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?
Correct Answer
D) Non-complying activity
Activity status depends on the district plan, so the question gives the plan's rule. The s 104D gateway test applies only to non-complying activities: consent may be granted only if the adverse effects will be minor or the activity will not be contrary to the plan's objectives and policies. An activity that must pass s 104D is therefore non-complying.
Why This Is the Correct Answer
Only non-complying activities must pass the s 104D gateway (effects minor, or not contrary to the plan's objectives and policies). A plan that applies that test is making the subdivision non-complying.
Why the Other Options Are Wrong
Option A: Controlled activity
A controlled activity must be granted. It faces no gateway test and cannot be declined on its merits.
Option B: Restricted discretionary activity
A restricted discretionary activity is assessed only on listed matters. The s 104D gateway does not apply to it.
Option C: Discretionary activity
A discretionary activity is assessed under s 104 with full discretion, but it does not have to pass the s 104D gateway first.
Deep Analysis of This Resource Management Question
Whether residential subdivision in a rural zone is discretionary or non-complying depends on the district plan. The question gives the deciding clue: the plan subjects it to s 104D. That gateway belongs only to non-complying activities. The council must first be satisfied that the adverse effects will be minor, or that the proposal will not be contrary to the plan's objectives and policies. Only then does it weigh the application under s 104 and decide whether to grant it.
Background Knowledge for Resource Management
The RMA has six activity classes: permitted, controlled, restricted discretionary, discretionary, non-complying and prohibited. Under s 104D a non-complying activity may be granted only if its adverse effects will be minor or it will not be contrary to the objectives and policies of the relevant plan or proposed plan. Passing the gateway does not guarantee consent; the council then decides under s 104.
Memory Technique
Picture a gate in front of the council's desk that only non-complying applications have to pass through. The gate has two keys, and either one opens it: 'effects minor' or 'not contrary to objectives and policies'.
If a question mentions s 104D or the two gateway tests, the activity is non-complying. If it mentions full discretion without a gateway, it is discretionary.
Exam Tip for Resource Management
Section 104D is the signature of a non-complying activity. Do not pick an answer just because rural-to-residential sounds serious; look for the test the plan applies.
Real World Application in Resource Management
A developer wants 30 sections on rural land. The district plan makes subdivision below the rural minimum lot size non-complying. The planner builds the application around s 104D, showing that effects on rural character and servicing will be minor, before arguing the merits under s 104.
Common Mistakes to Avoid on Resource Management Questions
- •Treating s 104D as applying to discretionary activities
- •Thinking non-complying means the activity cannot be consented
- •Assuming rural subdivision has the same status in every district plan
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 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?
- → Sarah wants to build a two-storey house on her vacant section in a residential zone, and the design meets all of the district plan's standards. What consent process will she need to follow?
People Also Study
Property Law & Legislation
56 questions
Agency Practice
89 questions
Sale & Purchase Process
63 questions
Professional Conduct & Ethics
46 questions
Related Study Resources
Previous Question
A property developer wants to subdivide a residential section into three lots. Which document should they consult first to understand the subdivision requirements?
Next Question
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?