Extaordinary Powers to Expedite Recovery

Part 3:  Orders in Council & Other Powers 

July 2011

 

The Canterbury Earthquake Recovery Act 2011 (the Act) vests extraordinary powers in the Minister for Earthquake Recovery, the Hon. Gerry Brownlee, to circumvent or fast-track usual RMA processes to expedite the recovery of Christchurch. 

This is the final of a three-part series of articles examining the application and implications of these powers.  In Parts 1 and 2 we considered the Central City Recovery Plan and the Long-Term Recovery Strategy. This article examines the other powers available to the Minister, including the ability to 'fast track' proposals by Order in Council.


Orders in Council

An Order in Council is method by which the law can be changed without the need to go through the usual parliamentary process.  Under the Act, the Minister may recommend the use of Orders in Council to change the law for the purpose of earthquake recovery.

Since the Act was passed, approximately twenty Orders in Council have been made amending a number of different statutes, including the RMA. This article comments on three particular Orders that have introduced 'fast track' processes that avoid the usual requirements for resource consents.

Temporary Activities

Under the Canterbury Earthquake (Resource Management Act Permitted Activities) Order, the following temporary activities may occur without the need for resource consent:

  • Temporary accommodation for persons displaced from their normal place of residence or business due to the earthquakes; and

  • Temporary depots and storage facilities used for transportation and construction work related to earthquake recovery.

To qualify for the exemption, the relevant council must issue a public notice specifying the location of the proposed activity and any standards that may apply. The activity must also be of a temporary nature and may not continue beyond April 2016. 

In response to this Order, the Christchurch City Council has issued a public notice setting out a range of standards for temporary activities. The standards vary depending on the nature of the activity and the zone in which the activity is located.

If an activity complies with these standards, no resource consent is required, even if the activity breaches rules in the City Plan. However confirmation must be sought from the Council before the activity commences. If it does not comply with the standards, there is the ability to apply for a Temporary Accommodation Site Specific Approval, which will be considered by a Commissioner within three days of receiving the application.

Selwyn District Council has also issued several public notices that enable temporary activities to occur in the Living and Rural zones of the district without the need for resource consent. 

Special projects

In addition to temporary activities, Orders in Council have also been used to streamline the consent process for specific projects that are directly related to earthquake recovery. Unlike temporary activities, any resource consents obtained under these Orders are permanent consents that allow the activities to continue indefinitely (subject to the usual limitations).  

The first such Order made related to reclamation work and port activities at the Port of Lyttelton. A similar Order was recently made in relation to the storage, sorting, and processing of earthquake waste at the Burwood Resource Recovery Park.

The purpose of these Orders is to ensure that the activities are not "unduly constrained" by the usual RMA processes. Two key methods have been used to achieve this goal:

  • Classifying the specified activities as "controlled", meaning that consent must be granted (subject to conditions on limited matters); and

  • Providing for a 'fast track' resource consent process, as summarised in the table below.

 

 

Port of Lyttelton

Burwood RRP

Pre- lodgement

The applicant must consult with a list of specifies parties and include a summary of that consultation with the application

No specific pre-application requirements
Processing of application Processed on a non-notified basis

Consent authority must provide a list of specified parties 10 working days to comment on the application

Decision

Within 5 working days of receiving the application

Within 30 working days of receiving the application


Other powers

A further power available to the Minister is the ability to suspend, amend, or revoke the whole or any part of council plans and policy statements.

This power has recently been exercised by the Minister, with a public notice issued on 20 July 2011 amending the Christchurch City Plan and Banks Peninsula District Plan. The notice introduced new provisions into both plans to the effect that any demolition or alteration of buildings and related earthworks carried out by the Canterbury Earthquake Recovery Authority are permitted activities and do not require resource consent.

In addition to the above, there are a wide range of other powers available to the Minister, including the ability to suspend or cancel any resource consent and the ability to direct a council to take any action or make any decision under the RMA. There are no consultation requirements or appeal rights in relation to the exercise of such powers.


Key message - How does this affect you?

The temporary activities permissions and the site specific approvals provide a significantly streamlined process that avoids the usual resource consent requirements. If you have been displaced from your usual place of business or residence, these processes could provide a significant benefit to you, enabling you to establish and continue an activity for five years until April 2016.

On the flip side, these processes enable activities to establish in locations where they might not have otherwise occurred with no opportunity for public input. This could potentially result in some conflict between activities, such as an office or retail activity starting up in a quiet residential area.

In relation to the Orders in Council, at this stage they have only been used for large scale projects such as disposing of rubble and waste material from the earthquakes. However there is the potential for Orders in Council to be used to streamline a wide range of projects, including new land development to accommodate displaced residents in the residential red zone. The benefits of any such fast tracking will need to be carefully considered against the consequences of reduced public input before any such decisions are made.

It remains to be seen how the other wide ranging powers available to the Minister are exercised. However, if actions to date are a reliable indicator, they are likely to be used sparingly and only where genuinely necessary to assist earthquake recovery.

Overall, the powers discussed in this and the other articles in this series provide both opportunities and potential risks that have changed the resource management landscape in Greater Christchurch, at least in the short term. Whether these changes are a forerunner to permanent amendments to the RMA along similar lines will be watched with interest.  

 


Disclaimer:  This is a brief summary for information purposes only and is not legal advice.

 

Posted on Wednesday 27th July, 2011 at 04:51 pm