Exercising s330 powers requires that the authorised persons form an opinion on whether an emergency situation as defined in sections 330(1)(d)-(f) of the RMA exists before undertaking any emergency works. Section 330 does not require that anyone else is first advised, or that approval by anyone else is first obtained. However, there is a requirement to advise the appropriate consent authority after the event.
The brief checklist for action pursuant to s330 provides a good practice example of the steps a local authority should follow, in determining whether to undertake emergency works under s330 of the RMA.
The document 'detailed steps by party invoking s330 ' provides a more comprehensive series of steps for any authorised person to follow to determine whether to undertake emergency works under s330.
There are a number of important matters for authorised persons to consider, when determining whether to take action under s330. Section 330 applies where the authorised person is of the opinion that any matter over which it has jurisdiction is affected or likely to be affected by either:
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an adverse effect on the environment which requires immediate preventative or remedial measures
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any sudden event causing or likely to cause loss of life, injury, or serious damage to property.
The emergency works powers apply whether or not the adverse effect or sudden event was foreseeable. For example, removing a growing tree that one day might prove a hazard because it will interfere with power lines, does not meet the test for emergency works. This is because the event is not sudden nor does it require immediate intervention. But it could, if the tree falling onto lines was imminent.
The use of s330(2) also requires a local or consent authority to form a reasonable opinion when entering onto private property, and undertaking such action as is immediately necessary and sufficient to avert the particular issue. This is an important test and any authorised persons should, where possible, consult with the local or consent authority before undertaking any emergency works. Where this is not possible, the authorised person should keep good records of the decision-making process.
Immediate measures
Those relying on Section 330 powers must form an opinion as to whether immediate preventative or remedial measures are required to deal with an adverse effect on the environment; or whether there is a sudden event causing or likely to cause loss of life, injury or serious damage to property.
Preventative measures include for example:
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breaching a stop-bank to release flood waters and avoid overtopping in more vulnerable areas downstream
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removing a scheduled tree that is about to topple and cause a major power outage
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bulldozing a fire break through native bush to prevent the spread of a fire.
Remedial measures include for example:
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clearing and disposing of slip debris from a roadway after an earthquake
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repairing a railway embankment in the coastal marine area following storm surge.
'Measures' can include any physical work or action specifically directed at removing the cause of, or mitigating, any actual or likely adverse effect of the emergency (refer s330(2) of the RMA).
The immediate measures undertaken must only extend to what is necessary and sufficient for dealing with the emergency. The provisions in sections 330 and 330B of the RMA do not extend to any actions that would go beyond either removing the cause of, or mitigating, any actual or likely adverse effect of the emergency. For example, taking extra steps to widen a road following a slip, simply because the equipment is there, would not fall within the scope of the emergency powers under the RMA.
The following two guidelines are useful to apply when determining immediate measures:
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The relevant body or person should consider:
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the impact of selected measures on the environment
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whether, on balance, preventing or remedying the anticipated adverse effects of the emergency outweighs any foreseeable and irreversible adverse effects on the environment resulting from the emergency works
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whether any less damaging, yet more suitable, alternative measures are available.
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The relevant body or person should keep sufficient evidence to demonstrate that the situation required an immediate response.
Foreseeability of an emergency
Section 330(1A) of the RMA provides emergency works powers, regardless whether or not an adverse effect or sudden event was foreseeable. This recognises that:
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immediate action may be required whether or not an event was foreseeable
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the emergency does not need to have been unpredictable. It could be the end result of a gradual build-up in effects or change to the environment that may have been predictable or observable (e.g. increasing rates of coastal erosion in an urban area).
A person or body might anticipate that a sudden event could occur sometime in the future and implement measures designed to cope with the contingency. However, they may also decide not to put required measures in place, whether through lack of finance or community support, other practical constraints, or on-going uncertainty as to what can be done. Knowing in advance whether or not a situation exists (or could exist) which may lead to an emergency is not relevant to the decisions made under s330 of the RMA to act once the emergency occurs. The focus is on what is necessary 'on the day', and not on what has happened beforehand.
However, as noted by the Court in Auckland City Council v Minister for the Environment and Others [1998] A112/98 authorities should endeavour to get their forward planning right under the RMA and avoid using s330 as a fallback provision.
Reasonable opinion
Section 330 of the RMA requires that the opinion formed in deciding whether or not to use the emergency powers, be one a reasonable person would form.
The test is an objective one, as to whether the situation is one in which any reasonable person or body would consider that it qualifies for emergency action
In exercising emergency works powers on private property, examples of situations which might meet the test could include:
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insufficient time given the nature and urgency of the risk to use alternative enforcement provisions in Part 12 of the RMA
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where the owner or occupier of a building or place is not responsible for, or is unwilling or incapable of, acting alone to address the emergency.
Reasonableness is as much about the process of forming the opinion, as the opinion which is ultimately reached. The person or body might be expected to:
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gather as much information and relevant facts as possible, given the urgency of the situation (noting that there generally is not time to undertake a full study of the effects of the action required)
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make logical assumptions and assessments of risks and options for managing them
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draw on suitable levels of knowledge and experience in making judgments and decisions.
It is important to document what was done to provide evidence that the opinion formed was reasonable. This information may be critical in establishing a defence to any prosecution which is based on a challenge to the reliance on emergency powers.
Reviewing and discussing previous cases with experienced colleagues and like agencies, and consulting with relevant consent authorities, will assist decision-makers in determining what is likely to be reasonable in different circumstances.
