COVID-19 Recovery (Fast-Track Consenting) Act 2020
COVID-19 Recovery (Fast-Track Consenting) Act 2020
Friday 31 July, 2020
On 8 July 2020, as part of the COVID-19 rebuild plan, the Government passed the COVID-19 Recovery (Fast-track Consenting) Act 2020 (“the Act”) which will provide an accelerated consenting process that will fast track eligible development and infrastructure projects. The purpose of the Act is to urgently promote employment to support New Zealand’s recovery from the economic and social 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 aims to:
- fast-track resource consenting and designation processes for eligible projects;
- accelerate the beginning of work on a range of different sized and located projects already planned by central and local government as well as the private sector; and
- enable specific work on existing infrastructure to occur without the need for a resource consent.
Under the Act, which will not amend the Resource Management Act 1991 (“RMA”) but rather provide an alternative consenting pathway under separate legislation, decisions on applications for resource consents and designations will be determined by Expert Consenting Panels with specified experience, including council and iwi representatives, and chaired by an Environment Court Judge.
Although public consultation would not be sought in the usual way required by the RMA (including through public and limited notification, submissions and hearings), the Panel will be required to invite comments from, at a minimum: relevant local authorities, iwi authorities, a Treaty settlement entity, customary marine title groups, protected customary rights groups, owners and occupiers of the subject land and adjacent land, Ministers of the Crown and specified organisations (including environmental NGOs), and any other person the Minister for the Environment (“the Minister”) considers appropriate.
There is no requirement for the panel to hold a hearing, however, the panel has a discretion to hold a hearing if it considers it appropriate to do so but may only hear from the applicant, any person commissioned to write a report on the consent application and any person or group who provided comments. Rights of appeal on a question of law to the High Court are provided for specified persons, as well as judicial review.
In making its decision on an application, the Panel will still be required to consider Part 2 of the RMA and have regard to any actual and potential effects on the environment, any relevant planning documents, regulations and national directions such as National Policy Statements and National Environmental Standards. However, for ‘listed projects’, consent applications can only be declined if the Panel considers it is inconsistent with any national policy statement or any Treaty settlement. When exercising functions and powers under the Act, persons must also take into account the principles of the Treaty of Waitangi.
Decisions from the Panel will be issued within 25 working days after receiving comments on the applications, however this could be extended to 50 days where the application is for large scale projects. This is a major acceleration from the RMA consenting process which can take months or years to complete.
Anyone carrying out any activity under the Act will still be required to comply with the duties under the RMA to avoid unreasonable noise and to avoid, remedy or mitigate adverse effects.
There are 2 categories of projects which will have access to the fast-track consenting process:
- Listed projects – Schedule 2 names the specific Government-led projects. Applications for these projects are submitted to the EPA to be assessed for completeness then referred to a panel for consideration. Projects named in the Act include the Unitec Residential Development, Papakainga Network Development, Picton Ferry Redevelopment, and the Papakura to Drury SH1 roading upgrade.
- Referred projects – any applications may be made to the Minister. If approved, the Minister will recommend an Order in Council to the Governor-General to confirm it may be referred to a panel.
The Minister will decide which projects are eligible to undertake the special consenting process and successful projects will be referred to a Panel. The Minister must be satisfied that the project will help achieve the purpose of the Act. In considering this, the Minister may take into account:
- economic benefits and costs for people or industries affected by COVID-19;
- the effect on social and cultural well-being of current and future generations;
- whether the project would likely progress faster by using the fast-track consenting process;
- whether the project will result in a public benefit, e.g. employment generation, increased housing supply, infrastructure that improves economic, employment, and environmental outcomes, and increases productivity, improving environmental outcomes, minimising waste, contributing to the efforts to mitigate climate change, protection of historic heritage, and strengthening environmental, economic, and social resilience; and
- the potential for the project to have significant adverse environmental effects, including greenhouse gas emissions.
Some projects will not be eligible where the project will:
- authorise any activity classified as prohibited in the RMA, any plan or proposed plan, or regulation under the RMA;
- authorise any works in a customary marine title area under the Marine and Coastal Area (Takutai Moana) Act 2011 unless agreed to by the holder of the relevant customary marine title order or where there will be more than minor adverse effects on the exercise of the protected customary right, agreement is required from the holder of a relevant protected customary right recognition order; or
- involve land returned under a Treaty settlement (unless agreed to by the relevant iwi authority).
Work on infrastructure
The Act also allows certain maintenance and minor upgrading works to be undertaken as permitted activities by specified agencies on existing public infrastructure. Works include the operation, replacement, and maintenance of, and minor upgrades to, existing public infrastructure located in or on the national road and rail corridors. The works may only be carried out by KiwiRail Holdings Ltd and the New Zealand Transport Agency. However, by Order in Council, Kainga Ora-Homes and Communities, the Ministry of Housing and Urban Development, and any local authority may also do so.
Some activities will be excluded from being permitted activities including those activities classed as discretionary, non-complying and prohibited in any plan or proposed plan, and where the activity would occur in a place identified in the relevant plan or proposed plan as wahi tapu, any other site of cultural or historical significance or an outstanding water body. Additionally, an activity that involves a non-temporary water take that would normally require resource consent is also excluded. The permitted activities will be authorised to continue for a duration of 15 years once the Act is repealed.
The agency seeking to carry out these works must undertake an engagement process with the relevant iwi and hapu and must also serve a notice of intention to relevant local authorities, iwi authorities, and Treaty settlement entities.
The permitted activities must comply with the specific standards that are outlined in the Act and local authorities would be responsible for compliance, monitoring, and enforcement to ensure the standards are met.
The Act includes a ‘sunset clause’ of two years, at which point it will be repealed.