Severe Weather Emergency Legislation Act 2023
Severe Weather Emergency Legislation Act 2023
Thursday 23 March, 2023
The start of the year has been a rough one for regions such as Auckland, Northland, Hawkes Bay, Bay of Plenty and Waikato which have experienced repeated severe weather events and local states of emergency since 1 January 2023. In light of these events, we recently compared the emergency powers contained within the Resource Management Act (RMA) to those proposed in the Natural and Built Environment Bill (NBA) currently before the Environment Select Committee. While we highlighted some helpful changes proposed by the NBA to the emergency powers provisions, we were doubtful as to whether these changes went far enough in the context of significant environmental emergencies.
You can read our article here: Snapshot: In case of emergency - Tompkins Wake.
Fast forward to March and the worst-affected regions such as Hawkes Bay are moving into the recovery phase following Cyclone Gabrielle. Further change to the emergency powers contained within the RMA and related Acts have now been made.
The Severe Weather Emergency Legislation Act (the Act) is similar to emergency legislation passed in the wake of the Christchurch and Kaikōura earthquakes. It was introduced by Government on Tuesday 14 March and rushed through the Select Committee process in just six days to receive royal assent on Monday 20 March 2023, with its provisions coming into force that day. The Act amends the Civil Defence Emergency Management Act 2002, the RMA, the Local Government Act 2002 and a number of other Acts with the intention of removing the unnecessary red tape which constrains recovery and rebuild post severe weather events.
The application of the Act’s amendments to the RMA are restricted to an activity undertaken “because of or in connection with the impacts of” a “severe weather event”, defined as ex-Tropical Cyclone Hale, Cyclone Gabrielle and the intervening severe rainfall event earlier this year. The consequence of this definition is that the Act’s amendments to the emergency provisions in the RMA apply retrospectively to those activities already undertaken or commenced before Monday 20 March 2023.
Importantly, the Act’s amendments to the RMA have a staggered sunset date of 1 April 2024 and 1 October 2024. This limitation highlights the Government’s intention for the amended emergency provisions introduced by the Act to be utilised only in response to the three defined severe weather events and only for such time as is reasonably necessary to facilitate urgent recovery activities.
So how do the amended powers in Part 4 of the Act square up to the current provisions in both the RMA and those proposed in the NBA in the context of severe weather events of this scale?
The extensions to the emergency works timeframes currently imposed by the RMA, and proposed by the NBA, are the key feature of the Act’s amendments to the RMA. Compared to existing timeframes, the new timeframes introduced by the Act are much more realistic for those undertaking emergency works in the context of the three defined severe weather events. In these events, emergency works may need to continue for a considerable length of time and over a large geographical area. The introduction of sections 331A – 331E to the RMA, even for a limited time, also address the gap which exists in both the RMA and the NBA with respect to preventive or remedial works done by private owners by creating a deemed permitted activity regime. Imposing checks and balances on the use of such provisions by private landowners helps ensure the adverse environmental effects and effects on culturally significant land from such measures are appropriately managed.
It seems that the severe weather events experienced in January and February have highlighted to Government just how ‘inadequate’ the emergency provisions in the RMA are in the face of widespread and severe weather events and their impacts. With the prospect of more frequent extreme weather-related events as a result of climate change, the enactment of this Act provides a template that can be relied on in the future to respond to other weather related emergency events.
It will be interesting to see how these provisions play out in practice given the haste in which the Act was passed. As we have seen with the Resource Management (Enabling Housing Supply and Other Matters) Amendment Act 2021, sometimes urgent legislation can create more problems than solutions.