A coastal section has a boatshed built lawfully in 1985, before the district plan's current coastal setback rule. The owner wants to demolish it and build a larger two-storey boatshed in the same spot. What is the most likely consent requirement?
Correct Answer
C) Resource consent, because a larger rebuild is not protected by existing use rights
RMA s 10 lets a lawfully established use continue if its effects stay the same or similar in character, intensity and scale. Section 10(3) says the protection does not apply where reconstruction or extension of a building increases the degree to which it fails to comply with a district plan rule. A larger, two-storey boatshed inside the setback increases the non-compliance, so resource consent is needed, along with building consent for the construction.
Why This Is the Correct Answer
Existing use rights under RMA s 10 do not protect a rebuild that makes a building less compliant with a district plan rule (s 10(3)). A bigger boatshed inside the setback needs resource consent.
Why the Other Options Are Wrong
Option A: No resource consent, because existing use rights carry over to any replacement building
Existing use rights do not carry over to any replacement. RMA s 10(3) removes the protection where a rebuild increases the building's non-compliance with a plan rule.
Option B: Building consent only, since the boatshed use was lawfully established before the rule
The lawful 1985 use does not cover a bigger building. The larger boatshed breaches the setback rule more than the old one did, so building consent alone is not enough.
Option D: Only a coastal permit from the regional council, because the site is beside the sea
The setback rule is in the district plan, and a coastal permit from the regional council would not cover a breach of it. Regional coastal permits deal with the coastal marine area.
Deep Analysis of This Resource Management Question
Existing use rights protect a lawfully established use, including the building it uses, as long as the effects stay the same or similar in character, intensity and scale. Section 10(3) sets the limit for buildings: the protection is lost if reconstruction, alteration or extension increases the degree to which the building fails to comply with a district plan rule. A like-for-like rebuild may still be arguable; a larger two-storey boatshed inside a coastal setback is not. Existing use rights also do not apply to uses restricted by s 12 in the coastal marine area (s 10(4)), which is a regional matter.
Background Knowledge for Resource Management
RMA s 10 protects land uses lawfully established before a district plan rule became operative. The protection lasts while the effects are the same or similar in character, intensity and scale, and is lost if the use stops for more than 12 months (unless the council grants an extension). It does not protect a rebuild or extension that increases non-compliance with a rule (s 10(3)). It does not apply to regional controls on land use, the coastal marine area, or river and lake beds (s 10(4)).
Memory Technique
Existing use rights protect 'the same or similar'. A rebuild that keeps the building the same may be protected; a rebuild that makes the breach bigger is not. Think 'same or smaller survives, bigger needs consent'.
In a rebuild question, compare the new building with the old one. If the rebuild increases the breach of a plan rule (taller, larger, closer to the boundary or coast), existing use rights under s 10(3) do not cover it.
Exam Tip for Resource Management
Existing use rights questions often turn on scale. Check whether the change keeps effects the same or similar, and whether a rebuild increases non-compliance with a plan rule.
Real World Application in Resource Management
A bach owner has a 1970s bach inside a coastal setback that came in later. They can keep using it. When they plan a bigger two-storey replacement, their planner advises that s 10(3) takes the larger rebuild outside existing use rights, so they apply for resource consent and the council may ask them to move the new building back from the coast.
Common Mistakes to Avoid on Resource Management Questions
- •Assuming existing use rights transfer automatically to new buildings
- •Thinking building consent alone is sufficient for coastal development
- •Confusing activity rights with development rights
Related Topics & Key Terms
Key Terms:
More Resource Management Questions
What is required before starting construction of a new two-storey family home in New Zealand?
A developer wants to subdivide Rural-zoned land into residential sections. The district plan does not prohibit this, but says consent can be granted only if the proposal passes the section 104D gateway test. What activity status does that indicate?
A homeowner receives a LIM report showing that previous resource consent was granted with ongoing conditions requiring annual monitoring reports. What does this mean for the new owner?
A property owner receives a notice that their building work was undertaken without a building consent. What is this notice likely to be called?
Under the Building Act 2004, which type of building work typically requires a building consent?
- → A client wants to subdivide their rural property into smaller lots. What type of consent will they most likely need under the RMA?
- → Under section 104 of the RMA, when considering a resource consent application, what must a consent authority have regard to alongside the actual and potential effects on the environment?
- → Under the Resource Management Act 1991, what is the primary purpose of district plans?
- → A property developer wants to subdivide a 2-hectare residential section into 10 lots. Under typical district plan rules, what consents would likely be required?
- → Under the Building Act 2004, which authority is responsible for issuing building consents?
- → Which of the following activities would most likely require resource consent under the RMA?
- → What is the main difference between a regional plan and a district plan?
- → A property has an existing resource consent for a home-based business that expires in two years. What happens if the owners want to continue the business after the consent expires?
- → A developer has obtained resource consent for a subdivision but discovers during earthworks that the site contains archaeological features. What is the most likely immediate consequence under New Zealand law?
- → A LIM report will typically include information about which of the following?
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