The COVID-19 Recovery (Fast-Track Consenting) Bill was introduced on 16 June 2020 in the Government’s attempt to mitigate the effects of COVID-19. The Bill aims to bypass the Resource Management Act 1991 in order to speed up the consenting process for projects.
Parliament’s last sitting day is 6 August in preparation for the 19 September election. As such, the Bill is likely to be passed prior to this in an urgent manner, seen before in circumstances such as the Christchurch and Kaikōura earthquakes.
The Bill enables two categories of projects to access the fast-track consenting process:
- Listed projects – these are specific Government-led projects listed in schedule 2 of the Bill, such as road works in conjunction with Kotahi Waka (NZTA). None of these are located in the Bay of Plenty.
- Referred projects – these are projects which have applied for eligibility to access the fast-track process.
The process for climbing aboard the fast-track consent train is two-fold.
Referred Project:
Initially, a project must become a ‘referred project’. This involves making an application to the Minister for the Environment to decide on whether a project should be referred. The application must go to both the Minister for the Environment and the Minister for Conservation for a joint decision if the project is in the coastal marine area.
Fundamentally, the project must help to achieve the purpose of the Bill. In determining whether it does, the Minister may consider a range of factors, including the economic benefits, significant adverse environmental effects and whether or not the project would likely progress faster using the process. The Bill precludes activities described as prohibited under a plan or national environment standard or those that may be inconsistent with customary rights. That said, the Ministers still have wide discretion, so there is some ambiguity surrounding the grounds for eligibility.
Expert Consenting Panel:
If deemed eligible, the application is referred to an expert consenting panel for consideration. The panel is chaired by an Environment Court Judge or suitably qualified lawyer and must also include nominated members from the local authority and Iwi authority.
There are no notification requirements here, although the panel must invite relevant parties (specified in the legislation) to comment on the application. A response from those parties is required within 10 days from notification. The Panel must reach a decision within 25 days of the last comment being received, however, there is scope to extend this to 50 days for larger projects. There is also no requirement for hearings and no appeals to the Environment Court. Appeals to the High Court are on a point of law only.
There is no time restriction on the Minister when deciding whether to give approval for a project to be referred and that may cause delays. However, for those projects successfully referred, the fast-track process should prove to be more efficient than the standard RMA process.
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