The Severe Weather Emergency Legislation Act 2023 (the Act) was passed into law on 20 March 2023, just six days after its introduction to the House. In the time between our last update and the passing of the Act, some small but important amendments were made.

While the overall thrust of the Act remains the same – recognising that it may not be possible to effectively and efficiently manage the impacts of extreme weather events, while simultaneously complying with the RMA and other regulatory requirements – there are a few important amendments that shouldn’t be left to fly under the radar.

Rural Landowners

Key changes have been made to the provisions regarding rural landowners and occupiers. The Act widens what can be qualified as “rural land”, to allow those rural landowners and occupiers to undertake preventative or remedial activities to mitigate loss, injury or damage, without a resource consent.

The Act’s definition of what is “rural land” now includes land with a Māori purpose zoning status, or land that has marae, papakāinga, or urupā on it. It also includes land that, while not zoned general rural or rural production, is used for the primary purpose of livestock or horticultural farming.

Additional environmental safeguards have been included in the Act. When utilising these provisions, rural landowners must, as far as reasonably practicable, avoid, remedy or mitigate any adverse environmental effects, and must not cause significant adverse effects beyond the boundaries of the owner or occupier’s rural land.

Problematically, the Act has been amended to change the provisions that empowered only the relevant council to bring enforcement or declaratory proceedings against rural landowners or occupiers that went beyond the permitted activities. Section 331E now enables any person to seek an enforcement order or declaration. This change was not recommended in the Select Committee report and is a departure from the approach taken in the Hurunui/Kaikōura Earthquakes Emergency Relief Act 2016.

Activities that cannot be permitted

The Act still provides for works to be deemed permitted activities under the RMA, meaning no subsequent retrospective consents are required. However, the class of activities which cannot be deemed permitted has been widened from only activities which are prohibited under a relevant plan, national environmental standard or regulation to include land that is in the coastal marine area. Additionally, if the land is culturally significant, or the measure will impact culturally significant land, the rural landowner must give notice and obtain written permission from the relevant iwi or hapū before undertaking measures.
These provisions will now remain in place until 1 April 2024 - an extension of the originally stated date in the Bill of 1 October 2023. This not only alleviates some of the time-pressure on the rural community, but also enables activities to be undertaken at the most appropriate time (e.g., significant earthworks can occur during dryer weather in October to April).

Changes to provisions affecting Councils

The provisions regarding Council staff entering private property to carry out emergency works, and associated administrative deadlines, are now available only until 1 October 2024, as opposed to the original1 April 2025 date.

However, the administrative extension to 100 days (from the current seven working days) for when emergency works are undertaken remains. Likewise, the timeframe for making applications for retrospective resource consents remains extended to 160 working days, from the current 20.

Comment

While the changes made to the Act seek to strike a better balance between protecting the environment and enabling recovery are understandable, the unintended consequence is actually substantial uncertainty.

Rural landowners and occupiers, along with the regulating councils, will need to consider whether preventative or remedial activities are “so far as is reasonably practicable” avoiding, remedying or mitigating environmental effects; and whether activities might cause significant adverse effects on the environment. Both tests inherently involve value judgements, upon which people with different perspectives will invariably reach different conclusions.

The latter test seems to have been applied without issue following the Hurunui/Kaikōura Earthquakes (it was a feature of the recovery legislation). The “as far as is reasonably practicable” test, however, is novel. Under the approach taken with the Bill, the risk of these new tests being a barrier to recovery work was mitigated, particularly by the provisions that limited enforcement and declaration proceedings to councils. The unexpected and unexplained change to the Act’s enforcement provisions, extending them beyond just councils, may have a cooling effect on rural landowners and occupiers – who may now be unwilling to run the risk of enforcement or declaration proceedings by third parties (such as unimpressed neighbours or environmental groups).

Herein lies the problem with urgent legislation.

While its expedited passage through Parliament was certainly justified we fear that the legislation may not be as effective as it could have been had more time been spent thinking about the implications of changes made at the eleventh hour.

We will continue to watch this space!