Existing Use Rights
If you want to replace a building that was damaged or destroyed in the earthquake, or restart an activity that stopped due to the earthquake you might be able to rely on existing use rights.
On this page:
These are rules that allow you to repair or rebuild a building that complied with all planning rules when it was first built, even if the building breaches the current rules and standards of the Kaikōura District Plan (KDP). They also apply to eligible activities that you have stopped that complied with all relevant rules when first established.
You must meet the requirements set out in Section 10 of the Resource Management Act 1991 (RMA). These requirements are:
1. The original building or activity must be lawfully established
The building or activity complied with all relevant rules, or was granted all necessary Council permissions when it was first established.
You will need to provide evidence that confirms the lawful establishment of the original activity. Council records may be able to help, if you are the property owner you can access your file for free via Council.
2. Adverse effects are the same or similar
For a building, this generally means that the bulk (height, building coverage, length of external walls) and location should be largely the same as what previously existed on the site.
For an activity, the effects of the activity before it was ceased must be the same or similar to the effects when it is resumed. For example: noise, traffic movements and amenity. If you are a business this will mean factors such as hours of operation, signage, outdoor areas, public floor space and parking should all be the same as they were before the activity ceased.
3. Non-compliance cannot increase
It is possible for small changes to be made, but the replacement buildings and activities cannot breach a standard or provision of the KDP to a greater extent than what originally occurred on the site. This means that there can be no new non-compliance with the KDP.
If you want to use existing use rights for a building, then you should make sure you have evidence of the original non-compliance.
Council will need to be satisfied that the standard being breached is being breached to the same (or a lesser) extent. If Council records do not confirm the extent of the previous non-compliance, then you should have this confirmed before the building is removed.
4. You cannot use existing use rights after an activity has been stopped for more than 12 months.
Once the original building is demolished, the replacement should be re-built within one year. An activity should be restarted within one year to the level that that you intend to continue operating at (provided this is not more that the scale at which the activity previously occurred).
To have the time limit extended you must apply to Council within two years of the building being demolished or activity being stopped.
5. Existing use rights are not required if you have a land use consent
If a land use consent has been granted then an activity can be resumed, or building rebuilt subject to the requirements of that consent.
6. Existing use rights only apply to land use rules
A rebuild must comply with all other relevant rules and requirements including building consents, Canterbury Regional Council rules, food and health standards, and liquor licence requirements.
7. Existing use rights do not cover earthworks.
8. Existing use rights only apply within your site boundaries.
Existing use rights do not allow you to rebuild outside your site boundaries. This is relevant if part of your building extends beyond the boundaries of your site.
It is the responsibility of the owner or their agent to confirm existing use rights apply and provide the necessary evidence to Council.
You can apply to Council for an 'existing use certificate'. The application form needs to be accompanied by appropriate evidence of eligibility. You don't have to have a certificate but having one will avoid any doubt.
For a building, Council can also consider existing use rights at the PIM stage of a building consent. If the owner/agent chooses to take this approach they should submit the necessary confirmations as part of the building consent application.
If existing use rights do not apply to a proposed re-build or activity there are two options for you:
- Comply with all relevant rules of the KDP; or
- Obtain a resource consent or other appropriate planning approval.
Apply for an existing use rights certificate by downloading the application form below and returning it to Council.
Talk to a Council Planner. You can Phone 03 319 5026 and select option 5 for planning; or call in at the Council offices (96 West End). No appointment is necessary, but you may prefer to book ahead to ensure a Planner is available.
3 August 2018