The provisions of sections 9 and 12-15 of the RMA relate to restrictions on the use of land and water and discharges into the environment. These provisions do not apply to any activity undertaken by any authorised person acting under either s330 or s330B of the RMA to remove the cause of, or mitigate any actual or likely adverse effect of, the emergency.
Effectively, this means that the need to obtain a resource consent before carrying out work is overridden. However, ss330A(2) and 330B(3) of the RMA require the authorised person to subsequently obtain a resource consent for any emergency work undertaken, if one would ordinarily have been required.
Authorised persons
Section 330 of the RMA confers powers only on certain people or bodies (i.e, authorised persons). They are:
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any person with financial responsibility for any public work (this could include Ministers of the Crown, or Chief Executives of Government Departments, as owners or operators of public works)
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network utility operators who are approved as a requiring authorities under s167
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lifeline utilities who provide any service or system within the meaning of section 4 of the Civil Defence Emergency Management Act
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local or consent authorities with jurisdiction over the resource or area affected by the emergency or with financial responsibility for the affected public work.
Lifeline utilities, and the services or systems they provide, are defined by section 4 of the Civil Defence Emergency Management Act. The specific entities and types of business include:
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Airport and port companies
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Radio New Zealand and Television New Zealand
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Gas producers, suppliers and distributors (including bottled gas)
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Electricity generators and distributors
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Water suppliers and distributors
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Wastewater, sewerage and stormwater network providers
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Telecommunications network providers
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Road network providers
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Petroleum product producers, processors and distributors
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Rail network providers
In a ‘state of emergency’ as defined under the Civil Defence Emergency Management Act, s330B of the RMA provides for the following bodies to also undertake emergency works without the need to first obtain any necessary resource consents:
Sections 330 and 330B of the RMA both provide that the emergency works provisions may be relied on by persons acting on behalf of any person, authority, network utility operator or lifeline utiliy otherwise authorised to undertake emergency works.
No other member of the public, or organisation, is able to use emergency powers unless made an agent by an authorised person or organisation, via a lawful transfer of powers or delegation. This was reinforced by the Environment Court in Gisborne District Council and Minister of Conservation v Falkner and Ors [1994] A082/94 . However, there is a defence to prosecution under s341(1) of the RMA which mirrors the section 330 powers.
