Existing Use Rights Certificate

What are Existing Use Rights?


Activities that have operated on a site for a long time are likely to have existing use rights. This means that they were established at a time when they were either a permitted activity under the district plan rules that applied at the time, or did not require a resource consent.


When the rules change in the district plan, and become more restrictive, the legality of existing uses can sometimes come in to question.


The Resource Management Act 1991 (RMA) allows the Council to issue an Existing Use Rights Certificate in such circumstances. These certificates confirm the agreement of the Council that the activity has been legally established. These Certificates have the same status as a land-use consent.


Existing use rights primarily apply to use of land. While they can be sought with respect to regional consent matters like water takes, or discharges to land or air, it is less likely that these activities were permitted as there needs to be rules in the regional plan "expressly permitting" such uses. If there is no rule then it will not have been permitted and existing use rights will not apply. Refer to sections 10A and 20A of the Resource Management Act for more details.


What do I need to demonstrate to show existing use rights?


Section 10 of the RMA sets out the tests that must be met in order for a Council to issue an Existing Use Rights Certificate. These include:


  • Evidence that the activity was legally established prior to a more restrictive planning rule coming into force.
  • Confirmation that the effects of the use are the “same or similar in character, intensity and scale” to those which existed before the more restrictive rule came into force.


The older an activity is the more difficult it is likely to be to provide evidence of legal establishment. This is because an activity claiming existing use rights must not cease operations for a period of more than 12 months and evidence must be supplied demonstrating this continued operation. The longer an activity has been operating, the harder it would be to provide documents covering that full time period.


Case Example

Mr Jones set up a general practice clinic within a residential zone in 1990. The site is occupied by a standard residential dwelling. During this time, other than himself, he has employed two other general practitioners within the building and had a small 1m2 sign along the street boundary advertising these services.


In 2020, the Council notifies a new plan change that changes the zoning of the site and makes operation of general practice clinics a restricted discretionary activity.


Mr Jones does not have any documents such as a landuse consent confirming that the GP clinic was lawfully established.

In order for the Council to confirm Existing Use Rights in this example, the following would need to be proven:


  • Evidence would need to be provided about the GP clinic still being in operation at the time of the new rule being introduced in 2020. This could include power bills or invoices relating to medical supplies which contained the company name, address, and date or photos of the site which are date stamped.


  • Evidence that the activity did not require a resource consent on the date the new planning rule was notified. This will involve reviewing the rules of the district plan prior to the 2020 notification date and confirming compliance with all standards.


  • Mr Jones would need to provide a written affidavit or other written evidence such as contracts confirming the number of employees working at the GP Clinic in 2020 and other details about the scale of the activity, such as hours of operation on that date. 


Urban Planning Consultants Can Help You Obtain An Existing Use Certificate


Applying for Existing Use Rights Certificates can be quite a technical exercise and requires a good understanding of the district plan rules in operation both at the time of the application and prior.

 

It is worthwhile contacting a planning expert to prepare your application to make sure things run smoothly.

 

Urban Planning Consultants to help you with your application or with any advice about the potential to obtain an Existing Use Rights Certificate and to prepare your application should it look promising.

 

Please contact us on the details below today.



Existing Use Rights: Frequently Asked Questions

Have a question? We’re here to help.

  • What are Existing Use Rights, and why are they important for property owners and businesses in New Zealand?

    Existing Use Rights provide legal protection for activities established before more restrictive planning rules have come into force.  This concept allows existing uses to continue without requiring a new resource consent every time the planning regime changes. They provide assurance to property owners and businesses that their operations can continue legally.

  • How do I know if my property or business qualifies for Existing Use Rights in NZ?

    If your property or business has been in operation for a significant period and complies with the planning rules that were in place at the time when it was first established, it may qualify for Existing Use Rights.   As well as duration on the activity, you must also provide evidence that the activity has continued and not ceased for a period exceeding 12 months during its operation.  The intensity of the use must also remain the same for existing use rights to apply.  For example, if your activity has traditionally had hours of operation of operation of 9am - 5pm, Monday to Friday, you cannot extend this to weekends and still retain existing use rights.

  • Can you explain the process of obtaining this certificate?

    To obtain a certificate, you need to provide evidence that your activity was legally established before the more restrictive rules came into force. This includes demonstrating that the effects of your use have remained "same or similar in character, intensity, and scale" over time.  You must also prove that the activity has continuously operated since the more restrictive planning rules came into force.

  • What types of activities can qualify for Existing Use Rights in New Zealand?

    A wide range of activities, such as businesses, clinics, and industrial activities, can potentially qualify provided they meet the legal requirements explained above.  Existing Use Rights can also apply to structures which may no longer comply with new planning rules such as height or setbacks rules.

  • Does the age of the activity affect the ability to claim Existing Use Rights?

    The older an activity is, the more challenging it can be to provide evidence of legal establishment. Continuous operation for over 12 months without significant changes is essential aspect which must be proven.  It can also be difficult to source older planning schemes the further back in time that you need to go.  For example, planning schemes from the 1980s or before are unlikely to be publicly available.

  • Can Urban Planning Consultants help with the process of obtaining an Existing Use Rights Certificate in New Zealand?

    Yes, we can provide expert assistance given our understanding of the district plan rules, assessing eligibility, and preparing a comprehensive application to streamline the process and increase the chances of success with Council.  

  • What is an Existing Use Certificate?

    An Existing Use Certificate is an official document that confirms a specific use of land or a building was lawfully established before a new rule in a district plan or proposed district plan became operative. This certificate ensures that the use can continue despite the new rules that might otherwise restrict it.

  • How do I apply for an Existing Use Certificate?

    To apply for an Existing Use Certificate, you must demonstrate that the use was lawfully established before the rule in the plan or proposed plan became operative. The application must be made to the relevant local authority, and the certificate should be issued within 20 working days if the criteria are met.  The application will need to be supported by plans showing the relevant planning controls, and other evidence as relevant relating to the scale and intensity of the operation.

  • Do I need a certificate to confirm my existing use rights?

    While not always mandatory, obtaining an Existing Use Certificate can provide legal assurance that your use qualifies as an existing use under section 10 or section 20A of the RMA, protecting it from new restrictive rules in a district plan or regional plan.

  • What is the difference between a district plan and a regional plan concerning existing use rights?

    A district plan typically addresses land use and subdivision within a district, while a regional plan covers broader environmental issues, including land, water, and air. Existing use rights apply similarly under both plans, allowing activities established before new rules became operative to continue without a resource consent, subject to certain conditions.

  • Can existing use rights be transferred to new owners?

    Yes, existing use rights can be transferred to new owners, as these rights are tied to the land or building, not the owner. The new owner must ensure that the use continues to comply with any relevant rules and that it has not been discontinued for more than 12 months.

  • What happens if an existing activity fails to comply with a new rule in a proposed plan?

    If an existing activity fails to comply with a new rule in a proposed plan, the activity may continue if it qualifies for existing use rights as set out in section 10 of the RMA. This means the activity must have been lawfully established before the rule became operative and not discontinued for more than 12 months.

  • How long can an existing activity continue under existing use rights?

    An existing activity can continue under an existing use rights certificate indefinitely, provided it is not discontinued for a continuous period of more than 12 months. 

  • How is an existing use certificate treated under the RMA?

    An existing use certificate is treated as confirmation that a specific land use or activity qualifies for existing use rights under the RMA. This certificate provides legal assurance that the use can continue despite new rules in the plan or proposed plan that might otherwise restrict it.  It has the same status as a landuse consent.