Planning 201
Planning 201 is a paper that provides an introduction to planning legislation. The primary objective to the paper is to demonstrate how law can develop through legislative amendments and case law.
The purpose of the assignment is to investigate section 106 of the Resource Management Act (RMA) through undertaking legal research and statutory interpretation in order to understand how section 106 of the RMA is interpreted and applied and to also understand when consent to subdivide should be refused.
Part A of the assessment is to do with looking at the legislative background to section 106. Section 106 is derived from the Local Government Act 1974 (s274), Municipal Corporations Act 1954 (S351) and the Counties Amendment Act 1961 (s23). The Counties Amendment Act was replaced by the Waimakariri Ashley Water Supply Act 1961.
Secondly, under part A of the assessment, the amendments to section 106 are asked to be identified. The names of the amendment acts are as follows:
· Resource Management Amendment Act 1993 (1993 No. 65)
· Resource Management Amendment Act 2003 (2003 No. 23)
The most recent amendment to s 106 of the RMA is the Resource Management Amendment Act 2003 (2003 No 23). Section 106 (1) of the Resource Management Amendment 2003 provided section 106 (1) of the principle Act by inserting the words “Despite s 77B” and omitting the words “Shall not” and substituting the words “may refuse”. The effect of this most recent amendment on the approach taken by consent authorities is outlined below:
The intention of s 77b is to classify the types of activities that require consent for subdivision. The types of activities classified under s 77b are listed in hierarchical order and include permitted activities, controlled activities, restricted discretionary activities, discretionary activities and prohibited activities. The words “despite s 77b” inserted into s 106 of the RMA (following the most recent amendment) give the power to override s 77B if the conditions of the proposed application do not comply with the conditions set out in s 106.
The effect of the phrase “may refuse” following the 2003 Amendment Act, enable consent authorities more discretionary powers in the refusal to grant subdivision consents.

The context of s 106 of the RMA sets out conditions to which a consent authority may decline resource consent for the purpose of subdivision.
The circumstance to which resource consent is refused is based on:
(a) If the physical conditions of the land where the proposed subdivision is to be carried out are not suitable or appropriate for development. Inappropriate conditions include: “material damage by erosion, falling debris, subsidence, slippage, or inundation from any source”.
To put this into legal context, various case studies are required to be interpreted. For the purpose of this blog, I have chosen one case study which has been outlined below:
Note: the assignment asks you to question the phrase: “the land in respect of which a consent is sought” outlined in s 106 (1) and to interpret the case to see whether a resource consent to subdivide should be granted:
Case 1: Henry, B & K v Kapiti Coast District Council [2003] 8 NZRMA, 377, 377-384 (Envt Ct).

The reference to the phrase “the land in respect of which a consent is sought” under s 106 (1) is referred to in the case of Henry, B & K v Kapiti Coast Disrict Council. The issue in this case regards whether the beach front property owned by Mr. and Mrs. Henry where “the land in which a consent is sought” will be subject to material damage in the form of coastal erosion for the purpose of subdividing. Mr. Lumsden who is a qualified expert in coastal erosion submitted that the allotment is in fact located in an area which is likely to be subject to erosion. Furthermore, “Mr. Lumsden’s opinion is that there is “50% chance of erosion within 100 years and a 30% chance within 100 years” [18]. The area which is most at risk is located within the seaward 25 meters from the shoreline[1]. However, the Henry’s do not propose to subdivide in this area. Instead, they propose to subdivide 50 meters from the coastline in order to avoid, remedy and mitigate the potential effects of erosion. Even though the setback area is located at 50 meters from the coastline, the Henry’s site could potentially still be subject to erosion. However, the Kapiti Coast District Council granted the Henry’s consent to subdivide in this locality based on the conditions that they are situated 50 meters from the coastline and the buildings are relocatable. Therefore, the risk of erosion is not as significant. This case supports the notion that “the land in which consent is sought” can still be subdivided if it is “subject to material damage” on the basis that measures to avoid, remedy or mitigate these effects will be achieved.