Existing use rights mean that many home owners required by the Council to get a resource consent to rebuild can actually avoid doing so if they comply with some key requirements.
Existing use rights mean that even if a house would need resource consent to be built under today's rules, it may well be possible to demolish and replace it without a resource consent – not necessarily with exactly the same house - provided some key requirements are met.
First, the house must have been lawfully established, meaning that either it complied with the rules that applied when it was built, or that the Council granted specific planning permission (e.g. resource consent) at that time. If it was subsequently changed in a way that made it unlawful under planning rules of the day, this requirement is not met.
Second, the new house cannot breach the current Council rules by more than the house it is replacing, or cause a much worse environmental effect as a result. So, if a three story house obtained planning permission when first built because it was overheight, it cannot be replaced with a four storey house, but only with one of the same height or less. The same would apply to other controls like minimum distances from boundaries, site coverage and sunlight/shading (recession plane).
Third, the site cannot sit vacant for more than a year between the old house being removed and the new house being built. This requirement is the most difficult, because it is not quite clear whether a house that had to be removed immediately after the earthquake for safety reasons, cannot be rebuilt under existing use rights even if the only reason for that is that the insurance money remains tied up. That seems very harsh, but the Resource Management Act as it stands could be interpreted to mean that this is the case.
Councils should not be too quickly criticised for PIMs (project information memorandums) that require resource consent in these circumstances. The law says that it is up to the person wishing to rely on existing use rights to raise the issue with the Council and to provide it with the necessary proof. So where a person applies for a PIM and makes no mention of existing use rights, a Council is doing nothing unlawful by requiring a resource consent. That said, some guidelines from Councils showing when they would accept that existing use rights make resource consents unnecessary would be very helpful and avoid a lot of unnecessary frustration. Those could at the same time set out the Council's positions on sites that have been vacant for more than a year for reasons beyond the owner's control.
If you think you can rely on existing use rights, it would be wise to make sure by checking with a properly qualified professional. In many cases they will advise you to apply for what is known as an existing use certificate, which is issued by the Council and certifies that the reconstruction is lawful in the same way as if it had a resource consent. In the interim don't take everything the PIM says as gospel – get expert advice to be sure.
Note: This article deals only with resource consents and not building consents. Existing use rights cannot remove the need to obtain a building consent before rebuilding.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
