Fast-track consenting now available for development projects
A new process to fast-track resource consents and notices of requirements has been urgently passed by Parliament and will be available for two years.
On 9 July 2020, the COVID-19 Recovery (Fast-track Consenting) Act 2020 (Act) came into force. The Act introduces a streamline consenting process that is designed to create opportunities for projects in both public and private sectors. The purpose of the Act is to urgently promote employment as New Zealand recovers from the impacts of COVID-19 and to support the certainty of ongoing investment across New Zealand, while continuing to promote the sustainable management of natural and physical resources.
The Act allows any person to apply to the Minister for the Environment (Minister) to fast-track a resource consent application, and requiring authorities to apply to fast-track a notice of requirement, provided that the project meets the purpose of the Act and is not on land subject to Māori rights or a prohibited activity under the relevant plans and regulations.
The fast-track process requires the public benefit test to be met and will involve less public scrutiny
If the Minister, after consulting with relevant local authorities and Ministers, decides that the project will help to achieve the purpose of the Act, will have a public benefit, and should be fast-tracked, he will refer it to an Expert Panel (Panel) via an Order in Council. The public benefit test includes the following considerations:
- progressing faster using this process;
- economic benefits for industries affected by COVID-19 / employment generation;
- providing housing or infrastructure;
- strengthening environmental, economic or social resilience;
- climate mitigation, waste minimisation, water quality improvement; and
- social or cultural wellbeing benefits for current and future generations.
The Panel will then assess the resource consent application or notice of requirement against Part 2 of the Resource Management Act 1991 and the purpose of the Act. Applications will not be notified. Only industry groups, councils, relevant Ministers, relevant iwi authorities and Treaty settlement entities, relevant requiring authorities, and owners and occupiers of the subject land and adjacent land will be able to comment. These parties may be heard if the Panel in its discretion decides to hold a hearing. However, no person has a right to be heard.
The Act lists 17 projects that can proceed straight to fast-tracking with limited scope for consents to be declined or notices of requirements cancelled
Schedule 2 of the Act includes a list of projects that Parliament has decided meet the purpose of the Act and will be a public benefit. These ‘Listed Projects’ will skip the Minister’s approval stage and proceed straight to being considered by an Expert Panel. The Panel has a very narrow scope to decline consent or cancel a notice of requirement for a Listed Project (only if granting would be inconsistent with any national policy statement or the Treaty of Waitangi).
The Listed Projects are primarily infrastructure projects and include the Wellington Metro Upgrade Programme, the Northern Pathway – Westhaven to Akoranga shared path, and the Papakura to Pukekōhe rail electrification. Also listed are five Papakāinga developments.
KiwiRail and the NZ Transport Agency will be able to undertake certain activities as of right without the need to obtain consent or a designation
The Act provides that, subject to compliance with prescribed standards in the Act, any activity for the operation, maintenance, replacement, or minor upgrade of existing infrastructure is a permitted activity and can be undertaken as of right by KiwiRail and the NZ Transport Agency. This is regardless of the activity status prescribed under the relevant plans.
The fast-track process will be available for only two years
The Act will be repealed on 8 July 2022. After this date, any activity authorised by a consent or designation granted under the Act will continue to be authorised, and the role of the Environmental Protection Authority, local authorities and iwi authorities in relation to those activities will remain. If a project has been approved by the Minister to proceed via the fast-track process when the Act is repealed, it can continue under this process until a decision is made by the Panel.
Developers should make the most of this process while it lasts
Please contact us if you would like to discuss the opportunity to progress a project using the fast-track process. We can discuss how you can effectively navigate the fast-track process and how you can respond to your interests being impacted by these changes.
Our team has worked extensively on all aspects of environmental and resource management law for private and public sector clients. Our expertise spans drafting law and influencing planning processes through to obtaining rights to operate and responding to compliance problems.