Existing Use Rights
What are existing use rights?
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.
Eligibility for existing use rights
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.
How to check if existing use rights apply
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.
What if existing use rights don't apply?
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 rights certificate
Apply for an existing use rights certificate by downloading the application form below and returning it to Council.
Examples of where Existing Use Rights might be useful
The following list is not a complete list of all activities that could benefit from Existing Use Rights.
Re-building in breach of setback and recession plane rules
The standard building setback in the residential and settlement zones is 2m from an internal boundary and 4.5m from a road boundary (some exemptions exist). This means if your building is closer to the boundary than this distance, and you propose to rebuild on the same site you can only do so if the building is eligible for Existing Use Rights, or you obtain the appropriate planning approval.
Rebuilding on sites that do not meet the minimum density (site size) standard
The District Plan includes density standards. These require a site to be of a minimum size (which varies by zone) for a residential unit (home) to be established. If you live on a site that doesn’t meet the minimum density standard of the zone then Existing Use Rights may be relevant to allow you to rebuild on that site. In this case the rebuilt building could be located on a different part of the site, provided it complies with all other relevant rules.
Effluent disposal systems that do not meet separation distance requirements
The District Plan includes separation distances that effluent disposal systems must meet. These rules are most relevant in the Rural and Settlement Zones. As many systems have been damaged they will likely need to be replaced. If the replacement does not meet the required separation distances then it may be covered by Existing Use Rights. To be eligible it is important that the treatment standard is the same or better and therefore the effects on neighbouring properties are the same (or reduced). Fortunately modern systems generally provide a much higher level of treatment, but to be covered this will need to be confirmed in the PIM application.
Please note: Effluent Disposal systems may still require approval under Canterbury Regional Council rules (even if they are a replacement). Effluent disposal systems also require a building consent be obtained from the Kaikōura District Council.
Rebuilding in flood hazard areas
The District Plan includes low, moderate, ponding and high risk flood hazard areas. New habitable buildings in these areas require resource consent (except high risk areas where habitable buildings are prohibited). If your existing building is located in a flood hazard area then Existing Use Rights may allow you to rebuild on the site. The floor height of the rebuilt building must meet or exceed that of the existing building (Council will require evidence that confirms this).
Whilst you may be able to legally rebuild with the same floor level, Council strongly recommends you consider building at a level appropriate to the flood hazard. The easiest way to work out the appropriate level is to obtain a site specific flood report from Environment Canterbury. This report (which costs less than $200) will recommend a floor level based on computer modelling of various flood scenarios. This level will meet the requirements for Existing Use Rights and give you a home that has been designed to reduce the negative effects of possible future flooding events.
Rebuilding and not meeting minimum car parking requirements
The Kaikōura District Plan sets out minimum on-site parking requirements for various activities. These rules are most relevant to commercial and community activities (but do capture residential activities also). If your site does not meet the minimum parking requirements then Existing Use Rights may allow you to resume operating without providing these on site spaces. For Existing Use Rights to apply to parking it is important that no fewer parking spaces are provided on site, and floor areas in the building are similar. Depending on the activity that occurs on site the calculation for necessary carparks can be based on gross floor area, public floor area, or venue capacity. For more information talk to a Council Planner.