Christchurch earthquake - legal update on resource management issues

Our thoughts are with everyone in Christchurch following last week's devastating earthquake.  We appreciate that legal matters are unlikely to be a priority for many of our Christchurch clients.

The unprecedented nature of the earthquake will likely result in significant, if temporary, changes to environmental and resource management laws applicable in Christchurch, and may see the development of policy that is ultimately applied nationally.

State of national emergency

Following the 22 February 2011 earthquake, the Minister of Civil Defence and Emergency Management declared a state of national emergency under the Civil Defence Emergency Management Act 2002 (CDEMA).  The declaration was made on the basis that the civil defence emergency management necessary in Christchurch City is beyond the resources of local civil defence personnel.  The declaration centralises the co-ordination of the civil defence emergency management under the Director of Civil Defence Emergency Management.

Under the CDEMA, a declaration of a national state of emergency lasts only 7 days unless extended.  On 1 March 2011, the Minister extended the state of national of emergency by a further 7 days, and indicated that several further extensions are likely.

The CDEMA places a premium on co-ordinating and enabling rescue and recovery efforts, and the provision of essential community services by:

• Giving the Director widespread powers to respond to emergency situations (including, for example, the ability to requisition land, buildings and supplies) without following normal legal processes while the state of national emergency remains in place
• Requiring those providing "lifeline utilities" (such as water, sewage, roading and telecommunications) to ensure those utilities function to the fullest possible extent, both during and following the state of emergency.

Section 330B of the Resource Management Act provides that resource consents do not need to be obtained prior to these emergency powers and responsibilities being exercised.  However, once activities that would normally require resource consent are undertaken, the person who authorises that activity must notify the local authority within 20 working days.  If the activity has a continuing effect (for example, erecting above-ground power lines), resource consent must be applied for within a further 60 working days.  These are extensions, provided for by the Canterbury Earthquake (Resource Management) Order 2010, to the normal timeframes under sections 330A and 330B of the Resource Management Act.

When the state of emergency under CDEMA is lifted, local authorities, network utility operators, and those responsible for public works will still be able to undertake emergency works under section 330 of the RMA without obtaining necessary resource consents where (in their opinion):

• There is an adverse effect on the environment requiring immediate preventative or remedial measures
• Where a sudden event is causing or is likely to cause loss of life, injury or serious damage to property.

The same timeframes for advising the local authority of the activity and applying for resource consent apply.

Earthquake legislation and Orders in Council

Previous legal updates in the wake of the 4 September 2010 earthquake outlined the Canterbury Earthquake Response and Recovery Act 2010, and subsequent Orders in Council, passed to relax statutory requirements that may have impeded the recovery effort.

You can view our full legal update from September 2010 here, and the subsequent update on the first 5 Orders in Council here.  Following those updates, several more Orders in Council were made under the Canterbury Earthquake Response and Recovery Act 2010 to relax various statutory requirements in the Social Security Act 1964, Cadastral Survey Act 2002, Rating Valuations Act 1998, Local Government Official Information and Meetings Act 1987 and Historic Places Act 1993.

Further legislative or regulatory intervention will almost certainly occur to help deal with the aftermath of last week's earthquake.  The Canterbury Earthquake Response and Recovery Act provides for a very wide range of new Orders in Council to be made, and it is likely the government will take advantage of this.

Orders in Council already in force may also be amended.  For example, the Canterbury Earthquake (Resource Management Act) Order 2010 currently provides for extensions of the timeframes for processing resource consent applications if requested by the applicant.  It would seem sensible to allow councils located in and around Christchurch, who now have much more pressing matters to attend to, to decide unilaterally to put these applications on hold.

Legal assistance from Buddle Findlay

We are thankful that all Buddle Findlay Christchurch staff are safe.  Temporary premises have been set up in Christchurch.  Rachel Dunningham, Kerry Smith and Cedric Carranceja can all be contacted on their mobiles and by email, and are working with the Wellington and Auckland resource management teams to ensure the ongoing provision of services to all our clients.

This article is provided for general information purposes only and not as legal advice.  If you would like to discuss the issues covered in this update, please do not hesitate to contact one of our national team members - Paul Beverley, Patrick Mulligan, Kerry Smith, Rachel Dunningham, Cedric Carranceja, David Allen, David Randal, Andrew Braggins or Vanessa Evitt.