What are Existing Use Rights and Certificates of Compliance?

‘Exiting use rights’ is the resource management term given for activities or for physical building works (such as part of a house) that were (legally i.e. they were permitted activities and did not require resource consent) established under previous planning rules.

Existing use rights are different from having an activity that resource consent or planning permission was sought.

Existing use rights can be lost if the character, intensity and scale of these rights are modified or if the activity was discontinued for more than 12 months. For example, a childcare centre accommodating 25 children may have been legally established many years ago, but if this childcare centre were to increase in size so say 100 children, this would not have the same character, intensity or scale as when it was originally established.

If this childcare centre with 100 children contravened a rule in the current District Plan it would require resource consent regardless of the fact that when it was first established it did not need resource consent.

It can be difficult to prove existing use rights apply, as when an activity is permitted, there is no resource consent application sought and not always building consent documentation that you can refer to.

For example, in the situation that retail, office and warehousing activities are all permitted on a property, the building consent plans may refer to the activities that were being undertaken (or proposed to be undertaken) when the building was first constructed, but these activities may have changed and there may not be a corresponding building consent plan to reflect this change. This creates difficulties down the line when you are trying to establish the history of the use of the property.

In this case, it may be appropriate to apply for a Certificate of Compliance (which is a type of resource consent) for a permitted activity. There is a cost associated with applying for and receiving this Certificate of Compliance. You will need to make an application to the council with sufficient information to demonstrate that your proposed activity complies with the District Plan. The council will then process your application and issue you with a certificate of compliance.

The costs of a Certificate of Compliance depend on the time that the council spends in processing the application – but the deposit fees for a Certificate of Compliance for several councils is illustrated below:

Auckland Council – $570
Lakes Environmental (Queenstown Lakes District Council) – $150
Taupo District Council – $511
Rotorua District Council – $475

One situation where applying for a Certificate of Compliance may be useful is in pre-purchase negotiations where the purchase is reliant on a certain activity being undertaken on the property. You may not wish to make an offer on a property unconditional unless you have this Certificate of Compliance to demonstrate that an activity, such as a hairdressing salon can be operated from a room in a house.

For any further questions on Existing Use Rights or for help in applying for a Certificate of Compliance, please contact Cindy.

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