Which procedures and legislation to use?
There are a variety of provisions providing emergency powers in other legislation that may be considered instead of, or in addition to, the uptake of the RMA provisions. This includes provisions under the Civil Defence and Emergency Management Act 2002, Biosecurity Act 1993, Public Works Act and Hazardous Substances and New Organisms Act 1996. Therefore it is important that authorised persons consider whether using the RMA powers is the most appropriate option in the circumstances before starting emergency works. Many of the provisions in other legislation are in place to achieve different purposes and confer powers that may be more or less general than what is required in the circumstances.
Use of s330 of the RMA emergency works provisions (when a resource consent would usually be required) is generally limited to exceptional circumstances, because it means the works:
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are not subject to due process and assessment under the relevant regional or district plan and RMA beforehand; and
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as such, the ability to ensure effective mitigation occurs afterwards by imposing consent conditions may be quite limited.
The power under s330(2) takes precedence over private property rights and other legal constraints, as it allows entry to any place in order to get to the cause of harmful effects. It does not matter whether the remedial activity would usually require a resource consent. This power can be used instead of interim enforcement orders where there are adverse effects that require immediate intervention and the cause is located on private property (or any other place where entry is ordinarily restricted). However, if there is time to get an interim enforcement order, it is good practice to proceed with that option. This is because the exercise of the s330(2) power may be viewed by private landowners as an undue infringement of their private property rights where other options are available.
