Fast track consents to speed Covid-19 recovery

Fast track consents to speed Covid-19 recovery

HG’s Wellington based Planning Team Leader, Glen Cooper, discusses the New Zealand Government’s recent announcement on fast-tracking resource consents to re-start the economy.

Over the weekend the Government announced the pending introduction and passing of special legislation in June, to fast-track eligible development and infrastructure projects under the Resource Management Act (RMA) to help get the New Zealand economy moving again.

This will lead to changes in our core planning system that may affect your business or projects.

Please note - we anticipate that details of the proposed fast track legislation will come out quickly in the coming weeks, this article provides a snapshot at a point in time.

So what do we know?

The special legislation will create a new RMA fast track consent pathway. Eligible projects needing resource consents or notices of requirement (i.e. designations over land for public assets and infrastructure) can apply, but it is likely plan changes are not eligible.

The purpose and principles of the RMA and national level policy and standards will need to be met, but whether the usual assessment against regional and district plan objectives and policies is needed has (so far) not been mentioned. It will be interesting to see more detail on this.

These are extraordinary times. While stopping short of a presumption that eligible (yes, there will be a vetting process) projects will be approved, the Government says there will be “a high level of certainty” fast-track resource consents will be approved.

The fast-track process is designed as a short-term intervention to respond to Covid-19 and will be repealed in two years. Existing Treaty of Waitangi settlements will be upheld, as will sustainable management (Part 2) and existing RMA national direction planning instruments.

Unpacking the new process; no public participation or hearings

The details of the Bill and whether it will go through the usual select committee are yet to confirmed.

At first glance the new fast-track process looks somewhat like a re-purposing of the EPA nationally significant proposal process – although much quicker and minus several big steps that we would usually expect to see in the resource consent process. We’ve provided the following comparison:

The existing EPA nationally significant Board of Inquiry (BOI) process:

  1. Make an application to EPA or Environment Minister, ‘call in’ EPA recommendation
  2. Satisfy national significance criteria, direction by the Minister
  3. BOI appointed, usually chaired by Environment or High Court Judge (current or former). Members can also include EPA or council nominees, who collectively bring a range of relevant knowledge and skills, and legal and technical expertise
  4. Public notification and submissions
  5. Evidence, conferencing, and caucusing (non-statutory, but usual)
  6. BOI, through the EPA, may seek advice e.g. legal, planning and technical
  7. Hearing; in public and local
  8. Decision (notified within 9 months from notification)
  9. Appeals to High Court on points of law only (typically applicant or submitters) and/or judicial review

The proposed Covid-19 fast track Expert Consenting Panel process:

  1. Make an application to*
  2. Satisfy criteria*, determined by Environment Minister
  3. Approved projects named through Orders in Council
  4. Processed by an Expert Consenting Panel, chaired by an Environmental Court Judge (current or former) or senior lawyer, as well as council nominee and iwi authority nominee
  5. No public notification and submissions, instead...*
  6. Comments sought*
  7. Evidence, conferencing and caucusing*
  8. Expert Consenting Panel may seek advice*
  9. No hearing*
  10. Decision (made within 25 days of receiving comments, can be increased to 50)
  11. Appeals to High Court on points of law only [applicant only*] and/or judicial review

*Details unknown at this point

What projects?

We understand the types of projects eligible to be fast-tracked are likely to include core infrastructure, housing, and environmental restoration.

The Government has hinted that fast-track contenders include major projects signaled earlier in the year as part of the $12 billion infrastructure spend, large-scale government-led projects (including some in NZTA’s Land Transport Programme), alongside some works by Government agencies able to start “as of right” (without needing resource consent).

Project ideas from councils as well as NGOs and the private sector will also be considered for fast-track. This includes the nominations to Crown Infrastructure Partners (CIP) for “shovel ready” projects that closed on 14 April. CIP say they are working through the process to collate and review the information provided against the shovel ready criteria. The Government’s announcement on projects shortlisted to be funded is expected in the coming weeks. We anticipate some of these projects may well be candidates for fast-tracking.

Whether new project opportunities beyond the approved shovel ready list, or projects that don't make the funding cut, are potentially eligible for the fast-track consenting is unclear.

How does this affect my business or project?

Timing is of the essence. We anticipate that eligible projects will still need to prepare and lodge an application, but the scale and content of applications may be considerably more concise than the vast volumes that we have become accustomed to under the RMA. We expect an assessment of environmental effects and an evaluation in terms of Part 2 matters will still be required, along with other details.

Many projects will likely have applications mostly ready to go, others may need one pulled together quickly. While the fast-track consent process is not public, in most cases, social license and public accountability remain important. You’ll also need to navigate eligibility criteria.

If you are affected or want to participate in the formal fast-track consent process there is probably not much opportunity (aside from the comments stage). Once a project is named through an Order in Council you’ve potentially missed the boat, so conversations with project proponents will ideally have already happened or be happening now.

Fast-track projects could lead to different opportunities or restrictions on your land or activity.

How Harrison Grierson can help you

We want to make sure your business or project is prepared for immediate and long-term success. Our planning team can provide tailored guidance on the details of the fast-track consent process and what it may mean for projects you want to fast-track, or that affect you.

If you have any questions or if you would like our assistance, please contact:

Andrew Collins, General Manager – Urban Development
P 021 972 631
E a.collins@harrisongrierson.com

Or Glen Cooper, Planning Team Leader, Wellington
P 021 198 2085
E g.cooper@harrisongrierson.com

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