Activities that have operated on a site for a long time are likely to have existing use rights. This means that they were established at a time when they were either a permitted activity under the district plan rules that applied at the time, or did not require a resource consent.
When the rules change in the district plan, and become more restrictive, the legality of existing uses can sometimes come in to question.
The Resource Management Act 1991 (RMA) allows the Council to issue an Existing Use Rights Certificate in such circumstances. These certificates confirm the agreement of the Council that the activity has been legally established. These Certificates have the same status as a land-use consent.
Existing use rights only apply to use of land, they cannot be sought with respect to regional consenting matters like discharge permits.
Section 10 of the RMA sets out the tests that must be met in order for a Council to issue an Existing Use Rights Certificate. These include:
The older an activity is the more difficult it is likely to be to provide evidence of legal establishment. This is because an activity claiming existing use rights must not cease operations for a period of more than 12 months and evidence must be supplied demonstrating this continued operation.
Mr Jones set up a general practice clinic within a residential zone in 1990. The site is occupied by a standard residential dwelling. During this time, other than himself, he has employed two other general practitioners within the building and had a small 1m2 sign along the street boundary advertising these services.
In 2020, the Council notifies a new plan change that changes the zoning of the site and makes operation of general practice clinics a restricted discretionary activity.
Mr Jones does not have any documents such as a landuse consent confirming that the GP clinic was lawfully established.
In order for the Council to confirm Existing Use Rights in this example, the following would need to be proven:
Applying for Existing Use Rights Certificates can be quite a technical exercise and requires a good understanding of the district plan rules in operation both at the time of the application and prior.
It is worthwhile contacting a planning expert to prepare your application to make sure things run smoothly.
Urban Planning Consultants to help you with your application or with any advice about the potential to obtain an Existing Use Rights Certificate.
Please contact us on the details below today.
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Existing Use Rights provide legal protection for activities established before more restrictive planning rules come into effect to continue. This concept allows existing uses to continue without requiring a new resource consent every time the planning regime changes. They provide assurance to property owners and businesses that their operations can continue legally.
If your property or business has been in operation for a significant period and complies with the planning rules that were in place at the time, it may qualify for Existing Use Rights. As well as duration on the activity, you must also provide evidence that the activity has continued and not ceased for a period exceeding 12 months during its operation. The intensity of the use must also remain the same for existing use rights to apply.
To obtain a certificate, you need to provide evidence that your activity was legally established before more restrictive rules came into force. This includes demonstrating that the effects of your use have remained "same or similar in character, intensity, and scale" over time. You must also prove that the activity has continuously operated since the more restrictive planning rules came into force.
A wide range of activities, such as businesses, clinics, and various services, can potentially qualify, provided they meet the legal requirements. Existing Use Rights can also apply to structures which may no longer comply with new planning rules such as height or setbacks.
The older an activity is, the more challenging it can be to provide evidence of legal establishment. Continuous operation for over 12 months without significant changes is essential.
Yes, they can provide expert assistance by understanding district plan rules, assessing eligibility, and preparing a comprehensive application to streamline the process and increase the chances of success.