Cyclone and Consents Advice

The Severe Weather Emergency Legislation Act 2023 (SWELA) was passed on 20/03/2023 and has amended the RMA (s331B) to make provisions for landowners / occupiers to carry out some works on private rural land and marae, papakāinga or urupā to relieve the flood and storm damage for approximately one year from 1 April 2023. Some works can be done as if they are permitted activities (PA) where usually they would require resource consent.

These provisions apply to rural land (i.e. land that is rurally zoned or similar in the relevant district plan); to land where marae, papakāinga or urupā are located; and to other land primarily used for livestock or horticultural farming that have been affected by Cyclone Gabrielle. This would include some forestry activities. Industrial and urban zoned land is not covered by these provisions.

These land owners / occupiers will not be required to apply for resource consent for activities undertaken to mitigate, prevent or remediate adverse effects which, as a result of the impacts of Cyclone Gabrielle, has caused, is causing, or is likely to cause:

• loss of life or injury to humans,
• loss of life or serious detriment to the health or well-being of animals,
• or serious damage to land or property

Activities can be undertaken if the land owner / occupier consider that immediate works are required to avoid, remedy, or mitigate adverse effects caused by Cyclone Gabrielle and that the measures are proportionate to the associated adverse effect. These activities that would usually require resource consent can be deemed to be permitted activities.

However, an activity cannot be undertaken as a permitted activity under s331B if it is not undertaken in a manner that avoids, remedies, or mitigates adverse environmental effects as far as reasonably practicable, and/or where there are significant adverse effects beyond the boundaries of the owner’s/occupiers of the land. For these activities, the usual relevant provisions of the Regional Plan, any regulation, or National Environmental Standard (NES) apply to the activity.

Before undertaking any work you must determine whether the activity is on or adjoining culturally significant land. If it is, notice must be given to the relevant iwi or hapu and written approval must be obtained from them before you can proceed. If written approval is not provided, then a resource consent will need to be applied for. The relevant district plan should be checked for mapped areas of cultural significance as well as HBRC’s Pataka site: https://gis.hbrc.govt.nz/LocalMapsGallery/

A checklist has been prepared to help determine whether activities would fall under the s331B provisions – please find this here.

In addition, the activity cannot be undertaken if it is a prohibited activity in any regional, district or national plans, rules, regulations or legislation. There are two prohibited activity rules administered by HBRC. These apply to burning (e.g. no outdoor burning of tyres, treated timber, coated metals, plastics) and wetlands (no loss of wetlands). You can contact the Regional Council consents team regarding whether an activity would be prohibited under its plans and regulations.

If, as a landowner, you undertake work that would otherwise require a resource consent, you must give written notice to Hawke’s Bay Regional Council that the activity has been undertaken within 60 working days of the activity beginning. We would advise that you record the location, size and extent of the works undertaken, and keep documentation (eg photos, test results). 

We also encourage you to undertake work using best industry standards and practices. The Hawke’s Bay Regional Council consents and compliance teams are happy to work with you and provide advice to reduce any ongoing environmental effects.

We would encourage any new or replacement river crossings to take into account fish passage requirements. To achieve this, culverts should be at least as wide as the stream channel, laid parallel to the stream bed and set into the stream bed (so at least 25% of the culvert is below the level of the stream bed). Further advice on providing for fish passage is available from HBRC.

Existed permitted activities

Where an activity is intended to be carried out under s331 of the RMA and it has permitted activity standards set in a rule or regulation, we would encourage land owners and occupiers to use the permitted activity standards as guidance to minimise and reduce environmental effects, where possible. Read the rules of the Regional Resource Management Plan.

Forestry areas

S331B will apply for some recovery activities that are required for plantation forestry management and harvesting purposes. Where the Resource Management (National Environmental Standard for Plantation Forestry) Regulations 2017 (NESPF) applies, activities can be carried out as a permitted activity, even if the permitted activity standards cannot be met, provided the s331B test can be met (see checklist here). Again, we would encourage land owners and occupiers to use the permitted activity standards as a guide to work towards to reduce environmental effects as much as possible.

There is still a duty to avoid, remedy or mitigate adverse effects on the environment of these activities and ensure that the activity will not cause significant effects outside the boundaries of the owner’s or occupier’s piece of land. If the works are in or adjoining an area of cultural significance (such as a statutory acknowledgement area) then relevant iwi and hapu must be notified and written approval obtained. The relevant district plan should be checked for mapped areas of cultural significance as well as HBRC’s Pataka site: https://gis.hbrc.govt.nz/LocalMapsGallery/

Examples of emergency works may include reinstatement of culverts or tracks or removal of debris from streams. For culverts attention needs to be given to providing for fish passage.

If, as a landowner or occupier, you undertake work that would otherwise require a resource consent, you must give written notice to Hawke’s Bay Regional Council that the activity has been undertaken within 60 working days of the activity beginning. We would advise that you record the location, size and extent of the works undertaken, and keep documentation (eg photos, test results). 

If the activity does not fit in the ‘works in a rural zone and where marae, papakāinga or urupā are located’ requirements outlined above, the following may be relevant.

Resource consent will be required if activities are carried out which are not permitted activities under relevant rules and legislation, however given the circumstances, we may be willing to accept retrospective resource consent applications. Further advice on retrospective consents is below.

Bores

In the situation where an existing well has been damaged/destroyed by the Cyclone, the SWELA legislation could apply to drilling of a replacement bore. This would enable rural land owners to have a replacement bore drilled without needing to go through the consent process and without the associated costs, but there is a requirement that notice is provided to HBRC within 60 working days of the activity occurring. We expect that the notice provided will include the normal well completion report. Please note that the above only applies to the replacement of wells that have been damaged or lost due to Cyclone Gabrielle. For drilling of all other wells, a bore permit must be obtained in advance.

Where removal, replacement or repair of river crossings is done in accordance with permitted activity rules, no resource consent is required. See Rules 64, 66 and 72 of the Regional Resources Regional Plan (RRMP).

The maintenance of bridges and culverts can occur without consent, where Rule 64 is met. Maintenance includes restoring a structure to working order but does not include extending, replacing, removing or demolishing a structure, or any substantive change to the form, orientation, or outline of the structure.

Permanent bridges

In most cases an application for resource consent will be required for new permanent bridges.

For new permanent bridges, the following should be undertaken prior to construction commencing:

- Obtain advice and a bridge design from a registered professional engineer. Flood modeling advice should also be obtained and the bridge height relative to flood levels will be a key consideration.

- Where the bridge is within a Council managed flood control and drainage scheme area, consult with HBRC (and the City or District Council where applicable) and obtain written approval.

Culverts

The installation of culverts may require consent under Rule 72 of the Regional Resource Management Plan (RRMP) and under Regulation 71 of the National Environmental Standard for Freshwater, 2020 (NES-F Regulations). The NES-F Regulations also require that certain information is collected about each culvert, regardless of whether consent is required or not. For culverts and other river crossings in Plantation Forests the National Environmental Standards for Plantation Forestry (NES PF) 2018 apply (however works may be allowed under s331B – see above advice).

Prior to installation of any culvert, the following should be undertaken:

- Obtain advice and culvert design from a registered professional engineer.

- Ensure that the design requirements of the NES-F Regulation 70 are met, as far as practicable. For culverts in Plantation Forests, refer to NES-PF Regulation 46.

- Where it is within a Council managed flood control and drainage scheme area, consult with HBRC (or the City or District Council where applicable) and obtain written approval. - Collect the information required by the NES FW Regulations 62 to 28.

Where fencing of waterways on farms has been destroyed or damaged beyond practical repair, we realize you are likely to have a lot of recovery work to carry out. As such, please do not worry about replacing these immediately. Utilise temporary fencing where possible to exclude stock from waterways. MPI has advice on available support resources here with links to Rural Advisory Groups, who may also be able to offer assistance and guidance to farmers.

Cleaning of drains within Council managed Flood Control and Drainage Areas may only be undertaken with prior approval/permission from HBRC Asset Management Group and if approved will not require resource consent. However, if prior approval is not given by Council’s Asset Management Group, consent prior to the activity being undertaken will be required.

HBRC has prepared guidance for dealing with waste from Cyclone Gabrielle here, including silt, dead stock and woody debris, post and wires and hazardous substances. Options for waste disposal may change as the recovery plan is developed.

HBRC are assisting with collection of clean silt from rural land. Separate materials as best you can. This will make each type of waste easier to manage and dispose of.

If you are moving silt, make every effort to avoid spreading or stockpiling this in or near to wetlands or other sensitive areas such as wells and waterways. HBRC has carried out some mapping of wetlands which can be used to help you identify wetlands: https://www.hbrc.govt.nz/environment/farmers-hub/essential-freshwater-package-farmers-guide/wetland-management/.

Note: the above map is not a comprehensive list of wetlands in the region and some areas will be classified as wetlands that are not mapped.

Option 1: For farmers/lifestylers/ orchardists check HBRC website for most up to date guidance for silt removal options here.

Option 2: Silt retained on property can be spread or worked into the soil provided care is taken to prevent silt from re-entering water and it is kept away from any stopbanks, and no consent will be necessary.

See the Landwise for advice on dealing with silt on farmland and revegetating areas. Other agencies or industry bodies are also providing advice and assisting with silt management (eg Beef and Lamb, Hort NZ, HDC and NCC).

Treated timber and other specified materials (such as tyres, plastics, galvanised wire) cannot be burnt. It is a prohibited activity to burn these, and other specified materials (Rule 20).

If you have wood waste on a lifestyle block, farm or orchard, the Regional Council may provide assistance, check most up to date advice here.

Smaller amounts of untreated timber and wood collected from within your own property can be burnt, but you will need to manage this to avoid affecting your neighbours (eg with smoke). You will need to be careful that it does not include prohibited materials such as treated wood, wire, and tyres. You should also check with the Rural Fire Authority before burning.

If the activity does not fit in the ‘works in a rural zone and marae and papakainga areas’ requirements outlined above, the following may be relevant.

People who hold existing consents who are struggling to meet compliance requirements due to damaged infrastructure are advised to contact HBRC compliance staff who will provide advice on meeting the requirements of existing consents and on appropriate timeframes for achieving this.

We ask consent holders to develop a plan to restore the functionality of damaged infrastructure when practicable to do so and to minimise any environmental damage in the interim. What is considered practical and appropriate mitigation will vary from farm to farm and business to business.

During this period of interruption of normal operations, we will consider the need to meet conditions of consent on a case-by-case basis.