Section 224(h) of the Resource Management Act 1991 (RMA) provides that the survey plan approval under section 223 RMA must be less than three years old for the survey plan to be deposited under the Land Transfer Act 2017 (or the previous Land Transfer Act 1952). The expiry date is the third anniversary of the date of TA approval.
In Ruck & Or v Horowhenua District Council [2013] NZEnvC 175 ENV-2012-WLG-000113, the Applicants proposed that the power in section 37 RMA to, "in any particular case, extend a time period specified in this Act…" could be used by the Council to extend the time period in which an approved survey plan can be deposited, namely the three year period prescribed by section 224(h) RMA. The Court considered that the Applicants' contention foundered on a basic proposition (at [55]):
"…namely that the powers vested in consent or territorial authorities by s37 can be applicable only to the functions that those territorial authorities undertake under RMA."
Further (at [57]):
"…it is the Registrar-General whose powers are subject to the restriction contained in s224(h). We do not consider that s37 was intended to give consent or territorial authorities some general overarching power to extend time limits applying to functions under RMA in which they have no part, in this case the time limit for the Registrar to deposit a subdivision plan."
It was not, therefore, in the Council's power to enable the Applicants' approved survey plans to be deposited after the three year time period had expired.
In the light of this Environment Court decision, LINZ cannot deposit plans with lapsed section 223 approvals on the basis that the council has purported to extend the three year time period in section 224(h), pursuant to section 37 RMA.
The consent remains subject to the five year lapse period provided under section 125(1) RMA.
The Court clarified that further survey plans can be submitted for approval up until the five year lapse date passes. It held (at [47]):
"We determine that the correct manner in which to interpret s125(2) is that the provision contained therein as to the lapsing of consent applies in respect of any specific plan submitted by a subdivider pursuant to s223. Any given survey plan approved pursuant to s223 must be deposited within the three year window from date of approval of that survey plan failing which the subdivision consent lapses in respect of that particular plan, without removing the ability for a subdivider to submit further survey plans during the five year period provided by s125(1)."