This order is made under the Hurunui/Kaikōura Earthquakes Recovery Act 2016 (the Act) and its effect is temporary. It comes into effect on the day after it is made and is revoked on 31 March 2018. The Act enables orders to be made that grant exemptions from, modify, or extend the provisions of certain enactments. (For simplicity, a reference, in this statement of reasons, to the modification of provisions of an enactment includes the granting of an exemption from, and the extension of, the provisions of the enactment.)

This order primarily relates to State Highway 1 and the railway line known as the Main North Line (MNL), and to all land, infrastructure, and other property associated with those transport links, between 330 km MNL (north of Tunnel 24, which is north of Tuamarina; NZTM: 1680440; 5414638) and 125 km MNL (south of Phoebe Station, which is inland from Cheviot; NZTM: 1618705; 5265446) (the coastal route). The purpose of this order is to enable the New Zealand Transport Agency and KiwiRail Holdings Limited (the agencies) to, without undue delay, restore the coastal route and to enable it to be used fully, effectively, and safely.

The order defines restoration work in clause 3 to mean any activity that, because of or in connection with the Hurunui/Kaikōura earthquakes, is necessary or desirable to undertake to, without undue delay, restore the coastal route and enable it to be used fully, effectively, and safely. This definition includes any activity necessary or desirable for the repair and rebuilding of the coastal route or to enhance the safety and improve the resilience of the coastal route.

In addition to facilitating restoration work, the order also deems certain temporary depot, storage, and parking activities to be permitted activities under the Resource Management Act 1991, where they are necessary to—

• restore any road or rail line under the control of the New Zealand Transport Agency or KiwiRail that has been damaged by the earthquakes; or

• address disruption to the land transport system caused by the earthquakes.

This order has, in relation to restoration work carried out by an agency, the effect of modifying certain provisions of the following enactments:

• Resource Management Act 1991:

• Conservation Act 1987:

• Freshwater Fisheries Regulations 1983:

• Marine Mammals Protection Act 1978:

• Marine Reserves Act 1971:

• Ōhau New Zealand Fur Seal Sanctuary (Restrictions) Notice 2014:

• Wildlife Act 1953:

• Reserves Act 1977:

• Heritage New Zealand Pouhere Taonga Act 2014:

• Public Works Act 1981.

An order under section 7 of the Act may be made only on the recommendation of the “relevant Minister”. Section 8(1) of the Act provides that a relevant Minister must not recommend the making of an order unless the relevant Minister is satisfied that (among other things)—

• the order is necessary or desirable for the purpose of the Act; and

• the extent of the order is not broader than is reasonably necessary to address the matters that gave rise to the order.

The “relevant Minister” is the Minister responsible for the administration of the enactment the provisions of which this order modifies. Where there is more than 1 responsible Minister, the relevant Minister is each of those responsible Ministers acting together. For this order, the relevant Minister is the following Ministers acting together:

• the Minister for the Environment (as the Minister responsible for the administration of the Act modified in Part 2):

• the Minister of Conservation (as the Minister responsible for the administration of the enactments modified in Parts 3 and 4):

• the Minister of Arts, Culture and Heritage (as the Minister responsible for the administration of the Act modified in Part 5):

• the Minister for Land Information (as the Minister responsible for the administration of the Act modified in Part 6).

The effects of this order are set out below, together with a statement of the reasons, in each case, why the relevant Minister is satisfied of the matters in section 8(1) of the Act and considers it appropriate to recommend the making of this order.

Because part of the order relates to the Resource Management Act 1991, the relevant Minister also has to consider—

• the effects on the environment of any controls provided for in the order; and

• whether those controls avoid, remedy, or mitigate, any adverse effects.

The Minister for the Environment, as the relevant Minister for the Resource Management Act 1991, has considered the controls and this assessment is included in the reasons below.

This order makes the following modifications to the Resource Management Act 1991 (the RMA).

Any restoration work done by or on behalf of an agency that is not a permitted activity for the purposes of the RMA is a controlled activity for the purposes of the RMA (clauses 5 and 6).

Applications for a resource consent for restoration work are governed by either—

• clause 11, where an agency chooses to make an application under that clause. The clause 11 process can only be used in the case of applications made on or before 31 March 2017 or before the end of a state of emergency or a transition period under the Civil Defence Emergency Management Act 2002; or

• clauses 7 to 10 in any other case.

For an application for a resource consent for restoration work made under clauses 7 to 10,—

• the consent authority’s power to impose conditions is restricted to matters of control specified in clause 6:

• the consent authority must notify its decision on the application within 21 working days of the application being lodged (clause 8).

An agency, when applying for a resource consent for restoration work, is not required to make the application in the prescribed form and manner (within the meaning of section 88(2) of the RMA). Instead, the requirements for an application are simplified (clause 7).

The consent authority must not publicly notify or give limited notification of an application (clause 8). Instead, the consultation process in clauses 9 and 10 applies.

In considering an application for resource consent for restoration work, a consent authority is not required to have regard to some of the matters to which it would normally have regard when considering an application.

The consent authority is not required to have regard to any relevant provision of a national environmental standard, regulations, a national policy statement, a New Zealand coastal policy statement, a regional policy statement or proposed regional policy statement, or a plan or proposed plan.

In relation to an activity that requires a discharge permit, the consent authority—

• is not required to have regard to the nature of the discharge and the other matters specified in section 105 of the RMA:

• is deemed to be satisfied of the matters set out in section 107(2) of the RMA, which include that there are “exceptional circumstances” (clause 8).

As soon as possible after lodging an application for a resource consent for restoration work, the consent authority must invite written comments from specified persons, who will have 15 working days to make comments. Those persons do not qualify as submitters for the purposes of the RMA, and may not object or appeal under the RMA against the consent authority’s decision on the application (clause 9).

Before making a decision on an application for a resource consent, the consent authority must consider, and prepare a summary of, the comments, and make the summary publicly available (clause 10).

An agency may choose to make an application using the process in clause 11, which has reduced time frames for granting resource consents and limits the consent authority’s ability to impose conditions to the ability to recommend changes to the conditions in Schedule 1.

Clause 11 effectively replicates the process for a requiring authority to confirm a notice of requirement for a designation, with sufficient modifications so that it applies to the granting of resource consents for controlled activities for restoration work. Under the normal RMA process for a designation, the territorial authority will consider and make recommendations on a designation (including recommended conditions) (section 171 of the RMA), after which the requiring authority makes a decision on whether to accept or reject the recommendation, in whole or in part (section 172 of the RMA).

Where clause 11 applies, a consent authority may impose on the resource consent the conditions that relate to the activity under Schedule 1, except as modified through the following process:

• the consent authority may recommend amendments to those conditions, which the agency can accept or reject:

• if the agency rejects a recommended amendment, it must identify an alternative amendment and the conditions, as then amended, apply to the consent:

• there is no consultation on the application for the resource consent:

• the consent authority must notify its decision on the application within 3 or 7 working days (depending on the circumstances) (clause 11).

Clause 12 applies to restoration work that is done as emergency works under section 330 or 330B of the RMA and it requires certain environmental effects to be taken into account, unless the work is undertaken within the period of 10 working days of the date on which this order commences.

For land that is reclaimed as a consequence of restoration work, the relevant regional council and territorial authority have the powers, functions, and duties that each would have if the reclaimed land were part of the territorial authority’s district (from the time the land is reclaimed) and the commencement of any resource consent in respect of the reclaimed land is not delayed until a certificate is issued under section 245(5) of the RMA) (clause 13). (Note that both the time by which advice of the activity must be given under section 330A(1) or 330B(2) and the time by which an application for a resource consent must be lodged under section 330A(2) or 330B(3) are extended by section 5 of the Hurunui/Kaikōura Earthquakes Emergency Relief Act 2016. The extended time frames apply until the repeal of that Act on 1 April 2018.)

Clause 14 provides that the operation of the following in the relevant districts is a permitted activity:

• a temporary depot or storage facility that is reasonably incidental to restoration work or to any other activity necessary or desirable to restore any road or rail line under the control of an agency:

• a parking area for heavy motor vehicles that is necessary or desirable as a consequence of disruption to the land transport system caused by the earthquakes.

Clause 15 provides that excavation and filling of the Waitohi Domain for the purposes of establishing a parking area on the domain is a controlled activity and that if the Marlborough District Council or the New Zealand Transport Agency apply for resource consent for the excavation and filling the consent must be granted on the conditions set out in clause 9 of Schedule 1 (relating to contaminated land).

An agency intending to undertake restoration work on designation land is not required to submit an outline plan of work to the territorial authority (clause 16).

Clause 17 applies if an agency gives a notice of requirement to alter the boundaries of a designation to a territorial authority, and the alteration is necessary for restoration work, the territorial authority must alter the boundaries of the designation accordingly and impose the conditions set out in Schedule 2 on the designation (and the provisions of Part 8 of the RMA concerning requests for further information, notification, submissions, and hearings in relation to the notice of requirement are substituted with a more limited consultation process).

The ability to take enforcement proceedings in relation to the activities undertaken in reliance on Part 2 is limited to a consent authority or a Minister (clause 18).

The relevant Minister considers that these modifications to the RMA are necessary or desirable for the purposes of the Act, and the extent of this aspect of the order is no broader than is reasonably necessary, to facilitate the reopening of the coastal route as soon as practicable.

In relation to clauses 5 and 6,—

• it will not be possible for the agencies to secure all necessary resource consents in the required time frames if the status of restoration work remains as that set under the applicable plans and national environmental standards. To require agencies to secure resource consents for restoration work using the normal RMA processes would significantly delay their ability to start the work, and would involve an unacceptable risk that some consent applications may be declined or otherwise appealed (with resulting delays):

• the range of activities described in clause 5(2) that are deemed to be controlled activities needs to be broad, given the varied array of works that are necessary to restore the coastal route and the complex consenting framework for such works if the normal RMA processes were to apply:

• it is necessary to deem all activities for which resource consents will be required to be controlled activities to require the local authorities to grant consent:

• it is necessary to specify matters of control in the order (clause 6(4)) because any matters of control in the relevant RMA planning documents will not be applicable to the deemed controlled activities. The matters of control in clause 6(4) have been developed to include all key potential environmental effects of the restoration work.

In relation to clause 7, it is necessary to exempt agencies from meeting the application requirements in section 88(2) and Schedule 4 of the RMA because it will not be possible for the agencies to prepare an application that complies with section 88(2) and ensure that restoration work can start without undue delay due to the scale of the restoration work required.

In relation to clause 8,—

• it is necessary to modify the public and limited notification processes because it will not be possible for the agencies to secure all necessary resource consents in the required time frames if the usual notification process under the RMA applies. In particular, the time frames associated with the submission process (including decisions on notification, and the time frame for public submissions and hearings) would prevent consents from being obtained in the required time frame. Further, any appeals from submitters would effectively prevent the restoration work from occurring in the necessary time frames:

• given the order alters the activity status of a number of activities to controlled, there are likely to be a number of areas where the consents sought would not align with the provisions of the relevant RMA planning documents. Therefore, it is necessary to exempt consent authorities from the requirement to have regard to the various RMA planning documents referred to in section 104(1)(b) of the RMA. Removing the requirement for consent authorities to have regard to those planning documents would avoid any potential conflict between those planning documents and the requirement to grant consent subject only to conditions relating to the matters specified in clause 6(4):

• it is necessary to deem compliance with section 107(2) of the RMA, because although restoration work should qualify as “exceptional circumstances” in terms of section 107(2)(a) of the RMA, section 107 otherwise imposes a jurisdictional barrier to the grant of consent. Failing to deem compliance with section 107(2) would lead to an unacceptable consenting risk, given the urgent need to restore the coastal route.

To address the limits on public participation following on from the suspension of public and limited notification, clauses 9 and 10 introduce an alternate consultation process, drawing from the process in sections 19 and 20 of the Hurunui/Kaikōura Earthquakes Emergency Relief Act 2016. The time frames in clauses 9 and 10 are necessarily short, in order to ensure that there is no undue delay to the commencement of restoration work.

In relation to clause 11,—

• given the pressing need to commence restoration work to ensure that social and economic recovery starts to occur as soon as possible, the agencies require a method of obtaining consents as soon as is feasibly practicable:

• because of the heavy resource pressure that the consent authorities will face to consider and grant consents under the expedited processes in Part 2 of this order, it will be difficult for consent authorities to develop comprehensive RMA conditions to apply to the restoration work while at the same time ensuring that the conditions are capable of being complied with and will not unduly hinder the necessary restoration work:

• to address that difficulty, a set of comprehensive conditions has been developed. These conditions are set out in Schedule 1. The conditions have been developed so that they are suitable to be imposed without further consideration by the consent authorities. The conditions appropriately address all key potential environmental effects of the restoration work, in a way that will not unduly or inappropriately hinder the work:

• it is necessary for the agencies to retain approval rights over any changes to the conditions in Schedule 1 given that the agencies will have the most up-to-date knowledge of the practical conditions and logistical and resource constraints associated with restoring the coastal route:

• it is necessary to give the agencies the ability to specify alternative amendments to the conditions in Schedule 1 to those recommended by the consent authority, to ensure that the agencies can accept recommendations in part and make consequential changes. The requirement that any alternative amendments cannot be less onerous than the conditions in Schedule 1 provides an environmental safeguard.

In relation to clause 12,—

• the obligations in clause 12 will apply only in the period before the agencies obtain consents for coastal restoration work, because after obtaining appropriate consents it is not necessary to rely on section 330 of the RMA. The additional obligations on the agencies in clause 12(2)(a) and (b) are intended to ensure that emergency works for the purpose of coastal restoration are conducted in a way that is sensitive to the receiving environment in the period before conditions of consent apply:

• it is necessary that the obligations in clause 12(2)(a) and (b)(i) not apply for the first 10 working days after this order comes into force, as the agencies will need some lead-in time before complying with those obligations.

The amendments in clause 13 are necessary to allow the agencies to apply for consents to carry out works on land that will be reclaimed as part of the restoration work, prior to preparing a legal survey of that land and submitting it under section 245 of the RMA. The preparation and submission of a survey could cause delay. It would seriously hold recovery work up if the agencies could not obtain resource consents on, or alter designations to cover, new land that is to be reclaimed from the coastal marine area.

In relation to clause 14,—

• the deemed permitted activity statuses are necessary because of the scale of the resources required for the restoration work, which far exceed the current capacity of the Kaikōura area in particular:

• it is necessary to extend permitted activity status for temporary depots and storage facilities incidental to works by the agencies beyond the restoration of the coastal route because—

  • in practice, it will be very difficult (and inefficient) for the agencies to restrict the use of temporary depots and storage facilities solely to repair works related to the coastal route. The agencies will also need to use these temporary facilities to enable other road and rail repair works in the districts; and

  • during the period until the coastal route is reopened, it is vital that alternative transport routes affected by the earthquakes are appropriately repaired and operating:

• it is necessary to provide permitted activity status for parking areas to allow the temporary parking of any heavy vehicles (including those not directly under the control of the agencies, such as milk tankers) where those vehicles are held up as a result of disruption to the land transport system because of the earthquakes.

In relation to clause 15, it is necessary to deem the excavation and filling of the Waitohi Domain for the purpose of establishing a parking area a controlled activity to address a particular issue that has arisen in Picton as a result of changes to coastal shipping due to the earthquakes. Large trucks are now required to wait for longer periods in the Picton area and there is insufficient space for them to park safely. In the interests of community and transport infrastructure safety, a suitable parking area is urgently required. This clause enables the works required to establish the parking area in the Waitohi Domain to be consented as a controlled activity so that the parking area can be in place before the busiest periods of the year.

In relation to clause 16, it is necessary to waive the requirement in 176A of the RMA for the requiring authority to submit an outline plan of a public work or project to a territorial authority for any restoration work. Again, this is necessary to ensure that the restoration work can commence without undue delay.

In relation to clause 17,—

• the normal process for altering designations for the coastal route is modified to avoid unacceptable delays to the restoration work:

• the conditions that apply to alterations set out in Schedule 2 have been developed to ensure that all key potential environmental effects are addressed, and this serves to ensure the modifications to the normal designation process are no broader than is reasonably necessary:

• the alternative consultation process in clause 17(3) and (4) will allow for input by affected stakeholders.

Under clause 18, enforcement proceedings under Part 12 of the RMA may be taken only by a consent authority or a Minister. It is necessary to exclude applications for enforcement orders or declarations by members of the public to ensure that restoration work can proceed. The ability for consent authorities and Ministers to bring proceedings is sufficient to ensure that conditions of consent and designation and other relevant sections of the RMA are not breached.

Section 8(1)(e) of the Act requires the relevant Minister, if the order relates to the RMA, to consider the effects on the environment of any controls provided for in the order, and whether those controls avoid, remedy, or mitigate any adverse effects. In this regard, the works to be undertaken under the order will have an impact on the environment, however,—

• in relation to Part 2 generally, the order sets up processes for resource consents and alterations to designations. Each process has in-built environmental checks and balances, including—

  • any resource consent application must include a high-level consideration of the potential effects:

  • for resource consents that are granted pre-April 2017 and alterations to designations, the order is designed to have resource consent conditions that will avoid, remedy, or mitigate any adverse effects:

  • any resource consent application post-April 2017 will enable the consent authority to impose resource consent conditions for the purposes of avoiding, remedying, or mitigating any adverse effects:

• in relation to applications under clause 11, the consent conditions listed in Schedule 1 are intended to avoid, remedy, or mitigate adverse effects of the restoration work. All consents under this process will have conditions requiring a Construction Environmental Management Plan, the involvement of a restoration liaison group (with representation from the consent authority, relevant local authorities, Heritage New Zealand Pouhere Taonga, the Department of Conservation, relevant mana whenua, and the Kaikōura Marine Guardians) to help inform the design, management, and monitoring of all construction work, and the involvement of an Iwi Adviser to advise on cultural effects. These consent conditions reflect consent conditions for similar infrastructure works:

• in relation to applications under clauses 6 to 10, the process will enable councils to put resource consent conditions on consents, at their discretion, in accordance with the matters of control specified in clause 6(4). This list includes all of the key environmental considerations appropriate to infrastructure activities in this environment. Environmental effects will be mitigated through these conditions. This process will enable specified parties to make comments and therefore will enable more informed consideration of the range of environmental effects in decisions:

• in relation to emergency works (clause 12), given the large extent of emergency works that will be undertaken, this clause adds additional controls to consider, avoid, remedy, or mitigate, and monitor the environmental effects as far as practicable. These controls add an additional layer of environmental protection, over and above what is currently provided in the emergency works provisions (sections 330 and 330B) of the RMA:

• in relation to deeming temporary depots and storage facilities to be permitted activities (clause 14), the order enables the relevant territorial authority to put requirements on noise control, and to avoid, remedy, and mitigate other environmental effects:

• in relation to deeming the excavation and filling of the Waitohi Domain to be a controlled activity (clause 15), the order requires that the conditions set out in clause 9 of Schedule 1 be imposed on a resource consent for excavating and filling the Waitohi Domain to establish a parking area:

• in relation to designations (clauses 16 and 17), the conditions for the designations include that before starting construction works a restoration liaison group (with representation from the requiring authority, relevant local authorities, Heritage New Zealand Pouhere Taonga, the Department of Conservation, relevant mana whenua, and the Kaikōura Marine Guardians) be established to help inform the design, management, and monitoring of all construction works. They also require that an ecological scoping survey be undertaken and the development of measures to minimise adverse effects. The specified conditions reflect similar infrastructure construction designation conditions.

Clause 19 provides that if an agency applies under section 17R(1) of the Conservation Act 1987 for a concession to carry out restoration work in a conservation area (or under section 59A of the Reserves Act 1977 for a concession to carry out restoration work in a reserve vested in the Crown) the Minister of Conservation must grant the concession within 5 working days after the date of the application, and impose the conditions set out in Schedule 3 (which, among other things, requires the agency to develop ecological principles to guide works and environmental outcomes).

The relevant Minister considers this aspect of the order is necessary or desirable for the purpose of the Act, and is no broader than is reasonably necessary, because—

• it is impracticable for restoration work to completely avoid works (particularly the unavoidable need to stabilise slopes above the coastal route) within conservation areas because of the position of the coastal route and the highly constrained nature of the surrounding environment:

• applying through the usual Conservation Act 1987 processes and time frames would unduly delay, and possibly prevent, restoration work:

• the conditions in Schedule 3 have been developed to appropriately avoid, remedy, or mitigate any adverse effects on conservation areas and are consistent with the resource consent and designation conditions set out in Schedules 1 and 2.

Clauses 20 and 21 modify the provisions of the Freshwater Fisheries Regulations 1983 by providing that—

• regulation 21, which prohibits interfering with or damaging, or taking any sports fish in or from any water that is within 100 metres of, any net, trap, or other contrivance erected or placed for the purposes referred to in that regulation, does not apply to any restoration work carried out by an agency:

• regulations 42, 43, and 44 are modified by providing that if an agency applies for an approval or dispensation for the purpose of carrying out restoration work, the Minister of Conservation must grant the authority within 5 working days after the date of the application and impose the conditions set out in Schedule 4 (which, among other things, requires the agency to provide for fish passage in culvert design unless it is deemed unnecessary by a suitably qualified ecologist):

• regulation 45 does not apply to the restoration work as it may not be possible to maintain a sufficient flow of water through or past a fish facility to allow the facility to function as specified at all times or periods specified:

• regulation 48 does not apply to the restoration work because it may be necessary to make a structural alteration in a fish facility in the course of carrying out restoration work.

The relevant Minister considers this aspect of the order is necessary or desirable for the purpose of the Act, and is no broader than is reasonably necessary, because—

• it is not practicable for restoration work (particularly the unavoidable need to stabilise slopes above the coastal route) to completely avoid freshwater fisheries because of the position of the coastal route and the highly constrained nature of the surrounding environment:

• applying through the usual Freshwater Fisheries Regulations 1983 process and time frames would unduly delay, and possibly prevent, restoration work:

• the conditions attached in Schedule 3 have been developed to appropriately avoid, remedy, or mitigate any adverse effects on fish passage.

Clause 22 modifies the provisions of the Marine Mammals Protection Act 1978 by providing that if an agency applies under section 5(1) of that Act for a permit to hold or take a marine mammal in the course of restoration work, the Minister of Conservation must grant the permit within 5 working days after the date of the application and impose the conditions set out in Schedule 3 (which, among other things, requires the agency to develop ecological principles to guide works and environmental outcomes).

The relevant Minister considers this aspect of the order is necessary or desirable for the purpose of the Act, and is no broader than is reasonably necessary, because—

• it is not practicable for restoration work to completely avoid interactions with marine mammals, especially fur seals, because of the position of the coastal route and the highly constrained nature of the surrounding environment. In particular, the agencies need sufficient authority to ensure that any fur seals in a works area can be relocated to a safe location:

• applying through the usual Marine Mammals Protection Act 1978 process and time frames would unduly delay, and possibly prevent, restoration work:

• the conditions attached in Schedule 3 have been developed to appropriately avoid, remedy, or mitigate any adverse effects on marine mammals and are consistent with the resource consent and designation conditions set out in Schedules 1 and 2.

Clause 23 modifies the provisions of the Marine Reserves Act 1971 by providing that if an agency requests under section 4(3) of that Act to for the purpose of carrying out restoration work, the Minister of Conservation and the Minister in charge of the agency in control of any restoration work must provide the consent within 5 working days after the date of the request and impose the conditions set out in Schedule 3 (which, among other things, requires the agency to develop ecological principles to guide works and environmental outcomes).

The relevant Minister considers this aspect of the order is necessary or desirable for the purpose of the Act, and is no broader than is reasonably necessary, because—

• it is not practicable for the restoration work to completely avoid works in or affecting the Hikurangi Marine Reserve because of the position of the coastal route and the highly constrained nature of the surrounding environment:

• applying through the usual Marine Reserves Act 1971 processes would unduly delay, and possibly prevent, restoration work:

• the conditions attached in Schedule 3 have been developed to appropriately avoid, remedy, or mitigate any adverse effects on the marine reserve and are consistent with the resource consent and designation conditions set out in Schedules 1 and 2.

Clause 24 modifies the provisions of the Ōhau New Zealand Fur Seal Sanctuary (Restrictions) Notice 2014, by providing that if an agency requests an authority under clause 3(h) of that notice to enter the Ōhau New Zealand Fur Seal Sanctuary for the purpose of restoration work, the Director-General of Conservation must provide the authorisation within 5 working days after the date of the request and impose the conditions set out in Schedule 3 (which, among other things, requires the agency to develop ecological principles to guide works and environmental outcomes).

The relevant Minister considers this aspect of the order is necessary or desirable for the purpose of the Act, and is no broader than is reasonably necessary, because—

• it is not practicable for the restoration work to completely avoid entering the Ōhau New Zealand Fur Seal Sanctuary because of the position of the coastal route and the highly constrained nature of the surrounding environment:

• applying through the usual processes would unduly delay, and possibly prevent, restoration work:

• the conditions attached in Schedule 3 have been developed to appropriately avoid, remedy, or mitigate any adverse effects on fur seals and are consistent with the resource consent and designation conditions set out in Schedules 1 and 2.

Clause 25 provides that if an agency applies under section 14AA(1) of the Wildlife Act 1953 for a concession to carry out restoration work in a wildlife sanctuary, wildlife refuge, or wildlife management reserve, the Minister of Conservation must grant the concession within 5 working days after the date of the application and impose the conditions set out in Schedule 3 (which, among other things, requires the agency to develop ecological principles to guide works and environmental outcomes).

Clause 26 modifies the Wildlife Act 1953 by providing that if an agency applies for authority under section 53 of that Act to take or kill any wildlife in the course of restoration work, the Director-General of Conservation must issue the authority within 5 working days after the date of the application and impose the conditions set out in Schedule 3 (which, among other things, requires the agency to develop ecological principles to guide works and environmental outcomes).

The relevant Minister considers this aspect of the order is necessary or desirable for the purpose of the Act, and is no broader than is reasonably necessary, because—

• it is not practicable for the restoration work to completely avoid impacts on wildlife protected under the Wildlife Act 1953 because of the position of the coastal route and the highly constrained nature of the surrounding environment:

• applying through the usual Wildlife Act 1953 processes and time frames would unduly delay, and possibly prevent, restoration work:

• the conditions attached in Schedule 3 have been developed to appropriately avoid, remedy, or mitigate any adverse effects on protected wildlife and are consistent with the resource consent and designation conditions set out in Schedules 1 and 2.

The order authorises the agencies to exercise powers in relation to reserves for certain purposes that the agencies would otherwise be prohibited from exercising or prohibited from exercising without satisfying certain preconditions, for example, consulting the public or hearing objections.

A reserve for the purposes of the order is defined in clause 28 and means any land (or part of any land) within the district of any of the local authorities specified in clause 3(1)—

• that is a reserve or a public reserve (as those terms are defined in section 2(1) of the Reserves Act 1977) that is owned, administered, managed, or controlled by the local authority; or

• that is any other land owned, administered, managed, controlled, or held by a local authority under any enactment (other than the Reserves Act 1977) as a reserve or park, or for community purposes.

Clause 29 sets out the actions that an agency may take in relation to a reserve. The actions are—

• undertaking restoration work anywhere in a reserve:

• operating a parking area for heavy motor vehicles anywhere in a reserve:

• prohibiting persons from entering or remaining on a reserve.

Clause 30 empowers an agency to act under clause 29 in relation to a reserve despite the management plan for the reserve, the Reserves Act 1977, or any other enactment under which the reserve is held or that applies to the reserve. However, an agency, in doing so,—

• must take all reasonable steps in the circumstances to protect the integrity of the reserve; and

• where undertaking restoration work, or, if the reserve is adversely affected by the council’s actions, must reinstate the reserve as closely as practicable to its prior condition.

However, these restrictions do not apply to the extent that it is necessary for the agency to occupy any part of the reserve in order to undertake any restoration work that is necessary for permanent infrastructure associated with the coastal route.

The relevant Minister considers this aspect of the order is necessary or desirable for the purpose of the Act, and is no broader than is reasonably necessary, because—

• it is not practicable for the restoration work to completely avoid works in reserves (particularly the need to stabilise slopes above the coastal route) because of the position of the coastal route and the highly constrained nature of the surrounding environment:

• applying through the usual processes and time frames under the Reserves Act 1977 would unduly delay, and possibly prevent, restoration work:

• the requirements to take all reasonable steps to protect the integrity of the reserve, and to reinstate the reserve as closely as practicable to its prior condition, will ensure that adverse effects on the environment are appropriately avoided, remedied, or mitigated.

Clause 31 enables an agency to apply for an emergency authority under subpart 3 of Part 3 of the Heritage New Zealand Pouhere Taonga Act 2014 for restoration work. Under section 61 of that Act, an application can be made for emergency authority to undertake an activity that will or may modify or destroy an archaeological site or sites in an area or district over which a state of emergency is declared, or a transition period is notified, under the Civil Defence Emergency Management Act 2002. Clause 31 modifies subpart 3 of Part 3 to enable an application to be made for restoration work, as follows:

• the emergency provisions of the Heritage New Zealand Pouhere Taonga Act 2014 can be used even if no state of emergency or transition period is in place under the Civil Defence Emergency Management Act 2002:

• Heritage New Zealand Pouhere Taonga must grant the emergency authority, with or without conditions:

• Heritage New Zealand Pouhere Taonga must give notice of the grant of the emergency authority to the persons and bodies specified in section 62(6) of the Heritage New Zealand Pouhere Taonga Act 2014 (the owner of the relevant land, the local authorities that have jurisdiction in the relevant area, the appropriate iwi or hapū, and the chief executive of the Ministry for Culture and Heritage):

• there is a reduced time frame for the right of appeal to the Environment Court (from 14 days to 5 working days) against the grant of the emergency authority.

The relevant Minister considers this aspect of the order is necessary or desirable for the purpose of the Act, and is no broader than is reasonably necessary, because—

• it is not practicable for the restoration work to completely avoid works that will or may modify or destroy an archeological site (particularly the work to stabilise slopes above the coastal route) because of the position of the coastal route and the highly constrained nature of the surrounding environment:

• applying through the usual (non-emergency) provisions of the Heritage New Zealand Pouhere Taonga Act 2014 would unduly delay, and possibly preclude, restoration work:

• it is necessary to specify that the emergency provisions of the Heritage New Zealand Pouhere Taonga Act 2014 can be used even if no state of emergency or transition period is in place, because—

  • certain vital restoration work is required in the Marlborough region, where no state of emergency has been declared; and

  • the agencies require certainty that the emergency process can be used even if the transition period in the Canterbury Region is not extended:

• if an application for an archaeological authority is declined, it may prevent restoration work:

• any appeals against the grant of an emergency authority would unduly delay, and possibly prevent, restoration work. In order to minimise any delay, the time period for lodging an appeal has been shortened to 5 working days.

Clauses 32 to 38 modify the operation of section 18 and sections 23 to 26 of the Public Works Act 1981 (the Act), where the Minister for Land Information considers it reasonably necessary to take land for the purpose of restoration work. (The Act refers to the Minister of Lands, however that ministerial portfolio no longer exists and it is the Minister for Land Information who administers the Act.)

Clause 33 provides that section 18 of the Act (which relates to a requirement for prior negotiations for acquisition of land for essential works) does not apply in relation to the compulsory acquisition of land for the purpose of restoration work. Clauses 34 to 37 exclude the rights of objection to the Environment Court under the Act and instead apply an alternative process for the acquisition of land (with no requirement for negotiation prior to compulsory acquisition). Clause 38 provides that any acquired land must be treated as having been acquired for a Government work for the purposes of the Act.

The provisions of the Act relating to compensation remain unchanged.

The relevant Minister considers this aspect of the order is necessary or desirable for the purpose of the Act, and is no broader than is reasonably necessary, because—

• the time required to negotiate and to resolve objections to notices to take land under the Act would unreasonably delay the restoration work:

• the powers granted can be used only if the Minister considers it reasonably necessary to take land for an agency to undertake restoration work.