Case Law - Emergency powers

Gisborne District Council and Minister of Conservation v Falkner and Others [1994] A082/94

This case involved coastal protection works by the council and residents in the area. Works in relation to maintaining or repairing the foredune were, before 1992, undertaken in accordance with the Wainui Foredune Protection Scheme. Works undertaken in 1992 went outside the Scheme as they were not repair or maintenance. They were however, as argued by the ratepayers, undertaken as emergency works.

The works done in the winter of 1992 by the Council were actively undertaken by or on behalf of the "person" having financial responsibility for the public work, and the authority having jurisdiction for the natural and physical resources and area, to mitigate actual or likely effect of the emergency. However, the works done by the residents were to be distinguished as those works were not an "activity undertaken by or on behalf of the person or authority", i.e. the Council.

The Court declared that works done by the residents in the winter of 1992 on Wainui Beach were not authorised under s330 RMA as emergency works.

Auckland City Council v Minister for the Environment and Others [1998] A112/98

Following the decision of the Environment Court in Waiheke Island Country Club Ltd v Auckland City Council (W5/98), Auckland City Council applied for a declaration to clarify the emergency powers in s330.

The initial reason for the application for declaration was because of uncertainties over the interpretation of s330 in relation to disposal of sewage generated on Waiheke Island.

The declaration sought was as follows:

The Council hereby applies for a declaration in respect of section 330 of the Act, headed 'Emergency Powers' as to the following:

That where a natural or physical resource or area ('the Resource') is one (over) which a local authority or consent authority ('the Authority ') has jurisdiction is, in the opinion of the Authority, likely to be affected by an adverse effect on the environment which requires immediate or preventative measures, the Authority may take steps to remove or mitigate the cause of the actual or likely affect [sic] of that adverse effect

a. where the adverse effect is threatened or is likely but has not actually occurred; or

b. whether or not the adverse effect could have been reasonably foreseen or predicted by the Authority notwithstanding the provisions of sections 9, 12, 13, 14 and 15 of the Act.

That the word 'emergency' includes for the purpose of section 330(1)(b), (d), (e) and (2) of the Act an adverse effect on the environment which requires immediate preventative or remedial measures, whether or not the adverse effect is likely but has not actually occurred or could have been reasonably foreseen or predicted by the Authority.

The factors which the Authority must properly take into account in taking steps to prevent, remedy, mitigate or remove the cause of an adverse effect for the purposes of section 330(1)(d) and (e) of the Act or a sudden event causing or likely to cause loss of life, injury or serious damage to property for the purposes of section 330(1)(f) of the Act.

It was agreed at the hearing that the application for declaration was not to be by reference to Waiheke and sewage disposal, and the parties sought a declaration on s330 without reference to any particular factual background or issue.

Paul Cavanagh QC as amicus curiae (a barrister not engaged in the case who assists a Judge in Court on points of law) presented the counter argument. The Court noted that s330(1) specifies a set of interrelating circumstances. In summary, three areas of judgment can be seen to apply:

1. whether there is a situation under paragraphs (d), (e) or (f) of s330(1):

d. an adverse effect on the environment which requires immediate preventive measures, or

e. an adverse effect on the environment which requires immediate remedial measures, or

f. any sudden event causing or likely to cause loss of life, injury, or serious damage to property—

2. the formation of an opinion of effect or likely effect upon the public work, natural and physical resource or area, or project or work or network utility operation

3. a decision as to the action to be taken; that is, whether to remove the cause of the emergency or to mitigate any actual or likely adverse effect of it.

The judgments of the person / body considering taking action must be objective and that of a reasonable person / body acting in the particular circumstance. The action to be taken must be "immediately necessary and sufficient" for the relevant purpose (immediate response). When s330 is properly invoked, the authority acting in accordance with s330 is entitled to claim immunity from prosecution under s18(2).

The Court considered that a person or body faced with having to take action has to determine what activity should be taken:

- that is, whether to remove the cause of the emergency or to mitigate any actual or likely adverse effect of it. Here again the judgment must be objective and that of a reasonable person or body acting in the particular circumstances. In some cases, removal of the cause of the emergency will be deemed appropriate, whereas in others the mitigation route will be seen as preferable depending on the background. From a general viewpoint, one would expect the chosen course to be one which is anticipated to deal adequately with 'the emergency ' while not seeking to interfere with private law rights to a greater degree than reasonably necessary.

The Court referred to Canterbury Regional Council v Doug Hood (30 June 1998, Judge Skelton, DC Christchurch CRN 7076006424) and said that the case reflects the care that needs to be applied in analysing the factual background to determine whether the offence falls within the ambit of s330. The Court held that local authorities when acting pursuant to s330 must act responsibly within the bounds of the section:

From that analysis it is evident the section cannot be regarded as a general 'fallback' provision that can automatically be relied on in any perceived 'emergency' as an effective answer to complaints of unlawful interference with private rights. Because of the section's specifically defined circumstances of applicability, we agree with Mr Cavanagh's submission that local authorities and others should not forsake or compromise their responsibilities under the Act's wider framework of regional and district planning and control on a footing that s330 is "always available if things go wrong". Important though the section is, its terms are such that it cannot be viewed as an ultimate resort for every contingency.

The Court held that if a person / body anticipates that a 'sudden event' of a certain type could occur at some time in the future, but decides not to put in place measures to cope with the contingency - because of lack of finance, political disagreement or some other reason - this would not negate the ability of that person / body to rely on s330, subject to the three aspects being satisfied.

The example given by the Court is: the fact that a sudden rainstorm event may have been expected to affect an area at some time in the future does not make the event any more or less sudden when it occurs.

The Court held that the fact that a situation or occurrence contemplated by s330(1) may have been foreseen as a possibility does not operate to prevent an 'emergency' from arising if the qualifying aspects are satisfied.

Waiheke Island Country Club Ltd v Auckland City Council [1998] W05/98

The Waiheke Island Country Club applied for an interim enforcement order against the Auckland City Council, requiring it to immediately cease works associated with depositing septic tank sludge and sewage on land owned by the council. The land was leased to a golf club, which is next door to the Waiheke Island Country Club. The council had been dumping septic tank sludge at two sites, but the resource consents for these sites expired in December 1997.

The council, under s330, undertook earthworks to prepare the site on the golf club land. The Environment Court considered whether the works undertaken by the Council to prepare the site on the golf club land and the intended disposal by the Council of raw sewage on the site could be undertaken under the emergency powers in s330 and s331.

The Court held that because the council had failed to act for several years to address the issue of sewage disposal, it could not then rely on the emergency powers. The Court granted an interim enforcement order requiring the council to halt all works. The Court found:

… it is surprising and indeed alarming that the matter of proper treatment and disposal of sewage on Waiheke Island has been allowed to reach a stage where the council is resorting to emergency measures pursuant to the provisions of the Act.

Chisholm v Auckland City Council [2002] NZRMA 362

This case flows from the Waiheke Island Country Club case. Mr Chisholm brought four causes of action against the council. Mr Chisholm proposed to develop land adjoining the golf course. Part of Mr Chisholm's case in the High Court was that the Council's actions had caused his proposed investors to withdraw their money from the development. It is interesting to note the Judge's comments at paragraphs 107-109:

[107]     My clear conclusion on the evidence presented to me is that the council could have relied on s330 to justify sewage disposal on the golf course site. When Mr Hadlow closed his gates, the island's capacity to accept sewage dropped to 8 [cubic metres] a day. There was a real prospect that the amount of sewage would significantly exceed that figure. If it did, what was to happen to it? It had to be disposed of somewhere. The council was, in my view, obliged to take 'immediate remedial measures' to ensure that sewage could be disposed of.

[108]     I respectfully agree with the interpretation of s330 adopted by Judges Bollard and Whiting. With respect to Judge Kenderdine, who no doubt had to give a decision under a severe time constraint, I disagree with her analysis, which appears to introduce concepts of fault into the interpretation of s330.

[109]     I should make clear that, in making my finding that the threatened action comes within s330, I am relying on the evidence presented to me. I have not been told what evidence was given to Judge Kenderdine.

Mr Chisholm appealed to the Court of Appeal (Chisholm v Auckland City Council [2002] CA 32/02), but that judgement does not discuss the Judges' comments about s330.

Canterbury Regional Council v Doug Hood Ltd and Another [1998] CRN 7076006424

The Canterbury Regional Council prosecuted Doug Hood Ltd and Mr Hollingum, an employee of the company, for discharge of contaminants into the Ōpuha River. One of the defences raised by the defendants was immunity from prosecution pursuant to s18 and s330.

The defendants were responsible for the construction of the Ōpuha dam. Due to unusually heavy rainfall, which occurred during construction but after completion of the dam embankment, the defendants became concerned that the embankment was likely to overtop and cause a partial collapse of the dam into the river. The defendants anticipated this would cause considerable damage to the land downstream of the dam.

The defendants arranged for a temporary channel to be cut into the side of the dam to divert water around the dam, in an attempt to relieve pressure and the build-up of water behind the dam. Notwithstanding this, however, the build-up of water was such that the dam overtopped and partially collapsed. The defendants claimed that the action of cutting the temporary channel was taken pursuant to s330 and they relied on the immunity in s18(2).

The council accepted that Ōpuha Dam Ltd, with whom Doug Hood Ltd had entered into a contract to construct the dam, is a network utility operator. The council also accepted that the defendants were acting on behalf of Ōpuha Dam Ltd and any activity undertaken by them to remove the cause of or mitigate any actual or likely adverse effect of an emergency would come within s330(1).

Judge Skelton took a contrary view to Judge Treadwell in the Southland Regional Council v Invercargill City Council case (23 December 1996, Judge Treadwell, CRN 6025006200 and 6855) and held that the onus is on the defendant to prove that s330 applies. Judge Skelton held that the discharge for which the defendants were prosecuted did not remove or mitigate any actual or likely adverse effect of the emergency - assuming there was an emergency. On the contrary, it did in fact cause damage, both to the work itself and downstream. Judge Skelton held that the immunity from prosecution in s18(2) and s330 was not available to the defendants. The defendants were convicted.

The defendants appealed against their conviction (19 October 1999, Panckhurst & Chisholm JJ, HC Christchurch AP192/98). The appeal was heard by two High Court judges. One of the grounds of appeal was that the defendants were immune from prosecution under s18(2). The High Court rejected this argument and held that:

We accept that the cutting of the release channel was an 'activity undertaken' in the face of an emergency situation. But, does the protection, or immunity, provided by s330(1) avail the appellants when they are charged not on the basis of that particular activity? We think not.

The focus of the charge lay elsewhere. The appellants were in control of the construction of an earth dam. By its very nature it could not be safely overtopped in the event of a flood during the course of construction. The possibility of a flood was an ever-present risk. When this flood occurred, no means existed to address that known risk. So viewed, the activity of cutting the release channel was a response to an emergency of the appellant's own making. In our view the protection afforded by s330(1) is not available in such situations.

The High Court expressed a contrary view to Judge Skelton on the onus of proof and indicated that the onus is on the informant to establish that s330 does not apply. The Court stated:

We think it undesirable to express a concluded view since the point does not require determination. However, we note that s341(2) of the Act, …expressly provides defences to certain offences of strict liability (including offences against s15) where "the defendant proves …" the matter available by way of defence. We think it would be strange if within the one Act different sections cast an onus upon a defendant, yet one did so expressly and the other only by implication. In short, the absence of an express reference to a reverse onus in s330(1) suggests to us that the onus of proof remained on the informant.

Southland Regional Council v Invercargill City Council [1996] CRN 6025006200 and 6855

An application was made by the Invercargill City Council to strike out charges laid by the Southland Regional Council on the grounds that the city council acted pursuant to s330 and was immune from prosecution. Judge Treadwell held:

a. that an objective test applies to the word ‘opinion' in s330; namely, whether the situation is one that a reasonable person would consider qualified for emergency action in terms of the section

b. the informant has to prove that s330 does not apply.

Judge Treadwell was not prepared to strike out the charges against the city council but warned the regional council that, if it proceeded with the prosecution and failed, the question of costs would arise. The city council subsequently pleaded guilty to one charge and was convicted, but no fine was imposed (CRN 6025006855).