“Restrictions on commencing building work under the Resource Management Act 1991 – Section 37, Building Act 2004”
What on earth does that all mean?
Here’s the situation: you’ve applied to Queenstown Lakes District Council for a Building Consent or PIM to undertake that long-awaited building project. Perhaps it’s a new build, an extension, or even a garage. You’ve lodged your building consent, paid QLDC more money that you would have ideally liked to, everything is going well. That is, before one of these shows up in your inbox….
Surprise!
“The proposal cannot proceed as of right…. no building work may proceed…… Failure to comply with the requirements of this notice may result in legal action being taken against you under the Resource Management Act 1991…”
Those words are enough to sour anyone’s day. But it’s often a fairly easy thing to resolve.
What Is a Section 37 Certificate?
When you apply to the QLDC for either a Building Consent or a Project Information Memorandum (PIM), your application and plans will be assessed by a Council Town Planner for compliance against the District Plan rules, and other relevant rules (such as a consent notice registered on the title for your property). If a non-compliance is found, it means that you will require a resource consent in order to build what you have shown on the plans.
This certificate is issued under section 37 of the Building Act 2004 which requires the Council to inform you that a resource consent is required under the Resource Management Act 1991 (i.e. “planning permission”). It’s one of the key ways that the Building Act and Resource Management Act are linked together. The idea is that one arm of Council (Building Department) should not grant approvals, undertake inspections etc where a seperate resource consent is required from another arm of Council (Planning Department) without any guarantee that it will be granted.
What Does a s37 Certificate Mean?
It means that no work can proceed under the matter is either resolved and a resource consent is no longer needed, or a resource consent is granted.
QLDC’s current practice is that while a Building Consent can be granted with a s37 certificate in place, works cannot commence and Council will not allow you to book building inspections.
However our recommendation is to not proceed with having the Building Consent granted in this circumstance. Leave the application on hold if possible – as sometimes changes are required through the resource consent process. If your Building Consent has been granted and changes are needed to satisfy the subsequent Resource Consent, you will then need to go back and obtain a variation to the Building Consent – i.e. unnecessary time and money.
I’ve Received One of These Lovely Certificates – What Do I Do?
The first step is to figure out why the certificate has been issued. For example, it could be that your building is slightly too close to a boundary of your property. It could also be that you have already applied for a resource consent, but that consent has not yet been granted.
Whatever the reason, the Council Planner who has undertaken a Planning Compliance Check of your plans will get in touch and advise why a resource consent is needed. Feel free to ask them questions – they are there to help.
From there there are 3 main options in order to proceed:
Option 1: Council’s Planning Department is Wrong
It’s rare that the Planner who has undertaken an assessment and determined that a non-compliance exists is completely wrong. In some circumstances there may be slightly different interpretations of the District Plan rules, or an existing resource consent has been historically granted but was just not picked up by the Planner when undertaking their assessment.
In this case you can politely go back to the Planner and explain your reasoning. Sometimes this will resolve the situation and the s37 certificate will be removed. You are also welcome to contact us for a free, independent review of the situation.
Option 2: Change the Plans
Once you know exactly what the non-compliance is, it may be possible to resolve the matter by changing the design to comply. For example, slightly shifting the building away from a boundary, slightly reducing the height of the building etc. There are potentially many ways in which a design can be modified that would result in compliance with the District Plan, and remove the need for a resource consent.
Once you have the amended plans, send that to the Council Planner and ask them to confirm that the amended design complies and that the s37 Certificate will be lifted. Then send those plans to the Council’s Building Officer processing your Building Consent Application.
Option 3: Resource Consent
Sometimes it is not possible to modify the design to comply (for either practical reasons or personal preference), or a resource consent is needed regardless for design-control reasons (common in rural areas). In that case you have no option but to apply for the resource consent.
Every resource consent is different – some are simple, some are not. Some require neighbour’s approvals, some do not. In this case please contact us:
info@pragmaticplanning.co.nz or call on 021 104 3405
We will take a free and no-obligation look over your situation and provide realistic advice for the best option to move forward. If a resource consent is indeed required, we will also provide other info such as an estimate of costs, potential issues to address, and timeframes. We pride ourselves on providing honest, unfiltered advice up-front.
It’s Resolved! Now What?
Great! You’ve succeeded with one of the 3 options above and are ready to move forward. Make sure you send the granted resource consent number (RMXXXXX), or email correspondence from the Planner confirming that you no longer require a resource consent, to the Council Building Officer processing your application. They will arrange to have the s37 Certificate formally removed and you can proceed with the rest of the Building Consent process and build.
In Conclusion..
While at first a s37 certificate may appear daunting, they can often be resolved at no cost once you know the exact reasons that resource consent is required. The s37 process is a key link between the Building Act and Resource Management Act – and a key link between two different departments of Queenstown Lakes District Council.
Even if a resource consent is needed – they are a very common part of building and development. QLDC processes over 1300+ resource consents each year and while each one is different, with quality advice, realistic expectations and a well-put-together application, there is a good chance of success.