councils say they accept only unconditional approval, and that once a person gives written approval the council does not take the effects on that person into account. Auckland Council says this applies both when it decides whether to notify the application and when it decides whether to grant it, and that a person who gave approval cannot appeal the decision once the consent is granted.^[11][12]

Auckland Council says a person can change their mind until a decision is made on the application, even after giving written approval, and should confirm a withdrawal in writing as soon as possible because the council may need to notify the application. Wellington City Council says written approval can be withdrawn at any time before the consent is granted.^[11][12]

Submissions can be made only on notified applications. If an application is publicly notified, anyone may make a submission; if it has limited notification, only people served with notice of it may, with some limits set out elsewhere in the Act. A submission can support or oppose the application, or be neutral. Under section 120, apart from the applicant (and, for some coastal permits, the Minister of Conservation), only people who made a submission can appeal the decision to the Environment Court.^[13][14][15]

Auckland Council says public notices of notified applications appear in newspapers and, for some parts of the region, on its resource consent public notices page. Wellington City Council says it advertises publicly notified consents on its website and that its public notices list consents open for submissions.^{[16][17][18][15]}

Notification

Because section 221(3A) applies sections 88 to 121, with all necessary modifications, the council decides whether to notify an application to vary or cancel a consent notice using the same notification steps as for a resource consent application.^[1][19][20]

Section 221(3A) also applies section 127(4). When deciding who is adversely affected by the change, the council must consider, in particular, every person who made a submission on the original application and may be affected by the change or cancellation.^[1][7]

Submissions close on the 20th working day after the application is publicly notified or given limited notification. For limited notification, the council may close submissions earlier once every affected person has made a submission, given written approval or said in writing that they will not make a submission.^[21][16][18]

Sections 241 and 243 let the territorial authority cancel an amalgamation or easement condition without setting out any notification step. Auckland Council says these cancellations are technical matters that need council action but are not dealt with through standard resource consent processing.^[2][3][8]

In Auckland

Auckland Council says applications to cancel an easement under section 243(e) or amalgamation conditions under section 241(3) are usually made by cadastral surveyors and legal professionals, that it accepts them only online, and that it may need more information such as a record of title or the proposed plans.^[8]

Auckland Council's fee schedule lists a variation or cancellation under section 221 as a separate application type from a variation or cancellation under section 127.^[22]

In Wellington City

Wellington City Council says its application form for changing or cancelling consent conditions can also be used to apply to vary or cancel a consent notice under section 221. It says an application must include plans showing the difference between what was approved and what is now proposed, an assessment of environmental effects of the change, and the written approval of anyone considered affected by the change.^[23]

Read the council's own guidance

• Right of way and land title certification, Auckland Council
• Change or cancel consent conditions or a consent notice, Wellington City Council
• Resource Management Act 1991, section 221: Territorial authority to issue a consent notice, New Zealand Legislation (Parliamentary Counsel Office)
• Resource Management Act 1991, section 241: Amalgamation of allotments, New Zealand Legislation (Parliamentary Counsel Office)
• Resource Management Act 1991, section 243: Survey plan approved subject to grant or reservation of easements, New Zealand Legislation (Parliamentary Counsel Office)