Existing Use Rights and a New Crushing Plant
A concrete products business has operated from a 1.2 ha site in a town since 1992. In 2001, a district plan became fully operative and zoned the site Residential. The business continued manufacturing concrete bins and tanks, and in 2019 added a mobile crushing plant that processes returned concrete. The crushing plant operates two days a week, generating noise and dust. In 2024, a new residential subdivision was built on the adjoining land. Following complaints, a council enforcement officer issues an abatement notice requiring the crushing plant to stop. The owner says the entire operation, including the crusher, is protected by existing use rights and refuses to stop. The council file shows the site was used continuously for concrete manufacturing, but there is no record of crushing before 2019. The plan's residential rules prohibit industrial activities and set noise limits.
1. Advise whether the crushing plant is protected by existing use rights under s10 RMA. Explain which parts of the operation are protected and whether the 2019 addition changes the analysis.
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Section 10 protects a use of land that was lawfully established before the relevant rule became operative, provided the effects of the use are the same or similar in character, intensity, and scale as before the rule. The concrete manufacturing operation that existed in 1992 and continued after 2001 is likely to be protected. The council file supports continuity, and the use has not been discontinued for 12 months or more.
The crushing plant is different. It was added in 2019, long after the residential rule became operative in 2001. It cannot inherit existing use rights that did not exist when it began. The owner's argument that the crusher is simply part of the concrete business should be tested against the effects. Crushing returned concrete produces noise and dust that are different in character from manufacturing bins and tanks, and the activity is more intensive. Even if the crusher were characterised as part of the same use, s10 protection would be lost because the effects are not the same or similar in character, intensity, and scale.
The protected part of the operation is therefore the pre-2001 concrete manufacturing, not the mobile crusher. The crusher requires land use consent under the residential rules unless it can meet a permitted activity standard, which is unlikely given the prohibition on industrial activities and the noise limits. The council should distinguish the two activities in its enforcement response.
2. What lawful options does the owner have, and what should the council do next? Consider resource consent, certificate of compliance, declaration, and appeal rights against the abatement notice.
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The owner has several options, but they are not equally available. The owner could apply for land use consent for the crushing plant as a discretionary or non-complying activity under the residential rules. That application would need to address noise, dust, traffic, and the incompatibility of industrial activity with the new residential subdivision. The owner could also apply for a certificate of compliance under s139, but a certificate can only be issued if the activity complies with the plan as a permitted activity. Given the prohibition on industrial activities, that is unlikely.
The owner could seek a declaration from the Environment Court under s310 that existing use rights cover the crusher. That is a lawful way to test the legal characterisation, but the 2019 start date makes success unlikely. Separately, the owner can appeal the abatement notice to the Environment Court within 15 working days under s325. An appeal does not automatically stay the notice unless the court orders otherwise, so the owner may need to seek a stay.
The council should not simply let the notice stand without review. It should confirm that the notice identifies the crusher only and does not purport to stop the protected manufacturing operation. It should consider whether the notice gives a reasonable time to comply and whether enforcement is proportionate. The council could also offer to process a consent application promptly, but it should not trade away the enforcement of effects that are clearly outside existing use rights.