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Snapshot: In case of emergency

Snapshot: In case of emergency

Snapshot: In case of emergency

Tuesday 28 February, 2023

The first quarter of 2023 has seen various parts of New Zealand contending with repeated severe weather events, and the resulting damage to both public infrastructure and private property has been some of the most serious and widespread in living memory. Areas hard hit by ex-Tropical Cyclone Hale and severe rainfall in Auckland were still recovering when Cyclone Gabrielle hit, resulting in already-compromised infrastructure having to be readied at the last minute to prevent further damage and complete failure.

Since 1 January, local states of emergency related to severe weather events have been declared in Tairāwhiti, Auckland, Hawkes Bay, Bay of Plenty, Waikato, and Northland, and a national state of emergency was declared in response to Cyclone Gabrielle on 14 February.

With extreme weather events expected to become more common, the emergency powers proposed in the Natural and Built Environment Bill (NBA) are likely to be exercised more often than their Resource Management Act 1991 (RMA) predecessors, even as the anticipated Climate Change Adaptation and Strategic Planning legislation aims to move us out of harm’s way. So, how will the new legislation provide for people, authorities, network utility operators, and lifeline utilities to respond to these emergencies?

The answer, in short, is almost exactly the same way as the RMA currently does.

  • Clauses 751 and 753 of the NBA rearrange the provisions of s 330 of the RMA, and still provide for those with the power to act under the provisions to undertake works in an emergency. Local authorities’ powers to require others to take action in emergencies is also still provided for.

  • Clause 752 of the NBA provides that acting as necessary to save or protect life or health, or preventing serious damage to property, or likely adverse effects, can be the basis for a defence to prosecution of a strict liability offence – as long as those actions were reasonable in the circumstances and their effects mitigated afterwards.

  • Like the RMA, the NBA in its current form does not empower private citizens to carry out emergency works to protect their private property but does provide a defence from prosecution where this is the case.

  • The NBA also confirms that no person may be prosecuted for acting in accordance with the power to take preventive or remedial action.  This is the same protection provided in ss 18 and 341 of the RMA.

  • Clause 754 of the NBA includes some changes to the retrospective consenting requirements currently set out in s 330A of the RMA to authorise emergency works after the event. Those who use emergency powers in clauses 751 and 753 to do emergency works that have ongoing adverse effects now have 30 days to apply for resource consent to authorize those works, rather than the RMA’s current application deadline of 20 days.  The proposed extension of this timeframe, while helpful, could easily be challenging in the context of a significant emergency event such as that created by Cyclone Gabrielle where emergency works may need to continue for a considerable length of time and over a large geographical area.

  • While always implied in resource consent applications considered under the RMA, the NBA now explicitly provides that the consent authority may require remediation of any ongoing adverse effect created by emergency works or activities.

  • Clause 755 of the NBA covers emergency works that can be undertaken by those exercising emergency powers during a state of emergency declared under the Civil Defence Emergency Management Act. This clause is identical in content to s 330B of the RMA, with the Civil Defence Emergency Management Group still having 60 days to apply for resource consent where adverse effects continue.  Again, while the proposed extension of the application deadline is helpful it may still prove challenging to meet in a significant emergency event.

It will be interesting to see if, with the prospect of increasingly frequent and severe weather events and in light of the very recent adverse environmental effects caused by Cyclone Gabrielle, the NBA’s emergency provisions are considered fit for purpose by the Select Committee now hearing submissions on the provisions.

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