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Severe Weather Emergency Recovery Legislation Act 2023

Severe Weather Emergency Recovery Legislation Act 2023

Severe Weather Emergency Recovery Legislation Act 2023

Wednesday 12 April, 2023

The recently enacted Severe Weather Emergency Legislation Act 2023 addressed changes relating to the declaration of local and national emergencies in the Civil Defence Emergency Management Act 2002 and the emergency works provisions in the Resource Management Act 1991 (RMA). See our articles on that Act here and here.

Now attention has turned to recovery measures with the passing of the Severe Weather Emergency Recovery Legislation Act 2023 (the Recovery Act). In addition to providing power for the Governor-General to make Orders in Council to exempt, modify, or extend the provisions of certain legislation, the Recovery Act makes further direct amendments to the Local Government Act 2002 (LGA), the Local Government (Auckland Council) Act 2009 (the Auckland Council Act), and the RMA.

Purpose and application

The purposes of the Recovery Act are detailed in section 3, but more concisely stated in the Explanatory Note that accompanied the Bill as being:

“… to ensure that Government agencies and Crown entities, and affected local authorities and communities, can appropriately respond to or recover from the recent severe weather events, or both, including by providing the Government with flexibility to facilitate, enable, and expedite the recovery.”

The Order in Council mechanism has been used in previous emergency recovery legislation to provide flexibility for a range of potential matters following the Canterbury and Hurunui/Kaikoura earthquakes.

Since the Recovery Act provides for delegated legislation the checks and balances are more extensive than in previous emergency recovery legislation, but the enactments to which it relates are extensive including many  of particular interest to local authorities. For example, the non-exclusive list in Schedule 2 includes:

  • Building Act 2004.
  • Freedom Camping Act 2011.
  • Local Government Act 2002.
  • Local Government (Rating) Act 2002.
  • Reserves Act 1977.
  • Resource Management Act 1991.

In relation to each Act listed in Schedule 2 the “relevant Minister” is the Minister responsible for the administration of the legislation.

The Recovery Act applies to the “severe weather events affected areas” listed in section 4(1) comprising 37 local authorities across the North Island. It defines Cyclone Hale, the Auckland Anniversary Weekend heavy rainfall, and Cyclone Gabrielle, as “severe weather events.”

Orders in Council

The relevant Minister can, in connection with the whole or part of a severe weather events affected area, recommend that the Governor-General make an Order in Council granting exemptions from, modifying, or extending any legislation listed in Schedule 2. Note that the term ‘modify’ extends to dealing with a new subject matter. The Order may be absolute or subject to conditions and may state alternative means of compliance or create or substitute a discretionary power for the provision. The Order may be made in in two broad circumstances. It may apply:

  • to legislation that might otherwise divert resources required to efficiently respond to or minimise further damage, or
  • to legislation that cannot reasonably be complied with because of the circumstances, effect of, or work undertaken or needed, in response to severe weather events.

As one might expect, there are limitations on the Ministers’ powers to make such a recommendation. The recommended order must not breach provisions relating to the custody or detention of any person or any ‘rights’ legislation. The draft order must also have been reviewed by the Severe Weather Events Recovery Review Panel, which will be appointed for that purpose and to provide advice in relation to orders that may be required for the purposes of the Recovery Act. The Panel has only three working days (unless the relevant Minister allows longer) from receipt of a draft order to give its recommendations, which the Minister must then present to the House of Representatives. Other persons that the relevant Minister considers appropriate (including local Māori and community groups) must also be invited to comment on the proposed order within a similar timeframe, unless the Minister is satisfied that engagement is impracticable or that the urgency of the situation is such that the order must be made without that engagement.

A draft of the order must be provided to the Committee of the House responsible for the review of secondary legislation, or if Parliament has been dissolved or has expired each leader of the political parties represented in the most recent Parliament. The relevant Minister must have regard to any resulting recommendations. If the order relates to the RMA, the effects on the environment and whether any adverse effects can be avoided, remedied, or mitigated must also have been considered.

Once made an order must be kept under review by the relevant Minister and every order is ultimately revoked on 31 March 2028 if not sooner revoked. However, an order may be retrospective and come into force on a date before it is made as long as not earlier than the earliest relevant severe weather event.

Amendments to LGA

New sections 83C (use of special consultative procedure during recovery from severe weather events), 93DA (amendments to long-term plan after severe weather events), 94A (long-term plan amended during recovery from severe weather events), and 95AAA (2023/2024 annual plan due date), are inserted into the LGA.

Until 30 September 2023 the special consultative procedure may be modified by shortening the consultation period to a minimum of 14 days and limiting the provisions for a hearing. During that same period when using the special consultative procedure for an amendment to the long-term plan,  an audit report by the Auditor-General is not required for either the required consultation document or the amended plan if obtaining the audit and including the report will prevent the amendment. The long-term plan must then contain a statement recording that it incorporates an amendment that has not been audited.

There is an extension to the period for the adoption of an annual plan that applies to a severe weather affected area for the 2023/2024 financial year from 30 June 2023 until 30 September 2023.

Amendments to RMA

The emergency works provisions inserted into the RMA by the Severe Weather Emergency Legislation Act on 21 March 2023 are extended to include Manawatu and Rangitikei districts.

In addition section 331B, which gives owners or occupiers of rural land authority in connection with a severe weather event to undertake preventative or remedial measures, is amended by extending the protective constraints embedded in that provision to land that is the subject of the specified statutory overlay of ngā rohe moana and ngā o hapū o Ngāti Porou.

Auckland Council Act

There is a minor amendment to this Act to allow the mandatory public meeting of the board of each council-controlled organisation of the Auckland Council that is required to be held before 30 June each year to be held instead, in 2023 only, on any date before 30 September 2023.

Automatic Repeal

The Act will repeal in parts at differing points in time as follows:

30 September 2023: The provisions relating to the LGA and Auckland Council Act;

1 April 2024: The amendments to RMA empowering emergency preventative or remedial measures;

1 October 2024: Remaining RMA amendments;

31 March 2026: The provisions relating to Orders in Council and Schedule 2 containing affected enactments;

31 March 2028: The rest of the Act.

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