Navigating the COVID-19 alert levels for compliance and enforcement

New Zealand was placed in Covid-19 Alert Level 4 on 11.59pm on 25 March 2020 closing non-essential businesses and severely limiting our movements for at least four weeks and potentially beyond, in the lower Alert Levels 3 and 2.

New Zealand has been placed in a state of national emergency under the Civil Defence Emergency Management Act 2002 and Prime Minister Jacinda Adern has issued an epidemic notice under the Epidemic Preparedness Act 2006, which will last for three months unless lifted earlier by the Government.  The combination of these two measures has seen the Government take on powers of a nature that have not been available since the 1951 industrial waterfront dispute.  This is a marker of the severity of the threat COVID-19 poses to the country.

The Government has provided guidance, although there remains some uncertainty, around what essential businesses are permitted to continue to operate during the Level 4 lockdown.  Food, medicine, healthcare, energy, fuel, waste-removal, internet and financial support have been identified as essential.  These businesses can continue to operate although where possible they must put in place alternative ways of working to keep employees safe.

The Government has also now provided guidance about what businesses can restart operations during Alert Level 3.  The key message is that “safe”, as opposed to “essential” services can operate, and this includes forestry, mining and construction sites.  Those sites must have strict hygiene measures in place and office staff who can work from home must continue to do so.  More detailed guidance for sectors, including the construction and natural resources sectors, is expected over the coming days and individual queries can be made to MBIE, although businesses are able to make their own decisions about restarting operations with appropriate safety measures.

In the resource management context, many industries have not been deemed essential and are required to be closed during the Level 4 lockdown period.  These industries will likely be able to operate but potentially in a limited capacity in Alert Level 3.  Many operators in these industries are bound to comply with resource consent conditions that involve ongoing monitoring and works, which creates difficulties with access to sites being prevented and staff required to stay at home.

The Ministry for the Environment (MfE) has stated that we are in unprecedented times and consent holders are expected to comply with their consent conditions and environmental responsibilities when it is safe and possible to do so.  If compliance is not possible during the lockdown, consent holders have been advised to discuss their situation with the relevant local authority.

What this means in practice for site operations is not immediately clear and is likely to need to be approached on a case-by-case basis.  MfE has indicated that any work required to address immediate health or safety risks, or to prevent serious environmental harm is deemed an essential service and must be continued to be carried out.  This includes the maintenance of control devices on mining and forestry sites and urban and rural earthworks such as sediment and erosion devices and silt retention ponds.  Maintaining features such as these remains the responsibility of consent holders and operators.

Many councils have indicated that their essential services teams that are still working during the Level 4 lockdown include compliance monitoring and enforcement officers.  They will presumably be responding to incidents involving health and safety risks and potential environmental harm, rather than undertaking their usual monitoring work.  This approach is supported by MfE’s recent guidance that no site visits are to occur during Level 4 unless they are essential to address immediate human health or life safety risk, or to prevent serious environmental harm.

MfE has also provided guidance on how councils should approach prosecutions and enforcement action during the COVID-19 response.  The basic message is that consideration of the declaration of a national state of emergency and an epidemic are likely to be relevant considerations in the exercise of prosecutorial discretion.  This may mean delaying any enforcement or prosecution action or whether alternative solutions may be appropriate in light of the current circumstances.

The Resource Management Act 1991 (Act) itself also contains provisions that could be relied on to assist businesses during the Level 4 lockdown to undertake essential environmental monitoring and safety works without facing enforcement action or prosecution:

  • Section 341 of the Act provides a specific statutory defence to prosecution. To rely on this it would need to be established that the action or event was necessary to save or protect life or health, prevent serious damage to property, or avoid an actual or likely effect on the environment and that the actions were reasonable in the circumstances.
  • Section 330 of the Act allows certain public entities and private businesses to take actions without consent where it is necessary to remove the cause, or mitigate the effect of an emergency.
  • The Civil Defence Emergency Management Act 2002 and the civil defence emergency powers under section 330B of the Act are now also relevant. These mean certain actions related to land use; water take and discharges during a state of emergency will not amount to offences under the Act.

If you have any questions about your operations or compliance requirements during the COVID-19 Alert Levels, please contact the Resource Management Team.

Resource Management team

Josh Leckie, Annabel Linterman, Kelsey Barry, Mia Turner

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