Fast tracking RMA Consents and Designations
Topics covered in this article: RMA, RMA & Local Government
The COVID-19 Recovery (Fast-Track) Consenting Act came into effect on 9 July 2020.
The purpose of the Act is to urgently promote employment to support New Zealand’s recovery from the impacts of COVID-19, by establishing a new fast-track consenting and designation process for certain types of infrastructure and development projects. The Act is a short-term intervention and will self-repeal on 8th July 2022.
So, what types of projects are eligible and what is the process?
1. The Act contains two categories of projects for fast-tracking:Listed projects – this is a list of 17 specific Government-led projects listed in Schedule 2 and includes Auckland’s ‘Northern Pathway’ (i.e. the Skypath), redevelopment of the Unitec site, redevelopment of the Picton Ferry Terminal, upgrading SH1 between Papakura and Drury, and a selection of papakāinga developments (amongst other projects).
2. Referred projects – Anyone can apply to the Minister for the Environment to fast-track their consent or designation. If it meets the relevant criteria and is approved, an Order in Council will be drafted and the matter referred to an expert panel for consideration.
The Act also authorises NZTA and Kiwirail to carry out specific works on existing infrastructure, without a resource consent. The works are limited to operation, replacement, maintenance and minor upgrades of existing infrastructure located within the road and rail corridor. Local authorities, Kainga Ora and the Ministry of Housing and Urban Development can also apply to be added for specific activities and work.
Process for Referred Projects
The Minister for the Environment (and Minister for Conservation if any part of the project is in the coastal marine area) can refer a project for fast-tracking if he is satisfied that the project will help achieve the purpose of the Act. The Act sets out matters he may have regard to, including:
1. The project’s economic benefits and costs for people/industries affected by COVID-19;
2. The project’s effect on the social and cultural well-being of current and future generations;
3. Whether the project would be likely to progress faster using this process;
4. Whether the project will result in public benefits, for example, generating employment, increasing house supply, providing infrastructure, transitioning to a low-emissions economy, strengthening resilience by managing natural hazard risk and effects of climate change;
5. Whether there is potential for the project to have significant adverse environmental effects, including greenhouse gas emissions.
The Act also specifies the level of information required to support an application to the Minister. The Minister will seek comments from relevant local authorities and Government Ministers, and will consider a report prepared by the Ministry in consultation with the Office for Māori Crown Relations; and then make a decision on the application.
The Minister can refer all or part of a project, refer the initial stages (and defer the remaining stages), specify restrictions to apply to the project, specify information that must be submitted to the Panel, specify groups who must be invited to comment, or set specific timeframes for processing.
If the referral application is granted, the Governor-General (via an Order in Council) will refer the project (or part of a project) to the second stage of the fast track consenting process, an expert consenting panel who will make the final decision on the project.
The Panel will usually consist of up to 4 persons including a current or former Environment Court Judge, a person nominated by the relevant local authorities, and a person nominated as the representative of the relevant iwi authorities, although further panel members may be appointed if required by the circumstances. The Act provides requirements for the collective skills and expertise of the Panel, including technical expertise, and expertise in tikanga Māori and mātauranga Māori.
Other features of the process include:
No notification of applications / notices of requirement (either public or limited). Instead, the Panel will receive written comments within 10 working days from listed persons, including local authorities, iwi authorities, owners/occupiers of the project land and adjacent land, certain Ministers and interest groups (including the Employers and Manufacturers Association, Environmental Defence Society, Property Council, Infrastructure Commission, Forest & Bird).
No requirement to hold a hearing, although the Panel has a discretion to hold a hearing if considered appropriate, and could do so via remote access.
‘Listed projects’ have more certainty of being granted. The Panel must grant unless stated grounds apply for declining the application. This even applies to non-complying activities, and the usual ‘gateway test’ in s104D must not be applied by the Panel. (Note this doesn’t apply to ‘referred projects’).
If the Panel is minded to grant it will provide draft conditions for comment to the Applicant and all those who provided comments on the application / notice of requirement.
The Panel must issue its Decision within 25 working days of receiving comments. The Panel can extend that timeframe by a further 25 working days due to the nature or scale of a particular proposal.
Appeal rights are limited to the High Court on points of law only, with a second final appeal right to the Court of Appeal. Judicial review is available, but parties can only apply for judicial review and an appeal to the High Court if they are lodged together.
The Ministry for the Environment has released consenting guidance for the new fast-tracking process, and an application form, which can be found here:
If you would like to find out more about this new process (including some of the benefits and potential pitfalls), or discuss whether your project might be eligible for fast-tracking, please contact a member of our Resource Management and Local Government Team.
Latest Update: 29June 2020