Emergency Changes to RMA

Emergency changes have been made to RMA in response to severe weather events

The Severe Weather Emergency Legislation Act 2023 (the Act [https://www.legislation.govt.nz/act/public/2023/0004/latest/LMS822431.html] ) was introduced and passed quickly through Parliament last week.  The Act received royal assent today (20 March 2023) and comes into force tomorrow.

The omnibus Act amends the Civil Defence Emergency Management Act 2002, the Resource Management Act 1991 (RMA), the Local Government Act 2002, the Food Act 2014 and the Food Regulations 2015.  The changes are intended to remove red tape to streamline the recovery and rebuild from recent severe weather events.

Importantly, there are the changes to the RMA which apply only to the regions of Northland, Auckland, Waikato, Bay of Plenty, Gisborne, Hawke’s Bay, and the districts of Tararua, Masterton, Carterton and South Wairarapa, in areas affected by Cyclone Hale, Cyclone Gabrielle, and / or the Anniversary Weekend heavy rain events. 

Sections 330 and 330A of the RMA already provide for some emergency works to be undertaken following extreme weather events or disasters, by councils, network and lifeline utility operators.  The notice provisions that usually apply where Council officers are required to enter private property have been modified to allow notice to be provided through the display of prominent notices and subsequent written notice of entry to the ratepayer, to assist in situations where the properties are not occupied and it is time consuming or not possible to locate the occupiers.  The timeframe for giving notice to the local authority that emergency works have been undertaken has been extended from 7 days to 100 working days, and the timeframe for applying for retrospective consent for those works has been extended from 20 to 160 working days. 

However, the key change relates to activities on rural land responding to weather damage which can now be done as a permitted activity, for the next 12 months.  New section 331B deems as a permitted activity any activity undertaken to implement “preventive or remedial measures” taken by owners or occupiers on their rural land (which includes land with a Māori purpose zoning) that are “required to avoid, remedy, or mitigate the loss, injury, detriment, or damage” caused by a severe weather event.  As noted above, ‘severe weather event’ is defined as Cyclones Hale and Gabrielle and the Anniversary Weekend heavy rain events.  

The owner or occupier must consider that the measures are proportionate in the circumstances.  The activities must be undertaken in a manner that, so far as is reasonably practicable, avoids, remedies, or mitigates the adverse effects, and the works must not cause significant adverse effects beyond the property boundary.  There is a requirement to give written notice to the relevant consent authority within 60 working days after the activity begins, which could be by email.  Notably, retrospective resource consent is not required.  The consent authority can extend the 60 working day timeframe in writing.  Failure to provide this notice revokes the permitted activity status.

The intention is for rural and Māori communities to have the ability to undertake activities (for example restoring land or waterways, clearing a slip, fixing a culvert, removing silt, or clearing debris from land) without the need to apply for resource consent (even retrospectively).  However, the provisions may provide broad powers in the affected rural areas and the onus is on the landowner or occupier undertaking the emergency activities to ensure the “permitted activity” criteria are met.

Similar provisions were introduced in response to the Kaikōura earthquakes to assist the farming community to respond – for example, where there had been major slips and earthworks were needed, fencing needed to be restored, or works in riverbeds were required to enable the community to farm again.

The new deemed permitted activity provision does not apply for an activity that is classified as a prohibited activity in the relevant plan, any applicable regulations or in national environmental standards.  Landowners and occupiers will therefore need to have an understanding of the requirements of the relevant plans in their areas and, for example, provisions in national direction around works within or near wetlands.  Further, deemed permitted activities do not apply where consents under s12 of the RMA are required for activities in the coastal marine area.

Through the Select Committee process additional protection was given to culturally significant land, and written permission of the relevant iwi or hapū is required before the activity can be authorised as a deemed permitted activity under s331B.

The changes to rural land are in place for a temporary 12 month period and will be automatically repealed from the RMA on 1  April 2024.  The repeal of new section 331B does not affect a permitted activity status conferred on an activity under that provision during the temporary period.  There are other repeal timing provisions in the Act some of the new emergency changes will be in place until 1  October 2024.

The changes to the Local Government Act 2002 enable councils to amend their current long-term plans (LTPs) in relation to water infrastructure and services, which reverses changes made by the Water Services Entities Act 2022[1]  This is to enable local authorities to respond to damage caused to water infrastructure from the severe weather events.  

If you have any questions about the Severe Weather Emergency Legislation Act 2023, or what these changes mean for you, please get in touch with our team.

Latest Update 20th March 2023