Today Minister Parker introduced the much anticipated COVID-19 Recovery (Fast-track Consenting) Bill 2020 to the House. The Bill will be referred to Select Committee and submissions will be called this week.
As expected, the Bill provides a three-tiered approach to accelerate consenting that will be in place for two years. The Bill aims to provide a fast-track process for what are referred to as listed projects, referred projects and permitted infrastructure works. By and large the Minister has stuck to the proposal set out in his paper to Cabinet. Further detail on Minister Parker's paper to Cabinet can be found in our recent article here.
Listed projects: Eleven projects are specifically listed in Schedule 2 of the Bill and will be automatically referred to an expert consenting panel for consideration. They are:
- Te Ara Tūpua – Ngauranga to Pētone Cycleway and Walkway (NZTA)
- Northern Pathway – Westhaven to Akoranga Cycleway and Walkway (NZTA)
- Papakura to Drury State Highway 1 Improvements (NZTA)
- Wellington Metro Upgrade Programme (KiwiRail)
- Papakura to Pukekohe Rail Electrification (KiwiRail)
- Britomart East Upgrade (KiwiRail)
- Picton Ferry Terminal Redevelopment (KiwiRail, Port Marlborough, Marlborough District Council, NZTA)
- Te Pā Tāhuna Residential Development (Ngāi Tahu Property Limited / Ministry of Housing and Urban Development)
- Unitec Residential Development (Ministry of Housing and Urban Development)
- Papakāinga Developments in Kaitaia, Point Chevalier, Raglan, Waitara, Chatham Islands, Rāpaki (Te Puni Kōkiri)
- Kopenui Water Storage Reservoir, Kaikohe
Referred projects: The Minister for the Environment (and in some cases the Minister for Conservation) will act as gatekeeper for the fast-track process for projects that are not listed in the Act. If approved by the Minister, these projects will be recommended for confirmation through an Order in Council, before being referred to the expert consenting panel.
Permitted infrastructure works: Some minor works on existing infrastructure will also be permitted under the Bill, provided certain criteria are met. At present, the specific works set out in the Bill can be undertaken by KiwiRail and NZTA. Kāinga Ora, the Ministry of Housing and Urban Development, and local authorities may be able to avail themselves of this process through an Order in Council.
Does the Bill deliver a "fast-track"?
Speed and certainty are the key ingredients to the Bill delivering on its promise. In our view, although the Bill sets out a good base, there are a few fishhooks that could potentially derail the Bill's objectives. Our key concerns are that the process will potentially be longer and more complicated than it appears on its face, and may be vulnerable to judicial review.
One of the advantages for listed projects is that they skip the referral process and go straight through to the expert consenting panel. The timeframes set out in the Bill on the face of it achieve the speed objective – once a project is before the panel, it could be consented in as little as 45 working days.
The certainty objective is intended to be achieved by only providing the panel with two grounds on which consent could be declined for listed projects: (1) consistency with any national policy statement (including the NZ Coastal Policy Statement); and (2) consistency with any relevant Treaty settlement. This is framed more strictly than the corresponding RMA test. It is also unclear how the two grounds stated in the Bill for declining consent are meant to be balanced against the other range of factors that the panel can consider when making its decision. This ambiguity increases the risk of the potential judicial review of decisions.
There are also gaps in the process where the timeframes could spin out. For example, while the Bill includes a 10 working day limit for comments on a referral application from local authorities and other persons, there is no time limit for comments from relevant Ministers nor on the Minister when making a decision on the referral application. In addition, while the Bill says that applications for referral need not be detailed, the Minister's discretion is so broad at the referral stage that the concern is that it will encourage applicants to take a particularly conservative and comprehensive approach so as to ensure that all issues that might be considered are addressed.
Once referred to the panel, applicants will be required to navigate comprehensive information requirements to prepare their application for consent or designation that go beyond what is required under standard RMA processes. For example, cultural impact assessments will be required from relevant iwi for every application. This puts pressure on all parties and will almost certaintly lead to delay.
There are also uncertainties around the process for the panel receiving comments on consent applications and notices of requirement. The Bill allows the panel to request comment from any person the panel considers appropriate. However, the Bill provides no opportunity for applicants or requiring authorities to respond to comments. There is also a judicial review risk where a person considers they should have been invited for comment, but were not.
Lastly, the permitted infrastructure works process is constrained. It cannot be used for discretionary or non-complying activities and the lengthy criteria required to use the permitted activity standards mean, that in many cases, the standard consent processes under district or regional plans are likely to be preferred.
For the fast-track process to work for referred projects, the Minister will need to be decisive at the referral stage, and cannot hope to please everyone. This means making tough decisions to swiftly decline ineligible projects, and might mean excluding some groups from comment that would normally have the right to be involved through standard RMA processes. It also means genuinely leaving the detail of a project to be determined by the expert consenting panel.
The success of the fast-track process also provides an excellent test-case on the eve of more comprehensive future RMA reforms. If we can deliver projects faster, while still managing environmental effects, then perhaps there are parts of this process that we keep around in the long-term.
Please do not hesitate to contact one of our experts if you would like to discuss the implications of the Bill for your business.