Fast Track Consenting Process

The Minister for the Environment has proposed a special legislation to support the recovery of New Zealand from the economic impacts of COVID-19. The proposed COVID-19 Recovery (Fast-track Consenting) Bill 2020 (the Bill) will enable acceleration of a range of different infrastructure and development projects to support certainty of ongoing employment and investment across New Zealand.

Currently the RMA process is costly and time consuming. The Bill proposes processes that will provide the Government with new temporary powers to fast-track resource consenting and designation processes for specified development and infrastructure projects. By accelerating projects that are already planned for the short to medium term by central and local government, the Bill will provide an opportunity to boost local economies and increase jobs.

The Minster for the Environment has outlined the principles of Treaty of Waitangi will need to be considered and treaty settlements will be upheld so the environment is not sacrificed, if the Bill is introduced. There will be a sunset clause meaning the legislation will self-repeal two years after enactment, as it will be a short term intervention to stimulate the economy and aid recovery.

Any persons with eligible projects will be able to apply to the Minster for the Environment to use the fast-track process. The Minister proposes a “Panel” will be used to consider projects and determine if applications meet certain criteria and align with the purpose of the legislation. The criteria will include things such as economic benefits to the community, whether the project would likely progress significantly faster by using this process and whether the project will result in significant public benefit (ie. Generate employment, increase housing, promote the protection of historic heritage).

Eligible projects under the proposed Bill will include housing projects, infrastructure projects such as large scale New Zealand Transport Agency projects (similar to the consenting of State Highway 1 and rail rebuild following the Hurunui/Kaikoura earthquake), freshwater improvement projects, and smaller scale private projects. Any project will need to ensure that the purpose of the Bill is met, and that the project will be economically beneficially and create jobs within the community.

A simple outline of the proposed process is below:

• The Minster will appoint an Expert Consenting Panel to consider applications and make decisions;
• Reduced information requirements will apply for applications for resource consents under the Bill;
• There will be no requirement for public or limited notification of an application, but the panel would be invited to invite comments on the application from persons specified in the Order in Council (like local authorities, iwi, owners and occupiers of land adjacent to projects)
• There will be reduced time frames compared to standard RMA processes;
• The panel will be required to:
  • Apply part 2 of the RMA, alongside the purpose of the new Act;  
  • Have regard to any relevant national direction, or other matters listed in Section 104(1) of the RMA; and
  • Have particular regard to Section 171(1) and (1B) of the RMA when considering applications.  
• The panel will be required to have regard to any documents that treaty settlements specify must be included in decision making on resource consents;
• The panel must issue its decision on applications within 25 working days, however this timeframe can be doubled if the scale of the project that is the subject of the application means it cannot be determined within 25 days;
• The panel may only decline applications in certain circumstances (ie. There is insufficient or inadequate information provided, the consent cannot be granted in a manner that promoted part 2 of the RMA, the activity is likely to cause adverse effects which are more than minor); and
• For projects including multiple activities of any size, the panel may issue decisions in stages to enable initial works to be started while further details of later stages are worked through in subsequent approval processes.

There will be certain appeal rights, however these will be limited to a point of law appeal to High Court and a further right of appeal to the Court of Appeal with no right of appeal to the Supreme Court. Certain persons proposed to be able to lodge an appeal include a local authority, the applicant in relation to a resource consent, the Attorney-General and any person who has an interest in the decision that is greater than the interest that the general public has (ie. Iwi and adjacent landowners).

The Expert Consenting Panels will be appointed by the Minister of the Environment and will generally have no more than four members. The Panel will be chaired by a current or retired Environment Court Judge (or other Judge, or senior lawyer with a Resource Management background).

The Minister for the Environment recommends that Cabinet introduce the Bill in response to the COVID-19 pandemic, which will cause serious economic and social effects given the standard, time consuming and costly consenting and designation processes under the RMA, which will constrain the pace of recovery and projects needed to employ people.

 If you need assistance in understanding what is being proposed by the Bill or have a project that you think might be suitable for a fast track consent please contact our Resource Management team headed by Partners Graeme Todd and Michael Walker. 

Information on the Bill from the Ministry for the Environment can be found here.