Wild Weather and Resource Consent Requirements

Emergency powers under the Resource Management Act (RMA) allow for works to be undertaken without a resource consent in certain circumstances. With the wild weather hitting New Zealand recently, these provisions are sure to be exercised, but Section 330 of the RMA does not provide carte blanche ability to start moving debris or altering waterways by any person who considers there is a risk. The provisions contain key features to control who, and when, emergency powers can be exercised.

Only an Authorised Person may utilise these powers, and this is limited to those who have financial responsibility for public work, local government, an approved requiring authority or network operator (such as power networks), or someone who provides a lifeline utility service defined in the Civil Defence Emergency Management Act. This means farmers concerned about their land who want to start doing works that would normally need a resource consent, are not able to just take action.

The Authorised Person is only allowed to take action if there is an adverse effect on the environment that requires immediate preventative or remedial measures, or a sudden event causing loss of life, injury, or serious damage to property. When clearing debris off roads and away from abutments of bridges, there may have been a requirement for earthworks consents or activities in the beds of rivers or streams under the RMA in normal circumstances. However, if the clearing of such material is necessary to ensure people can continue to access the road safely, particularly if it’s an important access road, an authorised person may be able to undertake works without a resource consent.

Works are limited to only those necessary to deal with the emergency and are not an opportunity to do further preventative works or other works not required for the immediate response. There is not an opportunity to realign a stream, or widen a road that was not necessary to remove the immediate emergency.

After the works are complete the Authorised Person is required to inform the consent authority of the works and to make an application for resource consent for the works. Therefore, Authorised Persons will keep records of the emergency situation, the actions taken and the reasons for the actions during the course of the works, to assist with seeking the retrospective resource consent.

For the everyday landowner the provisions of Section 330 do not offer a clear solution to remediating emergency situations unless they can get authority from their local council to undertake the works as part of the local councils “Authorised Person” status. The risk is undertaking works without the proper authorisations, even during an emergency response, could result in prosecution after the event for actions taken.