Influencing the shape of the Government’s Fast Track Consenting Bill

The Fast track Consenting Bill is being developed at pace as part of the Government’s 100-day plan and we expect to see the Bill introduced into the House on or before 7 March 2024.

To ensure the views of local government were included in the recent advice to Ministers, Taituarā initiated a focus group session with Ministry for the Environment officials and key local government staff – who have significant experience with the COVID-19 fast-track consenting process – to discuss the challenges, opportunities and solutions local government needs from the Bill.

That advice was reported to Ministers last week alongside feedback from the Local Government Steering Group, and other Ministry for the Environment engagements. We understand the advice from local government has had influence already – with the focus refined to nationally and regionally significant development.

Next steps for us – we plan to work with the focus group, the Taituarā Resource Management Reference Group and LGNZ on a joint submission. We will work with Te Uru Kahika to ensure we are closely aligned. We will provide a draft of the submission to councils for comment and their use in developing their own submissions.

If you want to know more, please contact Kath Ross.

For those who want to know more about the Bill and information shared with the Ministry for the Environment, please see below.

About the Bill

The Bill will have its own purpose – to enable development – or words to that effect. It will provide a one-stop shop for consenting across a range of legislation. The range is still to be determined but is likely to include the Reserves Act, Heritage, Conservation, and Wildlife Acts.

The type of project that can be considered under the proposed Bill is still in development. Previously the COVID-19 Recovery (Fast Track Consenting) Act 2020 enabled a wide range of projects to be considered. This was reduced under the Natural and Built Environment Act 2023. We understand the Government wants eligibility under the new legislation to be wide ranging – from resource extraction to aquaculture, large scale infrastructure, including resilience infrastructure, and housing.

Unsurprisingly, projects from across the spectrum have been brought to Ministers’ attention for potential inclusion in the Bill as ‘first cabs off the rank’ – more than 59 are under active consideration according to the Minister Responsible for RMA reform. We suspect the number is high and includes projects that have not made it through the COVID-19 process.

Criteria that would enable a project to be included in the fast-track process – through inclusion in the Bill itself or as projects that are later referred to the Expert Panel for consideration – have not been seen yet. They are still under development. How this ties into the active consideration of projects by Ministers remains to be seen.

The proposed process, involving Ministerial decision making and Expert Panel members, and the potential criteria, are of immense interest to local government – as a potential user of the process for council-led and supported projects, in its strategic, resource management and community planning and place making roles, as a regulator, and as provider of infrastructure and services to communities.

Other issues local government will likely need to consider in responding to the Bill’s introduction include:

• what is nationally and regionally significant
• integration with current strategies, policies and plans and council services
• the provision and funding of infrastructure to support development that is enabled by the fast track process
• the role of local government – and its ability to recover costs for its involvement – in the proposed process for decision-making
• the role of national direction and
• the implications of prohibited activities potentially being enabled.

This is not to say that all aspects of Fast Track Consenting are unwelcome – there are issues with current processes and council projects and those they support could benefit from many of the features of a fast-track process if not the fast-track process itself. Our goal will be to ensure the legislation works for councils and the communities they serve, particularly when it comes to the pointy end of how it is actually implemented.

Feedback to the Ministry for the Environment on Fast Track Consenting (abridged)

1. Fast-tracking is only one part of the picture: integration is required with:

2. Cost recovery

• was not provided for under the COVID-19 legislation
• is needed for local government involvement in the process including the Ministerial process, expert panel process, pre-application, variations (where there has been significant work under COVID-19 legislation), and participation in judicial reviews and appeals
• needs to be addressed in the Bill and not left to future regulations – and both rolling over section 36 of the RMA and schedule 10 of the Natural and Built Environment Act should be considered as options for the future.

3. Transparency of decision making

• the rationale for the Ministers’ decision to refer projects to the Expert Panel should be clear and made public given the assumption that projects will not be declined and the focus of the referral process is about enabling the development with the right conditions
• official’s advice should also be made public
• this is important for future appeals and judicial review proceedings as well as transparency of decision making, public confidence and trust in government
• developers also want certainty.

4. Nationally, regionally and locally significant projects

• clear criteria and thresholds are required that ensure proposals provide significant public or strategic benefit
• there is a clearer case for nationally and regionally significant infrastructure
• the inclusion of locally significant should be avoided as it will overwhelm the process – reducing its efficacy – and would be difficult to define / provide clear criteria consistently across the country
• if included, Housing and Business Development Capacity Assessments might be useful to help determine significant in a local area.

5. Process, decision making and LG role

• the scope of local government’s role in the process needs to be clear – what information is expected from local government and in what timeframe is a critical issue
• process assessment needs to be transparent and robust
• high bar for decline – need a high bar for information that is submitted
• support for a process where Councils provide comment relating to whether an application is accepted into the process, comment for the processing of the application, and a nominee on the decision-making panel. Councils simply can’t provide all the evidence that should be before the Expert Panel for decision-making in the timeframes and with the costs involved if the process resembles the COVID-19 legislation
• a key issues report – given currently to a Board of Inquiry – should be considered
• significant support for a pre-application process
• assessment should still have to consider the relevant planning documents.
• decisions should detail reasons for the decision relative to the significance of the application
• decisions should still need to appropriately assess, balance and weigh up environmental effects, strategic planning outcomes, and the economic benefits
• shouldn’t be able to withdraw and then resubmit and application
• important to ensure adequate resourcing for the agency that processes fast track applications – so they can adequately assess the adequacy of information
• important to consider timeframes and rigidity in the process – short timeframe, cost drivers and rigid process limits council’s ability to input and evidence the Expert Panel receives to make its decision
• 5-year lapse period probably more appropriate – would also delay / slow down extension of time applications that Councils then would need to deal with and decide whether appropriate to extend the lapse
• COVID-19 decisions were subject to national direction (National Policy Statements) NB the bigger issue is getting the right national direction and ensuring it works together to achieve outcomes – ie it that it is integrated and potentially consolidated and doesn’t lead to perverse outcomes
• consider including in the process an ability for the Minister be able to make the decision that it is a no and the development is more appropriate as a plans change.

6. In/Compatibility with the underlying zoning:

• where there is sufficient land available for residential and business development on appropriately zoned land (urban) and infrastructure planned to match it, development should not be permitted on land without the appropriate zoning – ie it should not proceed on future urban or rural land – unless the Council is willing to promulgate a plan change to rezone the land
• conversely if there is insufficient land available in the appropriate zone, the process should enable development and a streamlined approach to re-zoning (with a council promulgated plan change)
• where the consented development results in a plan misalignment, if there is agreement from the council then a streamlined approach to re-zoning should be available.

7. Conditions of consent

• significant time, effort, and money has been spent on variations to consents
• pre-application discussions with Councils and draft conditions should be included in the process – ie by enshrining the requirements to engage and develop draft conditions in the legislation
• good applicants do this already
• getting to use the fast-track process should be reserved for those that have done the required work upfront.

8. The consenting authority

• Central government should be the consenting authority and defend appeals or act as the respondent for judicial reviews. The rationale for this is -
  • It is a Ministerial decision to effectively grant the consent / refer for appropriate conditions to be established
  • It is (likely) a Ministerial decision to decline an application albeit based on recommendations from the Expert Panel
  • The decision-making process including the setting of conditions is supported by the machinery of Government and the Expert Panels

Thank you to Blair Bowcott, Hamilton City Council; Christine Jones, Tauranga City Council; David Yue Pan and Natalie Bedggood, Rebecca Greaves, Russell Butchers, Auckland Council; Jeff Baker, Palmerston North City Council; Fiona Blight, Queenstown Lakes District Council; Nic Etheridge, Porirua City Council, Shaun Andrewartha, Greater Wellington Regional Council, Mark Stevenson and John Higgins Christchurch City Council for sharing their experiences and potential solutions with Taituarā and Ministry for the Environment and to Al Cross, Te Uru Kahika for his assistance in arranging the hui.

Thank you also to Clare Wooding and Rebecca Perret at Ministry for the Environment.