Two “at pace” consenting processes revealed
Cabinet papers reveal two broad approaches to speeding up consenting processes. Certain types of projects for central and local government will bypass all standard environmental considerations and other projects will obtain access to quick decisions.
These fast-tracking proposals will bring certainty for the construction industry around work and will create opportunities for other projects to proceed in both public and private sectors.
The general approach to avoid or replace consent processes (including processes involving designations) by avoiding public submissions and hearings, and narrowing appeal possibilities will be controversial for those who value the benefits of due process and environmental protection. However, that is unlikely to dissuade politicians and businesses who are focused on kick-starting the economy and see public involvement in environmental decision-making as unnecessary red tape.
Central and local government projects bypass consenting requirements
There are two types of approaches taken that will benefit central and local government projects. These will be driven by economic, not environmental, considerations.
The Bill is likely to bestow by royal decree resource consents for specific large-scale Government-led projects. These are likely to be housing, rail and road projects. This will delight many – KiwiRail, the Transport Agency and developers who are partnering with Kāinga Ora. The later won’t need to go through normal processes or need to wait for the specially designed urban development framework to be enacted.
Other central and local government projects that meet certain (not finalised) criteria are likely to also benefit from another permissive approach so that minimal process applies. The permissive approach may involve deeming activities as ‘permitted' (and avoid the need for any resource consent) or ‘controlled' (so resource consent must be granted and only conditions can be imposed). Minister Jones has been vocal about giving Government entities, like the Defence Force and the Transport Agency, a form of self-consenting so that is also possible.
Projects obtaining the benefit of this permissive approach are likely to involve applicants undertaking works for public benefit who are making significant capital investment and own or control the land involved.
Global resource consents for multiple small projects are also likely to be granted through the Bill.
Swift evaluative process for other projects
The second category of fast-tracked processes available will be of great interest to a broad group who may wish to progress projects. For the next two years, if the Minister for the Environment believes a project is worthy of a special process, no individuals will be able to stand in the way of it. The Minister may send applications to a panel for consideration if a project provides one of many types of positive benefits for society. These are likely to involve economic benefits; employment generation; urban growth; improvements to environmental infrastructure; strengthening environmental, economic or social resilience; social or cultural wellbeing benefits; or improving outcomes for coasts or freshwater; waste minimisation; climate mitigation; and historic heritage promotion.
Limited people will have opportunity to comment. Only industry groups, councils, relevant iwi authorities and owners and occupiers of land and adjacent land will be able to comment, but they will not have a further opportunity to be heard.
Individuals, businesses, iwi organisations will vacillate between a desire to get projects underway and concern about being unable to debate the impact of changes to resources (like water and infrastructure) that they care about.
A decision-making panel will consider applications. It will have judicial expertise, local government knowledge, an understanding of tikanga and infrastructure projects. The Minister’s initial press release says that “once a project is referred to the panel there is a high level of certainty that the resource consent will be granted”.
If the panel wishes to do more than rubber-stamping, it will be hamstrung by receiving limited information. While written comment can be provided by representative organisations with resources to do so, there will be no hearing to test any arguments; no questioning of experts. Normally applications are evaluated through questioning technical and factual experts (to understand everything from ecology to engineering plans) to solicit and weigh competing information. Loss of this part of the process is significant.
Interestingly, decisions by the panel will be made within 25 or 50 days (depending on complexity) after receiving comments. This is longer than the existing process where decisions are typically issued within 15 days from receiving all information.
The criteria to disqualify a project from this process doesn’t relate to environmental effects. It is limited to existing law-making principles that the Crown uses when preparing environmental law: don’t impact land or waters where Māori have rights under a settlement or the Marine and Coastal Area Tukutai Moana Act or if they may be needed for a settlement. (Also, if a plan already bans people from applying for resource consent to undertake an activity then the ban can’t be overridden.) This means that Te Urewera National Park, the Whanganui River and Mt Taranaki – all of which have legal personhood through Treaty settlements – will have greater environmental rights than individuals, iwi groups or businesses to raise concerns about applications.
Based on the information available, protection for the environment will significantly rely on the panel applying the purpose and principles of the Resource Management Act (RMA) and having regard to planning instruments. This will be challenging to do based solely on reading an application and the comments provided. Judges find this difficult even when they’ve received detailed evidence and had the benefit of a hearing.
Changes are likely to be implemented swiftly
Although Cabinet has signed off on the general approach to resource consent processes, work remains in finalising the criteria and the nature of projects that might benefit from the respective new processes – royal decree, permissive or self-consenting, and a fast panel decision.
We expect that a Bill would be introduced into the House in the next few weeks and proceed through an expediated process of passing legislation. Given the National Party’s explicit desire to help businesses and reform the RMA, we expect they would support the general approach of the Bill even if the Green Party were to withhold votes.
Assuming there won’t be a public backlash to significantly change Parliament’s response to this Bill, this news is likely to cause project proponents to revisit projects left on a back burner due to complexity and obtain advice on whether they may benefit from these new processes.
Please contact us if you would like to discuss the impact of these proposals on your interests. 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. Their expertise spans drafting law and influencing planning processes through to obtaining rights to operate and responding to compliance problems.