Common to the post-earthquake recovery strategies in Christchurch and Kaikoura was the development of bespoke legislation substantially modifying the application of the Resource Management Act 1991 (RMA).
Quite simply, the legislative changes were regarded as necessary in order to avoid the delay, cost and uncertainty associated with the RMA in its business as usual format.
The need for economic recovery from the COVID 19 pandemic crisis has prompted a further bill to amend the RMA, the details of which are set out in a Cabinet Paper recently released by the Minister for the Environment, the Hon David Parker. The purpose of the COVID -19 (Fast-track Consenting) Bill 2020 (the Bill) is to provide temporary powers to fast-track resource consenting and designation processes to specified development and infrastructure projects. Three different levels of intervention are proposed in the Bill:
One: Listing specific large-scale government-led projects
These government led projects will include those already listed in the National Land Transport Programme of Waka Kotahi/ NZ Transport Agency (NZTA). The Cabinet Paper states that listed projects will be given their resource consents, with the details of each project to be provided in a further Cabinet Legislation Committee Paper.
Two: Enabling certain government led projects to occur as of right, provided specified criteria are met.
Details on this level of intervention are still being worked through, albeit the current intention is that certain government agencies, and possibly local authorities, should be able to carry out projects as of right within existing road corridors, rail corridors or on land owned by Kainga Ora – Homes and Communities or the Ministry of Housing and Urban Development.
Three: Providing a fast-track consenting process for other publicly or privately-led projects
Under this level, any persons with projects that meet specified eligibility criteria will be able to apply to the Minister for the Environment to use a fast-track consenting or designation process. Eligible projects will be determined by an appointed Expert Consenting Panel under a process which involves reduced information requirements, dispenses with the notification and hearing provisions of the RMA and limits appeal rights to points of law only. In addition, decisions by the Expert Consenting Panel will need to be made within 25 working days, with the ability to double this timeframe for large scale, complex, projects.
While the criteria are still being finalised, the Cabinet Paper lists the following matters which the Minister may take into account in determining whether a project is eligible for fast-track consenting:
- economic benefits for communities or industries affected by COVID-19;
- the social and cultural wellbeing of current and future generations;
- whether the project would likely progress significantly faster by using this process;
- whether the project will result in a significant public benefit. When considering whether it will do so, the Minister may have regard to any relevant matter, including whether the project will:
- generate employment;
- increase housing supply and contribute to well-functioning urban environments;
- provide infrastructure, to improve economic, employment, and environmental outcomes, and increase productivity;
- improve environmental outcomes for coastal or freshwater quality, air quality, or indigenous biodiversity;
- minimise waste;
- contribute to New Zealand’s efforts to mitigate climate change, including accelerating New Zealand’s transition to a low emissions economy;
- promote the protection of historic heritage; and
- strengthen environmental, economic and social resilience, including to natural hazards and the impacts of climate change.
If accepted as eligible, the expectation is that there will be a high level of certainty that a resource consent or designation application will be granted. This expectation is to be realised by provisions in the final legislation which limit the ability of the Expert Consenting Panel to decline consent to circumstances where, for example, the information provided in support of the application is inadequate and the consent cannot be granted in a manner that promotes the sustainable management purpose of the RMA.
To date, the proposed Bill has received widespread support from all sides of the political spectrum and, accordingly, is expected to easily pass into legislation by the end of June 2020. Some concerns have been expressed that the reduction in information requirements and the curtailment of public rights to participate in the consenting process will result in approval of projects with unacceptable environmental effects. No doubt such concerns can in large part be alleviated by the various safeguards included in the Bill and the knowledge that the Panel appointed to assess applications will have the necessary skills and experience to provide a robust examination of eligible projects.
The key beneficiaries from the proposed legislation will be central and local government who will be able to proceed with a wide range of infrastructure projects in the knowledge that they are either permitted as of right or the appropriate approvals can readily be obtained in a cost efficient and risk free manner. Private developments of a medium-large scale may also benefit from the proposed legislation and, as such, a worthwhile step would be to evaluate such projects against the finalised eligibility criteria. If you have a project in the pipeline which you consider may qualify for fast track consenting, we would be happy to discuss it with you.
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