Information for resource consent applicants
INFORMATION FOR RESOURCE CONSENT APPLICANTS
- Existing resource consents are protected until the end of their term.
- The Resource Management Act 1991 (RMA) still applies to the common marine and coastal area (CMCA) although some amendments have been made to the RMA as a result of the Marine and Coastal Area (Takutai Moana) Act 2011 (contained in Schedule 3 of the Act).
- Local authorities will continue to grant resource consents in the same way they do now. There will be some changes when a protected customary right or customary marine title is found.
- In areas of the CMCA where a group has applied for recognition of customary marine title, the Act includes a new requirement for resource consent applicants to notify and seek the views of the customary marine title applicant before lodging a resource consent application in the same area.
- In areas where a protected customary right or customary marine title has been established, there are rules about how and when a resource consent applicant must engage with the holders of these rights and whether a resource consent can be granted or exercised.
- In protected customary rights areas, a resource consent, including for a controlled activity, cannot be granted if the activity will, or is likely to, have adverse effects that are more than minor on the exercise of a protected customary right unless:
- the protected customary rights group agrees; or
- the activity is to continue existing aquaculture in the same area; or
- the activity is an emergency activity; or
- the activity is for an existing accommodated infrastructure (see section 64 (2) (c)); or
- the activity is related to an existing privilege for petroleum (see section 64 (2) (b)).
- In customary marine title areas, a resource consent cannot be exercised unless permission has been received in writing from the customary marine title group. Permission must cover the scope of the resource consent. Penalties apply to resource consent applicants exercising a resource consent without this permission. There are some exceptions to this requirement (see sections 64 (2) (a) – (h)) including:
- Accommodated infrastructure and their associated operations;
- Minimum impact activities related to petroleum;
- Scientific research or monitoring; and
- Deemed accommodated activities (future activities which are essential and cannot be carried out in another location).
For a list of current applications see here.
INFORMATION FOR DEVELOPERS/COMMERCIAL OPERATORS
- Under the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act), ownership of existing roads and structures remains with the current owner. The Act continues the ownership status of structures in the common marine and coastal area (CMCA) that was provided for in the Foreshore and Seabed Act 2004. New structures will be owned by the person who holds the resource consent for the occupation of the part of the CMCA where the structure is located.
- Leases and other proprietary interests (like licenses or easements) in respect of land are protected until expiry. They will be able to be renewed if they contain a right of renewal. In most cases the lessee will need to apply for a resource consent to replace the proprietary interest.
- Resource consents are protected until the end of their term.
- Local authorities will continue to issue resource consents in the marine and coastal area and manage the area in line with the Resource Management Act 1991 (RMA).
- Protected customary rights and customary marine title can be claimed anywhere in the common marine and coastal area (CMCA). There are tests that must be met before protected customary rights and customary marine title will be granted (see sections 53 and 60/61 of the Marine and Coastal Area (Takutai Moana) Act 2011.
- In areas of the CMCA where a group has applied for customary marine title, the Act includes a new requirement for resource consent applicants to notify customary marine title applicant groups and seek their views before lodging a resource consent application. Local authorities will have information about where customary marine title has been claimed.
- If court proceedings are underway relating to claims for a protected customary right or customary marine title in the same area as your infrastructure/structure or development, you will be able to join the proceedings on those claims, if you choose.
- Certain existing infrastructure is protected from customary marine title. This means activities associated with this infrastructure will not be subject to the permission right of customary marine title holders. Existing infrastructure is infrastructure that is:
- lawfully established, owned operated, or carried out by one or more of the Crown (including a Crown entity), a local authority or council controlled organisation, a network utility operator, an electricity generator or a port company or operator; and
- reasonably necessary to the national or regional social or economic wellbeing.
- If customary marine title is established in an area and an organisation or person proposes new infrastructure in that area, the organisation or person will need to apply to the Minister for Land Information to classify this infrastructure as a ‘Deemed Accommodated Activity’. Certain criteria need to be met for this classification to be made, including:
- the infrastructure must be lawfully established, owned, operated or carried out by one or more of the organisations/persons listed above,
- the infrastructure cannot practicably be constructed or operated in any location other than within a customary marine title area; and
- the infrastructure is essential for the national or regional social or economic wellbeing.
- See also ‘Information for resource consent applicants’.
The Marine and Coastal Area (Takutai Moana) Act 2011 changes the regimes that applied to reclamations under the repealed Foreshore and Seabed Act 2004 and other legislation.
Developers may apply for an interest (for example freehold or leasehold) in reclaimed land. Other people (e.g. occupiers and network utility operators) may also apply for an interest in certain situations. The interest granted, if any, will be determined by the responsible Minister.
The Act sets out the criteria the responsible Minister must consider in deciding whether or not an interest will be granted.
For port companies, port operators and Auckland and Wellington Airports, the Act includes a presumption (but not a guarantee) that the interest granted will be a freehold interest.
A Right of First Refusal (in favour of the Crown and then local iwi and hapū) applies to the disposition of a freehold interest in land that is reclaimed under the Act.
For further information on reclaimed land, please visit http://www.linz.govt.nz/crown-property/marine-coastal-area/index.aspx
See also ‘Information for resource consent applicants’ and ‘Information for developers/commercial operators.