Minor River Works
Minor river and land works necessary as a result of the August 2022 Floods
Council acknowledges that the August 2022 floods have caused damage of property, river and stream banks.
This damage has potential to cause further damage to property and the environment if not rectified before the next flood.
Landowners have made clear the need to fix issues promptly but are unsure of what can and can’t be done regarding consenting/compliance requirements associated with works around waterways.
The Resource Management Act, proposed Marlborough Environment Plan and other government regulations require that works, such as mechanical excavation, within 8m of waterways, require a resource consent.
However, the Resource Management Act 1991 (RMA) provides defences in certain situations for persons undertaking works which may otherwise be unlawful but may be considered “necessary” to prevent serious damage to property or to avoid actual or likely adverse effects on the environment from events such as natural disasters.
This lawful defence provision is heavily dependent on a landowner proving the works are required.
To provide landowners guidance around what is considered “necessary” to prevent serious property damage or to avoid actual or likely adverse environmental effects the Council has developed the following process.
This allows landowners to work with Council to assess their proposed works and determine if Council agrees that the works are necessary. This process is only to address issues that happened as a result of the August 2022 flood.
- Landowners make contact with Council by 1 December 2022 and describe the specific works they are proposing to do by emailing email@example.com outlining and requesting council to consider the proposed scope of works.
- If the council considers the works may be necessary and are as a result of the flooding of August 2022, a site visit will be undertaken by a Council with the landowner (Should council consider the works are not necessary reasoning will be provided.)
- During the site visit the proposed works will be documented through photographs, maps and a written description of the works.
- The scope of works will be further evaluated by council. If deemed necessary and reasonable, a summary of the works will be documented for both parties. This will detail the scope of works that are deemed as “necessary”.
- When the landowner receives a copy of the agreed scope of works, they can undertake the works.
- Detailed documentation of the completed works should be provided to the Council to ascertain if the works were carried out in accordance with the original scope of works.
- The Council may carry out site visit/s to confirm only those works considered necessary have been undertaken in accordance with the original scope of works and the RMA.
This process can only be used to manage the works deemed “necessary” that were detailed in the summary of works.
Performing work beyond the detailed work may expose the landowner to liability including potential compliance action.
The availability of this process relies entirely on the willingness of landowners to strictly follow the process and to work within the limits of the scope of works.
It needs to be emphasised that this is for those works necessary to prevent damage and it is not a replacement for the resource consent process. Any on-going actual or likely adverse environmental effects from the scope of works may still require an application for consent to manage those effects.
Examples of necessary works that may be considered necessary include;
- removing trees that have fallen into the river,
- removing silt and gravel from the riverbanks that may pose a risk of downstream erosion,
- clearing debris flows from streams and restoring flow paths.
Situations that will unlikely be considered necessary include carrying out full scale riverbank stabilisation projects such as re-shaping banks, installing groynes, beaching gravels or diverting water within the main river channel all require technical input from a qualified professional and will still require landowners to go through the resource consent process.