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Details released on Fast-track Consenting Bill

Home Insights Details released on Fast-track Consenting Bill

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Contributed by: Allison Arthur-Young, Daniel Minhinnick, Lauren Eaton and Jacob Burton

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Published on: May 14, 2020


Further detail has now been made public on Minister Parker's proposal to accelerate consenting of infrastructure and development projects to assist New Zealand's Covid-19 recovery, with the release of the Minister's Paper to Cabinet on the proposed "COVID-19 Recovery (Fast-track Consenting) Bill". 
The Cabinet Paper recommends that while existing processes under the RMA "adequately enable development in normal circumstances", those processes are not considered well-equipped to manage consenting of projects at pace. 
We understand that a Bill will be introduced shortly, and is intended to be enacted in June. The Bill is expected to briefly go to Select Committee.

What projects will the Bill apply to?

The Bill will propose three ways to accelerate consenting for projects: 

  1. Some specific projects ("up to six" from NZTA's land transport programme) will be listed in the Bill and will get resource consent once the Bill is passed, similar to what happened through the Hurunui/Kaikōura Earthquakes Recovery Act 2016.
  1. Some Government-led projects will be able to undertake small scale works as either deemed permitted activities or by "self-consenting".    
  1. "Eligible" public or private projects can apply to the Minister to use a new fast-track consenting process. If the Minister approves your application, you can use an accelerated consenting process to obtain consents.

Category Three will be of most interest to many infrastructure organisations and developers.

What is "eligible"?

The Minister can take into account the following criteria when determining whether to accept an application for the fast-track consenting process:

  • Economic benefits for communities and industries affected by Covid-19.
  • Social and cultural wellbeing for current and future generations.
  • Whether the project would be likely to progress significantly faster using the fast-track process.
  • Whether the project will result in significant public benefit, including matters such as whether the project will generate employment, increase housing supply, and contribute to New Zealand's efforts to mitigate climate change.

To be eligible, projects cannot authorise activities that are prohibited under any plan or proposed plan, and iwi authorisation will be required in some situations where works are undertaken in a customary marine title area or on land subject to Treaty settlements. The process can be used for both consents and designations.
The Minister may decline an application for any reason, including where it would be "more appropriate" for the project to use existing consenting processes, or the project would not promote Part 2 of the RMA or be inconsistent with national direction under the RMA.
Once the Minister approves a project to use the fast-track process, the project will be referred to an "expert consenting panel" chaired by a judge or senior RMA lawyer. The Minister has indicated that once a project is determined as eligible, there should be a "high level of certainty" that a consent or designation will be granted and the panel may only decline an application in certain circumstances (not yet clear).
In determining the application, the expert consenting panel will be required to apply the standard RMA tests, but many aspects of RMA processes that create delay and cost (notification and public submissions, information requirements, decision deadlines, and appeals to the Environment Court) will be restricted or cut out altogether.
There is no requirement to hold a hearing, although the panel will be required to seek feedback from identified persons, including the relevant councils and iwi authorities, adjacent landowners and occupiers, and certain identified organisations (like environmental NGOs and infrastructure industry groups).

Will it work?

Category One and Two projects will immediately benefit from the new legislation, and we have previously seen the responsiveness of this approach following the Canterbury and Hurunui/Kaikōura earthquakes. 
The uncertainty lies with Category Three projects and the fast-track process. Will this new process provide genuine acceleration for major projects?   
We think the Bill provides a novel, forward-thinking approach to speeding up consenting. By its very nature, the Bill is acknowledging how tortuous and slow consenting can be under the RMA. The Bill is also trying to inject a level of certainty to consenting – something which is often missing in standard RMA processes. The idea here is that if you get a project approved to use the accelerated process, you should have a level of comfort that you will actually obtain your consents such that your project will be "shovel ready" ASAP.

However, in our view, the Bill will not successfully get projects and the economy moving unless:

  • There is a genuine opportunity for large-scale and complex projects to be progressed through this process. Such projects bring with them trade-offs – are we ready for those trade-offs? Are we ready for the proposed limits on public participation?  
  • Any conditions imposed are workable and appropriate to address the scale and significance of the environmental effects. Under the status quo process, many projects are saddled with extensive, expensive and unworkable conditions. If the expert consenting panel takes that approach in order to mitigate any perceived risks associated with speed and certainty, then it defeats the purpose of having a fast-track process.

Complex, job-creating, investment-producing projects tend to face environmental challenges, and compromises will inevitably need to be made to get such projects up and running quickly. But to make the acceleration genuinely work, all participants need to acknowledge that we cannot have speed, economic stimulus, and zero environmental effects – or projects so burdened by expensive and complicated consent conditions that they are never built. 
The success of the Minister's bold fast-track consenting process will be measured by whether the system can actually mobilise key projects and help New Zealand's economy through a post COVID-19 world. While the fast-track process is only expected to be in place for two years, any learnings will help to shape long-term RMA reforms.

This article is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.

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