Local Government Magazine
Legal

Separate but related

PARTNER, HEANEY & PARTNERS. sarah.macky@heaneypartners.com

Councils must manage relationship between two key laws.

Having represented councils for many years defending liability claims against them, I find an issue still arises at regular intervals. It is the inter-relationship between the Resource Management Act 1991 and the Building Act 2004.

Both pieces of legislation stand on their own and are entirely self-contained. However, they are not unrelated to one another when it comes to councils’ roles in approving and inspecting property developments in their jurisdictions.

Developers around the country routinely develop large tracts of land. Developers will apply for a subdivision consent to subdivide the land into individual lots, and a land use consent to address the design and location of buildings on the land.

Often the land will have its own special features, which could mean parts of the land may be less suitable for building on compared to other parts of the land being developed.

In terms of the suitability of the land for building on, for example, parts of the land may be located in a secondary overland flow path for stormwater.

In such circumstances, the resource consent for the approval of the development would need to have as a condition of the consent that any buildings subsequently constructed on the subdivided lots that are affected by the secondary overland flow path, are to have a minimum floor level plus free board so that the buildings are not flooded.

An issue still arises on the inter-relationship between the Resource Management Act 1991 and the Building Act 2004″.

Another example is that the development land might have geotechnical issues making the land prone to subsidence or erosion. In these circumstances, the resource consent for the approval of the development might need to have, as a condition for the lots affected, that geotechnical reports are obtained to ensure proper foundation bearing is achieved on the subdivided lots affected by the geotechnical issues.

These types of conditions are normally imposed pursuant to section 106 of the Resource Management Act 1991.

For obvious reasons it is imperative that the conditions imposed in the resource consents for both of the two scenarios described above are fulfilled.

However, this is where a gap in the processes within councils can occur. This can result in the resource consent conditions being overlooked when the building consents are subsequently applied for to build on the development land.

This is because the Resource Management Act and the Building Act are each standalone pieces of legislation. Yet the reality is they overlap in practice when conditions are imposed in the resource consent approval process.

Sometimes, if there has been a delay between the resource consent process and building work commencing on the sites, the resource consent conditions can simply be overlooked. That is because the building consent application is processed by the council focusing only on the individual site and not as a site within a large overall development.

In the case of the secondary overland flow path scenario above, the requirement for the minimum floor level needs to be in the forefront of the council officers’ minds when processing and approving the building consent applications. This is the point of no return as once construction starts the die is cast.

In any event, after construction commences the building inspectors will typically be focused on the physical building work and whether the building work itself complies with the building code. They are not, typically, focused on whether the site is located in an overland flow path.

It is therefore important that councils have effective flags in place in their systems and processes so that any resource consent conditions imposed are clearly signalled when a building consent is applied for where there are resource consent conditions.

That will ensure that the resource consent conditions are carried through to the building process to result in a successful development, for both the developer and to ensure the creation of good housing stock in councils’ jurisdictions.


This article was first published in the September 2018 issue of NZ Local Government Magazine.

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