New fast track process for consents and designations

The Government released some details yesterday regarding a proposed fast track consenting process for some infrastructure and development projects.  This email outlines what we know so far and how RMLA intends to  provide input into the legislation.

What is the new process?

Under the new powers, resource consent decisions for large projects would not go to council and public input would not be sought. Instead, a panel of experts chaired by an Environment Court judge would determine whether a project is consented.

The legislation would be repealed in two years.

Which projects are eligible?

Minister Parker will decide which projects are eligible, based on criteria.  He will take into account employment opportunities, the seriousness of the environmental issues (the process may not be appropriate for projects with very complex and contentious environmental effects), and the need for a mixture of projects including road, rail, and environmental restoration. He has stated that eligible projects will have to be "significant" in size and create a large number of jobs, and that both private and public projects would be considered.

Some large-scale government-led projects, including those in the NZTA’s Land Transport Programme, will be named in the legislation to go through the fast-track consent process, and a number of “shovel-ready” projects identified by the Infrastructure Industry Reference Group are likely to be accelerated under the fast-track consenting process.  However, the fast track is not limited to “shovel-ready” projects.

Projects will be named through Orders in Council.

How will consent decisions be made?

The Minister has confirmed that Part 2 of the RMA and existing national direction will be applied, and existing Treaty of Waitangi settlements will be upheld, but has also said that once a project is referred to the panel there will be a high level of certainty the resource consent will be granted.  The assessment matters that the panel will have regard to have not yet been confirmed.

The Expert Consenting Panels will be chaired by a current or retired Environment Court Judge or senior lawyer.  Each Panel will have a person nominated by the relevant local councils and a person nominated by the relevant iwi authorities. The Panels will have expertise in resource management, technical project advice, environmental protection, tikanga Māori and mātauranga Māori.

There is no formal public notification and submission process but the Panels may invite comment from some groups (environmental NGOs have been mentioned).

The Expert Consenting Panels will issue decisions within 25 working days after receiving comments on the application. (This could be increased to 50 days for large scale projects.)

Appeal rights will 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.

What happens from here?

RMLA understands that the fast track legislation will be referred to select committee after its first reading.  The new legislation is expected to pass in June.

What input will RMLA provide

RMLA intends to make a submission to the select committee considering the fast track legislation.  We will have a better idea of the issues that should be covered once the bill is released.  At this stage, the types of issues RMLA is likely to raise include:

• The criteria used to determine which projects are fast tracked.
• What information must be included in the assessment of a fast track project’s environmental effects.
• Whether there should be an opportunity for some interested parties, at least, to provide input on fast track projects.
• The criteria under which the panels will make their decisions.
• Process matters relating to panel decisions (e.g. cross-examination).
• How sustainable environmental outcomes can be achieved, particularly in light of the removal of public notification and Environment Court appeal rights.

RMLA is also engaging with MFE in advance of the bill being released to reiterate its standing offer of assistance in relation to any pre-release engagement processes, such as access to knowledge hubs to “road test” concepts.

 RMLA Executive

4 May 2020