COVID-19 Recovery Bill - Fast-Track Consenting Pathway for Large Projects

Introduction 

The Environment Minister ('Minister') has announced a law change that will fast-track consenting for large development and infrastructure projects under the Resource Management Act 1991 ('RMA'). The COVID-19 Recovery (Fast Track Consenting) Bill ('Bill') will provide an “alternative consenting pathway” for large projects. The law change seeks to address the key impediments, the existing RMA consenting processes are seen to pose to economic recovery from COVID-19; lack of speed and certainty.

Proposed COVID-19 Recovery Bill

The Bill is currently being drafted, so limited detail is presently available regarding the proposed new law. Although available information indicates that the Bill will not amend the RMA, but will instead provide an alternative pathway for consenting large projects.

Eligible Projects

The Minister has given an indication of the types of projects that will be eligible for the fast-track consenting process. It is intended that some large-scale government-led projects, including those in the NZTA's Land Transport Programme, will be identified in the fast-track legislation. Additionally, some works by government agencies will be able to start "as of right".  However, the process is not limited to public projects. It may also be utilised by large private-led projects.

The Minister has made it clear that projects must be significant in size and 'job-rich'. The Minister has also indicated that projects that assist with housing challenges, encourage active transport and enhance the environment will be prioritised. While it is expected that a number of “shovel-ready” projects identified by the Infrastructure Reference Group will be eligible, the fast-track consenting process will not be limited to these projects.

Significance Departure from Standard RMA Consenting Process

The fast-track process will present a marked difference to the usual RMA consenting process in a number of ways.

While the RMA provides for decision making generally to be made by local councils, fast-track consenting decisions will be made centrally.

In the first instance, the Minister will decide on the eligibility of the projects to proceed via the fast-track process.

Where the Minister approves the project, it will then be referred to an expert consulting panel to determine the resource consent application. The expert panel will be chaired by a current or retired Environment Court Judge (or senior lawyer) and will include persons nominated by the relevant local council and iwi authorities, as well as persons with expertise in resource management, technical project advice, environmental protection, tikanga Māori and mātauranga Māori.

Present indications are that the expert panel will issue decisions within 25 working days, although this could be increased to 50 days for large scale projects.

While the criteria for the Minister's decision on project eligibility has yet to be released, the Minister has stated that once a project is referred to the expert consulting panel, "there is a high level of certainty the resource consent will be granted". 

Significantly, it is proposed that the fast-track consenting process will not allow for public participation - there will be no public notification of resource consent applications.

However, the government has confirmed that existing Treaty of Waitangi settlements will be upheld, as will  “sustainable management” (key concept which underpins the RMA – allows for development subject to appropriate management of environmental effects) and existing RMA national direction.

Appeal rights will however be limited to points of law and/or judicial review to the High Court (with one further right of appeal to the Court of Appeal).

Two Year Period Proposed for Fast-Track Consenting Process

It is proposed that the legislation will have a “sunset” clause, which will see the legislation repealed in two years and, consequently, the availability of the fast-track consenting process will expire at the end of this period.

Details Still to Come

As the Bill is currently being drafted, there is still a lot of detail to come about the fast track consenting process, including details of the criteria for project eligibility and the process which will be adopted by the expert panel in determining project resource consent applications.

Process Available for Projects - End of June

Projects will be able to use the fast-track consenting process once the Bill is enacted, which the government expects to occur toward the end of June.

Challenge Presented by Fast-Track Process - Ensuring Environmental Safeguards & Outcomes

The centralisation of decision making, limited time frame for determining resource consent applications, removal of public participation rights and limitation on appeal rights are key features of the proposed fast-track consenting process which will, without a doubt, mean a speedy and more certain consenting process than could ever be achieved via the usual RMA consenting process.

However the side-lining of some of the key features of consenting under the RMA inevitably raises a concern whether such a process can still ensure the effectiveness of environmental management and acceptable environmental outcomes. While there is no doubt that there is a critical need for measures to be undertaken to ensure economic recovery from COVID-19, it is equally important that the alternative consenting process provides environmental safeguards and ensures that sustainable environmental outcomes will be achieved. The challenge for the government will be in getting this right through, in the first instance, the drafting of the legislation itself and establishing appropriate criteria for eligible projects and a robust decision-making process by expert consulting panels.

If you would like further explanation regarding the proposed fast-track consenting process or wish to be kept informed regarding the Bill progress, then please do not hesitate to get in contact with our team at Adderley Head.

Disclaimer: This is a brief summary for information purposes only and is not legal advice.

Posted on Tuesday 5th May, 2020 at 01:25 pm