New Fast-track legislation is to be the 2nd phase of the National led Government’s RM reform package [1]. It follows previous Fast-track processes: the COVID 19 Recovery (Fast-track Consenting) Act 2020 and the short-lived Fast-track process under the now-repealed Natural and Built Environment Act 2023. Will the latest move to provide for permanent Fast-tracking for significant infrastructure and development ensure prosperity, or usher further environmental decline?

Fast-track processes tend to raise specific concerns. Namely, that:

  • the environment will suffer due to insufficient consideration;
  • the process will remove rights to be heard on a project; and,
  • decisions (made centrally by a Minister) will become political.

In the previous Fast-track examples, the requirement to avoid, mitigate, or remedy adverse environmental effects, as part of sustainable management, was maintained, along with the ability for the decision-maker to decline the application in appropriate circumstances, especially where material adverse effects could not be made acceptable.

Concerns about removing the “right to be heard” were addressed by allowing affected parties the ability to make comments, though hearings were not mandatory.

These responses also served to insulate against politicisation by maintaining the independence of decision-making expert panels.

The information we currently have on the proposed new legislation may not instil total confidence in those bothered by such concerns. The new Act and process will be “standalone” which could indicate an intention to step outside some of the protections that have previously existed.

The intention is for “a ‘one-stop shop’ process… under a range of legislation, including the RMA” suggesting a potential for conflicts between legislation with differing purposes. Until we see the new legislation, it will not be clear whether there will be guidance for addressing such conflicts. However, given the intent of the legislation, the priority may be an approach favouring solutions that enable development.

Further, while an initial list of projects to be Fast-tracked will be included in the new Act, we are told the process may be applied to any “locally, regionally and nationally significant infrastructure and development projects [which] will be prioritised”. This is a broad brush that could conceivably be applied to any activity deemed “significant”. That is likely to be deliberate.

Indications are that the “Expert Panel” considering Fast-track applications “will have limited ability to decline a project once referred [by the responsible Minister].” They may then “apply any necessary conditions to ensure adverse effects of the project are managed.

The new legislation is due by 7 March 2024 and several important details are still to be determined, such as the relevance (if any) of Part 2 of the RMA and of policy and planning documents, Fast-track activity status, and Climate Change considerations. How these (and any other) issues will be resolved remains to the seen.

The Government considers that “these [significant] developments… [are] important… for New Zealand prosperity” and that “providing certainty and a faster consenting pathway is a priority” within its first 100 days in office.

Achieving prosperity requires development, but it is right to consider at what cost? Under the RMA environmental costs are duly considered. Though some would say the pendulum has swung too far, while others, not far enough. How the balance is set by the new legislation will be critical to determining whether we find ourselves on a fast-track to prosperity or a path to further environmental decline.

Indications also include that the next, more significant 3rd phase of reform, that will (again) see replacement of the RMA itself, will result in “new resource management laws based on the enjoyment of property rights.” No further detail is provided but it may be relevant to ask how such laws might fare in the face of Fast-track applications? Especially when such applications may include compulsory land acquisitions. There are risks to introducing ownership considerations in a statute for the use and development of resources. Currently, the RMA effectively side-steps such issues, protecting private property under resource consents by not displacing ownership rights. And one wonders if the enjoyment of property rights will demand the further delineation of those rights, including for resources such as water, or air, or other amenity values like quiet enjoyment or views? Should these be recognised as property rights? If so, what would be the implications? To an extent, these are currently recognised as community rights. But would that continue, or be augmented, or displaced?

As recent experience confirms, replacing the RMA is a complex undertaking. It is a statute that deals with ‘red-button’ or ‘hot’ issues. Fast-tracking, or prioritising property rights, does not make those go away but is likely to favour certain outcomes. Whether real benefits flow from those outcomes, and they lead to prosperity in the long-term, will determine if the current round of reforms can be considered a success.

[1] See the letter by the Minister Responsible for RMA Reform, the Honourable Chris Bishop, dated 31 January 2024. The 1st phase was the NBEA/SPA repeal, and the temporary roll-over, and amendment, of the NBEA Fast-track procedures.

Our experts

If you would like further information on the upcoming RM reforms, or have a proposal that you think could qualify for Fast-tracking, please get in touch with Cavell Leitch’s RM Team.

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