The Environment Court has recently lent a helping hand to developers faced with a lapsing subdivision consent where the subdivision plan has been approved by Council.
Subdivision consents are usually issued on the basis that they will lapse if they are not ‘effected’ within 5 years from the date of issue (or such longer period as the consent may specify). There has traditionally been uncertainty in terms of the relationship between this 5 year period and the 3 year period which attaches to the territorial certificate issued approving the subdivision plan (the S223 Certificate).
The Resource Management Act provides that Land Information New Zealand cannot issue the new titles unless less than 3 years has passed since the issue of the S223 Certificate. Different Councils have traditionally held different views in relation to their ability to extend the 3 year time period attaching to the S223 Certificate.
Where the Council involved has been of the view that this time period could neither be extended nor a fresh S223 Certificate issued, then developers have traditionally been faced with the situation where they have had to apply for a new subdivision consent and risk the imposition of new or different consent conditions.
The Court has now confirmed that whilst Council cannot extend the 3 year time period attaching to a S223 Certificate, there is nothing to stop a developer submitting further subdivision plans in respect of the original subdivision consent. Thus, provided that the 5 year period attaching to the subdivision consent has not lapsed, a developer can obtain a fresh S223 Certificate by submitting a subsequent plan to Council for approval.
Whilst it is obviously preferable to avoid the original S223 Certificate lapsing, this does at least provide a much simpler and more cost effective method of dealing with expired certificates.