COVID-19 Recovery (Fast Track Consenting) Bill

A Cabinet Paper regarding the fast-track RMA process has been released: https://www.mfe.govt.nz/rma/bill-to-fast-track-projects

Here are the key points.

The Bill will cover three “levels of intervention”:

• Specific large-scale Government-led projects will be listed in the Bill. A list is being compiled by a team led by Ministers Twyford and Jones.
• Certain central and local government projects will be enabled to occur as of right, provided specified criteria, such as capital value thresholds or land tenure requirements are met. Thresholds for this approach, including a maximum dollar value, are being considered.  Consideration is also being given as to whether this approach would be by a form of self-consenting, or by deeming activities to be permitted
• The Bill will provide a fast-track resource consenting and designation process for other publicly or privately led projects.

Most of the detail in the Cabinet Paper relates to the fast-track process.

Eligibility for fast track process

Any persons with eligible projects will be able to apply to the Minister for the Environment to use a fast-track consenting or designation process. The Minister be able to refer a project, via an Order in Council, to an Expert Consenting Panel (the Panel) if the Minister considers the project meets the purpose of the legislation. For any project that is to be carried out in whole or partly in the CMA, the Order in Council must be prepared jointly with the Minister of Conservation.

Criteria that the Ministers will use to decide whether to refer a project to the fast-track process

The criteria that the Minister will use to decide whether to fast-track a particular project are:

• 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:

1. generate employment
2. increase housing supply and contribute to well-functioning urban environments
3. provide infrastructure, to improve economic, employment, and environmental outcomes, and increase productivity
4. improve environmental outcomes for coastal or freshwater quality, air quality, or indigenous biodiversity
5. minimise waste
6. contribute to New Zealand’s efforts to mitigate climate change, including accelerating New Zealand’s transition to a low emissions economy
7. promote the protection of historic heritage
8. strengthen our environmental, economic and social resilience, including to natural hazards and the impacts of climate change.

In addition, the project must not:

• authorise any activity classified as prohibited in any plan or proposed plan;
• authorise any work in a customary marine title area under the Marine and Coastal Area (Takutai Moana) Act 2011, unless agreed in writing by the relevant customary marine title group;
• involve land returned under a Treaty settlement unless there is agreement from the relevant iwi authority; or
• involve land considered necessary for Treaty settlement purposes by the Minister or Treaty of Waitangi Negotiations.

An applicant will need to provide adequate information to the Minister on how the project meets the relevant criteria and whether it would meet the purpose of the legislation.

The Minister will have discretion to decline any application for a project, for any reason including but not limited to:

• it would be more appropriate for the project to go through the standard RMA consenting or designation process
• directing the project to a Panel would not promote Part 2 of the RMA
• the project is inconsistent with any relevant national direction under the RMA
• directing the project to a Panel would be inconsistent with any Treaty settlement
• the applicant has a poor history of environmental regulatory compliance
• the applicant has not provided sufficient information to determine whether the project meets the eligibility criteria.

Process for fast-track projects

If a project is referred to the Panel, there will be no public notification but the Panel will be required to invite comment from:

• the relevant local authorities
• any relevant iwi authority
• any relevant customary marine title group, protected customary rights group or applicant group under the Marine and Coastal Area (Takutai Moana) Act 2011
• the owners and occupiers of any land on which the project is to be undertaken, or of any adjacent land
• certain Ministers of the Crown (to be identified in the legislation)
• certain organisations or persons, to be identified in the legislation, including but not limited to environmental NGOs and infrastructure industry groups
• any other person that the Minister for the Environment (and Minister of Conservation, if the project relates to the coastal marine area) considers appropriate

There is no obligation to hold a hearing, and the Panel must issue its decision on the application it is considering within 25 working days of the date it specifies it must receive comments on the application. The Panel can double this 25 working day timeframe if the scale of the project that is the subject of the application means it cannot be determined within that timeframe.

Panel decisions

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, local authority plan or proposed plan, or other matter listed in section 104(1) of the RMA when considering applications for resource consents

The Panel may only decline the resource consents or designations in certain circumstances to be set out in the legislation, such as:

• the Panel considers the information provided to it is insufficient or inadequate;
• the consent cannot be granted in a manner that promotes Part 2 of the RMA;
• granting consent would be contrary to the objectives or policies relating to freshwater quantity or freshwater quality in any operative or proposed pan, or freshwater national direction, or any Water Conservation Order;
• granting consent would be inconsistent with any relevant Treaty settlement legislation;
• the activity is likely to cause any adverse effect that is more than minor on the exercise of a protected customary right.

Designations

The Panel will be the decision-maker for designations in the same manner as a Board of Inquiry when considering notices of requirement as part of nationally significant proposals (the requiring authority will not make the decision).

Appeals

Appeals against a Panel decision on a resource consent (or NOR to confirm a designation) will be limited to a point of law appeal to the High Court and a further right of appeal to the Court of Appeal, with no right of appeal to the Supreme Court. Any application for judicial review would need to be filed at the same time as a point of law appeal.

Appointment and functions of the Panel

The Panel will generally have no more than four members, but could exceed four in order to accommodate circumstances unique to a region or locality, or number of applications considered. Where a Treaty settlement applies to decision-making for consent approval for a project, the composition of the Panel will need to comply with any requirement relating to hearing commissioners, or in relation to the resource consents concerned.  Unless otherwise provided for in the Treaty settlement, the Panel will be chaired by a current or retired Environment Court Judge (or other judge, or senior lawyer with resource management expertise), and include a member of (or person nominated by) the relevant local authority(ies), and include a representative nominated by the relevant iwi authority(ies).

RMLA Executive13 May 2020