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Emergency powers

Abstract

This guidance note is the sixth of seven guidance notes that form the RMA Enforcement Manual.

This guidance note includes guidance on:

Guidance note

Introduction

The emergency works provisions under Part 12 of the RMA are an important means to respond to emergencies. Before they are used, the nature of the emergency powers and their relationship to other legislative emergency powers, such as those in the Civil Defence and Emergency Act 2002 (CDEM Act), need to be understood. The RMA emergency works provisions temporarily override the resource consent requirements under ss9, 12, 13, 14, 15 of the RMA during times of emergency. These emergency powers are not general powers, and are limited to specific people or bodies (authorised persons).

The emergency works provisions enable authorised persons to undertake activities that might otherwise contravene the RMA and would require resource consent in advance. They can only be used in emergency situations, including civil defence emergencies, when there is a need for immediate intervention to prevent or remedy adverse environmental effects or prevent loss of life, injury or serious damage to property. They are typically used where other approval or enforcement mechanisms under the RMA would be inappropriate, or could not prevent damage to life, property or adverse effects of the environment in a timely manner.

The key provisions are ss330 , 330A , 330B and 331 of the RMA. These provisions also have a relationship to s18 and to the statutory defences for prosecution under s341 of the RMA.

Emergency powers have been used in a wide and varied manner, including:

Context for the use of emergency powers

In an emergency or disaster scenario, local and central government, emergency services and other community organisations carry many responsibilities. The duties and obligations of emergency services and civil defence groups are largely contained within their respective governing enactments .

However, the interrelationship between all the bodies that assist in preventing, mitigating and remedying disaster events - and the consequential adverse effects, is not entirely apparent. An emergency situation under the RMA may also qualify for emergency intervention under other legislation.

There are three phases to any emergency:

  1. The pre-emergency ('risk reduction ') phase. In this phase the obligations of emergency works rest largely with local and central government, network utility operators and other bodies in charge of public works. The imperative is to undertake the necessary works to prevent an emergency or dangerous situation from arising. As time pressures are less significant, more extensive consultation can take place. It will be rare for this situation to come within the framework of s330 of the RMA.
  2. The second phase is during the emergency situation (often referred to as the 'responsephase '). If widespread, a state of 'national emergency' or 'local emergency ' will be declared. During this phase, time pressures will be at their greatest and the powers under s330 of the RMA will be more justifiable. The emphasis will be to remove the ongoing causes and prevent further damage of the emergency on people and property.
  3. The third phase is the post-emergency clean-up and recovery period. This will be dealt with by various persons, including the Recovery Coordinator under the Civil Defence and Emergency Act, governmental bodies, and other responsible bodies. In this situation, time frames may be less restricted and therefore the usual resource consent procedures could be complied with. However, there may be occasions where clean-up and recovery may be part of an ongoing emergency. This can happen under the Hazardous Substances and New Organisms Act 1996, where it is likely that the emergency situation does not cease until the substance is neutralised or the organism destroyed.

These form three of the 'four Rs ' of emergency risk management; the fourth R is readiness: the development of systems and capabilities before an emergency happens.

The emergency works provisions of the RMA are primarily geared towards assisting response to emergency situations.

A civil defence response will not always be the most appropriate response to emergency situations. For example, most chemical spills are not of such a scale as to justify the taking of civil defence measures, but in a worst-case scenario the ability to exercise powers and make emergency regulations (eg, declaring a civil defence emergency) under the Civil Defence and Emergency Act might be critical.

It is important to consider how local authority and civil defence personnel will work together in a state of emergency. Civil defence personnel may not have the necessary expertise to deal with specific pollution and hazardous substances incidents. However, civil defence personnel would still be concerned with the impact of the emergency on the public (for example rescue, handling of casualties, transportation, providing supplies, communication and information). Where available, specialist emergency service staff is likely to tackle the actual hazard. Particularly in smaller centres and in rural locations, this role may fall on council staff, the Police and emergency service workers. The hazardous substances subgroup of the Science Advisory Committee of the National Civil Defence could provide advice in the event of a major incident.

Emergency powers under other legislation

Other legislation that includes emergency powers include:

Of the above legislation, the most relevant is the CDEM Act, as the emergency powers under s330B of the RMA can be used in civil defence emergencies.

Which procedures and legislation to use?

There are a variety of provisions providing emergency powers in other legislation that may be considered in place of, or in addition to, the RMA provisions. Hence authorised persons should ensure the RMA provisions are the most appropriate before starting emergency works. Many of the provisions in other legislation are in place to achieve different purposes and confer powers that may be more or less general than required in the circumstances.

Use of s330 of the RMA emergency works provisions (when a resource consent would usually be required) is generally limited to exceptional circumstances, because it means the works:

The power under s330(2) takes precedence over private property rights and other legal constraints, in allowing entry to any place in order to get to the cause of harmful effects: it does not matter whether the remedial activity would usually require a resource consent. This power could be used instead of interim enforcement orders, where there are adverse effects that require immediate intervention and the cause is on private property (or any other place where entry is ordinarily restricted). However, if there is time to get an interim enforcement order, it is advisable to go that route. This is because the s330(2) power can be viewed by private landowners as an imposition on their private property rights.

Emergency works and resource consents

The provisions of ss9 and 12-15 of the RMA relate to restrictions on the use of land and water and discharged into the environment. These do not apply to any activity undertaken by any authorised person acting under either s330 or s330B of the RMA to remove the cause of, or mitigate any actual or likely adverse effect of, the emergency.

Effectively, this means: the need to obtain a resource consent before carrying out work under these ss9 and 12-15, is overridden by ss330 and 330B of the RMA. However, ss330A(2) and 330B(3) require the authorised person to subsequently obtain a resource consent for any emergency work undertaken, if one would ordinarily have been required.

Authorised persons

Section 330 of the RMA confers powers on certain people or bodies (ie, authorised persons). They are:

In a state of emergency as defined under the Civil Defence and Emergency Management Act, s330B of the RMA provides for the following bodies to also undertake emergency works without the need to first obtain any necessary resource consents:

Sections 330 and 330B of the RMA both provide that the emergency works provisions may be relied on by persons acting on behalf of any person, authority or network utility operator otherwise authorised to undertake emergency works.

No other member of the public, or organisation, is able to use emergency powers unless made an agent by an authorised person or organisation, and authority has been transferred or delegated. This was reinforced by the Environment Court in Gisborne District Council and Minister of Conservation v Falkner and Ors [1994] A082/94 .Alternatively, that person might raise a defence to prosecution under s341(1).

Powers and procedures - s330

Purpose of the powers

Section 330 of the RMA contains the powers that apply to local and consent authorities and network utility operators and persons in charge of public works, including persons acting on their behalf (who have been delegated authority).

Powers of a local or consent authority

Section 330 of the RMA authorises consent authorities to undertake emergency works on both public and private property where the emergency relates to any:

Under s330(2), a local or consent authority may:

Section 330(2) therefore allows a local or consent authority to override property rights that would ordinarily restrict its entry and actions. The most common example is for private property, but by virtue of the words 'any place ' it might also include a conservation estate, or government installation to which a person does not have free access. The Environment Court in Auckland City Council v Minister for the Environment and Others [1998] A112/98 indicated that the power was to remove a cause of effects that went beyond the land entered, rather than mitigate effects per se. This is an appropriate distinction, as occupiers should be relied upon to cure effects that only touch upon themselves (see Waiheke Island Country Club Ltd v Auckland City Council [1998] W05/98).

Anyone deciding whether to exercise powers under s330(2) of the RMA should note the following: the choice between removing the cause of the emergency, as opposed to mitigating effects, will depend on the circumstances. One needs to bear in mind the need to act responsibly, having regard to the public interest considerations and the private rights of the individual. Whichever objective is appropriate, the action must conform to that which is ''immediately necessary and sufficient'' for the relevant purpose.

Powers of network utility operators and a person in charge of a public work

A network utility operator is authorised to undertake emergency works in regard to any project or work or network utility operation, for which it is the approved requiring authority under s167 of the RMA.

Unlike local and consent authorities, network utility operators do not have a right of entry to private property to carry out emergency works under the RMA. However, rights may be provided through other legislation such as:

Alternatively, the operator may have an existing easement or pre-negotiated agreement allowing for emergency access. Where entry was not otherwise legally available, a local or consent authority may rely on s330(2) to remove or mitigate the cause of the emergency involving the projects or works of network utility operators.

Any person with financial responsibility for a public work may undertake emergency works under s330 of the RMA in respect of that public work. Such persons could include a Minister of the Crown or the Chief Executive of a government agency. For example, the Minister of Education could invoke s330 for remedial works resulting from an emergency where a school is affected.

Delegations under s330

A local authority may:

Under Part 4 of the RMA, the Minister of Conservation is provided with certain powers of local authorities; in certain cases these may provide for the transfer and delegations of functions, powers and duties under ss33 and 34A.

When delegating any s330 powers to employees, a local authority should:

Although there are no specific provisions in the RMA for network utility and public works operators to delegate any functions or powers to other persons or bodies, s330 contemplates that persons may act on behalf of either body.

See the Delegations and Transfers guidance note for more information.

Determining whether to take action under s330

Exercising s330 powers requires that the authorised persons form an opinion on whether an emergency situation as defined in ss330(1)(d)-(f) exists before undertaking any emergency works. Section 330 does not require that anyone else is first advised, or that approval by anyone else is first obtained. However, there is a requirement to advise the appropriate consent authority after the event.

The 'brief checklist for action pursuant to s330 ' provides a best practice example of the steps a local authority should follow, in determining whether to undertake emergency works under s330.

The document 'detailed steps by party invoking s330 ' provides a more comprehensive series of steps for any authorised person to follow, in determining whether to undertake emergency works under s330.

There are a number of important matters for authorised persons to consider, when determining whether to take action under s330. Section 330 applies where the authorised person is of the opinion that any matter over which it has jurisdiction is affected or likely to be affected by either:

The emergency works powers apply whether or not the adverse effect or sudden event was foreseeable. For example, removing a growing tree that one day might prove a hazard because it will interfere with power lines, does not meet the test for emergency works: the event is not sudden nor does it require immediate intervention - but it could, if the tree falling onto lines was imminent.

The use of s330(2) also requires a local or consent authority to form a reasonable opinion when entering onto private property, and undertaking such action as is immediately necessary and sufficient to avert the particular issue.

The Thames Coromandel District Council's s330 Emergency Coastal Protection Works Policy provides a good example of a council guide on making a decision whether to undertake emergency works.

Immediate measures

Section 330 of the RMA requires those considering its use to form an opinion as to whether immediate preventative or remedial measures are required to deal with an adverse effect on the environment; or whether there is a sudden event causing or likely to cause loss of life, injury or serious damage to property.

Preventative measures include for example:

Remedial measures include for example:

'Measures ' can include any physical work or action specifically directed at removing the cause of, or mitigating, any actual or likely adverse effect of the emergency (s330(2) of the RMA).

The immediate measures undertaken must be necessary and sufficient for dealing with the emergency only. The Environment Court in Chisholm v Auckland City Council [2002] NZRMA 362 accepted the need for the council to undertake immediate remedial measures. The provisions in ss330 and 330B do not extend to any actions that would go beyond either removing the cause of, or mitigating, any actual or likely adverse effect of the emergency. For example, taking extra steps to widen a road following a slip, simply because the equipment is there, would not fall within the emergency works provisions in the RMA.

The following two guidelines are proposed to be applied in determining immediate measures:

  1. The relevant body or person should consider:
    • the impact of selected measures on the environment
    • whether, on balance, preventing or remedying the anticipated adverse effects of the emergency outweighs any foreseeable and irreversible adverse effects on the environment resulting from the emergency works
    • whether any less damaging, yet more suitable, alternative measures are available.
  2. The relevant body or person should keep sufficient evidence to demonstrate that the situation required an immediate response.

Foreseeability of an emergency

Section 330(1A) of the RMA provides emergency works powers, regardless whether or not an adverse effect or sudden event was foreseeable. This recognises that:

A person or body might anticipate that a sudden event could occur sometime in the future and implement measures designed to cope with the contingency. However, they may also decide not to put required measures in place, whether through lack of finance or community support, other practical constraints, or ongoing uncertainty as to what can be done. Knowing in advance whether or not a situation exists (or could exist) which may lead to an emergency is not relevant to the decisions made under s330 to act once the emergency occurs. The focus is rightly on what is necessary 'on the day ', and not on what has happened beforehand.

The Court in Auckland City Council v Minister for the Environment and Others [1998] A112/98 apparently did not wish s330 to be unduly restricted when immediate response was needed. However, the Court did caution authorities to get their forward planning right under the RMA and avoid using s330 as a fallback provision.

Reasonable opinion

Section 330 of the RMA requires that the opinion formed in deciding whether or not to use the emergency powers, be one a reasonable person would form. See Canterbury Regional Council v Doug Hood Ltd and Another [1998] CRN 7076006424, where the High Court held that there was to the contrary a situation of "ever-present risk" and the 'emergency ' was of the appellant 's "own making."

The test is an objective one, as to whether the situation is one in which any reasonable person or body would consider that it qualifies for emergency action (Southland Regional Council v Invercargill City Council [1996] CRN6025006200).

In exercising emergency works powers on private property, examples of reasonable opinion by a local authority could include:

Reasonableness is as much about the process of forming the opinion, as the opinion reached. The person or body might be expected to:

Documenting what was done could be useful evidence in determining the reasonableness or otherwise of the opinion formed. This information may be critical in establishing a defence to any prosecution.

Reviewing and discussing previous cases with experienced colleagues and like agencies, and consulting with relevant consent authorities, will assist decision-makers in determining what is likely to be reasonable in different circumstances.

Civil Defence emergencies - s330B

Section 330B(1) applies to any person exercising emergency powers during a state of emergency declared under the Civil Defence and Emergency Management Act; a CDEM Group, a Controller, the Police and other authorised persons. Section 330B provides that ss9, 12, 13, 14 and 15 do not apply to any activity undertaken by a person exercising emergency powers during a state of emergency, where the person (or someone acting on their behalf) removes the cause of, or mitigates any actual or adverse effects of, the emergency. This means that a resource consent is not required in advance to carry out emergency work. However ss330B(2) and (3) do require the consent authority to be notified within seven days of the activity taking place. An application for a resource consent (where one would otherwise have been required beforehand) must be applied for within 20 working days of the notification, if the adverse effects of the activity continue.

Powers of a CDEM Group

A CDEM Group is empowered under s85, Part 5 of the Civil Defence and Emergency Management Act to carry out emergency works, if necessary to effectively manage the emergency. Those most relevant to the RMA cover matters such as works, clearance of roads and public spaces, removal and repair of structures, and disposal of dead persons and animals. These works could be similar to those ordinarily performed by the bodies or persons listed under s330 of the RMA. For example, the CDEM Group may assist or act in place of such a body or person when they are incapacitated or overextended by the emergency. The CDEM Group is empowered under s18 of the CDEM Act to delegate any of its functions to members, the Group Controller or other persons.

There are other emergency powers in Part 5 of the CDEM Act that conceivably could require an emergency work. These include:

For example, quickly shutting down an industrial plant to safely evacuate an area could involve the discharge of a contaminant.

Powers of a Controller, the Police and other authorised persons

Section 91 of the Civil Defence and Emergency Management Act provides a Controller, a member of the Police, or any person acting under the authority of either a Controller or member of the Police, powers to direct that a person either:

Any authorisation given by the Controller, a member of the Police, or persons authorised by them to undertake emergency works is generally by instruction rather than delegation.

Requirement to advise consent authority - ss330A and 330B

The obligations under ss330A and 330B of the RMA provide the relevant consent authority with both a monitoring function and an opportunity to check on the effects and appropriateness of an emergency work, should the adverse effects of that work continue. Both sections require that the authorised person who undertook the activity, must:

Emergency works are permitted to continue if the application is made on time, until any hearings and appeals are determined on the consent application.

This provision envisages that the environmental effects arising from emergency works may be ongoing.

In preparing for the possibility that a resource consent may need to be applied for, it is good practice for the authorised person undertaking emergency works under ss330 or 330B to:

Being prepared for an emergency works situation under s330

Any authorised person should, as part of their internal risk management, business continuity and asset management programmes, as far as practicable:

  1. identify the potential for incidents that could require emergency works. This may be in general terms only, or relate to known trouble spots. For example, those sections of roads that are particularly prone to slips, or bridge abutments and the banks of rivers that are undercut by regular flooding
  2. check contractual arrangements, and seek legal advice if in doubt, on when a contractor may act on behalf of the person or body authorised to carry out emergency works under s330 . Ensure that contractors understand the procedures that are necessary to follow and have any delegations or warrants appropriate to enable them to act quickly in an emergency situation
  3. discuss with the consent authority the form and extent of any anticipated emergency event and adverse effects, and the emergency works that may be necessary to respond to them
  4. seek advice and, if appropriate, gain some form of agreement on best practicable remedial or mitigation options, and guidelines or procedures to follow, that will assist decision-making and actions when working under emergency conditions
  5. seek consent in advance to cover emergency situations where the effects and actions to address them can be anticipated with some certainty, for example establishing spoil disposal sites near known slip hazard zones.

Authorised persons should consider forming a work group involving all relevant consent authorities and other interested parties, for the purpose of agreeing on common guidelines. For example, an emergency works protocol on slip debris clearance practices for all road operators and their contractors within a district or region could be established.

In developing any emergency response plan, network utility operators and persons with responsibility for public works should consult with consent authorities who may be able to advise on:

The consent authority 's advice may enable an operator to pre-plan some of their decision-making processes and response actions. An added advantage is that acquiring any subsequent resource consents, or undertaking additional post-emergency works, could be made easier.

Compensation for emergency works - s331

Section 331 of the RMA provides for compensation relating to emergency works: both for the local authority undertaking works, and for any person who suffers damage as a result of the works. The availability of compensation depends on the connection between the works and any failure of a person to abide by his or her duties under the RMA. In particular:

Compensation is not available in relation to damage arising from emergency works on land under a local authority 's own control, that is, works pursuant to s330(1). Other remedies may be available to a person so affected. In Waiheke Island Country Club Ltd v Auckland City Council [1998] W05/98, a private landowner had sought an interim enforcement order against the Auckland City Council to halt a proposed septic and sewage dump works carried out under the umbrella of s330 adjacent to his land. The applicant had made a substantial financial commitment to the development and conservation of his land, and Council's works may have affected his proposed development. The Court held that compensation was not available under s331(2) because the local authority was relying on s330(1). However, the Court did approve the application for an interim enforcement order, having decided there would be a great risk of injustice if it did not.

Section 331 applies the concept of fault in two ways:

In the second instance, a person 's breach of duties may directly cause damage; that damage cannot be part of their claim. However, it might be difficult to separate out the causes and determine liability, when the local authority 's response also contributes to the damage. A possible scenario is as follows:

  1. A property owner breaches their duty under s14 by damming a river without the express permission of the regional plan. The damming results in flooding that would not have occurred otherwise, affecting the property owner 's land and neighbouring properties, destroying crops and pasture.
  2. The regional council takes action under s330(2), entering on to the person 's land to remove the cause of the flooding. It uses an excavator and explosive charges (where the excavator cannot safely reach) to cut a channel through the dam.
  3. The Council's action causes the dam to quickly erode. The surge of waters inundates some of the property owner 's and others ' land downstream, and the silt from the dam damages productive areas and irrigation equipment and channels.

Section 331(2) provides the mechanism for deciding how compensation should be divided between the regional council for the cost of mitigating the original flood, and the property owner and others affected by the collapse of the dam. The critical question is, to what extent the Council's response added to damage that the illegal dam had already caused.

Enforcement in relation to emergency powers

Immunity from prosecution for authorised persons

Section 18(2) of the RMA provides immunity from prosecution for an activity that is undertaken in accordance with s330. Therefore, the immunity will not apply in any of the following circumstances:

Because a local authority is responsible for enforcing its plans, it will want to scrutinise decisions relying on s330 to undertake activities without obtaining resource consent. It will want to be convinced that emergency powers apply. However, it cannot do so unless it is advised that the powers have been exercised.

While s330A requires any person who has relied on s330 to advise the consent authority of an emergency work (and to apply for consent if effects are ongoing), a question arises as to the consequences of that person not complying with s330A. Immunity from prosecution under s18 does not depend on compliance with s330A. Non-compliance with s330A is not an offence under s338. It appears therefore that the enforcing authority can at best issue an abatement notice (or seek an interim enforcement order) to require an application for consent.

For this reason, anyone exercising powers under s330 of the RMA should:

As to who needs to establish whether the s18 immunity applies, there is conflicting case law. One line of cases suggests that s330 contains elements which are difficult for the prosecution to prove, or which may be within the knowledge of the defendant alone. Therefore placing the onus on the prosecution may make it hard to prove that the immunity does not exist. The other cases suggest that the onus should be on the prosecution, because s330 is intended to confer express rights and powers. Unlike prosecutions for breaches of restrictions, the defendant should not suffer the onus when expressly given powers (and the immunity that attaches to their use). See Southland Regional Council v Invercargill City Council [1996] CRN 6025006200 and 6855 and Canterbury Regional Council v Doug Hood Ltd and Another [1998] CRN 7076006424 for further discussion of these points.

In either case, a person or body acting reasonably and responsibly throughout, and maintaining records of such, would be in a better position of avoiding a charge, or defending against prosecution if charged.

Defences for persons not authorised under s330(1)

Section 341(2) of the RMA provides further 'emergency type ' defences. It applies to certain strict liability offences, including a breach of ss9 and 11-15, where "the action or event to which the prosecution relates was necessary for the purposes of saving or protecting life or health, or preventing serious damage to property or avoiding an actual or likely adverse effect on the environment".

While the s18 immunity would be preferred, for example as the basis on which to apply to strike out charges, this section will assist other defendants not listed in s330(1)(a)-(c). It must be proven on the balance of probabilities by the defendant.

Section 341(2) uses the word 'and ' between (a)(i), (a)(ii) and (a)(iii), and (b)(i) and (b)(ii). Consequently, the tests to be applied are conjunctive (ie, need to be read together). As such, for a defendant to rely on s341(2)(b), the event that took place must not have been reasonably foreseeable, or provided for by the defendant; and the effects of the action or event must be adequately mitigated by the defendant. This provision relates to an event that could not have been foreseen or provided against, but s330 does not require so. For case examples on this defence see the section on strict liability defences in the Imposing Penalties guidance note.

Note that the statutory defences available under s341 apply to ss9 and 11-15 and do not mention abatement notices or enforcement orders. However, without clear wording indicating absolute liability, a defendant has available a common law defence of absence of fault (in the example above: a delay in complying with an enforcement order led to subsidence which undermined and damaged adjoining properties).

Council as enforcer and emergency worker

A local authority can have two very differing roles in relation to emergency powers. It is the enforcer of its plan, but may also be the authority carrying out work under the emergency works provisions.

As the enforcer of its plan, a local authority may find itself needing to check the validity of its own decisions to use emergency powers. This should be done with a clear separation of functions, and at arm 's length with all decisions recorded carefully to avoid allegations of undue bias. For example, a senior manager with both an enforcement team leader and an infrastructure team leader (undertaking emergency works) reporting, should play no part in brokering agreements between the two functions. Each should work independently according to best practice in their respective fields.

Obstruction when entering land or directing actions

If in exercising powers under s330(2), the occupier prevents entry or refuses to take action on a direction, the relevant authorised person may seek the cooperation of the Police. Refusal or obstruction would qualify as an offence in terms of resisting an officer in execution of his or her powers (s338(3)(a)). As set out in compensation under s331, the local authority may require reimbursement if having to act in default of another person (recoverable by means of an enforcement order pursuant to s314(1)(d)).

Best practice examples

Thames Coromandel District Council Policy Framework for Peninsula Coastal Hazard Prone Locations

This policy framework includes a Section 330 Emergency Coastal Protection Works Policy to guide the council when making a decision to undertake emergency coastal protection works under s330 and to signal the role that the council will adopt in such cases. This policy was adopted in March 2007, and provides clear and comprehensive direction to council staff.

Checklist for s330 - Detailed steps by party invoking s330

(adapted from the Ministry of Civil Defence and Emergency Management)

Dealing with emergency works

These steps cover the undertaking of emergency works under s330 of the RMA. Those persons authorised to carry out such works should operate in this way in all cases where no state of emergency is in force under the CDEM Act. This includes the recovery period following the termination of a state of emergency.

During a state of emergency, authorised persons may continue to follow these steps to undertake emergency works under s330 within the area for which a state of emergency exists. For most emergencies, this arrangement should prove satisfactory.

In exceptional circumstances only, any person or body (including those persons or bodies ordinarily permitted under s330) may be directed or requested to carry out emergency works (or possibly to desist, modify or reprioritise the carrying out of works) by a Group or Local Controller, a member of the Police, or persons authorised by one of the foregoing. In these circumstances, s330B may need to be followed. Regardless, such persons or bodies undertaking the emergency works are still expected to follow best practice approaches, and otherwise fulfil general duties and responsibilities under the RMA, as much as possible.

The following are a series of steps intended to follow the order of assessment and action provided by s330.

Step 1: Determining authorised status

Determine if the person or body (the 'authorised person ') considering action under s330 is entitled to utilise that section - is that person or party any of the following:

Step 2: Forming an opinion as to whether immediate action is needed

The relevant authority must form an opinion that any public work, any natural and physical resource or area, or any project or work or network utility operation is actually affected by or likely to be affected by any of the following:

Step 3: Taking action

Once that opinion is formed, the relevant authority may take preventative or remedial measures to remove the cause, or mitigate any actual or likely effect, of the emergency. The authority should ensure that any staff or contractors that are to act on their behalf have the necessary authorisations, delegations and warrants (if required) to do so.

Consideration should be had to the best course of action available. Taking such action should go no further than is necessary to manage the emergency situation and consider likely ongoing effects (if any) from the action (with the aim of minimising the scale, severity and duration of such effects).

Whenever possible, keep records of all actions and decisions (in preparation for steps 6 and 7).

Step 4: Entering a place (if required)

Where the relevant authority is a local authority or consent authority, consideration may be given to exercising the power under s330(2) to enter any place (including a dwelling house when accompanied by a constable) to take or direct relevant action.

If it is necessary to enter a dwelling, the Police should be contacted and staff or agents wait until a constable can accompany them.

Staff or agents (or both) should ensure they carry identification (such as an enforcement warrant) with them. As soon as practicable after entering the place, the staff member or agent who entered must identify him or herself and inform the occupier of the place and entry and reasons for it.

Step 5: Costs and compensation

Where Step 4 is taken, the authority may require reimbursement of its actual and reasonable costs from a person, if the entry and works were necessitated by the default of that person (s331).

A record of costs should be prepared and forwarded to that person requiring payment. If payment is not forthcoming within 20 working days of being required, then the authority may seek an enforcement order under the Act under s314(1)(d).

Note also the right of a person injuriously affected by the intervention to seek compensation from the local authority. Note: Compensation is only payable in respect of loss or damage that is not the fault of the claimant; it is to be determined in accordance with Part V of the Public Works Act 1981 (with any necessary modifications).

Step 6: Collection and collation of information on event and action taken

The person or authority or network utility operator should:

Step 7: Notice to consent authority (and resource consent application if necessary)

Where an activity or action is undertaken under s330, the relevant authority is required to advise the consent authority within seven calendar days (of commencement), that the activity has been undertaken (s330A).

If resource consent would usually have been required for the activity, and the adverse effects of the activity are continuing, then the relevant authority must apply for resource consent within 20 working days of the notification given above.

In the instance that the resource consent application is made within the 20 working-day period, the activity may continue until the application for resource consent and any appeals have been finally determined.

Note: The requirement to advise the consent authority should be used by the enforcement officers of that authority as an opportunity to check whether the s330 powers are being used appropriately. In particular the officers should make inquiries similar to Step 6.

Step 8: Review and compliance checking

Review all prior steps for accuracy and completeness, and undertake a review of how the emergency provisions of the RMA were utilised for the purpose of checking compliance, enhancing and/or streamlining processes for the future, and educative reasons.

RMA provisions

Section 330 of the RMA

330. Emergency works and power to take preventive or remedial action-

(1) Where-

  1. Any public work for which any person has financial responsibility; or
  2. Any natural and physical resource or area for which a local authority or consent authority has jurisdiction under this Act; or
  3. Any project or work or network utility operation for which any network utility operator is approved as a requiring authority under section 167-

    is, in the opinion of the person or the authority or the network utility operator, affected by or likely to be affected by—

  4. An adverse effect on the environment which requires immediate preventive measures; or
  5. An adverse effect on the environment which requires immediate remedial measures; or
  6. Any sudden [event] causing or likely to cause loss of life, injury, or serious damage to property-

    the provisions of sections 9, 12, 13, 14, and 15 shall not apply to any activity undertaken by or on behalf of that person, authority, or network utility operator to remove the cause of, or mitigate any actual or likely adverse effect of, the emergency.

(1A)     Subsection (1) applies whether or not the adverse effect or sudden event was foreseeable.

(2)    Where a local authority or consent authority-

  1. Has financial responsibility for any public work; or
  2. Has jurisdiction under this Act in respect of any natural and physical resource or area-

    which is, in the reasonable opinion of that local authority or consent authority, likely to be affected by any of the conditions described in paragraphs (d) to (f) of subsection (1), the local authority or consent authority by its employees or agents may, without prior notice, enter any place (including a dwelling house when accompanied by a constable) and may take such action, or direct the occupier to take such action, as is immediately necessary and sufficient to remove the cause of, or mitigate any actual or likely adverse effect of, the emergency.

(2A)    Sections 9, 12, 13, 14, and 15 do not apply to any action taken under subsection (2).

(3)    As soon as practicable after entering any place under this section, every person must identify himself or herself and inform the occupier of the place of the entry and the reasons for it.

(4)     Nothing in this section shall authorise any person to do anything in relation to an emergency involving a marine oil spill or suspected marine oil spill within the meaning of section 281 of the Maritime Transport Act 1994.

Section 330A of the RMA

330A Resource consents for emergency works—

(1)    Where an activity is undertaken under section 330, the person (other than the occupier), authority, or network utility operator who or which undertook the activity shall advise the appropriate consent authority, within 7 days, that the activity has been undertaken.

(2)    Where such an activity, but for section 330, contravenes any of sections 9, 12, 13, 14, and 15 and the adverse effects of the activity continue, then the person (other than the occupier), authority, or network utility operator who or which undertook the activity shall apply in writing to the appropriate consent authority for any necessary resource consents required in respect of the activity within 20 working days of the notification under subsection (1).

(3)    If the application is made within the time stated in subsection (2), the activity may continue until the application for a resource consent and any appeals have been finally determined.

Section 330B of the RMA

330B   Emergency works under Civil Defence Emergency Management Act 2002-

(1)    If any activity is undertaken by any person exercising emergency powers during a state of emergency declared under the Civil Defence Emergency Management Act 2002, the provisions of sections 9, 12, 13, 14, and 15 of this Act do not apply to any activity undertaken by or on behalf of that person to remove the cause of, or mitigate any actual or adverse effect of, the emergency.

(2)    If an activity is undertaken to which subsection (1) applies, the person who authorised the activity must advise the appropriate consent authority, within 7 days, that the activity has been undertaken.

(3)    If such an activity, but for this section, would contravene any of sections 9, 12, 13, 14, and 15 of this Act and the adverse effects of the activity continue, the person who authorised the activity must apply in writing to the appropriate consent authority for any necessary resource consents required in respect of the activity, within 20 working days of the notification under subsection (2).

(4)    If the application is made within the time stated in subsection (3), the activity may continue until the application for a resource consent and any appeals have been finally determined.

(5)    A person does not commit an offence under section 338(1)(a) of this Act by acting in accordance with this section.

Section 331 of the RMA

331  Reimbursement or compensation for emergency works
(1)    Where the local authority or consent authority takes action under section 330(2) because of the default of any person, the authority may [require] reimbursement from that person of its [actual and reasonable costs (as defined in section 314(2))].

 [(1A) Where the costs required to be paid under subsection (1) are not duly paid within 20 working days of being required, the authority may seek an enforcement order under section 314(1)(d).]

(2) Every-

  1. Person having an estate or interest in land that is injuriously affected by the exercise of any power under section 330(2); and
  2. Other person suffering any damage as a result of the exercise of that power-

    shall be entitled to compensation from the authority in respect of any damage which did not arise from any failure of that person to abide by his or her duties under the Act.

(3)     Any compensation under subsection (2) shall be claimed and determined in accordance with Part 5 of the Public Works Act 1981 and the provisions of that Act, so far as they apply and with all necessary modifications, shall apply accordingly.

Section 18 of the RMA

18  Possible defence in cases of unforeseen emergencies  
[(1)     Any person who is prosecuted under section 338 for an offence arising from any contravention of any of sections 9, 11, 12, 13, 14, 15, 15A, and 15B may raise any applicable defence that is referred to in section 341 or section 341A or section 341B.]   

(2)     No person may be prosecuted for acting in accordance with section 330 (which relates to certain activities undertaken in an emergency).  

Section 341(2) of the RMA

341   Strict liability and defences

(1)     In any prosecution of an offence of contravening or permitting a contravention of any of sections 9, 11, 12, 12, and 15, it is not necessary to prove that the defendant committed the offence.

(2)     Subject to subsection (3), it is a defence to prosecution of the king referred to in subsection (1), if the defendant proves -

(a)    That -

    1. The action or event to which the prosecution relates was necessary for the purposes of saving or protecting life or health, or preventing serious damage to property or avoid an actual or likely effect on the environment; and
    2. The effects of the action or vent were adequately mitigated or remedied by the defendant after it occurred; or

(b)    That the action of event to which the prosecution relates was due to an event beyond the control of the defendant, including natural disaster, mechanical failure, or sabotage, and in each case -

    1. The action or event could not reasonably have been foreseen or provided against by the defendant; and
    2. The effects of the action or event were adequately mitigated or remedied by the defendant after it occurred.

(3)     Except with the leave of the Court, subsection (2) does not apply unless, within seven days after the service of the summons or within such further time as the Court may allow, the defendant delivers to the prosecutor a written notice -

  1. Stating that he or she intends to rely on subsection (2); and
  2. Specifying the facts that support his or her reliance on subsection (2).

Section 341(2) of the RMA provides any party with a defence to prosecution, in a case of breaching resource consent requirements, if proven that the party was acting in circumstances not dissimilar to that which might be expected for a person or body under section 330. The onus of proof, based on a balance of probabilities, is on the defendant. The emergency must not have been reasonably foreseen, and the effects of the action or event must be mitigated or remedied. This defence recognises that unexpected emergency events, causing adverse effects on the environment, can happen to anyone. In these cases, allowing reasonable action to be taken without delay, and not punishing those for doing so, may be the best solution.

Sections of the CDEM Act

Section 85 of the CDEM Act

85 Emergency powers of Civil Defence Emergency Management Groups-

(1)     While a state of emergency is in force in its area, a Civil Defence Emergency Management Group may -

(a)    carry out or require to be carried out all or any of the following:

    1. works:
    2. clearing roads and other public places:
    3. removing or disposing of, or securing or otherwise making safe, dangerous structures and materials wherever they may be

(g)     undertake emergency measures for the disposal of dead persons or animals if it is satisfied that the measures are urgently necessary in the interests of public health.

Note: Sub-sections 85(1)(b)-(f) and (h)-(j) cover welfare, traffic control, first aid and the like and therefore are less likely to involve activities necessitating emergency works under the RMA.

Section 18 of the CDEM Act

General powers of Civil Defence Emergency Management Groups -

A Civil Defence Emergency Management Group has all the powers that are reasonably necessary or expedient to enable it to perform its functions, including the power to delegate any of its functions to members, the Group Controller, or other persons.

Section 91 of the CDEM Act

91  Power to give directions

While a state of emergency is in force, a Controller or a member of the police, or any person acting under the authority of a Controller or member of the police, may-

  1. direct any person to stop any activity that may cause or substantially contribute to an emergency
  2. request any person, either verbally or in writing, to take any action to prevent or limit the extent of an emergency.

Sections of the Public Works Act

Section 2 of the Public Works Act

Section 2 of the Public Works Act 1981 defines a public work as:

  1. Every Government work or local work that the Crown or any local authority is authorised to construct, undertake, establish, manage, operate, or maintain, and every use of land for any Government work or local work which the Crown or any local authority is authorised to construct, undertake, establish, manage, operate, or maintain by or under this or any other Act; and include anything required directly or indirectly for any such Government work or local work or use:
  2. Every Government work or local work constructed, undertaken, established, managed, operated, or maintained by any Education Authority within the meaning of the Education Act 1964 and every use of land for any Government work or local work which such Education Authority constructs, undertakes, establishes, manages, operates, or maintains, and include anything required directly or indirectly for any such Government work or local work or use:
  3. Any Government work or local work that is, or is required, for any university within the meaning of the Universities Act 1961.

Legislation other than the RMA that includes emergency powers

Civil Defence and Emergency Management Act 2002

The Civil Defence Emergency Management Act provides for the management of emergency situations. This management involves the application of knowledge, measures, and practices -that are both:

and the planning, organisation, co-ordination, and implementation of the same that may be associated with any emergency.

Public Works Act 1981

Section 234 of the Public Works Act offers marginally wider and clearer powers in respect of public works in comparison to section 330(1) of the RMA. It specifically empowers entry onto land and remedial action when there is imminent danger to life or property, or a likelihood of serious interference with any road or public work. Note that section 330(2) is available only to local authorities, not to Ministers of the Crown. However, the entry is only to the land and not 'any place ' as provided for in s330(2) of the RMA.

Section 135 provides a power to enter private property on such notice as is practicable in the circumstances (to the occupier, or owner if no occupier is present); it provides to do works specifically in relation to the (partial) removal of any tree, hedge or plant, debris or other structures obstructing visibility on a road or damaging or obstructing a road or public work, when there is imminent danger to life or property, or a likelihood of serious interference with any road or public work. This power appears to add nothing to the general power in s234, which section goes further to provide protection from liability for any damage to property occasioned by the exercise of the power in good faith.

Local Government Act 2002

Section 173 of the Local Government Act (LGA) to some extent mirrors section 330(2) of the RMA. It provides local authorities with a general power to enter occupied land or buildings in sudden emergencies, or when there is a danger to any works or adjoining property - for the purpose of doing anything empowered under the LGA or any other Act, without giving prior notice. The provision is not specific, and is dependent upon statutory powers being available in other legislation, so it is not a substitute for section 330(2). Moreover, it does not contain an exemption from RMA compliance.

Building Act 2004

In relation to buildings, s129 of the Building Act enables the Chief Executive of a territorial authority to issue a warrant to cause any action necessary in his or her judgment to remove an immediate danger to the safety of people (in terms of ss121-123) arising from the 'state of a building ' or to fix insanitary conditions requiring immediate action. The owner of the building is liable for the costs of action, and the territorial authority is not under any liability arising from issuing the warrant in good faith.

This power provides specific authority, for example, to secure the evacuation of buildings, or demolish them when damaged by an emergency event and their resulting condition is likely to cause injury. An example is Thompson v Southland District Council [2007] NZAR 763 (HC): the Court upheld the Council's decision to demolish a building in such a state of disrepair that in forecast high winds, roofing iron was likely to blow off and pose a significant danger to people.

Maritime Transport Act 1994

The Maritime Transport Act (MTA) has its own mechanism to deal with a marine oil spill, or suspected spill, within the meaning of its s281. Therefore s330(4) of the RMA states that nothing in s330 shall authorise any person to do anything in relation to such an emergency . Sections 9, 12, 13, 14, 15, 15A and 15C of the RMA do not apply to actions taken under the MTA in relation to spill emergencies (s467 of the MTA).

Fire Service Act 1975

The Fire Service is generally required to act in situations where there is a fire emergency and is empowered to act in the case of other emergencies. In order to effectively carry out its functions and duties, the Chief Fire Officer of the district has powers under s28(3) and (3A) of the Fire Service Act to take whatever action is necessary to save lives and property in danger. It is arguable whether powers properly exercised by the Fire Service when dealing with emergencies are exempt from the RMA.

Biosecurity Act 1993

The Biosecurity Act 's emergency provisions are available in the event of an outbreak or occurrence of an organism with potential to cause significant economic or environmental loss, or adverse effects on human health, if it becomes established in New Zealand. For actions taken in an attempt to eradicate any such organism, the Minister can make an exemption to comply with Part 3 of the RMA (s7A). This exemption is, however, only for up to 20 working days and only if the organism is not known to be established in New Zealand. The Minister must be satisfied that it is in the public interest to take immediate action to attempt to eradicate the organism.

Hazardous Substances and New Organisms Act 1996

Sections 46-49 of the Hazardous Substances and New Organisms (HSNO) Act specifically provide for use of hazardous substances and new organisms in emergency situations. An emergency for the purpose of the HSNO Act is defined in s46 as any of the following:

In addition, Part 9 of the HSNO Act allows for emergencies to be declared (in addition to the emergencies set out in section 46 above). Wide powers are available to authorised officers to enter property (including dwellings) and to take or direct action. There are compensation provisions in respect of property which is destroyed or damaged in an emergency, and an immunity from civil or criminal proceedings for action taken by any authorised officer where that action was taken in good faith and with reasonable care.

There is no direct reference in the HSNO Act to the RMA, and accordingly it is possible that emergency powers in the RMA could still be used in addition to the exercise of emergency powers under the HSNO Act.

Health Act 1956

Various powers can be exercised under the Health Act by the Medical Officer of Health in emergencies (as defined by the Civil Defence and Emergency Management Act 2002). For example, s70(1)(k) includes the power to "forbid the discharge of sewage, drainage, or insanitary matter of any description into any watercourse, stream, lake, or source of water supply".Section 71 allows the Medical Officer of Health to take possession of land and buildings to accommodate and treat patients during an emergency under the CDEM Act.

Relevant case law

Relevant case law has been referred to throughout this guidance note, with links to fuller summaries when appropriate.

Related guidance notes

Acknowledgments

Quality Planning would like to make the following acknowledgments.

Published October 2009.