28/03/2022·4 mins to read
Fast-track consenting for infrastructure and development projects
The COVID-19 Recovery (Fast-track Consenting Act) 2020 (Act) was enacted to urgently promote employment growth to support New Zealand’s economic recovery from Covid‑19 by providing an accelerated consenting process for infrastructure and development projects that are planned and ready to go. So far, 16 projects have been approved under the fast-track process and only one declined.
At the end of last year, the sunset date of the Act was extended to 8 July 2023. In this article we provide an overview of the alternate consenting pathway provided for in the Act, and identify how this process could assist in the consenting of your next project.
Any project requiring a resource consent (or designation) can be fast-tracked. Previous projects have included residential, industrial, commercial, renewable energy and tourism & entertainment projects.
For private projects, applicants must first apply to the Minister for the Environment for referral into the fast-track process. At this stage, the Minister considers whether the project meets the eligibility criteria and the purpose of the Act, which 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.
Projects that help industries or areas of New Zealand affected by Covid-19, or that may result in a broader public benefit such as increasing housing supply, helping with the mitigation of climate change, contributing to well-functioning urban environments and improving environmental outcomes, stand a higher chance of referral.
The referral phase does not require a full application or suite of supporting reports and assessments. What is needed is an economic assessment, plans and a targeted set of reports. The reports that should be included are those that address specific areas of concern raised by your project, such as heritage reports where heritage issues are anticipated. Because the Minister must satisfy himself that the project promotes sustainable management of the environment, you need to be able to describe the anticipated and known adverse effects of the project. You must also be able to demonstrate “construction readiness”, and a report confirming this is critical.
If the Minister is satisfied that the project meets the purpose of the Act, referral is confirmed through an Order in Council. An application for resource consent can then be made to the Environmental Protection Authority (EPA), comprising a full suite of reports and draft consent conditions. The EPA reviews the application for completeness, and a consenting panel is established to decide the application. In our experience a high level of detail is required in the application and detailed requests for further information are often issued with tight timeframes to respond.
Advantages and disadvantages
The main disadvantage of the fast-track process is its susceptibility to delays in the referral phase. The Minister’s decision on referral is not subject to timeframes. While the Ministry for the Environment (MfE) suggests allowing 3-4 months for referral, this may be longer if there is a backlog in applications.
However, once the project is referred and an application is made to the EPA, there are strict timeframes for the consenting panel to make a decision. This is typically 45 working days after the date of application, or 70 working days if extended due to the scale of the project or as a result of issues raised during the Panel’s processing of the application. This is the primary advantage of the process.
Another advantage is that hearings are held at the discretion of the consenting panel (with no hearings being required in the referred projects so far), reducing the time delays and costs associated with a hearing. There is also no public notification, though comments are invited from specified persons and groups, including relevant local authorities, iwi authorities, adjacent landowners, and specified government departments and non-government organisations. Appeal to the High Court is also limited to points of law, avoiding the delay and uncertainty that can be caused if local authority consent decisions are appealed to the Environment Court to be heard afresh.
Another key disadvantage of the process is the 2-year lapse period for resource consents that are granted. This is particularly problematic for subdivision consents for large scale housing developments, where it may not be possible to submit survey plans for all the titles within two years.
Also, because of the strict timeframes at the EPA stage and the low likelihood of a hearing, there is limited opportunity to amend the application or make changes to the design to address issues that arise during the process. There is little room to amend an application in any event, the referral orders often being quite specific about the details of the project, preventing increases to the scale of the project after referral. The strict timeframes also limit the ability to respond to comments (which can often be very detailed) and can often lead to the application being put on hold to give applicants time to address them.
Simpson Grierson has been involved in a number of fast-track applications, including large scale residential and commercial developments. Below we set out three key insights that may help with fast-tracking your project.
You should organise a pre-application meeting with MfE before seeking referral. This meeting will discuss the process, your project and the key issues that should be addressed in the referral application. Similarly, a pre-application meeting should also be organised with the EPA prior to lodging the substantive application.
The referral application should essentially be treated as a business case for why your project meets the purpose of the Act. It is not critical that your project provides a high number of jobs. However, it should show that it will help people and industries affected by Covid-19. We have worked with a number of expert consulting firms that can provide reports outlining how your project creates employment and investment certainty. Again, the ability to demonstrate “construction readiness” is critical.
Issues that local authorities may raise should be anticipated. While local authorities’ role under the fast-track framework is limited, the consenting panel and Minister seek comments from the relevant authorities and have the ability to decline the application on the basis of issues raised. Early and effective engagement with the relevant councils is critical, especially given the short timeframes to respond to comments at the consenting panel stage.
Get in touch
If you would like help with fast track consenting, please get in touch with one of our team.
Special thanks to Olliver Maassen for his assistance in writing this article.