Defences for Persons Not Authorised Under s330(1) of the RMA

Section 341(2) of the RMA provides further 'emergency type' defences. It applies to certain strict liability offences, including a breach of sections 9 and 11-15, where " the action or event to which the prosecution relates was necessary for the purposes of saving or protecting life or health, or preventing serious damage to property or avoiding an actual or likely adverse effect on the environment ".

While the s18 immunity would be preferred, for example as the basis on which to apply to strike out charges, this section will assist other defendants not listed in s330(1)(a)-(ca). It must be proven on the balance of probabilities by the defendant.

Section 341(2) uses the word 'and' between (a)(i), (a)(ii) and (a)(iii), and (b)(i) and (b)(ii). Consequently, the tests to be applied are conjunctive (i.e. need to be read together). As such, for a defendant to rely on s341(2)(b), the event that took place must not have been reasonably foreseeable, or provided for by the defendant. The effects of the action or event must also be adequately mitigated by the defendant. This provision relates to an event that could not have been foreseen or provided against, but s330 does not require so.

Note that the statutory defences available under s341 apply to sections 9 and 11-15 of the RMA and do not mention abatement notices or enforcement orders. However, without clear wording indicating absolute liability, a defendant has available a common law defence of absence of fault .

Council as enforcer and emergency worker

A local authority can have two very different roles in relation to emergency powers. A local authority is the enforcer of its plan, but may also be the authority carrying out work under the emergency works provisions.

As the enforcer of its plan, a local authority may find itself needing to check the validity of its own decisions to use emergency powers. This should be done with a clear separation of functions, and at with the operational officers of the council remaining at arm's length from its enforcement officers. All decisions should be recorded carefully to avoid allegations of undue bias. For example, a senior manager with both an enforcement team leader and an infrastructure team leader (undertaking emergency works) reporting, should play no part in brokering agreements between the two functions. Each should work independently according to best practice in their respective fields.

Obstruction when entering land or directing actions

If an occupier obstructs entry to a person exercising s330(2) powers, or refuses to take action on a direction, the relevant authorised person may seek the cooperation of the Police. Refusal or obstruction would qualify as an offence (refer s338(3)(a) of the RMA). As set out in the notes on compensation under s331, the local authority may require reimbursement if it has to act in default of another person (recoverable by means of an enforcement order pursuant to s314(1)(d)).