Checklist for s330 - Detailed steps by party invoking s330
(adapted from the Ministry of Civil Defence and Emergency Management)
Dealing with emergency works
These steps cover the undertaking of emergency works under s330 of the RMA. Those persons authorised to carry out such works should operate in this way in all cases where no state of emergency is in force under the Civil Defence and Emergency Management Act 2002. This includes the recovery period following the termination of a state of emergency.
During a state of emergency, authorised persons may continue to follow these steps to undertake emergency works under s330 of the RMA within the area for which a state of emergency exists. For most emergencies, this arrangement should prove satisfactory.
In exceptional circumstances only, any person or body (including those persons or bodies ordinarily permitted under s330) may be directed or requested to carry out emergency works (or possibly to desist, modify or reprioritise the carrying out of works) by a Group or Local Controller, a member of the Police, or persons authorised by one of the foregoing. In these circumstances, s330B of the RMA may need to be followed. Regardless, such persons or bodies undertaking the emergency works are still expected to follow best practice approaches, and otherwise fulfil general duties and responsibilities under the RMA, as much as possible.
The following are a series of steps intended to follow the order of assessment and action provided by s330.
Step 1: Determining authorised status
Determine if the person or body (the 'authorised person') considering action under s330 is entitled to utilise that section. Check if that person or party is any of the following:
a person who has financial responsibility for any public work
a local authority or consent authority with jurisdiction under the RMA for any natural and physical resource or area
approved as a requiring authority under s167 of the RMA and the network operator for any project or work
operates or provides a lifeline utility service or system, as defined by section 4 of the Civil Defence Emergency Management Act.
Step 2: Forming an opinion as to whether immediate action is needed
The relevant authority must form an opinion that any public work, any natural and physical resource or area, or any project or work, network utility operation, or lifeline utility is actually affected by or likely to be affected by any of the following:
an adverse effect on the environment which requires immediate preventative, or remedial, measures
any sudden event causing or likely to cause loss of life, injury, or serious damage to property.
Step 3: Taking action
Once that opinion is formed, the relevant authority may take preventative or remedial measures to remove the cause, or mitigate any actual or likely effect, of the emergency. The authority should ensure that any staff or contractors that are to act on their behalf have the necessary authorisations, delegations and warrants (if required) to do so.
Consideration should be had to the best course of action available. Taking such action should go no further than is necessary to manage the emergency situation and consider likely on-going effects (if any) from the action (with the aim of minimising the scale, severity and duration of such effects).
Whenever possible, keep accurate and thorough records of all actions and decisions (in preparation for steps 6 and 7).
Step 4: Entering a place (if required)
Where the relevant authority is a local authority or consent authority, consideration may be given to exercising the power under s330(2) to enter any place (including a dwelling house when accompanied by a constable) to take or direct relevant action.
If it is necessary to enter a dwelling, the Police should be contacted and staff or agents wait until a constable can accompany them.
Staff or agents (or both) should ensure they carry identification (such as an enforcement warrant) with them. As soon as practicable after entering the place, the staff member or agent who entered must identify him or herself and inform the occupier of the place and entry and reasons for it.
Step 5: Costs and compensation
Where Step 4 is taken, the authority may require reimbursement of its actual and reasonable costs from a person, if the entry and works were necessitated by the default of that person (refer s331 of the RMA).
A record of costs should be prepared and forwarded to that person requiring payment. If payment is not forthcoming within 20 working days of being required, then the authority may seek an enforcement order under s314(1)(d) of the RMA.
There is also the right of a person injuriously affected by the intervention to seek compensation from the local authority. Note: Compensation is only payable in respect of loss or damage that is not the fault of the claimant. It is to be determined in accordance with Part V of the Public Works Act 1981 (with any necessary modifications).
Step 6: Collection and collation of information on event and action taken
The person or authority, network utility operator, or lifeline utility should:
collect and record all relevant information by written record, recordings, verbal or visual or still photographs relied on, in reaching their opinion that immediate preventative measures or immediate remedial measures or any actions taken to avoid loss of life, injury or serious damage to property are appropriate
ensure full information recovery and recording of the event, and the action plan used to remove the cause, or mitigate any actual or likely effect, of the emergency.
Step 7: Notice to consent authority (and resource consent application if necessary)
Where an activity or action is undertaken under s330, the relevant authority is required to advise the consent authority within seven calendar days (of commencement), that the activity has been undertaken (refer s330A of the RMA).
If resource consent would usually have been required for the activity, and the adverse effects of the activity are continuing, then the relevant authority must apply for resource consent within 20 working days of the notification given above.
In the instance that the resource consent application is made within the 20 working-day period, the activity may continue until the application for resource consent and any appeals have been finally determined.
Note: The requirement to advise the consent authority should be used by the enforcement officers of that authority as an opportunity to check whether the s330 powers are being used appropriately. In particular the officers should make inquiries similar to Step 6.
Step 8: Review and compliance checking
Review all prior steps for accuracy and completeness, and undertake a review of how the emergency provisions of the RMA were utilised for the purpose of checking compliance, enhancing and/or streamlining processes for the future, and educative reasons.