What is a “change of use consent” and when is it required?
When a person is seeking to change the use of an existing building, they are sometimes colloquially described as requiring a “change of use consent”. A common example is a proposal to convert an existing residential dwelling into premises for a commercial activity. In this scenario, there are in fact two separate and distinct requirements that may exist:
- A resource consent under the Resource Management Act (RMA); and
- Approval for a change of use under the Building Act.
Whether or not you require a resource consent under the RMA will generally be determined by the relevant city or district plans. A useful starting point is to review the planning maps from the relevant plan to identify the zoning of the property. This zoning will have specific rules associated with it that determine whether or not consent will be required. A phone call to the duty planner at the relevant Council can often help to answer this question.
If a resource consent is required, a written application will need to be lodged with the Council. Key issues that will be considered by the Council include the potential effects of the activity on the environment and whether the activity is consistent with the objectives and policies of the relevant plans. If the Council is concerned that the activity may have effects on other persons, it may decide to notify the application and provide an opportunity for others to comment with potential for a public hearing. Any submissions received will be taken into account when deciding whether or not to grant consent.
In contrast to the above, a change of use under the Building Act is a different process for a completely different purpose. The need for a resource consent under the RMA is driven by considering the effects of an activity on the wider environment. However, the purpose of a change of use under the Building Act is to ensure the health, safety and wellbeing of the occupants of the building itself.
Every building or part of a building is categorised for a particular “use”. These uses are divided into four broad categories, with a total of 15 uses overall. Each use has its own particular requirements under the Building Code relating to matters such as fire protection, access, sanitary facilities and structural performance (among others). Where the requirements of the proposed new use are more onerous that the old use, this is considered to be a change of use under the Building Act.
In such a situation, the building owner must give written notice to the Council that they propose to change the use of the building. The Council must then be satisfied that the building (in its new use) will comply “as nearly as is reasonably practicable” with specified aspects of the Building Code. It order to meet this test, the building owner may be required to apply for building consent to complete upgrades to the building before the new use can occur.
Unlike resource consent, there is no opportunity for interested parties to participate in a change of use process under the Building Act. However, the flipside is that there is no discretion available to the Council to approve a use that does not comply with the Building Code. Depending on the nature of the activity that is occurring, the costs associated with the necessary building upgrades can be prohibitive and put an end to an otherwise viable project that may have already obtained the necessary resource consents. It is therefore critical that both the RMA and the Building Act are considered early on when proposing a new use of an existing building.
Disclaimer: This is a brief summary for information purposes only and is not legal advice.
Posted on Monday 30th November, 2015 at 02:27 pm